AGREEMENT RE CMCA WITH AQUA ADVENTURES LLC.PDF

Commercial Management Concessions Agreement
Between
Maricopa County
And
Aqua Adventures, LLC dba Ultimate Dive & Travel
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……………………………………………………………………………. 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 ………………………………………………………………. 06
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…………………………………………………………………… 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 ……………………………………………… 10
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………………………………………………… 11
5.4 Utilities……………………………………………………………………………… 11
5.5 Condition of Property……………………………………………………………. 11
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………………………………………………….. 13
6.3 Assignment………………………………………………………………………… 15
6.4 Park Closure ……………………………………………………………………… 15
6.5 Compliance………………………………………………………………………… 16
6.6 Public Access……………………………………………………………………… 16
6.7 Accident Reporting……………………………………………………………….. 16
6.8 Concession Site Occupancy…………………………………………………….. 17
6.9 Advertising and Media Releases………………………………………………… 17
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. …………………………19
6.15 Taxes………………………………………………………………………………. 19
6.16 Covenants against Contingent Fees……………………………………………. 19
6.17 Organization – Employment Disclaimer……………………………………….. 20
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……………………………………………………….. 22
8. Attorney Fees…………………………………………………………………………….. 22
9. Severability……………………………………………………………………………….. 22
10. Force Majeure…………………………………………………………………………..... 22
11. Authority ……………………………………………………………………………………22
12. Legal Effect of the Agreement…………………………………………………………. 23
13. Delegation of Authority …………………………………………………………………. 23
14. Representation and Warranties of County………………………………………….. 23
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 5.1.3 – Operational Constraints and Requirements …………………………… 33
Exhibit 6.5 – Park Rules……………………………………………………………………….. 36
Appendix 1 – Identification Tag for Participants………………………………………….. 38
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Commercial Management Concessions Agreement
Between
Maricopa County
And
Aqua Adventures, LLC dba Ultimate Dive and Travel
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 Aqua Adventures, LLC dba Ultimate Dive and
Travel (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.
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1.1 Scope
The County hereby grants the Concessionaire the right to manage, operate, and
maintain a scuba diving and certification 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 park: Lake Pleasant 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.
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.
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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.
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.
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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.
3. Accounting and Fees.
3.1 Accounting Records.
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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.
Participant Entrance Fees will be payable by the Concessionaire, in
accordance with the appropriate Fee Payment Period. The Concessionaire
will issue a numbered identification tag to the pre-paid participant. (See
Appendix 1 – Identification Tag) The identification tag will be issued by
the Concessionaire to the participants upon pre-payment of the Park
Admission Fee. Upon the participant entering the Park at the Entry Station,
the participant will present the identification tag to the Park Entry
Representative; the Park Entry Representative will retain the top portion of
the identification tag; the participant will retain the bottom portion of the
identification tag. Any participant that does not have an identification tag
will pay the published Park Entrance Fee upon entering the Park.
Accompanying the fee payment as outlined in Exhibit 3.2.1 - Fee
Reporting and Payment Schedule will be Exhibit 3.2.2 – Attendance
and Revenue Statement where the Concessionaire will indicate the
number of Identification Tags issued per month per each reporting period.
Parks’ Entry Station Personnel will provide the Parks’ Contract
Administrator with their portion of the numbered identification tag provided
by the participant as verification of the number reported. A difference in
attendance as reported will be invoiced appropriately by the County.
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.
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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.
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
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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.
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.
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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.
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 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 Concession Site which may
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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 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.
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
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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: 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.
C. Vehicle liability: Five hundred thousand dollars ($500,000) combined
single limit for all vehicles.
D. 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.
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.
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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.
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.
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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.
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
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the County, or closure that may be deemed necessary due to resource 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.
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
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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:
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 (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.
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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: Aqua Adventures, LLC dba Ultimate Dive and Travel
Attn: Evin Tucker
6969 E. Shea Blve
Scottsdale, AZ 85254
Telephone: 480-607-5071
E-Mail: evin.tucker@gmail.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.
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
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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
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.
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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.
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
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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.
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.
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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
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.
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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.
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.
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EXHIBIT 1.1 – REGIONAL PARK SYSTEM
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Exhibit 1.1 – Regional Park System (Continued)
Parks Considered as part of this Agreement:
Lake Pleasant Regional Park
Park Notification Numbers:
Lake Pleasant Regional Park: 602-372-7460 x 204
928-501-1710
*City Jurisdiction for Possible Business License:
Lake Pleasant Regional Park: Peoria
*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: AQUA ADVENTURES, LLC dba ULTIMATE DIVE & TRAVEL
Concessionaire will pay County the following fees according to payment schedule listed below.
Fee Amount
Administrative Fee (Initial and Each Amendment) $150.00
Participant Entrance Fee $3.00 Per Participant
*Instructional Staff Fees:
1. One Instructional Staff Member with Dive Boat $340.00
2. One Shoreline Instructional Staff Member $100.00
3. Each Additional Instructional Staff Member $60.00
4. Concessionaire Annual Pass for Instructors $3.00
* There are no additional fees for staff members
already paid upon the Effective Date of each
Renewal; Additional staff added throughout the
period of the Agreement, to include the renewal
period, will be required to pay the Instructional
Staff Fee. There will be no refunds upon the
departure of Instructional Staff.
The Administrative Fee is payable upon the Concessionaire signing the initial Agreement or
Renewal Amendment and prior to the Agreement being presented to the Maricopa County Board
of Supervisors (“Board”) for execution. The Administrative Fee, by definition, is the fee assessed by
the County for the initial development of the Agreement; subsequent renewals; and management of the
Agreement.
If for some reason the initial Agreement or Renewal Amendment is not executed by the Board, the
Administrative Fee will be refunded to the Concessionaire; otherwise, the Administrative Fee is non-
refundable.
The Certification Documents for Instructional Staff and Instructional Staff Fees are payable to
County within thirty (30) days of the effective date by the Board of Supervisors. The Instructional
Staff Fee, by definition, is the fee assessed by the County for access of the Concessionaire’s instructional
staff. The Instructional Staff must be identified by the Concessionaire as outlined in this Agreement for
access into the Park.
As Instructors are added, certification documents are to be provided to County; County will invoice for
additional fees due as outlined in Exhibit 3.2.1 - Fee Reporting and Payment Schedule.
There will be no refunds for Instructional Staff that are no longer affiliated with the Concessionaire during
the term of the Agreement.
The Participant Entrance 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)
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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 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.
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EXHIBIT 3.2.2 – REVENUE AND ATTENDANCE STATEMENT
NAME OF CONCESSIONAIRE:
AQUA ADVENTURES, LLC dba ULTIMATE DIVE & TRAVEL
Reporting Period: __________________________________________
Date(s) of # of Dive Boat or # of Participants
Event Instructional Shoreline
Staff/Event (Indicate)
Total Amount Due Parks @ $3.00
(See Exhibit 3.2.1 - Fee EACH =
Reporting and Payment
Schedule)
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.
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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: Manage and operate a scuba dives and certification concession.
Participants sign-up for instructional training at Aqua Adventures, LLC dba Ultimate Dive and
Travel; Aqua Adventures, LLC dba Ultimate Dive and Travel’s certified instructors will provide
required training which involves use of the waters located at Lake Pleasant Regional Park.
1. The Concession can be located in the areas designated by the respective Park Supervisor
at the following Park: Lake Pleasant 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 on-site scuba instruction training.
Concessionaire is required to provide a list of instructional staff members to the
Contract Administrator, Maricopa County Parks and Recreation Department along
with their certification as a scuba instructor or appropriate capacity in which they will
be operating in. The listing of personnel will be provided to the Entry Station for Park
entrance. The Concessionaire will identify participants per event, through issuing of
an Identification Tag. (See Appendix 1 – Identification Tag). Participants failing to
have an Identification Tag will be charged the published Park Admission Fee. The
Concessionaire will be invoiced by County for payment of the participant fee as
outlined in Exhibits 3.2.1 and 3.2.2. The Concessionaire is responsible for printing
and distributing the Identification Tag.
B. Product Dispensed: All training and required equipment is provided by the participant
or the instructional staff representing the Concessionaire.
C. Equipment to be brought on site: All equipment associated with scuba diving;
possible dive boat or use thereof. The Concessionaire is responsible for ensuring
adherence to all industry safety and operational standards. The Concessionaire is
responsible for ensuring the required licensing of staff to operate equipment.
D. Proposed Site Improvements: None.
E. Utilities Required: Electricity or electrical power source for concession operations.
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.
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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: 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 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 event. The Park Supervisor may
increase the frequency of trash being emptied.
B. Tables, eating areas, shaded areas, Concession area, etc. will be kept clean, neat
and sanitary at all times.
C. 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.
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
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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 at Lake
Pleasant.
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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. 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 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.
5. 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.
7. 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.
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.
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.
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EXHIBIT 5.1.3 – OPERATIONAL CONSTRAINTS AND REQUIREMENTS (continued)
13. 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.
14. 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.
15. The Concessionaire is responsible for providing emergency communication with either
the Concessionaire’s Headquarters or Park Headquarters for each guided event.
16. All guides (staff) will be competent and experienced in conducting guided trips. Guides
will have knowledge of the area, the Park and the trails. 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 park or area utilized for the
concession.
17. The catering of food within the Park in support of events is not authorized.
18. The selling or dispensing of alcohol products within the Park in support of events is not
authorized.
19. The Concessionaire will coordinate with the Park Supervisor, per each visit, the area in
which to operate the Concession.
20. No equipment services or repairs are authorized on-site other than those necessary to
maintain the equipment used in support of this Agreement.
21. The Concessionaire is authorized to coordinate services currently provided by Parks, i.e.
Ranger Interpretative Programs.
23. 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.
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EXHIBIT 5.1.3 – OPERATIONAL CONSTRAINTS AND REQUIREMENTS (continued)
24. The Concessionaire is not authorized to an amplified sound system in support of
concession operations.
25. 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.
26. 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.
27. IF, operation of the Concession on the waters of Lake Pleasant from the deck of a
pontoon boat or similar vessel is authorized, 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; captaining of boats will require
Merchant Mariner Credentials issued by United States Coast Guard; and will operate
only in areas authorized by the Park Supervisor or as otherwise directed by
representatives in authority, i.e. Maricopa County Sheriff’s 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. 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
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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, 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
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APPENDIX 1 – IDENTIFICATION TAG
CONCESSIONAIRE:
AQUA ADVENTURES, LLC dba Ultimate Dive & Travel
DATE OF EVENT: _______________________________
PARTICIPANT NAME/NUMBER: _____________________
INSTRUCTOR NAME:______________________________
THIS IS AN ORIGINAL DOCUMENT-
APPLY STICKER OR EMBOSS HERE
(PLEASE GIVE TO ENTRY STATION FOR PARK ENTRANCE)
---------------------------------------------------------------------------------------------
CONCESSIONAIRE:
AQUA ADVENTURES, LLC dba Ultimate Dive & Travel
DATE OF EVENT: _______________________________
PARTICIPANT NAME/NUMBER: _________________________
INSTRUCTOR NAME:______________________________
THIS IS AN ORIGINAL DOCUMENT-
APPLY STICKER OR EMBOSS HERE
(INDIVIDUAL PARTICIPANT COPY – PLEASE PLACE ON DASH)
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