AMENDMENT FIVE TO SOUTHWEST GOLF MANAGEMENT LLC.PDF
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AMENDMENT FIVE
TO
USE MANAGEMENT AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
SOUTHWEST GOLF MANAGEMENT, LLC
C-30-04-027-1-05
RECITALS
This Amendment Five to Use Management Agreement (“Amendment Five”) is entered into between
Maricopa County, a political subdivision of the state of Arizona (“County”), and Southwest Golf
Management, LLC, an Arizona limited liability company, as assignee from Tres Rios Golf, LLC
(“Concessionaire”).
WHEREAS, the County entered into Amendment Three to Estrella Mountain Park Golf
Course Use and Management Agreement (“UMA”) for the Management, Operation, Maintenance
and Improvement of the Golf Course Concession – Tres Rios Golf Course at Estrella Mountain
Park Formerly Known as Estrella Mountain Park Golf Course dated March 16, 2011 (C-30-04-027-
1-01), which amended and restated the Use Management Agreement dated March 12, 1997,
Amendment One dated January 6, 1999 and Amendment Two dated June 16, 2004; and
WHEREAS, on April 25, 2012 Maricopa County approved the assignment of the Agreement,
as amended, to Tres Rios Golf, LLC (C-30-14-013-M-00); and,
WHEREAS, on August 17, 2016, the County and Tres Rios Golf, LLC entered into
Amendment Four to the UMA (Amendment Four and the UMA collectively referred to as the
“Agreement”); and
WHEREAS, on September 16, 2020 Maricopa County approved the assignment of the
Agreement from Tres Rios Golf, LLC (C-30-04-027-1-03) to Southwest Golf Management, LLC as
the result of a solicitation (#210127-RFP Request for Proposals for Use Management Agreement
for the Tres Rios Golf Course (“RFP”)) by the County on August 24, 2020 and August 25, 2020;
and
WHEREAS, the County and the Concessionaire desire to enter into this Amendment Five
to the Agreement with the understanding that all other provisions of the Agreement and applicable
previous amendments, shall remain in full force and effect.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, County and
Concessionaire hereby agree as follows:
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I.
INCORPORATION OF RECITALS
The Recitals set forth above are hereby incorporated into this Amendment Five.
II.
GENERAL TERMS
1.
Within thirty (30) days of approval of this Amendment Five by the Maricopa County
Board of Supervisors, Concessionaire shall provide County with approved loan
documents, letter of credit or other documentation to demonstrate to County’s
satisfaction that the Concessionaire has secured adequate financing to complete
improvement projects (Projects) attached hereto as Exhibit A and made a part hereof,
Projects may be added to or deleted from Exhibit A by the Concessionaire only upon
written agreement of County and as long as the expenditure amount equals or
exceeds the dollar amounts listed in Exhibit A. Failure to provide such documentation
of financial commitment or if such documentation fails to show that Concessionaire
can complete the Projects, shall be a Default of this Agreement.
a. Expenditure of funds pursuant to Exhibit A shall be documented and provided
to the County annually until the Projects have been completed and amounts
listed have been expended by the due dates.
b. If the Projects result in delays due to development impediments that will cause
a failure to comply with the timeline as set forth in the Exhibit A the County
may, in its sole discretion, grant a reasonable extension of the timeline, not to
exceed two (2) year.
c. If the Projects are not completed by Concessionaire pursuant to Exhibit A, or
as may be extended (as noted in Section b above), the reserve account,
identified in Section 2 below, shall be forfeited to County for non-performance
and the Concessionaire shall be in Default.
2.
Within thirty (30) days of the Maricopa County Board of Supervisors approval of this
Amendment Five, Concessionaire shall establish a reserve fund in the amount of fifty
thousand dollars ($50,000.00).
3.
Within thirty (30) days of the Maricopa County Board of Supervisors approval of this
Amendment Five, Concessionaire may conduct a Phase I Environmental Study, at its
sole discretion and cost. Pending the results of the study, which results shall be
provided to the County no later than sixty (60) days after the date of this Amendment
Five, Concessionaire and County may agree to appropriate remediation efforts, if any
are needed; or either party may immediately terminate this Agreement without penalty
or liability; or the parties may agree to an additional mutually satisfactory amendment
to the Agreement.
4.
The Agreement is amended as follows:
A.
Section 2.3 Term and Renewal Option is hereby amended to reflect the term
of the Agreement as now defined as the period from the Effective Date through
December 31, 2050 (“the Expiration Date”) with no renewal options remaining.
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B.
Section 2.7 Termination for Cause is hereby amended to include:
In the event of termination for Cause or Default, the Concessionaire shall forfeit
said reserve fund (as defined in Section 2 above) to the County.
C.
Exhibit 3.2.1 Fee Payment Schedule is hereby amended pursuant to Exhibit
B, as attached herewith and made a part hereof.
D.
Exhibit 5.1 Maintenance Standards, Section 10 is hereby amended as follows:
10. Other.
I.
The Concessionaire shall properly (i) prune and maintain all
trees and shrubs to basic arboriculture standards; (ii) replace
dead trees as needed; (iii) remove dead limbs and tree debris;
and (iv) dispose of woody materials on a regular basis. Tree
work above OSHA height restrictions may be done by third party
arborists and paid from the CIP fund
J.
The Concessionaire shall provide commercially reasonable
landscape features at the entrance to the facility, around the
clubhouse and in other key locations.
E.
Section 5.5.1.C Capital Improvement Project Fund is hereby replaced as
follows:
C.
The Concessionaire is required to establish a Capital Improvement
Fund Project (“CIP Fund”) for the funding of capital improvement items.
Starting January 1, 2023 Concessionaire shall make annual contributions to
the CIP Fund on January 1st of each year of two percent (2%) of the annual
gross income as defined, of the prior calendar year. County and
Concessionaire and any other necessary parties will be signatories for
expenditures from this account. The CIP Fund will be capped at the point it
reaches two hundred thousand dollars ($200,000) in CIP Fund balance.
Payments will remain at two percent (2%) annually until the two hundred
thousand dollars ($200,000) cap is attained.
F.
Section 6.1.7 Notices, Current Addresses and Points of Contact is hereby
deleted in its entirety and replaced with the following new Section 6.1.7:
6.17 Notices, Current Addresses and Points-of-Contact.
Any notices required or permitted under this AGREEMENT shall be in writing
and shall be deemed to have been duly given if (i) delivered to the Party at the
address set forth below, (ii) deposited in the U.S. Mail, certified, return receipt
requested, to the address set forth below, (iii) given to a recognized and
reputable overnight delivery service, to the address set forth below or (iv)
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delivered electronically by email with a request for delivery receipt for
message.
For the County:
Maricopa County Parks & Recreation Department
Attn: RJ Cardin
41835 N. Castle Hot Springs Road
Morristown, AZ 85342
Email: rj.cardin@maricopa.gov
Phone: 602-506-9500
For Concessionaire:
Southwest Golf Management, LLC
Attn: James A. Bellows
16633 N. 91st Street, Suite 105
Scottsdale, AZ 85260
Email: j.bellows@bellowsgolfmanagement.com
Phone: 480-668-3086
Cell: 480-797-3677
5. The Parties acknowledge that this Agreement is subject to cancellation pursuant to
the provisions of A.R.S. §38-511.
6. The foregoing paragraphs contain all the changes made by this Amendment Five. All
other terms and condition, other than as revised in this Amendment Five, shall remain
unchanged and in full force and effect.
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DATED this day of
2020
.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed
by its duly authorized representatives.
MARICOPA COUNTY
____________________________________
Chairman
Board of Supervisors
ATTEST
____________________________________
Clerk of the Board
Approved as to Form:
____________________________________
Attorney for Maricopa County
Date
SOUTHWEST GOLF MANAGEMENT, LLC
____________________________________
Principal
Date
State of ___________________ )
)SS:
County of _________________ )
On this, the ______ day of September, 2020, before me a notary public, personally appeared
________________________________, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, and acknowledged that he executed the same
for the purposes therein contained.
In witness hereof, I hereunto set my hand and official seal.
___________________________
Notary Public
My commission expires: ___________________________
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Exhibit A
Improvement Phasing Schedule
Phasing Schedule
Valuation
Years
Description
1-2
Clubhouse, Golf Course Restroom, Bunker
Renovations, Maintenance Yard, Cart and
Equipment Lease, Other
$1,300,000
2-5
Extensive Golf Course Improvements, Junior
National Golf Association Training Facility,
Other
$1,500,000
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EXHIBIT B
3.2.1 Fee Payment Schedule – Amended
Period
Minimum
Annual Fee
Payment
Minimum
Monthly Fee
Payment
*% Additional Fee
Payment for the AGR
Above $1,200,000 of
AGR
9/1/2020 – 12/31/2020
$0.00
$0.00
N/A
1/1/2021 - 12/31/2021
$0.00
$0.00
N/A
1/1/2022 - 12/31/2022
$12,000.00
$1,000.00
N/A
1/1/2023 - 12/31/2023
$50,000.00
$4,166.67
7.5%*
1/1/2024 - 12/31/2024
$50,000.00
$4,166.67
7.5%*
1/1/2025 - 12/31/2025
$50,000.00
$4,166.67
7.5%*
1/1/2026 - 12/31/2026
$50,000.00
$4,166.67
7.5%*
1/1/2027 - 12/31/2027
$50,000.00
$4,166.67
7.5%*
1/1/2028 - 12/31/2028
$50,000.00
$4,166.67
7.5%
1/1/2029 - 12/31/2029
$50,000.00
$4,166.67
7.5%
1/1/2030 - 12/31/2030
$50,000.00
$4,166.67
7.5%
1/1/2031 - 12/31/2031
$50,000.00
$4,166.67
7.5%
1/1/2032 - 12/31/2032
$50,000.00
$4,166.67
7.5%
1/1/2033 - 12/31/2033
$50,000.00
$4,166.67
7.5%
1/1/2034 - 12/31/2034
$60,000.00
$5,000.00
7.5%
1/1/2035 - 12/31/2035
$60,000.00
$5,000.00
7.5%
1/1/2036 - 12/31/2036
$60,000.00
$5,000.00
7.5%
1/1/2037 - 12/31/2037
$60,000.00
$5,000.00
7.5%
1/1/2038 - 12/31/2038
$60,000.00
$5,000.00
7.5%
1/1/2039 - 12/31/2039
$60,000.00
$5,000.00
7.5%
1/1/2040 - 12/31/2040
$60,000.00
$5,000.00
7.5%
1/1/2041 - 12/31/2041
$60,000.00
$5,000.00
7.5%
1/1/2042 - 12/31/2042
$60,000.00
$5,000.00
7.5%
1/1/2043 - 12/31/2043
$60,000.00
$5,000.00
7.5%
1/1/2044 - 12/31/2044
$60,000.00
$5,000.00
7.5%
1/1/2045 - 12/31/2045
$60,000.00
$5,000.00
7.5%
1/1/2046 - 12/31/2046
$80,000.00
$6,666.67
7.5%
1/1/2047 - 12/31/2047
$80,000.00
$6,666.67
7.5%
1/1/2048 - 12/31/2048
$80,000.00
$6,666.67
7.5%
1/1/2049 - 12/31/2049
$80,000.00
$6,666.67
7.5%
1/1/2050 - 12/31/2050
$80,000.00
$6,666.67
7.5%
*Calendar year 2023 through 2027: Additional Rent owed to the County shall be
reinvested in the facility and matched by the Concessionaire for beautification
improvements (i.e. road maintenance, perimeter fencing, roadway landscaping, etc.), as
agreed to by the parties and may continue beyond the time period stated, or the additional
rent shall be paid directly to the County.