CONSENT TO ASSIGN AND TO AMENDED AND RESTATED SUB USE AGREEMENT.PDF

CONSENT TO ASSIGNMENT AND TO AN AMENDED AND RESTATED SUB-USE
AGREEMENT
THIS CONSENT TO ASSIGNMENT AND TO AN AMENDED AND RESTATED
SUB-USE AGREEMENT (this “Consent”) is made and executed as of the _____ day of 2017,
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: Chief
Engineer (“FCD”), in favor of CLP PHOENIX AZ WATERPARK, LLC, a Delaware limited
liability company, whose address is c/o CNL Lifestyle Properties, Inc., 450 S. Orange Avenue,
Orlando, Florida 32801, and its successors and assigns (“CLP”).
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, and (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 (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, and as assigned by that certain Assignment of Use Management Agreement, dated
November 26, 2013 between Harvest and CLP (collectively, the “UMA”), County has granted to
CLP, as “concessionaire”, an 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
(the “Complex”).
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
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Sub-Use Management Agreement dated November 26, 2013 between CLP and Sub-
Concessionaire (the “Sub-UMA”).
WHEREAS, EPR Parks, LLC, a Delaware limited liability company (“Parks”), as
successor by assignment to EPR Properties, and a third party not affiliated with CLP (among
others) have entered into a purchase agreement, whereby Parks and CLP intend that Parks will
acquire 100% of the direct and/or indirect equity interest in CLP (the foregoing being referred to
as the “Acquisition”). The date upon which the Acquisition closes is hereinafter referred to as the
“Closing Date”.
WHEREAS, immediately following the closing of the Acquisition, CLP intends to assign
the UMA to Parks by operation of law, which at that time will result in the direct or indirect
assignment of the UMA to an entity owned by, controlled by or under common control with CLP.
WHEREAS, in connection with and immediately following the closing of the Acquisition,
EPR Parks intends to amend and restate in its entirety the existing Sub-UMA between CLP and
Sub-Concessionaire (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 Closing Date, 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 Acquisition and the transfer and assignment of CLP’s right, title
and interest in and to the UMA to EPR Parks.
(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.
(c) Sub-Concessionaire hereby acknowledges the transfer and assignment of CLP’s
right, title and interest in and to the UMA and hereby confirms to the County and the FCD that it
has no objection to such transfer.
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.
Notwithstanding anything contained herein to the contrary, the effectiveness of this Consent is
expressly subject to, and conditioned upon, the closing of the Acquisition. In the event the
Acquisition does not occur, this Consent shall become null and void and of no force or effect
whatsoever.
3. Assumption of Obligations. Effective on the Closing Date, EPR Parks hereby
assumes and agrees to be bound by all of the terms and conditions of, and agrees to perform all the
obligations of CLP under, the UMA.
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4. 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
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 the Sub-
Concessionaire 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 Sub-Concessionaire
thereunder, County agrees that the Amended & Restated Sub-UA shall continue in full force and
effect and Sub-Concessionaire’s rights thereunder shall not be disturbed so long as Sub-
Concessionaire is not in default thereunder beyond applicable notice and cure periods.
5. 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.
6. Reliance. This Consent shall be binding upon County and shall inure to the benefit
of and will be relied upon by CLP, EPR Parks, Sub-Concessionaire 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.
ATTEST: MARICOPA COUNTY BOARD OF
SUPERVISORS
_____________________________ By:
Clerk of the Board Name: Denny Barney
Title: Chairman
Date: _____________, 2017
Date: _____________, 2017
Approved as to Form:
_____________________________
Deputy County Attorney
Date: _____________, 2017
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ATTEST: BOARD OF DIRECTORS OF FLOOD
CONTROL DISTRICT OF MARICOPA
COUNTY
_____________________________
Clerk of the Board By:
Name: Denny Barney
Date: _____________, 2017 Title: Chairman
Date: _____________, 2017
Approved as to Form:
_____________________________
General Counsel
Date: _____________, 2017
[Signatures continue on following page]
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Solely for purposes of Section 3
EPR PARKS, LLC,
a Delaware limited liability company
By:___________________________
Name: ________________________
Title: _________________________
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Solely for purposes of Section 1(c)
ARIZONA PARK HOLDINGS, LLC,
a Delaware limited liability company
By: ______________________________
Name: Kieran E. Burke
Title: President
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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”;
Exhibit A - 1
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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.
Exhibit A - 2
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