CONSENT TO AN AMENDED AND RESTATED SUB-USE AGREEMENT.PDF

CONSENT TO ASSIGNMENT AND TO AN AMENDED AND RESTATED SUB-USE
AGREEMENT
C-30-08-034-1-07
C-69-00-000-0-00
THIS CONSENT TO ASSIGNMENT AND TO AN AMENDED AND RESTATED
SUB-USE AGREEMENT (this “Consent”) is made and executed as of the _____ day of
____________ 2018, by MARICOPA COUNTY, a political subdivision of the State of Arizona,
whose mailing address is c/o of Maricopa County Parks and Recreation Department, 41835 N.
Castle Hot Springs Road, Morristown, Arizona 85342, Attention: Contract Administrator
(“County”) and THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a political
subdivision of the State of Arizona, whose mailing address is 2801 W. Durango Street, Phoenix
AZ 85009, Attention: Director (“FCD”), in favor of EPR PARKS, LLC, a Delaware limited
liability company, whose address is c/o EPR Properties, 909 Walnut, Suite 200, Kansas City,
Missouri 64106, and its successors and assigns (“EPR”).
R E C I T A L S:
WHEREAS, County and the FCD 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 between County and FCD and recorded as Recording No. 1993-421100 on June 26,
1993 in the Official Records of Maricopa County, Arizona, (ii) Second Amendment to Joint Use
Agreement dated May 19, 1999 between County and FCD and recorded as Recording No. 99-
513221 on May 28, 1999 and re-recorded as Recording No. 99-666862 on July 14, 1999 in the
Official Records of Maricopa County, Arizona, (iii) Third Amendment to Joint Use Agreement
dated June 7, 2006 between County and FCD and recorded as Recording No. 2006-840478 on
June 22, 2006 in the Official Records of Maricopa County, Arizona, and (iv) Fourth Amendment
to Joint Use Agreement dated September 22, 2016 between County and FCD and recorded as
Recording No. 20160763640 on October 18, 2016 in the Official Records of Maricopa County,
Arizona (collectively, the “Joint Use Agreement”);
WHEREAS, Subject to the terms and conditions of the Joint Use Agreement, County is
authorized to construct, install, operate and maintain recreational facilities and amenities within
the area of Adobe Dam, an impoundment area which is an integral component of the Adobe Dam
Project, located in the County of Maricopa, State of Arizona, and legally described in the Joint Use
Agreement (the “Joint Use Property”);
WHEREAS, Pursuant to that certain unrecorded Use Management Agreement, dated June
18, 2008, between County and Harvest Family Entertainment-Arizona, LLC, a Missouri limited
liability company (“Harvest”), as amended by that certain unrecorded (i) Amendment One to Use
Management Agreement, dated June 3, 2009, between County and Harvest, (ii) Amendment Two
to Use Management Agreement, dated June 23, 2010, between County and Harvest, and (iii)
Amendment Three to Use Management Agreement, dated November 26, 2013, between County
and Harvest (collectively, the “UMA”), County has granted to EPR, as “concessionaire”, an
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exclusive right to operate, manage, maintain, expand and improve a portion of the Joint Use
Property described on Exhibit A attached hereto and made a part hereof;
WHEREAS, the UMA was assigned by Harvest to CLP Phoenix AZ Waterpark, LLC, a
Delaware limited liability company (“CLP”) by that certain Assignment of Use Management
Agreement dated November 26, 2013 between Harvest and CLP;
WHEREAS, CLP sub-concessioned its interest in the UMA to Arizona Park Holdings,
LLC, a Delaware limited liability company (the “Sub-Concessionaire”) pursuant to that certain
Sub-Use Management Agreement dated November 26, 2013 between CLP and Sub-
Concessionaire (the “Sub-UMA”);
WHEREAS, on or about April 6, 2017, the equity interest of CLP was acquired by EPR
and EPR subsequently merged CLP into EPR with EPR being the surviving entity;
WHEREAS, EPR and Sub-Concessionaire entered into that certain Amended and Restated
Sub-Use Management Agreement dated April 6, 2017 (the “A&R Sub-UMA”);
WHEREAS, Sub-Concessionaire assigned the A&R Sub-UMA to Six Flags Phoenix, LLC,
an Arizona limited liability company (“Six Flags”), by way of that certain Assignment and
Assumption of Sub-Use Agreement dated June 1, 2018 (the foregoing being referred to as the “Six
Flags Assignment”); and
WHEREAS, EPR intends to amend and restate in its entirety the existing A&R Sub-UMA
between EPR and Sub-Concessionaire, as assigned to Six Flags (the “Amended & Restated Sub-
UA”).
NOW THEREFORE, IN CONSIDERATION of the Recitals set forth hereinabove, which
by this reference are incorporated herein, and in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt of which is hereby acknowledged, County agrees to
the following:
1. Consent. Effective as of the date hereof, the parties hereby consent to the
following:
(a) To the extent required under the UMA or the Joint Use Agreement, the County and
the FCD hereby consent to the Six Flags Assignment.
(b) To the extent required under the UMA or the Joint Use Agreement, County and the
FCD hereby consent to the Amended & Restated Sub-UA.
2. Effect of Consent. The County’s and FCD’s consent to the Amended & Restated
Sub-UA shall not constitute consent of County or the FCD to any other agreement.
3. Ratification of Non-Disturbance Agreement. County hereby ratifies and confirms
that certain Non-Disturbance Agreement by and between County, Concessionaire and Sub-
Concessionaire dated November 20, 2013 and recorded in the official records of Maricopa County,
Arizona as Instrument No. 2014-71277 (the “NDA”) and agrees that the NDA shall remain in full
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force and effect. Pursuant to Section 4 of the NDA, County hereby agrees and confirms that in the
event that the UMA (or the rights of the Concessionaire thereunder) is terminated for any reason,
except as otherwise expressly stated in the NDA, then, provided that thereafter Six Flags pays the
rent due and owing under the Amended & Restated Sub-UA directly to County and continues to
perform all obligations to be performed by Six Flags thereunder, County agrees that the Amended
& Restated Sub-UA shall continue in full force and effect and Six Flags’ rights thereunder shall
not be disturbed so long as Six Flags is not in default thereunder beyond applicable notice and cure
periods.
4. Due Authorization, Execution and Delivery. County is duly authorized to execute
this Consent and this Consent has been duly executed and delivered by County. No consent by any
court, agency, bureau, or other (governmental or nongovernmental) third party is required for
County to execute and deliver this Consent, which consent has not been obtained.
5. Reliance. This Consent shall be binding upon County and shall inure to the benefit
of and will be relied upon by EPR, Six Flags and their respective affiliates, successors and assigns.
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IN WITNESS WHEREOF, the undersigned have each executed this Consent effective as
of the date set forth above.
RECOMMENDED FOR APPROVAL: APPROVED:
MARICOPA COUNTY PARKS BOARD OF DIRECTORS
AND RECREATION DEPARTMENT OF MARICOPA COUNTY
RJ Cardin, Director Date Chairman of the Board Date
ATTEST:
Clerk of the Board Date
APPROVED AS TO FORM and within the powers and authority granted under the laws of the
State of Arizona and Maricopa County
Deputy County Attorney Date
[signatures continue on following page]
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RECOMMENDED FOR APPROVAL: APPROVED:
FLOOD CONTROL DISTRICT BOARD OF DIRECTORS OF
OF MARICOPA COUNTY FLOOD CONTROL DISTRICT
OF MARICOPA COUNTY
Michael A. Fulton, Director Date Chairman of the Board Date
ATTEST:
Clerk of the Board Date
APPROVED AS TO FORM and within the powers and authority granted under the laws of the
State of Arizona and Maricopa County
Flood Control District General Counsel Date
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EXHIBIT A
Legal Description
PARCEL 1:
That portion of Lot 1, ADOBE DAM SUBDIVISION, Book 359 of Maps, Page 12 which
lies in the Northwest quarter of Section 15, Township 4 North, Range 2 East of the Gila and Salt
River Meridian, Maricopa County, Arizona being described as follows:
Commencing at the Northwest corner of said Section 15 being a found Maricopa County
Engineering Department brass cap in handhole from which the West quarter corner of Section 15
being a found City of Phoenix brass cap flush bears South 00º16’14” East (Basis of Bearing)
2640.54 feet;
Thence: North 89º33’28” East (North 89º33’30” East record) along the North line of said
Section 15 a distance of 657.77 feet (657.69 feet record) to a point from which the North quarter
corner of Section 15 being a found City of Phoenix brass cap bears North 89º33’28” East, 1973.11
feet (North 89º33’30” East, 1973.17 feet record);
Thence: South 00º18’20” East (South 00º18’47” East record) 65.00 feet to a found ½” rebar
which lies on the South right-of-way line of Pinnacle Peak Road being the POINT OF
BEGINNING.
Thence: Continuing South 00º18’20” East, 264.89 feet (South 00º18’47” East, 264.83 feet
record) to a found ½” rebar;
Thence: North 89º31’42” East, 657.90 feet (North 89º32’10” East, 657.97 feet record) to
a found rebar with cap marked “MRT SURVEYING”;
Thence: South 00º22’36” East, 329.53 feet (South 00º21’20” East, 329.58 feet record) to a
found rebar with cap marked “MRT SURVEYING”;
Thence: South 00º20’55” East, 659.16 feet (South 00º21’20” East, 659.16 feet record) to a
found rebar with cap marked “MRT SURVEYING”;
Thence: South 00º20’55” East, 33.98 feet to a found rebar with cap marked “MRT
SURVEYING”;
Thence: South 89º28’05” West, 1257.43 feet to a set ½” rebar with tag marked “LS 18436”;
Thence: North 00º16’14” West along a line parallel to and 60.00 feet East of the West line
of the Northwest quarter of said Section 15, a distance of 1278.04 feet to a set ½” rebar with tag
marked “LS 18436” which lies on the South right-of-way line of Pinnacle Peak Road;
Thence: Along said right-of-way for the following five (5) courses being set ½” rebars with
tags marked “LS 18436”;
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Thence: North 89º33’28” East (North 89º33’30” East record) 68.73 feet;
Thence: South 00º26’32” East (South 00º26’30” East record) 2.84 feet;
Thence: North 89º33’28” East (North 89º33’30” East record) 22.50 feet;
Thence: North 70º16’06” East, 42.38 feet;
Thence: North 89º33’28” East, 466.60 feet (North 89º33’30” East, 466.54 feet record) to
the POINT OF BEGINNING.
Encloses 1,443,109 square feet or 33.13 acres more or less.
Note: All references to record information are those shown on ADOBE DAM
SUBDIVISION, Book 359 of Maps, Page 12, Maricopa County Records.
BASIS OF BEARING – The North-South line common to Sections 15 and 16, Township
4 North, Range 2 East between the quarter corner being a found City of Phoenix brass cap flush
and the North section corner being a found MCED brass cap in handhole. Said bearing being
North 00º16’14” West as shown on the ADOBE DAM SUBDIVISION Plat of Record, Book 359
of Records, Page 12, records of Maricopa County.
PARCEL 2:
That part of the Northeast quarter of Section 16, T4N, R2E of the Gila and Salt River Base
and Meridian, Maricopa County, Arizona, described as follows:
Beginning at the North quarter corner of said Section 16; thence N89º18’52” E along the
North line of said Section 16 a distance of 720.57 feet to the True Point of Beginning; thence
continuing N 89º18’52” E, 1600.00 feet to a point; thence S 0º15’33” E, 467.00 feet to a point;
thence S 89º18’52” W, 1300.00 feet to a point; thence N 0º15’33” W, 167.00 feet to a point; thence
S 89º18’52” W, 300.00 feet to a point; thence N 0º15’33” W, 300.00 feet to the True Point of
Beginning.
Except the North 55 feet thereof.
Containing 13.98 Ac. more or less.
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