UMA WITH ESTRELLA YOUTH SPORTS, LLC.PDF
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Use Management Agreement Between Maricopa County And Estrella Youth Sports To Develop, Operate, Maintain, Manage and Improve the Estrella Sports Complex at Estrella Mountain Regional Park TABLE OF CONTENTS Cover Page ……………………………………………………………………………………………….. 1 Table of Contents …………………………………………………………………………………………… 2 Recitals………………………………………………………………………………………………………. 4 Agreement…………………………………………………………………………………………………… 5 1. Incorporation of ITN………………………………………………………………………………….. 5 2. Scope of Work…………………………..……………………………………………………………... 5 2.0 Scope of Work………….……………………………………………………………………….. 5 2.1 Annual Management Plan……………………………………………………………………….. 5 2.2 Notices, Current Addresses and Point of Contact……………………………………………….. 7 3. General Provisions…..…………………..………………………………………………………......... 8 3.0 Term……………………………………………………………………………………………… 8 3.1 Termination…………………………………….………………………………………………… 8 3.2 Default, Insolvency, Remedies…………………………………………………………………… 10 3.3 Indemnification and Insurance…………………………………………………………………… 15 3.4 Performance Guarantee...………………………………………………………………………… 18 3.5 Assignment……………………………………..………………………………………………… 19 3.6 Equal Opportunity Employment Requirements.………………………………………………… 20 3.7 Immigration Reform and Control Act of 1986 (I.R.C.A.)..……………………………………… 20 3.8 Employer Sanctions Law and Employment Eligibility …………………………………………. 20 3.9 Taxes……………………………………………………………………………………………… 21 3.10 Covenants against Contingent Fees ……………………………………………………………… 21 3.11 Organization – Employment Disclaimer ………………………………………………………… 21 3.12 Waiver …………….…………………...………………………………………………………… 21 3.13 Agent, Employees, Contractors, Subcontractors ………………………………………………… 21 3.14 Paragraph/Section Headings …………..………………………………………………………… 22 3.15 Severability/Validity …………………..………………………………………………………… 22 3.16 Certification Regarding Debarment and Suspension………………..…………………………… 22 3.17 Conflict of Interest… …………………..………………………………………………………… 22 3.18 Non-Liability of Lender ………………..……………………………………………………….. 23 3.19 Constants…………. …………………..………………………………………………………… 23 3.20 Consents and Approvals………………..……………………………………………………….. 23 3.21 Further Assurances; Cooperation……..………………………………………………………… 23 3.22 No Third Party Beneficiaries …………………..………………………………………………. 23 3.23 Data Collection…….………………..………………………………………………………….. 23 3.24 Right of Entry…….…………………..………………………………………………………… 24 4. Compliance………….………………..………………………………………………………………… 24 5. Entire Agreement, Modification……………………………………………………………………….. 24 6. Attorney Fees……….………………..………………………………………………………………… 24 7. Severability………….………………..………………………………………………………………… 24 8. Force Majeure……….………………..………………………………………………………………… 25 9. Authority…………….………………..………………………………………………………………… 25 10. Legal Effect of the Agreement………..………………………………………………………………… 25 11. Delegation of Authority……………..………………………………………………………………….. 25 12. Representation and Warranties of County……………………………………………………………… 25 13. Counterparts……….…………………..………………………………………………………………… 26 14. Time is of the Essence.………………..………………………………………………………………… 26 Exhibit 2.0.2 Complex Activities and Parameters Exhibit 2.0.3 Complex Site Plan and Legal Descriptions Exhibit 2.1.4.2 Phase Development, Improvements and Timeline (“Phase or Phases”) Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements Exhibit 2.1.4.4 Accounting and Fees Exhibit 2.1.4.5 Administrative Functions Exhibit 2.1.4.6 Inventory Control Exhibit 2.1.4.7 Complex Operations and Services Exhibit 2.1.4.8 Maintenance and Capital Improvements ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 2 Exhibit 2.1.4.9 Safety Exhibit 2.1.4.10 Resource Management Exhibit 2.1.4.11 Marketing and Media Exhibit 2.1.4.12 MCPRD Organization Chart Exhibit 4.1 Park Rules ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 3 Use Management Agreement Between Maricopa County And Estrella Youth Sports For the Development, Operation, Management, Maintenance and Improvement of the Estrella Sports Complex located at Estrella Mountain Regional Park This Use Management Agreement hereinafter referred to as “Agreement,” is entered into between Maricopa County, a political subdivision of the State of Arizona (hereinafter referred to as “County”), by and through its Parks and Recreation Department (hereinafter referred to as “MCPRD”) and Estrella Youth Sports (hereinafter referred to as “Concessionaire”). The County and the Concessionaire are collectively referred to as “Parties” or individually as a “Party.” RECITALS WHEREAS, the County is authorized to enter into this Agreement pursuant to A.R.S. §§§11-201, 11-251 and 11-933; and WHEREAS, the Recitals by this reference shall be incorporated herein and made a part of this Agreement; and WHEREAS, the County through a series of land patents with the Bureau of Land Management (“BLM”) (02-66-0070 dated December 30, 1965; 02-72-0037 dated December 9, 1971; 02-76-0037 dated July 28, 1976); Warranty Deeds; and State Land Patents (6352,6353 and 6354 dated February 27, 1976) became entitled to use of the lands described as a recreational park and related facilities. This land is currently known as Estrella Mountain Regional Park (“Park”); and WHEREAS, pursuant to the Land Patents or management rights, the County is authorized to enter into direct agreements with the Concessionaire to manage, operate and maintain the Estrella Sports Complex, hereinafter referred to as “Complex” and/or “Project” or “Projects”, located at the Park; and WHEREAS, the County believes the public interest can best be served by contract operation of the Complex at Estrella Mountain Regional Park which comprises a portion of the Maricopa County Regional Parks System; and WHEREAS, this Agreement is the result of a solicitation released by Maricopa County Parks and Recreation Department, (Invitation to Negotiate Serial 13-01-ITN – Estrella Sports Complex) on May 15, 2013; and WHEREAS, the County or Concessionaire desires that the other perform certain recreational, opportunities and programs as determined by market conditions and prudent business practices, and the County or Concessionaire desires to perform such Projects upon and subject to the terms and conditions hereinafter set forth; and WHEREAS, this Agreement will require administrative or operational action from time to time to carry out the spirit and intent of this Agreement, the County desires to delegate to the MCPRD Director or his or her designee of the MCPRD, the authority and responsibility for proper administration of this Agreement, whether or not specific authority is granted in any provision of this Agreement; and WHEREAS, the Parties agree the intent of this Agreement is solely for the development, operation, maintenance, management and improvement of the Complex and/or Projects and is not intended to convey any interests in any property rights, except those specifically provided for in this Agreement. AGREEMENT NOW THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements hereinafter contained and other good and valuable consideration, the sufficiency and adequacy of which the Parties acknowledge, the County and the Concessionaire agree as follows: 1. Incorporation of ITN. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 4 The Concessionaire agrees the ITN Serial 13-01-ITN Estrella Sports Complex (“ITN”) and the ITN Response (“ITN Response”) by the Concessionaire to the ITN are incorporated and made part of this Agreement. To the extent of any conflict between the provisions of the ITN, ITN Response and this Agreement, the provisions of this Agreement shall supersede and control. 2. Scope of Work. 2.0 Scope. The County hereby grants the Concessionaire the exclusive right to develop, operate, manage, maintain, improve and provide additional public recreational amenities (“Scope”) to be known as Estrella Sports Complex located at Estrella Mountain Regional Park and, subject to the terms of this Agreement. 2.0.1 For purposes of this Agreement, the use of the words “Complex” is the entire facility and “Project” or “Projects” is defined as a portion(s) of the Complex. 2.0.2 Concessionaire is to provide recreational activities per the ITN and ITN Response as determined by market conditions and prudent business practices. Each Phase (defined in Exhibit 2.1.4.2 Phase Development, Improvements and Timeline) of the Project is contingent upon market and financial feasibility, funding and the Estrella Mountain Regional Park Master Plan, as determined by the County. Specific parameters for these recreational activities (hereinafter referred to as “Complex Activities”) are described in administrative and operational functions (defined below as Annual Management Plan) and will be developed annually and approved by the Concessionaire and MCPRD’s Director or his or her designee. Complex Activities is attached hereto as Exhibit 2.0.2 Complex Activities and Parameters. 2.0.3 The site plan of the Complex is attached hereto as Exhibit 2.0.3 Complex Site Plan and Legal Description (“Site Plan”). 2.1 Annual Management Plan All administrative and operational functions will be described therein and implemented through an annual management plan (hereinafter referred as “Annual Management Plan” or “AMP”). The purpose of the AMP is to identify management, operational procedures and methodologies to clarify responsibilities, understandings and actions as they pertain to the Complex or Projects in place for the year that advance the overall development of the Project. The AMP will allow for annual revisions and practices, procedures and duties as new phases are developed. The AMP will also allow for greater flexibility in adapting to changes in business practices, economic climate, technology and recreation trends. The AMP is to be consistent with the terms of the Agreement and Exhibit 2.0.2 Complex Activities and Parameters. 2.1.1 The achievement of the objectives set out in the AMP will require the commitment and efforts of MCPRDs and the Concessionaire. 2.1.2 The AMP shall be developed and implemented annually by both parties. The AMP shall be approved annually, by the Concessionaire and the MCPRD’s Director or his or her designee, no later than December 31 of each year. 2.1.3 The AMP shall remain in effect until superseded by a new AMP in the following year. Due to manpower, funding, or other limitations, it may not be possible for the AMP to address all the objectives of the AMP in a given year. If variations are necessary during the current year the AMP is in effect, the notification of variations will be in the writing with notification to MCPRD per Section 2.2. No variation or deviation will be ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 5 implemented until and AMP amendment has been approved by MCPRD and the Concessionaire. If no significant changes are needed from year to year an AMP, or portions thereof, may be carried over with written approval from both Parties. 2.1.4 The AMP provides for the annual review of the following working documents for the management of the Complex. 2.1.4.1 Complex Activities and Parameters. Complex Activities and Parameters provides the overall scope of services, facilities and amenities outlined in this Agreement as described therein and attached hereto as Exhibit 2.0.2 Complex Activities and Parameters. 2.1.4.2 Phase Development, Improvements and Timeline. Development and improvements to the Complex will occur in phases. Concessionaire shall provide concept plans for each phase that includes specific guidelines as described therein and attached hereto as Exhibit 2.1.4.2 – Phase Development, Improvements and Timeline (“Phase or Phases”). . 2.1.4.3 Planning, Permitting, Construction and Easements. Planning, Permitting, Construction and Easements provides guidelines for the development of the Complex per Exhibit 2.1.4.2 Phase Development, Improvements and Timelines, as described therein and attached hereto as Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements. 2.1.4.4 Accounting and Fees. Accounting and Fee structure is based on the development of phases as described in Exhibit 2.1.4.2 Phase Development, Improvements and Timeline. Concessionaire is to provide all accounting and fee provisions as described therein and attached hereto as Exhibit 2.1.4.4 Accounting and Fees. 2.1.4.5 Administrative Functions. Administrative Functions provide the daily administrative functions for interaction with Estrella Mountain Regional Park as described therein and attached hereto as Exhibit 2.1.4.5 Administrative Functions. 2.1.4.6 Inventory Control. Inventory control provides the identification and delineation of responsibilities for infrastructures, fixtures, furnishings and equipment as described therein and attached hereto as Exhibit 2.1.4.6 Inventory Control. The Concessionaire agrees to accept the property “as is” on which the Complex will be developed and will be operated from in its condition as of the Effective Date unless otherwise agreed to in the UMA or subsequent AMP’s. 2.1.4.7 Operations. Concessionaire is to provide all operations, service and facility parameters as described therein and attached hereto as Exhibit 2.1.4.7 Complex Operations and Services. 2.1.4.8 Maintenance and Capital Improvements. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 6 Concessionaire is to provide all maintenance as described therein and attached hereto as Exhibit 2.1.4.8 Maintenance and Capital Improvements. 2.1.4.9 Safety. Concessionaire is to provide all safety measures as described therein and attached hereto as Exhibit 2.1.4.9 Safety. 2.1.4.10 Resource Management. Concessionaire is to provide all resource management as described therein and attached hereto as Exhibit 2.1.4.10 Resource Management. 2.1.4.11 Marketing and Media. Concessionaire is to abide by all marketing and media provisions described therein and as attached hereto as Exhibit 2.1.4.11 Marketing and Media. 2.1.4.12 MCPRD Organization Chart. MCPRD Organization Chart is provided for points of contact in relation to AMP, as provided therein and as attached hereto as Exhibit 2.1.4.12 MCPRD Organizational Chart. 2.2 Notices, Current Addresses and Points-of-Contact. All formal notices required or permitted under this Agreement shall be in writing and given by United States Post Office certified mail, return receipt requested, to each Party’s following address, or to such other address as either Party may notify the other in writing. Any such notice shall be considered served when communication is received and signed for or delivery is refused. For the County: Maricopa County Parks & Recreation Department Attn: Contract Administrator 41835 N. Castle Hot Springs Road Morristown, AZ 85342 Email: emilymiller@mail.maricopa.gov Phone: (928) 501-9211 For the Concessionaire: Estrella Youth Sports Attn: Dale Kamarata, Executive Director 18443 W. Verdin Road Goodyear, AZ 85338 Email: dkamarata@eyskids.com Phone: (623) 810-7613 3. General Provisions. 3.0 Term. 3.0.1 Effective Date. The effective date of this Agreement will be the date executed by the Maricopa County Board of Supervisors (the “Effective Date”). 3.0.2 Contract Year. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 7 Contract Year 1 of this Agreement will be from the Effective Date through December 31, 2016. Subsequent Contract Years will be from January 1st through December 31st. 3.0.3 Term and Renewal Option. 3.0.3.1. Term (“Renewal Option”) is based on the successful completion of Phases as provided below and in Exhibit 2.1.4.2. Phase Development Improvements and Timeline. Upon the County’s determination of successful completion of each Phase and satisfactory performance of the terms of this Agreement, the Term will be extended for the next applicable Phase as detailed in the Table below. If a Phase does not commence per Section 2.0, the County and Concessionaire shall amend the Agreement for the term and completion of the subsequent Phase(s). Term Phase Phase Completion Date 5 years 1 January 1, 2017 10 years 2A January 1, 2019 15 years 2B January 1, 2020 25 years 3 January 1, 2021 40 years 4 January 1, 2024 50 years 5 January 1, 2026 3.0.3.2 The Parties hereby agree that the County shall not be liable to the Concessionaire or any of its officers, employees, agents or contractors at law or in equity for not approving a Renewal Option. Agreement terms, fees and provisions are subject to modification at the time of exercising the Renewal Option. All terms and provisions of this Agreement shall remain in full force and effect throughout a Renewal Option, subject to mutual modification of terms and subject to adjustment of the fees payable hereunder pursuant to the provisions of Exhibit 2.1.4.4 Accounting and Fees. 3.1 Termination. 3.1.1 Ownership of Improvements upon Expiration or Termination. Subject to the property removal rights reserved to the Concessionaire in this provision, upon the Expiration Date or termination of the Agreement, the County shall retain ownership of all real property, fixtures, equipment and improvements as identified in Exhibit 2.1.4.6 Inventory Control, including all appurtenant and accessory buildings that may or may not be on a foundation, as a turn-key operation and as used in support of the Complex, unless otherwise stated in this Section 3.1. The Concessionaire will have the right to remove all of its personal property as identified in Exhibit 2.1.4.6 Inventory Control from the Complex for up to a period of sixty (60) days from the expiration date or termination of this Agreement. In addition, the Concessionaire shall be entitled to remove the following items of property from the Complex for a period of sixty (60) days following expiration or termination of this Agreement: (i) furniture, and (ii) any other fixture, equipment or improvements as identified in Exhibit 2.1.4.6 Inventory Control installed by Concessionaire from time to time not required, or a part of the Complex, for “turn-key” operation of the Complex to the standards of operation and services offered that were achieved prior to expiration or termination. Any property of Concessionaire not removed within such sixty (60)-day period shall be deemed to have been abandoned by Concessionaire and County may dispose of such property in any fashion it may deem ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 8 desirable. Upon expiration or termination of this Agreement, Concessionaire also shall be obligated to remove all garbage and debris, to include inoperable or obsolete equipment, from the Complex. Concessionaire shall have no obligation to demolish, raze or remove any improvements included in the Complex. Concessionaire shall be responsible for paying all reasonable costs incurred by the County to remove any property or debris required to be removed by Concessionaire hereunder which Concessionaire fails to remove within the allotted time. 3.1.2 Termination due to Conflict of Interest. The Parties acknowledge that this Agreement is subject to cancellation pursuant to the provisions of A.R.S. §38-511. 3.1.3 Termination for Cause. This Agreement may be terminated for cause in whole or in part, at any time, by the County, upon sixty (60) days prior notice to the Concessionaire without any penalty or liability to County. Concessionaire and its employees, agents, officers, directors, members, successors, or assigns hereby waive any and all rights to bring any claim against County or its employees, agents, officers, directors, members, successors or assigns from or relating in any way to County’s termination of this Agreement pursuant to this Section 3.1.3.1. Representative reasons for “cause” include, but are not limited to: 3.1.3.1 For any reason the real property reverts back to the agency from which the respective patent was received. 3.1.3.2 For any reason the real property is no longer useful for recreational purposes. 3.1.3.3 New requirements make a continuation of the Agreement unreasonable. 3.1.3.4 Any occurrence of events under Paragraph 3.2.1 Default, Insolvency, Remedies. 3.1.4 Termination by the Parties. This Agreement may be terminated without cause with mutual agreement of both Parties. The Party requesting the termination must submit its request, in writing, a minimum of one hundred eighty (180) days in advance of the requested termination date. Said request for termination will be sent to the intended other Party by U.S. Postal Service, certified, return receipt requested. Delivery will not be complete until the U.S. Postal Service has notified the sender the request has been delivered to the other Party or the other Party refuses delivery. 3.1.5 Interim Operations. The County may select an interim operator in the event this Agreement is terminated prior to its expiration date or termination date. The “Termination Date” means the date this Agreement is terminated. By definition, “Opening Date” is the date the New Concessionaire (defined below) is open for business and actively operates the Complex. The “New Concessionaire” is defined as the company in which the County has entered into a new Use Management Agreement for the Complex upon this Agreement’s termination. Within 45 days of the Termination Date or sooner if the Opening Date is reasonably ascertainable, the Concessionaire shall pro-rate any memberships or fees paid by direct payment to the New Concessionaire as of the Opening Date of the new Use ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 9 Management Agreement. All security deposits paid to the Concessionaire for tournaments, events or functions to be held at the Complex after the Opening Date for the new Use Management Agreement shall be paid to the New Concessionaire. 3.1.6 Holdover. Should the Concessionaire, with the consent of the County, continue to provide the services described herein after the expiration of the Term or Renewal Term, without having entered into a subsequent Agreement of like nature and content to this Agreement, such continued service shall be deemed a holdover of the licensed facility on a month-to- month basis, not to exceed a period of six (6) months, with all of the terms and conditions of this Agreement to continue in full force and effect. If the Parties have not entered into a new agreement by the end of the six (6) month period, the Agreement will expire or terminate. 3.1.7 Estoppel Statement. Each Party shall, upon not less than thirty (30) days prior to request by the other, promptly execute, acknowledge and deliver to the requesting Party or to their respective lenders a written statement certifying (a) that this Agreement is unmodified and in full force and effect (or if there have been any modifications, that the same is in full force and effect as modified and stating the modifications), (b) the dates, if any, to which the sums payable hereunder by the Concessionaire have been paid, (c) whether to the knowledge of the County or the Concessionaire, as the case may be, there are then existing any defaults under this Agreement or any defenses or offsets to the payment of charges and, if so, specifying the same, and (d) confirming other provisions of this Agreement. Any such statement delivered pursuant to the foregoing may be relied upon by any prospective purchaser or lender (including assignees) of the Concessionaire. 3.2 Default, Insolvency, Remedies. 3.2.1 Default by the Concessionaire. It shall be a default and breach of this Agreement if any of the following shall occur at any time during the Term or Renewal Option: 3.2.1.1 The Concessionaire shall fail to make payment of any monetary sums specified to be paid by the Concessionaire under this Agreement on or before the date the same shall become due, and such failure shall be continued for a period of twenty (20) days after notice of such default is given to the Concessionaire. 3.2.1.2 Concessionaire abandons active use and maintenance of the Complex for the purposes intended by this Agreement. The term ‘active use’ is defined in this paragraph as during the normal season or time periods under which these activities should be undertaken under this Agreement, shall include: 3.2.1.2.1 Scheduling and conducting league or practice play; 3.2.1.2.2 Scheduling, administering and conducting tournaments; and 3.2.1.2.3 Regular and proper maintenance of any improvements, fields or facilities. 3.2.1.3 The Concessionaire shall fail to observe or perform any of the Concessionaire’s other covenants, agreements or obligations hereunder, and such failure shall continue for a period of thirty (30) days after notice of such default is given to ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 10 the Concessionaire, provided, however, that if such default is of a nature that it cannot reasonably be cured within said thirty (30) days, then the cure period may be extended by mutual agreement by the Parties, in writing, for such longer time as may be reasonably necessary, so long as the Concessionaire commences to cure failure within said thirty (30) day period, in good faith and with due diligence, and thereafter diligently and continuously pursues the same to completion; 3.2.1.3.1 Petition to have the Concessionaire adjudicate a bankrupt or other proceeding under any Federal or State law relating to bankruptcy, bankruptcy reorganization, insolvency or relief of debtors is filed or instituted by the Concessionaire or is filed or instituted against the Concessionaire, debtor, and not be dismissed within ninety (90) days from the date of such filing or institution, or the Concessionaire fails to notify the County of any such filing within twenty (20) days of the filing date of the petition, or 3.2.1.3.2 A receiver, guardian, conservator, trustee or assignee, or any other similar officer or person shall be appointed to take charge of all of the property of the Concessionaire, and such appointment is not vacated within ninety (90) days after the date of filing, or 3.2.1.3.3 The Concessionaire shall make any general assignment for the benefit of creditors, or 3.2.1.3.4 All of the Concessionaire’s assets located at the Complex or interest in the Complex is subjected to attachment, execution or other judicial seizure. 3.2.1.3.5 Disillusion of revocation of the non-profit status of the Concessionaire. 3.2.2 Security Interest Default Provisions. 3.2.2.1 From and after the date that Concessionaire provides County with written notice that a lien or security interest has been granted to a Lender and the address of such Lender, County shall give to such Lender copies of all notices of default, notices of termination of this Agreement and notices of termination of the Concessionaire’s right of possession at the same time as, and whenever, County shall give any of the foregoing to Concessionaire. Any notice or other communication which any Party shall desire or is required to give to Lender shall be deemed to have been duly given or served if given by that Party in accordance with the notice provision of this Agreement. The addresses of Lenders shall be provided to County by Concessionaire from time to time. 3.2.2.2 The County does hereby consent and agree that the Concessionaire may encumber this Agreement including any of the Concessionaire's furniture, fixtures, equipment and inventory as described in Exhibit 2.1.4.6 Inventory Control as related to operation of its business which is the subject matter of this Agreement, by chattel mortgage, security agreement or other security-type instrument (“Security Instrument”) to assure the payment of a promissory note or other obligations of the Concessionaire. The Concessionaire may not mortgage or encumber any improvements that are permanently affixed to the land or any lands upon which the Complex lies. Exhibit 2.1.4.6 Inventory Control provides for improvements that can be disassembled and removed without damage to the underlying real estate are not considered permanently ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 11 affixed (e.g. above ground water treatment, sewage). In the event said security type instrument should at any time be in default and be foreclosed or transferred in lieu of foreclosure, written approval of the County must be obtained prior to any assignment of this Agreement. 3.2.3 County’s Remedies on Default. Upon default hereunder by the Concessionaire, the County shall be entitled to exercise the following remedies: 3.2.3.1 The County may, at the election of the County, terminate this Agreement by giving the Concessionaire notice of termination. On the giving of the notice of termination, all of the Concessionaire’s rights in the Complex and under this Agreement shall terminate. Promptly after notice of termination, the Concessionaire shall surrender and vacate the Complex, and the County may re- enter and take possession of the Complex and eject all parties in possession, or eject some and not others, or eject none. Termination under this Section 3.2 shall not relieve the Concessionaire from the payment of any sums then due to the County or from any claim for damages previously accrued or then accruing against the Concessionaire. If the Agreement is terminated in accordance with these provisions, the Concessionaire hereby covenants to peaceably and quietly surrender the Complex to the County and to execute and deliver to the County such instruments as shall be required by the County, as will properly evidence termination of the Concessionaire’s rights hereunder and its interest herein. 3.2.3.2 The County may exercise any other remedy available to the County at law or in equity so long as the exercise of that remedy does not contravene any of the limitations on remedies specified herein. 3.2.4 Concessionaire’s Remedies. The County shall be in default under this Agreement if the County fails to perform any of its obligations hereunder and such failure to perform continues for a period of thirty (30) days after written notice thereof from the Concessionaire to the County (unless such failure cannot reasonably be cured within thirty (30) days, in which event the County shall have commenced to cure said breach or failure within said thirty (30) day period and shall diligently pursue cure of the failure or breach to completion to avoid being in default). Should the County be in default pursuant to the terms of this Section 3.2.4, the Concessionaire may terminate this Agreement with ninety (90) days written notice to the County. In addition to any rights the Concessionaire may have under this Agreement or at law or in equity by reason of a breach by the County, the Concessionaire may within the thirty (30) day period after the ninety 90 day written notice, at its option, without waiving any other rights or remedies (including the right to recover damages), incur any reasonable expense necessary to perform the obligation of the County specified in such notice and deduct such expense from the fees or other charges coming due under this Agreement. The Concessionaire may exercise any other remedy available to the Concessionaire at law or in equity. 3.2.5 Dispute Resolution. 3.2.5.1 Any dispute arising out of or relating to this Agreement shall be submitted to mediation prior to filing an action in the courts. Notice of a dispute must be in writing and provide a summary of the issue that is the subject of the dispute. 3.2.5.2 The Parties shall confer within thirty (30) days of a Party’s receipt of a notice of dispute and decide within ten (10) days after conferring, on a mutually ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 12 acceptable mediator. If a mutually acceptable mediator cannot be agreed upon within thirty (30) days after conferring, the Parties agree to use a mediator appointed by the American Arbitration Association. 3.2.5.3 Mediation will be non-binding. The cost of any mediation shall be shared equally by the Parties. 3.2.4.4 Maricopa County, Arizona shall be the venue for any action filed in the courts to resolve a dispute arising out of or relating to this Agreement. 3.2.6 Rights to Cure. 3.2.6.1 Prior to County’s exercise of any of its remedies under this Agreement, including terminating this Agreement or Concessionaire’s rights hereunder, Lender shall have the right to remedy the default of Concessionaire under the Agreement, or to cause the subject default under the Agreement to be remedied, within the time period hereunder for Concessionaire to do so, plus an additional ten (10) days in the case of a monetary default, or and additional fifteen (15) days in the case of a non-monetary default; provided that (a) any cure by Lender may be accomplished with reservation of rights, and (b) County may exercise its rights and remedies hereunder (other than an termination of this Agreement or of Concessionaire’s right of possession prior to the expiration of the Lender’s cure period) at any time allowed by this Agreement. County agrees to accept any required Concessionaire performance from Lender as if Concessionaire had tendered such performance. 3.2.6.2 The exercise of any remedies under the Security Instrument is solely at the election of Lender. If Lender elects to exercise any of such remedies by reason of Concessionaire’s default under the Agreement or the Security Instrument, Lender is not obligated to pursue such remedies if the Concessionaire subsequently corrects or cures such default. 3.2.7 Termination; Restated Agreement. 3.2.7.1 County will not terminate this Agreement, or Concessionaire’s rights hereunder (but may exercise any other right or remedy hereunder) by reason of any non- monetary event of default hereunder, (a) as long as Lender, in good faith, shall have commenced to cure such default under the same conditions as are applicable to Concessionaire hereunder; and (b) if possession of the Complex is required by Lender in order to cure such default, as long as Lender, in good faith, institutes foreclosure proceedings under the Security Instrument or other proceedings to acquire the ownership interests of Concessionaire and, thereafter, as long as such proceedings shall have been instituted and shall be prosecuted with due diligence. 3.2.7.2 In the event of the termination of this Agreement by reason of any default hereunder, upon Lender’s written request, made within ten (10) business days after County has given to Lender written notice of any such termination, County, within fifteen (15) days after receipt of such request, shall prepare and deliver to Lender or its designee or nominee a new form of agreement for execution by Lender, for the remainder of the term of this Agreement, but identical in all other respect to this Agreement (a “Restated Agreement”) and Lender shall execute such Restated Agreement within ten (10) business days of receipt except that such Restated Agreement shall provide that Lender or its designee shall be released from liability thereunder upon an assignment of the Restated Agreement to a Designated Assignee (defined below), provided that all fees and ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 13 other sums payable under this Agreement which are accrued but unpaid at the time of such termination are tendered to County with Lender’s request. From and after execution of the Restated Agreement, Lender also shall be obligated to cure any non-monetary defaults under the Agreement which Lender is capable of curing. In the event Lender does not request such Restated Agreement, Lender shall have the right to enter on the Complex for a period of sixty (60) days after expiration of the time period for such request for the purpose of removing any Collateral (hereinafter defined) of Concessionaire therefrom, provided Lender shall repair, during such time, any damage caused by such removal under the same conditions as are applicable to Concessionaire hereunder. 3.2.7.3 Subject to the remaining provisions of this Section 3.2, upon the exercise of any of the remedies contained in the Security Instrument, such that the interest of Concessionaire is foreclosed upon, sold, transferred or otherwise terminated by Lender, County agrees: 3.2.7.3.1 That such termination or transfer of Concessionaire’s interest in the Agreement shall not terminate the Agreement, but the Agreement shall be fully assignable to Lender, any purchaser at foreclosure or a Designated Assignee. 3.2.7.3.2 Upon the request of the transferee described in this Section 3.2 or Lender to execute a Restated Agreement with such transferee or Lender. 3.2.7.3.3 Except for such period of time as Lender or its designee is actually the owner of Concessionaire’s interest in the Agreement, becomes Concessionaire under a Restated Agreement, or is operating the Complex directly or through an agent; neither Lender nor its transferee shall be liable to perform any of the Concessionaire’s obligations under this Agreement. 3.2.7.3.4 In the event that a trustee in bankruptcy, or the Concessionaire as debtor in possession under the Federal Bankruptcy Code (the “Code”), as now or hereafter in effect, or any similar such officer or official shall exercise any right or power to reject the Agreement under the provisions of the Code or any similar law, County agrees that, prior to terminating the Agreement, County, at the option of Lender, will enter into a Restated Agreement with Lender or its nominee upon the terms and conditions provided in this Section 3.2. Rejection of the Agreement by County or on County’s behalf under the Code shall not operate to terminate Lender’s security interest in the Agreement, but such interest shall attach to Concessionaire’s rights to possession and other rights under the provisions of Section 365(h) of the Code. 3.2.7.3.5 As used herein, “Designated Assignee” shall mean any corporation, partnership, individual or business entity with a financial worth of not less than one million dollars ($1,000,000) (2012 Constant), as verified by current financial statements, with the capability to operate the Complex as contemplated herein. 3.2.7.3.6 Notwithstanding anything to the contrary contained herein, any time periods within which Lender is required to act hereunder shall be extended by a period equal to the time Lender is restrained from ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 14 exercising its remedies under the Security Instrument pursuant to the automatic or any other stay provision or order or injunction issued or in force pursuant to the Code, so long as Lender diligently fulfills the monetary obligations of Concessionaire under the Agreement and any non-monetary covenants of Concessionaire under this Agreement which it is capable of performing and which it is not legally restrained from performing. 3.3 Indemnification and Insurance. 3.3.1 Indemnification. 3.3.1.1 The Concessionaire shall protect, defend, indemnify and hold harmless the County from and against any and all liabilities, costs, charges and expenses, including civil or criminal penalties, arising out of, or related to, an activity involving or use of a regular substance under any applicable federal, state, or local environmental laws, regulations, ordinances or amendments thereto because of: 3.3.1.1.1 Any such substance that came to be located on the Complex due to the Concessionaire’s use or occupancy of the Complex after signing of this Agreement; or 3.3.1.1.2 Any release, threatened release or escape of any substance in, on, under or from the Complex to the extent that it is caused by any willful conduct, action or negligence of the Concessionaire. 3.3.1.2 The Concessionaire shall indemnify the County, without limitation, for all claims, penalties, costs, expenses, charges, demands, judgments, settlements or damages arising out of any violations of applicable environmental laws, regulations, ordinances, rules or subdivisions thereof caused by Concessionaire. The environmental indemnities shall survive the expiration or termination of this Agreement and/or any transfer of all or any portion of the Complex operation and shall be governed by the laws of the State of Arizona. 3.3.1.3 The Concessionaire shall indemnify and hold harmless County, its successors in interest and assigns, from any liability, damage, expenses, costs or attorney(s’) fees incurred arising from any and all claims as a result of the action or inaction of the Concessionaire or any of its agents, contractors, vendors, officers, employees, assigns, designees or invitees due to the rights granted to the Concessionaire pursuant to the terms of this Agreement or as a result of any negligent act or omission by the Concessionaire or any of its agents, contractors, vendors, officers, employees assigns, designees or invitees. 3.3.1.4 The Concessionaire shall indemnify and hold harmless County, its successors in interest and assigns, from any liability, damage, expenses, costs or attorney(s’) fees incurred arising from any and all claims as a result of the consumption of food and beverage (alcohol and non-alcohol) sold by Concessionaire or any of its agents, contractors, vendors, officers, employees, assigns, designees or invitees due to the rights granted to the Concessionaire pursuant to the terms of this Agreement or as a result of any negligent act or omission by the Concessionaire or any of its agents, contractors, vendors, officers, employees assigns, designees or invitees. 3.3.1.5 The Concessionaire agrees to indemnify and hold harmless the County, its departments, agencies, officers and employees, from and against any and all ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 15 claims, demands, actions, judgments, settlements, liens, penalties, damages, losses, injuries, costs and expenses, including reasonable attorney’s fees, arising out of or in any way caused by or related to any activity, condition or event arising out of the performance or non-performance of the provisions of this Agreement, except to the extent caused by the gross negligence or willful misconduct of the County or any of its departments, agencies, officers, employees or agents. 3.3.1.6 The Concessionaire shall indemnify and hold harmless the County from any claims by third parties in connection with construction, operation expansion and maintenance of facilities at the Complex. 3.3.1.7 It is expressly agreed that for the purposes of this Agreement, the Concessionaire is not the agent of the County for any purpose. 3.3.1.8 The Concessionaire or any of its contractors or subcontractors shall not have any authority to create any lien against the County for labor, materials, or services furnished by the Concessionaire, its contractors or subcontractors. If, because of any act or omission (or alleged act or omission) of the Concessionaire, any mechanic’s, materialman’s or other lien, charge or order for the payment of money shall be filed or recorded against the County (whether or not such lien, charge or order is valid or enforceable as such), the Concessionaire shall immediately notify the County. The Concessionaire will, at its own expense, cause the same to be canceled and discharged of record within thirty (30) days after the Concessionaire will have received notice of the filing thereof, or the Concessionaire may, within said period of time, furnish to the County a bond satisfactory to the County against said lien, charge or order, in which case the Concessionaire will have the right in good faith to contest the validity or amount thereof, a provided by law. 3.3.2 Insurance. The Concessionaire shall maintain the following insurance coverage: 3.3.2.1 Public liability insurance, including bodily injury/property damage, auto liability, Concession Site liability, products and completed operations liability, bailee legal liability and contractual liability, providing limits of no less than two million dollars ($2,000,000) per claim and four million dollars ($4,000,000) aggregate limits, or evidence of self-insurance acceptable to the County, for injuries or damage received or sustained by any person(s), or property at the Complexes. The insurance policy must include coverage for environmental clean-up and pesticide/herbicide coverage unless documentation is provided by the Concessionaire that this is not available or feasible. 3.3.2.2 The Concessionaire is required to carry Worker’s Compensation, if applicable, within statutory limits. 3.3.2.3 Property insurance in an amount sufficient to rebuild the improvements in case of casualty loss. Concessionaire will be the sole “loss payee” pursuant to such policy and will be entitled to receive and shall be obligated to apply insurance proceeds to repair or reconstruct damaged improvements. Insurance proceeds shall be disbursed pursuant to customary construction lending practices in the Phoenix, Arizona area, as such repair and restoration is made and subject to such procedures as the County may reasonably require monitoring the application of such proceeds. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 16 3.3.2.4 In the event a lender to the Concessionaire has notified the County that it holds a security interest in this Agreement, the lender will have the right to hold insurance proceeds and approve the disbursement procedure for the proceeds. Reconstruction will be done in consultation with any such lender. 3.3.2.5 The County will be named as “additional insured” under all policies of insurance. Copies of all insurance policies or certificates thereof will be made available to the County upon request. Copies of the Certificate of Insurance (COI) will be furnished annually to the County. The County will be given thirty (30) days advance written notice of cancellation of a policy, non-renewal, or change in coverage or limits. 3.3.2.6 The County reserves the right to revise the minimum required limits of insurance during the term of this Agreement provided the changes are consistent with market conditions, prudent business judgment and industry standards. 3.3.2.7 The Concessionaire assumes all risk of loss which includes everything identified as described in Exhibit 2.1.4.6 Inventory Control and shall be responsible for any and all losses to the Complex and or Project(s) and all improvements, acquired or developed within the Complex and or Project(s) after the Effective Date. Loss to the Complex or Project(s) may result from, but is not limited to, theft, vandalism, fire and any fire-fighting activities (including prescribed burns), landslides, rising waters, winds, falling limbs or trees and acts of God. 3.3.2.8 If, prior to commencement of, or during, the Term or Renewal Option of this Agreement, any property, real or personal, under the control of the Concessionaire or any buildings or improvements or such fixtures or equipment on, below, above, or appurtenant to the Complex at the commencement of the Term or Renewal Option or thereafter erected, installed or placed thereon shall be destroyed or damaged in whole or in part by any cause except condemnation, the Concessionaire will notify the County immediately. The Concessionaire will immediately secure the area to prevent injury, vandalism or further damage to persons, improvements and contents thereof, and direct its insurer to make any payment to the appropriate Party. 3.3.2.9 If the destroyed or damaged buildings, improvements, fixtures or equipment under the control of the Concessionaire are capable of restoration, in the reasonable judgment of the Concessionaire, this Agreement shall continue in full force and effect, except that established fees payable to the County by the Concessionaire, to the extent not covered by insurance, shall be abated to the extent that the damage or restoration interferes with the Concessionaire’s operations. The Concessionaire agrees to cooperate in the determination of the abatement or other relief to be provided by furnishing all information requested relative to its operations and permitting examination and audit of all accounting records kept in connection with the conduct thereof. Unless otherwise agreed to in writing by the County, Minimum Fees will be abated equal to the percent of damage in relation to the value of the Complex, for a period not to exceed one hundred eighty (180) days. 3.3.2.10 The Concessionaire will, as soon after the damage as reasonably possible, apply for all required permits required to restore damaged improvements, and complete restorations within a date mutually agreeable to the Parties. Should such damage or destruction occur within thirty-six (36) months of this Agreement’s scheduled termination date (as the same may be extended) or if the damage destroys in excess of fifty percent (50%) of the value of the Complex as ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 17 determined by an appraisal by a competent appraiser, then in either of such events, the Concessionaire or the County shall have the option to terminate this Agreement. If this Agreement is terminated pursuant to this provision, any insurance proceeds shall be applied first to remove any damaged or destroyed improvements and second to pay any loans to the Concessionaire secured by its interest in this Agreement or any property covered hereby. The balance of the proceeds shall be divided by the County and the Concessionaire in equal proportions. 3.4 Performance Guarantee. 3.4.1 Concessionaire Financing. Within forty five (45) days of the Effective Date, the Concessionaire will provide, to the County’s satisfaction, approved loan documents, letter of credit or other documentation to demonstrate to the County’s satisfaction that the Concessionaire has secured adequate financing to complete those projects identified in the ITN Proposal of the Phase I or initial development Concept Plans. Documentation should include financing structure, identifying percentages and amounts of debt and equity as well as the proposed financing terms, including interest rates. The Parties acknowledge that Concessionaire may fund its obligations hereunder out of assets of the Concessionaire or its affiliates without using third-party financing; however, evidence of adequate financing shall still be required within forty five (45) days of the Effective Date. Failure to provide satisfactory evidence of financing to the County within the forty five (45) day period may at the County’s discretion, result in termination of this Agreement. The County may extend this forty five (45) day requirement in writing, if Concessionaire requires more time to secure satisfactory documentation not to exceed one hundred eighty (180) days. In the event the Agreement is terminated due to Concessionaire’s failure to provide satisfactory evidence of financing, the County shall bear no liability to Concessionaire for any cost, claim, loss or damages resulting from the termination. 3.4.2 Capital Construction Guarantee. Within thirty (30) business days of the permitting of construction of each Phase, or notice to the County of moving forward to construct a lesser permitted amount, the Concessionaire will provide the County with at least ten percent (10%) of the Capital Construction Guarantee funds (“CCG Fund”) required for preparation and construction of the capital improvements as identified in the Project phases as described in Exhibit 2.1.4.2 Phase Development, Improvements and Timeline in lieu of a formal performance bond. The CCG Fund is designed to restore the project site to original condition or bring an unfinished Project to a usable condition. If each Project phase is not completed by the Concessionaire as set forth within a time mutually agreed upon between the Parties as described in Exhibit 2.1.4.2 Phase Development, Improvements and Timeline, funds in the CCCG Fund account will be forfeited to the County as liquidated damages for non-performance and place the Concessionaire in default. The release of the CCG Fund per Phase will be upon final acceptance from the County from the Phase that is substantially completed. The following is the process for disbursement and release of the CCG Fund: 3.4.2.1 Concessionaire will submit a cover letter requesting release of funds for appropriate Phase and certify that the specific Phase has been completed. 3.4.2.2 Concessionaire will provide support documentation to include Concessionaire’s third-party Conditional Releases etc. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 18 3.4.2.3 County will perform a site visit and validate that the specific Phase has been satisfactory performed and signoff as approved on the Concessionaires request. 3.4.2.4 County will release funds to the Concessionaire based on the request. 3.4.3 Security Interest. The Parties agree that, notwithstanding any other clause in this Agreement, Concessionaire shall have the right, without the County’s consent, (a) to mortgage or hypothecate Concessionaire’s interest in this Agreement to lenders who advance loans to Concessionaire from time to time (a “Lender”), by a recorded deed of trust, deed to secure debt, collateral assignment or other security instrument creating a lien or other encumbrance on Concessionaire’s interest in this Agreement and the fixtures, equipment, improvements and personal property of Concessionaire (a “Security Instrument”), provided that no such Security Instrument shall have priority over, nor affect, the County’s interest in the Complex or in this Agreement, and (b) to pledge the ownership interests in Concessionaire as security for any loan to be granted to Concessionaire by a Lender. 3.5 Assignment. 3.5.1 The Concessionaire may not assign or subcontract any of the Concessionaire’s rights or interests in the Agreement without prior written approval of the County such approval shall be at the discretion of the County. 3.5.2 The Concessionaire, upon prior written consent of County, may partner with other entity(ies) to operate and develop Complex, excluding vendor and event services. 3.5.2.1. If non-profit relationship is solely with Concessionaire. 3.5.2.2. If another government entity or for-profit group, a separate agreement or amendment to this Agreement is required directly with County for operation and development of the Complex. 3.5.3 The Concessionaire may not develop business partnerships with other individuals or companies to provide goods, and services of the Complex, without the prior written approval of Director of MCPRD. No such partnership or business arrangement shall provide for the continual presence of anyone on the Complex but the Concessionaire or its employees. 3.5.4 In connection with a transfer to a designated assignee, the County may: 3.5.4.1 Review the business and management capability of the designated assignee: 3.5.4.2 Require a background check including financial profile and felony arrest record of the designated assignee; and 3.5.4.3 Require that a financial analysis of the Complex operation, including an appraisal of real property improvement be conducted before approving an assignment of the Agreement; and 3.5.4.4 Require that the designated assignee be a registered non-profit organization or governmental entity; and 3.5.4.5 County requests that the Concessionaire provide, with at least ninety (90) days prior, written notice of a sale or transfer of this Agreement so any requested ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 19 analysis, study and subsequent Board of Supervisor approval can be completed prior to the effective date of the sale or transfer. 3.5.5 This Agreement will be binding and inure to the benefit of the Parties, their respective heirs, successors and assigns, whether by agreement or operation of law, as authorized by this Agreement. 3.6 Equal Opportunity Employment Requirements. The Concessionaire shall not discriminate against any employee or applicant for employment because of race, age, handicap, disability, color, religion, sex, sexual orientation or national origin. The Concessionaire shall comply with Title VI and Title VII of the Federal Civil Rights Act; the Federal Rehabilitation Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act of 1990, A.R.S. §41-1461 et. seq., A.R.S. §41-1492 et. seq., 29 U.S.C. §721 (Section 504), and Arizona Executive Order 75-5 which mandates that all persons shall have equal access to employment opportunities. 3.7 Immigration Reform and Control Act of 1986 (I.R.C.A.). The Concessionaire understands and acknowledges the applicability of the I.R.C.A. The Concessionaire agrees to comply with the I.R.C.A. and Arizona statutes, in the performance of this Agreement and, upon request, permit the County to inspect personnel records to verify such compliance. 3.8 Employer Sanctions Law and Employment Eligibility. 3.8.1 That the Concessionaire and its subcontractors, if any, warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. §23-214, e.t. seq., Subsection A; 3.8.2 That a breach of a warranty under Subsection A above, shall be deemed a material breach of the contract that is subject to penalties up to and including termination of the contract; 3.8.3 That the contracting government entity retains the legal right to inspect the papers of any Concessionaire or sub-concessionaire’s employee who works on the contract to ensure that the Contractor or subcontractor is complying with the warranty provided under Subsection A above and that the Concessionaire agrees to make all papers and employment records of said employee(s) available during normal working hours in order to facilitate such an inspection; 3.8.4 That nothing herein shall make any Concessionaire or sub-concessionaire an agent or employee of the contracting government entity. 3.8.5 The Concessionaire warrants that it is in compliance with verification of employment eligibility and E-Verify Program. 3.9 Taxes. 3.9.1 The Concessionaire shall pay taxes of whatever character which may be levied or charged upon: 3.9.1.1 The Concessionaire’s rights under this Agreement; or 3.9.1.2 Upon the Concessionaire’s furniture, equipment or other property; or 3.9.1.3 Upon the Concessionaire’s operations under this Agreement. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 20 3.9.2 No leasehold or other real property interest is being created or conveyed upon which tax consequences may exist. 3.10 Covenants against Contingent Fees. The Concessionaire warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Concessionaire for the purpose of securing business. For breach or violation of this warranty, County shall have the right, as its exclusive remedy, to recover the full amount of such commission, percentage, brokerage or contingency fee. 3.11 Organization – Employment Disclaimer. 3.11.1 The Agreement is not intended to constitute, create, give to, or otherwise recognize a joint venture agreement or partnership or formal business organization of any kind between the County and the Concessionaire and the rights and obligations of the Parties shall be only those expressly set forth in this Agreement. 3.11.2 The Parties agree that no person(s) supplied by the Concessionaire in the performance of obligations under the Agreement are considered to be the County’s employees and that no rights of the County’s civil service, retirement, or personnel rules apply to such person(s). 3.11.3 The Concessionaire shall have total responsibility for determining employee eligibility, all salaries, wages, insurance or any type, bonuses, retirement withholdings, worker’s compensation, other employee benefits and all taxes and premiums appurtenant thereto concerning such persons and shall save and hold the County harmless with respect thereto. 3.12 Waiver. The waiver by either Party of any breach of any one or more of the covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of any subsequent or other breach of said covenants, conditions or provisions of this Agreement. Any failure on the part of either Party to require or exact full and complete compliance with any of the covenants, conditions or provisions of the Agreement shall not be construed to, in any manner, change the terms hereof or preclude such Party from enforcing the full provisions of this Agreement. 3.13 Agent, Employees, Contractors, Subcontractors. The Concessionaire will ensure full compliance with all applicable Terms and Renewal Options and conditions of this Agreement by its agents, employees and contractors (including sub- contractors of any tier) and their respective employees. Failure or refusal of the Concessionaire or its agents, employees, contractors, sub-contractors or their employees to comply with these terms and conditions will be deemed a breach of this Agreement. 3.14 Paragraph/Section Headings. The paragraph or section headings used in this Agreement are for the purpose of convenience of reference only. They will not be construed in any manner, or to any extent, to limit or to extend the effect or meaning of the terms and provisions contained thereunder. 3.15 Severability/Validity. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 21 The Parties intend for this Agreement to comply with applicable laws. If any provision of this Agreement is determined to be invalid, void, or illegal, then such determination shall not affect, impair, or invalidate any other provision hereof, the remaining provisions shall remain in full force and effect and the Parties shall use their commercially reasonable efforts to restate the invalid provision to the end that it complies with applicable laws. 3.16 Certification Regarding Debarment and Suspension The undersigned (authorized official signing for the Contractor) certifies to the best of his or her knowledge and belief, that the Concessionaire: 3.16.1 Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal Department or agency; and 3.16.2 Have not within 3-year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; and, 3.16.3 Are not presently indicted or otherwise criminally or civilly charged by a government entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (2) of this certification; and 3.16.4 Have not within a 3-year period preceding this Agreement had one or more public transaction (Federal, State or local) terminated for cause of default. 3.16.5 The Concessionaire agrees to include, without modification, this clause in all lower tier covered transactions (i.e. transactions with vendors, contractors) and in all solicitations for lower tier covered transactions related to this Agreement. 3.17 Conflict of Interest. The Parties acknowledge that this Agreement is subject to cancellation pursuant to the provisions of A.R.S. §38-511(A) which reads that “The state, its political subdivisions or any department or agency of either may, within three years after its execution, cancel any contract, without penalty or further obligation, made by the state, its political subdivisions, or any of the departments or agencies of either if any person significantly involved in initiating, negotiating, securing, draft creating the contract on behalf of the state, its political subdivisions or any of the departments or agencies of either is, at any time while the contract or any extension of the contract is in effect, an employee or agent of any other party to the contract in any capacity or a consultant to any other party of the contract with respect to the subject matter of the contract.” 3.18 Non-Liability of Lender. The County agrees that a lender shall not be liable or responsible for: 3.18.1 Any acts or omissions of the Concessionaire prior to the date the lender acquires all of the Concessionaire’s rights and interests under the Agreement pursuant to a foreclosure of a security interest or transfer in lieu thereof (although nothing herein shall be deemed to relieve a lender from any obligation to cure any defaults which continue after any foreclosure and acquisition of the interests of Concessionaire by the lender, and which are reasonably capable of being cured by the lender); or ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 22 3.18.2 Any obligation of the Concessionaire to indemnify the County or to hold the County harmless for any actions, omissions, events, or occurrences which arises or occurs prior to the date a lender acquires the Concessionaire’s rights or interests under the Agreement pursuant to a foreclosure of a security interest or transfer in lieu thereof. 3.19 Constants. Whenever a constant is referred to herein (e.g. “2012 Constant” or “measured in 2012 dollars”), the Consumer Price Index for the Metropolitan Area which includes the City of Phoenix published by the U.S. Bureau of Labor Statistics (or the nearest metropolitan area or a comparable index if that index is not published or no longer published) (the “Index”) shall be utilized to gauge the inflationary rate to be applied to determine the sum of money in then current dollars that is equivalent to the applicable amount of dollars circa 2012. 3.20 Consents and Approvals. The Parties agree to act in good faith and with fair dealing with one another in the execution, performance and implementation of the terms and provisions of this Agreement. Whenever the consent, approval or other action of a Party is required under any provision of this Agreement, such consent, approval or other action shall not be unreasonably withheld, delayed or conditioned by a Party unless the provision in question expressly authorizes such Party to withhold or deny consent or approval or decline to take action in accordance with a different standard, in which case the consent or approval or the decision to not take action may be withheld, delayed or conditioned in accordance with the different standard. 3.21 Further Assurances; Cooperation. Each of the Parties hereto shall execute and provide all additional documents and other assurances that are reasonably necessary to carry out and give effect to the intent of the Parties reflected in this Agreement. 3.22 No Third Party Beneficiaries. Except as may be otherwise expressly and specifically set forth in this Agreement, no person or entity shall be deemed a third party beneficiary of any of the provisions of this Agreement. 3.23 Data Collection. The Concessionaire agrees to assist in the collection of data related to recreation uses occurring within the Complex. The County, or its designated representative, will provide the forms on which to collect the data. The Concessionaire will not be required to collect or release data to the County that violates any privacy statutes, regardless of originator, or is of a nature that identifies specific individuals as users of the Complex. 3.24 Right of Entry. There is reserved to the County and its successors or agents, the right of the officers, agents, employees, licensees, and Permittees, or the designees of public bodies, at all proper times and places, freely to have ingress to, passage over, and egress from all of said lands, for the purpose of exercising, enforcing, and protecting their rights and the terms and conditions described in and reserved by this Agreement, including the right of physical entry to the area for inspection, monitoring, or any other purpose consistent with any right or obligation of the County under any law or regulation, or for the purposes of surveying Park users and customers at the Complex. Right of entry must be coordinated with the Concessionaire to ensure safe entry and reasonable flow of business. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 23 4. Compliance. 4.0 The Concessionaire shall not commit nor permit any nuisance or unsafe condition to be created or maintained on the premises. The Concessionaire shall not operate or knowingly permit the operation of any illegal acts upon the premises. 4.1 The Concessionaire hereby agrees and shall comply with all applicable federal, state, county and city statutes, laws, ordinances, rules, regulations and instructions, including MCPRD’s rules and regulations (see Exhibit 4.1 Park Rules), in effect now or as may be amended or added, which apply to the development, management, operation and maintenance of the Complex and to keep fully informed of, and in compliance with, any changes or revisions thereto. The Concessionaire shall also pay all taxes, assessments, fees and other expenses of any nature associated with the construction of facilities as well as improvement, management, operation and maintenance of the Complex. 5. Entire Agreement, Modification. This Agreement, together with any amendments attached hereto, constitutes the entire Agreement between the Parties and sets forth all of the covenants, promises, agreements, conditions or understandings, either oral or written, between the Concessionaire and the County, other than as set forth herein, and those agreements that are executed contemporaneously herewith. This Agreement shall be construed as a whole and in accordance with its fair meaning and without regard to any presumption or other rule requiring construction against the party drafting this Agreement. This Agreement cannot be modified or changed except by a written instrument executed by the Concessionaire and the County. The Concessionaire and the County have reviewed this Agreement and have had the opportunity to have it reviewed by legal counsel. 6. Attorney Fees. If suit or action is commenced to enforce compliance with any term, covenant or condition of this Agreement, including any action undertaken in the context of bankruptcy proceedings, the Party not prevailing shall pay to the Prevailing Party a sum which the trial judge determines is reasonable as attorney fees to be allowed in the suit or action, and court costs, and if appeal is taken from any judgment or decree in the suit or action, the Party not prevailing on the appeal shall pay to the Prevailing Party such further sum as the appellate court shall adjudge reasonable as attorney fees on appeal, and court costs. 7. Severability. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 8. Force Majeure. The occurrence of any of the following events shall excuse performance of such obligations of a Party as are rendered impossible or reasonably impracticable to perform while such continues: strikes; lockouts; acts of God; inability to get materials; governmental restrictions; enemy or hostile governmental action; fire or other casualty; and other causes beyond the reasonable control of the Party obligated to perform (all events of “Force Majeure”). 9. Authority. Each Party covenants and warrants to the other Party that: (a) it is duly authorized to execute this Agreement; and (b) the execution of this Agreement has been duly authorized by the Applicable Party. 10. Legal Effect of the Agreement. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 24 This Agreement is terminable only in accordance with the express and specific provisions hereof. This Agreement does not create a leasehold estate and County shall at all times remain the title holder of the real property. 11. Delegation of Authority. The Department Director, Maricopa County Parks and Recreation Department, is authorized to conduct required administrative actions as may be necessary and to include the approval of an annual operating plan to carry out the spirit and intent of the Agreement. 12. Representation and Warranties of County. 12.0.1 County represents and warrants to the Concessionaire that the following statements are true, correct and complete: 12.0.1.1 The County has complete and full authority to execute this Agreement and to grant to Concessionaire the rights contemplated by this Agreement. All governmental actions required to be taken by the County to authorize execution of this Agreement by the County and performances by the County of its obligations hereunder have been taken and this Agreement is binding upon and enforceable against the County in accordance with its terms; and, 12.0.1.2 To the best of the County’s knowledge, there are no lease agreements, maintenance contracts, service agreements or other contracts of any nature which pertain to, cover or affect the Complex except as disclosed in this Agreement. 12.0.1.3 As agreed upon in the Exhibit 2.1.4.6 Inventory Control, the Concessionaire agrees to accept the property “as is” on which the Complex will be developed and will be operated from in its condition as of the Effective Date. The County does not imply or provide any warranty with respect to the physical aspects of the Complex except as set forth herein. 12.0.2 In the event of a breach of a representation or warranty as set forth herein, the Concessionaire shall notify the County of same and deliver to the County such information as is necessary to enable the County to remedy the breach. The Concessionaire shall cooperate with the County to remedy the breach. 13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Faxed and copied signatures are acceptable as original signatures. 14. Time is of the Essence. Time is of the essence of this Agreement. If the date for performance of any obligation hereunder or the last day of any time period provided herein shall fall on a Saturday, Sunday or legal holiday, then said date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday or legal holiday. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 25 DATED this day of 2015. MARICOPA COUNTY ESTRELLA YOUTH SPORTS BOARD OF SUPERVISORS ____________________________________________ ______________________________________ Chairman Date By: Date ATTEST __________________________________ Clerk of the Board Date Approved as to Form: __________________________________ Attorney for Maricopa County ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 26 Exhibit 2.03 – Complex Site Plan and Legal Description (Not to Scale) Current Site Plan ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 27 Exhibit 2.0.3 Complex Site Plan and Legal Description (Not to Scale) Proposed Complex Site Plan ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 28 Exhibit 2.0.3 Complex Site Plan and Legal Description LEGAL DESCRIPTION (Forthcoming: As per Exhibit 2.1.4.3 Section 1.2, Concessionaire will furnish to MCPRD a full legal description of the property for each individual Phase of development upon completion of construction.) ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 29 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 30 Exhibit 2.1.4.2 Phase Development, Improvements and Timeline (“Phase or Phases”) Phase Development Site Plan ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 31 Exhibit 2.1.4.2 Phase Development, Improvements and Timeline (“Phase or Phases”) Continued Exhibit 2.1.4.2 Phase Development, Improvements and Timelines (“Phase or Phases”) as stated herein, provides the working document for the overall development Phases and timelines that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. Major developmental features as presented in the ITN Response will serve as the foundation for all development of the Complex. 1. Phase developments and improvements will be in accordance with the guidelines outlined in Exhibit 2.0.2 - Complex Activities and Parameters. The Concessionaire agrees to schedule and conduct any improvements or construction activity on the Complex in a manner that minimizes hazards and inconvenience to the public. 2. Concessionaire is responsible for providing a phase development plan including cost analysis for each element of the Complex including, without limitation, such estimates with respect to infrastructure costs, proposed land uses, attendance expectations, revenue and expense estimates. 3. Expansion of parking and restroom facilities must be completed in each phase per reasonably accepted industry standards, as dictated by field use and anticipated spectators using the facilities. 4. Any changes to the Complex as contemplated in this section and other sections contained within this Agreement shall comply with the requirements of the pertinent land patent(s), the Estrella Mountain Regional Park Master Plan and any approved amendment thereto. Concessionaire will participate, as necessary, in any effort to amend the Estrella Mountain Regional Park Master Plan, including, without limitation, participation in any public outreach or public meetings. 5. As per Section 3 General Provisions, 3.0.3 Term and Renewal Option, upon the County’s determination of successful completion of each Phase and satisfactory performance of the terms of this Agreement, the Term will be extended for the next applicable Phase as detailed in the Table below. If a Phase does not commence per Section 2.0, the County and Concessionaire shall amend the Agreement for the term and completion of the subsequent Phase(s). Term Phase Completion Date 5 years 1 January 1, 2017 10 years 2A January 1, 2019 15 years 2B January 1, 2020 25 years 3 January 1, 2021 40 years 4 January 1, 2024 50 years 5 January 1, 2026 6. Phase Timelines 6.1 Phase 1 Phase I timeline to be completed by January 1, 2017. Phase I development and improvements consists of the renovation of the two existing softball fields. The rehabilitation will include the repair and replacement of the existing irrigation system, replacement of the clay infield and grass outfield, and the relocation of the outfield fence. The improvements will also include the repair of the field lighting and electrical service. Phase 1 will include upgrading the dugouts to concrete floors and new benches. Phase 1 alternates may include the replacement of the field lighting and renovation of the existing parking. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 32 6.2 Phase 2 Contingent upon market and financial feasibility, funding and EMRP Master Plan, as determined by the County, the Phase 2 timeline is to be completed by January 1, 2020. Phase 2 development and improvements have been separated into two (2) sub-phases A and B. 6.2.1 Phase 2A development and improvements includes the new construction of up to eight (8) multi-purpose fields. Final quantity of fields will be determined by EMRP Master Plan. The field construction will include the renovation of the existing irrigation distribution system, as well as, the grading, drainage and grass installation. The renovation will also include perimeter areas of the fields as a buffer up to the County maintained natural desert or granite areas. Included in the construction of the fields will be the installation of the field lighting infrastructure to include electrical upgrades and installation of an electrical meter inclusive of Phase I and all future Phase improvements. Separate water meters for both potable and non-potable water shall be installed in this Phase (see Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements along with Exhibit 2.1.4.5 Accounting and Fees). 6.2.2 Phase 2B shall include: 1) The poles and fixtures as an option to be installed either at the initial construction phase or at a later date; 2) The main thoroughfare between the fields will be constructed with decomposed granite, with an alternate of concrete including hardscape features for immediate or future installation; 3) The demolition and replacement of one of the comfort stations, located within the boundary of the proposed multi-use fields; and 4) The renovation of the existing parking. 6.3 Phase 3 Contingent upon market and financial feasibility, funding and EMRP Master Plan, as determined by the County, the Phase 3 timeline is to be completed by January 1, 2021. Phase 3 development and improvements have been separated into two (2) sub-phases A and B. 6.3.1 Phase 3A includes the new construction of two (2) softball fields and two (2) baseball fields complete with fencing. The new field construction will include irrigation and lighting systems. Phase 3A will also include the construction of a bathroom facility, as well as, a new Ramada or similar feature to house equipment/scoring functions, etc. Phase 3A will include all associated infrastructure to support the construction. 6.3.2 Phase 3B construction will include a new landscape plaza between the renovated Phase 1 fields and Phase 3 proposed fields. Phase 3B will also include the expansion of the existing parking lot and associated infrastructure to accommodate the increase in parking requirements. 6.4 Phase 4 Contingent upon market and financial feasibility, funding and EMRP Master Plan, as determined by the County, the Phase 4 timeline is to be completed by January 1, 2024. Phase 4 development and improvements have been separated into three (3) sub-phases A, B and C. 6.4.1 Phase 4A will include the construction of two (2) average 220-ft. depth (outfield fence) from home plate) baseball fields and a handicap accessible field. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 33 6.4.2 Phase 4B will include the construction of eight (8) batting cage systems. 6.4.3 Phase 4C will include the construction of four (4) volleyball courts with associated infrastructure such as lighting and sprinklers. 6.5 Phase 5 Contingent upon market and financial feasibility, funding and EMRP Master Plan, as determined by the County, the Phase 5 timeline to be completed by January 1, 2026. Phase 5 development and improvements have been separated into two (2) sub-phases A and B. 6.5.1 Phase 5A will include the construction of a club house (office) building and site related improvements at the multi-use field area. 6.5.2 Phase 5B will include the expansion of the existing parking and associated infrastructure. 7. Impediments to Development. 7.1 Variables that could result in variation of development features will be the result of site selection; restrictions identified during the planning and permitting process; revised assessments of the public’s recreational desires; industry norms; and market or business decisions. Per Exhibit 2.1.4.3 Planning Permitting Construction and Easements, any deviation from the final plans must be approved, in writing, by MCPRD which approval shall not be unreasonably withheld if within the Agreement Section 2.0 Scope of Work. 7.2 The elements and features of the Complex are subject to change by the Concessionaire to accommodate changes in the marketplace; changes in federal or state statutes or policy; changes dictated by planning and permitting guidelines; changes dictated by opposition to any proposed development; the inability to obtain utility services or materials to operate any proposed element of the Complex; and the need to remodel and renovate features County has final decision pertaining to development deviation from the ITN Response. 7.3 The Parties recognize that Concessionaire has not had the benefit of a contingency period under this Agreement which would enable it to confirm availability of all permits required to complete the improvements contemplated by the above Section 1.0, to confirm that there are no obstacles to development such as unfavorable soil conditions, soil contamination, access limitations and similar matters, or to confirm that there are no other unanticipated impediments to development such as neighborhood opposition or political opposition to any aspect of the proposed projects to be undertaken in the Complex. In light of these concerns, the Parties agree that the redevelopment of the Complex could be limited to restoration and renovation of existing improvements and that the proposed improvements relevant to subsequent Phases, such as existing infrastructures, may have to be reconsidered or replaced in their entirety; and the Parties may agree to accommodate, in good faith, any changes to the proposed development and renovation scheme which must be undertaken in the event that impediments to development arise during the course of planning and acquisition of permits for elements of the Phases, in the event that impediments to development arise during the course of planning, acquisition of permits for elements of the project, or during the construction of the project. If development impediments are beyond the reasonable control of the Concessionaire the County shall grant a reasonable extension to the completion date(s), not to exceed one year. If Concessionaire concludes, in its reasonable judgment, that it will be unable to use and develop any portion of the land included in the subsequent Phases and MCPRD desires to remove the affected parcels from the coverage of this ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 34 Agreement due to development impediments as noted in this Section 7.3, then the Parties may attempt to negotiate in the execution of an amendment to this Agreement to reflect the removal of such parcels of land from coverage hereunder. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 35 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 36 Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements as stated herein, provides the working document for the overall planning, permitting, construction and easement parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. It is the Concessionaire’s sole responsibility to determine what permits are required and to comply with all applicable licensing and permitting requirements and to obtain all necessary governmental approvals. The Concessionaire acknowledges that it may be required to obtain licenses, permits or other approvals from government agencies other than Maricopa County. All plans for improvements and construction must be submitted to all appropriate permitting agencies with jurisdiction for approval in accordance with any applicable statutes, rules, codes or ordinances, air quality and other environmental requirements regulations or mandates. The Concessionaire will be responsible for all costs associated with the planning, design, licensing, permitting, construction and completion of all stated requirements, improvements or construction projects unless otherwise stated in this Agreement. The Concessionaire is responsible for all costs associated with the permitting, installation, maintenance, repair and usage fees associated with telephone, fax, internet, fire alarms and security monitoring as may be applicable at the Complex. 1. Phase Development and Improvement Plans. 1.1 Phase Development, Improvement and Timeline, plans and/or modifications of plans for each Phase shall be submitted to the MCPRD for review and approval. The Concessionaire will not proceed with the preliminary plans until a written acceptance and notice to proceed is received from the MCPRD’s Director or his or her designee. 1.2 The Concessionaire will furnish to MCPRD a full legal description of the property for each individual Phase of development, upon completion of construction. 1.3 The Concessionaire shall work to procure commodities, services and facilities that protect and enhance the overall environment in a diligent, professional and creditable manner within reasonable fiscal constraints. Practices should include LEED design and construction, water conservation practices and recycling programs where applicable. 2. Plan Approval. 2.1 Plans for new improvements or construction activities, or the modification of existing improvements must be submitted, in writing, to MCPRD for its prior review and written approval. The Concessionaire shall design, construct or reconstruct improvements at the Complex including all costs associated with meeting any federal, state or local permitting or zoning requirements. Any construction or renovation at any time during this Agreement shall require prior approval of MCPRDs which approval shall not be unreasonably withheld if within the Agreement Section 2.0 Scope of Work. No improvements or construction activities may commence until prior written approval is granted; however, alterations which cost less than twenty-five thousand dollars ($25,000) (2014 Constant) to complete and do not alter structural elements of existing improvements may be undertaken by Concessionaire without prior approval of MCPRDs so long as all permits required for the completion of the work are obtained. MCPRDs will require a copy of Final and “As-Built” Plans for alterations completed under this Section. 2.2 Improvements or construction projects may require the completion of National Environmental Policy Act (“NEPA”) reviews, cultural resource compliance, U.S. Army Corps of Engineers, (e.g. 404 Permits), or other permits before any improvements or construction activities commence. The Concessionaire must plan its activities in ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 37 advance and provide MCPRD, and relevant permitting agencies, sufficient time to review all drawings and proposals, prepare NEPA documentation, etc. Costs associated with such studies will be at the expense of the Concessionaire. 2.3 Upon receipt of plans and specifications, and the securing of necessary permits, licenses, and all other approvals necessary and required for the construction of the Complex,, the Concessionaire may commence construction. 3. Site-Specific Plans and specifications Site specific plans (“Plans”) will identify layouts for construction for all site elements including circulation and parking, activity areas, buildings, drainage, grading, landscaping, lighting, signage and utilities, including but not limited to: 3.1 Proposed floor plans and elevations will be prepared for all buildings. 3.2 Capacities and circulation patterns will be identified for all vehicular traffic, to include trailered traffic if applicable. 3.3 A preliminary grading plan will be prepared which will identify areas of cut and fill as well as all proposed finished floor and other critical finished grade elevations. 3.4 The preliminary landscape plan will include type and spacing of plant materials for screening and landscaped areas, earth forms, hardscape elements, typical plantings in key areas such as entryways and walkways, and a plant palette. 3.5 Site lighting will be shown in proposed locations. 3.6 Proposed locations and types of signs, including but not limited to materials and color, etc., will be presented. Landscaping, site construction, and color scheme: for all new facilities should be constructed of materials that blend with the surrounding landscape in form, texture, line and color. 3.7 Utility schematics, including desired locations for points of connection, will be developed. 3.8 Loading requirements will be calculated. 3.9 Plans will conform to all applicable codes and will meet Federal Accessibility Standards. Plans shall comply with all applicable federal, state and local rules, regulations and ordinances including, but not limited to, health, building, zoning, fire and safety codes, all applicable environmental statutes, regulations and ordinances, the Americans with Disabilities Act of 1990, the Architectural Barriers Act of 1968, the Uniform Federal Accessibility Act of 1983 and the Arizona Native Plant Law. 3.10 Final submittal shall be submitted to all permitting agencies, including MCPRD, for review at the thirty percent (30%), sixty percent (60%) and ninety percent (90%) stages and final stamped sets as required by the respective permitting agency. Any deviation from the final plans must be approved, in writing, by MCPRD which approval shall not be unreasonably withheld if within the Agreement Section 2.0 Scope of Work. 3.11 Final submittal will include the budget, construction schedule and anticipated dollar expenditures. 4. “As Built” Plans. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 38 4.1 “As Built” Plans will be submitted to the permitting agencies, including MCPRD, upon completion of each project Phase. The completion of As Builts shall be consistent with the current level of the AMP. 4.2 One (1) electronic copy of Plans and specifications shall be furnished to the MCPRD within 60 days of completion of each Phase to match the current AMP. 4.3 Plans submitted shall consist of all plans, specifications and support documentation necessary to construct the improvement or new construction project. These will include, but not be limited to, the following: architectural, landscape and engineering components, copies of permits/approvals needed for construction and all supporting documentation. 4.4 The Concessionaire will be responsible for the costs incurred for additional plans as required. 5. Utilities 5.1 Water 5.1.1 The County represents that the Complex is currently served with an adequate non-potable irrigation water supply and that MCPRD is not aware of any condition, circumstance or pending actions that would alter or modify this representation. See Exhibit 2.1.4.6 Inventory Control for inventory of water facilities. 5.1.2 The County is responsible for all costs associated with the delivery of non- potable water up to the point where the Concessionaire connects to the County infrastructure (See Exhibit 2.1.4.6 Inventory Control) unless damage or required repairs is determined to be the fault of the Concessionaire. The Concessionaire is responsible for all costs associated with repair or replacement of the water delivery system damaged by the actions or inactions of the Concessionaire, its employees, or agents. 5.1.3 Based upon the water source and delivery means as of the Effective Date, the intent of County is to provide potable and non-potable water to the point where connected by the Concessionaire for use within the Complex. 5.1.4 Separate meters for both potable and non-potable water shall be installed (during Phase II) by the Concessionaire at the point of connection. 5.1.5 County expressly disclaims all warranties, whether expressed or implied, and makes no representations concerning the availability, quality or sufficiency of any type of water for present or future use. 5.2 Sewage Sewage will need to be disposed of through a septic system or use of chemical toilets depending upon the planning and permitting restrictions. All costs associated with the design, permitting, construction, purchase and maintenance of the system(s) to be used in support of disposal of sewage, unless otherwise stated in this Agreement, shall be the responsibility of the Concessionaire. Hazardous materials may not be disposed of in septic systems (See Exhibit 2.1.5.10 Resource Management). The Concessionaire shall be responsible for the submission of all required plans and obtaining permits. See Exhibit 2.1.4.6 Inventory Control. 5.3 Electrical ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 39 The Concessionaire is responsible for all costs associated with the delivery of electricity to and within the Complex to include meters that will need to be installed to separate Park facilities from Complex facilities. See Exhibit 2.1.4.6 Inventory Control for electrical inventory. If separate meters are not installed for Phase I per Exhibit 2.1.4.2 Phase Development Improvements and Timeline, MCPRD will invoice for Complex usage based on pro-rated portion of use (see Exhibit 2.1.4.4 Accounting and Fees). Starting with Phase II, meter for electrical service to Complex (inclusive of Phase I and all future Phases) must be installed by Concessionaire at no cost to County. 5.4 Easements. 5.4.1 The County will retain the right to establish access or utility easements through the Complex provided; however, the County will not unduly interfere with the Concessionaire’s use of the Complex. 5.4.2 Reasonable notice will be provided to the Concessionaire and such installation of utilities will be coordinated with the Concessionaire. 5.4.3 Relocation of any existing utilities or additional utilities requested by the Concessionaire will be coordinated with and approved by the MCPRD and the Concessionaire. MCPRD shall be given the opportunity to comment on all plans prior to submission to the appropriate planning and permitting authorities. MCPRD and the Concessionaire will review who will be responsible for incurred costs to include, but not limited to design, permitting, construction and maintenance. Before any project can move forward, this section must be reviewed, agreed upon and forecasted in the project plan in conjunction with the AMP. 5.4.4 County will work with the Concessionaire to secure easement(s), right-of-ways, etc., necessary for construction and improvements to the Complex, to include operations and maintenance of such construction or improvements. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 40 Exhibit 2.1.4.4 – Accounting and Fees Exhibit 2.1.4.4 Accounting and Fees as stated herein, provides the working document for the overall financial parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The accounting and fee parameters provides the administrative procedures for payments of annual and minimum fees, payment of utilities, Maintenance Account Fund (defined below) and Capital Improvement Fund (defined below) for the Complex. All fee, payment and fund structures as defined below may be adjusted annually as per the AMP. The MCPRD’s Director has the ability waive the fees lieu of development to accomplish the mutual goals and/or benefits in operating the Complex and/or Park. 1. Admission and Park Entrance Fees 1.1 The Concessionaire is responsible for the management and collection of all Complex admissions. 1.2 Users of the Complex will be required to pay the established Park Entrance Fee (“Park Fee(s)”) upon entrance into the Park. 1.2.1 The Park Fees will be paid wholly to MCPRD via participant and will not be considered for determination of Gross Revenue. 1.2.2 The collection of Park Fees can be evaluated via the AMP and would be subject to the MCPRD revenue policy for changes. 2. Accounting Records. 2.1 The Concessionaire will maintain an accounting system which conforms to the Generally Accepted Accounting Principles (GAAP) and which accurately reflects the results of the entire operation of the Complex. These financial records will be retained for a seven (7) year period from the current Contract Year. These financial records will be made available for inspection or audit by county, federal, or state government, their agents or employees, but not more than, once per Contract Year. 2.2 Within ninety (90) days of the end of each Calendar Year (January 1 through December 31), the Concessionaire, at its own expense, will prepare and submit to County an Annual Financial Report (AFR) reflecting the income and expenses, as well as balance sheet, of the entire operation of the Complex for the Calendar Year just completed. The financial statements shall be reviewed by Certified Public Accountant prior to submittal. This report will include a statement that the amounts shown in the financial report are consistent with those included by the Concessionaire’s federal and state income tax returns relating to the operation of the Complex. If these are not the same, a statement explaining any differences will be included. If the Concessionaire’s books, records and other documents relevant to this Agreement are not sufficient to support and document fiscal activity, the Concessionaire will, within thirty (30) days of the auditor’s report, make payment to the County for any amounts not adequately supported and documented. Fees associated with the cost of preparing the AFR will be the responsibility of the Concessionaire. 2.3 The County has the right to audit payment records (payment records is defined as monthly revenue reports and payments made during the respective Contract Year) received for timeliness and accuracy once per Contract or Calendar Year. Any fees determined to be due County will be invoiced to the Concessionaire with payment due within twenty (20) days as outlined in the provisions above. Should the due date fall on a Saturday, Sunday or legal holiday, then said due date shall be at the close of business on the first day thereafter which is not a Saturday, Sunday or legal holiday. Overpayment to County will be credited to the Concessionaire during the next billing period or fee payment period with an invoice acknowledging overpayment. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 41 3. Fees and Statements 3.1 Minimum Fee During the term of this Agreement, the Concessionaire will pay the County an annual Minimum Fee (defined below) in accordance with the published fee schedule attached as Appendix One “Fee Payment Schedule”. The Minimum Fee is defined as the minimum monthly payment due County over a period of twelve (12) months as reflected in the Fee Payment Schedule. The Minimum Fee is due monthly, payable to Maricopa County Parks and Recreation Department, not later than the 15th of the month following, i.e. January payment is due not later than February 15th. 3.2 Additional Fees. 3.2.1 The Monthly Income Statement (defined below in Section 3.3) will be used to calculate additional fees due the County based upon a percentage of the adjusted gross revenue (“AGR”, as defined below, Section 3.6). Additional fees are due not later than February 15th following the start of the Concessionaire’s Contract Year and will be based on the previous Contract Year’s AGR. Payment amount will be verified through the Monthly Income Statement and the Annual Financial Report. 3.2.2 The MCPRD is not required to use Concessionaire’s concession operators or facilities for County events. If the Concessionaire provides concessions at MCPRD activities and events, the Concessionaire shall pay a fee to the County, at an amount to be agreed upon prior to each activity or event. Concessionaire income derived from concession activities remain the exclusive property of the Concessionaire and must be used by the Concessionaire to further its operations and maintenance of the premises. Concession sales to be limited to food and merchandise related to sports activities at the Park or related to specific functions for which the Concessionaire has been contracted for concession operations. Concessions will be evaluated annually in the AMP for optimal usage of space. This Exhibit 2.1.4.4 may be amended due to these evaluations. 3.3 Monthly Income and Attendance Statements. A Monthly Income and Attendance Statement (a form accepted by the Parties to be used to report adjusted gross revenue (defined below)) is attached as Appendix Two Monthly Income and Attendance Statements is due to the County not later than the 15th of the month following, i.e. January statement is due to the County not later than February 15th and will be emailed (with delivery receipt request): Via Email: emilymiller@mail.maricopa.gov 3.4 Gross Income. By definition, gross income (“Gross Income”) as used in this Agreement means and is defined as all income collected by the concession minus authorized exclusions per GAAP standards. 3.5 Gross Revenue By definition, gross revenue (“Gross Revenue”) as used in this Agreement means and is defined as follows: 3.5.1 The total amount of annual revenue recognized by Concessionaire in accordance with the GAAP from the sale of goods, wares, services, rentals, related fees or other recreation amenity arising out of this Agreement. To include the following, but not limited to: ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 42 3.5.1.1 Field rental fees, revenues from tournament and special events, such as Complex admission fees and vendor fees, less the cost of holding those events that is in addition to regular operating costs. Event costs shall include the cost of prizes, food and beverage provided as part of the Complex admission fee. 3.5.1.2 Rental fees from lockers, sports equipment or other type of rental amenity. 3.5.1.3 Membership fees and/or dues. 3.5.1.4 Fees collected for additional services, i.e. internet/WiFi services if not part of the routine fees. 3.5.1.5 Revenues received from any subleases, independent contractors, and sub- concessions. 3.5.1.6 Merchandise (net of cost of goods sold). By definition, net income or “net of cost of goods sold” is the sale price of the merchandise or pro-shop sale item minus the cost of the product to the Concessionaire and will not have other deductions such as overhead, stocking fees, labor, administration fees, etc. 3.5.1.7 Vending, food and beverage concession sales. 3.5.1.8 Fees charged for lessons and instructions provided by course staff or monthly fee charged to sub licensees, or instructors functioning as independent contractors at the Complex. 3.5.1.9 Promotional or advertising income received by or paid to Concessionaire in exchange for displays, promotions, advertising, or other business transacted at the Complex. 3.6 Adjusted Gross Revenue . Gross Revenue excludes the following (defined as “Adjusted Gross Revenue” or “AGR”): 3.6.1 Gross Revenue shall not include the amount of any tax imposed upon the Concessionaire or upon the consumer and regardless of whether or not the amount of tax is stated to customers as a separate charge, or any state or local sales, transaction privilege or use taxes required by law to be included in or added to the purchase price and collected from the consumer or purchaser. 3.6.2 Sales from MCPRD merchandise available on consignment through the Concessionaire. 3.6.3 Such part of the sales price of any property previously sold and returned by the purchaser to the Concessionaire which is refunded by the Concessionaire by way of cash or credit allowances given or taken as part of payment by the Concessionaire. 3.6.4 The value of any merchandise, supplies or equipment exchanged or transferred from or to other business locations of the Concessionaire. 3.6.5 Receipts in the form of refunds from, or the value of, merchandise, supplies, or equipment returned to shippers, suppliers or manufacturers. 3.6.6 Receipts from the sale or the trade-in of any furniture, trade fixtures or equipment used on the Complex and owned by the Concessionaire. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 43 3.6.7 The amount of any cash or quantity discounts received from sellers, suppliers or manufacturers. 3.6.8 The amounts of any discounts given to the Concessionaire’s employees. 3.6.9 The amount of Capital Improvement Project Fund (CIP) set aside from the previous Contract year (see below Section 6.0). 3.6.10 Credit card charges payable to credit card issuers. 4. Utility Payments. The Concessionaire will be required to pay the cost of all utilities used at the Complex. 4.1 Invoicing of Utilities. The County will charge, for utilities it provides, i.e. electrical and non-potable water. For purposes of this Agreement, the Utility Provider is defined as the organization that provides the utility source other than the County. Invoices produced by the County for utilities (electrical, water reimbursement, as well as electrical for well pump) will be invoiced by the County and are due (“Due Date”) not later than twenty (20) days after date of the invoice. Should the Due Date fall on a Saturday, Sunday or legal holiday, then said Due Date shall expire at the close of business on the first day thereafter which is not a Saturday, Sunday or holiday. 4.1.1 Late Payment Fee. A Late Payment Fee shall be five percent (5%) of the invoiced amount or amount due. Invoiced late fees are due to the County within twenty (20) days of the date of the invoice. Should the County’s Due Date fall on a Saturday, Sunday or legal holiday, then said Due Date shall be at the close of business on the first day thereafter which is not a Saturday, Sunday or holiday. 4.1.2 All fees and payments due County will be sent to: Maricopa County Parks and Recreation Department c/o Finance Department 41385 N. Castle Hot Springs Road Morristown, AZ 85342 4.1.3 Failure to pay required fees shall be considered a breach of this Agreement. In the event of litigation to enforce this provision (collection or default), the County is entitled to recover its attorney’s fees and costs in such proceedings. 4.2 Electrical 4.2.1 Electricity for use by the Complex will be billed directly by the Provider and payable within the stated time by the Concessionaire. Transferring the account or establishing a new account is the responsibility of the Concessionaire. The Concessionaire shall provide and maintain the required meter. If a meter is not installed in Phase I per Exhibit 2.1.4.2 Phase Development Improvements and Timeline, or Exhibit 2.1.4.3 Planning, Permitting, Construction and Easements, the County will then invoice the Concessionaire, on a monthly basis, for their pro-rated portion. 4.2.2 The Concessionaire will install and maintain the required meter for the well/ground water. County will maintain the required electric meter(s) and electrical delivery system ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 44 for the pumping of non-potable water to the point where it connects to the Concessionaire’s Complex. 4.2.2.1 Electricity used to pump non-potable water will be billed to the County by the Provider. The County will then invoice the Concessionaire, on a monthly basis, for their pro-rated portion. 4.2.2.2 Both Parties agree that neither have control over the cost of utilities and the subsequent rate increases as they may occur. 4.3 Water 4.3.1 Water to be used for drinking (potable) and for other uses as determined by the Concession, is provided by the City of Goodyear (COGY) (the Utility Provider). 4.3.1.1 The County will invoice, on a monthly basis, the pro-rated amount of potable water used by the Concessionaire based upon the published fee schedule, until separate meters (scheduled for Phase II) are installed. 4.3.1.2 The Concessionaire shall provide for separate meters for potable water during Phase II of development. The Concessionaire shall maintain the required meter and pay COGY directly for their water usage 4.3.1.3 Costs incurred with the provision of additional potable water in event of failure of the water system or in support of Special Events will be the responsibility of the Concessionaire. 4.3.2 Well/ground water provided by the County through MCPRD, is the primary source of water to be used for irrigation and non-potable uses. 4.3.2.1 The County will allocate up to 220 Acre Feet of well/ground water per year. The annual allocation period is from January 1st through December 31st. There is no additional well/ground water available other than the annual allocation. 4.3.2.2 The Concessionaire is limited to the annual allocation of well/ground water as set by the Arizona Department of Water Resources (“ADWR”). Upon Concessionaire using the annual allocation of well/ground water, the Concessionaire will be required to use City of Goodyear (COGY) water for irrigation/non-potable uses. Concessionaire is responsible for necessary connections required to incorporate the use of COGY water for use as irrigation or non-potable needs. 4.3.3 County will invoice the Concessionaire for the amount of water consumed. 4.3.3.1 The County will invoice the Concessionaire monthly for their pro-rated portion of non-potable water consumed. The rate applied to the monthly County invoice sent to the Concessionaire for the amount of well/ground water used during the billing period will be the contracted rate County receives water from the Central Arizona Project (CAP) as Municipal and Industrial Water (“M&I Water Rate”) or mutually agreed upon fair market value rate. The M&I Water Rate is subject to change by CAP. County does not control or dictate the M&I Water Rate for which irrigation water is supplied or the rate for electricity to pump the water from the well. 4.3.3.3 Both Parties agree that neither have control over the cost of utilities and the subsequent rate increases as they may occur from CAP. County agrees that if ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 45 the rates for irrigation water increase by five percent (5%) or more over the previous Contract Year, County and Concessionaire will conduct a review of the impact of the rate increase on operations to determine if there is a need to offset such increased costs and, if so, the method to do so. This review process, if required, will be completed within ninety (90) days of the start of the new Contract Year in which the rate increase occurred. 4.3.3.4 The County will invoice the Concessionaire annually for their pro-rated portion of ADWR fees for which the Concessionaire will reimburse the County. The County is responsible for submission of all Annual Use Reports to the Arizona Department of Water Resources (“ADWR”) for well/ground water used during a Calendar Year. ADWR fees payable by the Concessionaire are determined based upon the fee schedule published by ADWR and the amount of well/ground, based upon metered usage, used by the Concessionaire 4.3.3.5 The County further agrees, at MCPRD’s discretion, fees may be waived for in- lieu repairs made by Concessionaire to MCPRD’s delivery system, at reasonable costs. 4.4 Trash Removal Concessionaire is responsible for the removal of trash per Exhibit 2.1.4.8 Maintenance and Capital Improvements. Based on projected annual use, the Parties shall determine a percentage or an appropriate method of trash removal and associated costs in the AMP. 5. Maintenance Account Fund The Concessionaire agrees to set up a maintenance account (defined below) to maintain the Complex in a commercially reasonable manner in order to guard against disrepair as per the Preventative Maintenance Plan (see Exhibit 2.1.4.8 Maintenance and Capital Improvements). By definition, Preventative Maintenance Plan means those activities that are completed to maintain an area, facility or piece of equipment in or to a commercially acceptable condition). Maintenance (also referred to as Preventative Maintenance) as used in this Section does not refer to those activities defined below in Section 6 Capital Improvement Project Fund. Concessionaire is responsible for all preventative maintenance costs. 5.1 On an annual basis, within sixty (60) days after the start of each Contract Year, the Concessionaire shall allocate an amount equal to or greater than three percent (3%) of the previous year’s gross income into its overall maintenance budget (“Maintenance Account”) for the Concession for on- going minor repairs and maintenance of the Complex. Expenditures shall be consistent with the provisions as outlined in this Section. The Concessionaire will be responsible for funding of all costs described in the Maintenance Account. The Concessionaire is responsible for all maintenance costs including those in excess of the minimum of three percent (3%) as may be identified during a Contract Year. 5.2 The balance of the Maintenance Account may be drawn down to a zero during the course of the applicable Contract Year as Concessionaire may determine. Concessionaire will maintain control of the Maintenance Account; however, County retains the option to audit the Maintenance Account deposits and expenditures and concur with the expenses from the Maintenance Account. If maintenance expenses exceed current amounts in said Maintenance Fund, the Concessionaire, with the County approval, may consider expending necessary funding from sources to be identified by the Concessionaire and apply this amount to future maintenance required contributions. 6. Capital Improvement Project Fund ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 46 6.1 Concessionaire agrees to set up a Capital Improvement Project (CIP) Fund that will only be expended for new capital improvements or major maintenance and repair of existing facilities, structures and other improvements which substantially extend the useful life of existing facilities, structures and other improvements (See Exhibit 2.1.4.8 Maintenance and Capital Improvements). 6.2 Beginning ninety (90) days after completion of Contract Year 1, the Concessionaire will be required to set aside three percent (3%) of the annual Adjusted Gross Revenue (see above Section 3.6 for the definition of Adjusted Gross Revenue) of the prior Contract Year for the establishment of a CIP fund. However, during initial construction of Phases, CIP is not needed as long as it is reflecting progressive development. 6.2.1 The CIP Fund will be entitled “Estrella Sports Complex CIP Fund.” The Concessionaire shall direct the investment of those funds. 6.2.2 The Concessionaire will provide annual reports to the County showing fund activity, including bank statements. Upon termination of this Agreement, any funds left unencumbered for current capital improvements and capital or major maintenance projects needed to provide a turn-key operation/facilities for future use, will be divided equally between the Concessionaire and the County. 6.2.3 The CIP Fund will be capped at the point that it reaches $500,000 (five hundred thousand) in CIP Fund balance. Payments to the CIP Fund will remain at two percent (2%) annually until the $500,000 (five hundred thousand) cap is attained. 6.2.4 Capital expenditures may include non-expendable equipment, major renovation projects and acquisition and development of areas and facilities of a substantial nature. It will not be used for on-going operating expenditures or routine maintenance. Items considered appropriate for CIP expenditure may include: 6.4.1 Major repair or replacement of infrastructures; 6.4.2 Resurfacing/striping of the parking lot and road; 6.4.3 Major repair or replacement of fencing or roofing; 6.4.4 Demolition of existing improvements; 6.4.5 Capital improvements or equipment; 6.4.6 Any other work commonly considered a capital repair or replacement; and 6.4.7 Major renovation projects and development or redevelopment of areas or facilities. 6.3 Beginning with Contract Year 2 and within sixty (60) days after the end of each Contract Year thereafter, the Concessionaire will provide to MCPRD, for its review and approval, an Annual Capital Improvement Project (CIP) Plan for the ensuing year per Exhibit 2.1.4.8 Maintenance and Capital Improvements. The CIP Plan will include a budget which details any planned expenditures from the CIP Fund. In the event MCPRD and the Concessionaire disagree on the proposed capital expenditures for any Contract Year, then the determination of Concessionaire shall control so long as it is consistent with the provisions of this Section 6 and Exhibit 2.1.4.8 Maintenance and Capital Improvements. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 47 Exhibit 2.1.4.4 – Accounting and Fees Appendix One – Fee Payment Schedule Contract Additional Additional Period Minimum Fee (1) Year Fees (2) Fees Due Date (2) Opening Date - 1 0 0 N/A 012/31/2016 2 1/1/2017 - 12/31/2017 $3,000.00 0 N/A 3 1/1/2018 - 12/31/2018 $6,000.00 0 N/A 4 1/1/2019 - 12/31/2019 $9,000.00 0 N/A 5 1/1/2020 - 12/31/2020 $12,000.00 0 N/A (If Phase III does not commence, the MCPRD may negotiate a revised Fee Schedule if MCPRD determines to proceed with the remaining Term.) 6 1/1/2021 - 12/31/2021 $15,000.00 3% AGR 2/15/2022 7 1/1/2022 - 12/31/2022 $20,000.00 3% AGR 2/15/2023 8 1/1/2023- 12/31/2023 $20,000.00 3% AGR 2/15/2024 9 1/1/2024 - 12/31/2024 $20,000.00 3% AGR 2/15/2025 10 1/1/2025 - 12/31/2025 $20,000.00 3% AGR 2/15/2026 11 1/1/2026 - 12/31/2026 $20,000.00 3% AGR 2/15/2027 12 1/1/2027- 12/31/2027 $20,000.00 3% AGR 2/15/2028 13 1/1/2028 - 12/31/2028 $20,000.00 3% AGR 2/15/2029 14 1/1/2029 - 12/31/2029 $20,000.00 3% AGR 2/15/2030 15 1/1/2030 - 12/31/2030 $20,000.00 3% AGR 2/15/2031 16 1/1/2031 -12/31/2031 $20,000.00 3% AGR 2/15/2032 17 1/1/2032 - 12/31/2032 $20,000.00 3% AGR 2/15/2033 18 1/1/2033 - 12/31/2033 $20,000.00 3% AGR 2/15/2034 19 1/1/2034 - 12/31/2034 $20,000.00 3% AGR 2/15/2035 20 1/1/2035 - 12/31/2035 $20,000.00 3% AGR 2/15/2036 21 1/1/2036 - 12/31/2036 $20,000.00 3% AGR 2/15/2037 22 1/1/2037 - 12/31/2037 $20,000.00 3% AGR 2/15/2038 23 1/1/2038 - 12/31/2038 $20,000.00 3% AGR 2/15/2039 24 1/1/2039 - 12/31/2039 $20,000.00 3% AGR 2/15/2040 25 1/1/2039 - 12/31/2040 $20,000.00 3% AGR 2/15/2041 A new Fee Schedule to be negotiated for remaining term beyond CY 25. (1) Minimum Fee: The Minimum Fee is defined as the minimum monthly payment due County over a period of twelve (12) months as reflected in the Fee Payment Schedule. The Minimum Fee is due monthly, payable to Maricopa County Parks and Recreation Department, not later than the 15th of the month following, i.e. January payment is due not later than February 15th. (2) Additional Fees: The Monthly Income Statement (defined in Section 3.3) will be used to calculate additional fees due the County based upon a percentage of the adjusted gross revenue (“AGR” as defined in Section 3.6). Additional fees are due not later than February 15th following the start of the Concessionaire’s Contract Year and will be based on the previous Contract Year’s AGR. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 48 Exhibit 2.1.4.4 – Accounting and Fees Appendix Two – Monthly Income and Attendance Statement Estrella Sportsfield Complex Profit & Loss Month ending ----- Gross Revenue Daily Sales Batting Cages Field Rental Multipurpose Field Rentals Volleyball League Fees (Elaborate) Main Concession Outside Concessions Tournament Fee(s) Facility Rental Other (Elaborate) Total Daily Sales – Gross Revenue Total Gross Revenue Sales Tax Deduction Adjusted Gross Revenue Total Attendance ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 49 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 50 Exhibit 2.1.4.5 Administrative Functions Exhibit 2.1.4.5 Administrative Functions as stated herein, provides the working document for the daily administration parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire shall provide administrative functions as stated herein and in the Agreement in a diligent, professional and creditable manner satisfactory to the County in compliance with all applicable statutes, laws, ordinances, rules and regulations. 1. Personnel 1.1 The Concessionaire is responsible for all costs associated with employment and management of all personnel consistent with this Agreement for the operation of the Complex, at no cost to the County. 1.2 It is the Concessionaire’s responsibility to furnish proper supervision of all its employees, contractors, subcontractors, and patrons using the Complex. This includes the possibility of funding in full or partially entry station staff for the collection of entry fees during tournaments, Special Events (as defined in Exhibit 2.1.4.7 Complex Operations and Service), extended hours and/or other solutions that can be determined in the AMP. 2. Equipment, Furnishings and Supplies 2.1 The Concessionaire shall provide, at its own expense, all equipment, furnishings and supplies necessary to fulfill its obligations under the terms and conditions of this Agreement. 2.2 Examples of expenses, equipment and supplies, include, but are not limited to, such things as: 2.2.1 All equipment necessary to operate and maintain the Complex. 2.2.2 All property or equipment for recreation-related services the Concessionaire is required to provide and any equipment needed for additional services offered. 2.2.3 Vehicular support for the Complex or concession’s operation. 2.2.4 Tools and maintenance equipment needed for maintenance of facilities. 2.2.5 Utilities, repair of structures or equipment as related to the Exhibit 2.1.4.6 Inventory Control for which the responsible party is responsible, i.e. HVAC, toilet fixtures; signage; costs associated with Special Events; maintaining of storage containers. 2.2.6 The Concessionaire may not store any personal equipment, except as approved in writing by MCPRD, at the Complex which does not specifically support Complex maintenance or daily operation. 3. Operating Season. 3.1 Within sixty (60) days of the start of each Contract Year, the Concessionaire will submit to MCPRD an annual operating schedule showing the intended hours and days of operation as part of the AMP. The Concessionaire may modify that schedule, based on their prudent business judgment; however, shall provide MCPRD notice, in writing, of such changes thirty (30) days prior to becoming effective. Such approval by MCPRD shall not be unreasonably withheld. The Parties intend that the Complex shall be open to the general public a reasonable number of hours per week throughout the operating season. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 51 3.2 Hours of operation shall be adjusted with prudent business judgment within scope of this Agreement, however, no event will begin before 6:00 a.m. or proceed past 10:00 p.m. without special authorization from the Park Supervisor. 3.3 The Concessionaire will provide security measures that are deemed necessary to reasonably protect the public and the Complex during hours of operation, including extended hours as well as those hours when the facility is closed. 4. Rate Schedules. Prior to opening and by January 2nd of each year thereafter, the Concessionaire will provide, as part of the AMP, MCPRD with a general price listing for goods and services that will be charged to the public. Concessionaire may modify the rates and prices based on their prudent business judgment; however, shall provide MCPRD, for its review and comment, notice of such change prior to becoming effective. Such approval by MCPRD shall not be unreasonably withheld. The Concessionaire will post, and at all times keep on public display, the prices, rates and charges of all goods and services, as well as the acceptable forms of payment. 5. Complex Annual Evaluation and Inspection 5.1 An annual evaluation (see Appendix One Complex Annual Inspection and Evaluation) by MCPRD’s Contract Administrator in cooperation with appropriate Park staff, or his or her designee, will be made of the quality of operation and maintenance of the Complex and of compliance with all terms of this Agreement to determine if there are areas of deficiency to be addressed and corrected. The Concessionaire shall give full cooperation to MCPRD in this evaluation process. MCPRD will afford Concessionaire a reasonable period of time to respond to such evaluation and correct any deficiencies that are required to be made in order to comply with this Agreement. 5.2 MCPRD shall furnish services as stated in this Agreement in a diligent, professional and creditable manner satisfactory to the Concessionaire. The Concessionaire is given the opportunity to evaluate MCPRD, on an annual basis, as to compliance with all terms of this Agreement to determine if there are areas of deficiency to be addressed and corrected. MCPRD shall give full cooperation to the Concessionaire in this evaluation process. The Concessionaire will be responsible for the development of an Inspection Checklist agreed to by MCPRD in writing. 6. Public Access and Park Closure 6.1 The Complex will be open to the public to enhance public recreational uses. The Concessionaire reserves the right to deny any person use of those portions of the Complex when it reasonably believes that such use poses a direct threat to the health or safety of others or the Complex. 6.2 The Concessionaire may restrict public access within the Complex during hours of operation and non-operation for reasons of security or health and safety. 6.3 The County reserves the right to close any area of the Park, including the area in which the Complex is located, when deemed necessary for public safety and health purposes without any liability to County for any compensation to the Concessionaire for losses, including, but not limited to, lost income, wages or other compensation which may be claimed by the Concessionaire. Prior to taking such action, MCPRD will make a sincere attempt to coordinate said actions with the Concessionaire to minimize adverse impact to the Complex operation. 6.4 The MCPRD may establish limits of visitation at any portion of the Complex, based on public health and safety, availability of parking spaces, or any other reason deemed by the County to be in the public interest (defined below), in the judgment of the County, without any liability to County for any compensation to the Concessionaire for losses, including, but not limited to, lost ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 52 income, wages or other compensation which may be claimed by the Concessionaire. By definition, “public interest” is considered any action taken by the County necessary to ensure public safety, health purposes, and safety of park property, curb civil unrest, fire prevention, and possibility of flooding or other natural events which could adversely impact the Park or users thereof, etc. Prior to taking such action, MCPRD will make a sincere attempt to coordinate said actions with the Concessionaire to minimize adverse impact to the Complex operation. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 53 Exhibit 2.1.2.5 Administrative Functions Appendix One – Complex Annual Inspection and Evaluation Name of Complex: Estrella Sportsfield Complex Location: Estrella Mountain Regional Park Date of Inspection: Name of Concessionaire: Estrella Youth Sports Concessionaire’s Representative Present: A. Complex General Areas: 1. Mowing: 2. Trees/vegetation properly pruned and appear healthy: 3. Fertilization: 4. Adequacy of Irrigation: 5. Efficiency of Irrigation: 6. Rodent Control: 7. Litter Control and Trash Removal: 8. Storm Run-off: 9. Signs: B. Buildings and Public Areas: 1. Restrooms kept clean and sanitary and stocked with tissue products: 2. Concession facilities kept clean, sanitary and environmental health services permit from Environmental Services Department posted: 3. Health Inspection Reports kept on file: 4. Sidewalks kept clean, dry, in good state of repair (no uneven edges or severe cracks): 5. Play equipment is kept in good state of repair, clean and well-groomed IAW manufacturer’s Specifications and CPSC standards: 6. Picnic areas are kept clean, trash cans emptied, no broken tables and BBQ grills are cleaned of used charcoal debris: 7. Rest areas are kept clean, trash cans emptied, no broken tables, chairs or benches: 8. Outside appearance of buildings and public areas are neat, clean and in good maintenance: 9. Inside appearance of buildings and public areas are neat, clean and in good maintenance: B. Maintenance and Repair Facility 1. MSDS “Right-To-Know” Station in Place; MSDS sheets posted: ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 54 2. Manifests kept and logged on all petroleum based products, tires, or batteries removed from site: 3. OSHA notices posted: 4. Appropriate placards posted, e.g. Hazmat: 5. Containment of petroleum/hazmat runoff: 6. Equipment is well organized in storage: 7. Maintenance logs are kept: 8. Supplies are neatly stored, well organized and an accurate inventory is kept: 9. All oils and fossil fuels stored on-site are done so in compliance with state and local requirements: C. Complex Specific: 1. Appearance/maintenance of playing fields, batting cages, volley ball courts, etc: 2. Complex lighting (common areas and play areas) is adequate and sufficiently shielded to eliminate/reduce “spill” light from emanating above the horizontal plane: 3. Fencing/cages are well-maintained and fabric is in good state of repair, e.g. no exposed barbs, “rolled-up” edges near backstops, or gaping holes that are not part of the normal fabric weave: 4. Playing fields well-maintained: 5. Playing fields kept level: 6. Playing fields good drainage: 7. Playing fields reconditioned as required: 8. Batter’s boxes and home plate are kept level and reconditioned: 9. Base ground stakes are kept below the surface grade and are secure: 10. The bottoms of all bases are level with good soil grade and no exposed edges: 11. All holes (gopher or otherwise) are kept filled in to prevent trip hazards: 12. Equipment, e.g. pitching machines are well-maintained: 13. Bleacher areas well maintained and safe: 14. Overall operations appear to be conducted in a safe manner: 15. Safety violations noted: 16. Individual safety equipment being used, e.g. batting helmets, knee/elbow protection: 17. Loose/hanging wire or cords: 18. Loose/hazardous handrails, back rails, etc.: 19. Flammable liquids improperly stored: 20. Fire extinguishers readily available: D. Customer Service 1. Copy of price sheet: 2. Copy of Business License: 3. Copy of operational hours: ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 55 4. Examples of customer comments about service, pricing, policies and quality of play (attach): 5. Example of a complaint that was received and how it was resolved: E. Financial/Reporting 1. Files monthly attendance/rounds report on time: 2. Pays monthly rent on time: 3. Paid additional rent (if any) on time: 4. Paid utility reimbursement invoices on time: 5. Certificate of Insurance provided on time: 6. Daily sales reconciled and reports filed: 7. Cash register used for point-of-sale control: 8. Reporting forms follow Generally Accepted Accounting Principles (GAAP): F. Employer Sanctions Law: 1. Number of Personnel Files May Checked for Compliance with E-Verify: 2. If Checked for E-Verify, is the Concessionaire Complaint with A.R.S. §41-4401: G. Comments: Inspection Confirmation: Signature of Person Conducting Inspection Printed Name and Title of Person Listed Above ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 56 Exhibit 2.1.4.6 – Inventory Control Exhibit 2.1.4.6 Inventory Control as stated herein, provides the working document for the identification and delineation of responsibilities for infrastructures, fixtures, furnishings and equipment (“Inventory Control” and incorporated herewith as Appendix One Inventory Control List) that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. Condition of Premises. 1. The Concessionaire acknowledges personal inspection of the Complex and the surrounding area and evaluation of the extent to which the physical condition will affect the use and operation of the Complex facilities. 2. The Appendix One Inventory Control List will be established between the Concessionaire and MCPRD and County no later than ninety (90) days after the effective date of the Agreement. This Inventory Control List will provide a consensus between the Parties to delineate the responsibilities (based on percentage of usage) as well as establish the condition for the infrastructures, fixtures, furnishings and equipment. 3. The Inventory Control List, upon finalization, shall be incorporated herewith as Appendix One Inventory Control List. The minimum expectations for the Inventory Control List shall include, but not limited to, the following categories: 2.1 Inspection Date 2.2 Item Description 2.3 Asset or Serial Number 2.4 Capital Asset (Y/N) 2.5 Grant Funded (Y/N) 2.6 Condition 2.7 Responsible % for MCPRD 2.8 Responsible % for Concessionaire 4. Concessionaire agrees to accept the property “as is” on which the Complex will be developed and will be operated from in its condition as of the Effective Date. The County does not imply or provide any warranty with respect to the physical aspects of the Complex except as set forth herein. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 57 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 58 Exhibit 2.1.4.7 – Complex Operations and Services Exhibit 2.1.4.7 Complex Operations and Services as stated herein, provides the working document for the daily operation parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire shall furnish Complex operations, services and facilities as stated herein and in the Agreement in a diligent, professional and creditable manner satisfactory to the County in compliance with all applicable statutes, laws, ordinances, rules and regulations. 1. Required Operations, Services and Facilities. 1.1 Complex Use. 1.1.1 Concessionaire shall have exclusive right to schedule use of the Complex. Concessionaire shall give priority to youth sports activities when scheduling use of Complex. Special Events (defined below in Section 1.4) are activities outside of regular season practices and games. 1.1.2 When Complex is not in use by Concessionaire, sections of the turf area shall be available for general Park/public use by visitors. Sections and availability is to be determined via AMP. 1.1.3 Variables that could result in variation of development features will be the result of site selection; restrictions identified during the planning and permitting process; revised assessments of the public’s recreational desires; industry norms; and market or business decisions. Per Exhibit 2.1.4.3 Planning Permitting Construction and Easements, any deviation from the final plans must be approved, in writing, by MCPRD which approval shall not be unreasonably withheld if within the Agreement Section 2.0 Scope of Work 1.2 Facilities. The Concessionaire, based on availability, may reserve through the Park Supervisor, use of the Visitor Center, ramadas or other areas located at the Park in support of Special Events (defined below in Section 1.4). Concessionaire will not have exclusive use of the ramada(s). 1.2 Restrooms. County agrees to let the Concessionaire use the established restrooms throughout the Complex. This does not relieve the Concessionaire of the responsibility for additional port-a-johns or actual restroom construction, dependent upon permitting restrictions, within the Complex based upon the number of participants that use area. Concessionaire will not have exclusive use of the restroom(s). Based on Complex use the Concessionaire may be required to add new restroom facilities or expand existing facilities. 1.3 Overnight Use. 1.3.1 The establishment of a residency, either temporary or permanent, will not be permitted on the Complex or within the Park. 1.3.2 No overnight, occupied RV parking will be permitted on the Complex or reference parking area unless prior authorization is received as outlined in Section 1.3.4; however, requests in conjunction with Special Events (defined below in Section 1.4) (inclusive of security for the Special Event) may be submitted to the Park Supervisor or, in their absence, the Westside Regional Superintendent, for use of the Complex for overnight camping. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 59 1.3.3 The Concessionaire may charge a fee for overnight, Special Event (defined below in Section 1.4) RV parking of which all fees charged will be reported on the Monthly Income Statement (See Exhibit 2.1.4.4 Accounting and Fees). All RV’s will be self- contained. Additional RV parking may be coordinated with the Park Supervisor of which the occupants will pay the County the established overnight parking/camping fee. 1.3.4 If any tents, trailers, shelters, recreational vehicles or other temporary facilities are erected by vendors or Concessionaire in support of Special Events (defined below in Section 1.4) and they are allowed to remain overnight, then Concessionaire shall notify the Park Supervisor and will be required to provide proper notification in event of evacuation of the Complex is ordered. 1.3.5 The Concessionaire will assist in arranging security for vendors and their vehicles that remain on the Complex overnight. The County assumes no liability for any vendor vehicles, equipment or merchandise located on the Complex. The Park volunteers or staff will not be assigned the additional responsibility for security of vendor vehicles, equipment or merchandise. 1.4 Special Events. 1.4.1 The concessionaire is authorized to do Special Events that fall within the scope of the Agreement. Special Events is defined and will be considered as events to promote such events as kid’s camps, beginner clinics, scholarship and activity programs for low income individuals and school groups, to include “special pricing days”, where a percentage of fees collected would be dedicated to fund such programs as the scholarship program, and include, but are not limited to, tournaments and fundraisers. Special Events will be coordinated with the Park Supervisor or Regional Superintendent. 1.4.2 Any special events deviating from the scope of the agreement will require approval from MCPRD via an Operations Plan. The Concessionaire shall be responsible for obtaining all required licenses, permits and payment of all fees associated with all activities conducted. 1.4.3 The Concessionaire may invite outside vendors to support Special Events through the sale of vendor products. 1.4.3.1 The Concessionaire assumes all liability for outside vendors and responsible for obtaining their own required licensing, permitting, liability and property insurance, payment of appropriate taxes and income reporting. (See Section 3.3.2 Insurance and Exhibit 2.14.4 Accounting and Fees, respectfully) 1.4.3.2 The County will be listed as additional insured on each Certificate of Insurance required per Agreement Section 3.3.2 Insurance. 1.4.3.3 Neither the County nor Concessionaire is liable for the failure of vendors to comply with these obligations; however, it is the responsibility of Concessionaire to ensure the outside vendors are aware of these requirements and the County reserves the right to remove from the Complex any vendor who is not in compliance with these requirements or vendors with products or merchandise deemed inappropriate. 2. Optional Services 2.1 The Concessionaire is authorized to add additional amenities and activities based upon market analysis and business judgment. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 60 2.1.1 The Concessionaire shall be responsible for obtaining all required licenses, permits and payment of all fees associated with all activities conducted. 2.1.2 All food concession operations will be operated in accordance with applicable laws and regulations pertaining to food handling, licensing, permitting and staff training 2.1.3 The addition of activities will require notification to County for comment, in writing, prior to being implemented. 2.2 Equipment sales, rental and repair in support of activities may be offered to the public; however, with written justification, the County reserves the right to prohibit the sale or rental of any items or services not deemed appropriate for the use or enjoyment of patrons using the Complex. 2.3 Concessionaire may maintain a concession activity for food, including catering, drink and merchandise on the premises for all activities and events. The Concessionaire shall comply with all applicable County ordinances and local and state health regulations related to the provision of food and other concessions. The Concessionaire shall require any group or organization to obtain all applicable permits and approvals related to the sale of food and concessions and use of the premises. If the Concessionaire provides concessions at County activities and events, the Concessionaire shall pay a fee, at an amount to be agreed upon prior to each activity or event, to the County as per Exhibit 2.1.4.4 Accounting and Fees. 2.4 Alcoholic beverages (only malted beverage or wine) may be served during non-youth events in designated areas. 2.4.2.1 Concessionaire is solely liable for compliance with all city, state, federal laws, statutes, regulations and ordnances requiring alcohol consumption, including, but not limited to, selling, dispensing and serving of alcoholic beverages. 2.4.2.2 Concessionaire is responsible for obtaining all necessary insurances, permits and licenses and renewals thereof, at Concessionaire’s expense, and will not sell, dispense or serve said alcoholic beverages until all required insurances, permits and licenses and renewals have been obtained. 2.4.2.3 All Alcoholic beverage sales must be for consumption at the Complex only. No alcoholic beverages shall leave the Complex. 2.4.2.4 Concessionaire shall at all times exercise prudent, responsible and experienced judgment in the serving of alcoholic beverages. Concessionaire shall at all times use only qualified and supervised personnel with appropriate licenses and training in the sale of alcoholic beverages. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 61 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 62 Exhibit 2.1.4.8 – Maintenance and Capital Improvements Exhibit 2.1.4.8 Maintenance and Capital Improvements as stated herein, provides the working document for the daily maintenance, preventative maintenance and large maintenance projects parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire agrees to maintain the Complex in a commercially reasonable manner in order to guard against disrepair. The Concessionaire shall furnish all maintenance, as stated in this Agreement and herewith, in a diligent, professional and creditable manner satisfactory to the County in compliance with all applicable statutes, laws, ordinances, rules and regulations. 1. Maintenance Plan. A Maintenance Plan (defined below) will be presented to the MCPRD for its review and comment; with expenditure approval made by the Concessionaire based on prudent business practices. By definition, Maintenance Plan means those activities that are completed to maintain an area, facility or piece of equipment in or to a commercially acceptable condition. Maintenance as used in this Section does not refer to those activities defined below in Section 4 Capital Improvements. A maintenance fund account will be established for on-going minor repairs and maintenance of the Complex, see Exhibit 2.1.4.4 Accounting and Fees. 2. Maintenance and Repair. 2.1 As related or associated to the current Complex Phase, the Concessionaire is responsible for the following items, as per the responsible party as indicated as the responsible party per Exhibit 2.1.4.6 Inventory Control, unless otherwise stated in this Agreement: 2.1.1 Maintenance and repairs of all structures, utilities, equipment, facilities or amenities, within, or associated with the current Phase of the Complex, as indicated as the responsible party per Exhibit 2.1.4.6 Inventory Control. 2.1.2 Furnishing all supplies, materials, consumables including but not limited to toilet paper, hand towels, seat cover paper products as well as all equipment necessary to perform the work specified under this Section. 2.1.3 For all public and private access to the restroom facilities including the locking and unlocking restroom doors, all security, monitoring, and operations. Locking of restrooms following a specific Complex scheduled event shall occur no later than one-hour after the end of the event. 2.2 Daily maintenance includes, but is not limited to: custodial cleaning services, trash removal, routine painting, patching, repair of vandalism, graffiti removal repairs due to fair wear and tear and replacement of signage required for such things as Complex operation and advertising. 2.2.1 All litter and debris removal from the Complex promptly, as well as all debris as a result of mowing or trimming in a dumpster provided by Concessionaire, at no cost to MCPRD or the County. 2.2.2 All trash dumpsters will have its content removed a minimum of two times per week; no overflowing trash receptacles are permitted. Based on projected annual use, the Parties shall determine a percentage or an appropriate method of trash removal and associated costs (see Exhibit 2.1.4.4 Accounting and Fees) 2.2.3 Concessionaire shall program trash removal as to eliminate overflowing trash receptacles and dumpsters during play, weekends or holidays. Recycle when feasible. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 63 2.3 The Concessionaire will maintain the fields and perimeter areas in a cost effective manner with reduced environmental risks, including but limited to mowing to a proper height, frequency and direction, soil testing annually, irrigation systems, to ensure soil moisture content in accordance with appropriate sports turf graph standards, scouting for pests, animals, weeds and monitoring thresholds, and utilizing environmental preferred products. 2.4 The Concessionaire is responsible for the maintenance, repair or improvements to the irrigation system for the Complex from the point of connection at the well, at no cost to MCPRD or the County, as indicated as the responsible party per Exhibit 2.1.4.6 Inventory Control. Irrigation shall be applied in a manner to avoid erosion, excessive run-off, ponding, or creation of a waterlogged soil condition. Concessionaire is responsible for the irrigation controller and its communication lines to the respective valves. 2.5 The Concessionaire is responsible for the care and security of the bays of the monopole area outside of existing maintenance compound, as indicated on Exhibit 2.0.2 Site Complex. The Concessionaire will utilize the designated bays for all storage, equipment, fueling or minor repair or maintenance. Stockpiling or staging areas must be authorized by the MCPRD. Stockpiling of material on the streets or in the public right-of-way is not allowed at any time. Damage caused by the Concessionaire within the maintenance area shall be at Concessionaire’s expense. If at any time a spill of fuel, oil or other material occurs the Concessionaire shall immediately clean the site with an appropriate absorbing material, sweep, and remove from site and dispose of within applicable laws and regulations, per Exhibit 2.1.4.10 Resource Management. Under no circumstances shall maintenance, including refueling, be completed on turf grass. 2.6. Infrastructure. County shall, unless otherwise stated in this Agreement, be responsible for maintenance of the Park infrastructure as indicated as the responsible party per Exhibit 2.1.4.6 Inventory Control, including but not limited to all roadways and utilities, i.e. water lines, meters, telephone lines, fax lines, to the point where it connects to the County’s infrastructure. 3. Preventative Maintenance. 3.1 The Concessionaire, within ninety (90) days of the Opening Date, in coordination with the Exhibit 2.1.4.6 Inventory, will develop a Preventative Maintenance (“PM”) Checklist incorporating the Concessionaire’s PM responsibilities pertaining to the Complex. By definition, Preventative Maintenance means those activities that are completed to maintain an area, facility or piece of equipment in or to a commercially acceptable condition. By definition, the Opening Date is the date the Complex, or part of, initially opens to the public. 3.2 The Concessionaire is responsible for all PM costs and can expend from Maintenance Funds designated for routine maintenance, as defined in Exhibit 2.1.4.4 Accounting and Fees. 4. Capital Improvements. 4.1 Beginning with Contract Year 2 and within sixty (60) days after the end of each Contract Year thereafter, the Concessionaire will provide to the MCPRD, for its review and approval, an Annual Capital Improvement Project (CIP) Plan for the ensuing year that will be reviewed as part of the AMP. 4.2 The Concessionaire is responsible for all CIP costs and can expend from CIP Funds designated for new capital improvements or major maintenance and repair of existing facilities, structures and other improvements as defined in Exhibit 2.1.4.4 Accounting and Fees. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 64 Exhibit 2.1.4.9 Safety Exhibit 2.1.4.9 Safety as stated herein, provides the working document for the safety parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire is responsible for ensuring that adequate safety measures and personnel are on-site for all events as defined in the Agreement and per Exhibit 2.02 Complex Activities and Parameters and Exhibit 2.1.4.7 Complex Operations and Services. All activities and events conducted by the Concessionaire will be conducted in conformance with all relevant industry standards and in compliance with all applicable federal, state and local statutes, regulations and ordinances relating to safety. 1. Safety Program. 1.1 The Concessionaire shall develop and implement a safety program. All activities and events conducted by the Concessionaire will be conducted in conformance with all relevant industry standards for safety and in compliance with all applicable federal, state, local safety, occupational health regulations, statutes, laws and ordinances. 1.2 The Safety Program will be evaluated annually as part of the AMP. Changes or amendments to the Safety Program will be submitted to the MCPRD as they occur. 1.3 The County will have the authority to immediately suspend any of the Concessionaire’s operations if it is determined that there is an imminent risk or threat to the public, employees, or Park staff. Such suspension shall remain in effect until the risk or threat has been resolved to the reasonable satisfaction of the County. Such suspension will be without liability to County for any compensation to the Concessionaire for losses, including, but not limited to, lost income, wages or other compensation which may be claimed by the Concessionaire. 2. Accident Reporting. The Concessionaire will immediately report to the County any event which results in death, injury, medical transport or requiring medical attention. Reporting will be to the Park Supervisor or the Regional Superintendent in the Supervisor’s absence as per organizational flow chart below. Organizational Flow Chart Estrella Mountain Regional Park Contract Administration Don Harris Emily Miller Park Supervisor Contract Administrator 623‐932‐3811 ext. 200 928‐501‐9211 donharris@mail.maricopa.gov emiller@mail.maricopa.gov Estrella Mountain Regional Park Jennifer (JJ) Johnson Westside Regional Superintendent 480‐921‐7625 cell jenniferjohnson@mail.maricopa.gov Operations and Facility Management Jennifer Waller Operations Manager 928‐501‐9202 jenniferwaller@mail.maricopa.gov RJ Cardin, Director 928‐501‐9200 rjcardin@mail.maricopa.gov ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 65 3. Emergency Evacuation Plan and Ingress/Egress Routes. 3.1 The Concessionaire will be required to adopt and post at the Complex an Emergency Evacuation Plan (“Emergency Evacuation Plan”) including identification of primary and secondary ingress and egress routes. 3.1 The Concessionaire shall, within sixty (60) days of the Effective Date, be required to provide, as a minimum, the name and phone numbers of a primary and secondary point-of-contact to be notified in event of an evacuation. The Concessionaire shall update the point-of-contact list as required and provide a copy of the list to the Park Supervisor. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 66 Exhibit 2.1.4.10 Resource Management Exhibit 2.1.4.10 Resource Management as stated herein, provides the working document for the resource management and environmental compliance parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire is responsible for ensuring that adequate resource management and environmental practices through policies, procedures are adhered to as per the Agreement and defined herein. The Concessionaire agrees to comply with all environmental laws and regulations and to take such other actions as may be reasonably required to protect against environmental liabilities. 1. Environmental Compliance. 1.1 Air Quality. 1.1.1 The Concessionaire, at the Concessionaire’s expense, will be responsible for the completion of all applicable environmental studies and for the acquisition of all applicable permits and licenses within the Complex. 1.1.2 The Concessionaire will be responsible for ensuring compliance with the Maricopa County air, water and waste control regulations as well as any other applicable federal, state and local statutes, regulations and ordinances as they pertain to environmental protection for their areas of responsibility within the within the Complex. 1.1.3 All costs associated with the permitting, licensing and remaining in compliance with the appropriate air quality regulations and guidelines are the responsibility of the Concessionaire within the Complex. 1.2 Hazardous and Regulated Materials. 1.2.1 For the purposes of this Agreement, the term “regulated substances” shall include substances defined as “regulated substances,” “hazardous waste,” “hazardous substances,” “hazardous materials,” “toxic substances” or “pesticides” in the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation and Liability Act, as amended in 1986 to include Superfund Amendments and Reauthorization Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the relevant local and state environmental laws, and the regulations, rules and ordinances adopted and publications promulgated pursuant to the local, state and federal laws. 1.2.2 Management and proper disposal of all hazardous material is the responsibility of the Concessionaire. Any such hazardous substances must be disposed of pursuant to and in compliance with all required laws and regulations concerning the use and disposal of such substances. The Concessionaire must keep appropriate and required documentation relating to the management and disposal of all hazardous material. 1.2.3 If the Concessionaire’s activities result in a release or any adverse environmental impacts, the Concessionaire shall be solely responsible for any and all resulting site assessment, studies, remediation and clean-up costs required to restore the property to its original condition. 1.3 Regulated Use. 1.3.1 The Concessionaire will provide to County within ninety (90) days of the Effective Date of this Agreement, a complete list identifying all hazardous material or petroleum ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 67 products at the Complex. Changes from the initial list will be provided by the Concessionaire to the County, in writing, as they occur. The Concessionaire will keep Safety Data Sheets on site for those materials and products that require such. 1.3.2 The Concessionaire shall prepare and implement any necessary remediation action plan in accordance with all applicable federal, state, county and city statutes, laws, ordinances, rules and regulations in the event that Concessionaire causes any contamination of the Complex. 1.3.3 The Concessionaire shall report to MCPRD, within twenty four (24) hours of its knowledge, any event or occurrence at the Complex which may or does result in pollution or contamination affecting lands, water or facilities owned or managed by the County or adjacent properties. 2. Pest Control and Plant and Animal Salvage. 2.1 The Concessionaire will be responsible for managing vermin and other pests, including weeds, on all lands and facilities within the Complex. In the event of visible evidence of pest(s) infestation, Concessionaire will restore the area to its proper condition. Prior to initial operations, the Concessionaire shall develop and submit for MCPRD approval, a Pest Management Plan, defined as a plan that details a safe and environmentally sensitive control or eradication of potential pests at the Complex. At a minimum needs to include the product name and solution ratio. The Pest Management Plan will be evaluated annually as part of the AMP. 2.2 The Concessionaire is responsible for complying with all training (federal, state, county and local), operational and licensing requirements pertinent to and required for the application of pesticides in Arizona. The applicator shall hold all necessary licenses and registrations for application of pesticides, herbicide, fungicide, fertilizer and similar chemicals/substances. 2.3 Plants and animals that are native to Arizona or the immediate area may not be removed or harmed except with the prior written approval of MCPRD. The Concessionaire will be required to salvage and replant all plants within the approved area of development in accordance with accepted practices and standards of the Arizona commercial horticulture industry. More specifically, as part of the plan approval process, a plant salvaging plan will be submitted to MCPRD for review and to the permitting authorities as may be required for approval as part of the permitting process. 3. Historic and Archeological Resources. The County has no knowledge of the presence within the boundaries of the Complex of any artifacts, antiquities, human remains or other items of archeological, scientific or cultural interest which would impede development of the Complex. However, the Concessionaire shall take all reasonable and necessary precautions to protect and preserve any and all antiquities or other objects of archeological, paleontological, cultural, historic or scientific interest on County lands within the Complex. These objects include, but are not limited to, historic or prehistoric ruins, human remains, funerary objects and other artifacts. Should such sites or objects, or evidence of sites or objects, be discovered, the Concessionaire shall: 3.1. Immediately suspend all work involving the area in question, make a reasonable effort to protect such discovery and advise the County of the existence of such discovery. 3.2 The Concessionaire shall immediately provide a verbal notification to the County of the discovery of human remains on County lands. 3.3 The Concessionaire shall forward a written report of their findings to the County by certified mail. The Concessionaire shall cease activity, stabilize and protect such discoveries until authorized to proceed by the County. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 68 3.4 The Concessionaire will at the cost of the Concessionaire, have the area inspected to determine its historical significance and the appropriate actions to follow (e.g. salvage, test excavations, and resumption of construction). If the property has been determined to have archeological resource, the removal of the artifacts will be the responsibility of the County. All objects salvaged from public lands are the property of the United States Government and will be turned over to County for disposition. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 69 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 70 Exhibit 2.1.4.11 Marketing and Media Exhibit 2.1.4.11 Marketing and Media, as stated herein, provides the working document for all of the marketing and media parameters that will be reviewed annually, no later than December 31 of each year, as part of the Annual Management Plan (AMP) pursuant to the terms of the Agreement. The Concessionaire is responsible for ensuring that all media, advertising materials and marketing is family oriented and is reviewed and approved by MCPRD as noted herein. 1. Parties shall choose the name or names to be used to market the Complex. 2. Press Releases and Media Distribution. 2.1 The Concessionaire will inform MCPRD of media releases prior to release. 2.2 MCPRD’s Public Information Officer (“PIO”) will receive a copy of all press releases and media distribution within a reasonable time prior to being released for MCPRD approval. 2.3 MCPRD reserves the right to make edits prior to the release date. 3. Marketing & Advertising. 3.1 Advertisements, signs, circulars, brochures, letterheads and other media or materials shall not misrepresent in any way the accommodations or services provided as pertains to this Agreement. 3.2 MCPRD, through its Public Information Officer (PIO), will facilitate advertising, based upon County guidelines, on MCPRD’s website. 3.3 All printed advertising shall include a statement to the effect that the Complex is being operated as “A Concessionaire of the Maricopa County Parks and Recreation Department at Estrella Mountain Regional Park.” 3.4 The Concessionaire is authorized to accept advertising from other Park concessionaires and vendors not located (“Outside Vendors”) at the Park that desire to advertise their respective business to visitors of the Complex. 3.5 The Concessionaire is authorized to assess a fee for advertising requested by outside vendors. 4. Signage. 4.1 The Park Supervisor and Regional Superintendent, in coordination with MCPRD’s Operation Manager, will review all signage as it pertains to style, color, lettering and advertising unless otherwise mandated by policy or regulations and for its compliance with the County’s signage policy. 4.2 Signs or other advertising posted on County land outside the Complex will be subject to County and any other applicable administrative agency approval as to location, design, size, color and content prior to construction or use. All such signs will comply with all applicable statutes, laws, ordinances, rules and regulations. 4.3 The Concessionaire is responsible for all costs associated with the planning, permitting, construction, installation and associated utility costs of signs used in support of the Complex. ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 71 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 72 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 73 ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 74 Exhibit 4.1 – Park Rules Maricopa County Parks & Recreation Department PARK RULES Adopted August 13, 2003 by the Maricopa County Board of Supervisors R-101 Definitions insurance naming the Department as additionally insured, The following definitions shall determine meanings for certain and/or provide for adequate medical, sanitary and security services. Facilities, objects, entities or activities. 7. A performance payment bond may be required for any permittee 1. “Abandoned Vehicle” means any vehicle, boat, trailer, or who is providing a service that was solicited to provide any event structure, which shows evidence of being left unattended for a or activity sponsored by the Department. period of 48 hours unless displaying an official permit 8. The Department may impose conditions on the conduct of any indicating a stay in excess of 48 hours. activity which are necessary to protect the area and maintain its 2. “Aircraft” means a structure or device for navigation of the air availability as a public park. that is supported either by its own buoyancy or by the 9. A Special Use Permit is not required for any person operating under dynamic action of the air against its surface. the provisions of a valid special use or commercial management 3. “Camping” means erecting a tent or shelter or arranging concessions agreement with the Department. bedding or both, for the purpose of, or in such a way as will 10. Special Use Permit applications, which are compatible with the permit, overnight use; or parking a trailer camper or other management objectives of the individual park, may be refused for vehicle for the purpose of remaining overnight. health and safety reasons or to protect the park from significant 4. “Commission” means the Maricopa County Parks and damages. With respect to competing non-profit uses, the use of Recreation Commission. park space shall be granted on a first-come, first-served basis. With 5. “County” means Maricopa County. respect to competing commercial uses, informal proposals shall be 6. “Department” means the Maricopa County Parks and solicited and the Special Use Permit awarded to that concessionaire Recreation Department. which offers to provide the County with the highest potential revenue 7. “Loudspeaker or public address system” means a device to and/or best recreational value to park patrons, provided the amplify or direct sound. concessionaire does not have a poor performance history on any 8. “Maricopa County Park(s)” means any land or areas under the prior permits. control of the Maricopa County Board of Supervisors which 11. All persons entering a park under a Special Use Permit are subject has been designated as a Park, Recreation Area or to all entrance and/or other fees, and all rules and regulations Conservation Area. concerning park resource and facility use. The total amount of 9. “Roads” means the entire width between the boundary lines of entrance fees owed by persons entering a park under a Special Use every way when any part thereof is open, kept or maintained Permit may be calculated in advance and paid in accordance with terms for use by the public for purposes of vehicular travel. negotiated as part of the Special Use Permit. 10. “Special Use Permit” means commercial or non-commercial 12. A decision by the Department concerning any Special Use Permit may be permits issued by the Department for activities outside a appealed to the Commission. park’s activity design or which excludes the general public or 13. Applications for Special Use Permits may be obtained from an for which there is monetary gain. authorized representative of the Department. 11. “Swimming” means to propel one’s self in water by natural means; consequently aquatic activities including the full or R-103 Violations and Penalties partial use of inner tubes, air mattresses or personal support 1. Any person who violates any of these rules shall be guilty of a devices. Class 2 misdemeanor. 12. “Designated Trail” means an authorized recreational trail 2. Any person who violates any of these rules may also be evicted for designed, constructed, and maintained according to standards failure to comply. within the County manual; it is within Maricopa County Parks’ boundaries and has been included in the Maricopa County The following acts are prohibited in Maricopa County Parks: Park trail system inventory. R-104 Entry, Use, Occupancy, Fees R-102 Special Use Permits, Fees and Approvals 1. Entering, using, or occupying of a Maricopa County park or its 1. Special Use Permits shall be required for eligible non-profit, facilities, designated trails or waterways under the supervision and government or private, as well as commercial uses. control of the Department for any purpose when said parks or areas 2. For eligible non-profit uses, a Special Use Permit is required are posted against such entrance, use, occupancy or where barriers of any person or group for any activity outside each park’s exist. activity design, or for the use of specific park areas that 2. Entering upon or using for any purpose the land, water or facilities 3. A Special Use Permit shall also be obtained in advance by any within the boundaries of Maricopa County Parks when a fee, rental, any person or group wishing to use a Maricopa County Park admission or other consideration has been established for such land, for eligible commercial uses. water or facility has been paid said fee, rental, admission or other 4. Park Impact Fees for Special Use Permits shall be negotiated consideration. by the Department used on the expenses related to the administration of the activity, protection of the park and R-105 Animals and Pets visitors, and in accordance with established fee schedules when applicable. 1. Riding, permitting or allowing livestock, saddle, pack, or draft animals 5. The Department may require commercial applicants to enter except on designated trails or areas under special permit issued an agreement with the County for a negotiated percentage of by the Department or by special provisions of a Use Management gross receipts not to exceed twenty (20) percent. Agreement. 6. The Department may require the permittee to post a deposit 2. Possessing, allowing or permitting a dog and/or other pets in a Maricopa against damage and clean-up expense, provide a certificate of County Park, unless the same shall be under immediate control on a ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 75 Exhibit 4.1 – Park Rules (Continued) leash not exceeding 6 feet in length, except the leash for any purpose. requirement shall not apply to dogs while being used in hunting, 2. Engaging in noisy conduct, operating generators or motors, operating in field trials, or while being trained when upon lands open to such radios, or otherwise making loud or disturbing noises that may disturb uses and it does not interfere with other park activities. the peace of the area between the hours of 10:00 p.m. and 6:00 a.m. 3. Possessing, allowing or permitting a dog in a Maricopa County 3. Public urination or public defecation. Park without a current license. 4. Engaging in noisy conduct that disturbs the peace. 4. Allowing dogs or other pets, other than seeing-eye or hearing guide dogs, within the confines of public park buildings. R-112 Camping except the leash requirement shall not apply to dogs while 1. Camping without first obtaining a written permit issued by the 5. Allowing dogs and/or other animals to create a nuisance, noise Department. or disturbance in any area. 2. Failure to obey all written or posted camping regulations. 6. Failure of any owners of pets to properly dispose of any waste. 7. Scattering or depositing the ashes of any animal. R-113 Fires 1. Building fires except in designated places. R-106 Firearms, Hunting and Trapping 2. Building fires in any area posted against such use. 1. Possessing a firearm, unless unloaded in both barrel and magazine 3. Building wood or charcoal fires at any time posted against such activity in any area closed to the discharge of firearms unless permitted by (during fire ban). state law. 4. Use of gas or propane stoves or grills when use is prohibited (during 2. Shooting a firearm, air rifle, air pistol, potato cannon, or any type of extreme fire ban). cannon, paintball gun, slingshot, or shooting with a bow and arrow, 5. Abandoning any fire without completely extinguishing it. or setting traps except in locations provided for that purpose by 6. Allowing a fire to escape from control. Arizona Game and Fish rules. R-114 Public or Commercial Activities R-107 Motor Vehicle and Bicycles 1. Conducting any activity or assembly outside the individual park’s 1. Operating any motorized vehicle except on roads and parking areas activity design or requiring the use of park areas which exclude the use designated by the Department for such purpose. of the general public without first obtaining a Special Use Permit from 2. Abandoning any vehicle in any area of a Maricopa County Park. the Department. Vehicles violating this section may be towed at the owner’s expense. 2. Posting, placing, or distributing advertising material; erecting a fence or 3. Parking a motor vehicle or trailer or other device towed by a motor barrier (except under specific use management or lease agreements), vehicle in such a manner whereby roads, parking areas or other constructing or occupying improvements; or enclosing County traffic ways or traffic are blocked or otherwise impeded. Vehicles administered lands without first obtaining or enclosing a Special Use violating this section may be towed at the owner’s expense if such Permit from the Department. violation constitutes blockage of any emergency lane or otherwise 3. Using a loudspeaker or public address system, or amplifier, without first interferes with park operations. obtaining a Special Use Permit from the Department. 4. Operating a bicycle in a careless or reckless manner, or in disregard 4. Using County administered lands for a commercial purpose without of the safety of any person or property. first obtaining a Special Use Permit from the Department. 5. Utilizing bike ramps in non-designated areas. 6. Operating, without permission from the County, any motorized R-115 Glass Bottles skateboard, motorized scooter, mo-ped or like device. 1. Possessing glass, ceramic or hard frangible plastic beverage bottles. R-108 Watercraft and Swimming R-116 Aircraft and Engine Powered Models 1. Bringing into, or operating any watercraft upon a body of water 1. Operating any passenger carrying aircraft of any nature or parachute, except at such places and in such a manner as designated for such including parasailing, except in areas designated for such use by the use or purpose by the Department. Department or in an emergency situation. 2. Storing or leaving any watercraft without first obtaining a permit 2. Operating engine powered models and/or toys in any park area not issued by the Department or its authorized concessionaire. designated for such use or in such manner that it could be a hazard 3. Swimming in areas posted against such use. to the public. 4. Cliff jumping. R-117 Interference with a Park Ranger or a Park Police Officer R-109 Vandalism 1. Interfering with any Park Ranger and/or Park Police Officer in the 1. Destroying, damaging, or removing any tree, shrub, wildflower, discharge of the Park Ranger’s and/or Park Police Officer’s duties. cactus, or any other vegetation, or any other vegetative product 2. Failing or refusing to obey any lawful command of any Park Ranger or by-products without first obtaining a written permit from the and/or Park Police Officer or other Certified Peace Officer. Department. 2. Destroying, damaging, defacing or removing any County property R-118 Trails or property administered by the Department. 1. Damaging, blocking, restricting or otherwise interfering with the use of a trail. R-110 Littering 2. Throwing or rolling rocks or other items into valleys or canyons, down 1. Depositing or abandoning garbage, sewage, refuse, trash, waste hillsides, mountainsides or trails. or other obnoxious material, except in receptacles or containers 3. Leaving a designated trail or walkway between trailheads. provided for such purposes. 4. Operating a bicycle, riding a horse, or hiking, except on trails designated 2. Throwing or breaking glass, plastic or ceramic objects leaving for that use. Shards or other fragments on park property. 5. Failure to follow any sign that dictates the use or behavior on a trail. R-111 Public Behavior 1. Conducting one’s self in a disorderly or intoxicated manner, or using threatening, abusive, or boisterous or insulting language, or conducting or participating in a disorderly assembly, or to solicit ESTRELLA YOUTH SPORTS UMA FINAL WITH EXHIBITS.DOCX Page 76