CMCA WITH KONA ICE WEST VALLEY.PDF

Maricopa County
Parks and Recreation
Commercial Management Concessions Agreement
Between
Maricopa County
And
Kona Ice West Valley
To Manage, Operate and Maintain a Commercial
Concession within the
Maricopa County Regional Park System
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TABLE OF CONTENTS
Cover Page 00
Table of Contents 01
Recitals 04
Agreement. 04
1. General Terms 04
1.1 Scope 04
1.2 Operational Area 05
1.3 Other Concession Activities 05
1.4 Annual Pass 05
2. Term and Termination 05
2.1 Effective Date 05
2.2 Contract Year 05
2.3 Term and Renewal 05
2.4 Ownership of Property and Equipment upon Expiration or Termination ... 06
2.5 Termination due to Conflict of Interest 06
2.6 Termination for Cause 06
2.7 Termination by the Concessionaire 07
2.8 Hold Over 07
3. Accounting and Fees 07
3.1 Accounting Records 07
3.2 Fee and Revenue Reporting 08
4. Services and Facilities 09
4.1 Services and Facilities 09
4.2 Performance Standards 09
4.3 Operation of Similar Concessions 09
4.4 Operating Season 09
4.5 Emergency Evacuation 10
5. Operations, Maintenance, Improvement, Construction and Utilities 10
5.1 Operations ... 10
5.2 Maintenance 10
5.3 Improvements and Construction 10
5.4 Utilities 10
5.5 Condition of Property... 10
5.6 Environmental Compliance 11
6. General Provisions 12
6.1 Indemnification and Insurance 12
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Table of Contents (Continued)
6.2 Default, Insolvency, Remedies... 12
6.3 Assignment 15
6.4 Park Closure 15
6.5 Compliance 15
6.6 Public Access 16
6.7 Accident Reporting 16
6.8 Concession Site Occupancy 16
6.9 Advertising and Media Releases 16
6.10 Notices, Current Addresses and Points-of Contact 17
6.11 Equal Opportunity Employment Requirements 18
6.12 Immigration Reform Act of 1986 (I.R,C.A.) 18
6.13 Employer Sanctions Law 18
6.14 Verification Regarding Compliance with A.R.S. §§ 35-391.06 and
35-393.06, Business Relations with Sudan and Iran. 18
6.15 Taxes 19
6.16 Covenants against Contingent Fees 19
6.17 Organization - Employment Disclaimer 19
6.18 Waiver 20
6.19 Agent, Employees, Contractors, Subcontractors 20
6.20 Suspension and Debarment and Executive Orders 12549 and 12689 20
6.21 Consents and Approvals 21
6.22 Further Assurances; Cooperation 21
6.23 No Third Party Beneficiaries 21
6.24 Right of Entry 21
7. Entire Agreement; Modification. 21
8. Attorney Fees 22
9. Severability 22
10. Force Majeure 22
11. Authority 22
12. Legal Effect of the Agreement 22
13. Delegation of Authority 22
14. Representation and Warranties of County. 22
15. Counterparts 23
16. Time is of the Essence 23
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Table of Contents (Continued)
Exhibit 1.1 — Regional Park System 25
Exhibit 3.2.1 — Fee Reporting and Payment Schedule 27
Exhibit 3.2.2 — Attendance and Revenue Statement 29
Exhibit 4.1 — Services and Facilities 30
Exhibit 4.1.1 — Products and Services Authorized to be Dispensed 32
Exhibit 5.1.3 — Operational Constraints and Requirements 35
Exhibit 6.5 — Park Rules 36
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Commercial Management Concessions Agreement
Between
Maricopa County
And
Kona Ice West Valley
For the Management, Operation and Maintenance of a Commercial Concession within the
Maricopa County Regional Park System
This Commercial Management Concessions 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,") and Kona Ice West Valley, (hereinafter referred to
as "Concessionaire"). The County and Concessionaire are collectively referred to as "Parties" or
individually as a "Party."
RECITALS
WHEREAS, 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 provisions of the Maricopa County Parks and Recreation Department Park
Rules ("Park Rules") are hereby incorporated herein and made a part of this Agreement; and
WHEREAS, pursuant to the Land Patents or management rights, the County is authorized
to enter into direct agreements with Concessionaire to manage, operate and maintain a
commercial concession within the Maricopa County Regional Park System ("System); and
WHEREAS, the County believes the public interest can best be served by contract
operation of the Concession lying within the areas known as the Maricopa County Regional
Park System; and
WHEREAS, the Parties agree the intent of this Agreement is solely for the operation,
management and maintenance of the Concession described within this Agreement and is not
intended to convey any interests in any property rights.
AGREEMENT
NOW THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements hereinafter contained, the County and the Concessionaire agree as follows:
1. General Terms.
1.1 Scope
The County hereby grants the Concessionaire the right to manage, operate, and
maintain a food concession ("Concession") within the Maricopa County Park System
("Park System"), subject to the terms of this Agreement. For purposes of this
Agreement, the Park System consists of the following parks: Cave Creek Regional
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Park, Estrella Mountain Regional Park, Lake Pleasant Regional Park, McDowell
Mountain Regional Park, San Tan Mountain Regional Park, Usery Mountain
Regional Park and White Tank Mountain Regional Park. (See Exhibit 1.1 —
Regional Park System) Proposed changes or modification to the Concession as
stated in this Agreement will be concurred with by County in writing.
1.2 Operational Area.
The Park Supervisor will coordinate with the Concessionaire as to the area of the
Park where the Concession will be operated from. Site selection will consider factors
including, but not limited to, required facilities needed to support operations; other
activities or concessions during the same period; the nature of the event to be
supported, etc.
1.3 Other Concession Activities.
The Concessionaire shall be restricted to Concession activities as stated in this
Agreement. No changes or modifications to the Agreement will be made unless
authorized by the County in writing.
1.4 Concessionaire Annual Pass
A Concessionaire Annual pass will be issued in conjunction with this agreement .
The pass is restricted for business use only; using the pass for any reason beyond
business operations may result in revocation of privileges, including termination of
your contract.
One pass will be issued for each Concession contract free of charge, additional
passes (i.e. tour guides) will be $ 3.00 each. The pass(es) will expire at the end of
your contract period. Provided you remain in good standing, the pass will remain
valid as long as you are an approved vendor with Maricopa county Parks and
Recreation.
2. Term and Termination.
2.1 Effective Date.
The effective date of this Agreement will be from the date approved by the Maricopa
County Board of Supervisors (the "Effective Date").
2.2 Contract Year.
Contract Year 1 of this Agreement will be from the Effective Date through December
31, 2015. Subsequent Contract Years will be from January 1 st through December
31st.
2.3 Term and Renewal.
The term for this Agreement will be for a period from the Effective Date through
December 31, 2015. (the "Term"). Beginning on January 1, 2016, this Agreement
shall automatically renew for ten (10) additional terms of one (1) year each
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("Renewal") unless either Party gives prior notice not to renew to the other Party on
or before October 1 st of the ending Contract Year of its intent not to enter into the
Renewal for the next Contract Year and, if such notice is given, the Agreement shall
expire on December 31 st of the respective Contract Year. Each Renewal shall
continue in full force and effect for the period commencing January 1 st of the new
Contract Year through December 31 st of the respective Contract Year. All terms and
provisions of this Agreement shall remain in full force and effect throughout each
Renewal. 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 giving notice and not entering into a Renewal.
2.4 Ownership of Property and Equipment upon Expiration or Termination.
2.4.1 Upon expiration, or termination, all property and equipment brought on to
the Concession Site by the Concessionaire in support of the Concession
will be removed from the Site within a period of forty eight (48) hours and
the site cleaned of all garbage and debris and restored to a condition
acceptable to the respective Park Supervisor unless otherwise authorized,
in writing, by said Park Supervisor. Any property or equipment of the
Concessionaire not removed within said forty eight (48) hour period shall be
deemed to have been abandoned by the Concessionaire and the County
may use it or dispose of such property or equipment in any fashion it may
deem desirable. The Concessionaire shall be solely responsible for paying
any and all reasonable costs incurred by the County to remove any
property, equipment, garbage or debris required to be removed by the
Concessionaire hereunder which the Concessionaire fails to remove within
the time herein described.
2.4.2 The Concessionaire will be required to restore any modifications to existing
park utilities, buildings, roads, parking lots and other infrastructure to its
original condition upon occupation of the Site within forty eight (48) hours of
expiration or termination of the Agreement. Any restoration not completed
within forty eight (48) hours of expiration or termination of the Agreement
shall permit the County to complete the required actions. The
Concessionaire shall be solely responsible for paying any and all
reasonable costs incurred by the County.
2.4.3 The Concessionaire, upon expiration or termination, will retain ownership of
all personal property and equipment used in support of Concession
operations. No property or equipment will be stored with the boundary of
the Park throughout the term of the Agreement.
2.5 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,
2.6 Termination for Cause.
This Agreement may be terminated in whole or in part, at any time, by the County,
upon fifteen (15) days prior notice to the Concessionaire without any penalty or
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liability to the County. The Concessionaire and its employees, agents, officers,
directors, members, successors, or assigns hereby waive any and all rights to bring
any claim against the County or its employees, agents, officers, directors, members,
successors or assigns from or relating in any way to the County's termination of this
Agreement pursuant to this Section 2.6. Representative reasons for "cause"
include, but are not limited to:
2.6.1 New requirements make a continuation of the Agreement infeasible, i.e.
licensing or permitting requirements.
2.6.2 New Park operational or recreational requirements make a continuation of
the Agreement infeasible.
2.6.3 Unsatisfactory performance on the part of the Concessionaire or failure to
comply with the provisions of this Agreement. The Director of the Parks
and Recreation Department or his or her designee is hereby given the
authority to exercise the County's termination rights in the event any
payment required by this Agreement is late by more than sixty (60) days, or
if any report required by this Agreement is delinquent by more than sixty
(60) days.
2.7 Termination by the Concessionaire.
The Concessionaire may terminate this Agreement without cause by providing
advance written notice of the intent to terminate. The Concessionaire must provide
notice of termination in writing a minimum of thirty (30) days in advance of the
requested termination date. The notice of termination will be effective providing that
there are no outstanding fees or other outstanding duties of the Concessionaire. If
outstanding fees or requirements do exist, the termination will be effective until all
outstanding fees have been paid and the requirements are satisfied.
2.8 Hold Over.
Should the Concessionaire, with the consent of the County, continue to provide the
services described herein after the expiration of the Term, without having entered
into a subsequent Agreement of like nature and content to this Agreement, such
continued service shall be deemed a hold over of the licensed facility on a month-to-
month basis, with all of the terms and conditions of this Agreement to continue in full
force and effect. The term of the hold over shall not exceed a period of ninety (90)
days.
3. Accounting and Fees.
3.1 Accounting Records.
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 Concession. 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 once per Contract Year.
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3.2 Fee and Revenue Reporting.
3.2.1 Administrative Fees and Additional Fees.
During the term of this Agreement, the Concessionaire will pay the County
a fee ("Fee") as outlined in Exhibit 3.2.1 — Fee Reporting and Payment
Schedule.
3.2.2 Attendance and Revenue Statement.
An Attendance and Revenue Statement (a form mutually agreed upon
between the County and Concessionaire will be used to report participants
and gross revenue collected by the Concessionaire) to be issued prior to
making payment. (See Exhibit 3.2.1 — Fee Reporting and Payment
Schedule and Exhibit 3.2.2 Attendance and Revenue Statement)
3.2.3 Checks or money orders for fee payment will be made payable to: Maricopa
County Parks and Recreation Department. Credit Card payments can be
made by calling 602-506-2930.
3.2.4 *Fee payment and Income Statement will be mailed or ernailed to:
Maricopa County Parks and Recreation Department
Attn: Accounts Receivable
234 N. Central Avenue, Suite 6400
Phoenix, AZ 85004
emlymillerAmail.maricopa.gov
*Do not send fee payment or reports directly to the Park
3.2.5 Late Payment Fee.
A Late Payment Fee shall be ten percent (10%) of the amount due.
Invoiced late fees are due the County by the Due Date stated on the
invoice. Should the County's Due Date fall on a Saturday, Sunday or legal
holiday, then the Due Date shall be at the close of business on the first day
thereafter which is not a Saturday, Sunday or holiday.
3.2.6 Late Reporting Fee.
The County will invoice to the Concessionaire a Late Reporting Fee for
required reports not being received by the Due Date. (See Exhibit 3.2.1 —
Fee Reporting and Payment Schedule)
3.2.7 Failure to pay the 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.
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3.2.8 Audit Fee
County has the right to audit payment records received for timeliness and
accuracy a minimum of once per Contract Year. Any fees determined to be
due County will be invoiced to the Concessionaire with payment due within
twenty (20) days. 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.
4. Services and Facilities.
4.1 Services and Facilities.
The Concessionaire is required to provide the services, facilities and amenities
provided in Exhibit 4.1 - Services and Facilities unless precluded by events of
Force Majeure (defined in Section 10). Changes from Exhibit 4.1 — Services and
Facilities, as published, shall require prior written approval of the County.
4.2 Performance Standards.
The Concessionaire shall furnish services as stated in this Agreement in a diligent,
professional and creditable manner satisfactory to the County in compliance with all
applicable statutes, laws, ordinances, rules and regulations. Evaluations will be
made by the Park Supervisor of the quality of operation of the Concession; the
Contract Administrator for Maricopa County Parks and Recreation Department is
responsible for audits, a minimum of one time per Contract Year, of the Agreement
to ensure compliance with all terms of this Agreement and if areas are determined to
be deficient, these areas will be identified to the Concessionaire for correction. The
Concessionaire shall give full cooperation to the County in this evaluation process.
Failure to correct deficiencies will result in default on the part of the Contractor of
which Section 6.2 will apply.
4.3 Operation of Similar Concessions.
4.3.1 The County may operate or permit the operation of similar concessions that
offer "like" services throughout the Parks System. At the option of the
County, similar concessions may be operating during the same event.
4.3.2 The County does not guarantee the Concessionaire any minimum number
of events throughout the Contract Year or any guaranteed revenue amount
throughout the Contract Year.
4.4 Operating Season.
The intent is that the Operating Season will be three hundred sixty five (365) days
per year, seven (7) days per week in support of scheduled events or as agreed upon
by the Parties.
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4.5 Emergency Evacuation.
The Concessionaire will be required to take direction from the Park Supervisor in
event of emergency evacuation. In event of evacuation, items needed to support the
Concession may be directed to remain on-site; the County will not be liable for any
loss or damage incurred.
5. Operations, Maintenance, Improvements, Construction and Utilities.
5.1 Operations.
5.1.1 The Concessionaire is responsible for all operational costs associated with
the Concession.
5.1.2 The Concessionaire shall be required, at Concessionaire expense, to
obtain all required permits and licenses necessary for any planned
operations. This is to include all Health Permits.
5.1.3 Operational Constraints and Requirements. (See Exhibit 5.1.3 —
Operational Constraints and Requirements)
5.2 Maintenance.
5.2.1 The Concessionaire is responsible for all maintenance costs associated
with the Concession.
5.2.2 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.
5.2.3 The Concessionaire agrees to maintain the Concession Site, property and
equipment so that there is a neat, presentable appearance at all times.
5.3 Improvements and Construction.
No site improvements or construction will be completed by the Concessionaire that
will be permanent in nature or that will require formal planning and permitting.
Temporary structures, i.e. shade structures, tables, etc. will require the approval of
the Park Supervisor and will be removed upon completion of each day's activity
unless otherwise agreed to by the Park Supervisor.
5.4 Utilities.
The County does not agree to provide any parking, water or utilities to the
Concessionaire beyond what is currently available to users of the Park. The County
will not provide or relocate restroom facilities for use by the Concessionaire beyond
what is currently available to users of the Park.
5.5 Condition of Property.
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The Concessionaire agrees to accept the property on which the Concession will be
operated in its condition as of the Date of Occupation, "as is". The County does not
imply or provide any warranty with respect to the physical aspects of the operation
site except as set forth herein. "Date of Occupation" is defined as the date the
Concessionaire physically occupies the operation site. In addition, the
Concessionaire acknowledges that conditions and availability of portions of the Park
are subject to change due to changing water levels, scheduled activities, safety
considerations and other factors. County does not provide any warranty concerning
the availability of any portion of the Park.
5.6 Environmental Compliance.
5.6.1 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 and operation within the site where the Concessionaire
equipment is stored or operated.
5.6.2 Management and proper disposal of all hazardous material is the
responsibility of the Concessionaire. The Concessionaire must keep
appropriate and required documentation relating to the management and
disposal of all hazardous material.
5.6.3 The Concessionaire will report to the County within twenty four (24) hours
of knowledge of any event or occurrence at the area where the Concession
equipment is stored or operated which may or does result in pollution or
contamination affecting lands, water or facilities owned or managed by the
County.
5.6.4 Waste water and other liquids generated as a result of Concessionaire
operation will be properly disposed of. Liquids will not be drained directly
onto the ground.
5.6.5 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 regulated substance under any applicable
federal, state, or local environmental laws, regulations, ordinances or
amendments thereto because of:
A. Any such substance that came to be located on the site where the
Concession equipment is operated due to the Concessionaire's use or
occupancy of the site after occupation of the site; or
B. Any release, threatened release or escape of any substance in, on,
under or from the site where the Concession equipment is operated to
the extent that it is caused by any willful conduct, action or negligence
of the Concessionaire.
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6. General Provisions.
6.1 Indemnification and Insurance.
6.1.1 Indemnification.
A. In addition to the • indemnification provisions provided for
elsewhere in this Agreement, the Concessionaire shall indemnify
and hold harmless the County, its departments, agencies, officers
and employees, from and against all claims, demands, judgments,
actions, settlements, liens, penalties, damages, losses, injuries,
costs and expenses, including attorney's fees and court costs and
court costs by third parties in connection with construction, use,
operation, expansion and maintenance of facilities at the
Concession Site.
B. 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 sell/ices 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.
C. The Concessionaire agrees to indemnify and hold harmless the
County, its departments, agencies, officers and employees, from
and against any and all 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.
6.1.2 Insurance.
The Concessionaire shall maintain the following insurance coverage:
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A. General liability insurance: One million dollars ($1,000,000) per
occurrence; Two million dollars ($2,000,000) per aggregate.
B. Additional insured status with an endorsement as broad as ISO
Additional Insured Endorsement CG20101185.
E. Vehicle liability: Five hundred thousand dollars ($500,000)
combined single limit for all vehicles.
F. Statutory workers' compensation and employer's liability of five
hundred thousand dollars ($500,000) per accident, five hundred
thousand dollars ($500,000) per disease and five hundred
thousand dollars ($500,000) disease policy limits.
G. Waiver of subrogation/recovery against the County to be included
in all policies.
H. Coverage must include environmental clean-up unless
documentation is provided by the Concessionaire that this is not
available or feasible.
6.1.3 Additional Requirements.
The County and the Bureau of Reclamation, ("BOR") will be named as
"additional insured" under all policies of insurance with the exception of
Worker's Compensation policy. Copies of all insurance policies or
certificates thereof will be made available to the County and BOR upon
request. Copies of the Certificate of Insurance (C01) will be furnished
annually to the County and BOR. The County and BOR will be given thirty
(30) days advance written notice of cancellation of a policy, non-renewal,
or change in coverage or limits
6.1.4 Concessionaire Property Losses.
The Concessionaire assumes all risk of loss and shall be responsible for
any and all losses to the Concessionaire's property and all
Concessionaire improvements within the site where the Concession
equipment is stored or operated. Loss to the property 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.
6.2 Default, Insolvency, Remedies.
6.2.1 Default by Concessionaire.
It shall be a default and breach of this Agreement if any of the following
shall occur at any time during the Term:
A. The Concessionaire shall fail to make payment of any monetary
sums specified to be paid by the Concessionaire under this
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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.
B. 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 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; or
C. if (1) a 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 (ii) 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 (iii) the Concessionaire shall make any general
assignment for the benefit of creditors, or (iv) all of the
Concessionaire's assets located at the Concession Site or interest
in the Concession is subjected to attachment, execution or other
judicial seizure.
6.2.2 County's Remedies on Default.
Upon default hereunder by the Concessionaire, the County shall be
entitled to exercise the following remedies:
A. 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 Concession and under this Agreement shall
terminate. Promptly after notice of termination, the Concessionaire
shall surrender and vacate the Concession Site, and the County
may re-enter and take possession of the Concession and eject all
parties in possession, or eject some and not others, or eject none.
Termination under this Section 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
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accruing against the Concessionaire. If the Agreement is
terminated in accordance with these provisions, the
Concessionaire hereby covenants to peaceably and quietly
surrender the Concession 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.
B. The County may sue for specific performance and/or exercise any
other remedy available to the County at law or in equity.
6.2.3 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 Section 6.2.3, the Concessionaire may terminate
this Agreement with ninety (90) days written notice to the County.
6.3 Assignment.
The Concessionaire may not assign or subcontract any of the Concessionaire's
rights or interests in the Agreement.
6.4 Park Closure.
The County reserves the right to close any area of the Park, including the area in
which the Concession is located and operated, when deemed necessary for public
safety and health purposes without any liability to the 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. The County may
establish limits of visitation at any portion of the area where the concession
equipment is store or operated, based on public health and safety, availability of
parking spaces, or any other reason deemed by the County to be in the public
interest, in the judgment of the County, without any liability to the 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.
6.5 Compliance.
The Concessionaire hereby agrees and shall comply with all applicable federal,
state, county and city statutes, laws, ordinances, rules, regulations and instructions,
including Maricopa County Parks and Recreation Department's rules and regulations
(attached as Exhibit 6.5 — Park Rules), in effect now or as may be amended or
added, which apply to the development, management, operation and maintenance of
the Concession and to keep fully informed of, and in compliance with, any changes
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or revisions thereto. The Concessionaire shall also pay all taxes, assessments, fees
and other expenses of any nature associated with the Concession. This Concession
will operate in full compliance with the Maricopa County Environmental Health Code
and all other applicable regulations.
Maricopa County has issued Policy A1515, Acceptance of Gifts by County
Employees is Prohibited. It has been Maricopa County's policy that employees may
not accept any gifts or favors that would lead toward favoritism or the appearance of
favoritism. Similarly, Arizona law prohibits County employees and members of
boards, committees, and commissions from receiving anything of value or any
compensation other than their normal salary for any service rendered in connection
with that person's duties with Maricopa County. (See A.R.S 38-505). Further, in
compliance with the Maricopa County Solicitation Policy #A1515, authorization for
Parks and Recreation Department Staff and Volunteers to accept guided trail
ride and other concessionaire opportunities for the purpose of education is allOwable.
upon advanced written authorization by the Director of Maricopa County Parks &
Recreation.
6.6 Public Access.
6.6.1 The Concessionaire may restrict public access within the Concession
during hours of operation and non-operation for reasons of security or
health and safety.
6.6.2 The Concession will be open to the public. No person shall be denied
use of the Concession because of race, sex, age, handicap, disability,
color, religion, sexual orientation or national origin. The Concessionaire
reserves the right to deny any person use of those portions of the
Concession when it reasonably believes that such use poses a direct
threat to the health or safety of others.
6.7 Accident Reporting.
The Concessionaire will immediately report to the County any event which results in
death or injury requiring medical transport or medical attention. Reporting will be to
the Park Supervisor or the Regional Superintendent in the Supervisor's absence. In
event an unsafe operation of the Concession is noted by the Park Supervisor or park
staff, operation will immediately be suspended until the risk or threat has been
resolved to the reasonable satisfaction of the Park Supervisor or park staff. Such
suspension will be without liability to the 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.
6.8 Concession Site Occupancy.
No equipment or property will be stored outside of the Concession Site.
6.9 Advertising and Media Releases.
The Concessionaire is responsible for handling Advertising and Media Releases as
they relate to this Agreement. This includes, but not limited to:
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6.9.1 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.
6.9.2 Advertisements, signs, circulars, brochures, letterheads and other media
or materials shall not portray a message beyond the scope of this
Agreement.
6.9.3 Signs or other advertising posted on County land outside the Concession
will be subject to the County's and any other applicable administrative
agency's 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.
6.9.4 The Concessionaire is not authorized to accept advertising from vendors
not located ("Outside Vendors") at the Park that desire to advertise their
respective business to visitors of the Concession.
6.9.5 Major Media Releases.
The Concessionaire will coordinate media releases with the County prior
to release. The Parks' Public Information Officer will receive a copy of all
press releases and media distribution.
6.10 Notices, Current Addresses and Points-of-Contact.
All 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 Rd
— Unit Operations Center
Morristown, AZ 85342
928-501-9211
E-Mail: emlymiller@mail.maricopa.gov
For the Concessionaire: Kona Ice West Valley
Geoff Roehrick
18121 W. Minnezona Avenue
Goodyear, AZ 85395
Telephone: 602-552-2429
E-Mail: konawv@kona-ice.com
dmroehrick(&,kona-ice.com
Notifications required to be made to the Park Supervisor will be made telephonically
at the phone number listed in Exhibit 1.1 — Regional Park System.
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6.11 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.
6.12 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.
6.13 Employer Sanctions Law.
The Concessionaire warrants that it is in compliance with A.R. S. § 41-4401 and
further acknowledges:
6.11.1 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, Subsection A;
6.11.2 That a breach of a warranty under Subsection A above, shall be deemed
a material breach of the Agreement that is subject to penalties up to and
including termination of the Agreement;
6.11.3 That the contracting government entity retains the legal right to inspect
the papers of any Contractor or subcontractor employee who works on
the Agreement to ensure that the Contractor or subcontractor is
complying with the warranty provided under Subsection A above and that
the Contractor agrees to make all papers and employment records of said
employee(s) available during normal working hours in order to facilitate
such an inspection;
6.11.4 That nothing herein shall make any Contractor or subcontractor an agent
or employee of the contracting government entity.
6.14 Verification Regarding Compliance with A.R.S. §§ 35-391.06 and 35-393.06,
Business Relations with Sudan and Iran.
6.14.1 By entering into the Agreement, the Concessionaire certifies it does not
have scrutinized business operations in Sudan or Iran. The
Concessionaire shall obtain statements from its subcontractors certifying
compliance and shall furnish the statements to the Procurement Officer
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upon request. These warranties shall remain in effect through the term of
the Contract.
6.14.2 The County may request verification of compliance for any Contractor or
subcontractor performing work under the Agreement. Should the County
suspect or find that the Contractor or any of its subcontractors are not in
compliance, the County may pursue any and all remedies allowed by law,
including, but not limited to: suspension of work; termination of the
Agreement for default; and suspension and/or debarment of the
Contractor. All costs necessary to verify compliance are the responsibility
of the Contractor.
6.15 Taxes.
6.15.1 The Concessionaire shall pay taxes of whatever character which may be
levied or charged upon:
A. The Concessionaire's rights under this Agreement; or
B. Upon the Concessionaire's furniture, equipment or other property;
or
C. Upon the Concessionaire's operations under this Agreement.
6.15.2 No leasehold or other real property interest is being created or conveyed
upon which tax consequences may exist.
6.16 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, the County shall have the right, as its exclusive remedy, to recover the
full amount of such commission, percentage, brokerage or contingency fee.
6.17 Organization — Employment Disclaimer.
6.17.1 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.
6.17.2 The Parties agree that no persons 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 persons.
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6.17.3 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.
6.18 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.
6.19 Agent, Employees, Contractors, Subcontractors.
The Concessionaire will ensure full compliance with all applicable terms 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.
6.20 Suspension and Debarment and Executive Orders 12549 and 12689.
6.20.1 The March 2004 OMB Circular A-133 Compliance Supplement pertaining
to the U.S.C. Code has been changed. Before November 26, 2003,
contractors receiving individual awards for one hundred thousand dollars
($100,000) or more and all sub-recipients have to certify that the
organization and its principals were not suspended or debarred. As of
November 26, 2003, when the County enters into a covered transaction
with an entity (contracts for goods and services expected to equal or
exceed twenty five thousand dollars ($25,000) and sub-awards to sub-
recipients), the Federal Entities are prohibited from contracting with or
making sub-awards under covered transactions to Parties that are
suspended or debarred or whose principals are suspended or debarred.
6.20.2 Effective November 26, 2003, when a Non-Federal Entity (the County)
enters into a covered transaction with an Entity at a lower tier, the Non-
Federal Entity (the County) must receive verification that the Entity is not
suspended or debarred or otherwise excluded. As such, each prospective
concessionaire must submit a certification (e.g. certified letter) within sixty
(60) days of award that it is not currently under such suspension or
debarment. Requirements for suspension and debarment are contained
in the Federal codification of the government-wide non-procurement
debarment and suspension common rule, which implements Executive
Orders 12549 and 12689, Debarment and Suspension.
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6.21 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.
6.22 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 Pates reflected in this Agreement.
6.23 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.
6.24 Right of Entry.
6.24.1 There is reserved to the County and its successors or agents, the right of
the officers, agents, employees, licensees, and Permittee's, 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 Concession.
6.24.2 The County will notify the Concessionaire of any unsatisfactory condition
relative to the management, operation and maintenance of the
Concession. The Concessionaire shall take immediate action to correct
such conditions at the Concessionaire's expense.
7. Entire Agreement; Modification.
This Agreement, together with any supplemental provisions 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
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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.
8. 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.
9. Severability.
lf 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.
10. 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").
11. 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.
12. Legal Effect of the Agreement.
This Agreement is terminable only in accordance with the express and specific provisions
hereof. This Agreement does not create a leasehold estate and the County shall at all times
remain the title holder of the real property.
13. Delegation of Authority.
The Department Director, Maricopa County Parks and Recreation Department, is authorized
to conduct required administrative actions as may be necessary to carry out the spirit and
intent of the Agreement.
14. Representation and Warranties of County.
14.1 The County represents and warrants to the Concessionaire that the following
statements are true, correct and complete:
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14.1.1 The County has complete and full authority to execute this Agreement
and to grant to the 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;
14.1.2 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 Concession except as
disclosed in this Agreement.
14.2 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.
15. 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.
16. 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 fail 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.
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DATED this day of 2014.
MARICOPA COUNTY KONA ICE WEST VALLEY
BOARD OF SUPERVISORS
'6172 1---c-0
Chairman Date By: Date
ATTEST
Clerk of the Board Date
Approved as to Form:
Attorney for Maricopa County Date
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EXHIBIT 1.1 — REGIONAL PARK SYSTEM
Nfltricop COOnty
RegionAl 1rr Svrefni
.•..•011(e ...• • . t
..•Rddria • Alin Mirk Lroiranm W
, .
Spur Cro5 Ranch! 5 0 5 10 KI.Dr1011M
L:ofilservatioll.Atra
0 5 10 MF
01.1iffrifIr • • m1.019.1
Cle-1,ta
Ca,e Creek
Adobe Dan Regional Park
iFiiie Regional P41(
RPg1r1nI PA ek-
] fttRF
Hft
liGf; ery mount]
trr.:111 1 1.7-( I1.5•1), . • I 4j,LIL Regional Park
PAP:1, ,r• •
,.C1r1kr.I
Estrella Mountain
Rc-gional Park.
tt! iniccirracbEntr
Neloinbin
Mancopa County
RigtaL Park
ark', ?..;:ork-ation
25
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Exhibit 1.1 — Regional Park System (Continued)
Parks Considered as part of this Agreement:
Cave Creek Regional Park
Estrella Mountain Regional Park
Lake Pleasant Regional Park
McDowell Mountain Regional Park
San Tan Mountain Regional Park
Usery Mountain Regional Park
White Tank Mountain Regional Park
Park Notification Numbers:
Cave Creek Regional Park: 623-465-0431
Estrella Mountain Regional Park: 623-932-3811
Lake Pleasant Regional Park: 602-372-7460 x 204
or 928-501-1710
McDowell Mountain Regional Park: 480-471-0173
San Tan Mountain Regional Park: 480-655-5554
Usery Mountain Regional Park: 480-984-0032
White Tank Mountain Regional Park: 623-935-2505
*City Jurisdiction for Possible Business License:
Cave Creek Regional Park: County
Estrella Mountain Regional Park: Goodyear/Avondale
Lake Pleasant Regional Park: Peoria
McDowell Mountain Regional Park: County
San Tan Mountain Regional Park: County
Usery Mountain Regional Park: County
White Tank Mountain Regional Park: County
*The Concessionaire is required to obtain all required licenses and permits and payment
of required fees in order to conduct business in the respective Parks. The above listing
is the possible city that may have such licensing/permitting jurisdiction.
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EXHIBIT 3.2.1 — FEE REPORTING AND PAYMENT SCHEDULE
Concessionaire will pay County the following fees according to the payment schedule listed
below.
Fee Amount
Administrative Fee (Initial and Each Amendment) $150.00
Concession Fee 20% of Gross
Revenue
CMCA Annual Pass (one free) — Each Additional Pass Yearly $3.00 each
The Administrative Fee, by definition, is the fee assessed by the County for the initial
development of the Agreement; subsequent Amendments and management of the
Agreement. The Administrative Fee is payable upon the Concessionaire signing
the initial Agreement or Amendments to Agreement, and prior to the Agreement
being presented to the Maricopa County Board of Supervisors ("Board") for
execution. If for some reason the initial Agreement or Amendment is not executed by
the Board, the Administrative Fee will be refunded to the Concessionaire; otherwise, the
Administrative Fee is non-refundable.
The Concession Fee, by definition, is the fee assessed by the County to offset impact to
the Park and create funds to be applied towards Park operations. Revenue Statements
and Payments are due the County according to the fee payment schedule outlined
below. (See Exhibit 3.2.1 — Fee Reporting and Payment Schedule) Revenue
Statements can be mailed or emailed and received no later than date on schedule.
Parks will issue an invoice for fees to be paid and will email invoice. Fees can be paid
by Credit Card by calling 602-506-2930, after generation of an invoice by Parks. By
definition, Gross Revenue is all revenue collected in support of the Concession
operation with no authorized deductions.
A Concessionaire Annual pass will be issued in conjunction with this agreement. The
pass is restricted for business use only; using the pass for any reason beyond business
operations may result in revocation of privileges, including termination of your
contract. One pass will be issued for each Concession contract free of charge,
additional passes (i.e. tour guides, instructors) will be $ 3.00 each yearly. The
pass(es) will expire at the end of your contract period. Provided you remain in good
standing, the pass will remain valid as long as you are an approved vendor with
Maricopa County Parks and Recreation.
The Concessionaire is required to pay the established overnight camping fee for
camping when incorporated into Concession operations.
Participants will be required to pay the established Park Entrance Fee for vehicles
driven into the Park unless in possession of a valid annual pass for the respective Park.
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Exhibit 3.2.1 — Fee Reporting and Payment Schedule (Continued)
Fee Reporting and Payment Schedule.
Period Date Due County
July 1st — September 30th Reports Due: October 10th
Fees Due: October 15th
October 1 st — December 31 5t Reports Due: January 10 1h
Fees Due: January 151h
January 1st — March 31 st Reports Due: April 10th
Fees Due: April 15 1h
April 1 st — June 301h Reports Due: July 10 1h
Fees Due: July 15th
There will be a Late Reporting Fee Penalty for reports not received by the Due Date stated
above. The Late Reporting Fee Penalty, per occurrence, is as outlined below. The County will
invoice for the Late Reporting Fee.
Days Late Late Fee Penalty
1-15 $50.00
16 — 31 $100.00
32 — 60 $150.00
61+ Termination Proceedings
If the Agreement is terminated during a reporting period, payment is due the County within thirty
(30) days of termination date.
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.
There will be a ten percent (10%) late payment fee of the amount due if payment is not received
by the Due Date for Concession Fees.
*Preferred payment method of the Application Fee and subsequent Concession Fees is check.
Checks will be made payable to: Maricopa County Parks and Recreation Department. Payment
will be mailed to:
Maricopa County Parks and Recreation Department
Attn: Accounts Receivable
234 N. Central Avenue, Suite 6400
Phoenix, AZ 85004
*Do not make payment directly to the Park.
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EXHIBIT 3.2.2 —REVENUE STATEMENT
CONCESSIONAIRE NAME: KONA ICE WEST VALLEY
*Gross Revenue
Event Date Collected
Total Amount Due Parks
(20% of Gross Revenue)
Submission of the Revenue Statement is in accordance with the reporting timelines as outlined
in Exhibit 3.2.1 — Fee Reporting and Payment Schedule.
Revenue Statements will be emailed to: emilymillerAmail.maricopa.gov . Or mailed to:
Maricopa County Parks and Recreation Department
Attn: Accounts Receivable
234 N. Central Avenue, Suite 6400
Phoenix, AZ 85004
Payments can be made by credit card after invoice is generated by Parks, by calling 602-
506-2930.
If no events were held or revenue generated during the Reporting Period, the
Concessionaire is still required to submit the Attendance and Revenue Statement;
however indicate "No Events Held or Revenue Generated During this Reporting Period".
Do not send Attendance and Revenue Statements directly to the Park.
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EXHIBIT 4.1 —SERVICES AND FACILITIES
Exhibit 4.1 is designed to identify required services, facilities, amenities or maintenance
requirements for the Concession. There will be no additional services or products dispensed
other than stated in this Exhibit.
Concession Description:
Sell food, pre-packaged snack and non-alcoholic beverages within the Maricopa County
Regional Parks from a food vending trailer/cart to be pulled on-site for each event and removed
nightly and at the end of the event. Operation of the Concession on the waters of Lake
Pleasant from the deck of a pontoon boat or similar vessel is authorized with restrictions to the
Scorpion Bay Marina area for the purposes of selling food. Food and beverages will be limited
to the items listed in Exhibit 4.1.1 — Products and Services Authorized to be Dispensed.
1. The Concession can be located in the areas designated by the respective Park Supervisor
at the following Parks: Cave Creek Regional Park, Estrella Mountain Regional Park, Lake
Pleasant Regional Park, McDowell Mountain Regional Park, San Tan Mountain Regional
Park, Usery Mountain Regional Park and White Tank Mountain Regional Park. The
Concessionaire shall be responsible for coordination of events with each respective Park
Supervisor. Concessionaire must contact the Lake Pleasant Supervisor to coordinate
location of launch and daytime trailer storage for pontoon boat.
2. The Concessionaire is responsible for obtaining all required licenses, permits and
certificates; The Concessionaire is responsible for the filing of all tax-related documents
and payment of fees thereof.
3. Services Overview (Concept):
A. Service to be provided and period on-site: Sell food and beverage items listed in
Exhibit 4.1.1 — Food and Beverages to be Dispensed to patrons of the Park.
Concession set-up and operations will be restricted to the area designated by the
Park Supervisor, on land and water (via pontoon boat). The Concessionaire is
required to pay the Park Entrance Fee upon each entry to the Park unless in
possession of a valid annual pass for the respective Park.
Operation of the Concession on the waters of Lake Pleasant from the deck of a
pontoon boat or similar vessel is authorized. If so, the Concessionaire must be
properly licensed; have the required permits/certificates, including all required Heath
Permits; must be in compliance with U.S. Coast Guard standards; and will operate
only in areas authorized by the Park Supervisor or as otherwise directed by
representatives in authority, i.e. Maricopa County Sheriffs Office, Arizona Fish and
Game Department. Vehicle and trailer parking will be in a location authorized by the
Park Supervisor.
B. Product and Services Dispensed: See Exhibit 4.1.1 — Products and Services
Authorized to be Dispensed.
C. Supplies and Equipment to be brought on site: The Concessionaire is responsible for
all supplies and equipment necessary for conduct of the activities or Concession
operations.
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D. Proposed Site Improvements: None.
E. Utilities required to be provided by Parks: None. The Concessionaire is authorized
to operate a generator in support of concession operations; however, the generator
will be muffled and placed in a location mutually agreed upon between the
Concessionaire and the Park Supervisor. The generator will not be operated
between the hours of 10:00 pm and 6:00 am. The Concessionaire is responsible for
all operational and maintenance costs.
E. Additional Facilities required or to be provided by Parks: None.
F. Additional Amenities required or to be provided by Parks: None.
4. Park Support Requirements/Impact Fees:
A. Traffic Control Plan/Barricades/Traffic Cones: None.
B. Signage in Support of the Concession: None. The Park Supervisor may authorize
signage to be placed by the Concessionaire at Concessionaire expense. Signs or
other advertising posted on County land outside the Concession will be subject to the
County's and any other applicable administrative agency's 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.
C. Physical Space Required (Square Foot) for the Concession: No fixed space required.
5. Maintenance Responsibilities.
A. The Concessionaire is responsible for the providing of trash receptacles and the
removing of trash and receptacles at the end of the activities. The Concessionaire is
authorized to use trash receptacles provided by the Park for use by Park patrons.
B. Tables, eating areas, shaded areas, Concession area, etc. will be kept clean, neat
and sanitary at all times.
C. The Concessionaire, if authorized by the Park Supervisor, is authorized to set-up
temporary structures/canopies, not to exceed 10'x10', for use during the activities or
Concession operations. The Concessionaire will coordinate with the Park Supervisor
as to location. Temporary structures will be removed upon completion of the
activity or each day's operations unless otherwise authorized by the Park Supervisor.
The Concessionaire is responsible for proper staking, etc. to preclude the temporary
structure/canopy being blown down in event of wind or inclement weather. Stakes
will not exceed six (6) inches in length. The Concessionaire is required to identify
and obtain all necessary permits from the appropriate permitting agencies for use of
the temporary structures/canopies.
6. The Concessionaire shall comply with all requirements, applicable rules, guidelines and
standards pertaining to such areas as equipment maintenance, food storage, etc related to
the Concession.
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Exhibit 4.1 —Services and Facilities (Continued)
7. Restricted (Not Authorized) Services.
A. Sailing, fishing and pleasure boat/pontoon/houseboat rentals and sales.
B. Items currently identified or to be identified that through contractual arrangement
with the Scorpion Bay Marina, Maricopa County Parks and Recreation
Department concessions that would create unfair competition or that would be in
violation of said agreements. The intent of this restriction is to coordinate the
providing of recreational services and products not to unduly restrict. Desire of
the Concessionaire to introduce new recreational services or products will require
written approval of the Park Supervisor.
C. Sale of products containing alcohol.
D. Selling of food, on land or water, in the vicinity of Scorpion Bay Marina.
F. Snowballs/ Snow Cones are not to be sold at Lake Pleasant in the vicinity of
Desert Snow Shaved Ice.
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EXHIBIT 4.1.1 — PRODUCTS AND SERVICES AUTHORIZED TO BE DISPENSED
1. *Snowballs / Snow Cones
2. Pre-packaged candies, i.e. licorice rope, cotton candy, gum
3. Snacks, i.e. chips, pretzels, cookies,
4. Pre-packaged sweet treats; danish, donuts, cookies
5. Pre-packaged Ice Cream / Frozen Treats
6. Hot beverages
7. **Non-alcoholic iced beverages
8. **Water
9. **Energy drinks
* Snowballs/ Snow Cones are not to be sold at Lake Pleasant in the vicinity of Desert
Snow Shaved Ice.
**Will be dispensed in plastic, metal or paper containers — no glass containers will be
permitted.
Items are seasonal and may not be offered at every event.
Products and services to be dispensed will be restricted to the above. Additions will
require approval by the County.
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EXHIBIT 5.1.3 — OPERATIONAL CONSTRAINTS AND REQUIREMENTS
The following operational constraints and requirements apply to this Agreement. Items listed in
this Exhibit are in addition to constraints or requirements stated in other parts of the Agreement.
1 Concessionaire entrance into the Park will be through an area designated by the Park
Supervisor. The Park Entrance Fee and fee provisions as outlined in the Agreement will
prevail.
2. The County is not responsible for the providing of any security of the Concession Site.
3. The County is not responsible for the providing of telecommunication lines, fax lines or
any other communication support.
4. The Concessionaire will have access to Port-a-johns and restroom facilities that are
located throughout the Park. Park staffs will not relocate Port-a-johns from other areas
within the Park. The Permittee is not authorized to contract for additional Port-a-johns.
The Concessionaire is responsible for the providing of a source of water that may be
required which would be in addition to what is currently available within the Park. Park
personnel are not responsible for the providing of additional water in support of activities.
6. The Concessionaire is authorized to set-up temporary shade structures or canopies per
the terms and conditions as stated in the Agreement.
7 The Concessionaire is authorized to use a generator in support of concession
operations.
8. The Park will not provide additional trash containers in support of the Concession.
However, Parks staff will empty the trash containers, placed by Parks, on a schedule to
be determined by the Park Supervisor. Additional trash containers in support of the
Concession are the requirement of the Concessionaire.
9. 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.
10. The Concessionaire agrees to maintain the Concession equipment in a manner to
ensure safe operation for the guests.
11. The Concessionaire agrees to maintain the Concession area so that it presents a neat,
presentable, sanitary appearance at all times. The Concessionaire will ensure that all
garbage or debris left in the vicinity of the Concession area after the completion of event
is placed in an authorized container.
12. The Concessionaire's operations are restricted to the area designated by the Park
Supervisor.
13. The catering of food in support of Concessionaire activities is not authorized.
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Exhibit 5.1.3 — Operational Constraints and Requirements (Continued)
14. The selling or dispensing of products containing alcohol; i.e. beer, wine or liquor in
support of activities is not authorized.
15. The Concessionaire will coordinate with the Park Supervisor, per each visit, the area in
which to operate the Concession.
16. No equipment services or repairs are authorized on-site other than those necessary to
maintain the equipment used in support of this Agreement.
17. The Concessionaire is authorized to coordinate services currently provided by Parks, i.e.
Ranger Interpretative Programs.
18. The dispensing of product or the performance of services other than stated in Exhibit
4.1 —Services and Facilities or Exhibit 4.1.1 — Products and Services to be
Dispensed is unauthorized.
19. The Concessionaire is not authorized to use an amplified sound system in support of
concession operations.
20. The Concessionaire's vehicles and equipment will park only in areas designated by the
Park Supervisor. There will be no parking of vehicles or equipment off of designated
roadways or in the open desert or turf areas. There will be no overnight storage of
vehicles or equipment unless coordinated with the Park Supervisor.
21. The County is responsible for all Park infrastructure repair and maintenance unless the
Concessionaire's actions are determined to be negligent in the causing of required repair
or maintenance, if this occurs, the Concessionaire is responsible for said repair or
maintenance to restore the infrastructure to its condition upon the Concessionaire
occupying the area where the Concessionaire stores equipment and conducts
operations.
22. Operation of the Concession on the waters of Lake Pleasant from the deck of a pontoon
boat or similar vessel is authorized. If so, the Concessionaire must be properly licensed;
have the required permits/certificates, including all required Health Permits; must be in
compliance with U.S. Coast Guard standards; and will operate only in areas authorized
by the Park Supervisor or as otherwise directed by representatives in authority, i.e.
Maricopa County Sheriffs Office, Arizona Fish and Game Department. Vehicle and
trailer parking will be in a location authorized by the Park Supervisor.
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Exhibit 6.5 - Park Rules
Maricopa County Parks & Recreation Department
PARK RULES
Adopted August 13, 2003 by the Maricopa County Board of Supervisors
R-101 Definitions of 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. 1. 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 2. 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 3. 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 4. 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 IVIaricopa 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 5. 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 6. 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 7. 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
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Exhibit 6.5- 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, o perating
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-116 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 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
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