HomeMy WebLinkAboutResolution No. 2017-003RESOLUTION NO. 2017-003
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE LANDLORD CONSENT TO
ASSIGNMENT OF THE HAWAIIAN FALLS WATERPARK, A COPY OF
WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS
EXHIBIT "A", FROM CLP COLONY, LP, TO EPR PARKS, I.LC, A
DELAWARE LIMITED LIABILITY COMPANY; AUTHORIZING THE
MAYOR TO EXECUTE SAID LANDLORD CONSENT TO
ASSIGNMENT; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE
DATE.
WHEREAS, on or about December 1, 2003 the City of The Colony, Texas (the "City")
and Horizon Amusement Southwest, LLC, entered into a Waterpark Ground Lease and
Operating Agreement ("Ground Lease"), which was assigned to IIFE Horizon, L.P. on or about
September 30, 2004, and further assigned to CNL Income Colony, L.P., on or about April 21,
2006; and
WHEREAS, CNL Income Company, L.P., subsequently changed its name to CLP
Colony, LP, a Delaware limited partnership ("CLP"); and
WHEREAS, EPR Properties, a Maryland real estate investment trust (the "Purchaser")
has entered into a purchase agreement whereby Purchaser and CLP intend for the Purchaser or
an affiliate of the Purchaser, EPR Parks, LLC, a Delaware limited liability company, will acquire
one hundred percent (100%) of the direct and/or indirect equity interest in CLP, and as a result
thereof will indirectly acquire all of CLP's right, title, and interest in an to the Ground Lease; and
WHEREAS, Section 19.1.1 of the Ground Lease provides that an assignment of the
Ground Lease requires the City's written consent; and
WHEREAS, Section 19.3 of the Ground Lease provides that the consent to assignment
shall not be unreasonably withheld. Nonetheless, the City may consider the financial capability
and stability of the proposed assignee, in this instance, EPR Parks, LLC, a Delaware limited
liability company, and the experience of the management of the assignee in operating water
parks; and
WHEREAS, the City Council of the City of The Colony, Texas, has determined it to be
in the best interest of the City to approve the Landlord Consent to Assignment, a copy of which
is attached hereto and incorporated herein as Exhibit A and to authorize the Mayor to execute the
same.
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, does hereby approve
the Landlord Consent to Assignment by and between the City of The Colony, Texas, and in favor
of CI.P Colony, LP., to EPR Parks, LLC, a Delaware limited liability company, for the purposes
provided therein, a copy of said Landlord Consent to Assignment is attached hereto as Exhibit A,
and is incorporated herein for all purposes.
Section 2. That the City Council of the City of The Colony, Texas, does hereby authorize
the :Mayor to execute the Landlord Consent to Assignment, a copy of which is attached hereto as
Exhibit A, and is incorporated herein for all purposes.
Section 3. This Resolution shall become effective from and after its date of passage in
accordance with law.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THIS 7`h day of FEBRUARY, 2017.
AJ V+-4 WN
Tina Stewart, City Secretary
OVED AS TO
Moore, City Attorney
e McCourry, Mayor
SEAL
f
�TEX A5�
Exhibit A
Landlord Consent to Assignment
LANDLORD CONSENT TO ASSIGNMENT
THIS LANDLORD CONSENT TO ASSIGNMENT ("Consent"), is made and entered
into this 2!�'day of Feb 2017 by the CITY OF THE COLONY, TEXAS, a Texas
home -rule municipality (the "Cit to and in favor of CLP COLONY, LP, a Delaware limited
partnership (Oda CNL Income Colony, LP), and its successors and assigns ("CLP").
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 I st day of December, 2003 (as amended and assigned from time to time, the "Ground
Lease') 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,
CLP assumed all of HFE's right, title and interest in and to the Ground Lease;
WHEREAS, EPR Properties, a Maryland real estate investment trust ("Purchaser") and a
third party not affiliated with CLP (among others) have entered into a purchase agreement,
whereby Purchaser and CLP intend that Purchaser or its affiliate(s) will acquire 100% of the
direct and/or indirect equity interest in CLP, and as a result thereof will indirectly acquire all of
CLP's right, title and interest in and to the Ground Lease, which transaction shall constitute a
change in control of CLP (the foregoing being referred to as the "Acquisition'); and
WHEREAS, The Acquisition is not intended to modify the Ground Lease.
NOW, THEREFORE, in consideration of the Ground Lease and other good and valuable
consideration, City hereby represents, warrants and certifies as follows:
1. Consent. To the extent required under the Ground Lease, the City hereby
consents to the Acquisition and the assignment (either directly or indirectly) of the Ground Lease
to EPR Parks, LLC, a Delaware limited liability company, which is an affiliate of Purchaser, or
to an entity controlled by, controlling or under common control with EPR Parks, LLC
(collectively, the "Assignment").
2. Effect of Consent. The grant by the City of consent to the Acquisition and the
Assignment shall not constitute consent of the City to any future transfer; provided, however, the
City hereby agrees that no further consent shall be required to subsequently transfer the Ground
Lease to an entity controlling, controlled by or under common control with Purchaser or EPR
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Parks, LLC, as the case may be.
3. Due Authorization. Execution and Delivery. The City is duly authorized to
execute this Consent and this Consent has been duly executed and delivered by the City. No
consent by any court, agency, bureau, or other (governmental or nongovernmental) third party is
required for the City to execute and deliver this Consent, which consent has not been obtained.
4. Reliance. This Consent shall be binding upon the City and shall inure to the
benefit of and will be relied upon by CLP, CNL Lifestyle Properties, Inc., Purchaser, EPR Parks,
LLC, and their respective affiliates, successors and assigns.
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IN WITNESS WHEREOF, City has executed this Consent as of the day and year first
above written.
`6CITY"
CITY OF THE COLONY, TEXAS, a Texas home -rule
municipality
By:
Nam • ,rca� v� l
T' C�� j
STATE OF TEXAS
COUNTY OF DENTON
The foregoing instrument was acknowledged before me this wi ±,day of ebyu
2017, by-l;ro �Gas C �y McA ►ry of the City of The Colony, Texas, a Te as
home -rule municipality, on behalf of such munici ality. He/she is personally known to me or
has produced as identification. ac'�04
Notary Ptc _- .1
Name: __ �� I OCL SjL-WCLr+
Commission No.:
My Commission Expires: Z• 1 y• W
(SEAL)
V, 11NA STEWAAT
MY COMMISSION EXPIRES
February 14, 2019
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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 HORIZON, L.P., assumed all of
LESSEE'S right, title and interest in the Ground Lease, and as fluther 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 comer of
Lot 14, Block J of the Legend Trails Phase II 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 North 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 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;
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Southwesterly, along said curve to the right through a central angle of 43 degrees 43 minutes 29
seconds and an arc distance of 938.66 feet to a 5/8 -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 are distance
of 28.33 feet to a 5/8 -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 are distance of 78.91 feet to a 5/8 -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 5/8 -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 5/8 -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 arc 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 distance of
225.78 feet to a "+" 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;
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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 119.58 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 5/8 -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;
THENCE Southeasterly, along said curve to the left through a central angle of 05 degrees 31
minutes 24 seconds and an arc 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.
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