HomeMy WebLinkAboutResolution No. 2015-003 CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2015 -00-3
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE MAYOR TO EXECUTE A LEASE AND
SUBLEASE AGREEMENT ASSIGNMENT BY AND BETWEEN
THE CITY OF THE COLONY, MARINE QUEST HIDDEN COVE,
L.P.,AND PLAINS CAPITAL BANK
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas, hereby approves
authorizing the mayor to execute a lease and sublease agreement assignment with City of
The Colony, Marine Quest - Hidden Cove, L.P., and Plains Capital Bank.
Section 2. That a true and correct copy of the Agreement is attached hereto, as
exhibit"A" and incorporated herein.
Section 3. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 6th day of January, 2015.
/E-
Joe McCourrY, Mayor
City of The Colony, Texas(
ATTEST:
f ±tdevt Christie llson, TRMC, Cit Secre)ry
APPROVED AS TO FORM:
#""
Jeff Me or,•, City Attorney
AGREEMENT AS TO LEASE AND SUBLEASE AGREEMENT ASSIGNMENT
MARINE QUEST - HIDDEN COVE,L.P.
LEASE NO. DACW63-1-00-0816
LAKE LEWISVILLE,TEXAS
THIS AGREEMENT (the "Agreement"), made this /41 day of
1./ , 2015, (the "Effective Date") by and between THE CITY OF THE
COQ/ONY, TE , hereinafter referred to as "the City"; MARINE QUEST - HIDDEN COVE,
L.'., hereinafter referred to as "Developer"; and PLAINSCAPITAL BANK, hereinafter referred
to as "Lender."
WITNESSETH:
WHEREAS, the City is the holder of the leasehold under Lease No. DACW63-1-00-0816
(the"Original Lease"), dated 12 May 2000, granted by authority of the Secretary of the Army for
a term of fifty years, beginning 1 April 2000, and covering approximately 720 acres of land and
water in Denton County, State of Texas, known as Hidden Cove Park, hereinafter referred to as
the"Leased Premises,"more particularly described in said lease; and
WHEREAS, Developer is the holder of a Ground Lease, Real Property, and Personal
Property Lease Agreement (the "Sublease Agreement") dated 3 January 2005, granted by
authority of the City, for an initial term of twenty five (25) years, beginning 10 January 2005,
covering approximately 428 acres of land and water in Denton County, State of Texas, being a
portion of Hidden Cove Park, hereinafter referred to as the "Premises", more particularly
described or determined pursuant to the Sublease Agreement; and
WHEREAS, Developer has developed a marina operation on the Premises in compliance
with the Sublease Agreement and the Letter Agreement (the "2013 Agreement") among the City,
Developer, and Lender dated effective March 5, 2013; and
WHEREAS, that development was financed by Lender as described in the 2013
Agreement and the loans relating to such financing continue to be secured by liens, assignments,
and security interests in favor of Lender and subject to the terms of the 2013 Agreement; and
WHEREAS, Lender has agreed at the request of Developer to finance further
development of the Premises by the Developer, provided that Lender is adequately secured by
additional liens, assignments, and security interests in favor of Lender; and
WHEREAS, Section 10.01 of the Sublease Agreement provides that Developer shall
neither transfer, assign, nor grant any interest or lien in the Sublease Agreement without
permission, in writing, from the City; and
NOW THEREFORE, in consideration of the benefits inuring to all parties, the City,
Lender, and Developer agree as follows:
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 1
1. Notwithstanding any term or condition of the Sublease Agreement, including,
without limitation, §10.01 thereof, the City hereby consents to the additional assignment,
transfer, and to the granting of a lien on Developer's subleasehold interest under the Sublease
Agreement and the conveyance of said Sublease Agreement by Developer to Lender for
collateral purposes to secure Lender's financing of further development of the Premises, with
right of reassignment by Lender to a purchaser at Lender's foreclosure sale or by Lender to a
purchaser if Lender acquires the Sublease Agreement through foreclosure, but subject to the
consent of the City, which consent shall not be unreasonably upheld or delayed; provided
however, that the assignment following foreclosure shall become effective when, but only when,
Lender provides written notification to the City that Lender or another purchaser at foreclosure
has come into lawful ownership and possession of the rights of Developer under the Sublease
Agreement, pursuant to the terms of the specified loan agreement(s) and security agreements
between Lender and Developer, and the City has furnished to Lender separate acknowledgments
in a form satisfactory to the City of its receipt of Lender's written notification. If Lender or
another purchaser at foreclosure has obtained such possession through judicial proceedings, the
notice to the City required by this provision shall be accompanied by a certified copy of the order
of the Court in such proceedings.
2. After Lender has foreclosed its mortgage interest, and if Lender is the purchaser at
foreclosure, then Lender may reassign the Sublease Agreement, subject to its terms, in Lender's
efforts to satisfy and make Lender whole as a result of Developer's default. Approval of the
assignment shall not become effective until approved in writing by the City as provided in the
Original Lease and Sublease Agreement, with such approval not being unreasonably withheld or
delayed.
3. The City hereby represents that the Original Lease is in full force and effect as of
the Effective Date of this Agreement, and that neither or none of the parties thereto is, or is
believed to be, in default. The City also warrants and represents to Lender that there has been no
assignment of or pledge of the Original Lease by the City, except for any assignment or pledge
that has previously been disclosed or made known in writing to Lender.
4. The City hereby represents that the Sublease Agreement is in full force and effect
as of the Effective Date of this Agreement, and that neither or none of the parties thereto is, or is
believed to be, in default. The City also warrants and represents to Lender that there has been no
assignment of or pledge of the Sublease Agreement by the City, except for any assignment or
pledge that has previously been disclosed or made known in writing to Lender.
5. The City agrees that if Developer should fail or refuse to perform any of the
covenants or agreements contained in the Original Lease or the Sublease Agreementsufficient to
constitute a default on the part of Developer, the City shall provide Lender with the same notice
of default as to Developer under the terms of the Original Lease and the Sublease Agreement,
and Lender shall have the right and shall be given a reasonable opportunity to cure such default.
It is further agreed that in no event shall Lender's rights be extinguished, cut-off, or forfeited
until such time that Lender has been afforded a reasonable opportunity to cure Developer's
default and has failed to do so.
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 2
6. The City agrees not to modify the Original Lease and the Sublease Agreement,
respectively, without prior notification to Lender.
7. Developer shall, promptly upon final execution, provide the City with a copy of
the security agreement(s) and loan agreement(s) pertaining to Developer's indebtedness to
Lender as referred to in this Agreement, including all renewals, extensions, and modifications
thereof. Lender may transfer or assign such loans and security agreements without first
obtaining the City's consent. Lender shall provide the City notification of any extensions of
times of payments or any changes to terms and conditions of Developer's indebtedness to Lender
for the improvements and facilities described herein. Lender shall provide written notice to the
p
City when the indebtedness of Developer to Lender referenced herein has been paid in full.
8. If Developer should fail to timely cure any default under the Sublease, the 2013
Agreement, or any agreement between the City and Developer pertaining to the Sublease or the
Premises for which written notice has been given in accordance with such agreement, Lender
shall be afforded a reasonable opportunity under the circumstances to cure the default as an
express condition precedent to the City's right to pursue any remedy available at law, in equity,
or under this Agreement, including termination of the Sublease. To that end, and following the
expiration of any cure period accruing to Developer, the City shall provide written notice of the
uncured default to Lender, with such notice including a copy of the written notice first provided
to Developer. Upon receipt of notice of the uncured default, Lender shall have the right and be
given at least sixty (60) days to cure Developer's default. If Developer's default is not cured
within said sixty(60) days, and provided that Lender has commenced efforts to cure Developer's
default, Lender shall have such additional time as may be reasonably necessary under the
circumstances to cure Developer's default provided that Lender's attempts are continuously
prosecuted with no lapse thereof of more than sixty(60) consecutive days. To the extent that the
City may terminate this Agreement, it is specifically acknowledged and agreed that in no event
shall a termination occur until such time that Lender has been afforded a reasonable opportunity
under the circumstances to cure a default as set forth above for which notice has been given and
has failed to do so.
9. The parties agree to work together to resolve any dispute that may arise out of this
Agreement. Should a dispute arise that is not resolved by agreement of the parties, then such
dispute shall be resolved pursuant to the provisions of Chapter 2260 of the Texas Government
Code. It is further expressly acknowledged and agreed that by entering into this Agreement, that
the City is hereby waiving its immunity in accordance with Sections 271.151 to 271.160 of the
Texas Local Government Code, as amended.
10. This Agreement, together with any related documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Agreement. No
alteration of or amendment to this Agreement shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
11. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, and all obligations of the parties created hereunder are performable in
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 3
Denton County, Texas. Venue for any action arising under this Agreement shall lie in the state
district courts of Denton County, Texas.
12. This Agreement may not be assigned without the express written consent of the
other party.
13. This Agreement shall become a binding obligation on the signatories upon
execution by all signatories hereto. Each of the parties represents to the others that the individual
or individuals executing this Agreement on their behalf has full authority to execute this
Agreement and bind the party for whom he or she is signing.
14. Developer and the City agree to make their respective books and records relating
to the construction and operations of the Project and facilities located on the Leased Premises
available for inspection by the other party upon request on location or at their principal office /
corporate location.
15. Caption headings in this Agreement are for convenience purposes only and are
not to be used to interpret or define the provisions of the Agreement.
16. Developer shall fully comply with all local, state and federal laws, including all
codes, ordinances and regulations applicable to this Agreement and the work to be done
thereunder, which exist or which may be enacted later by governmental bodies having
jurisdiction or authority for such enactment. Developer shall be in full compliance with the
terms and conditions set forth in the lease agreement by and between the City and the Corps
regarding the Leased Premises.
17. This Agreement shall be constructed in connection with the Sublease Agreement
executed by the parties hereto; should a conflict arise between the Sublease Agreement and this
Agreement, the provisions of this Agreement shall control; in the event that a conflict arises
between the ordinances of the City of The Colony, and this Agreement, the ordinances of the
City shall control with the exception of any conflict or issue arising out of or relating to the
Hidden Cove Park water supply and sewage treatment facilities.
18. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same document.
19. If Developer or Lender is considering declaring bankruptcy or purposefully
defaulting under this Agreement, notice must be promptly given to the City to allow as much
time as possible for both parties to prepare for such action and ensure the Project's operations
continue uninterrupted.
20. All exhibits to this Agreement are incorporated herein by reference for all
purposes wherever reference is made to the same.
21. The parties acknowledge and agree that this Agreement arises out of and is
entered into for the express purpose of providing the following governmental functions: public
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 4
parks and recreational facilities, consistent with and as defined in Sections 101.0215(a)(13) and
(23) of the Texas Civil Practices and Remedies Code, as amended.
22. Any notice or other communication required or permitted by this Agreement
(hereinafter referred to as the "Notice") is effective when in writing and (i) personally delivered
either by facsimile (with electronic information and a mailed copy to follow) or by hand or (ii)
three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified
with return receipt requested, and addressed as follows:
If intended for Lender,to: With copy to:
PlainsCapital Bank Mr. James E. Key
Attn: Steve Hambrick Harris, Finley& Bogle
801 Houston Street 777 Main Street, Suite 3600
Fort Worth, Texas 76102 Fort Worth, Texas 76102
Facsimile: (817) 431-1949 Facsimile(817) 333-1182
If intended for the City, to: With copy to:
The City of The Colony, Texas Mr. Jeff Moore
Attn: City Manager Brown&Hofmeister, LLP
6800 Main Street 740 East Campbell Road, #800
The Colony, Texas 75056 Richardson, Texas 75081
Facsimile(972) 624-2298 Facsimile(214) 747-6111
If intended for Developer, to: With copy to:
Marine Quest—Hidden Cove, L.P. Mr. Sam Burke
Attn: Marcel Bosworth Wood, Thacker&Weatherly, P.C.
507 E. Dallas Road 400 W. Oak Street, Suite 310
Grapevine, Texas 76051 Denton, Texas 76201
23. A Memorandum of this Agreement may be recorded in the Deed Records of
Denton County, Texas.
24. If a court of competent jurisdiction finds any provision of this Agreement to be
invalid or unenforceable as to any person or circumstance, such finding shall not render that
provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain valid and enforceable.
25. Time is of the essence in the performance of this Agreement.
26. The City and Developer each hereby ratify the Sublease Agreement and the 2013
Agreement, represent to Lender that neither party is in default thereunder as of the Effective Date
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 5
of this Agreement, and confirm that the 2013 Agreement remains in effect and the rights and
remedies of Lender thereunder shall continue until all obligations and debts of Developer to
Lender secured by liens, assignments, and security interests covering Developer's leasehold
interest under the Sublease or pertaining to the Premises have been fully satisfied and paid.
27. All of the terms, conditions, and obligations of the Sublease Agreement and the
2013 Agreement remain in full force and effect except where specifically modified by this
Agreement.
[The Remainder of this Page Intentionally Left Blank]
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 6
THIS AGREEMENT is also executed by the City this '14 day of Obi_, s1_ ,,
2015.
CITY:
CITY OF THE COLONY, TEXAS
A Texas home-rule municipality
A -.
By: �'z: ,-'.`moi'' r tom-
oe McCo , 1Vayor
s
ATTEST:
l_,,tda.i., -) _ ,c,4 _. , ,, ctiilf 6_,,,,-&,,,4 ask,L
,‘,
( Christie •ilson, City Secretary )
APPROVED AS TO FORM:
.moo
By: -s'
Jeff ()ore, City Attorney
DEVELOPER:
MARINE QUEST—HIDDEN COVE,L.P.,
a Texas limited partnership
By: Marine Quest, Inc., • General P. - e,
By: ' . '/7
Name. A e �,!� \ ) ' --
f
Tile: C `.&P Inc, `,.A--
386488.2
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 7
LENDER:
PLAINSCAPITAL BANK
A Texas financial institution
By: ,/lz-�
Nam-. }fiec fvim. /�'4 -
Title: SPm-93r – f ir'e,s/4..A,—
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
l
This instrument was acknowledged before me on the Le day of _
2015, by Joe McCourry, Mayor of THE CITY OF THE COLONY, TEXAS, aT exas hom-' le
municipality, on behalf of said municipality.
de'
V,
AMY PIUKANA
CS
My Commission Expires Notary Public, S -te of exas
4 ,�� January 8, 2017
l
DEVELOPER'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF 1Q(Tac ti— §
This instrument was acknowledged before me on the tr‘ day of 2015,
by Make I o u)J'h , the inr- op G p of Marine Quest, Inc., being the General
Partner of MARINE QUEST—HIDDEN C'9vE,L.P., a Texas limited partnership, for and on behalf of
said limited partnership.
Denbo Last._.
I, �Nolry Publo.ONO ar TMs
1011, Notary Public, State o xas
MAtiMOU
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 8
LENDER'S ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF /CL(1a-t1-1 §
This instrument was acknowledged before me on the day of jai cA.A.(1.1 , 2015,
by +i'ec-f i inoa('e , the 5.d i a. ` 1 s . of PLAINSCAPITAL BANK, a Texi.s financial
institution, on behalf of said financial institution.
Dake Lay
►' w NorryPubic,Mate dTeas
11 ter Notary Public, State of Te s
04011/20111
386488.2 Agreement as to Lease and Sublease Agreement Assignment—Page 9