UMA WITH ADOBE MOUNTAIN SPEEDWAY.PDF

Maricopa County — Formal (2020-12-09)

Extracted text (via ocr_local) 70600 characters

Use Management Agreement
Between
Maricopa County
And
Adobe Mountain Speedway, LLC
For the Promotion, Redevelopment, Management, Operation, and Maintenance of the
Adobe Mountain Speedway Facility located at Adobe Dam Regional Park

#C.

This Use Management 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”, acting on behalf of
its Parks and Recreation Department (hereinafter referred to as “MCPRD”) and Diamond Mechanical, Inc., an
Arizona corporation (hereinafter referred to as “Concessionaire”). The County and the Concessionaire are
collectively referred to as “Parties” or individually as a “Party.”

RECITALS

WHEREAS, the County is authorized to enter into this Agreement pursuant to A.R.S. §§11-201, 11-
251 and 11-933; and

WHEREAS, the County believes the public interest can best be served by contract operation and
redevelopment of the existing dirt kart racing recreational facility at Adobe Dam Regional Park (“Park”) which
comprises a portion of the Maricopa County Regional Parks System; and

WHEREAS, the County and the Flood Control District of Maricopa County, a political subdivision of
the State of Arizona (“District”), entered into that certain Joint Use Agreement, dated September 8, 1981, as
amended by that certain (i) First Amendment to Joint Use Agreement dated June 21, 1993, recorded as Document
No. 1993-0421100 on June 29, 1993, in the Official Records of Maricopa County, Arizona (“MCR”); (ii) Second
Amendment to Joint Use Agreement dated May 19, 1999, recorded as Document No. 1999-0513221 on May 28,
1999, and re-recorded as Document No. 1999-0666862 on July 14, 1999, in the MCR; (iii) Third Amendment to
Joint Use Agreement dated June 7, 2006, recorded as Document No. 2006-0840478 on June 22, 2006, in the
MCR; and (iv) Fourth Amendment to Joint Use Agreement dated September 22, 2016, recorded as Document
No. 2016-0763640 on October 18, 2016, in the MCR (collectively, the Joint Use Agreement); and

WHEREAS, this Agreement is the result of a solicitation (Serial #180246-ITN Promote, Manage,
Operate, Maintain and Improve the Existing Kart Racing Complexes, or Provide an Alternate Recreational
Facility at Adobe Dam Regional Park) released by the County on June 26, 2018 (“ITN”); and

WHEREAS, Concessionaire submitted a response to the ITN and desires to design, improve, expand,
and redevelop the existingdirt kart racing facility on approximately eighteen (18) acres of the Park to be known
as Adobe Mountain Speedway (“AMS”) (the “Complex”, as described in Concessionaire’s ITN response (“ITN
Response”); and

WHEREAS, the Parties agree the intent of this Agreement is solely for the development, operation,
maintenance, management, and improvement of the Complex and does not convey any interests in land or any
property rights.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements
herein contained and other good and valuable consideration, the sufficiency, and adequacy of which the Parties

acknowledge, the Parties agree as follows:

1. Recitals. The Recitals, by this reference, shall be incorporated herein and made a part of this Agreement.
2. Definitions.

Adobe Mountain Speedway Page 1 of 46

Additional Fees Over Minimum: An annual payment paid to the County by the Concessionaire
based upon a percentage of Adjusted Gross Revenue (as defined below) beyond the Minimum Fee
(as defined below). Percentage of Adjusted Gross Revenue to which the Additional Fees over
Minimum applies, and a payment schedule will be due in accordance with the respective agreement
for services.

Adjusted Gross Revenue: All Gross Revenue (as defined below) generated by a concession
adjusted downward for limited MCPRD authorized deductions.

Annual Management Plan (AMP): The AMP is an annual review conducted jointly by the Parties
to review present, and the next year’s plan for development and/or operations of the Complex, as a
fully described in Exhibits 1 through 11 of this Agreement, all of which are attached hereto and
incorporated herein by this reference.

Contract Year: A Contract Year is from January 1* through December 31%, except the first
Contract Year of this Agreement, which will be from the Effective Date (as defined in Section 5(A)
below, through December 31, 2021.

Gross Revenue: Gross Revenue is all monies and/or other revenues generated and/or received by
the Concessionaire’s operations on, or associated with, the Complex before allowable deductions.
The allowable deductions are set forth in Exhibit 8 — Accounting and Fees.

Market Value: Market Value is the value of improvements owned by Concessionaire as shall be
determined by a certified real estate appraiser, as defined per A.R.S §32-3601, who is experienced
at appraising recreational facilities and is agreed upon by the Parties unless otherwise noted in this
Agreement.

Minimum Fee: A base concession fee required to be paid by the Concessionaire to the County in
the amount of either: (1) a specified fixed amount; or (2) based on a percentage of total Gross
Revenue or Adjusted Gross Revenue (as defined hereinabove) in accordance with the payment
schedule outlined in this Agreement.

Opening Date: The Opening Date is the date the Complex, or a portion thereof, initially opens to
the public.

3. Incorporation of ITN. The ITN and the ITN Response are incorporated herein and made part of this
Agreement by reference. If there is any conflict between the provisions of the ITN, ITN Response, and
this Agreement, the provisions of this Agreement shall supersede and control.

4. Scope of the Complex.

The County hereby grants the Concessionaire the right to design, redevelop, expand, manage and
operate the Complex with the improvements illustrated in Exhibit 1 - Complex Conceptual Site
Plan, which is more fully described in Exhibit 2— Complex Activities and Parameters as attached
hereto and made a part hereof.

The Complex shall conform, at a minimum, to each of the descriptions, terms, and conditions set
forth in Exhibits 1 through 11 of this Agreement, all of which are attached hereto and incorporated
herein by this reference, and shall comply with the requirements of the pertinent land patent(s), the
existing Park’s master plan and/or the Park’s updated master plan, and the District’s Flood
Impoundment Restrictions and Guidelines (Exhibit 3 - Development of the Complex - Appendix
One Flood Impoundment Area Guideline and Restrictions), Phoenix City Streams Flood Control
Project regulations, any approved amendments or revisions thereto.

The Concessionaire shall not use Complex for purposes other than uses permitted under the terms
of this Agreement without express written consent and approval of County.

The Concessionaire, at its sole cost and expense, shall obtain all applicable permits, environmental
compliances, taxes, assessments, fees, and other expenses of any nature associated with the
operation, redevelopment, improvement, and expansion of the Complex, as well as management,
operation, and maintenance of the Complex, as more fully described in Exhibits 1 through 11
attached hereto and made a part hereof. Notwithstanding the foregoing, the Concessionaire shall
not be liable for any expenses for or associated with improvements initiated by the County and the
District for their purposes and unrelated to concessionaire activities.

At the time of execution of this Agreement, Concessionaire anticipates the cost of Complex
redevelopment and expansion to be approximately two hundred fifity thousand dollars ($250,000).
Concessionaire shall complete the design and construction of the Complex in accordance with the
schedule below and Exhibit 3 — Development of the Complex attached hereto and made a part
hereof.

i —_______eesesee

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Year

Phasing Schedule AMS

Redevelop and improve existing track at AMS

nNl—

Installation of Spectator Seating and/or Bleachers
Install Restrooms and/or Additional Portable Toilets
Design and Construct an RC Track

Design and Construct an Off Off-Road Track

Design and Construct a Quarter Midget Track

5-20

Design and Construct Additional Contemplated Improvements set forth in Exhibit 2

1) Ifdevelopment impediments described in Exhibit 3-— Development of the Complex cause the
improvements proposed in Years 1-4 of the Complex to extend past the years set forth in the
Phasing Schedule in this Section F, the County may, but is not required to, grant a reasonable
extension of the construction completion year, not to exceed two (2) years.

2) If Concessionaire concludes, in its reasonable judgment, that it will be unable to build all of the
improvements proposed on Exhibit 1- Complex Conceptual Site Plan and/or develop and use
a significant portion of the land due to development impediments as noted in Exhibit 3 -
Development of the Complex, then, in the County’s sole discretion, either: (i) the
Concessionaire shall immediately cease to use the portion of the land that cannot be developed
and, within sixty (60) calendar days of Concessionaire’s notification to the County that the land
cannot be developed as set forth in this Agreement, the Parties shall amend this Agreement to
reflect the reduction in the size of the Complex and the revised Complex elements; or (ii) the
County may terminate the Agreement in accordance with Section 6 of this Agreement.

If any of the proposed improvements to the Complex require a new or modified Occupancy Permit

or Partial Occupancy Permit, the Concessionaire shall not occupy the Complex or that portion of

the Complex until the Occupancy Permit or Partial Occupancy Permit is issued by the jurisdictional
authorities, along with the written consent and approval of the County. Concessionaire shall
commence operations and maintenance of each new improvement within the Complex within six

(6) months from receipt of the new or modified Occupancy Permit (if applicable) and the written

consent of the County.

The Concessionaire shall not commence with any modifications to the Complex, permitted plans,

or any new construction, development, or improvements after Complex completion without the

express written consent and approval of the County and the District.

5. Term and Fees.

The term of this Agreement shall be Twenty (20) years (“Term”), commencing on the date it is fully

executed by the Parties (“Effective Date”).

Renewal Term. Upon Concessionaire’s request, at the County’s sole discretion, and upon mutual

agreement of the Parties, this Agreement may be renewed for up to three (3) terms of five (5) years

each (each a“Renewal Term”) subject to each of the following conditions:

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 date the Term or Renewal Term,
as the case may be, is scheduled to expire; 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 shall negotiate a reasonable adjustment to the Annual Fee and
Additional Fees over Minimum, as defined and administered in Exhibit 8 — Accounting and
Fees attached hereto and made a part hereof, upon the start of the Renewal Term. The
reasonable adjustments shall be based on, but not limited to, Market Value of the property,
Concessionaire’s investment of capital improvements and ongoing maintenance costs, revenue
generation and sustainability of Concessionaire’s recreational activity(ies); and

3) The Renewal Term shall be approved by the County and the District; and

4) The Parties hereby agree neither the County nor the District, 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.

Fees. The Concessionaire shall pay the County Annual Minimum Fees and Additional Fees Over

Minimum, as shown in the fee payment schedule below (“Fee Payment Schedule”) and as

administered in Exhibit 8 - Accounting and Fees.

_—_————_———————————————— —

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Fee Payment Schedule

Annual Minimum Fee| Additional Fee over
5% Increase Per |Mininimum based on|
Contract Year Starting Total Adjusted
Year Period Contract Year 3 Gross Revenue
1 1/1/2021-12/31/2021 | $ 6,000.00 0.0%
2 1/112022-12/31/2022 | $ 12,000.00 2.5%
3 1/112023-12/31/2023 | $ 12,600.00 2.5%
4 1/112024-12/31/2024 | $ 13,230.00 2.5%
5 1/1/2025-12/31/2025 | $ 13,891.50 2.5%
6 1/1/2026-12/3 1/2026 | $ 14,586.08 2.5%
7 4/112027-12/31/2027 | $ 45,315.38 2.5%
8 1/1/2028-12/31/2028 | $ 16,081.15 2.5%
9 1/1/2029-12/31/2029 | $ 16,885.21 2.5%
10 1/112030-12/31/2030 | $ 13,891.50 2.5%
11 1/1/2031-12/31/2031 | $ 14,586.08 3.0%
12 1/1/2032-12/31/2032 | $ 15,315.38 3.0%
13 1/112033-12/31/2033 | $ 16,081.15 3.0%
14 1/112034-12/31/2034 | $ 16,885.21 3.0%
15 1/1/2035-12/31/2035 | $ 17,729.47 3.0%
16 1/1/2036-12/31/2036 | $ 14,586.08 4.0%
17 1/1/2037-12/31/2037 | $ 15,315.38 40%
18 1/1/2038-12/31/2038 | $ 16,081.15 40%
19 1/1/2039-12/31/2039 | $ 16,885.21 4.0%
20 111/2040-12/31/2040 | $ 17,729.47 4.0%

6. Termination.

A. This Agreement may be terminated for cause in whole or in part, at any time, by the County, upon
sixty (60) calendar days prior notice to the Concessionaire without any penalty or liability to County.
Concessionaire and its employees, agents, officers, directors, members, successors, or assigns
hereby waive any and all rights to bring any claim against County or its employees, agents, officers,
directors, members, successors or assigns from or relating in any way to County’s termination of
this Agreement. Representative reasons for “cause” include, but are not limited to: (i) the real
property, or a portion thereof, reverts to the agency from which any patent was received; (ii) the real
property is no longer useful for a recreational purpose; and/or (iii) new requirements imposed upon
the County make a continuation of the Agreement unreasonable.

B. The Parties acknowledge that this Agreement is subject to cancellation pursuant to the provisions
of A.R.S. § 38-511.

C. This Agreement may be terminated without cause with the mutual agreement of the Parties. The
Party requesting the termination must submit its request, in writing, a minimum of one hundred
eighty (180) calendar days in advance of the requested termination date. Notice of the request for
termination shall be sent to the other Party pursuant to the notice provisions set forth in Section 15
of this Agreement. If the request for termination is initiated by the Concessionaire, the County may
select an interim operator (or may choose to become the interim operator) to act as the
Concessionaire until a replacement concessionaire has been selected. Within forty-five (45)
calendar days of the date the interim operator commences operations, or sooner if the Parties agree,
the Concessionaire shall pro-rate any membership fees, fees paid for a future service or other fees
and shall pay such pro-rated amount to the interim operator. The Concessionaire shall pay to the
interim operator all security deposits received by Concessionaire for tournaments, events, or
functions be held at the Complex, scheduled after the termination date of this Agreement.

D. Should the Concessionaire, with the consent of the County, continue to provide the services
described hereinafter the expiration of the Term and/or any Renewal Term, without having entered

rr
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into a subsequent agreement of like nature and content to this Agreement, this shall be deemed a
holdover of the Complex on a month-to-month basis, not to exceed a period of twelve (12) months,
with all of the terms and conditions of this Agreement to continue in full force and effect. If the

Parties have not entered into a new agreement by the end of the twelve (12) month period, the

Concessionaire is required to vacate and may no longer holdover.

7. Default.
A. It shall be a default and breach of this Agreement by Concessionaire if any of the following shall
occur at any time during the Term or Renewal Term:

1) Failure 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
continues for a period of thirty (30) calendar days after notice of such default is given to the
Concessionaire.

2) Failure of the Concessionaire to make satisfactory progress, in the County’s sole discretion, to
meet the mutually agreed-upon annual milestones set forth for each contract year.

3) Failure to operate and maintain the Complex, as more fully described in Exhibits 2 through
11, attached hereto and made a part hereof, pursuant to the terms and conditions of this
Agreement, where such failure continues for a period of thirty (30) calendar 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) calendar days, then the cure
period may be extended by the County, in writing, for such longer time as may be reasonably
necessary, so long as the Concessionaire commences to cure the failure within said thirty (30)
day period, in good faith and with due diligence, and thereafter diligently and continuously
pursues the same to completion.

4) A breach of Concessionaire’s representations and warranties set forth in Section 13 of this
Agreement.

5) Institution or filing by or against the Concessionaire of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of Concessionaire’s debts and not
dismissed within ninety (90) calendar days from the date of such filing or institution.

6) Appointment of a receiver, guardian, conservator, trustee or assignee, or any other similar
officer or person to take charge of all of the property or businesses of the Concessionaire and
such appointment is not vacated within ninety (90) calendar days after the date of appointment.

7) Any general assignment for the benefit of creditors by Concessionaire.

8) All of the Concessionaire’s assets located at the Complex or interest in the Complex being
subjected to attachment, execution or other judicial seizure.

9) Insolvency of the Concessionaire.

10) Concessionaire’s dissolution or ceasing to do business.

B. Upon determination by the County that the Concessionaire is in default, the County shall be entitled,
at its discretion and selection, to exercise one or more of the following remedies:

1) Terminate this Agreement, without penalty or liability to the County, by giving the
Concessionaire notice of termination. Upon the issuance of the notice of termination, all of the
Concessionaire’s rights in the Complex and under this Agreement shall terminate immediately.
Within the notice of termination, the County, in its sole discretion, shall direct the
Concessionaire to (i) surrender and vacate the Complex, and the County may enter and take
possession of the Complex and eject all parties in possession, or eject some and not others, or
eject none; or in the alternative, (ii) the County may at the Concessionaire’s sole cost, and
expense (1) demolish and/or remove all, or a portion of, improvements on the Complex and
return the property, or a portion of the property, to a condition as similar as possible to the
condition of the property at the time of execution of this Agreement; and/or (2) remove all
personal property, trade fixtures, equipment, and inventory owned by Concessionaire and repair
any damage caused to the Complex as a result of the removal of built-in fixtures; and/or (3)
remove all garbage and debris, to include inoperable or obsolete equipment, from the Complex,
all by the date(s) specified by the County.

a) Termination under this Section shall not relieve the Concessionaire of the obligation for
payment of any sums then due to the County or from any claim for damages previously
accrued or then accruing against the Concessionaire. In addition, if the Concessionaire
fails to remove all personal property and garbage/debris from the Complex in the
timeframes specified by the County, Concessionaire shall pay all costs incurred by the
County to remove and dispose of such property in any manner it may deem desirable,
within thirty (30) calendar days of receipt of an invoice from the County

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b) Ifthe Agreement is terminated for default, the Concessionaire shall, and hereby covenants
to, peaceably and quietly surrender the Complex to the County and to execute and deliver
to the County such instruments as shall be required by the County, to evidence termination
of the Concessionaire’s rights hereunder, its interest herein, and to certify that the
Concessionaire has not encumbered the Complex.

2) The County may exercise any other remedy available at law or in equity.

C. It shall be a default and breach of this Agreement by County if the County fails to perform any of
its material obligations hereunder and such failure to perform continues for a period of thirty (30)
calendar days after written notice thereof from the Concessionaire to the County (unless such failure
cannot reasonably be cured within thirty (30) calendar days. In this event, the County shall have
commenced curing said breach or failure within said thirty (30) calendar day period and shall
diligently pursue cure of the failure or breach to completion to avoid being in default). Should the
County continue to be in default without the pursuit of a cure, the Concessionaire may terminate
this Agreement with a ninety (90) calendar day written notice to the County.

8. Surrender. Upon the expiration date or any termination date for reasons other than the default of the
Concessionaire, the Concessionaire shall unless otherwise approved by the County, within sixty (60)
calendar days from the expiration date or termination date of this Agreement, at the County’s sole
discretion, conduct three (3) or more of the following tasks:

A. Execute a Certificate of Acknowledgement that the Concessionaire has vacated and relinquished all
possessory rights to the Complex to the County as well as represent and warrant that the
Concessionaire has not encumbered the Complex; and/or

B. Demolish and/or remove all, or a portion of, the improvements on the Complex as specified by the
County and return the property to a condition as similar as possible to the condition of the property
at the time of execution of this Agreement; and/or

C. Remove all personal property, trade fixtures, equipment, and inventory owned by Concessionaire
from the Complex and repair any damage caused to the Complex as a result of the removal of built-
in fixtures. Any such items not removed within the specified timeframe shall be deemed to be
abandoned by Concessionaire. Concessionaire shall pay all costs incurred by the County to remove
and dispose of such property in any manner it may deem desirable, within thirty (30) calendar days
of receipt of an invoice from the County; and/or

D. Remove all garbage and debris, including inoperable or obsolete equipment, from the Complex. If
Concessionaire fails to remove all garbage and debris (including inoperable or obsolete equipment)
within such timeframe, Concessionaire shall pay all costs incurred by the County to remove and
dispose of said items within thirty (30) calendar days of receipt of an invoice from the County.

9. Financing.

A. The Concessionaire may not mortgage or encumber any improvements that are permanently affixed
to the land or any lands upon which the Complex lies. Improvements that can be disassembled and
removed without damage to the underlying real estate are not considered permanently affixed (e.g.,
above groundwater treatment).

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 liens, 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) calendar days after the Concessionaire received notice of the filing thereof, or the
Concessionaire may, within the said period of time, furnish to the County a bond satisfactory to the
County against said lien, charge or order, in which case the Concessionaire will have the right in
good faith to contest the validity or amount thereof, as provided by law.

10. Indemnification and Insurance.

A. The Concessionaire, for itself, its agents, officers, directors, partners, vendors, contractors,
employees, assignees, sub-concessionaires, licensees, invitees, or any and all other persons claiming
rights through the Concessionaire, shall, to the fullest extent permissible by law, indemnify, defend
and hold harmless the County, including agents, officers, directors, and employees thereof, from
and against any and all loss or expense of any nature whatsoever, incurred as a result of any claim
or suit of any nature whatsoever, which arises in any way, either by neglect, willfulness, action,
omission to act or other failures of any nature whatsoever pursuant to this Agreement. The
Concessionaire shall be liable and responsible for, including but not limited to, reasonable attorneys’

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fees, court costs, awards and other expenses relating to the defense against claims or litigation,

incurred by the County. This clause shall, in all instances, be interpreted to find that the obligation

to defend, indemnify, and hold harmless does fall to Concessionaire. The scope of this
indemnification does not extend to the sole negligence of the County.

B. The Concessionaire shall secure and maintain the following insurance coverage within five (5)
business days of the Effective Date:

1) Public liability insurance, including bodily injury/property damage, auto liability, products and
completed operations liability, liquor liability, and contractual liability, providing limits of no
less than two million dollars ($2,000,000) per claim and five million dollars ($5,000,000)
aggregate limits, or evidence of self-insurance acceptable to the County, for injuries or damage
received or sustained by any person(s), or property at the Complex.

2) Waiver of Subrogation/recovery against the County shall be included in all policies.

3) Coverage must include sexual molestation for the limits of $1,000,000 per occurrence and
$2,000,000 aggregate.

4) Environmental cleanup and pesticide/herbicide coverage shall be included unless
documentation provided by the Concessionaire that this is not available or feasible.

5) Worker’s Compensation, if applicable, with limits not less than $1,000,000 for each accident,
$1,000,000 disease for each employee, and $1,000,000 disease policy limit.

6) Property insurance in an amount sufficient to rebuild the improvements in case of a casualty
loss. Concessionaire shall notify the Contract Administrator immediately upon any property
insurance claim submission. County will be an “additional payee” pursuant to such policy. The
Concessionaire will be entitled to receive and shall be obligated to apply insurance proceeds to
repair or reconstruct damaged improvements. Insurance proceeds shall be disbursed pursuant
to customary construction lending practices in the Phoenix, Arizona area, as such repair and
restoration are being made and subject to such procedures as the County may reasonably require
monitoring the application of such proceeds.

7) The insurance coverages will be reviewed annually, no later than December 31 of each year, as
part of the AMP pursuant to the terms of the Agreement. The County reserves the right to
request a copy of all claims (including but not limited to incident reports, damages).

8) The County reserves the right to revise the minimum required limits of insurance during the
term of this Agreement, provided the changes are consistent with market conditions, prudent
business judgment, and industry standards.

C. The County and the District shall be named as “additional insureds” under all policies of insurance.
Copies of all insurance policies or certificates thereof will be made available to the County upon
request. Copies of the Certificate of Insurance will be furnished annually to the County. The County
will be given thirty (30) calendar days advance written notice of cancellation of a policy, non-
renewal, or change in coverage or limits.

D. The Concessionaire assumes all risk of loss and shall be responsible for any and all losses to the
Complex and all improvements, acquired or developed within the Complex after the Effective Date.
The loss to the Complex may result from but is not limited to, theft, vandalism, fire and any fire-
fighting activities (including prescribed burns), floods, droughts, landslides, rising waters, winds,
falling limbs or trees and acts of God. If, prior to commencement of, or during, the Term or Renewal
Term of this Agreement, any property, real or personal, under the control of the Concessionaire or
any buildings or improvements or such fixtures or equipment on, below, above, or appurtenant to
the Complex at the commencement of the Term or Renewal Term or hereafter erected, installed or
placed thereon shall be destroyed or damaged in whole or in part by any cause except condemnation,
the Concessionaire will notify the County immediately. The Concessionaire will immediately
secure the area to prevent injury, vandalism, or further damage to persons, improvements, and
contents thereof and direct its insurer to make any payment to the appropriate Party.

E. If the destroyed or damaged buildings, improvements, fixtures or equipment under the control of
the Concessionaire are capable of restoration, in the reasonable judgment of the County and
Concessionaire, this Agreement shall continue in full force and effect, except that established fees
payable to the County by the Concessionaire, to the extent not covered by insurance, shall be abated
to the extent that the damage or restoration interferes with the Concessionaire’s operations. The
Concessionaire agrees to cooperate in the determination of the abatement or other relief to be
provided by furnishing all information requested relative to its operations, permitting examination,
and audit of all accounting records kept in connection with the conduct thereof. , The abatement of
fees may be negotiated in relation to the percentage of damage. Fee abatement(s) may be granted
for a period of not more than one hundred eighty (180) calendar days. The Concessionaire will, as

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soon after the damage as reasonably possible, apply for all permits required to restore damaged

improvements, and complete restorations within a date mutually agreeable to the Parties. Should

such damage or destruction occur within thirty-six (36) months of this Agreement’s scheduled Term
date or Renewal Term, or if the damage destroys in excess of fifty percent (50%) of the appraised
value of the Complex on the date of loss (as determined by an independent appraiser), then the

Concessionaire or the County shall have the option to terminate this Agreement in whole or in part.

If this Agreement is terminated pursuant t o this provision, any insurance proceeds shall be applied

first to remove any damaged or destroyed improvements and second to pay any loans to the

Concessionaire secured by its interest in this Agreement or any property covered hereby. The

balance of the proceeds shall be divided by the County and the Concessionaire in equal proportions.

11. Assignment.

A. The Concessionaire shall not transfer, sell or assign, transfer or subcontract, in whole or in part, the
Concessionaire’s rights or interests in the Agreement without the prior written approval of the
County.

B. The Concessionaire shall provide at least ninety (90) calendar days prior to the date of the proposed
transfer, written notice of a sale, or assignment of this Agreement, so any requested analysis, study,
and subsequent County approval can be completed prior to the effective date of the transfer, sale or
assignment.

1) The Concessionaire shall deposit with the County a minimum nonrefundable administrative
transfer fee (“Administrative Fee”) of two thousand five hundred dollars ($2,500.00) upon
notification of a potential sale, transfer, or assignment to reimburse County for administrative
costs associated with the transaction.

2) In connection with a full transfer, sale or assignment to a designated assignee, the
Concessionaire shall provide the County, for review, any information requested by the County
for purposes of transfer, sale or assignment of this type of business operation including, but not
limited to, the following:

a. Business and management capability of the designated assignee; and

b. A financial analysis of the Complex operation, including an appraisal of real property
improvements and/or furniture, fixtures and equipment that are included in the transaction,
be conducted before approving a transfer, sale or assignment; and

c. A background check, including a financial profile and criminal history of the key
individuals of the designated assignee.

C. The Concessionaire, upon no less than ninety (90) calendar days prior written notice to the County,
may partner or subcontract with other entity(ies) to operate units of the Complex, provided that, all
Gross Revenues from partners, subcontractors, vendors and events shall be included in revenue
reporting as per Exhibit 8 - Accounting and Fees. Concessionaire is responsible for all actions,
liabilities, and damages of partners, subcontractors, or other entity(ies).

12. Compliance Requirements.

A. The Concessionaire, for itself and all subcontractors, if any, 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.

B. The Concessionaire, for itself and all subcontractors, if any, agrees to comply with the Immigration
Reform and Control Act (L.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.

C. The Concessionaire, for itself and all subcontractors, if any, shall comply and warrants full
compliance with all federal immigration laws and regulations that relate to their employees, and
their compliance with A.R.S. §23-214 et seq. A breach of this warranty shall be deemed a material
breach of this Agreement that is subject to penalties up to and including termination of this
Agreement. The County retains the right to inspect the papers of Concessionaire or sub-
concessionaires’ employee(s) who work on the Complex to ensure that the Concessionaire or sub-
concessionaire is complying with the warranty provided above. The Concessionaire shall make all
papers and employment records of the said employee(s) available during normal working hours in
order to facilitate such an inspection. Nothing herein shall make any Concessionaire or sub-
concessionaire an agent or employee of the County.

——E—————— EIEIO — — —————EEr

Adobe Mountain Speedway Page 8 of 46

D. The Concessionaire for itself and all subcontractors, if any, warrants that it complies with
verification of employment eligibility and E-Verify Program.

E. If Concessionaire engages in for-profit activity and has ten (10) or more employees, and if this
Agreement has a value of one hundred thousand dollars ($100,000) or more, Concessionaire certifies
it is not currently engaged in and agrees for the duration of this Agreement to not engage in, a
boycott of goods or services from Israel. This certification does not apply to a boycott prohibited by
50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.

13. Concessionaire’s Representations. Concessionaire represents and warrants to the County that the
following statements are true and correct:

A. 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,
County shall have the right to recover the full amount of such commission, percentage, brokerage,
or contingency fee.

B. This 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.

C. No person(s) supplied by the Concessionaire in the performance of obligations under the Agreement
is/are considered to be the County’s employees, and no rights of the County’s civil service,
retirement, or personnel rules apply to such person(s).

D. The Concessionaire has total responsibility for determining employee eligibility, all salaries, wages,
insurance of 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.

E. The Concessionaire will ensure full compliance with all applicable terms and conditions of this
Agreement by its agents, employees, vendors, and contractors (including subcontractors of any tier)
and their respective employees. Failure or refusal of the Concessionaire or its agents, employees,
vendors, contractors, sub-contractors, or their employees to comply with these terms and conditions
will be deemed a breach of this Agreement.

F. The Concessionaire has not been debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from covered transactions by any Federal department or agency.

G. The Concessionaire has not within a three (3) year period preceding this Agreement been convicted
of or had a civil judgment rendered against them for the commission of fraud or a criminal offense
in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal or State antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making
false statements or receiving stolen property.

H. The Concessionaire is not presently indicted or otherwise criminally or civilly charged by a
government entity (Federal, State, or local) with the commission of any of the offenses enumerated
in paragraph (G) of this certification.

I. The Concessionaire has not, within a three (3) year period preceding this Agreement, had
transactions terminated for default.

The Concessionaire shall include, without modification, Sections 13(F) through 13(1) above in all lower

tier covered transactions (e.g., transactions with vendors, contractors) and in all solicitations for lower

tier covered transactions related to this Agreement.
14, Representation and Warranties of County.

County represents and warrants to the Concessionaire that the existing land and improvements are being

presented “as-is, where-is” as of the Effective Date of this Agreement. The County does not imply or

provide any warranty with respect to the physical aspects of the Complex except as set forth herein.
15. Notices.

All notices required under this Agreement shall be in writing and given by email delivery with read
receipt, United States Post Office certified mail with return receipt requested, or by commercial courier
served with a receipt, or by hand delivery with a receipt, to each Party’s following address, or such other
address as either Party may notify the other in writing as provided herein. Any such notice shall be
considered served when communication is received and signed for, or delivery is refused or returned to
the sender as unclaimed.

—————————aEeEEoe~w~wer ee ———— rrr

Adobe Mountain Speedway Page 9 of 46

For the County: Maricopa County Parks & Recreation Department
Attn: Contract Administrator
41835 N. Castle Hot Springs Road
Morristown, AZ 85342
Email: emily.miller@maricopa.gov
Phone: (602) 506-9511

For the Concessionaire: Adobe Mountain Speedway, LLC
Attn: Ted Williams
24661 N. 49% Avenue
Glendale, AZ 85310

Email: ted@diamondmechanical.com
Phone: 623-435-7126

16. General Provisions.

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.

The paragraph or section headings used in this Agreement are for the purpose of convenience or
reference only. They shall not be construed in any manner, or to any extent, to limit or to extend
the effect or meaning of the terms and provisions contained thereunder.

The Parties intend for this Agreement to comply with applicable laws. If any provision of this
Agreement is determined to be invalid, void, or illegal, then such determination shall not affect,
impair, or invalidate any other provision hereof, and the remaining provisions shall remain in full
force and effect, and the Parties shall use their commercially reasonable efforts to restate the invalid
provision to the end that it complies with applicable laws.

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 not to take action may be withheld, delayed or conditioned in
accordance with the different standard.

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.

The Concessionaire agrees to collect data related to recreation uses occurring within the Complex.
The County, or its designated representative, will provide the forms on which to collect the data.
The Concessionaire will not be required to collect or release data to the County that violates any
privacy statutes, regardless of the originator, or is of a nature that identifies specific individuals as
users of the Complex.

There is reserved to the County and their successors or agents, the right of the officers, agents,
employees, licensees, and permittees, or the designees of public bodies, at all proper times and
places, freely to have ingress to, passage over, and egress from all of the said lands, to exercise,
enforce, 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 to
survey Park users and customers at the Complex. Unless there is an emergency, the right of entry
by County must be coordinated with the Concessionaire to ensure safe entry and reasonable flow of
business.

The Concessionaire shall not commit or permit any illegal, morally questionable nuisance or unsafe
condition to be created or maintained on the Complex. The Concessionaire shall not operate or
knowingly permit the operation of any illegal acts upon the Complex.

The Concessionaire hereby agrees and shall provide, obtain and maintain, at its sole cost and
expense, all operating permits and licenses and shall comply with all applicable federal, state,
county, local and city statutes, laws, ordinances, rules, regulations, and instructions, including

rrr
Adobe Mountain Speedway Page 10 of 46

MCPRD’s rules and regulations (see Exhibit 11 - Park Rules), in effect now or as may be amended
or added, which apply to the development, management, operation and maintenance of the Complex,
as more fully described in Exhibits 1 through 11, attached hereto and made a part hereof, and to
keep fully informed of, and in compliance with, any changes or revisions thereto. Upon the securing
of appropriate permits and licenses to sell liquor, the Concessionaire shall provide, at its sole cost
and expense, all insurance required for liquor sales. In addition to compliance with legal
requirements, the Concessionaire shall exercise prudent, responsible, and experienced judgment in
the serving of liquor for consumption in designated areas at the Complex.

J. This Agreement shall be deemed to be made under, and shall be construed in accordance with and
shall be governed, interpreted and regulated by, the laws of the State of Arizona, and arbitration
proceedings, if applicable, or suit to enforce any provision of this Agreement or to obtain any remedy
with respect hereto may be brought in the Superior Court of the State of Arizona, Maricopa County,
and for this purpose, each Party hereby expressly and irrevocably consents to the jurisdiction of said
Court.

K. 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. If an appeal is taken from any
judgment or decree in the suit or action, the Party not prevailing on the appeal shall pay the
prevailing Party such further sum as the appellate court shall adjudge reasonable as attorney fees
on appeal and court costs.

L. 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; governmental restrictions; enemy or hostile governmental action; fire
or other casualties; and other causes beyond the reasonable control of the Party obligated to perform
(each an event of “Force Majeure”).

M. Concessionaire covenants and warrants that the person executing this Agreement on behalf of the
Concessionaire is duly authorized to sign this Agreement and agrees to provide proof of such
authorization, for example, bylaws or a resolution, prior to the execution of this Agreement.

N. This Agreement does not create a leasehold estate, and District shall at all times remain the title

holder of the real property.

The MCPRD Director or his/her delegee shall administer this Agreement.

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 the same instrument. Faxed, electronically

transmitted, and copied signatures are acceptable as original signatures.

Q._ Time is of the essence of this Agreement. If the date for performance of any obligation hereunder
or the last day of any period provided herein shall fall on a Saturday, Sunday or legal holiday, then
said date for performance or period shall expire on the first day thereafter which is not a Saturday,
Sunday or legal holiday.

R. This Agreement, together with any amendments and exhibits 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, 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.

THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK,

SIGNATURE PAGE(S) FOLLOW

———EECw7CEoerwy7yE e— eee

Adobe Mountain Speedway Page 11 of 46

IN WITNESS HEREOF, the Parties have executed this Agreement on the date indicated.

ADOBE MOUNTAIN SPEEDWAY, LLC

V/A

Signature Date

Ted Williams

By:
Printed Name

Managing Member
Its:

Title

RECOMMENDED By:

RJ Cardin Date
Director, Maricopa County Parks & Recreation Dept.

MARICOPA COUNTY

Chairman Date
Board of Supervisors

ATTEST

Clerk of the Board Date

Approved as to Form:

Attorney for Maricopa County

Ft
Adobe Mountain Speedway Page 12 of 46

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Page 13 of 46

Exhibit 1 - Complex Conceptual Site Location at Adobe Dam Regional Park
(Not to Scale)

Adobe Mountain Speedway

Exhibit 1 (continued)
Legal Description
(Not To Scale)

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. Adobe Mountain Speedway

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50 0 50 100 150 200 250 200 30 400 Feet
3 0 2 3 FS 100 125 Meters

That part of the East half of Section 16 in T4N, R2E, Gila and
Sait River Base and Meridian, Maricopa County, Arizona, described
as follows:

Beginning at a stone at the East quarter corner of said Section
Sixteen {6; thence S 0 15’ 55° EB a distance of i77.96 feet to a
point; thence S 89 41° O07 Wa distance of 647.56 feet toa
point; thence $ 38 03’ 33” W, 1080.90 feet to the True Point of
Beginning; thence continuing S 368 03’ 33” W, 1000.00 feet to a
point; thence N 51 26’ 27" W, 542.04 feet toa point; thence N 0
09’ 17" UW, $78.70 feet to a point; thence N 38 03” 33" E, 540.58
feet to a point on the Southwesterly line of the Phoenix Kart
Racing Association boundary line; thence § 51 56’ 27° E along
said line 900.00 feet to the True Point of Beginning, containing
18.7 Ac. more or less.

EXCEPT the Southeasterly 40 feet thereof.

——E E—EEE—E———— EEE
Adobe Mountain Speedway Page 14 of 46

Exhibit 1 (continued)
Complex Conceptual Site Plan
(Not to Scale)

SPECTATOR VEWNG.
SPECTATOR PARKING.
RESIRICIED AREA.

Pa AREA.

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CONCESSION.
RESIROONS

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43RD AVE

Adobe Mountain Speedway Page 15 of 46

Exhibit 2 - Complex Activities and Parameters

Exhibit 2 - Complex Activities and Parameters, as stated herein, sets forth the allowable uses of the Complex.
This Exhibit will be reviewed annually, no later than December 31 of each year, as part of the AMP pursuant to
the terms of the Agreement.

The Concessionaire is authorized to organize, administer, and supervise kart racing competitions and other
recreational activities which include, but are not limited to, organization and facilitation of races, practices, and
tournaments, as well as provide instructional programs and clinics as provided herein for Concessionaire’s
recreation programs at the Complex.

1. Complex Use. Concessionaire shall have exclusive right to schedule use of the Complex and for
conducting Complex Special Events (see Section 4 below).

2. Complex Residency. The establishment of a residence, either temporary or permanent, shall not be
permitted on the Complex or within the Park.

3. Complex Activities.

A. The Complex shall be open to the public. The Concessionaire is anticipated to provide or construct
the following additional structures, support facilities, and infrastructure for recreational activities
associated with the redevelopment and improvements:

1) Redevelopment of existing track, track fencing, and lighting.

2) Additional spectator seating/bleachers.

3) Installation of additional restroom facilities.

4) Remote control car racing track.

5) Off-road racing track.

6) Quarter midget kart track.

7) BMX track.

B. The Concessionaire is anticipated to provide the following recreational racing activities at the
Complex:

1) Off-Road Racing Track (off road karts and UTV’s on the small oval dirt track)

2) Drifting Kart Racing

3) Mini Sprints Karts

4) Winged Outlaw Karts

5) Modified Lites Karts

6) Dwarf/Legends Karts

7) Flat Track Motorcycle Racing

8) Speedway Bikes

9) Midget Karts

10) Quarter Midget Karts

16) Other types of activities approved in advance by MCPRD

4. Complex Special Events. Special Events are defined as events and activities outside of regular-seasonal
practices and races, such as overnight use of lands for trailers, tents, camping. Special Events require
submission of a Special Use Permit (SUP).

A. Special Use Permits. The Concessionaire shall, through coordination with the Contract
Administrator and/or the Park Supervisor, coordinate the planning of SUPs for approval by MCPRD
and District.

1) For planning purposes, it is preferred that the Concessionaire submit annually to MCPRD (by
November 1) the tentative dates of all Special Events anticipated to occur in the upcoming
calendar year. MCPRD may combine annual activities into an annual SUP for approval by
MCPRD and District.

2) Special Event not among the annual planned activities SUP application must be submitted to
the Contract Administrator sixty (60) calendar days prior to the event date.

3) SUP applications shall contain a full written description, a timeline of the event, and a map
showing the location of the event.

4) SUPs may require an addendum to the Emergency Evacuation Plan (see Exhibit 9 — Safety)

5) Special Event overnight use of any temporary structures (e.g., tents, trailers), or vehicles of any
type (including recreational vehicles) located below the 100-year standard project flood pool
elevation is not permitted on the Complex or within the Park without prior written authorization.

———EE——EEE ——EE—————————————————————EEEEeeeeeeee "|
Adobe Mountain Speedway Page 16 of 46

Such authorization may be obtained through the submission of a SUP application with a map

illustrating the location of the overnight use.

a) The Concessionaire shall assist in arranging security for vendors and their vehicles that
remain on the Complex overnight. The County assumes no liability for any vendor
vehicles, equipment or merchandise located on the Complex.

b) The Park volunteers or staff shall not be assigned the additional responsibility for the
security of vendor vehicles, equipment, or merchandise.

c) The Concessionaire may charge a fee for overnight recreational vehicle parking; all fees
charged will be reported on the Monthly Income Statement as “other revenue” (See Exhibit
8 - Accounting and Fees).

d) All overnight recreational vehicle parking shall be self-contained.

6) Additional recreational vehicle parking beyond the Complex boundaries may be coordinated
with the Contract Administrator and/or Park Supervisor, of which the occupants will pay the
County the published primitive overnight parking/camping fee.

7) SUP’s may be modified within the reasonable notification to the Contract Administrator (e.g.,
weather caused delay would require immediate notification; event cancelation would require a
minimum of thirty (30) calendar day notification).

8) There is always a possibility that any SUP may be canceled by County and/or District due to a
public safety concern.

B. Special Event Vendors. The Concessionaire may invite outside vendors to support Special Events
through the sale of vendor products.

1) The Concessionaire assumes all liability for outside vendors and is responsible for obtaining all
required licenses, permits, liability, and shall pay all appropriate taxes as well as to conduct all
appropriate income reporting.

2) The County and the District shall be listed as additionally insured on each Certificate of
Insurance required per Agreement Section 10 Indemnification and Insurance. vendors

3) The County is not liable for the failure of vendors to comply with these obligationsand, it is the
responsibility of Concessionaire to ensure the outside vendors are aware of these requirements
and the County reserves the right to remove from the Complex any vendor who is not in
compliance with these requirements or vendors with products or merchandise deemed
inappropriate.

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Adobe Mountain Speedway Page 17 of 46

Exhibit 3 — Development of the Complex

Exhibit 3 — Development of the Complex, as stated herein, sets forth the guidelines for the planning, design,
permitting, and construction of the Complex. This Exhibit will be reviewed annually, no later than December 31
of each year, as part of the AMP pursuant to the terms of the Agreement.

1. Planning.

The Complex shall be developed with the improvements and activities set forth in Exhibit 2 -

Complex Activities and Parameters.

The Concessionaire shall provide conceptual site plans to identify specific Complex Elements, as

defined below, and infrastructure requirements for each proposed phase of development as set forth

in the Phasing Schedule in Section 4(F) of this Agreement to MCPRD and to the District( through

District’s portal). As defined, Complex Elements are those proposed elements identified in the ITN

Response that are supported by the County at the time of the execution of this Agreement, and any

other facilities that may be agreed upon from time-to-time between Concessionaire, County, and

District.

1) Conceptual site plans should be sufficiently detailed and include information on land use and
construction (i.e., locations of public/non-public access, tracks, buildings, fences.); and

2) Ifapplicable, identify and provide to MCPRD and District studies that outline the infrastructure
needs for the Complex. The studies shall include an analysis of infrastructure capacity and
identification of all permitting and agreements needed to provide the required infrastructure.

Within sixty (60) days prior to the onset of each Contract Year set forth in the Phasing Schedule in

Section 4(F) of this Agreement, the Concessionaire shall submit a detailed timeline of the

Concessionaire’s proposed milestones for the upcoming Contract Year for MCPRD and District

review and approval. In addition to the timeline submittal:

1) Concessionaire shall meet with representatives of MCPRD and the District upon notice from
MCPRD and/or District, but in no event on less than a semi-annual basis, to discuss the
Concessionaire’s progress in achieving the Contract Year goals. Nothing contained herein shall
be construed as prohibiting any meeting from occurring via telephone or another electronic
forum, upon mutual agreement of the Parties, unless the circumstances necessitate in person
meeting(s).

2) Not fewer than five (5) business days prior to each such meeting, Concessionaire shall provide
written reports to MCPRD and District that provide a progress update on each of
Concessionaire’s responsibilities and identify compliance with the approved timeline.

In the event Concessionaire does not make satisfactory progress, in the County’s sole discretion, to

meet the mutually agreed-upon annual milestones set forth for each Contract Year, it shall be

considered a default of this Agreement.

2. Development.

The Concessionaire shall, at its sole cost and expense, shall 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.

The Concessionaire shall design and develop the Complex, at its sole cost and expense, with the
improvements set forth in Exhibit 2 - Complex Activities and Parameters. The Complex will
consist Adobe Mountain Speedway, an unpaved kart racetrack, consisting of approximately 18 acres
of partially developed land.

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.

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. The Concessionaire must plan its activities and provide MCPRD,
District, 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. Refer
to Exhibit 4 - Resource Management for additional compliance parameters.

The Concessionaire understands that the Complex is located within an impoundment area and is
subject to flooding. All proposed development and improvements must adhere to the Adobe Dam
Impoundment Area Guidelines (“Guidelines”) as indicated in Exhibit 3 Development of the
Complex - Appendix One Flood Impoundment Area Guideline and Restrictions.

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Adobe Mountain Speedway Page 18 of 46

F. 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.

G. 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.

H. Proposed construction materials stockpiling and/or equipment staging areas are subject to the prior
approval of the MCPRD and District. A plan that, at a minimum, specifies the quantity, type, and
location of the materials/equipment to be stockpiled/stored/staged, the proposed safety and security
for the staging area(s), and a stormwater protection plan, shall be submitted for approval to MCPRD
and District a minimum of sixty (60) calendar days in advance of the proposed activity. Stockpiling
of material on the streets or in the public right-of-way is not allowed at any time.

3. Plan Approval. All development and improvement plans for new construction or improvements shall be
submitted, in writing, to MCPRD and District (through the District’s portal) for its prior review and
written approval at the conceptual level, thirty percent (30%), sixty percent (60%) and ninety percent
(90%) stages and final stamped sets as required by the respective permitting agency. Final stamped sets
will include the budget, construction schedule, and anticipated dollar expenditures. Any deviation from
the final plans must be approved in writing by MCPRD and/or District. The Concessionaire may
commence construction upon MCPRD’s written notice to proceed after MCPRD and District have
received approved plans and specifications, and the Concessionaire has secured the necessary permits,
licenses, and all other approvals required for the construction of the Complex.

4. Infrastructure. Required infrastructure improvements, which include, but are not limited to, the
following, shall be developed as necessary to serve the development and/or accommodate traffic to and
from the Complex:

A. Roads. The County-maintained existing road(s) within the Park are shown in black on Exhibit
1 -— Complex Conceptual Site Plan attached hereto and made a part hereof.

B. Water.

1) County and District expressly disclaim all warranties, whether expressed or implied, and make
no representations concerning the availability, quality, or sufficiency of any type of water for
present or future use.

2) Potable water is currently provided by the City of Phoenix.

3) The Concessionaire, at its sole cost and expense, shall pay for all costs associated with potable
water and the delivery of potable water to and within the Complex.

C. Waste Water System.

1) Wastewater will need to be disposed of through a septic system or use of chemical toilets
depending upon the planning and permitting restrictions.

1) Concessionaire shall be responsible for all costs for wastewater disposal, to include all costs
associated with the design, permitting, construction, purchase, and maintenance of the
system(s) to be used in support of disposal of wastewater for Concessionaire’s complex, unless
otherwise stated in this Agreement. Regulated substances may not be disposed of in sewer or
septic systems (See Exhibit 4 - Resource Management).

D. Electrical.

1) Concessionaire shall be responsible for providing, maintaining, and paying the fees for the
delivery and use of electricity to and within the Complex to include all meters at no cost to
County unless otherwise stated in this Agreement.

2) Transferring the account or establishing a new account for the electrical service at the existing
facility is also the responsibility of the Concessionaire.

E. Easements. The County and District reserve the right to establish or modify access or utility
easements through the Complex:

1) If the proposed new or modified easement is solely for the benefit of County and/or District,
then the costs of design, permitting, construction, and maintenance of the easement and
improvements located therein will be the responsibility of County and/or District. Reasonable
notice will be provided to the Concessionaire of the location of the proposed easement(s) and
improvements. Construction will be coordinated with Concessionaire.

2) If Concessionaire requests relocation of any existing utilities or new utility installation and/or
new or modified access, Concessionaire shall submit the proposed location(s) of the
easement(s) and improvement(s) to MCPRD and District for MCPRD’s and District’s review
and approval prior to submission to the appropriate planning and permitting authorities. The
Concessionaire shall be responsible for all costs associated with the aforementioned
relocation/installation of utilities and/or access to include all fees, permits, and construction.

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5. Impediments to Development. The Parties recognize that the Concessionaire has not had the benefit of
a contingency period under this Agreement which would enable it to confirm: (i) the ability to obtain all
permits required to complete the improvements contemplated by this Agreement and this Exhibit 3 —
Development of the Complex; (ii) that there are no obstacles to development such as unfavorable soil
conditions, soil contamination, access limitations, and similar matters; and (iii) that there are no other
unanticipated impediments to development such as neighborhood opposition or political opposition to
any aspect of the proposed projects to be undertaken in the Complex, therefore, the Parties agree that the
development of the Complex may be limited and that the elements and features of the Complex are
subject to reasonable change by the Concessionaire to accommodate directives from regulatory agencies,
changes in the marketplace, changes in federal or state statutes or policy, changes dictated by planning
and permitting guidelines or restrictions, changes dictated by opposition to any proposed development,
the inability to obtain utility services or materials to operate any proposed element of the Complex; and
the need to remodel and renovate features. If any of the aforementioned items impede the proposed
development set forth in the ITN Response and the Agreement, Concessionaire shall promptly notify
MCPRD of the impediment and coordinate in good faith with MCPRD to address a possible solution
which may include an amendment to this Agreement. The County will, in its sole discretion, make the
decision(s) pertaining to whether development may deviate from the ITN Response and Agreement, and
such decision(s) cannot be appealed.

6. As-Built Plans. As defined, As-Built Plans shall be a final drawing produced at the completion of the
Complex.

A. As-Built Plans will be submitted to the permitting agencies upon completion of construction of the
Complex or any future improvements.

B. One (1) electronic copy of As-Built Plans and specifications shall be furnished to MCPRD and the
District within sixty (60) calendar days of completion of construction of the Complex or future
improvements. The Concessionaire will be responsible for the costs incurred for additional plans
as may be required.

or
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