AMENDMENT SIX TO UMA JUNIOR NATIONAL FOUNDATION.PDF

AMENDMENT SIX
TO
USE MANAGEMENT AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
JUNIOR NATIONAL FOUNDATION
C-30-04-027-1-07

RECITALS

This Amendment Six to Use Management Agreement (“Amendment Six”) is entered into between
Maricopa County, a political subdivision of the state of Arizona (“County”), and Junior National
Foundation, a domestic nonprofit corporation, an assignee from Southwest Golf Management, LLC
(“Concessionaire”). County and Concessionaire are collectively referred to as “Parties” or
individually as a “Party.”

WHEREAS, the County through a series of land patents with the U.S. Department of the
Interior Bureau of Land Management (“BLM”) (02-66-0070 dated December 30, 1965; 02-72-0037
dated December 9, 1971; 02-76-0037 dated July 28, 1976); Warranty Deeds; and State Land
Patents (6352,6353 and 6354 dated February 27, 1976) became entitled to use of the lands
described as a recreational park and related facilities, which lands are currently known as Estrella
Mountain Regional Park (“Park”); and

WHEREAS, the County entered into Amendment Three to Estrella Mountain Park Golf
Course Use Management Agreement (“UMA”) for the Management, Operation, Maintenance, and
Improvement of the Golf Course Concession — Tres Rios Golf Course at Estrella Mountain Park
Formerly Known as Estrella Mountain Park Golf Course dated March 16, 2011 (C-30-04-027-1-01),
which amended and restated the Use Management Agreement dated March 12, 1997 (C-30-99-
005-1-01), as amended; and

WHEREAS, on April 25, 2012, the County approved the assignment of the UMA from
Textron Financial Corporation and SPE Go Holdings, Inc to Tres Rios Golf, LLC (C-30-12-032-3-
00); and,

WHEREAS, on August 17, 2016, the County and Tres Rios Golf, LLC entered into
Amendment Four (“Amendment Four”) to the UMA (C-30-04-27-1-02); and

WHEREAS, on September 16, 2020, Maricopa County approved the assignment of the UMA
from Tres Rios Golf, LLC to Southwest Golf Management, LLC (C-30-04-027-1-03) as the result of
a solicitation (#210127-RFP Request for Proposals for Use Management Agreement for the Tres
Rios Golf Course) by the County on August 24, 2020, and August 25, 2020; and

WHEREAS, on September 16, 2020, the County and Southwest Golf Management, LLC
entered into Amendment Five (“Amendment Five”) to the UMA (C-30-04-027-1-05) (Amendment

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Four, Amendment Five and the UMA collectively referred to as the “Agreement’) to set up a reserve
fund, conduct a Phase | Environmental Study, revised the term, and the payment schedule; and

WHEREAS, on July 14, 2021, Maricopa County approved the assignment of the Agreement
from Southwest Golf Management, LLC to Junior National Foundation (C-30-04-027-1-06); and

WHEREAS, this Amendment Six is the result of a solicitation released by County (220134-
LOI Public Private Partnership With a Non-Profit Entity for Expansion, Development, Financing and
Operation of an 18-Hole Junior National Golf Complex at the Park) on September 1, 2021 (“LOI”);
and

WHEREAS, Concessionaire was the successful respondent to the LOI and desires to
improve, as described in Concessionaire’s LOI response (“LOI Response”), approximately two
hundred sixty (260) acres of the Park, which in addition to the one hundred forty-eight (148) acres
under the UMA (for a total of approximately four hundred eight (408) acres) shall now be redefined
as the Complex in the Agreement; and

WHEREAS, the Parties agree the intent of this Amendment Six is solely for the
development, operation, maintenance, management, and improvement per the LOI and its LOI
Response and does not convey any interest in land or any property rights;

WHEREAS, if the Concessionaire has not i) completed improvements as required in
Attachment A - Phasing Improvement Schedule - Amended (“Attachment A” as attached
hereto and made a part hereof) and Attachment C Exhibit 1.2 - Operation and Improvement
Overview — Amended, specifically Section 2, A,B,C, and D (“Attachment C’ as attached hereto
and made a part hereof); and ii) if the Park Master Plan Amendment required for such
improvements is not approved within one (1) year of the Effective Date (defined below) of this
Amendment Six, this Amendment Six shall be null and void, unless extended as noted in Section
1E below; and

WHEREAS, the County and the Concessionaire desire to enter into this Amendment Six

with the understanding that all other provisions of the Agreement and applicable previous
amendments not otherwise revised herein shall remain in full force and effect.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, receipt, and sufficiency of which are hereby acknowledged, County and
Concessionaire hereby agree as follows:

I. INCORPORATION OF RECITALS

The Recitals set forth above are hereby incorporated into this Amendment Six.

I. GENERAL TERMS
1. Effective Date. The effective date of this Amendment Six shall be the date executed
by Maricopa County (“Effective Date”).
2. Improvement Phasing Schedule. Improvements as listed on the Attachment A

and/or Attachment C (“Projects”) may be added to or deleted from Attachment A

and/or Attachment C by the Concessionaire only upon written agreement of County.
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Thirty (30) days prior to the commencement of mobilization to construct Phase
Il of the Improvement Phasing Schedule (defined as any construction
equipment or construction trailer on site), Concessionaire shall establish, at its
own expense:

1) A reserve account (“Reserve Account”) for assurance of
performance, in the amount of no less than one million dollars
($1,000,000.00) and if the Reserve Account falls below one million
dollars ($1,000,000) at any time, within thirty (30) days of such
shortfall. Concessionaire shall deposit an amount into the Reserve
Account to bring the balance back up to one million dollars
($1,000,000); and

2) A construction fund (“Construction Fund”) for assurance of
construction performance in the amount of four million dollars
($4,000,000), then, in addition, monthly contributions in the amount
of no less than five hundred thousand dollars ($500,000) until
contributions total the amounts listed per each separate phase of
improvements per the Improvement Phasing Schedule, in lieu of a
formal performance bond. The Construction Fund shall be drawn
down for expenses related to the development of the Improvement
Phasing Schedule. Expenditures shall be documented and provided
to the County annually until the Projects have been completed by
issuance of a certificate of occupancy (or final permit) and amounts
listed have been expended.

Failure to provide documentation of financial commitment, including the
establishing the Reserve Account and Construction Fund, or if documentation
fails to show that Concessionaire can complete the Projects, Concessionaire
shall be in Default under the Agreement.

Concessionaire shall develop, organize, facilitate, and implement a Public

Outreach process, to include soliciting meaningful input and perspective for all

trail revisions required due to new development within the boundaries as

illustrated on Attachment B, Exhibit 1.1 - Site Plan - Amended

(‘Attachment B’ as attached hereto and made a part hereof). Public Outreach

is defined as efforts to gather public input, create awareness and/or sharing

information with the public and shall include public involvement activities.

Public Outreach and related costs are the responsibility of the Concessionaire.

Concessionaire shall share all publications and results of Public Outreach with

the County. Concessionaire shall participate, as deemed appropriate by

MCPRD, in any effort to amend the Park Master Plan, including, without

limitation, participation in Public Outreach or public meetings.

The County shall establish a unique finance identifier for the fees received by

the Concessionaire.

1) Funds deposited into this account will be applied toward such things as,
but not limited to, the monthly expenses of the Park, for which the County
is responsible.

2) All fees deposited into this account will be used only for Projects or
expenditures within the Park or throughout the Maricopa County Park
System.

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G.

If the Concessionaire has not i) completed improvements as required in
Attachment A and Attachment C, specifically Section 2, A,B,C, and D; and
ii) if the Park Master Plan Amendment required for such improvements is not
approved within one (1) year of the Effective Date of this Amendment Six, this
Amendment Six shall be null and void and the Reserve Account shall be
forfeited to the County, unless extended per Section 1E below.

If Concessionaire concludes, in its reasonable judgment, that it will be unable

to build all of the improvements listed on Attachment A and/or Attachment

C, and/or develop and use a significant portion of the Complex due to

development impediments, then the Concessionaire shall immediately notify

County, and, in the County’s sole discretion, either:

1) The Concessionaire shall immediately cease to use the portion of the
Complex that cannot be developed and, within sixty (60) calendar days of
Concessionaire’s notification to the County, the Parties shall amend this
Agreement to reflect the reduction in the size of the Complex and the
revised Projects; or

2) The County may, in its sole discretion, grant a reasonable extension of the
timeline, not to exceed a total of two (2) years; or

3) The County may terminate the Amendment in accordance with Section 2.7,
6.4 or any other pertinent provision of the Agreement.

If the Projects are not completed by Concessionaire pursuant to Attachment

A and/or Attachment C, or as may be extended (as noted in Section 1D

above), the Reserve Account, identified in Section 1A above, shall be forfeited

to County.

Once the Projects are determined to be complete in the County’s sole

discretion and a certificate of occupancy has been issued, the Reserve

Account shall be extinguished.

Legal Description. The Concessionaire will furnish to MCPRD a full site survey in
paper and GIS formats along with a revised legal description of the Complex within
one hundred eighty (180) calendar days of the issuance of a permitted set of plans
based on improvements as indicated on Attachment B, at no cost to the County. The
legal description shall be incorporated in Attachment B.

The Agreement is further amended as follows:

A.
B.

Exhibit 1.1 — Site Plan of the Agreement is deleted in its entirety and replaced

with Attachment B.

Exhibit 1.2. - Operation and Improvement Overview of the Agreement is

deleted in its entirety and replaced with Attachment C.

Section 2.3 Term and Renewal Option of the Agreement is hereby amended

to reflect the term of the Agreement as now defined as the period from the

Effective Date through December 31, 2050 (“the Expiration Date”) with one

option to renew for twenty-five (25) years (“Renewal Term’):

1) The Concessionaire shall provide written notice of a request to renew or
not to renew no later than one hundred and eighty (180) calendar days
prior to the Expiration Date; and

2) The Renewal Term shall be upon the same terms and conditions as the
final year of the initial term except that the Parties may negotiate a
reasonable adjustment to the Annual Fee and Additional Fee Payment, as
defined and administered in Agreement Section 3.2, and the Parties shall
enter into a written amendment to the Agreement for the Renewal Term.

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The reasonable adjustments shall be based on, but not limited to, market
value of the Complex, Concessionaire’s investment of capital
improvements and ongoing maintenance costs, revenue generation and
sustainability of Concessionaire’s recreational activity(ies); and

3) Neither the County nor the BLM shall be liable to the Concessionaire or
any of its officers, employees, agents, or contractors at law or in equity for
not approving a Renewal Term.

Section 2.7 Termination for Cause of the Agreement is hereby amended to
include:

In the event of termination for cause or Default, the Concessionaire shall forfeit
said Reserve Account (as defined in Section 1 above) to the County.

Exhibit 3.2.1 Fee Payment Schedule of the Agreement is deleted in its entirety
and replaced with Attachment D, Exhibit 3.2.1 Fee Payment Schedule-
Amended (“Attachment D’), attached hereto and made a part hereof.

Section 5.5.3 of the Agreement is deleted in its entirety and replaced with the

following:

1) The Concessionaire shall, at its sole cost and expense, pay all costs
associated with the Complex design, plan preparation, development, and
obtaining all permits from applicable jurisdictions and all associated costs
and fees thereof.

2) The Concessionaire shall work to procure commodities, services, and
facilities that protect and enhance the overall environment in a diligent,
professional, and credible manner within reasonable fiscal constraints.
Practices should include sustainable design features, water conservation
practices, and recycling programs, where applicable.

3) Development or improvements may require the completion of the National
Environmental Policy Act (“NEPA”) reviews, cultural resource compliance,
or other permits before any improvements or construction activities
commence and shall be at the sole cost and expense of the
Concessionaire. The Concessionaire must plan its activities and provide
MCPRD and relevant permitting agencies sufficient time to review all
drawings and proposals, prepare NEPA documentation, as well as prepare
and review other documentation as required.

4) Concessionaire, at its sole cost and expense, shall develop, organize,
facilitate, and implement a Public Outreach process to solicit meaningful
input and perspective on public recreational opportunities within the Park.

5) The Parties may partner to undertake future improvement projects within
the Complex.

6) The Concessionaire agrees to schedule and conduct any improvements or
construction activity on the Complex in a manner that minimizes hazards
and inconvenience to the public.

Section 5.5.12.A of the Agreement is deleted in its entirety and replaced with
the following.

As part of the initial and ongoing investment into the Complex, the
Concessionaire will complete the items identified in Section 2 of Attachment

C - Exhibit 1.2 - Operation and Improvement Overview - Amended and in
accordance with the provisions of such section (“Required Repairs”). The
items listed in Section 3 of Attachment C - Exhibit 1.2 — Operation and
Improvement Overview — Amended will be considered for future use of the
CIP Fund upon mutual agreement between the County and the
Concessionaire.

. The Parties acknowledge that this Agreement is subject to cancellation pursuant to

the provisions of A.R.S. §38-511.

. Capitalized terms used in this Amendment Six without definition shall have the

meanings assigned to such terms in the Agreement unless the context expressly
requires otherwise.

. This Agreement, as amended, 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. Electronic signatures shall have the same force and effect as
original signatures.

. The foregoing paragraphs contain all the changes made by this Amendment Six. All

other terms and condition, other than as revised in this Amendment Six, shall remain
unchanged and in full force and effect.

IN WITNESS WHEREOF, the Parties hereto have caused this Amendment Six to be
executed by its duly authorized representatives as of the last date written below.

JUNIOR NATIONAL FOUNDATION

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ite

MARICOPA COUNTY

Chairman
Board of Supervisors

ATTEST

Clerk of the Board Date

Approved as to Form:

Deputy County Attorney Date

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ATTACHMENT A

Improvement Phasing Schedule - Amended

Phasing Schedule Approximate
Valuation

Years Description
Phase | Clubhouse, Golf Course Restroom, | $1,300,000
2020-2022 Bunker Renovations, Maintenance Yard,

Cart and Equipment Lease
Phase Il Extensive Golf Course Improvements, | $1,500,000
2022-2023 | Junior National Golf Association Training

Facility, Other
Phase Ill New 18-hole championship golf course $12,000,000
2022-2025 5,000 sf Junior Resource Center

Expand or new Golf Maintenance facility

New and remodeled golf course

restrooms

Renovated and improved on golf course

electrical and irrigation buildings.
Phase IV 20,000 sf new_ clubhouse with | $14,000,000
2026-2028 underground cart storage

ATTACHMENT B
Exhibit 1.1 - Site Plan - Amended

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ATTACHMENT C

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EXHIBIT 1.2 - OPERATION AND IMPROVEMENT OVERVIEW - AMENDED

1. Existing services offered to the Public.

18-hole Golf Course — 6,846 yards.

Driving Range.

Fully stocked Golf Pro Shop with club fitting, to include “demo” days for new golf products
being introduced to the market.

Snack Bar.

Powered Golf Carts.

Quality Driving Range golf balls.

. Practice putting green.

Practice chipping area and sand trap.

Golf club rentals.

Facilities for events, i.e., tournaments, etc.

Quality golf instruction (both private and group).

Junior Golf Academy (year-round).

. Junior Golf Summer and Winter Camps.

Golf tournament opportunities inclusive of interest of local businesses and charities.
Men’s, Women’s, and Senior Golfing Clubs.

Various league play and local school play.

VOZErAL-TOMMO OW>

2. Improvements.

Junior National Golf Association Training Facility.

New 18-hole championship golf course.

20,000 sf new clubhouse with underground cart storage.

5,000 sf Junior Resource Center.

Expand or new Golf Maintenance facility.

New and remodeled golf course restrooms.

Bunker renovations and Extensive Golf Course Improvements

Cart and Equipment Lease

Renovated and improved on golf course electrical and irrigation buildings.

Evaluate current methods and options for seepage control, to be provided to the Contract
Administrator, Maricopa County Parks and Recreation, for review and comment. As.
determined by evaluation by seepage expert, re-line lakes using selected method.

o-TammMmoOm>

3. Proposed Future CIP Items for Consideration and Review.

Complete cart paths as needed from tee to green

Resurface cart paths as needed.

Improve drainage throughout the course as may be identified.

Re-shape tees and greens as may be deemed necessary.

Replant trees as may be deemed necessary to improve curb appeal and playability.
Reline lakes and ponds.

Other items as may be determined or identified during annual review.

Repair and reseal parking lot and walkways as necessary.

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ATTACHMENT D
3.2.1 Fee Payment Schedule — Amended

% Additional Fee

Payment for the AGR
Minimum
Annual Fee | Minimum Monthly | APove $1,200,000 of
Period Payment Fee Payment AGR
9/1/2020 — 12/31/2020 $0.00 $0.00 NIA
4/1/2021 - 12/31/2021 $0.00 $0.00 NIA
4/1/2022 - 12/31/2022 $12,000.00 $1,000.00 NIA
1/1/2023 - 12/31/2025 ** $50,000.00 $4,166.67 7.5%

After One (1) Full Year of Operation of Phase Ill Improvements***

% Additional Fee

Minimum Payment for the AGR
Annual Fee Minimum Monthly | Above $2,400,000 of
Period Payment Fee Payment AGR
1/1/2026 - 12/31/2030 $100,000.00 $8,333.34 7.5%
% Additional Fee
Minimum Payment for the AGR
Annual Fee Minimum Monthly Above $3,600,000 of
Period Payment Fee Payment AGR
1/1/2031 - 12/31/2035 $125,000.00 $10,416.67 8%
1/1/2036 - 12/31/2040 $150,000.00 $12,500.00 8%
1/1/2041 - 12/31/2045 $175,000.00 $14,583.34 8%
1/11/2046 - 12/31/2050 $200,000.00 $16,666.67 8%

*The Concessionaire’s Minimum Fee and Additional Fee Payments owed to the County shall not
exceed eight (8) percent of the Gross Revenue of the golf course.

** Calendar years 2023 through 2025: Concessionaire’s Additional Fee owed to the County shall
be reinvested in the facility and matched by the Concessionaire for beautification improvements
(i.e., road maintenance, perimeter fencing, roadway landscaping, etc.), as agreed to by the
parties and may continue beyond the time period stated, or the additional rent shall be paid
directly to the County.

*** Period stated is pending and may be altered (as noted in this Amendment Six Section 1E). If

the Phasing Schedule is extended, Minimum Fee Payment and Additional Fee Payment
percentage for such time period shall remain the same as 2023-2025 until County's
determination date of the commencement of the one (1) full year of operation of the Phase III
improvements. County's determination date shall be based on occupancy for the Phase III
improvements.

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