HomeMy WebLinkAboutResolution No. 2016-052CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2016- O52
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
APPROVING THE TERMS AND CONDITIONS OF THE ESTOPPEL
CERTIFICATE AND AGREEMENT BY AND BETWEEN THE CITY OF
THE COLONY, AND CNL INCOME COLONY, LP, WHICH IS
ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT
"A"; GROUND LEASE ESTOPPEL CERTIFICATE AND AGREEMENT
BY AND BETWEEN THE CITY OF THE COLONY, CNL INCOME
COLONY, LP, WHICH IS ATTACHED HERETO AND INCORPORATED
HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO
EXECUTE THE AGREEMENTS; AND PROVIDING AN EFFECTIVE
DATE
WHEREAS, the City and Horizon Amusement Southwest, LLC, entered into a
Waterpark Ground Lease and Operating Agreement on December 1, 2003; and
WHEREAS, the City has determined that it is in the best interest of the City to enter into
an Estoppel Certificate and Agreement with CNL Income Colony, I.P, which is attached hereto
and incorporated herein by reference as Exhibit "A", under the terms and conditions provided
therein.
WHEREAS, the City has determined that it is in the best interest of the City to enter into
a Ground Lease Estoppel Certificate and Agreement with CNI. Income Colony, I.P, which is
attached hereto and incorporated herein by reference as Exhibit "A", under the terms and
conditions provided therein.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THAT:
Section 1. The Agreements, which are attached and incorporated hereto as Exhibit "A"
and Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas,
and found to be acceptable and in the best interest of the City and its citizens, be, and the same is
hereby, in all things approved, and the City Manager is hereby authorized to execute the
Agreement on behalf of the City of The Colony, Texas.
Section 2. That this Resolution shall take effect immediately from and after its adoption
and it is so resolved.
PASSED, APPROVED, AND EFFECTIVE this 20th day of September, 2016
G
e Mc o , Mayor
A FST:
CU�
Tina Stewart, TR.MC, City Secretary
APPROYFD AS TO FO
Jeff/Moore; City
SEP,L
f
�TEX Ate'
LANDLORD ESTOPPEL CERTIFICATE
THIS LANDLORD ESTOPPEL CERTIFICATE ("Estoppel"), is made and
entered into this 2oLAnday of 2016 by the CITY OF THE COLONY,
TEXAS, a Texas home -rule munici ality (the "City") to and in favor of CLP COLONY,
LP, a Delaware limited partnership (f/k/a CNL Income Colony, LP), and its successors
and assigns ("CNL").
WITNESSETH:
WHEREAS, Horizon Amusement Southwest, LLC, a Missouri Limited Liability
company ("HAS"), and City entered into a Waterpark Ground Lease and Operating
Agreement dated the 1st day of December, 2003 (as amended and assigned from time to
time, the "Ground Lease's whereby the City leased to HAS certain real property located
in Denton County, Texas, more specifically described on Exhibit "A" attached hereto and
incorporated herein by this reference (the "Leased Premises"); and
WHEREAS, pursuant to the terms and conditions of that certain Assignment and
Assumption of Ground Lease dated September 30, 2004 attached hereto, HFE
HORIZON, L.P., a Texas limited partnership ("HFE") assumed all of HAS's right, title
and interest in and to the Ground Lease;
WHEREAS, pursuant to the terms and conditions of that certain Assignment,
Consent to Assignment and Assumption of Ground Lease and Operating Agreement
dated April 21, 2006, CNL assumed all of HFE's right, title and interest in and to the
Ground Lease;
WHEREAS, pursuant to that certain Sublease Agreement dated as of April 21,
2006 by and between CLP, as landlord, and HFE, as tenant, as amended by that certain
First Amendment to Sublease Agreement (Hawaiian Falls — Colony) dated April 25, 2008
between CLP and Harvest Family Entertainment Texas, LP (f/k/a HFE Horizon, LP)
("Harvest"), as affected by that certain Assignment, Assumption and Consent to
Assignment and Assumption of Waterpark Sublease Agreement (Hawaiian Falls —
Colony) dated as of February 2, 2010, as further amended by that certain Second
Amendment to Sublease Agreement (Hawaiian Falls — Colony) dated as of February 2,
2010, and that certain Third Amendment to Sublease Agreement [Hawaiian Falls —
Colony] dated as of May 31, 2013 (the "Sublease").
NOW, THEREFORE, in consideration of the Ground Lease and other good and
valuable consideration, City hereby represents, warrants and certifies as follows:
a. City represents that the Ground Lease is in full force and effect and has
not been further amended or modified;
0914625\16576711883527x3
b. City represents that it has not entered into any agreements of any nature
(either written or oral) regarding the Leased Premises except the Ground Lease;
C. City represents that to the best of its knowledge, there is no present
default on the part of City under the Ground Lease, and there is no condition existing that
could, given the passage of time or the giving of notice, ripen into a default thereunder;
d. All fixed rent, percentage rent or other charges due under the Ground
Lease as of the date hereof have been paid through the date hereof;
C. The annual rent currently payable by CNL under the Ground Lease is an
amount equal to 6.5% of gross revenues;
f. City represents that no Rent due under the Ground Lease has been paid
more than thirty (30) days in advance; and
g. The term of the Ground Lease commenced on December 1, 2003 and is
scheduled to expire on December 30, 2043. The Ground Lease provides CNL with two
options to extend the term of the lease for a period of five years each.
h. City represents that it has previously consented to the Sublease.
i. City represents that it has no rights of first refusal, options to purchase or
other rights to "buy out" CNL's interest in the Ground Lease.
The City acknowledges and agrees that this Certificate will be relied upon by
CNL, 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 CNL, any such purchaser or their respective lender(s), successors or assigns
so requires, whether currently or at a future date, City hereby acknowledges and agrees
that City will execute and deliver, for their benefit, an updated Certificate in the same
form as this Estoppel.
[The remainder of this page intentionally left blank]
0914625NI65767\1883527v3
IN WITNESS WHEREOF, City has executed this Estoppel as of the day and year first
above written.
"CITY"
CITY OF THE COLONY, TEXAS, a Texas home -
rule municipality
By
Name: 1 oc 1
Title: Man
STATE OF TEXAS
COUNTY OF DENTON
The foregoing instrument was acknowledged before me this 70+�ay of
}Ie n , 2016, by -Yr W as CJ� VMarG1 rof the City of The
Colo y, Texas, a Texas home -rule municipality, on behalf of such municipality. He/she
is personally known to me or has produced -br',Wf4z t\Was identification.
Notary
..... r=_<..,.:.,.x�. Notary Public
TINIASTMART Name:
^oMMiSSION EXPIRES
,``�. Commission No.:
F:l.,ruaq 14,2019
My Commission Expires: Z, I LI.1
CI
(SEAL)
0914625116576711883527x3
Exhibit "A"
Legal Description of Leased Premises
Leasehold Estate created in that certain unrecorded WATERPARK GROUNDLEASE
AND OPERATING AGREEMENT dated 12/01/2003, executed by and between the City
of THE COLONY, TEXAS, a Texas home -rule municipality, as LESSOR, and
HORIZON AMUSEMENT SOUTHWEST, L.L.C., a Missouri Limited Liability
Company, as LESSEE (the "Ground Lease"), as affected by an ASSIGNMENT AND
ASSUMPTION OF GROUND LEASE AGREEMENT dated 09/30/2004, whereby HFE
11ORIZON, L.P., assumed all of LESSEE'S right, title and interest in the Ground Lease,
and as further affected by an ASSIGNMENT, CONSENT TO ASSIGNMENT AND
ASSUMPTION OF WATERPARK GROUND LEASE AND OPERATING
AGREEMENT dated 04/21/2006, by and among HFE HORIZON, L.P., a Texas limited
partnership (the "Assignor"), and CNL INCOME COLONY, LP, a Delaware limited
partnership (the "Assignee"), and the CITY OF THE COLONY, TEXAS, a Texas home -
rule municipality (the "City"), filed for record on 4/24/2006, recorded in cc#2006-47650,
Real Property Records of Denton County, Texas, in and to the following described
property, to -wit -
Being part of LOT 1, BLOCK 1, of FIVE STAR EAST, an Addition to the City of The
Colony, Denton County, Texas, according to the plat thereof recorded in Cabinet W,
Slide 782, Plat Records, Denton County, Texas, and being more particularly described by
metes and bounds as follows:
COMMENCING at a 1/2 -inch rod w/ "Dowdy: cap at the most Southerly Southwest
corner of Lot 14, Block J of the Legend Trails Phase 11 Addition as described by plat in
Cabinet T, Page 258-259 of the PRDCT; said point also being in the North or Northeast
right of way line of Worley Drive, a 60 -foot right-of-way line; thence South 23 degrees
58 minutes 23 seconds West along the North or Northeast right of way line of said
Worley Drive for a distance of 60.35 feet to a point at the North end of a corner clip at
the intersection of said Worley Drive and Memorial Drive, a 120 foot right-of-way;
thence forth 59 degrees 51 minutes 33 seconds West, for a distance of 86.48 feet to a
point for the intersection of the South or Southwest right of way line of Worley Drive and
the West or Northwest line of a 100 -foot drainage and utility easement shown on said Lot
1, Block 1, Five Star East; thence South 30 degrees 08 minutes 27 seconds West along
the West or Northwest line of said 100 foot drainage and utility easement for a distance
of 343.78 feet to a 5/8 -inch iron rod with yellow plastic cap stamped "GSES, INC, RPLS
4804" cap set for the POINT OF BEGINNING;
THENCE along the West or Northwest line of said 100 -foot drainage and utility
easement the following calls and distances;
South 30 degrees 08 minutes 27 seconds West for a distance of 88.69 feet to a 5/8 -inch
iron rod with yellow plastic cap stamped "GSES, INC, RPLS 4804" cap set for the point
0914625\165767\1883527x3
of curvature of a tangent curve to the right having a radius of 1,230.00 feet and whose
long chord bears South 52 degrees 00 minutes 12 seconds West a distance of 916.05 feet;
Southwesterly, along said curve to the right through a central angle of 43 degrees 43
minutes 29 seconds and an are distance of 938.66 feet to a 518 -inch iron rod with yellow
plastic cap stamped "GSES, INC, RPLS 4804" cap set for the point of compound
curvature of a tangent curve to the right having a radius of 25.00 feet and whose long
chord bears North 73 degrees 40 minutes 24 seconds West a distance of 26.84 feet;
THENCE Northwesterly, departing said 100 -foot drainage and utility easement and along
said curve to the right though a central angle of 64 degrees 55 minutes 17 seconds and an
arc distance of 28.33 feet to a 518 -inch iron rod with yellow plastic cap stamped "GSES,
INC, RPLS 4804" cap set for the point of reverse curvature of a tangent curve to the left
having a radius of 125.00 feet and whose chord bears North 59 degrees 17 minutes 53
seconds West a distance of 77.61 feet;
THENCE Northwesterly, along said curve through a central angle of 36 degrees 10
minutes 14 seconds and an arc distance of 78.91 feet to a 518 -inch iron rod with yellow
plastic cap stamped "GSES, INC, RPLS 4804" cap set for the point of reverse curvature
of tangent curve to the right having a radius of 25.00 feet and whose chord bears North
45 degrees 45 minutes 54 seconds West a distance of 26.21 feet;
THENCE Westerly along said curve to the right through a central angle of 63 degrees 14
minutes 12 seconds and an arc distance of 27.59 feet to a 518 -inch iron rod with yellow
plastic cap stamped "GSES, INC, RPLS 4804" cap set for the point of reverse curvature
of tangent curve to the left having a radius of 970.00 feet an whose chord bears North 16
degrees 39 minutes 18 seconds West a distance of 84.91 feet; said point on the East line
of said 100 -foot drainage and utility easement;
THENCE along the East line of said 100 -foot drainage and utility easement the following
calls and distances;
Northerly, along said curve to the left through a central angle of 05 degrees 01 minute 00
seconds and an arc distance of 84.93 feet to a 518 -inch iron rod with yellow plastic cap
stamped "GSES, INC, RPLS 4804" cap set for the point of reverse curvature of tangent
curve to the right having a radius of 670.00 feet and whose long chord bears North 15
degrees 57 minutes 36 seconds West a distance of 72.58 feet;
Northerly, along said curve to the right through a central angle of 06 degrees 12 minutes
36 seconds and an are distance of 72.62 feet to a 5/8 -inch iron rod with yellow plastic cap
stamped "GSES, INC, RPLS 4804" cap set; said point on the East line of a 50 -foot Lone
Star Gas Easement as described in "Volume 734, Page 215 of the Deed Records of Denton
County, Texas (DRDCT);
THENCE North 17 degrees 12 minutes 16 seconds East departing said 100 -foot drainage
and utility easement and along the East line of said 50 -foot Lone Star Gas Easement for a
0914625\ 165767/1 M5270
distance of 225.78 feet to a 'Y' cut in concrete set for the point of curvature of non -
tangent curve to the left having a radius of 61.50 feet and whose long chord bears North
87 degrees 36 minutes 21 seconds East a distance of 28.32 feet;
THENCE Easterly, along said curve to the left through a central angle of 26 degrees 37
minutes 14 seconds and an arc distance of 28.57 feet to a "+" cut in concrete set for the
point of compound curvature of tangent curve to the left having a radius of 183.50 feet
and whose long chord bears North 55 degrees 16 minutes 46 seconds East a distance of
119.5 8 feet,
THENCE Easterly, along said curve to the left through a central angle of 38 degrees 01
minute 56 seconds and an are distance of 121.80 feet to a "+" cut in concrete set for the
point of reverse curvature of a tangent curve to the right having a radius of 29.00 feet and
whose long chord bears North 63 degrees 01 minute 03 seconds East a distance of 26.11
feet;
THENCE Northeasterly, along said curve to the right through a central angle of 53
degrees 30 minutes 30 seconds and an arc distance of 27.08 feet to a "+" cut in concrete
set;
THENCE North 89 degrees 46 minutes 18 seconds East for a distance of 109.57 feet to a
"+" cut in concrete set for the point of curvature of a tangent curve to the left having a
radius of 313.50 feet and whose long chord bears North 74 degrees 45 minutes 09
seconds East a distance of 162.48 feet;
THENCE Easterly, along said curve to the left through a central angle of 30 degrees 02
minutes 18 seconds and an arc distance of 164.36 feet to a "+" cut in concrete set;
THENCE North 59 degrees 44 minutes 00 seconds East for a distance of 212.44 feet to a
"+" cut in concrete set for the point of curvature of a curve to the right having a radius of
236.50 feet and whose long chord bears North 88 degrees 31 minutes 56 seconds East a
distance of 227.86 feet;
THENCE Northeasterly, along said curve to the right through a central angle of 57
degrees 35 minutes 51 seconds and an arc distance of 237.74 feet to a "+" cut in concrete
set for the point of compound curvature of tangent curve to the right having a radius of
59.00 feet and whose long chord bears South 46 degrees 09 minutes 23 seconds East a
distance of 33.54 feet;
THENCE Southeasterly, along said curve to the right through a central angle of 33
degrees 01 minute 31 seconds and an arc distance of 34.01 feet to a 518 -inch iron rod with
yellow plastic cap stamped "GSES, INC, RPLS 4804" cap set for the point of reverse
curvature of a tangent curve to the left having a radius of 69.00 feet and whose long
chord bears South 32 degrees 24 minutes 21 seconds East a distance of 6.65 feet;
0914625k16576711R835270
THENCE Southeasterly, along said curve to the left through a central angle of 05 degrees
31 minutes 24 seconds and an are distance of 6.65 feet to the POINT OF BEGINNING
and containing 331,111 square feet of 7.601 acres of land, more or less.
09146251165767118835270