ESTOPPEL CERTIFICATE FOR WET N WILD WATER PARK.PDF

ESTOPPEL CERTIFICATE
THIS ESTOPPEL CERTIFICATE (this “Estoppel”) is made and executed as of the
_____ day of 2016, 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”), 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:
A. County and the Flood Control District of Maricopa County, a political subdivision
of the State of Arizona (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”).
B. 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”).
C. 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”).
D. 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”).
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ESTOPPEL CERTIFICATE
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. Estoppel. County represents and warrants to CLP that as of October 20, 2016:
1.1 The UMA has not been modified, altered or amended other than as set
forth in Recital C, is in full force and effect, and constitutes the legal, valid and binding
obligation of County, enforceable against County in accordance with its terms.
1.2 County is not in default of any of its obligations under the UMA, and no
event has occurred which, with notice or the passage of time or both, would constitute a default
in any of County’s obligations under the UMA, and all obligations of the party acting as
“County” under the UMA prior to the date hereof have been performed in full.
1.3 To County’s knowledge, CLP is not in default of any of its obligations
under the UMA, including, without limitation, the payment of rent and other sums payable by
CLP to County thereunder, and no event has occurred which, with notice or the passage of time
or both, would constitute a default in any of CLP’s obligations under the UMA, and all
obligations of the party acting as the “concessionaire” under the UMA prior to the date hereof
have been performed in full.
1.4 To County’s knowledge, County has no current right to terminate the
UMA based on any acts or omissions of CLP as of the date hereof.
1.5 County has no knowledge of any prior transfer of CLP’s interest in the
UMA.
1.6 All agreements and understandings between County and CLP relating to
the Complex are set forth in the UMA.
1.7 County has not assigned, transferred, sold, encumbered, mortgaged or
otherwise encumbered its interest in the Complex or UMA.
1.8 No third party has any option, preferential right or rights of first refusal to
purchase County’s underlying interest the Complex or UMA or any part thereof.
1.9 The term of the UMA commenced on October 1, 2008 and is scheduled to
expire on September 30, 2033. CLP has one (1) option to renew the term of the UMA for a
period of twenty-five (25) years.
1.10 The minimum monthly fee payable by CLP under the Lease has been paid
in full through October 20, 2016. The minimum annual fee is currently $52,550.54 payable in
monthly installments in the amount of $4,379.21. As of October 20, 2016 the additional annual
fee of $218,231.62 is payable annually and not in monthly installments. This fee is due on
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January 2, 2017. The additional annual fee has, in part, been earned by and is owed to the
County, but its payment date has not yet occurred.
1.11 County has not received written notice of any pending eminent domain
proceedings or other governmental actions or any judicial actions of any kind against County’s
or CLP’s interest in the Complex or UMA.
1.12 The Joint Use Agreement has not been modified, altered or amended other
than as set forth in Recital A, is in full force and effect, and constitutes the legal, valid and
binding obligation of County, enforceable against County in accordance with its terms.
1.13 County is not in default of any of its obligations under the Joint Use
Agreement, and no event has occurred which, with notice or the passage of time or both, would
constitute a default in any of County’s obligations under the Joint Use Agreement, and all
obligations of the party acting as “County” under the Joint Use Agreement prior to the date
hereof have been performed in full.
1.14 To County’s knowledge, FCD is not in default of any of its obligations
under the Joint Use Agreement, and no event has occurred which, with notice or the passage of
time or both, would constitute a default in any of FCD’s obligations under the Joint Use
Agreement, and all obligations of the party acting as “District” under the Joint Use Agreement
prior to the date hereof have been performed in full.
1.15 County acknowledges that the Phase I, II and III developments, as each
are described in the UMA, have each been completed, and CLP has no outstanding capital
improvement obligations pursuant to the terms of the UMA.
1.16 County has no rights of first refusal, options to purchase or other rights to
“buy out” CLP’s interest in the UMA.
1.17 County hereby acknowledges and agrees that any lender extending a
mortgage loan to CLP or any tenant named under the Lease, which loan is secured by all of CLP
or such tenant’s right title and interest in and to the UMA, shall be entitled to the rights and
remedies afforded to a Lender under Section 5.3 of the UMA.
2. Reliance. The County acknowledges and agrees that this Estoppel Certificate
will be relied upon by CLP, any purchaser of the direct and/or indirect equity interest in CNL, or
all or substantially all of the assets of CNL, and their respective lender(s), successors and
assigns. If CLP, any such purchaser or their respective lender(s), successors or assigns so
requires, whether currently or at a future date, the County hereby acknowledges and agrees that
the County will execute and deliver, for their benefit, an updated Certificate in the same form as
this Estoppel Certificate. This Estoppel shall inure to the benefit of and be relied upon by CLP,
any such and their respective successors and assigns and be binding upon County and its
successors and assigns.
[the remainder of this page intentionally left blank; signatures on following page(s)]
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IN WITNESS WHEREOF, County has executed this Estoppel effective as of the date
set forth above.
ATTEST: MARICOPA COUNTY BOARD OF
SUPERVISORS
_____________________________ By:
Clerk of the Board Name: Clint Hickman
Title: Chairman
Date: _____________, 2016
Date: _____________, 2016
Approved as to Form:
_____________________________
Deputy County Attorney
Date: _____________, 2016
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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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