ARC 7892C
NATURAL RESOURCE COMMISSION[571]
Adopted and Filed
Rulemaking related to concessions
The Natural Resource Commission (Commission) hereby rescinds Chapter 14, “Concessions,” Iowa Administrative Code, and adopts a new chapter with the same title.
Legal Authority for Rulemaking
This rulemaking is adopted under the authority provided in Iowa Code sections 461A.3 and 461A.4.
State or Federal Law Implemented
This rulemaking implements, in whole or in part, Iowa Code sections 461A.3 and 461A.4.
Purpose and Summary
Chapter 14 establishes the rules surrounding the advertising/notice procedure, bidding process, evaluation and selection of a concessionaire, and other contract terms related to concession operations in Iowa State Parks. The changes now allow for longer-term/larger scope concession contracts, providing more security and efficiency for the concessionaires/vendors and additional visitor services and experiences in parks areas while decreasing the time Department of Natural Resources (Department) staff spend on paperwork and evaluation of concessionaires/vendors.
Public Comment and Changes to Rulemaking
Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on December 27, 2023, as ARC 7246C. Public hearings were held on January 30, 2024, at 12 noon and January 31, 2024, at 4 p.m.	at Wallace State Office Building, Conference Room 4E, 502 East 9th Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.
Adoption of Rulemaking
This rulemaking was adopted by the Commission on April 11, 2024.
Fiscal Impact
This rulemaking has no fiscal impact to the State of Iowa.
Jobs Impact
After analysis and review of this rulemaking, no impact on jobs has been found.
Waivers
This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.
Review by Administrative Rules Review Committee
The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).
Effective Date
This rulemaking will become effective on June 5, 2024.
The following rulemaking action is adopted:
	Item 1. Rescind 571—Chapter 14 and adopt the following new chapter in lieu thereof:
TITLE II
LICENSES, PERMITS AND CONCESSION CONTRACTS
CHAPTER 14
CONCESSIONS
571—14.1(461A) Definitions.
“Concessionaire” means a person or firm granted a contract to operate a concession in a state park or recreation area. The concessionaire is an independent contractor and not an employee or agent of the department.
“Concession operation” means operating a business within a concession area in a state park or recreation area including, but not limited to, boat rental, snack food sales, beach operation, and sale of fishing bait and tackle.
“Department” means the same as defined in Iowa Code section 461A.1(2).
“Director” means the same as defined in Iowa Code section 461A.1(3).
“Friends group or organization” means an organization incorporated under Iowa Code chapter 504 as a not-for-profit group which has been formed solely for the purposes of promoting and enhancing a particular state park, recreation area, or the Iowa state park system, or any combination of the three.
“Gross receipts” means the total amount received, excluding sales tax, realized by or accruing to the concessionaire from all sales, for cash or credit, of services, accommodations, materials, or other merchandise pursuant to rights granted in the contract, including gross receipts of subconcessionaires. All moneys paid into coin-operated devices, except telephones, shall be included in gross receipts.
“New concession” means the right to establish a concession operation in an area that does not currently have a concessionaire or an area where the department wishes to invite bids for a mobile type concession operation.
“Newspaper” means the same as described in Iowa Code section 618.3.
571—14.2(461A) Advertising or notice procedure.
	14.2(1) New concession.
	a. 	Advertising. When the department desires to obtain a new concession operation to offer multiple concession services in an area, the department shall advertise the request for proposals on the targeted small business website and the department’s requests for proposals website. The department shall advertise a notice for the request for proposals in one newspaper of statewide circulation and in at least one newspaper designated by the county to be used for official publications in the county in which the state park or recreation area is located.
	b. 	The notice shall state the following:
	(1)	The names and location of the area(s) in which concession operations are available.
	(2)	The general types of services the department would expect a concessionaire to furnish.
	(3)	How to obtain the request for proposals information.
	(4)	The deadline for submission of proposals to the department.
	c. 	The department shall allow a minimum of 15 days between the date of publication of advertisements and the deadline for submission of proposals.
	d. 	The request for proposals shall include the following information:
	(1)	A scope of work that contains detailed information regarding the types of services expected to be offered by the concessionaire and the history of the gross receipts reported for the previous five operating years by the prior concessionaire (if applicable); bid terms acceptable to the department; the name, address, and telephone number of the person to contact regarding the request for proposals; and the date and time by which the proposals must be received by the department.
	(2)	A map of the park in which the concession operation is proposed.
	(3)	A sample of the contract the successful bidder will be expected to sign.
	(4)	Samples of report forms that the concessionaire must submit to the department while the concession is in operation.
	14.2(2) Renewal of existing concession operation.
	a. 	The department may, at its option, mutually agree with the concessionaire to renew a contract during or at the end of its term. A concessionaire may request renewal during the term of a contract after a minimum of three years of concession operation and a minimum of six months prior to expiration of the existing contract. The provisions of the renewal contract shall be negotiated between the department and the concessionaire. Should either party choose not to renew the contract, appropriate notice shall be sent to the other party four months prior to the expiration date of the existing contract, and the department may advertise for bids in accordance with this chapter.
	b. 	The department shall publish a notice of intent to renew a concession contract that has been negotiated in accordance with paragraph 14.2(2)“a.” The notice shall be published in the same manner as provided in paragraph 14.2(1)“a” and shall solicit public comments regarding the renewal.
	c. 	The department director shall, upon review of comments received, determine whether to solicit bids or proceed with the renewal of the existing contract and shall notify the concessionaire of the decision in writing. If the director denies the renewal request, the existing concessionaire may request a contested case proceeding pursuant to Iowa Code chapter 17A.
571—14.3(461A) Bidding process.
	14.3(1) Proposals. Persons interested in operating a concession in a state park or recreation area shall submit a proposal in the format requested in the request for proposals. It is the bidder’s responsibility to inspect the area proposed for concession operation and be fully aware of the condition and physical layout of the area. The proposal shall also include an explanation of any proposed operation not mentioned in the request for proposals. Concession facilities shall be bid on an “as is” basis unless the department agrees in writing to undertake certain improvements.
	a. 	The department reserves the right to reject any or all bids.
	b. 	If no bids are received for a concession operation, the department may:
	(1)	Readvertise for bids; or
	(2)	Contact interested persons and attempt to negotiate a contract; or
	(3)	Determine that there will be no concession operation in that particular area that year.
	14.3(2) Vending machines.
	a. 	Placement of vending machines in state parks and recreation areas shall not be subject to the advertising and bidding process established by this chapter.
	b. 	Vending machines may be placed in state parks and recreation areas only by the publisher or distributor of the newspaper to be sold, the distributor of the soft drink to be sold in the machines, or by private vending machine companies.
	c. 	Companies placing vending machines in state parks and recreation areas must submit a proposal to the department that states the location, number, and type of vending machines to be placed; the price(s) that will be charged to the public; and the proposed fee or commission to be paid to the state.
	d. 	Any fees or commissions to be paid by the vendor to the state shall be paid directly to the department’s central office in Des Moines, Iowa.
	e. 	The department will not install new electrical lines, concrete pads, or any other items needed to enable installation of vending machines.
	14.3(3) Firewood sales.
	a. 	Firewood sales contracts shall not be subject to the advertising and bidding process established by this chapter.
	b. 	Persons interested in selling firewood in a state park or recreation area that has no other concessionaire, or if the concessionaire has declined the opportunity to sell firewood, shall submit a request to the department that identifies the area(s) where the firewood would be sold, the price to be charged to the public, and the proposed fee or commission to be paid to the state.
	c. 	All firewood sold or distributed in state parks and recreation areas shall be accompanied with a firewood label that meets labeling requirements identified in rule 21—46.16(177A).
	d. 	All firewood that originates from a quarantined area and that is sold or distributed in state parks and recreation areas must be certified by the United States Department of Agriculture to show that the firewood has been processed or treated according to applicable federal regulations.
	14.3(4) Friends group or organization.
	a. 	Concession contracts with a friends group or organization, as defined in rule 571—14.1(461A), in state parks and recreation areas shall not be subject to the advertising and bidding process established by this chapter.
	b. 	A friends group or organization shall submit a proposal to operate a concession operation at a particular state park or recreation area. The proposal shall state the services to be provided, the proposed hours of operation, and proposed staffing.
	c. 	All net proceeds from the sale of merchandise and other concession services shall be spent on state park or recreation area improvement projects.
571—14.4(461A) Selection of a concessionaire. The department shall select the concessionaire it determines to be best suited for a concession operation in a state park or recreation area upon evaluation of the following information:
	1.	The services proposed in the concession operation.
	2.	The concessionaire’s managerial experience and other concession-related experience.
	3.	The concessionaire’s financial stability, based upon a review of the concessionaire’s existing profitability, equity, available cash, and other applicable financial data.
	4.	The annual lease payment bid.
	5.	The length of contract proposed.
	6.	A check of all business and personal references given in the proposal.
	7.	The use of environmentally friendly practices and materials including, but not limited to, participation in recycling programs, use of items that contain recycled-content materials, use of energy-efficient appliances and equipment, and light pollution reduction.
	8.	The results of a criminal background check and driver’s license record check.
571—14.5(461A) Concession contract—general. The term of the concession contract shall be for no more than a ten-year period without being subject to the renewal process as outlined in this chapter. The contract may be amended during its term, in writing, and effective only if the amendments are approved by all parties.
	14.5(1) Construction. The contract may allow the construction of department-approved buildings or other facilities by the concessionaire in lieu of annual concession fee payments on an equal value basis. The value of the buildings or facilities shall be based on actual, documented cost of construction. Any structures built under this contract condition shall become state property and cannot be removed by the concessionaire unless removal is required by the contract.
	14.5(2) Insurance. Insurance coverage required to be carried by the concessionaire shall be “occurrence” type rather than “claims made.”
	14.5(3) Exclusive rights. The contract gives the concessionaire exclusive rights to conduct the concession operation in a particular state park or recreation area. The concessionaire must have department approval prior to allowing other vendors to do business in the area under the terms of the contract. This provision does not prohibit the department from allowing other vendors in an area if the department identifies a service that is not under contract with the concessionaire and the concessionaire declines to provide that service.
	14.5(4) Temporary authorization. If necessary, the department director shall have authority to issue a temporary letter of authorization to enable the successful bidder to operate a concession pending approval of the contract by the commission if commission approval is required by statute. The letter of authorization will incorporate all stipulations and conditions of the contract. The term of the letter of authorization shall not exceed 90 calendar days from the date of issuance.
571—14.6(461A) Dispute resolution. Should a dispute arise between the concessionaire and the department as to the interpretation of contract stipulations or whether the concessionaire is performing satisfactorily, the concessionaire shall initially meet with the local staff and district supervisor. If the matter cannot be resolved, the bureau chief will attempt to resolve the dispute. If the dispute cannot be resolved, the contract shall be terminated and the department may advertise for bids in accordance with this chapter. The requirements of Iowa Code section 17A.18(3) shall apply to any contract termination under the provisions of this rule. The provisions of this rule shall not be a bar to or prerequisite of the provisions of rule 571—14.7(461A).
571—14.7(461A) Suspension or termination for cause.
	14.7(1) Emergency suspension. If the department determines that continued operation of the concession presents an immediate hazard to the public health, safety or welfare or is in violation of any state law or policy, the department may immediately suspend the contract by notice procedures described in the contract. The notice shall contain specific reasons for the emergency suspension.
The department may enforce the suspension by physically closing the concession premises. The department may assign employees to operate any part of a concession which the department determines should be opened during a suspension in order to provide continued services for park users.
If possible, the concessionaire may take action to correct the hazardous situation and request reinstatement of the contract if the department agrees that a hazardous situation no longer exists.
	14.7(2) Termination of contract. The department may terminate the contract, for one or more of the following reasons:
	a. 	Failure to correct a hazardous condition within a reasonable time specified in the notice of emergency termination.
	b. 	Nonconformance with the stipulations of the contract including payment of fees.
	c. 	Unsatisfactory performance of the concessionaire.
Upon notice of termination of the contract, the concessionaire may request a hearing under the provisions of natural resource commission rules in 571—Chapter 7.
571—14.8(456A,461A,463C) Honey Creek Resort State Park exemption. The rules in this chapter do not apply to Honey Creek Resort State Park.
These rules are intended to implement Iowa Code sections 461A.1, 461A.3, and 461A.4.
[Filed 4/11/24, effective 6/5/24]
[Published 5/1/24]
Editor’s Note: For replacement pages for IAC, see IAC Supplement 5/1/24.