LEASE WITH BLM FOR USERY MOUNTAIN REGIONAL PARK .PDF
Extracted text (via ocr_local)
51494 characters
Form 2912-1 UNITED STATES (May 2001) DEPARTMENT OF THE INTERIOR Serial Number BUREAU OF LAND MANAGEMENT RECREATION OR PUBLIC PURPOSES LEASE Act of June 14,1926, as amended (43 U.S.C. 869 et. seq.) AZA-28416-01 This lease entered into on this day of authorized officer of the Bureau of Land Management, and 20 , by the United States of America, the lessor, through the MARICOPA COUNTY BOARD OF SUPERVISORS hereinafter called the lessee, pursuant and subject to the terms and provisions of the Recreation and Public Purposes Act and to all reasonable regulations of the Secretary of the Interior now or hereafter in force when not inconsistent with any express and specific provisions herein, which are made a part hereof, WITNESSETH: Sec. 1. The lessor, in consideration of therents to be paid and the conditions to be observed as hereinafter set forth,does hereby grantand lease to the lessee the right and privilege of using for the purposes hereinafter set forth in the following-described lands: together with an option to purchase during the term of the lease upon a showing of substantial compliance with the approved plan of development designated in Section 4(a). Gila and Salt River Meridian, Arizona. T.IN.R.7E,, sec. 12, NE1/4SW1/4, NW1/4SE1/4. containing 80 foraperiodof 25 years, the rental to be $ 0.00 acres, together with the right to construct and maintain thereon all buildings or other improvements necessary for such use perannum. If, at the expiration date of the lease the authorized officer shall determine that the lease may berenewed, the lessee herein will be accorded the privilege of renewal upon such terms as may be fixed by the lessor. The lessee may use the premises for "A MODEL AIRPLANE PARK". Sec. 2. There are reserved to the United States all mineral deposits in said lands, together with the right to mine and remove the same under applicable laws and regulations to be established by the Secretary of the Interior. Sec. 3. The lessor reserves the right of entry, or use, by (a) any authorized person, upon the leased area and into the buildings constructed thereon for the purpose of inspection; (b) Federal agents and game wardens upon the leased area on official business; (c) the United States, its permittees and licensees, to mine and remove the mineral deposits referred to in Sec. 2, above. Sec. 4. In consideration of the foregoing, the lessee hereby agrees: (a) To improve and manage the leased area in accordance with the plan of development and management designated as ARIZONA MODEL AVIATORS NEW FIELD 01/25/1996. and approved by an authorized officeron 12/30/1996 or any modification thereof hereinafter approved by an authorized officer, and to maintain all improvements, during the term of this lease, in a reasonably good state of repair. (b) To pay the lessor the annual rental above set forth in advance during the continuance of this lease. (Continued on page 2) (c) Not to allow the use of the lands for unlawful purposes or for any purpose not specified in this lease unless consented to under its terms: not to prohibit or restrict, directly or indirectly, or permit its agents, employees, contractors (including, without limitation, lessees, sub- lessees, and permittees), to prohibit or restrict the use of any part of the leased premises or any of the facilities thereon by any person because of such person’s race, creed, color, sex, or national origin. (d) Not to assign this lease or to change the use of the land without first receiving the consent of the authorized officer of the Bureau of Land Management. (e) That this lease may be terminated after due notice to the lessee upon a finding by the authorized officer that the lessee had failed to comply with the terms of the lease; or has failed to use the leased lands for the purposes specified in this lease for a period of consec- utive years; or that all or part of the landsis being devoted tosome other use not consented to by the authorized officer; or that the lessee has not complied with his development and management plans referred to in subsection 4(a). (f) That upon the termination of this lease by expiration, surrender, or cancellation thereof, the lessee, shall surrender possession of the premises to the United States in good condition and shall comply with such provisions and conditions respecting the removal of the improve- ments of and equipment on the property as may be made by an authorized officer. (g) To take such reasonable steps as may be needed to protect the surface of the leased area and the natural resources and improvements thereon. (h) Not to cut timber on the leased area without prior permission of, or in violation of the provisions and conditions made by an authorized officer. (i) That nothing contained in this lease shall restrict the acquisition, granting, or use of permits or rights-of-way under existing laws by an authorized Federal officer. Sec. 5, Equal Opportunity Clause. Lessee will comply with all provi- sions of Executive Order No. 11246 of September 24,1965, as amended, and the rules, regulations, and relevant orders of the Secretary of Labor. Neither lessee nor lessee’s subcontractors shall maintain segregated facilities. FOR EXECUTION BY LESSEE IN WITNESS WHEREOF: (Signature of Lessee’s Authorized Officer) Sec. 6. Equal Access Clause. Lessee shall comply with all provisions of the American Disabilities Act of July 26, 1990 the Architectural Barriers Act of 1968 and Section 504 of the Rehabilitation Act of 1973, as amended. These Acts require that programs and public facilities constructed or renovated he accessible to and usable by persons with disabilitics. Sec. 7. The lesseemay surrender this lease or any part thereof by filing a written relinquishment in the appropriate BLM office. The relin- quishment shall be subject to the payment of all accrued rentals and to the continued obligation of the lessee to place the lands in condition for relinquishment in accordance with the applicable lease terms in subsections 4(f) and 4(g) and the appropriate regulations. Sec. 8. The lessee further agrees to comply with and be bound by those additional terms and conditions identified as SEE ATTACHED REFERENCED AS EXHIBIT "A", "B", "C"" & up", and which are made a part hereof. Sec. 9. No Member of, or Delegate to, the Congress, or Resident Commissioner, after his election or appointment, and either before or after he has qualified, and during his continuance in office, and no officer, agent, or employee of the Department of the Interior, except as otherwise provided in 43 CFR, Part 7, shallbe admitted to any share or part of this lease, or derive any benefit that may arise there from, and the provisions of Title 18 U.S.C. Sections 431—433, relating to con- tracts, enter into and form a part of this lease, so far as the same may be applicable. THE UNITED STATES OF AMERICA By (Authorized Officer) Field Manager, Lower Sonoran Field Office (Signature of Witness) (Title) (Date) (Date) This form does not constitute an information collection as defined by 44 U.S.C. 3502 and therefore does not require OMB approval. (Form 2912-1, page 2) EXHIBIT “A” BLM STIPULATIONS All applicable regulations in accordance with 43 CFR 2912. This R&PP area lies within category III Sonoran Desert tortoise (BLM sensitive species) habitat. Club members and visitors should look out for and avoid tortoises. If a desert tortoise is encountered stay back at least 10 ft and let the animal move freely away. Ifa tortoise is in immediate danger or if an injured or dead tortoise are encountered, please call Arizona Game and Fish Department at 1-800-352-0700 to report. Any cultural and/or paleontological resources (historic or prehistoric site or object) discovered by the holder or any person working on the holders behalf, on public or federal land shall be immediately reported to the authorized officer. The holder shall suspend all operations in the immediate area of such discovery until written authorization to proceed is issued by the authorized officer. An evaluation of the discovery will be made the authorized officer to determine the appropriate actions to prevent the loss of significant cultural or scientific values. The holder will be responsible for the cost of the evaluation and any decision as to the proper mitigation measures will be made by the authorized officer a er consulting with the holder. This action shall be subject to all rights associated with AZA-3959 (R/W to Maricopa County Flood Control District) and AZA-12965 (SO 7/30/1931 to Bureau of Reclamation for Salt River Project powerlines), AZA-28416-01 EXHIBIT “B” The following stipulations (as requested by Flood Control District of Maricopa County ) shall be incorporated into any sublease that Maricopa County Recreation Services Department enters into for the management of the lands covered by this lease: l. Development shall be in compliance with the Model Aircraft Facility plans dated November 13, 1995, submitted to Flood Control District of Maricopa County on December 6, 1995, with the exception that the fuel enclosure area shall be enclosed on all four sides. Any substantial change, addition, alteration, modification or deviation from the approved plan shall have prior approval of the Flood Control District of Maricopa County. The Arizona Model Aviators Association shall obtain the required license from the Flood Control District of Maricopa County and any other approvals required by the Maricopa County Recreation Services Department. The Arizona Model Aviators Association shall submit a signed Warning and Disclaimer of Liability Notice on a form provided by the Flood Control District of Maricopa County. The Arizona Model Aviators Association shall obtain all other clearances and permits that may be required by Maricopa County. This Floodplain Use Permit granted to the Arizona Model Aviators Association is subject to review and revocation or may be declared null and void if substantial development does not occur within one year of approval or for any substantial deviation from the approved plan or for any violation of the Floodplain Regulation or any stipulations or other terms or agreement made in connection with approval of this permit. Approval of Arizona Model Aviators Association Floodplain Use Permit does not convey any property rights, either real estate or material, and is not to be construed as consent, approval or authorization to cause any injury to property or invasion of rights or infringement of any Federal, State or local laws, rules or regulations nor does it obviate the requirement to obtain other permits. Furthermore, the plan review by the Flood Control District of Maricopa County has been solely for the purpose of determining that Arizona Model Aviators Association's application conforms with the written requirements of the Floodplain Regulation for Maricopa County and is not to be taken as a warranty that the structural plans and specifications meet engineering requirements or standards or are free from failure to perform as described or designed in the Arizona Model Aviators Association's application, reports or plans as submitted. AZA-28416-01 Flood Control District of Maricopa County WARNING AND DISCLAIMER OF LIABILITY A Floodplain Regulation for Maricopa County has been in force since February 25, 1974. The current version of the Floodplain Regulation for Maricopa County, Arizona was adopted on August 4, 1986, and amended March 23, 1987, April 6, 1988, September 18, 1989, September 3, 1991, December 15, 1993, November 1, 2000, December 20, 2006, November 30, 2011, April 9, 2014, June 25, 2014, and January 17, 2018. The intent of the Regulations is to prevent the dangerous and expensive misuse of floodplains in Maricopa County. A Floodplain or floodprone area as defined in the Regulations is any land area susceptible to being inundated by water from any source. Depending on the location of your property it could possibly be inundated by greater frequency flood events (those occurring more often). A flood greater in magnitude than the 100-year flood could also occur. The review your development has undergone is solely for the purpose of determining if your application conforms with the written requirements of the Floodplain Regulation for Maricopa County. It is not to be taken as a warranty. Compliance with this Regulation does not insure complete protection from flooding. The Floodplain Regulation meets established standards for floodplain management, but neither this review nor the Regulation take into account such flood related problems as natural erosion, streambed meander or man-made obstructions and diversions all of which may have an adverse affect in the event of a flood. You are advised to consult your own engineer or other expert regarding these considerations. In consideration for the issuance of the requested permit the applicant, owner, agent, engineer and their successors agree to hold the District harmless from any onsite or offsite damages of any kind arising from the development of the subject property in accordance with their submittals as outlined in the attached permit. I have read and understand the ab King NING AND DISCLAIMER OF LIABILITY, eS [raf ee. Permit Number Wa a Bate / 2801 West Durango Street Phoenix, Arizona 85009 Phone: 602-506-2419 Fax: 602-506-4601 EXHIBIT "C" Application for Land for Recreation or Public Purposes Attachment Section # 4 — Development and Management Plan Usery Mountain Regional Park - Arizona Model Aviators Development Development has been completed on this 80 acre parcel: 1. Asphalt runway 800' long x 100' wide dirt overrun areas Asphalt pit area 250' long x 100' wide 2' safety barrier fence Cleared overflight area approximately 1000 - 1500 feet wide and 400 feet deep 250 feet of covered Ramada shade structure Spectator viewing area. Concession area is available for special events. Electrical is available through gas generator. 10. Ten acres of parking 11. _5' Chain link fencing separating parking pit and runway awn cea Pree) oa Ds Mun Management Plan The use of the facilities shall be available to the public through Club membership. The Club will not discriminate against any person because of race, age, sex, color, national origin, political affiliation, or handicap. The use of the revenue received through fees and charges shall be used only to offset operation and maintenance costs or improvements to facilities. Personnel required for managing daily operations and special events will be by volunteer club members. All members shall be required to adhere to Club and Usery Regional Park rules and regulations. The Club will be responsible for providing port-a-john service for public use, regular road maintenance, removal of liter on regular basis, trash receptacles for public use, and removal of trash from site as needed. | | County officials shall enter and inspect the premises and notify the Club of any unsatisfactory condition relative to the management, operation, maintenance or repair of facilities or other related improvements to surrounding area. The Club shall take immediate action to correct such conditions. There are no environmental or cultural concerns specific to this land. The Club shall comply with all environmental laws and regulations and to take actions as may be reasonably required to protect against environmental liabilities. Under the Agreement, the County reserves the right to terminate the Agreement in the event of the failure of the Club to begin corrective action of any default or breach. AZA-28416-01 ‘ EXHIBIT "D" MANAGEMENT USE AGREEMENT C€30:99.0a5:B This management use agreement is made and entered into this G+) day of ( Wye , 199.7, by and between MARICOPA COUNTY, ARIZONA, hereinafter referred to “COUNTY,” and ARIZONA MODEL AVIATORS ASSOCIATION , a non-profit organization, hereinafter referred to as “MODEL AVIATORS.” WITNESSETH: THAT WHEREAS, pursuant to Sections 11-933 and 11-952 of the Arizona Revised Statutes, and amendments thereto, counties may enter into agreements with the United States, a state, the governing body of another county or municipality, or private legal entity, within or without the state, for the establishment, development, maintenance and operation of a public recreational facility, and WHEREAS, the COUNTY has leased from the Bureau of Land Management a parcel near the Usery Recreation Area for the purpose of a public recreational facility, and WHEREAS, it is the desire of Model Aviators to construct, maintain and operate certain recreational facilities on a parcel of land lying within an area owned by the Bureau of Land Management and managed by the Maricopa County Recreation Services Department, and WHEREAS, it is the belief of the COUNTY that the public interest may best be served by continued operation of the facilities and related programs by Model Aviators, and WHEREAS, it is the expressed intent of both parties that the proposed facilities shall be open to the public and that no person shall be denied use of the facilities because of race, sex, age, religion, national origin, or disability. NOW THEREFORE, in consideration of the mutual promises and agreements of the parties herein 1. 2. 3. contained, it is agreed as follows: USE AND MANAGEMENT OF PREMISES: COUNTY shall provide a parcel of land located in Subdivision NE1/4, SW 1/4, NW1/4, SE 1/4, Section 12, TIN, R7E, G&SRM. COUNTY hereby authorizes MODEL AVIATORS to construct, maintain and operate a model airplane facility, consisting of a paved runway, ramadas, parking area and other related facilities on the premises. Also, no model aircraft shall be operated in the general vicinity of any other aircraft. TERM: The term of this agreement shall be for a period of fifteen (15) years, with an option to renew for an additional fifteen (15) years, subject to the mutual written consent of the parties. It is specifically agreed that this agreement is a license agreement and not a lease and does not convey any ownership interest in the described land. ACCOUNTING RECORDS: MODEL AVIATORS shall maintain financial records and systems which conform to generally accepted accounting principles and which accurately Ab AZA-28416-01 1 of 34 5. EXHIBIT "D" reflect the results of operations and financial status of the organization, Financial records shall be made available for inspection by COUNTY, its agents or employees upon request. ASSIGNMENT: MODEL AVIATORS may not assign or sublet any of its interest without prior written approval by COUNTY and only under the terms and conditions approved by COUNTY in writing. COMPLIANCE WITH LAWS: MODEL AVIATORS shall comply with all applicable federal, state, county, and city statutes, laws, ordinances, and county park rules and regulations whenever adopted. MODEL AVIATORS shall pay all taxes, assessments, fees, licenses, and permits associated with the construction, management, operation, maintenance and repair of the facilities. Non-payment of such taxes or fees shall be considered prima facia evidence of default and subject MODEL AVIATORS to immediate default and termination pursuant to paragraph 17 and the provision of paragraph 17(E) will apply. MODEL AVIATORS shall specifically comply with the following: A. PUBLIC ACCESS: No person shall be denied use of facilities because of race, sex, age, handicap, disability, color, religion or national origin. MODEL AVIATORS shall conform with all applicable laws, regulations, codes, etc., e.g. health, building, zoning and safety codes, and the Americans with Disabilities Act of 1990. B. EQUAL EMPLOYMENT OPPORTUNITY: MODEL AVIATORS will not discriminate against any employee or applicant for employment because of race, sex, age, religion, national origin, or disability. ENTRY _AND INSPECTION: COUNTY shall have the right, at all times, to enter and inspect the premises, and to notify MODEL AVIATORS of any unsatisfactory conditions relative to the management, operation, maintenance, or repair of the facilities. MODEL AVIATORS shall, in a timely manner, take action to correct such conditions at MODEL AVIATORS expense. Failure to do so will place MODEL AVIATORS in default of this agreement pursuant to paragraph 17. CONSTRUCTION OF FACILITIES: MODEL AVIATORS agrees to submit construction plans and specifications to COUNTY for review and approval prior to the commencement of construction for all improvements. A. MODEL AVIATORS agrees to submit any construction plans, specifications as-built plans to COUNTY and Maricopa County Flood Control District. COUNTY shall determine whether the proposed development is consistent with the use of the property as determined by COUNTY and whether MODEL AVIATORS possesses the financial resources to develop and operate the proposed facilities. B. Plans and specifications shall comply with all applicable laws, statutes, ordinances, rules and regulations, including fire, building and zoning codes, as well as, all applicable health and safety regulations. MODEL AVIATORS shall be responsible for obtaining all applicable permits, licenses, etc., including, but not limited to, health, building, zoning, drainage, grading, etc. 2 AZA-28416-01 2 of 34 8. 9. EXHIBIT "D" C. Prior to operating any facility or service to the public, MODEL AVIATORS shall submit proof of any required permit approval to COUNTY. D. All maintenance, operation and construction costs of said facilities shall be the responsibility of MODEL AVIATORS. All facilities shall be used in conjunction with model aviation related recreation activities only. E. The MODEL AVIATORS shall indemnify and save harmless the COUNTY and Flood Control District from any claims for labor or materials in connection with major maintenance and construction of facilities. It is expressly agreed that for the purposes of this agreement, Model Aviators is not the agent of the COUNTY, or Flood Control District for any purpose whatsoever and shall not have any authority to create any lien for labor, materials or services on their behalf. If, because of any act or omission (or alleged act or omission) of Model Aviators, any mechanic's, materialsmen's or other lien, charge, or order for the payment of money shall be filed or recorded against the leased premises or any building or improvement thereon or against the COUNTY or Flood Control District (whether or not such lien, charge, or order is valid or enforceable as such), MODEL AVIATORS shall notify County immediately of served action and at its own expense, cause the same to be canceled and discharged of record within thirty (30) days after MODEL AVIATORS shall have received notice of the filing thereof, or MODEL AVIATORS may, within said period, furnish to the COUNTY or the Flood Control District, a bond satisfactory to them against said lien, charge or order, in which case MODEL AVIATORS shall have the right in good faith to contest the validity or amount thereof. If Model Aviators should contract for any maintenance or construction of facilities, Model Aviators shall require the contractor to obtain a 100% performance bond and a payment bond with copies to be furnished to the COUNTY. F. All permanent improvements made by the MODEL AVIATORS shall become the property of COUNTY upon expiration or termination of this Agreement by expiration of term, mutual agreement or default as set forth in paragraph 17 and/or 18 herein or, at the option of COUNTY, MODEL AVIATORS shall restore the property as closely as practicable to its condition at the time this Agreement was originally approved or to a condition acceptable to COUNTY. G. MODEL AVIATORS agrees to build Phase One Improvements consisting of a paved runway, ramada, public parking lot. Phase One Improvements shall be completed within one year of the date of the execution of this Agreement. Failure to complete construction of Phase One Improvements with this timeframe is grounds for cancellation of this agreement. UTILITIES: It shall be the responsibility of MODEL AVIATORS to bear the cost of any utilities necessary for the operation of their developed facilities. Relocation of any utilities shall be coordinated with, and prior written approval obtained from, COUNTY. INSURANCE: MODEL AVIATORS shall maintain public liability, and property damage insurance, in form acceptable to the COUNTY, with insurers approved by the COUNTY, in full force and effect throughout the term of this lease. The policy or policies of said 3 AZA-28416-01 3 of 34 10. ll. 12. 13. 14. 15. EXHIBIT "D" insurance shall name the COUNTY and Flood Control District as separate “additional insureds" with certificates to be furnished to the COUNTY prior to commencement of licensee along with any and all changes, riders, endorsements or other amendments affecting the policies. Said certificates shall provide for at least ten (10) days prior written notice of cancellation to COUNTY from insurer or insurers. Minimum coverage will be maintained in the following amounts: Combined coverage in the amount of $1,000,000. MODEL AVIATORS shall also be required to carry Worker's Compensation and Employer's Liability coverage, if applicable. Said coverage shall be subject to review and adjustment if the option to renew is granted as provided in paragraph two. Failure to provide said policies of insurance prior to or during the effective dates of this agreement shall automatically place MODEL AVIATORS in default and upon written notice immediately terminate this agreement and the provisions of paragraph 17 (E) only will apply. INDEMNIFICATION: MODEL AVIATORS agrees to indemnify and save harmless COUNTY, or any of its departments, agencies, officers or employees, from and against all loss, expense, damage or claim of any nature whatsoever which is caused by any activity, condition or event arising out of the performance or nonperformance of any of the provisions of this agreement. COUNTY shall in all instances be indemnified against all liability, losses and damages of any nature for or on account of any injuries to or death of persons or damages to or destruction of property arising out of or in any way connected with the performance or nonperformance of this agreement, except such injury or damage as shall have been occasioned by the sole negligence of COUNTY. FEES AND CHARGES: It is the understanding of the COUNTY that use of the facilities may be available to the general public through association membership. Income received through such fees and charges shall be used to offset operating and maintenance costs, improvements to facilities and premises described herein. Also, MODEL AVIATORS may use fees and charges for donations, providing educational programs and other charitable activities. ORGANIZED EVENTS: Shows or other organized events associated with model aviation held by clubs or persons other than MODEL AVIATORS, shall be contracted through MODEL AVIATORS and proper proof of insurance, as set for in paragraph 9, must be provided before any event may take place. It will be the responsibility of MODEL AVIATORS to notify County in advance of such activities and to ensure that all relevant terms and conditions of this agreement are adhered to by such users. HOURS AND DAYS OF QPERATION: MODEL AVIATORS will operate the facility consistent with the hours of operation approved by COUNTY. MODEL AVIATORS shall submit hours of operation to COUNTY for approval initially upon entering into this agreement and any changes thereto. TRAFFIC CONTROL: It shall be the responsibility of MODEL AVIATORS to provide any traffic control or security when applicable. ENVIRONMENTAL: MODEL AVIATORS accepts sole responsibility for all wastes produced by its operation, activities and occupation of the premises and will comply with 4 AZA-28416-01 4 of 34 16. 17. EXHIBIT "D" all applicable laws concerning such wastes, including federal, state, and local regulatory requirements. MODEL AVIATORS further hereby represents and warrants to COUNTY that MODEL AVIATORS, its agents, employees, and contractors, shall not at any time generate, release, place or allow to remain on property any hazardous substances, hazardous wastes, or toxic substances (hereinafter collectively referred to as "Hazardous Substances"), as those terms as defined and regulated under CERCLA, 42 U.S.C. 9601 et seq.. RCRA, 42 U.S.C, 6901 et seg., or TSCA, 15 U.S.C. 2601 et seq., including gasoline and oil without approval in writing from COUNTY. MODEL AVIATORS covenants to comply with all environmental laws and regulations and to take such other actions as may be reasonably required to protect against environmental liabilities. LITTER AND TRASH REMOVAL: MODEL AVIATORS shall pick up litter on a regular basis within the property defined in paragraph 1, and will provide trash receptacles for participant and public use. MODEL AVIATORS will be responsible for providing and paying for its own trash removal service. VIOLATION BY CONCESSIONAIRE - REMEDIES: Violation of any terms of this agreement may result in default and termination of this agreement. A. If MODEL AVIATORS is believed to have materially violated any provision of this Agreement, written notice shall be given to MODEL AVIATORS setting forth the reasons, therefore, and the actions required to bring MODEL AVIATORS into compliance. B. MODEL AVIATORS may seek review of that notice by the Recreation Services Department Director or his/her designee by making such request, in writing, within ten (10) business days of receipt of the notice of violation setting forth the position of MODEL AVIATORS. C. The Director or his/her designee will make the final decision after a review of the circumstances which may include a meeting with representatives of MODEL AVIATORS. D. If no review is requested, pursuant to paragraph (B) above or if, after review, the final decision of the Director or his/her designee is that MODEL AVIATORS has materially violated the terms of this Agreement, written notice shall be provided to MODEL AVIATORS that it shall have not more than thirty (30) days after the receipt of such written notice to cure the violation, or such further time as COUNTY may authorize in writing. If MODEL AVIATORS has not cured the violation by the end of that thirty (30) day period, or such further time as COUNTY authorizes, COUNTY shall cause written notice to be given to MODEL AVIATORS that it is in default which shall be cause for termination of this Management Use Agreement. E. Upon written notice of default and termination, MODEL AVIATORS shall have thirty (30) days to vacate the premises, remove any and all of its personal property therefrom, and if required by COUNTY, restore the property, as closely as practicable to its condition at the time this Agreement was originally approved or to a condition acceptable to COUNTY as set forth in paragraph 7 (F). 5 AZA-28416-01 5 of 34 18, 19. EXHIBIT "D" F.. If COUNTY discovers any situation on the premises of MODEL AVIATORS which it believes constitutes an emergency or immediate danger to public health, safety or welfare, whether or not that situation itself constitutes a violation of this Management Use Agreement, COUNTY will, if possible, notify MODEL AVIATORS of the situation requiring such immediate attention. If MODEL AVIATORS cannot be contacted or does not or cannot remedy the situation in a timely manner satisfactory to COUNTY, COUNTY may take action to remedy the emergency with or without giving advance notice to MODEL AVIATORS. However, notice to MODEL AVIATORS shall be made as soon as practicable. If COUNTY executes its option to remedy the situation, costs incurred by COUNTY for correcting the emergency or dangerous situation shall be paid by MODEL AVIATORS. Failure to either remedy the situation or make such payment shall constitute a violation of the Management Use Agreement and place MODEL AVIATORS in default. G. MODEL AVIATORS upon completion of Phase One Improvements, must establish a fund or other collateral, if allowed by state and federal tax codes which, at least, by the expiration of the term of this management use agreement will provide adequate funds to comply with the potential restoration requirements of paragraph 7 (F). This fund may be in the form of a CD and must be in the initial amount of $5,000 and contain the signatures of COUNTY and MODEL AVIATORS. MODEL AVIATORS and COUNTY may agree and, from time to time, modify in writing a reasonable and approximate amount to satisfy the provisions of this paragraph. Any increase or decease in the amount of this fund will be approved by COUNTY. VOLUNTARY TERMINATION: Either party may terminate this agreement upon ninety (90) days written notice without cause. MODEL AVIATORS will have until that termination date or a date approved by COUNTY, in writing, to remove any and all of its personal property therefrom, and if required by COUNTY, restore the property, as closely as practicable to its condition at the time this Agreement was originally approved or to a condition acceptable to COUNTY as set forth in paragraph 7 (E). SUBORDINATION: It shall be specifically and expressly understood that the terms and conditions of this agreement are subject and subordinate to Recreation and Public Purposes Lease #AZA-28416 between Bureau of Land Management and COUNTY. In addition that lease setforth regulations and requirements of the Maricopa County Flood Control District for MODEL AVIATORS. Attached as Exhibit “A” is the Recreation and Public Purposes Lease #AZA-28416. 6 AZA-28416-01 6 of 34 . EXHIBIT "D" ATTEST: COUNTY OF MARICOPA APR Q 9 1997 rk of the Board APPROVED AS TO FORM: MODEL AVIATORS ASSOCIATION Lyle R. Hu R Deputy County Attorney - Title _/2Es dvr" 7 AZA-28416-01 7 of 34 EXHIBIT "D" AMENDMENT ONE TO SPECIAL USE AGREEMENT (C-30-97-025-B) BETWEEN MARICOPA COUNTY AND ARIZONA MODEL AVIATORS ASSOCIATION WHEREAS, pursuant to the authority granted under A.R.S, §11-933 and 11-952, an Agreement was entered into on April 9, 1997 between Maricopa County (County) and Arizona Model Aviators Association (Model Aviators), a non-profit organization to construct, maintain and operate a model airplane flying club and facility; and WHEREAS, the Agreement was erroneously titled “Management Use Agreement” and is hereby changed to “Special Use Agreement”: however, they are one and the same; and WHEREAS, the Agreement as written shall be for a period of 15 years, with an option to renew for an additional 15 years, subject to the mutual written consent of the Parties; however, Amendment One hereby states that there shall be two (2) renewal options, one for nine (9) years and the other for six (6) years, for a total of 15 years; and WHEREAS, the Parties desire to execute the first renewal option; and WHEREAS, the Agreement will require administrative action from time to time to carry out the spirit and intent of the Agreement. The Department Director for the Maricopa County Parks and Recreations Department is hereby given the authority and charged with the responsibility for proper administration of this Agreement, on behalf of County, whether or not specific authority is granted in any provision of the Agreement; and WHEREAS, the Parties now desire Amendment One to the Agreement of April 9, 1997 for the mutual benefit of the Parties involved with the understanding that all other provisions of the Agreement shall remain in full force and effect, THEREFORE, the following is now mutually agreed upon by both Parties: |. INCORPORATION OF RECITALS: The recitals set forth above are hereby incorporated into this Agreement. Nl. EFFECTIVE DATE: This Amendment One shall be effective on the date executed by the Maricopa County Board of Supervisors and shall remain valid through April 8, 2021. Total term of the “ onisier Y AZA-28416-01 8 of 34 ul. EXHIBIT "D" Agreement would be from April 9, 1997 through April 8, 2021. There will be one (1) six - (6) year renewal option remaining. TERM: Delete Section 2. TERM of the Agreement in its entirety and replace with text to read as follows: 2. TERM: The original Agreement shall commence on the date the Maricopa County Board of Supervisors executes the Agreement. The term of the original Agreement shall be for 15 years (April 9, 1997 through April 8, 2012) with an option to renew for an additional 15 years, further defined as one (1) nine - (9) year and one (1) six - (6) year renewal option, subject to the mutual consent of the Parties and continuation of the lease agreement entered into between the United States Department of the Interior, Bureau of Land Management and Maricopa County for property identified in basic Agreement. It is specifically agreed that this Agreement is a license agreement and not a lease and does not convey any ownership interest in the described land. Amendment One executes the first nine (9) years of the 15 year renewal option to be effective upon execution by the Maricopa County Board of Supervisors, to run concurrent with the original term of the Agreement (April 9, 1997 through April 8, 2012) The amended term of the Agreement is now April 9, 1997 through April 8, 2021. There will be one (1) six - (6) year renewal option remaining dependent upon continuation of the County's agreement with Bureau of Land Management. Failure to exercise renewal options must be “for cause”, Representative “for cause” reasons include, but are not limited to: . A, Termination of the Agreement between Bureau of Land Management and County. B. The property currently identified for use by Model Aviators is no longer safe or useful for the intended recreational use, e.g. a model airplane flying club and facility. C. New federal regulations make continuation of the Agreement unfeasible, D. Unsatisfactory performance on the part of the Arizona Model Aviators within the requirements of its negotiated Special Use Agreement, as amended. E, Inability of Parties to mutually agree as to the terms and conditions as outlined in the renewal option(s), to include escalation of fees. County retains the option to execute renewal options incrementally as dictated by specific instances/events, to be identified by County. As an example, the County may, at its option, choose fo approve a portion of a 2 of 18 AZA-28416-01 9 of 34 EXHIBIT "D" remaining renewal option significantly before the expiration of the original term to facilitate major improvements of said recreation facility/concession, if the County or Flood Control District cancels this Agreement due to no fault of the Arizona Model Aviators, unused fees deposited for the current Contract Year will be returned to Arizona Model Aviators. Return of funds will be prorated from the beginning of the month following the effective date of the termination. ACCOUNTING RECORDS: Delete Section 3, ACCOUTING RECORDS of the Agreement in its entirety and replace with text to read as follows: 3. ACCOUNTING RECORDS: The Arizona Model Aviators shall maintain an accounting system which conforms to generally accepted accounting principles and which accurately reflects the results of the entire operation of the Concession Site. These financial records shall be retained for a seven (7) year rolling period from the current Contract Year. The final seven (7) years of records shall also be retained for five (5) years beyond the expiration date of this Agreement. These financial records shall be made available for inspection or audit by County, Federal, or State Government, their agents or employees at least, but not more than, once per Contract Year, Within 60 days after the end of the Arizona Model Aviators’ Fiscal Year, the Arizona Model Aviators, at its own expense, shall prepare and submit to County, an Annual Financial Report (AFR) reflecting the income and expenses as well as balance sheet for the entire operation of the Concession Site for the Fiscal Year just completed. Said financial statements shall, at a minimum, be reviewed by an independent auditor. This independent auditor must be a Certified Public Accountant. This report shall include a statement that the amounts shown in the financial reports are consistent with those included in the Arizona Model Aviators’ federal and state income tax returns relating to the Concession Site operation. If these are not the same, a statement explaining any differences shall be included, lf the Arizona Model Aviators’ books, records and other documents relevant to this Agreement are not sufficient to support and document reported sales, the Arizona Model Aviators shall, within 30 days of the auditor's report, make payment to the County for any amounts not adequately supported and documented, CONSTRUCTION OF FACILITIES: Add to Section 7. CONSTRUCTION OF FACILITIES of the Agreement, text to read as follows: H. All new improvements will be in compliance with permitting requirements as outlined by Maricopa County, Flood Control District and other permitting agencies. Specific requirements pertaining to improvements on flood pool areas during the review and permitting process, to include restrictions imposed to 3 of 18 AZA-28416-01 10 of 34 Vi EXHIBIT "D" preclude damage to flood control structures and features will be complied with. Refer to Exhibit G — Right-of-Way Permit Applications and Exhibit H — Flood Control Restrictions and Guidelines, as modified based upon current, documents at time of improvement, for assistance during the permitting process for any future improvements, Arizona Model Aviators is responsible for obtaining approval and payment of applicable fees associated with the permitting process. INSURANCE: Delete Section 9. INSURANCE of the Agreement in its entirety and replace with text to read as follows: 9.0 INSURANCE: A. The Arizona Model Aviators will maintain Concession-site specific public liability insurance in the following amounts: (1) General Aggregate $2,000,000 (2) Bodily Injury and Property Damage (Each Occurrence) $1,000,000 (3) Products Completed/Operations Aggregate $1,000,000 (4) Personal and Advertising Injury $1,000,000 (5) Fire Damage (Any One Premises) $100,000 B, The Arizona Model Aviators is required to carry Worker's Compensation, if applicable, for statutory limits. Cc. Casualty insurance in an amount sufficient to rebuild the improvements in case of catastrophic loss. The County and the Arizona Model Aviators will be the sole “loss payee” pursuant to such policies and as such, will be entitled to receive and shall be obligated to apply insurance proceeds to repair or reconstruct damaged improvements. Such insurance proceeds shall not be paid to or deemed part of the County’s General Fund. Proceeds deposited with the County will be disbursed pursuant to customary construction lending practices in the Phoenix, Arizona area, as such repair and restoration is made and subject to such procedures as the County may require monitoring the application of such proceeds. D. Additional Requirements The County and Flood Control District shall be named as “additional insureds” under all policies of insurance. Copies of all insurance policies shall be made available to the County upon request. Copies of the Certificate of Insurance (COI) shall be furnished annually to the County. 4 of 18 AZA-28416-01 © 11 of 34 EXHIBIT "D" The County shall be given 30 days advance written notice of cancellation of policy, non-renewal, or change in coverage limits. Failure of the Arizona Model Aviators to provide and maintain the required insurance coverage listed above during the course of this Agreement shall be considered a default by the Arizona Model Aviators and subject the Arizona Model Aviators to applicable remedies pursuant to Section 17 of the Agreement. Upon justification to the Arizona Model Aviators, the County reserves the right to revise the minimum required limits during the term of this Agreement. The Arizona Model Aviators assumes all risk of loss of the property. Loss to the property may result from, but is not limited to, theft, vandalism, fire and any fire-fighting activities (including prescribed burns), land slides, rising waters, winds, falling limbs or trees and acts of God. If any authorized improvements are destroyed or substantially damaged, County shall conduct an analysis to determine whether rebuilding should be allowed. If rebuilding is not allowed, all or portions of this Agreement may be terminated. If, prior to commencement of, or during, the term of this Agreement, any property, real or personal, under the control of the Arizona Model Aviators or any buildings or improvements or such fixtures or equipment on, below, above, or appurtenant to the Concession Site at the commencement of the term or thereafter erected, installed or placed thereon shall be destroyed or damaged in whole or in apart by fire or any other cause, except condemnation, the Arizona Model Aviators shall give immediate notice thereof to the County. The Arizona Model Aviators will immediately secure the area to prevent injury, vandalism and further damage to persons, improvements and contents thereof, and direct its insurer to make any payment of loss to the County and Flood Control District for disbursement pursuant to Section 9.C of the Agreement. If the destroyed or damaged buildings, improvements, fixtures or equipment are capable of restoration, this Agreement will continue in full force and effect, except that the payment to the County by the Arizona Model Aviators may, to the extent not covered by insurance, be abated or other relief afforded to the extent that the Arizona Model Aviators can demonstrate, and that the County may corroborate, that the damage or restoration interferes with the Arizona Model Aviators’ operations. Any such claim will be denied if such destruction is found by the County to have been caused by the fault or neglect of the Arizona Model Aviators. The Arizona Model Aviators agrees to cooperate in determination of the abatement or other relief to be provided by furnishing all information requested relative to its operations and permitting examination and audit of all accounting records kept in connection with the conduct thereof. The Arizona Model Aviators will, as soon after the damage as reasonably possibly, apply for all required permits to restore damaged property and 5 of 18 AZA-28416-01 12 of 34 VIL. EXHIBIT "D" improvements and complete restorations within a date mutually agreeable to the Parties. Should such damage or destruction occur within 36 months of this Agreement's scheduled termination date, the Arizona Model Aviators and the County may mutually agree to the extent of the restoration. FEES AND CHARGES: Delete Section 11. FEES AND CHARGES of the Agreement in its entirety and replace with text to read as follows: 11, FEES AND CHARGES: A. Administrative Fees An annual Administrative Fee shall be paid to Maricopa County Parks and Recreation Department at the start of each Contract Year (see Exhibit D ~ Payment Schedule). For purposes of this Agreement, the Contract Year begins April 9"" Payment will be received by Parks not later than the start of each new Contract Year (April 9"). Payment will be sent to: Maricopa County Parks and Recreation Department Attn: Accounts Receivable 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 B. Member Fees At the start of each Contract Year (April 9"), the Arizona Model Aviators will submit to County a current member log (see Exhibit E - Member Payment Log) reflecting the number of members that belong to the Arizona Model Aviators’ organization effective March 1°" of the previous Contract Year, The Arizona Model Aviators will in turn reimburse County the equivalent fee amount corresponding to the daily established Park Entrance Fee at that time. (See Exhibit E - Member Payment Log) Payment and the supporting member log (Exhibit E ~ Member Payment Log) will be received by Parks not later than the start of each Contract Year (April 9"). Payment and the Member Log will be sent to: Maricopa County Parks and Recreation Department Attn: Accounts Receivable 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 C. Special Event Fee Not later than the 15" of the month following completion of a “Special Event’, Arizona Model Aviators will submit to the County a Special Event Log reflecting the number of cars that entered the Concession Site during each day of a Special Event. All cars, member and non-member, that enter the Concession Site will be assessed the current Park entrance fee; 6 of 18 AZA-28416-01 13 of 34 EXHIBIT "D" however, of that entrance fee, Arizona Model Aviators will in turn reimburse the County the fee of $1.00 per vehicle per day that entered the Concession Site. (See Exhibit F —- Special Event Log) Payment and the Special Event Log will be sent'to: Maricopa County Parks and Recreation Department Attn: Accounts Receivable ‘ 234 N. Central Avenue, Suite 6400 Phoenix, AZ 85004 A schedule of Special Events will be due County January 1st of each Calendar Year. Changes will be reported to County. Income received from Special Event Fees, with the exception of the $1.00 per car per day of Event, will be retained by the Arizona Mode! Aviators for payment of Model Aviator operating and maintenance expenses, charitable donations and in support of educational programs. Late Payment Fee A late payment fee of 10% of the published or Special Event Fees due County will be assessed if payment is not received by the stated due date (April 9" of each new Contract Year for the Administrative Fee and Member Fee and the 15" of the month following a Special Event). Late fees will be due not later than 20-days after the date of the invoice from County. Tent and Recreational Vehicle Parking and Overnight Camping Occupied, overnight tent and Recreational Vehicle camping will not be allowed on the Concession Site under any circumstances. Occupied, overnight tent and RV camping will be restricted to use of the authorized camp sites (to include group and full hook-up family sites) located within Usery Mountain Regional Park. Use of the camp sites will be based upon availability. Reservations for group camp sites must be made through the Usery Mountain Regional Park staff and patrons will be required to pay the established fee for the occupied camp site. Any reference to occupied, overnight tent and Recreational Vehicle camping on the Concession Site, as part of the Arizona Model Aviators’ promotional material, website or advertising, will not be permitted. On-site parking of tent and Recreational Vehicles is restricted to day-use only and will be removed from the Concession Site when the site is not occupied unless belonging to a Concession or Vendor. Concession or Vendor Tents and Activities — Special Events Outside concessions or vendors invited to be a participant of special events sponsored by the Arizona Model Aviators will be permitted. The option to charge fees to the outside concession or vendor is at the discretion of the Arizona Model Aviators. Income received through outside concession or vendor fees will be retained by the Arizona Model 7 of 18 AZA-28416-014 14 of 34