N.M. Admin. Code § 19.5.5.10

Current through Register Vol. 35, No. 23, December 10, 2024

Section 19.5.5.10 - CONCESSION CONTRACT PROVISIONS

Following a proposal's acceptance, the division shall enter into negotiations with the successful offeror for a concession contract to operate the concession or with a concessionaire to amend an existing concession contract. To the extent 19.5.5.10 NMAC contradicts an existing concession contract in effect on May 15, 1997, 19.5.5.10 NMAC shall not apply to those contracts unless they are renegotiated or amended. The concession contract's provisions shall be consistent with the following requirements.

A. The concession contract's term shall be limited to the shortest period possible and the term shall not exceed five years unless justified by at least the following: the amount of a concessionaire's investment, the capital improvements made or to be made on the premises and the types of services offered. Under no circumstances shall the concession contract's term exceed 30 years. The division may terminate the concession contract for the concessionaire's noncompliance with the concession contract or 19.5.5 NMAC, or if the division's lease or other agreement with the landowner (e.g. United States department of the interior, bureau of reclamation) from which the division leases the land or reservoir terminates.

B. Each concession contract shall include a legal description or a detailed map that defines the area in which the concession will operate.

C. A concession contract is subject to limitations applicable federal and state agencies place on the division. The division reserves the right to install park facilities and utilities and to use the park for authorized purposes. The division reserves the right to close the park or the concessionaire's operations for reasonable law enforcement or safety purposes.

D. A concession contract shall require the concessionaire to pay the division a monthly concession fee, based on a flat fee or a percentage of the concessionaire's net receipts from sales and services. The concessionaire shall submit the concession fee and a monthly report detailing net receipts from sales and services on a division provided form to the concessions administrator at the division office in Santa Fe. The concession fee and monthly report shall be postmarked no later than 5:00 p.m. on the 25th day of the month after the reporting month, unless the 25th falls on a Saturday, Sunday or state-recognized holiday in which case the concession fee and monthly report shall be postmarked no later than 5:00 p.m. of the next business day. The concessionaire's failure to submit the concession fee and monthly report shall result in a penalty fee of 10 percent of the concession fee for the month that is late or $50.00, whichever is greater.

E. The concession contract shall include a schedule for construction. If the schedule for construction includes improvements to publicly owned property, the division may authorize the concessionaire in writing to expend a percentage of amounts due the division in lieu of remitting them to the division for construction and alterations to publicly owned property to benefit the park. Improvements shall be consistent with the park management and development plan and the concessionaire shall obtain the division's, and if applicable the landowner's, prior approval for the improvements.

F. The concession contract shall require the concessionaire to have liability insurance naming the state of New Mexico, the department and the division, and if applicable the landowner from which the division leases the land or reservoir, as co-insured, and indemnifying the state of New Mexico, the department and the division, and if applicable the landowner from which the division leases the land or reservoir, for public liability, personal injury and property damage in amount equal to or greater than the liability limits set forth in NMSA 1978, Section 41-4-19, as it may be amended from time to time along with worker's compensation insurance, if applicable, prior to taking control of the concession premises.

G. The concession contract shall require the concessionaire, prior to taking control of the concession premises, to have the greater of:

(1) financial assurance satisfactory to the division conditioned upon the faithful performance of the concession contract in a minimum amount of 10 percent of the gross receipts from sales and services for the prior year; or

(2) financial assurance satisfactory to the division conditioned upon the faithful performance of the concession contract in a minimum amount of $5,000 annually, by performance bond or irrevocable letter of credit; if the receipts are anticipated to be less than $50,000, the division shall consider the concession operation's size and nature and may reduce the financial assurance amount.

H. The concessionaire shall properly maintain concession facilities and real property the concessionaire intends to use in operating the concession and capital improvements the concessionaire makes to the premises. The concessionaire shall complete maintenance with due diligence, in a commercially reasonable manner, so as to ensure visitors' health, safety and welfare. The concessionaire shall prepare an annual operation and maintenance plan, which requires the superintendent's approval. The superintendent shall submit a copy of the approved operation and maintenance plan to the concessions administrator. The approved operations and maintenance plan shall become part of the file the concessions administrator maintains.

I. The concessionaire shall comply with appropriate local, state and federal laws and shall comply with current applicable environmental regulations or rules and building code requirements, including those for accessibility, historical preservation and cultural properties protection. The concessionaire shall obtain applicable permits prior to beginning construction and provide copies to the superintendent.

J. Concessions offering food services shall comply with federal statutes and regulations, state statutes and rules and county or municipal ordinances regarding food sanitation.

K. A concession's advertising and signs within the park shall be subject to the director's prior written approval, and the appropriate federal agency or other state agency if applicable. Approvals shall become a part of the file the concessions administrator maintains. Advertising through any media, including the internet, shall acknowledge that the concession premises are within the park in which the concession is located. Printed information using the logo of the division or a federal agency or other state agency requires prior written approval from the division or the federal agency or other state agency.

L. No concession contract shall be amended except by written instrument executed by the parties and approved by the New Mexico board of finance and applicable state or federal agencies.

M. Either the division or a concessionaire may request to amend the concession contract provisions or to renegotiate the contract at any time during the contract term. A concessionaire shall make such a request in writing to the superintendent. Within 30 calendar days of receipt of such a request, the division should either notify the concessionaire of its decision or schedule a meeting with the concessionaire to negotiate the contract. If the concessionaire seeks to amend the contract provisions or to renegotiate the contract in order to expand services beyond those authorized by the concession contract, the concessionaire shall comply with 19.5.5.8 NMAC. The concessionaire shall also submit a copy of a request for amendment to the concessions administrator.

N. Upon expiration or termination of the concession contract the following shall apply to disposal or removal of improvements.

(1) Upon expiration or termination of the concession contract, the incoming concessionaire shall purchase the permanent improvements that have been placed on the concession premises with the secretary's prior written approval. Sale of improvements and personal property shall be at appraised value and conducted as follows. The current concessionaire shall at concessionaire's own expense provide an appraisal conducted by a licensed independent appraiser six months prior to expiration of the contract. Any person submitting a concession proposal pursuant to 19.5.5.8 NMAC, for an existing concession where such appraised improvements exist, shall provide, with his or her proposal, proof of financing based on the appraisal. Upon award the incoming concessionaire may accept the appraisal or at the incoming concessionaire's expense conduct a second appraisal. If neither appraisal is acceptable to both the prior concessionaire and the incoming concessionaire a third appraiser acceptable to both may be sought. The third appraisal shall be binding on both the prior concessionaire and incoming concessionaire.

(2) If upon the expiration or termination of the concession contract there is not an incoming concessionaire, within 120 calendar days after expiration or termination the concessionaire shall remove the personal property and any permanent improvements the division has directed the concessionaire to remove from the concession premises at the concessionaire's own costs and the concessionaire shall restore the concession premises to a safe and natural condition after removing permanent improvements that the division has not authorized the concessionaire to leave in place.

O. A concessionaire shall establish and maintain a system for record keeping that uses generally accepted accounting principles. A concessionaire shall submit a year-end financial statement a New Mexico independent certified public accountant prepared that includes an income statement, balance sheet and statement of cash flows no later than 90 calendar days after the end of the concession fiscal year to the concessions administrator at the division office in Santa Fe. The level of certified public accountant assurance certification may be an audit, review or compilation of the financial statements. The division shall consider the amount of the concessionaire's gross receipts from sales and services and length of term of the concession contract when determining the level of certification required.

P. The department and, if applicable, the federal agency or other state agency shall have access to and may examine and audit a concessionaire's pertinent books, documents, papers and other records related to the concession business operated pursuant to the concession contract during the concession contract's term and for three years after the concession contract has expired. A concession shall make such records available at the concession operation or at the division's office in Santa Fe upon demand during usual business hours. Such records include financial, employer and equipment records.

Q. If the division operates the park in which the concession is located pursuant to a lease with a local, state or federal agency, the concession contract is subject to the lease agreement between the division and the agency and may require the appropriate agency's approval.

N.M. Admin. Code § 19.5.5.10

19.5.5.10 NMAC - Rp, 19.5.5.10 NMAC, 1/1/2008; A, 1/1/2013