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Commercial Management Concessions Agreement Between Maricopa County And MD Ranch, LLC To Manage, Operate and Maintain a Commercial Concession within the Maricopa County Regional Park System 0 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC TABLE OF CONTENTS Cover Page …………………………………………………………………………………….. 00 Table of Contents ……………………………………………………………………………… 01 Recitals…………………………………………………………………………………………… 04 Agreement……………………………………………………………………………………….. 04 1. General Terms……………………………………………………………………………. 05 1.1 Scope ……………………………………………………………………………… 05 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 …………………………………………… 06 2.8 Holder Over……………………………………………………………………….. 07 3. Accounting and Fees…………………………………………………………………… 08 3.1 Accounting Records……………………………………………………………… 08 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…………………………………………………………………. 10 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……………………………………………………………………………… 11 5.5 Condition of Property……………………………………………………………. 11 5.6 Environmental Compliance……………………………………………………… 11 6. General Provisions………………………………………………………………………. 11 6.1 Indemnification and Insurance…………………………………………………... 12 1 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC Table of Contents (Continued) 6.2 Default, Insolvency, Remedies………………………………………………….. 13 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 2 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 – Revenue and Attendance Statement …………………………………… 29 Exhibit 4.1 – Services and Facilities ……………………………………………………… 30 Exhibit 4.1.1 – Products and Services to be Dispensed ………………………………… 32 Exhibit 5.1.3 – Operational Constraints and Requirements …………………………… 33 Exhibit 6.5 – Park Rules……………………………………………………………………….. 36 3 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC Commercial Management Concessions Agreement Between Maricopa County And MD Ranch, LLC 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 MD Ranch, LLC, (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: 4 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 1. General Terms. 1.1 Scope The County hereby grants the Concessionaire the right to manage, operate, and maintain an equestrian trail riding service (“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: San Tan Mountain Regional Park. Upon an above-satisfactory annual review by the County in January 2014, the County will allow Concessionaire to include one or more of the following as part of the Park Systems: Cave Creek Regional Park, Lake Pleasant Regional Park, McDowell Mountain Regional Park and, or Usery Mountain Regional Park. (See Exhibit 1.1 – Regional Park System) No changes or modifications to the Concession and this Agreement are allowed without the concurrence of the 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. 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 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. 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. 5 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC Contract Year 1 of this Agreement will be from the Effective Date through December 31, 2013. Subsequent Contract Years will be from January 1st 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, 2013. (the “Term”). Beginning on January 1, 2014, this Agreement shall automatically renew for ten (10) additional terms of one (1) year each (“Renewal”) unless either Party gives prior notice not to renew to the other Party on or before October 1st 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 31st of the respective Contract Year. Each Renewal shall continue in full force and effect for the period commencing January 1st of the new Contract Year through December 31st 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 Option. 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. 6 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 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, Bureau of Reclamation, 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 Holder 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 holder 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 holder over shall not exceed a period of ninety (90) days. 7 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 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 schedule as outlined in Exhibit 3.2.1 –Fee Reporting and Payment Schedule. By definition, the fee is defined as the payment due County (“Fee”). Fee Structure for this Agreement is the following: Administrative Fee; fee for Instructor Staff; and Park Entrance Fee for Participants per session. There are no other associated fees for this Agreement unless amended. 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) will accompany the fee 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. 3.2.4 *Fee payment and Revenue Statement will be mailed to: Maricopa County Parks and Recreation Department Attn: Accounts Receivable 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 *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. 8 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 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. 9 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 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 . 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 at the Concession Site. 10 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 5.4 Utilities. The County does not agree to provide any parking, water or other utilities or amenities to the Concessionaire beyond what is currently available to users of the Park. The County will not provide access to electricity. 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. The Concessionaire agrees to accept the property on which the Concession will be operated in its condition as of the date of each use, “as is”. The County does not imply or provide any warranty with respect to the physical aspects of the Concession Site except as set forth herein. 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 within the Concession. 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 Concession Site 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 unto the ground. 5.6.5 The Concessionaire shall protect, defend, indemnify and hold harmless the County and Bureau of Reclamation 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 Concession Site due to the Concessionaire’s use or occupancy of the Concession Site after occupation of the Concession Site in support of an event; or B. Any release, threatened release or escape of any substance in, on, under or from the Concession Site to the extent that it is caused by any willful conduct, action or negligence of the Concessionaire. 6. General Provisions. 11 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 Bureau of Reclamation, 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 services furnished by the Concessionaire, its contractors or subcontractors. If, because of any act or omission (or alleged act or omission) of the Concessionaire, any mechanic’s, materialman’s or other lien, charge or order for the payment of money shall be filed or recorded against the County (whether or not such lien, charge or order is valid or enforceable as such), the Concessionaire shall immediately notify the County. The Concessionaire will, at its own expense, cause the same to be canceled and discharged of record within thirty (30) days after the Concessionaire will have received notice of the filing thereof, or the Concessionaire may, within said period of time, furnish to the County a bond satisfactory to the County against said lien, charge or order, in which case the Concessionaire will have the right in good faith to contest the validity or amount thereof. 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: A. General liability insurance, products liability, liquor liability: One million dollars ($1,000,000) per occurrence; Two million dollars ($2,000,000) per aggregate. B. 12 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC B. Additional insured status with an endorsement as broad as ISO Additional Insured Endorsement CG20101185. C. Vehicle Liability: One million dollars ($1,000,000) combined single limit for all vehicles. D. Statutory Worker’s Compensation and Employer’s Liability of one million dollars ($1,000,000) per accident, one million dollars ($1,000,000) per disease and one million dollars ($1,000,000) disease policy limits. E. Waiver of subrogation/recovery against the County to be included in all policies. F. 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 will be named as “additional insured” under all policies of insurance with the exception of Worker’s Compensation policy. In addition, the Bureau of Reclamation will be named as “additional insured” for conducting business at Lake Pleasant. Copies of all insurance policies or certificates thereof will be made available to the County upon request. Copies of the Certificate of Insurance (COI) will be furnished annually to the County. The County will be given thirty (30) days advance written notice of cancellation of a policy, non-renewal, or change in coverage or limits. 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 Concession Site. 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 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. 13 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 (i) 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 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. 14 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 Concession Site or area of operation, 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, or closure that may be deemed necessary due to resourse management, such as Eagle closure, habitat development, species management, including Federal Regulations at Lake Pleasant, 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, policies, 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 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. 15 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 and/or Parks Operation Manager in the Park 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: 16 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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’ PIO 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 (1) United States Post Office certified mail, return receipt requested, or by Email with Electronic Return Receipt/Read acknowledgement, 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/accepted or delivery is refused. For the County: Maricopa County Parks & Recreation Department Attn: Contract Administrator 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 (602) 506-3998 E-Mail: emilymiller@mail.maricopa.gov For the Concessionaire: MD Ranch, LLC Attn: Matthew r. Dieu 26729 N. Aladdin Road Florence, AZ 85132 Telephone: 480-331-7893 / 602-799-4915 E-Mail: : lindsay@silverreinhorsemanship.com Notifications required to be made to the Park Supervisor will be made telephonically to the phone numbers listed in Exhibit 1. 1 – Regional Park System. 17 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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: 6.13.1 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; 6.13.2 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; 6.13.3 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; 6.13.4 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 18 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 19 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 20 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 Parties 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 Bureau of Reclamation 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 21 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 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 or his designee, 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. 22 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 14.1 The County represents and warrants to the Concessionaire that the following statements are true, correct and complete: 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; and, 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, emailed 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 fall on a Saturday, Sunday or legal holiday, then said date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday or legal holiday. 23 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 24 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC EXHIBIT 1.1 – REGIONAL PARK SYSTEM 25 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC Exhibit 1.1 – Regional Park System (Continued) Parks Considered as part of this Agreement: San Tan Mountain Regional Park Upon an above-satisfactory annual review by the County in January 2015, the County will allow Concessionaire to include one or more of the following additional Parks, where this activity is duly authorized: Cave Creek Regional Park Lake Pleasant Regional Park McDowell Mountain Regional Park Usery Mountain Regional Park Park Notification Numbers: Cave Creek Regional Park: 623-465-0431 Lake Pleasant Regional Park: 602-372-7460 McDowell Mountain Regional Park: 480-471-0173 San Tan Mountain Regional Park: 480-655-5554 Usery Mountain Regional Park: 480-984-0032 *City Jurisdiction for Possible Business License: Cave Creek Regional Park: Town of Cave Creek Lake Pleasant Regional Park: Peoria McDowell Mountain Regional Park: Fountain Hills San Tan Mountain Regional Park: Queen Creek Usery Mountain Regional Park: Mesa *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. 26 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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 The greater of: $3.00 per Participant or 10% of Gross Revenue CMCA Annual Pass (one free) – Each Additional 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. Payment is due the County according to the fee payment schedule outlined below. (See Exhibit 3.2.1 – Fee Reporting and Payment Schedule) By definition, Gross Revenue is all revenue collected in supported 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. Participants will be required to pay the established Park Entrance Fee for vehicles driven into the Park unless riding in the Concessionaire’s vehicle or in possession of a valid annual pass for the respective Park. 27 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC Exhibit 3.2.1 – Fee Reporting and Payment Schedule (Continued) Fee Reporting and Payment Schedule. Period Date Due County July 1st – September 30th October 15th October 1st – December 31st January 15th January 1st – March 31st April 15th April 1st – June 30th 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. 28 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC EXHIBIT 3.2.2 – ATTENDANCE AND REVENUE STATEMENT FOR GUIDED TOURS CONCESSIONAIRE NAME: Reporting Period: _________________________________ Event Date Participant Participant Count Gross Revenue Count multiplied by $3.00 ea Total Due Parks (Participant Fee or 10% of Gross Revenue, whichever is greater) Submission of the this Statement is in accordance with the reporting timelines as outlined in Exhibit 3.2.1 – Fee Reporting and Payment Schedule. If no events were held or revenue generated during the Reporting Period, the Concessionaire is still required to submit the Attendance Statement; however indicate “No Events Held or Revenue Generated During this Reporting Period”. Attendance Statements will be mailed to: Maricopa County Parks and Recreation Department Attn: Accounts Receivable 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 Or Emailed: emilymiller@mail.maricopa.gov Do not send Attendance and Revenue Statements directly to the Park. 29 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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: Conduct day and evening trail rides and to include within the Maricopa County Regional Parks per Exhibit 1.1. Trail rides will be conducted only on designated trails. 1. The Concession will access the Park only through areas designated by the respective Park Supervisor at the following Parks: San Tan Mountain Regional Park. Upon an above-satisfactory annual review by the County in January 2015, the County will allow Concessionaire to include one or more of the following as part of the Park Systems: Cave Creek Regional Park, Lake Pleasant Regional Park, McDowell Mountain Regional Park, and/or Usery Mountain Regional Park. The Concessionaire shall be responsible for coordination of events with each respective Park Supervisor. 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: Conduct daytime and evening trail rides, of varying duration, restricted to the routes identified by Park Supervisors. Conduct additional events such as cook-outs, campfire events as approved by Park Supervisors. Location for cook-outs, campfire events will be determined by Park Supervisors. B. Product Dispensed: i. All training and required equipment is provided by the participant or the instructional staff representing the Concessionaire. ii. All food concession operations will be operated in accordance with applicable laws and regulations pertaining to food handling, licensing, permitting and staff training. Glass beverage containers are not permitted to be sold or used in the Complex. Alcoholic beverages are not authorized. C. Equipment to be brought on site: Horses; all trailers and vehicles will be parked at a location within the Park designated by the Park Supervisor, unless otherwise coordinated with the Park Supervisor. The Concessionaire is responsible for all supplies and equipment necessary for conduct of the activities or Concession operations. D. Set-up of temporary panels by the Concessionaire for safeguarding of unused/extra horses belonging to the Concessionaire will be authorized. On-site safeguarding will only be during the hours the Concession is open to the public on a daily basis. Location of the temporary panels will be designated by the Park Supervisor. The Concessionaire indemnifies the County of any liability associated with use of the temporary panels. 30 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC E. Proposed Site Improvements: None. F. Utilities Required: None. County will not provide any parking, water, utilities or restroom facilities to the Concessionaire beyond what is currently located in the Park and available to Park visitors. 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. F. Additional Facilities required or to be provided by Parks: None. G. 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 Concession: None. C. Physical Space Required (Square Foot) for Concession: No fixed space required. 5. Maintenance Responsibilities. A. Concessionaire is responsible for picking up and removing from the Park any litter or trash left on the trail during the conduct of a Concessionaire activity. The Park Supervisor has the authority to inspect the trail after concession activity and if litter or trash is noted, contact the Concessionaire for corrective action. B. The Concessionaire will coordinate with the Park Supervisor as to trail maintenance responsibilities as outlined in Section 5.1.3. C. Tables, eating areas, shaded areas, Concession area, etc. will be kept clean, neat and sanitary at all times. D. The Concessionaire is responsible for picking up and removing from the Park any manure deposited in the staging areas. E. The Concessionaire is authorized to set-up temporary structures/canopies, not to exceed 10’x10’, for use during the event or Concession operations. The Concessionaire will coordinate with the Park Supervisor as to location. Set-up will not occur before the start of each day’s event or activity or as coordinated with the Park Supervisor. Temporary structures will be removed upon completion of the event or each day’s operations. 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. 31 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 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 without proper permits. D. Selling of food, on land or water, in the vicinity of Scorpion Bay Marina at Lake Pleasant. 32 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. Concessionaire annual 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. 2. The Concessionaire will coordinate/schedule with the Park Supervisor all guided equestrian events to be held within the Park. Scheduling will occur a minimum of five (5) days in advance of the event. 3. The Concessionaire will conduct a safety briefing and overall orientation prior to the start of each guided equestrian ride. 4. The Concessionaire is responsible for providing emergency communication with either the Concessionaire’s Headquarters or Park Headquarters for each guided equestrian ride. 5. Groups will not exceed more than eight (8) horses unless authorized by the Park Supervisor. Groups will ride single file along the designated trails within the Park. 6. Groups in excess of twenty five (25), when authorized by the Park Supervisor, will be divided so that total group size does not exceed twenty five (25). 7. Only livestock carrying riders, guides or equipment in support of a guided event will be allowed into the Park. 8. Horses will not be allowed to graze within the Park. Horses will not be tethered to trees or to any other type of vegetation. 9. All guides (staff) will be competent and experienced in conducting guided trips. Guides will have knowledge of the area, the Park and the trails. Guides will become an ambassador for the Maricopa County Parks System and inform riders that they are riding within the boundaries of the Parks. They will do everything in their power to make certain each guided event is a quality experience. Under no circumstances will guides be in charge of events when they do not meet the qualifications listed above or are not familiar with the particular trail being traveled. 10. The Concessionaire is not allowed to create new trails or create trail shortcuts without the approval of the Park Supervisor. No “re-routes” are permitted from the designated trails. 11. The Concessionaire is responsible for ensure all participants and livestock are off the designated trails and outside the Park boundary upon completion of each guided equestrian ride. 33 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 12. The Concessionaire is authorized, through coordination with the Park Supervisor to set up temporary panels for use by extra horses in support of the day’s Concession activities. The Park Supervisor will determine the location. The temporary panels will be removed from the Park daily, unless otherwise coordinated with the Park Supervisor. The Concessionaire indemnifies the County of any liability of livestock or equipment associated with the temporary panels. 13. The County is not responsible for the providing of any security of the Concession Site. 14. The selling or dispensing of alcohol products within the Park in support of events is not authorized. 15. The catering of food within the Park in support of events is authorized. 16. The Concessionaire and participant vehicles and equipment will park only in areas designated by the Park Supervisor and will be subject to the payment of the Park Entrance Fee. 17. The County is not responsible for the providing of telecommunication lines, fax lines or any other communication support. 18. The Concessionaire and participants will have access to Port-a-johns that are located along the designated trails. Park staffs will not relocate Port-a-johns from other areas within the Park. The Concessionaire is not authorized, unless coordinated for each guided equestrian event with the Park Supervisor, to contract for additional Port-a-johns. If authorized, the Park Supervisor will designate the date when contracted Port-a-johns will be removed from Park property 19. 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. 20. The Concessionaire is authorized to use 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. 21. 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. 22. 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. 34 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 23. The Concessionaire agrees to maintain the Concession equipment in a manner to ensure safe operation for the guests. 24. 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. 25. The Concessionaire’s operations are restricted to the area designated by the Park Supervisor. 26. The Concessionaire is responsible for providing guides or staff trained in emergency medical services or procedures on each event. Guides will have with them first aid kits and other items needed to perform emergency medical services and in a quantity sufficient for the group size. Guides or staff will be knowledgeable in the treatment of or prevention of inadequate hydration, over exertion, mechanical problems, unsafe acts, etc. 27. The Concessionaire, if desiring camping or facilities such as ramadas or other structures in support of planned events, will be required to reserve the camping or facility through the Park Supervisor and pay the established rental fee. Rental will be based on availability; the Concessionaire’s request does not take precedence over other patrons desiring to rent like camping or facilities. The rental fee does not apply to areas identified in Exhibit 4.1 –Services and Facilities, i.e. designated trails, horse staging areas, trailhead staging areas, etc. 28. The Concessionaire is authorized to coordinate services currently provided by Parks, i.e. Ranger Interpretative Programs. 29. The dispensing of product or the performance of services other than stated in Exhibit 4.1 –Services and Facilities is unauthorized. Logos and labels on the products dispensed will be limited to nutritional facts, manufacturer information, the Concessionaire’s name and an encouraging scripture. No other forms of advertising, brochures or material will be provided by the Concessionaire (See Exhibit 4.1 – Services and Facilities. 30. The Concessionaire is not authorized to an amplified sound system in support of concession operations. 31. The Concessionaire’s and 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. 32. 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 Concession Site. 35 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC 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. 7. A performance payment bond may be required for any permittee 1. “Abandoned Vehicle” means any vehicle, boat, trailer, or who is providing a service that was solicited to provide any event structure, which shows evidence of being left unattended for a or activity sponsored by the Department. period of 48 hours unless displaying an official permit 8. The Department may impose conditions on the conduct of any indicating a stay in excess of 48 hours. activity which are necessary to protect the area and maintain its 2. “Aircraft” means a structure or device for navigation of the air availability as a public park. that is supported either by its own buoyancy or by the 9. A Special Use Permit is not required for any person operating under dynamic action of the air against its surface. the provisions of a valid special use or commercial management 3. “Camping” means erecting a tent or shelter or arranging concessions agreement with the Department. bedding or both, for the purpose of, or in such a way as will 10. Special Use Permit applications, which are compatible with the permit, overnight use; or parking a trailer camper or other management objectives of the individual park, may be refused for vehicle for the purpose of remaining overnight. health and safety reasons or to protect the park from significant 4. “Commission” means the Maricopa County Parks and damages. With respect to competing non-profit uses, the use of Recreation Commission. park space shall be granted on a first-come, first-served basis. With 5. “County” means Maricopa County. respect to competing commercial uses, informal proposals shall be 6. “Department” means the Maricopa County Parks and solicited and the Special Use Permit awarded to that concessionaire Recreation Department. which offers to provide the County with the highest potential revenue 7. “Loudspeaker or public address system” means a device to and/or best recreational value to park patrons, provided the amplify or direct sound. concessionaire does not have a poor performance history on any 8. “Maricopa County Park(s)” means any land or areas under the prior permits. control of the Maricopa County Board of Supervisors which 11. All persons entering a park under a Special Use Permit are subject has been designated as a Park, Recreation Area or to all entrance and/or other fees, and all rules and regulations Conservation Area. concerning park resource and facility use. The total amount of 9. “Roads” means the entire width between the boundary lines of entrance fees owed by persons entering a park under a Special Use every way when any part thereof is open, kept or maintained Permit may be calculated in advance and paid in accordance with terms for use by the public for purposes of vehicular travel. negotiated as part of the Special Use Permit. 10. “Special Use Permit” means commercial or non-commercial 12. A decision by the Department concerning any Special Use Permit may be permits issued by the Department for activities outside a appealed to the Commission. park’s activity design or which excludes the general public or 13. Applications for Special Use Permits may be obtained from an for which there is monetary gain. authorized representative of the Department. 11. “Swimming” means to propel one’s self in water by natural means; consequently aquatic activities including the full or R-103 Violations and Penalties partial use of inner tubes, air mattresses or personal support 1. Any person who violates any of these rules shall be guilty of a devices. Class 2 misdemeanor. 12. “Designated Trail” means an authorized recreational trail 2. Any person who violates any of these rules may also be evicted for designed, constructed, and maintained according to standards failure to comply. within the County manual; it is within Maricopa County Parks’ boundaries and has been included in the Maricopa County The following acts are prohibited in Maricopa County Parks: Park trail system inventory. R-104 Entry, Use, Occupancy, Fees R-102 Special Use Permits, Fees and Approvals 1. Entering, using, or occupying of a Maricopa County park or its 1. Special Use Permits shall be required for eligible non-profit, facilities, designated trails or waterways under the supervision and government or private, as well as commercial uses. control of the Department for any purpose when said parks or areas 2. For eligible non-profit uses, a Special Use Permit is required are posted against such entrance, use, occupancy or where barriers of any person or group for any activity outside each park’s exist. activity design, or for the use of specific park areas that 2. Entering upon or using for any purpose the land, water or facilities 3. A Special Use Permit shall also be obtained in advance by any within the boundaries of Maricopa County Parks when a fee, rental, any person or group wishing to use a Maricopa County Park admission or other consideration has been established for such land, for eligible commercial uses. water or facility has been paid said fee, rental, admission or other 4. Park Impact Fees for Special Use Permits shall be negotiated consideration. by the Department used on the expenses related to the administration of the activity, protection of the park and R-105 Animals and Pets visitors, and in accordance with established fee schedules when applicable. 1. Riding, permitting or allowing livestock, saddle, pack, or draft animals 5. The Department may require commercial applicants to enter except on designated trails or areas under special permit issued an agreement with the County for a negotiated percentage of by the Department or by special provisions of a Use Management gross receipts not to exceed twenty (20) percent. Agreement. 6. The Department may require the permittee to post a deposit 2. Possessing, allowing or permitting a dog and/or other pets in a Maricopa against damage and clean-up expense, provide a certificate of County Park, unless the same shall be under immediate control on a Exhibit 6.5 – Park Rules (Continued) 36 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC leash not exceeding 6 feet in length, except the leash for any purpose. requirement shall not apply to dogs while being used in hunting, 2. Engaging in noisy conduct, operating generators or motors, operating in field trials, or while being trained when upon lands open to such radios, or otherwise making loud or disturbing noises that may disturb uses and it does not interfere with other park activities. the peace of the area between the hours of 10:00 p.m. and 6:00 a.m. 3. Possessing, allowing or permitting a dog in a Maricopa County 3. Public urination or public defecation. Park without a current license. 4. Engaging in noisy conduct that disturbs the peace. 4. Allowing dogs or other pets, other than seeing-eye or hearing guide dogs, within the confines of public park buildings. R-112 Camping except the leash requirement shall not apply to dogs while 1. Camping without first obtaining a written permit issued by the 5. Allowing dogs and/or other animals to create a nuisance, noise Department. or disturbance in any area. 2. Failure to obey all written or posted camping regulations. 6. Failure of any owners of pets to properly dispose of any waste. 7. Scattering or depositing the ashes of any animal. R-113 Fires 1. Building fires except in designated places. R-106 Firearms, Hunting and Trapping 2. Building fires in any area posted against such use. 1. Possessing a firearm, unless unloaded in both barrel and magazine 3. Building wood or charcoal fires at any time posted against such activity in any area closed to the discharge of firearms unless permitted by (during fire ban). state law. 4. Use of gas or propane stoves or grills when use is prohibited (during 2. Shooting a firearm, air rifle, air pistol, potato cannon, or any type of extreme fire ban). cannon, paintball gun, slingshot, or shooting with a bow and arrow, 5. Abandoning any fire without completely extinguishing it. or setting traps except in locations provided for that purpose by 6. Allowing a fire to escape from control. Arizona Game and Fish rules. R-114 Public or Commercial Activities R-107 Motor Vehicle and Bicycles 1. Conducting any activity or assembly outside the individual park’s 1. Operating any motorized vehicle except on roads and parking areas activity design or requiring the use of park areas which exclude the use designated by the Department for such purpose. of the general public without first obtaining a Special Use Permit from 2. Abandoning any vehicle in any area of a Maricopa County Park. the Department. Vehicles violating this section may be towed at the owner’s expense. 2. Posting, placing, or distributing advertising material; erecting a fence or 3. Parking a motor vehicle or trailer or other device towed by a motor barrier (except under specific use management or lease agreements), vehicle in such a manner whereby roads, parking areas or other constructing or occupying improvements; or enclosing County traffic ways or traffic are blocked or otherwise impeded. Vehicles administered lands without first obtaining or enclosing a Special Use violating this section may be towed at the owner’s expense if such Permit from the Department. violation constitutes blockage of any emergency lane or otherwise 3. Using a loudspeaker or public address system, or amplifier, without first interferes with park operations. obtaining a Special Use Permit from the Department. 4. Operating a bicycle in a careless or reckless manner, or in disregard 4. Using County administered lands for a commercial purpose without of the safety of any person or property. first obtaining a Special Use Permit from the Department. 5. Utilizing bike ramps in non-designated areas. 6. Operating, without permission from the County, any motorized R-115 Glass Bottles skateboard, motorized scooter, mo-ped or like device. 1. Possessing glass, ceramic or hard frangible plastic beverage bottles. R-108 Watercraft and Swimming R-116 Aircraft and Engine Powered Models 1. Bringing into, or operating any watercraft upon a body of water 1. Operating any passenger carrying aircraft of any nature or parachute, except at such places and in such a manner as designated for such including parasailing, except in areas designated for such use by the use or purpose by the Department. Department or in an emergency situation. 2. Storing or leaving any watercraft without first obtaining a permit 2. Operating engine powered models and/or toys in any park area not issued by the Department or its authorized concessionaire. designated for such use or in such manner that it could be a hazard 3. Swimming in areas posted against such use. to the public. 4. Cliff jumping. R-117 Interference with a Park Ranger or a Park Police Officer R-109 Vandalism 1. Interfering with any Park Ranger and/or Park Police Officer in the 1. Destroying, damaging, or removing any tree, shrub, wildflower, discharge of the Park Ranger’s and/or Park Police Officer’s duties. cactus, or any other vegetation, or any other vegetative product 2. Failing or refusing to obey any lawful command of any Park Ranger or by-products without first obtaining a written permit from the and/or Park Police Officer or other Certified Peace Officer. Department. 2. Destroying, damaging, defacing or removing any County property R-118 Trails or property administered by the Department. 1. Damaging, blocking, restricting or otherwise interfering with the use of a trail. R-110 Littering 2. Throwing or rolling rocks or other items into valleys or canyons, down 1. Depositing or abandoning garbage, sewage, refuse, trash, waste hillsides, mountainsides or trails. or other obnoxious material, except in receptacles or containers 3. Leaving a designated trail or walkway between trailheads. provided for such purposes. 4. Operating a bicycle, riding a horse, or hiking, except on trails designated 2. Throwing or breaking glass, plastic or ceramic objects leaving for that use. Shards or other fragments on park property. 5. Failure to follow any sign that dictates the use or behavior on a trail. R-111 Public Behavior 1. Conducting one’s self in a disorderly or intoxicated manner, or using threatening, abusive, or boisterous or insulting language, or conducting or participating in a disorderly assembly, or to solicit 37 S:\Contracts\IGA’s\CMCA\MD Ranch, LLC