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AMENDMENT ONE
TO
USE MANAGEMENT AGREEMENT
(0-30-06-012-1-00)
EETWEE-N
MARICOPA COUNTY
AND
LAKE PLEASANT MARINA PARTNERS, LLP
:516Y c7
RECITALS
Maricopa County, referred to as "COUNTY" and Lake Pleasant Marina Partners, LLP,
referred to as "CONCESSIONAIRE", collectively known as "PARTIES''. entered into a Use
Management Agreement (C-30-06-012-1-00). referred to as "Agreement', on December 7. 2005
to develop, operate and maintain a dry stack storage, watercraft rental and boating supply store
complex at Lake Pleasant Regional Park: and
The Agreement erroneously identified Lake Pleasant Marina Partners, LLP as Lake
Pleasant Marina Partners. LLC; however, they are one in the same. Lake Pleasant Marina
Partners, LLP is the correct CONCESSIONAIRE: and
CONCESSIONAIRE desires Exhibit C.1 — Percentage Fee and Minimum Payment
Schedule to the Agreement be modified due to delays in construction, not the fault of
CONCESSIONAIRE: and
The PARTIES desire to amend the Agreement in order to clarify compliance with
Paragraph 6G of Exhibit 9 to the Agreement: and
The Agreement will require administrative action from time to time to carry out the spirit
and intent of the Agreement. The Department Director for the Maricopa County Parks and
Recreation Department is hereby given the authority and charged with the responsibility for
proper administration of the Agreement. on behalf of COUNTY, whether or not specific authority
is granted in any provision of the Agreement: therefore
COUNTY and CONCESSIONAIRE desire to enter into this Amendment One with the
understanding that all other provisions of the Agreement remain in full force and effect. In the
event of any conflict or inconsistency between the Agreement and Amendment One, the terms
of Amendment One shall control.
AMENDMENT
1. Delete Paragraph 1 — Concession Granted in its entirety and replace with the following:
1'446495.c., 1 ORIGINAL
I . Concession Granted
COUNTY hereby authorizes the COMPLEX on designated property within LPRP, such
property being more particularly described in Paragraph 5 below (hereinafter, the
"Concession Site"), The COMPLEX includes the COMPLEX Operation
(facilities/improvements) at the Concession Site. Notwithstanding any provision in the
Agreement to the contrary, nothing in this Agreement vests in CONCESSIONAIRE any
property interests in the Concession Site.
2. .= elete Paragraph 4B (2) — Fee Schedule in its entirety and replace with the following:
1) It is anticipated and COUNTY will assist in the permit process and that the permitting
process for up to 544 wet slips will be achieved by December 1, 2006. If this process is
unavoidably delayed beyond that date, the fee schedule attached hereto as Exhibit 0.1
(Revised) will be implemented in its place,
3. elate Paragraph 17D — Ownership of Improvements upon Expiration or Termination in its
itirety and replace with the following:
Rights and Duties upon Expiration or Termination
At such time as either PARTY voluntarily elects not to renew the Agreement for the 15-
year renewal term specified in Paragraph 2 — Term, of the Agreement. or at expiration of
the term of such renewal period, whichever occurs first, COUNTY shall have all
possessory and other rights and interest in all improvements, all inventory (including
non-obsolete/non-perishable store inventory and fuel inventory) and any other personal
property necessary for COUNTY'S operation of the COMPLEX_
CONCESSIONAIRE shall remove any and all of its own personal property, personal
effects, and other personal property which is not necessary for COUNTY'S operation of
the COMPLEX, and shall restore the Concession Site to a condition satisfactory to
COUNTY. All personal property not removed within 60 days of the termination date of
this Agreement shall thereafter be considered abandoned and will automatically become
the property of COUNTY and subject to disposal under COUNTY regulations. Removal
of property and/or any required repair or restoration of County land or facilities by
COUNTY after 60 days following the termination date of this Agreement will be
performed by COUNTY and CONCESSIONAIRE will be billed for all reasonable costs
associated with the performance of this work.
Delete Paragraph 18H — Damages in its entirety and replace with the following:
H. Damages
CONCESSIONAIRE hereby releases COUNTY and/or RECLAMATION from all claims
for damages to facilities. structures. or improvements authorized by this Agreement, or
the property stored or used in connection with the COMPLEX resulting from reservoir
fluctuation. blowing silt, or from any future modification of the dam, reservoir or adjoining
COUNTY and/or RECLAMATION lands.
5. Delete Paragraph 22N — Taxes in its entirety and replace with the following:
1.941Y-N0.6
N. Taxes
CONCESSIONAIRE shall pay taxes of whatever character which may be levied or
charged upon CONCESSIONAIRE'S right to use the Concession She as defined in
Paragraph 1 of this Aoreement, or upon the improvements, fixtures, equipment or other
property or upon CONCESSIONAIRE'S operations under this Agreement. As set forth
in Paragraph 22 of this Agreement, no leasehold or other real property interest is being
created or conveyed upon which tax consequences may exist.
6. Deiete Paragraph 28A — Acquisition of Improvements in its entirety and replace with the
following:
Damages and Termination Fee
If the damages incurred by COUNTY by reason of CONCESSIONAIRE'S default
("Default Darriades", as more particularly described below) are less than 90% of the
then-current fair market value described above. COUNTY shall pay a termination fee to
CONCESSIONAIRE equal to the difference between (x) 90% of the then-current fair
market value of (a) the improvements specified in Paragraph 17.8 — Improvements: (b)
all inventory, including non-obsolete/non-perishable store inventory and fuel inventory:
and (c) all other personal property necessary for COUNTY'S operation of the
COMPLEX, and (y) the Default Damages, If the Default Damages equal or exceed 90%
of the then-current fair market value of (i) the improvements specified in Paragraph 17.8
— improvements; (ii) all Inventory, including non-obsolete/non-perishable store inventory
and fuel inventory; and (iii) all other personal property necessary for COUNTY'S
operation of the COMPLEX, then Paragraph 17.D — Rights and Duties upon Expiration
or Termination shall apply without the payment of any termination fee.
7, Delete Paragraph 288 — Determination of Fair Market Value in its entirety and
replace with the following:
B. Determination of Fair Market Value
For purposes of this Paragraph 28, the "then-current fair market value' determination
shall be made in the manner set forth in Paragraph 45.
8. Insert new Paragraph 45 — Termination Fee for Non-Renewal by County
45. Termination Fee for Non-Renewal by County
In the event that COUNTY voluntarily elects not to renew the Agreement for the 15-year
renewal term specified in Paragraph 2 — Term of the Agreement for any reason not
specifically addressed in Paragraph 27 — Default By Concessionaire — Remedies or
Paragraph 28 — Default and Termination of the Agreement, COUNTY agrees to pay a
termination fee to CONCESSIONAIRE equal to 90% of the then-current fair market
value of (1) the improvements specified in Paragraph 17.8 — Improvements; (ii) all
inventory including non-obsolete/non-perishable store inventory and fuel inventory, ; and
(iii) all other personal property necessary for COUNTY'S operation of the COMPLEX.
The then-current fair market value shall be determined by an appraiser agreed upon by
both of the PARTIES. or if the PARTIES cannot agree on an appraiser, each PARTY
shall hire its own appraiser to value the above-described property. Costs of appraisals
shall be shared by the PARTIES equally, if the appraisals are within 10% of one
another, the fair market value shall be the average of the two appraisals. If the
difference in the appraisals is more than 10%. the PARTIES shall make a good- faith
afternot to agree on a compromise fair market value. If a compromise cannot be
reached, the matter will be submitted to mediation pursuant to Paragraph 29 — Dispute
of Resolution.
DATED this I c.;,. day of /\4 art'. h 200a.
MAFiCOPA COUNTY LAKE PLEASANT MARINA
BC -RD OF SUPERVISORS PARTNERS, LLP
7V/ / 1 /1 /
A0 i at /e0-e--4,4
Cha man Date Date
k
D te
ATTEST
MAR 1 2 2008
----01.91k-15f the BrO-Fard iirif ate
Approved as to Form:
•
Deputy rkunty .Aitorney Date
1..44.r.)496,c,
separately) published is Revised C.1 (Exhibit
(REVISED) C.1 EXHIBIT
5%
at
calculate(
be
2.5% 3% 4% will
at at at
2% calculated calculated calculated at 5% $6,0130,000
follows• at
calculated be be be calculated than
as will will will
Fee be greater
Total revenue be will $4,499,999 $5,999,999 $7,999.999 will
revenue
Add') 03/31/41 03/31/40 03/31/39 03/31/38 03/31/37 03/31/36 03/31135 /34 I 03/31/33 03/31/32 03/31/31 03/31/30 03/31/29 03/31/28 03/31/27 03/31/26 03/31/25 03/31/24 03/31/23 03/31/22 03/31/21 03/31/20 03/31119 03/31/18 03/31/17 03/31/16 03/31/15 03/31/14 03/31/13 03/31/12 03/31/11 03/31/10 03/31/09 03/31)08 gross of $3,499.999 to to to $8,000,000
Date Due 03(3 contract,
is percentage to $3,500,000 $4,500,000 $6,000,0110 than
Due (22,500) (22,500) $0 the
Addl a from from from from greater of year
1 as
Min Due 01/02/40 01/02/39 01/02/38 01/02/37 01/02/36 01/02/35 01/02/34 01/02/33 01/02/32 01/02/31 01/02/30 01/02/29 01/02/28 01/02/27 01/02/26 01/02/25 01/02/24 01/02/23 01/02/22 01/02/21 01/02/20 01/02/19 01/02/18 01/02/17 01/02/16 01/02/15 01/02/14 01/02/13 01/02/12 I 01/02/ 01/02/10 01/02/09 01/02/08 01/02/07 01/02/06 calculated revenue revenue revenue revenue revenue 21st
Dale is on on on on on the
is fee fee fee fee fee with
m 144.240 144,240 144,240 144.240 144,240 144,240 144,240 144,240 144,240 144,240 144.240 144.240 144.240 144,240 128,064 128,064 128,064 128,064 128,064 128,064 128,064 128,064 128,064 128,064 95.000 90.000 85.000 80.000 75,000 65.000 60.000 55,000 22,500 22,500 3,950,000 Fee tolal total total total total
Beginning
Total The The The The The
(Revised) Percentage
utal 1 Fee last.
C.1 or 5% and mos)
Exhibit >8Mil 21 Yr >6Mil first (6
4% the
except agreement Concessionaire
to 6 8Mil
3% year, BOR 12/1/06
to each with after of fault
4.5 6Mil of
2.50% 12/7/05 12/31 concurrent until not
to 35 4.5M11 Signed to permitted occuiled
Ill ends
Mil 2"/0 runs year not delays
to 0 3.5 Notes: Management Year Slips
2040 contract Wet ConsRuction
Annual Revenue 28, *Special Use Conhad Last 544
June 1. 2 3. 4. 5.
2040 2039 2038 2037 2036 2035 2034 2033 2032 2031 2030 2029 2028 2027 2026 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006
Fiscal Year Dale
Term. 35 34 33 32 31 30 29 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Contract Year Initial