HomeMy WebLinkAbout2020 0602CITY OF THE COLONY
CITY COUNCIL AGENDA
TUESDAY, JUNE 2, 2020
6:30 PM
TO ALL INTERESTED PERSONS
Notice is hereby given of a REGULAR SESSION of the CITY COUNCIL of the City of The Colony,
Texas to be held at 6:30 PM on TUESDAY, JUNE 2, 2020 at CITY HALL and via VIDEO
CONFERENCE, 6800 MAIN ST., THE COLONY, TX, at which time the following items will be
addressed:
1 ROUTINE ANNOUNCEMENTS, RECOGNITIONS AND PROCLAMATIONS
1.1 Call to Order
1.2 Invocation
1.3 Pledge of Allegiance to the United States Flag
1.4 Salute to the Texas Flag
1.5 Items of Community Interest
2 CITIZEN INPUT
This portion of the meeting is to allow up to five (5) minutes per speaker with a maximum of
thirty (30) minutes for items not posted on the current agenda. The council may not discuss these
items, but may respond with factual data or policy information, or place the item on a future
agenda. Those wishing to speak shall submit a Request Form to the City Secretary.
3 WORK SESSION
The Work Session is for the purpose of exchanging information regarding public business or
policy. No action is taken on Work Session items. Citizen input will not be heard during this
portion of the agenda.
3.1 Discussion on the CARES Act funding allocation for The Colony. (Powell)
3.2 Council to provide direction to staff regarding future agenda items.
4 CONSENT AGENDA
The Consent Agenda contains items which are routine in nature and will be acted upon in one
motion. Items may be removed from this agenda for separate discussion by a Council member.
4.1 Consider approving City Council Regular Session meeting minutes for May 19, 2020. (Stewart)
4.2 Consider approving a resolution authorizing City Council to extend the terms of office for all City Boards
and Commission members whose term expires in 2020. (Council)
4.3 Consider approving a resolution authorizing the city manager to execute a Landlord Consent to Sublease
1
REGULAR SESSION of the CITY COUNCIL Agenda
Meeting Date: 06/02/2020
Page - 2
and Estoppel Certificate to allow EPR Parks, LLC to enter into a sublease agreement with Colony
Hawaiian Falls Holdings, LLC, for the management and operations of The Colony Hawaiian Falls Water
Park. (Nelson)
4.4 Consider approving a resolution authorizing the Mayor to execute an Encroachment/License Agreement
with The Neighborhoods of Austin Ranch Association, Inc., for a median sign within the right-of-way of
Windhaven Parkway at Stags Leap Drive [median sign is a relocation from an originally approved
location at Saintsbury Drive and Windhaven Parkway]. (Williams)
5 REGULAR AGENDA ITEMS
5.1 Conduct a public hearing, discuss, and consider an ordinance adopting the Standards of Care Policy for
Day Camp Programs (Downing)
6 EXECUTIVE SESSION
6.1 A. Council shall convene into a closed executive session pursuant to Section 551.071 of the Texas
Government Code to seek legal advice from the city attorney regarding pending or contemplated
litigation - Appeal of Brazos Electric Power Cooperative, Inc., PUC Docket No. 45175 and City of
The Colony, Texas v. Brazos Electric Power Cooperative, Inc. matter, Cause No. 16-06424-16.
B. Council shall convene into a closed executive session pursuant to Section 551.071 of the Texas
Government Code to seek legal advice from the city attorney regarding pending or contemplated
litigation – Pamela Rogers, et. al. v. City of The Colony, Texas, et. al., Cause No. 4:19-cv-00919,
United States District Court, Eastern District of Texas, Sherman Division.
C. Council shall convene into a closed executive session pursuant to Section 551.087 of the Texas
Government Code regarding commercial or financial information the city has received from a business
prospect(s), and to deliberate the offer of a financial or other incentive to a business prospect(s).
7 EXECUTIVE SESSION ACTION
7.1 A. Any action as a result of executive session regarding pending or contemplated litigation - Appeal of
Brazos Electric Power Cooperative, Inc., PUC Docket No. 45175 and City of The Colony, Texas v.
Brazos Electric Power Cooperative, Inc. matter, Cause No. 16-06424-16.
B. Any action as a result of executive session regarding pending or contemplated litigation – Pamela
Rogers, et. al. v. City of The Colony, Texas, et. al., Cause No. 4:19-cv-00919, United States District
Court, Eastern District of Texas, Sherman Division.
C. Any action as a result of executive session regarding commercial or financial information the city has
received from a business prospect(s).
EXECUTIVE SESSION NOTICE
Pursuant to the Texas Open Meeting Act, Government Code Chapter 551 one or more of the
above items may be considered in executive session closed to the public, including but not limited
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REGULAR SESSION of the CITY COUNCIL Agenda
Meeting Date: 06/02/2020
Page - 3
to consultation with attorney pursuant to Texas Government Code Section 551.071 arising out of
the attorney’s ethical duty to advise the city concerning legal issues arising from an agenda item.
Any decision held on such matter will be taken or conducted in open session following the
conclusion of the executive session.
ADJOURNMENT
Persons with disabilities who plan to attend this meeting who may need auxiliary aids such as
interpreters for persons who are deaf or hearing impaired, readers or, large print are requested to
contact the City Secretary’s Office, at 972-624-3105 at least two (2) working days prior to the
meeting so that appropriate arrangements can be made.
CERTIFICATION
I hereby certify that above notice of meeting was posted outside the front door of City Hall by
5:00 p.m. on the ___ day of __________, 2017.
____________________________________
Tina Stewart, TRMC, City Secretary
3
Agenda Item No:3.1
CITY COUNCIL Agenda Item Report
Meeting Date: June 2, 2020
Submitted by: Tina Stewart
Submitting Department: General Admin
Item Type: Discussion
Agenda Section:
Subject:
Discussion on the CARES Act funding allocation for The Colony. (Powell)
Suggested Action:
Attachments:
4
Agenda Item No:3.2
CITY COUNCIL Agenda Item Report
Meeting Date: June 2, 2020
Submitted by: Mayra Sullivan
Submitting Department: City Secretary
Item Type: Miscellaneous
Agenda Section:
Subject:
Council to provide direction to staff regarding future agenda items.
Suggested Action:
Attachments:
5
Agenda Item No:4.1
CITY COUNCIL Agenda Item Report
Meeting Date: June 2, 2020
Submitted by: Mayra Sullivan
Submitting Department: City Secretary
Item Type: Minutes
Agenda Section:
Subject:
Consider approving City Council Regular Session meeting minutes for May 19, 2020. (Stewart)
Suggested Action:
Attachments:
May 19, 2020 DRAFT Minutes.docx
6
1 These items are strictly public service announcements. Expressions of thanks, congratulations or condolences; information
regarding holiday schedules; honorary recognition of city officials, employees or other citizens; reminders about upcoming
events sponsored by the City or other entity that are scheduled to be attended by a city official or city employee. No action
will be taken and no direction will be given regarding these items.
MINUTES OF THE CITY COUNCIL REGULAR SESSION
HELD ON
MAY 19, 2020
The Regular Session of the City Council of the City of The Colony, Texas, was called to order
at 6:31 p.m. on the 19
th day of May 2020, at City Hall, 6800 Main Street, The Colony, Texas,
with the following roll call:
Joe McCourry, Mayor
Kirk Mikulec, Councilmember
Richard Boyer, Deputy Mayor Pro Tem
Brian Wade, Councilmember
David Terre, Mayor Pro Tem
Perry Schrag, Councilmember
Joel Marks, Councilmember
Present
Present
Present
Present
Present
Present
Present
And with 7 council members present a quorum was established and the following items were
addressed:
1.0 ROUTINE ANNOUNCEMENTS, RECOGNITIONS and PROCLAMATIONS
1.1 Call to Order
Mayor McCourry called the meeting to order at 6:31 p.m.
1.2 Invocation
Deputy Mayor Pro Tem Richard Boyer delivered the invocation.
1.3 Pledge of Allegiance to the United States Flag
The Pledge of Allegiance to the United States Flag was recited.
1.4 Salute to the Texas Flag
Salute to the Texas Flag was recited.
1.5 Items of Community Interest
Mayor McCourry announced City Manager Troy Powell's 10-year anniversary
with the City of The Colony. Mayor thanked Mr. Powell for his leadership and
teamwork, not only in the metroplex, but also in the state of Texas.
Mayor provided statistics related to the corona virus pandemic for Denton
County. As the county and city moves forward with the reopening of businesses,
Mayor advised citizens to remember social distancing, and to wash their hands up
to twenty seconds in order to contain the virus. Mayor stated traffic has picked up
again and asked citizens to be safe while driving.
City Manager Troy Powell acknowledged receiving emails from
citizens concerning businesses or patrons not wearing masks in
7
City Council – Regular Meeting Agenda
May 19, 2020
Page| 2
establishments. Mr. Powell explained the state has removed local authority in
making the decision to require one to wear a mask. If experiencing symptoms of
the corona virus, there is free testing made available for citizens of the community.
A different city will host testing made available by Denton County. Mr. Powell
stated no matter where you live in Denton County citizens are urged to visit Denton
County's website to sign up for an appointment.
2.0 CITIZEN INPUT
None
3.0 WORK SESSION
3.1 Discuss and provide direction to staff regarding the phased opening of city
facilities.
City Manager,Troy Powell,announced that with the governor's update on Monday,
there has not been any change in the increase capacity for libraries. The city will
move forward with curbside pickup and kid’sprogramsvia virtual access. Outdoor
pools will not resume at this time, however the indoor pool will reopen once there
is an increase in the percentage from 25 percent to 50 percent. In addition to the
percent increase, the city has encountered interest from citizens to hold a kids camp
in the community. The community senior center will remain closed for the time
being. The city will update citizens once the center has reopened.
Council provided discussion on these items and advised staff to move forward with
the kid’s camps as directed.
3.2 Discuss and provide direction to staff regarding the annual Boards and
Commissions re-appointment process.
Mayor McCourry made a recommendation to initiate an extension until December
31, 2020 to current board members whose terms are set to expire in June.
Council provided discussion on this item and advised staff to move forward with
placing the item on the next agenda.
3.3 Council to provide direction to staff regarding future agenda items.
None
4.0 CONSENT AGENDA
Motion to approve all items from the Consent Agenda- Mikulec; second by Boyer, motion
carried with all ayes.
4.1 Consider approving City Council Regular Session meeting minutes for May 19,
2020.
8
City Council – Regular Meeting Agenda
May 19, 2020
Page| 3
4.2 Consider approving Council expenditures for the month of April 2020.
4.3 Consider approving a resolution authorizing the City Manager to execute a
Construction Services Contract for $246,800.00 with Stoic Civil Construction, Inc.
for the Overlook Court Stream Bank Protection Project.
RESOLUTION NO. 2020-024
5.0 REGULAR AGENDA ITEMS
5.1 Discuss and consider approving a resolution nominating a representative as a
member of the North Texas Groundwater Conservation filling the vacancy and will
serve the remaining term for this position through June 1, 2021.
Assistant City Manager, Tim Miller, provided an overview of the proposed
resolution. Mr. Miller recommended Jimmie Arthur, Water Production Supervisor,
as the alternate until a new Director of Public Services assumes the position.
Motion to approve- Mikulec; second by Schrag, motion carried with all ayes.
RESOLUTION NO. 2020-025
Executive Session convened at 7:03 p.m.
6.0 EXECUTIVE SESSION
A. Council shall convene into a closed executive session pursuant to Section
551.071 of the Texas Government Code to seek legal advice from the city attorney
regarding pending or contemplated litigation - Appeal of Brazos Electric Power
Cooperative, Inc., PUC Docket No. 45175 and City of The Colony, Texas v. Brazos
Electric Power Cooperative, Inc. matter, Cause No. 16-06424-16, and related
agreement with Lonzar Delaware, Inc., a Delaware corporation.
B. Council shall convene into a closed executive session pursuant to Section
551.072 of the Texas Government Code to deliberate the purchase, exchange, lease,
or value of real property.
C. Council shall convene into a closed executive session pursuant to Section
551.087 of the Texas Government Code regarding commercial or financial
information the city has received from a business prospect(s), and to deliberate the
offer of a financial or other incentive to a business prospect(s).
D. Council shall convene into a closed executive session pursuant to Section
551.071 of the Texas Government Code to seek legal advice from the city attorney
regarding City of The Colony v. 30/The Colony, Ltd, et al., PR-2020-00316.9
City Council – Regular Meeting Agenda
May 19, 2020
Page| 4
Regular Session reconvened at 7:35 p.m.
7.0 EXECUTIVE SESSION ACTION
7.1 A. Any action as a result of executive session regarding pending or contemplated
litigation - Appeal of Brazos Electric Power Cooperative, Inc., PUC Docket No.
45175 and City of The Colony, Texas v. Brazos Electric Power Cooperative, Inc.
matter, Cause No. 16-06424-16.
No Action
B. Any action as a result of executive session regarding the purchase, exchange,
lease, or value of real property.
No Action
C. Any action as a result of executive session regarding commercial or financial
information the city has received from a business prospect(s).
No Action
D. Any action as a result of executive session regarding pending or contemplated
litigation - City of The Colony v. 30/The Colony, Ltd, et al., PR-2020-00316.
Motion to approve Rule 11 Settlement Agreement as discussed in Executive Session- Boyer;
second by Marks, motion carried with all ayes.
ADJOURNMENT
With there being no further business to discuss the meeting adjourned at 7:37 p.m.
APPROVED:
________________________________
Joe McCourry, Mayor
City of The Colony
ATTEST:
_______________________________
Tina Stewart, TRMC
City Secretary
10
Agenda Item No:4.2
CITY COUNCIL Agenda Item Report
Meeting Date: June 2, 2020
Submitted by: Mayra Sullivan
Submitting Department: City Secretary
Item Type: Resolution
Agenda Section:
Subject:
Consider approving a resolution authorizing City Council to extend the terms of office for all City Boards and
Commission members whose term expires in 2020. (Council)
Suggested Action:
Attachments:
Res. 2020-xxx Boards and Commissions - Terms through 123120.docx
11
CITY OF THE COLONY, TEXAS
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, EXTENDING THE TERMS OF OFFICE FOR ALL
CITY BOARDS AND COMMISSION MEMBERS WHOSE TERM
EXPIRES IN 2020; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING A REPEALING CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS,on March 13, 2020, the President of the United States declared the COVID-
19 outbreak a national health emergency beginning on March 1, 2020; and
WHEREAS, on March 13, 2020, the Governor of the State of Texas declared a state of
disaster for all counties in Texas in response to the COVID-19 outbreak; and
WHEREAS,many of the City board and commissions are appointed in June of each year;
and
WHEREAS, COVID-19 outbreak is currently requiring governmental bodies including
the City Council for the City of The Colony to meet remotely and thus unable to interview potential
board members in person; and
WHEREAS,given the current COVID-19 outbreak, the City Council for the City of The
Colony, Texas, finds and determines it is in the best interest of the City of The Colony, Texas, and its
citizens, for all board and commissionmemberswhose terms expire in the year 2020, to extend those
terms of office through December 31, 2020.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1.The foregoing recitals are hereby found to be true and correct legislative
findings of the City of The Colony, Texas, and are fully incorporated into the body of this
Resolution.
SECTION 2.The City Council of the City of The Colony, Texas, finds and determines
that it is in the best interest of the City of The Colony, Texas, and its citizens, for all board and
commission members whose terms expire in the year 2020, to extend those terms of office through
December 31, 2020. Further, those subsequently appointed to fill City board and commission seats
shall fill those seats through June of the applicable term year.
SECTION 3.If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or application thereto any persons or circumstances is held invalid or unconstitutional by
a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions
of this Resolution; and the City Council hereby declares it would have passed such remaining portions
12
Page 2
of this Resolution despite such invalidity, which remaining portions shall remain in full force and
effect.
SECTION 4.That all provisions of the resolutions of the City of The Colony, Texas, in
conflict with the provisions of this Resolution be, and the same are hereby amended, repealed, and all
other provisions of the resolutions of the City not in conflict with the provisions of this Resolution
shall remain in full force and effect.
SECTION 5. 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 THE 2
nd day of JUNE, 2020.
Joe McCourry, Mayor
ATTEST:
Tina Stewart, TRMC, City Secretary
APPROVED AS TO FORM:
Jeff Moore, City Attorney
13
Agenda Item No:4.3
CITY COUNCIL Agenda Item Report
Meeting Date: June 2, 2020
Submitted by: Pam Nelson
Submitting Department: Parks & Recreation
Item Type: Resolution
Agenda Section:
Subject:
Consider approving a resolution authorizing the city manager to execute a Landlord Consent to Sublease and
Estoppel Certificate to allow EPR Parks, LLC to enter into a sublease agreement with Colony Hawaiian Falls
Holdings, LLC, for the management and operations of The Colony Hawaiian Falls Water Park. (Nelson)
Suggested Action:
Staff recommends approval
Attachments:
Letter to City of the Colony re Sublease to Colony Hawaiian Falls Holdings LLC.pdf
The Colony - Landlord Consent to Sublease Estoppel (Colony Hawaiian Falls Holdings LLC) (002).pdf
REDACTED Sublease Agreement - Colony Hawaiian Falls Holdings.pdf
Res. 2020-xxx - Consent to Sublease and Estoppel Certificate - Hawaiian Falls.docx
14
Robert Faulkner
PARTNER
DIRECT: 314.259.4530
OFFICE: 314.863.0800
robert.faulkner@stinson.com
7700 Forsyth Blvd, Suite 1100, St. Louis, MO 63105
CORE/0503816.0673/158126911.1
May 12, 2020
City of The Colony
City Manager
6800 Main Street,
The Colony, Texas 75056
Robert E. Hager, City Attorney
Nicholas, Jackson, Dillard, Hager & Smith, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
Re: Notice of Sublease of the interests of EPR Parks, LLC, a Delaware limited liability
company (“EPR”), the tenant under that certain Water Park Ground Lease and
Operating Agreement, dated December 1, 2003, as amended and assigned, from time
to time (“the “Lease”)
Dear Sir or Madam:
As you are aware, EPR is currently the tenant under the above-referenced Lease. EPR is currently in
negotiations to sublease its interests under the Lease to Colony Hawaiian Falls Holdings, LLC, a Delaware
limited liability company (“Hawaiian Falls”) pursuant to the terms of a Sublease Agreement (the
“Sublease”). I have enclosed for your review the agreed upon form of the Sublease.
Pursuant to Paragraph 19 of the Lease, the consent of the City of The Colony is required in order for EPR to
enter into the Sublease. EPR hereby requests the consent of the City of The Colony to allow EPR to
sublease its interests in the Lease to Hawaiian Falls or a subsidiary thereof.
Enclosed for your review and signature is a Landlord Consent to Sublease and Estoppel Certificate (the
“Consent”). If you have any questions, please do not hesitate to contact me. If the Consent meets your
approval, please return a copy to me at the address listed below.
Sincerely,
Stinson LLP
Robert Faulkner
RF:led
15
CORE/0503816.0673/158123913.1
LANDLORD CONSENT TO SUBLEASE AND ESTOPPEL CERTIFICATE
THIS LANDLORD CONSENT TO SUBLEASE AND ESTOPPEL CERTIFICATE
(“Consent”), is made and entered into this ___ day of _________, 2020 by the CITY OF THE
COLONY, TEXAS, a Texas home-rule municipality (the “City”) to and in favor of EPR Parks,
LLC, a Delaware limited liability company, and it successors and assigns (“EPR”).
W1TNESSETH:
WHEREAS, Horizon Amusement Southwest, LLC, a Missouri limited liability company
(“HAS”), and City entered into that certain Water Park Ground Lease and Operating Agreement,
dated December 1, 2003 (as amended and assigned from time to time, the “Ground Lease”)
whereby the City leased to HAS certain real property 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, Consent to
Assignment and Assumption of Water Park Ground Lease, dated September 30, 2004, HFE
HORIZON, L.P., a Texas limited partnership (“HFE”) assumed all of HAS’s right, title and
interest in and to the Ground Lease; and
WHEREAS, pursuant to the terms and conditions of that certain Assignment, Consent to
Assignment and Assumption of Water Park Ground Lease and Operating Agreement, dated April
21, 2006, CNL Income Colony, L.P., a Texas limited partnership, assumed all of HFE’s right, title
and interest in and to the Ground Lease; and
WHEREAS, on April 6, 2017, CLP Colony, L.P. (f/k/a CNL Income Colony, L.P.)
(“CLP”) merged with and into EPR, whereby EPR acquired all right, title and interest of CLP in
and to the Ground Lease; and
WHEREAS, the Leased Premises were subject to that certain Sublease Agreement
dated April 21, 2006, by and between CNL Income Colony, LP, as landlord, and HFE, as
t enant, as subsequently amended and assigned, which Sublease Agreement was terminated by
EPR by noti ce dat ed February 6, 2018;
WHER EAS , the Leased Premises were subject to that certain Sublease Agreement
dat ed May 1, 2018, by and between EPR, as l andlord, and PPW C olony, LLC, a Del aware
limited liability company, as tenant, which Subleas e Agreement was terminated by EPR by
notice dated February 13, 2020;
WHEREAS, EPR has entered into negotiations with Colony Hawaiian Falls Holdings,
LLC, a Delaware limited liability company (“Hawaiian Falls”) whereby Hawaiian Falls would
sublease the Leased Premises under the Ground Lease from EPR; and
WHEREAS, any sublease between EPR and Hawaiian Falls 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:
16
CORE/0503816.0673/158123913.1
1. Consent. To the extent required under the Ground Lease, the City hereby consents to the sublease
of the Ground Lease from EPR to Hawaiian Falls (collectively, the “2020 Hawaiian Falls
Sublease”).
2. Effect of Consent. The grant by the City of consent to the 2020 Hawaiian Falls Sublease 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 Hawaiian Falls, as the case may be.
3. Estoppel.
a. The Ground Lease is in full force and effect and has not been further amended or modified except
as described above;
b. There is no present default on the part of EPR under the Ground Lease and, to the best of the
knowledge of City, there is no condition existing that could, given the passage of time or the
giving of notice, ripen into a default thereunder;
c. 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. As of the date hereof, there are no existing offsets, rent
abatements, free rent periods or other credits against any rentals payable under the Ground Lease
available to EPR;
d. The current annual rent payable by EPR under the Ground Lease is 6.5% of gross revenues;
e. EPR has performed in all respects all of EPR’s obligations with respect to the performance of
work or construction of improvements on the Leased Premises, and EPR is not entitled to any
tenant improvement allowance or rent credits on account thereof after the date hereof;
f. The initial term of the Ground Lease commenced December 1, 2003 and is scheduled to expire
on December 30, 2043. The Ground Lease provides EPR with two options to extend the term of
the Ground Lease for a period of five years each; and
g. City has no rights of first refusal, options to purchase or other rights to “buy out” EPR’s interest
in the Ground Lease.
4. 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.
5. Reliance. This Consent shall be binding upon the City and shall inure to the benefit of and will
be relied upon by EPR, Hawaiian Falls and their respective affiliates, successors and assigns.
IN WITNESS WHEREOF, City has executed this Consent as of the day and year first
above written.
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CORE/0503816.0673/158123913.1
CITY
CITY OF THE COLONY, TEXAS,
a Texas home-rule municipality
By: ______________________________
Name: ______________________________
Title: ______________________________
STATE OF TEXAS
COUNTY OF DENTON
The foregoing instrument was acknowledged before this ___ day of __________, 2020,
by _______________ as ________________ the City of The Colony, Texas, a Texas home-rule
municipality, on behalf of such musicality. He/she is personally known to me or has produced
_____________ as identification.
___________________________________
Notary Public________________________
Name: ______________________________
Commission No.:_____________________
My Commission Expires:_______________
(SEAL)
18
CORE/0503816.0673/158123913.1
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 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, LP., 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 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;
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
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CORE/0503816.0673/158123913.1
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 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 arc 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 and 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;
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;
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CORE/0503816.0673/158123913.1
THENCE Easterly, along said curve to the left through a central angle of 38 degrees 01 minute
56 seconds and an arc 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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submitted to Landlord shall be a budget for the following Fiscal Year, The foregoing annual
budgets and business plan shall be furnished to Landlord prior to the foregoing referenced date
for Landlord' approval, which approval shall not be unreasonably withheld, delayed or denied.
Tenant shall consider, in good -faith, any and all comments and suggestions on such budgets
provided by Landlord. to Tenant.
17.6 Quarterly Meetings. At Landlord's request, Tenant shall make Tenant's property
management team and the executive officers of Tenant (or of Tenant's general partner or
managing member, if applicable) available to meet with Landlord once during each Fiscal
Quarter to discuss the Reserve Estimate, the annual budgets and any other items related to the
operation of the Business, which Landlord wishes to discuss. Such meetings shall be conducted
at a location mutually agreeable to Landlord and Tenant and each of Landlord and Tenant shall
be solely responsible for their respective expenses in connection with such meetings. Tenant
agrees to give good faith consideration to any suggestions or requests that Landlord may have.
17.7 Tenant Financial Statements. Tenant hereby covenants and agrees to deliver to
Landlord the following: (i) within ninety (90) days after the end of each Fiscal Year, audited
consolidated statements of income, retained earnings and cash flows of Guarantor for such Fiscal
Year and the related consolidated balance sheets as at the end of such Fiscal Year, setting forth in
each case in comparative form the corresponding consolidated figures for the preceding Fiscal
Year; (ii) within twenty (20) days after the end of each Accounting Period, unaudited operating
statements (and audited, if available) of Tenant's revenue and expenses for the Leased Property
demonstrating operating income for the preceding calendar month, the year to date, and the
previous twelve months; (iii) within forty-five (45) days after the end of each Fiscal Quarter,
unaudited (and audited, if available) statements of income of Tenant and Guarantor for such
period and for the period from the beginning of the respective Fiscal Year to the end of such
period in each case in comparative form the corresponding figures for the corresponding periods
in the preceding Fiscal Year accompanied by an Officer's Certificate; and (iv) within twenty (20)
days after the end of each Accounting Period, an income and expense statement detailing all
sources of revenue, including but not limited to admission tickets and sales, food and beverage
sales and other revenues, and all expenses relating to the Leased Property, accompanied by an
Officer's Certificate. In addition to the foregoing, to the extent Tenant procures independently
audited financial statements, Tenant shall promptly provide copies of the same to Landlord. All
such statements furnished to Landlord by Tenant and Guarantor are and shall be true, complete
and correct, and fairly reflect the financial condition and results of the operations of Tenant or
Guarantor, as the case may be, as of the dates and for the periods stated therein and shall be in
compliance with GAAP (except as otherwise consented to in advance in writing by Landlord).
17.8 Crisis Mana ement Plan. Tenant shall maintain and provide to Landlord a
complete copy of a documented emergency response plan for the Water Park regarding crisis and
disaster communication and management, which shall be in a form and substance complying
with any applicable Legal Requirements or Applicable Laws and which Tenant shall deliver to
Landlord at the following times: (i) annually, at the same time as Tenant submits its proposed
annual budget to Landlord; (ii) no later than ten (10) Business Days following its receipt of
Landlord's request for same; and (iii) upon the expiration of the Terna or earlier termination of
this Lease.
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