HomeMy WebLinkAboutCity Packets - City Council - 08/06/2024 - RegularAgenda Item No:1.5
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Tina Stewart
Submitting Department: Police
Item Type: Presentation
Agenda Section:
Subject:
Presentation acknowledging the actions of a City of The Colony police officer. (Goodson)
Suggested Action:
Attachments:
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Agenda Item No:1.6
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Kimberly Thompson
Submitting Department: City Secretary
Item Type: Miscellaneous
Agenda Section:
Subject:
Items of Community Interest
Suggested Action:
Attachments:
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Agenda Item No:1.7
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Lindsey Stansell
Submitting Department: Parks & Recreation
Item Type: Announcement
Agenda Section:
Subject:
Receive presentation from Parks and Recreation regarding upcoming events and activities. (Stansell)
Suggested Action:
Attachments:
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Agenda Item No:3.1
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Kimberly Thompson
Submitting Department: City Secretary
Item Type: Discussion
Agenda Section:
Subject:
Council to provide direction to staff regarding future agenda items. (Council)
Suggested Action:
Attachments:
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Agenda Item No:4.1
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Kimberly Thompson
Submitting Department: City Secretary
Item Type: Minutes
Agenda Section:
Subject:
Consider approving City Council Regular Session meeting minutes from July 16, 2024. (Stewart)
Suggested Action:
Attachments:
July 16, 2024 DRAFT Minutes.docx
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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
JULY 16, 2024
The Regular Session of the City Council of the City of The Colony, Texas, was called to order
at 6:30 p.m. on the 16
th day of July 2024, at City Hall, 6800 Main Street, The Colony, Texas,
with the following roll call:
Richard Boyer, Mayor
Judy Ensweiler, Deputy Mayor Pro Tem
Robyn Holtz, Councilmember
Brian Wade, Councilmember
Dan Rainey, Councilmember
Perry Schrag, Mayor Pro Tem
Joel Marks, Councilmember
Present
Present
Present
Present
Present
Present
Present
And with 7 councilmembers present a quorum was established and the following items were
addressed:
1.0 ROUTINE ANNOUNCEMENTS, RECOGNITIONS and PROCLAMATIONS
1.1 Call to Order
Mayor Boyer called the meeting to order at 6:30 p.m.
1.2 Invocation
Councilman Schrag 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 expressed appreciation to city staff for their hard work with the parade.
1.5.1 Receive presentation from the Library regarding upcoming events and activities.
Library Director, Megan Charters, provided upcoming events and activities to the
Council.
2.0 CITIZEN INPUT
None.
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City Council – Regular Meeting Agenda
July 16, 2024
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3.0 WORK SESSION
3.1 Present recently completed police recruitment videos to Council.
Assistant Police Chief, Jay Goodson, along with Sergeant DiMario Bishop,
presented this item to Council. City Manager, Troy Powell, thanked Assistant Chief
Goodson and Winnett for keeping things moving forward in the absence of a Police
Chief.
3.2 Receive a presentation, discuss and provide direction to staff regarding the
upcoming Fifty Years of The Colony event in October 2024 recognizing the
founding of The Colony.
Library Director, Megan Charters, presented this item.
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 with the exception of Agenda Item No
4.4- Marks; second by Ensweiler, motion carried with all ayes.
4.1 Consider approving City Council Special Session Retreat meeting minutes from
June 29, 2024 and Regular Session meeting minutes from July 2, 2024.
4.2 Consider approving Council expenditures for May 2024.
4.3 Consider accepting Sarah Fried's resignation from the Library Board.
***ITEM PULLED FROM THE CONSENT AGENDA FOR SEPARATE DISCUSSION.***
4.4 Consider approving a resolution authorizing the City Manager to issue a purchase
order to Superion, LLC, a Central Square Company, in the amount of $54,808.46
for annual maintenance of the Trakit Software.
Deputy City Managers, Joe Perez and Brant Shallenburger, gave an overview of
this item and answered questions from Council.
Motion to approve –Ensweiler; second by Marks, motion carried with all ayes.
RESOLUTION NO. 2024-052
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July 16, 2024
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4.5 Consider approving a resolution authorizing the City Manager to transfer funds in
the amount of $175,000.00 account #211-699-6999-999 Utility CIP Closed Project
Fund to the Waste Water Treatment Plant account #200-662-6345 for the purchase
of chemicals for the treatment of Hydrogen Sulfide.
RESOLUTION NO. 2024-053
5.0 REGULAR AGENDA ITEMS
5.1 Discuss and consider approving a resolution authorizing the City Manager to
execute a TIPS Purchasing Cooperative Contract with CI Pavement for the
construction of a new front drive and entry walkway improvements at the New
Recreation Center as part of Phase 3 in an amount not to exceed $359,588.34 to be
funded by the Community Development Corporation.
Parks Development Manager, Calvin Lehmann, gave an overview of this item.
Motion to approve – Ensweiler; second by Holtz, motion carried with all ayes.
RESOLUTION NO. 2024-054
5.2 Discuss and consider an ordinance amending Chapter 19, entitled “TRAFFIC” by
adding a new Section 19-30, entitled “OPERATION OF GOLF CARTS", by
addressing the operation of golf carts within the City of The Colony.
Deputy City Manager, Brant Shallenburger, presented this item. The Council
provided discussion on it.
Motion to table– Ensweiler; second by Marks, motion carried with all ayes.
5.3 Discuss and consider an ordinance updating the Code of Ordinances by amending
Chapter 19, Section 19-11(C), entitled “SAME—IN SCHOOL TRAFFIC
ZONES,” by establishing school zone speeding limits of 20 miles per hour.
Deputy City Manager, Brant Shallenburger, gave an overview of this item.
Motion to approve – Schrag; second by Marks, motion carried with all ayes.
ORDINANCE NO. 2024-2569
Executive Session was convened at 7:54 p.m.
6.0 EXECUTIVE SESSION
6.1 A. Council shall convene into a closed executive session pursuant to Sections
551.072 and 551.087 of the Texas Government Code to deliberate regarding
purchase, exchange, lease or value of real property and commercial or financial
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City Council – Regular Meeting Agenda
July 16, 2024
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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).
Regular Session was reconvened at 8:49 p.m.
7.0 EXECUTIVE SESSION ACTION
7.1 A. Any action as a result of executive session regarding purchase, exchange, lease
or value of real property and commercial or financial information the city has
received from a business prospect(s), and the offer of a financial or other incentive
to a business prospect(s).
No Action
ADJOURNMENT
With there being no further business to discuss, the meeting adjourned at 8:50 p.m.
APPROVED:
__________________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
_____________________________________
Tina Stewart, TRMC, CMC, City Secretary
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Agenda Item No:4.2
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Tina Stewart
Submitting Department: City Secretary
Item Type: Expenditures
Agenda Section:
Subject:
Consider approving Council expenditures for June 2024. (Council)
Suggested Action:
Attachments:
Council June Expenditures.pdf
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Agenda Item No:5.1
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Tina Stewart
Submitting Department: Public Works/Water Distribution
Item Type: Resolution
Agenda Section:
Subject:
Discuss and consider approving a resolution authorizing the City Manager to advertise a request for proposal
for a Construction Manager at Risk for the Design, Bid and Build project delivery method for the City of The
Colony Waste Water Treatment Plant expansion Phase II B. (Whitt)
Suggested Action:
Attachments:
5.1 Res. 2024-xxx Construction Manager at Risk Services Contract for Phase II B.docx
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CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2024 – _______
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO ADVERTISE A
REQUEST FOR A CONSTRUCTION MANAGER AT RISK FOR
THE DESIGN, BID AND BUILD PROJECT DELIVERY METHOD
FOR THE WASTEWATER TREATMENT PLANT EXPANSION
PHASE II B; PROVIDING AN EFFECTIVE DATE
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS, THAT:
Section 1. The City Manager is hereby authorized to advertise a request for
proposal for a Construction Manager at Risk for the Design, Bid and Build project delivery
method for the City of The Colony Wastewater Treatment Plant expansion Phase II B.
Section 2.This resolution shall take effect immediately from and after its
passage.
DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS, ON THIS THE 6TH DAY OF AUGUST, 2024.
____________________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
____________________________________
Kimberly Thompson, Deputy City Secretary
APPROVED AS TO FORM:
____________________________________
Jeffrey L. Moore, City Attorney
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Agenda Item No:5.2
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Joe Perez
Submitting Department: General Admin
Item Type: Presentation
Agenda Section:
Subject:
Discuss and consider a resolution authorizing the City Manager to approve the proposed 2024/25 service
contract between the City of The Colony and Special and Aging Needs (SPAN). (Perez)
Suggested Action:
Attachments:
The Colony Presentation FY2025.pdf
2024-25 SPAN Contract Agenda Narrative.docx
SPAN FY2024-25 The Colony ILA.docx
Res. 2024-xxx SPAN Contract for Services.doc
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This item is to consider adopting the proposed 2024-25 SPAN service contract. This is the ninth service
contract brought before Council to consider between The Colony and SPAN.
As Council may recall, SPAN was able to utilize CARES act funding to completely cover the transportation
costs in the 21/22 and 22/23 service contracts as well as approximately half of the 23-24 contract term
utilizing the last bit of funding available. Having exhausted all of their remaining CARES act funding in the
23-24 contract period, the transportation costs in the 24-25 contract will be more in line with where they
were pre pandemic but approximately 2k below the total transportation costs of 105k in the 2019/20
service contract. The total budgeted for transportation costs in the 24/25 service contract is $103,212.
The funding requests proposed in the 2024-25 contract are for items covered in previous contracts that
are unique to The Colony’s service contract with SPAN. Program areas include senior center trip
reimbursements, meals on wheelsprogramming and a discretionary/unforeseen costs for SPAN’s service
delivery not to exceed $2,500. This section of the contract covers discretionary/unforeseen costs for
SPAN’s service delivery (with prior CM office staff approval) to residents of The Colony as well as to cover
costs associated with Next Steps and/or for residents who do not otherwise qualify for a reduced or
covered trip because of a Federal or State mandate within the contract year.
The amount budgeted for this section in the 23/24 was $7,500 and we are reducing that number to $2,500
for the 24/25 contract as the potential for need at that level of funding in this area has gone down, and
the reduced amount is more in line with what we could expect in the next contract year.
There has been a significant increase from previous contracts in the Meals on Program funding request
for the 24/25 service contract. This is due to an increase in the cost per meal going from $1.00 to $2.00
as well as anincrease from previous years in the number of residents enrolled in the program. 23/24 total
program costs were 10k and have increased to 20K for the 24/25 contract as they projecting to serve 10k
meals during the contract year.
With that said, the total funding request for the 24-25 contract is $133,712.00
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SERVICE AGREEMENT
STATEOFTEXAS §
COUNTY OF DENTON §
SERVICE AGREEMENT
THIS SERVICE AGREEMENT ("Agreement") is entered into by and between the
CITY OF THE COLONY, TEXAS ("CITY"), acting by and through its duly authorized
designee, and SPAN, INC., a Texas non-profit corporation ("SPAN”), operating in Denton
County, Texas as an organization described in Section 501(c)(3) of the Internal Revenue Code,
acting by and through its duly authorized Executive Director. The CITY or SPAN may hereinafter
be referred to individually as a “Party” or collectively as “Parties.”
RECITALS:
WHEREAS,SPAN enables people to live as fully and independently as possible
by providing nutrition, transportation and social services to older
persons, persons with disabilities, veterans, and the general public;
and
WHEREAS,the success of or failure of the SPAN's purposes and goals has a
relation to the health and welfare of the citizens of the CITY; and
WHEREAS,the CITY is charged with the responsibility of promoting and
preserving the health, safety, peace, good government, and welfare
of its citizens; and
WHEREAS,the CITY recognizes that it needs transportation alternatives for its
elderly, and disabled citizens to seek routine medical care and to
deal with daily routine matters, and the CITY desires to assist and
provide public transportation to said citizens; and
WHEREAS,CITY desires to engage SPAN as an independent contractor, and not
as a joint venture, partnership, or employee, to provide the
transportation services described herein; and
WHEREAS,SPAN is recognized as a non-profit corporation, authorized under
the Texas Transportation Code to provide this type of transportation
to municipalities found in whole or in part within Denton County,
Texas; and
WHEREAS,SPAN desires to provide transportability services for CITY on the
terms and conditions set forth in this Agreement.
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SERVICE AGREEMENT
NOW THEREFORE,in exchange for the mutual covenants set forth herein, and other
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties
agree as follows:
Article I
Term
1.01. This Agreement shall commence on October 1, 2024 ("Effective Date") and continue
until September 30, 2025.
1.02. Either Party may terminate this Agreement by giving thirty (30) days prior written
notice to the other Party, subject to federal requirements related to public transportation.
Article II
Service
2.01. In accordance with this Agreement, SPAN shall provide door-to-door demand
response transit services to the CITY’s residents who are sixty (60) years of age or older and
persons with documented disabilities, or sixty-five (65) years or older and persons with
documented disabilities when 5310 funds are used in support of this Agreement ("Riders").
2.02. Riders shall be picked up within service area and taken anywhere in the SPAN/CITY
transit service destination area shown on Exhibit "A" hereto (“Service Area”), at a cost to the
Riders of Three Dollars ($3.00). The Riders shall remit the total fare recited in this section at or
prior to the time the service is rendered. SPAN Transportation policy and procedures are attached
hereto and incorporated herein as Exhibit "B" ("the Policy").
2.03. Situations may arise when Riders call and request service that is not identified as a
part of the Service Area. SPAN may make a request to the CITY’s appointed representative to
accommodate the Rider by temporarily transporting outside of the Service Area. The Service Area
may be more permanently amended at the request of either Party, if both Parties mutually agree to
such amendment of Exhibit A in writing.
2.04. Riders may call at least two (2) days in advance, but no more than two (2) weeks in
advance, to set up appointments for pick-up and drop off. Riders may schedule a ride by calling
SPAN'S Transportation Office at 940-382-1900, weekdays between the hours of 8:00 a.m. and
2:00 p.m.
2.05. Demand response transit service is available between the hours of 6:00 a.m. and 6:00
p.m., Monday through Friday, excluding Saturday, Sunday, major holidays and subject to capacity
constraints and availability.
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SERVICE AGREEMENT
Article III
Schedule of Work
3.01. SPAN shall provide all equipment, facilities, qualified employees, training, and
insurance necessary to establish a demand response transit service for the Riders. SPAN shall
further establish, operate, and maintain an accounting system for this program that will allow for
a tracking of services provided to Riders and a review of the financial status of the program. SPAN
shall also track and break down the information regarding the number of one-way trips it provides
to Riders.
3.02. SPAN will be responsible for verifying and documenting the eligibility of Riders.
SPAN reserves the right to determine on an individual basis whether SPAN has the capability to
safely transport a Rider, based on the information provided. If SPAN determines that a Rider
cannot safely be transported, SPAN shall decline transportation and shall provide documentation
as to the reason why service was declined.
3.03. The CITY shall have the right to review the activities and financial records kept
incident to the services provided to the Riders by SPAN under this Agreement. In addition, SPAN
shall provide monthly ridership information to the CITY appointed designee specifically
identifying the number of Rider trips including rider origination, destination, and purpose.
3.04. SPAN will inform riders that their trips to the doctor or dentist’s office, drug store or
other location may qualify as a Medicaid eligible trip. SPAN will direct potential Medicaid eligible
riders to call Texas Health and Human Services to schedule free transportation through Medicaid
by calling toll free 1-877-633-8747 (TTY: 1-800-735-2989) or 1-877-MED-TRIP, Monday
through Friday between 8:00 a.m. and 5:00 p.m., at least two days before their appointment or trip.
Article IV
Compensation and Method of Payment
4.01. SPAN shall seek compensation for its services from two sources:
1.) Riders – each rider shall pay SPAN a price of Three Dollars ($3.00)per one-way
trip, to be collected by SPAN at the time of such trip.
2.) CITY – the CITY agrees to pay a fee for service of Twenty-One Dollars and Ninety-
Six Cents ($21.96)per one-way trip. SPAN will invoice the CITY monthly based on actual
rides performed. The city’s projected trip count for October 1, 2024 – September 30, 2025, is
Four Thousand Seven Hundred (4,700)one-way trips. Based on this estimate, the total fee for
service for FY25 will be $103,212.00.However, this amount is only an estimate; the actual fee
for service will be based on the number of actual rides performed.
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SERVICE AGREEMENT
4.02. Rides in excess of the aforementioned estimate will continue to be billed to the CITY
unless the CITY notifies SPAN in writing of its intention to discontinue funding trips. Thereafter,
rides may still be provided to residents of the CITY, however the riders will be responsible for
paying the entirety of the fee, which will be Twenty-Four Dollars and Ninety-Six Cents ($24.96)
per one-way trip.
Article V
Senior Fare Reimbursement
5.01. The CITY hereby agrees to pay an amount not to exceed Seven Thousand Five
Hundred Dollars ($7,500.00)as reimbursement for CITY residents’ transportation/fares to and
from the Senior Center. This amount is based on Two Thousand Five Hundred (2,500) fares at a
cost of Three Dollars ($3.00) per trip.
5.02. Reimbursement of Senior Center fares shall be processed twice a year: SPAN will
invoice the CITY in May 2025 for rides/trip counts for October 2024- March 2025. SPAN will
invoice the CITY in October 2025 for rides/trip counts for April 2025- September 2025.
Article VI
Meal Reimbursement for Congregate and Home Delivered
6.01. SPAN provides Federal Administration on Aging Title III food and educational
nutrition programs by serving meals at senior centers (congregate meals) and delivering meals to
homebound seniors. SPAN agrees to provide such services to eligible CITY residents.
6.02. For the operation and provision of the services described in this Article VI, the CITY
shall pay SPAN the sum of Twenty Thousand Five Hundred Eighty-Six Dollars ($20,586)upon
execution of this Agreement.
Article VII
Discretionary Funds and Next Steps Program
7.01. For the operation and provision of the services described in subsections (a) and (b)
of this Article VII, the CITY shall make available to SPAN a sum not to exceed Two Thousand
Five Hundred Dollars ($2,500.00)upon execution of this Agreement.
(a) Reimbursement for transportation/fares for clients who are participating in The
Colony Next Steps 501(c)(3).
(b) Per authorization of CITY Manager or other CITY designee, reimbursement for
discretionary costs associated with the delivery of SPAN’s services in general, as
well as for residents of The Colony who otherwise do not qualify for SPAN’s
services due to federal or state funding regulations and guidelines.
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Article VIII
Devotion of Time, Personnel, and Equipment
8.01. SPAN shall devote such time as reasonably necessary for the satisfactory
performance of the services under this Agreement. Should CITY require additional services not
included under this Agreement, SPAN shall make reasonable effort to provide such additional
services within the time schedule without decreasing the effectiveness of the performance of
services required under this Agreement and shall be compensated for such additional services on
a time and materials basis, in accordance with SPAN' s standard hourly rate schedule, or as
otherwise agreed between the Parties.
8.02. To the extent reasonably necessary for SPAN to perform the services under this
Agreement, SPAN shall be authorized to engage the services of any agents, assistants, persons, or
corporations that SPAN may deem proper to aid or assist in the performance of the services under
this Agreement. The cost of such personnel and assistance shall be included as part of the total
compensation to be paid SPAN hereunder and shall not otherwise be reimbursed by CITY unless
otherwise agreed to in writing.
8.03. The CITY shall not be required to furnish any facilities, equipment, or personnel
necessary to perform the services required under this Agreement unless otherwise provided herein.
The Services provided under this Agreement are based on availability.
8.04 SPAN reserves the right to suspend or terminate Riders who violate SPAN’s policies
and procedures.
Article IX
Miscellaneous
9.01. Entire Agreement. This Agreement constitutes the sole and only agreement between
the Parties and supersedes any prior understandings written or oral agreements between the Parties
with respect to this subject matter.
9.02. Assignment. Neither Party may assign this Agreement without the prior written
consent of the other Party.
9.03. Successor and Assigns. Subject to the provisions regarding assignment, this
Agreement shall be binding on and inure to the benefit of the Parties to it and their respective heirs,
executors, administrators, legal representatives, successors, and assigns.
9.04. Mediation. In the event of any dispute regarding this Agreement or the terms
contained herein, the Parties hereto agree that they shall submit such dispute to non-binding
mediation, prior to any litigation being filed.
9.05. Governing Law. The laws of the State of Texas shall govern this Agreement without
regard to any conflict of law rules; and venue for any action concerning this Agreement shall be
in Denton County, Texas or the Federal courts having jurisdiction over claims arising in Denton
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SERVICE AGREEMENT
County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said
court.
9.06. Amendments. This Agreement may be amended by the mutual written agreement of
the Parties.
9.07. Severability. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provisions, and the Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had never been contained
in it.
9.08. Independent Contractor. It is understood and agreed by and between the Parties that
SPAN, in satisfying the conditions of this Agreement, is acting independently. All services to be
performed by SPAN pursuant to this Agreement shall be in the capacity of an independent
contractor, and not as an agent or employee of CITY. SPAN shall supervise the performance of its
services and shall be entitled to control the manner and means by which its services are to be
performed, subject to the terms of this Agreement. Nothing contained herein shall constitute or
provide for as a waiver of the CITY’s immunity under state or federal law.
9.09. Notice. Any notice required or permitted to be delivered hereunder may be sent by
electronic mail, first class mail, overnight courier or by confirmed telefax or facsimile to the
address specified below, or to such other Party or address as either Party may designate in writing,
and shall be deemed received three (3) days after delivery set forth herein:
If intended for CITY:
CITY Designee
The Colony, Texas
6800 Main Street
The Colony, Texas 75056
972-624-3152
If intended for SPAN:
Michelle McMahon, Executive Director
Span, Inc.
1800 Malone Street
Denton, Texas 76201
940-382-2224 - Office
9.10. Insurance.
(a)SPAN shall during the term hereof maintain in full force and effect the following
insurance:
(1) a comprehensive commercial general liability policy of insurance for bodily injury,
death, and property damage insuring against all claims, demands or actions relating to
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SPAN' s performance of services pursuant to this Agreement with a minimum combined
single limit of not less than $1,000,000.00 per occurrence for injury to persons (including
death), and for property damage with an aggregate of $2,000,000.00.
(2) policy of automobile liability insurance covering any vehicles owned and/or
operated by SPAN, its officers, agents, and employees, and used in the performance of this
Agreement with policy limits of not less than $5,000,000.00 combined single limit and
aggregate for bodily injury and property damage.
(3) statutory Worker's Compensation Insurance at the statutory limits and Employers
Liability covering all of SPAN' s employees involved in the provision of services under
this Agreement with policy limit of not less than $500,000.00; and
(b) All policies of insurance shall be endorsed and contain the following provisions:
(1) provide CITY, its officers, and employees with indemnification under all applicable
coverage except for Workers Compensation Insurance.
(2) provide for at least thirty (30) days prior written notice to CITY for cancellation of
the insurance.
(3) provide for a waiver of subrogation against CITY for injuries, including death,
property damage, or any other loss to the extent the same is covered by the proceeds of
insurance. SPAN shall provide written notice to CITY of any material change of or to the
insurance required herein.
(c) All insurance companies providing the required insurance shall be authorized to
transact business in Texas.
(d) A certificate of insurance and copies of the policy endorsements evidencing the
required insurance shall be submitted prior to commencement of services and upon request by
CITY.
9.11. In performing services under this Agreement, the relationship between the CITY and
SPAN is that of an independent contractor. No term or provision of this Agreement or act of SPAN
in the performance of this Agreement shall be construed as making SPAN the agent, servant, or
employee of the CITY. It is expressly understood that the CITY assumes no operational
supervision, control or oversight to the services provided under this Agreement. CITY does not
have any ownership or beneficial interest in the business; and does not share any profits or losses
generated from the business.
9.12. Indemnification. CITY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE,
OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR PROPERTY ARISING
FROM THE SERVICES OF SPAN PURSUANT TO THIS AGREEMENT. SPAN HEREBY
WAIVES ALL CLAIMS AGAINST CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES
(COLLECTIVELY REFERRED TO IN THIS SECTION AS "CITY") FOR DAMAGE TO ANY
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PROPERTY OR INJURY TO, OR DEATH OF, ANY PERSON ARISING AT ANY TIME AND
FROM ANY CAUSE OTHER THAN THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
CITY OR BREACH OF CITY’S OBLIGATIONS HEREUNDER. SPAN AGREES TO
INDEMNIFY AND SAVE HARMLESS CITY FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS,
REASONABLE ATTORNEYS' FEES AND COSTS OF INVESTIGATION) AND ACTIONS
OF ANY KIND BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE
TO OR LOSS OF PROPERTY TO THE EXTENT CAUSED BY SPAN'S NEGLIGENT
PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR BY REASON OF ANY
NEGLIGENT ACT OR OMISSION ON THE PART OF SPAN, ITS OFFICERS, DIRECTORS,
SERVANTS, EMPLOYEES, REPRESENTATIVES,CONSULTANTS, LICENSEES,
SUCCESSORS OR PERMITTED ASSIGNS (EXCEPT WHEN SUCH LIABILITY, CLAIMS,
SUITS, COSTS, INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED
TO NEGLIGENCE OF CITY, IN WHOLE OR IN PART, IN WHICH CASE SPAN SHALL
INDEMNIFY CITY ONLY TO THE EXTENT OR PROPORTION OF NEGLIGENCE
ATTRIBUTED TO SPAN AS DETERMINED BY A COURT OR OTHER FORUM OF
COMPETENT JURISDICTION). SPAN'S OBLIGATIONS UNDER THIS SECTION SHALL
NOT BE LIMITED TO THE LIMITS OF COVERAGE OF INSURANCE MAINTAINED OR
REQUIRED TO BE MAINTAINED BY SPAN UNDER THIS AGREEMENT. THIS
PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
9.13. Confidentiality Clause. Subject to the requirements of the Texas Public Information
Act or as required by Court order, both Parties agree to endeavor to take all reasonable measures
to keep in confidence the execution, terms and conditions as well as performance of this
Agreement, and the confidential data and information of any Party that another Party may know
or access during performance of this Agreement (“Confidential Information”), and shall not
disclose, make available or assign such Confidential Information to any third party without the
prior written consent of the Party providing the information except as required by the Texas Public
Information Act or Court order.
9.14. Counterparts. This Agreement may be executed by the Parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. Each counterpart may consist
of any number of copies hereof each signed by less than all, but together signed by all the Parties
hereto.
9.15. Exhibits. The exhibits attached hereto are incorporated herein and made a part hereof
for all purposes.
9.16. Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
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SERVICE AGREEMENT
[Signature Page follows]
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SERVICE AGREEMENT
EXECUTED this ______ day of ___________________,2024
CITY OF THE COLONY, TEXAS
By: _________________________________
Troy Powell, City Manager
ATTEST:
By: _________________________________
Tina Stewart, Secretary
EXECUTED this ______ day of ___________________,2024
SPAN, INC
By: _________________________________
Michelle McMahon, Executive Director
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SERVICE AGREEMENT
EXHIBIT A
SERVICE AREA
All of Denton County.
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SERVICE AGREEMENT
EXHIBIT B
TRANSPORTATION POLICIES AND PROCEDURES
Attached as a separate document, which may be amended from time to time.
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CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2024 - __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER
TO EXECUTE A CONTRACT FOR SERVICES BY AND
BETWEEN THE CITY OF THE COLONY AND SPAN, INC.;
PROVIDING AN EFFECTIVE DATE
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, has duly
reviewed and considered the CONTRACT FOR SERVICES by and between the City of
The Colony and SPAN, INC. for the purpose of providing nutrition, transportation and
social services to older persons, persons with disabilities, and veterans.
Section 2. That this Contract for Services attached hereto as Exhibit “A”, is
found to be acceptable and in the best interest of the City and its citizens, and the City
Manager is hereby authorized to execute the Contract on behalf of the City of The Colony,
Texas, with the terms and conditions as stated therein.
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 AUGUST 2024.
____________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
___________________________________
Tina Stewart, TRMC, CMC, City Secretary
APPROVED AS TO FORM:
_____________________________________
Jeffrey L. Moore, City Attorney
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Agenda Item No:5.3
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Brant Shallenburger
Submitting Department: Parks & Recreation
Item Type: Resolution
Agenda Section:
Subject:
Consider approving a resolution authorizing the Mayor to execute an Amended and Restated Ground
Sub-Sublease Agreement and Consent to Sub-Sublease and Non-Disturbance Agreement by and between the
City of The Colony and Marine Quest - Hidden Cove, L.P., and authorizing the Mayor to execute said
agreements, all contingent up on approval by the United States Corps of Engineers. (Shallenburger)
Suggested Action:
Attachments:
Hidden Cove Amendment Changes.docx
Project Trident - Hidden Cove Sublease (Final).pdf
Project Trident - City Consent and Non-Disturbance Agreement (Final).pdf
Res. 2024-xxx Consent to Sub-Sublease Agreement with Marine Quest.docx
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Memo
To:City Council
From: Brant Shallenburger
Date:July 26, 2024
RE:Changes to Sublease and Consent and Non-Disclosure Agreement
The changes to these documents consist of (i) traditional lender protections for Suntex’s lender
and (ii) changes requested by the USACE to remove phase III of dry storage until later
approved.
The bulk of the changes in the Sublease, specifically Section 1.1(6) & (10), Section 1.2(6),
Section 2.2, Section 7.1.(4), and the removal of Exhibit “D” were requested by Tracee
Johnston and the Real Estate Division of the USACE (she reviewed and approved these a few
weeks ago). These changes:
Remove the language related to future dry storage in phase III; and
Incorporate the new lease term dates from the approved 5th amendment to our lease
with the City of the Colony.
The changes in Section 12.2 and 12.4 of the Sublease are standard lender protections for
Suntex’s lender. The main provisions allow the lender to step into Suntex’s shoes in the event
of a default/foreclosure/bankruptcy, and it also gives them the ability to cure certain events of
default. All of which remains subject to approval rights of the City and Corps (this is
enumerated in the draft).
The changes to the Consent and Non-Disturbance Agreement mirror those in the sublease.
Section 2 permits the assignment of the sublease to Suntex’s lender, subject to City and
Corps approval, in the event of a bankruptcy or foreclosure.
Section 5 adds a notice requirement to Suntex’s lender in the event of default or
termination by the City or Corps.
And finally, Section 7 clarifies that if the Marine Quest lease is terminated or rejected,
and Suntex is not in default of their lease, that the City will either keep Suntex’s
sublease in place or enter into a new lease with Suntex for the marina premises only, all
of which is subject to City and Corps approval.
Brant E. Shallenburger
Deputy City Manager
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AMENDED AND RESTATED GROUND SUB-SUBLEASE AGREEMENT
This Amended and Restated Ground Sub-Sublease Agreement (this “Sublease”) is entered into as
of the ______ day of _____________, 2024 (the “Effective Date”), by and between the Sublessor (defined
below) and the Sublessee (defined below). This Sublease amends and restates that certain Ground Lease
Agreement between Sublessor and Sublessee dated effective January 1, 2021.
ARTICLE I.
Section 1.1. Fundamental Lease Provisions.
(1) Sublessor: Marine Quest – Hidden Cove, L.P., a Texas limited partnership
(2) Sublessor’s Address: 6060 S. Stemmons Freeway
Lake Dallas, TX 75065
Attention: Justin Bosworth
Email: bosworthjustin@gmail.com
(3) Sublessee: HCM Dry Storage LLC, a Texas limited liability company (“Sublessee”)
(4) Sublessee’s Address: 17330 Preston Road, Suite 100C
Dallas, Texas 75252
Attention: Bryan C. Redmond
Email: bryan@suntex.com
(5) Commencement Date: Upon the closing of that certain Equity Purchase Agreement dated as of
October 4, 2023 by and between Marcel Bosworth, Dwight Bosworth, Sublessee, and Suntex
Marina Investors LLC, a Delaware limited liability company (the “EPA”).
(6) Demised Premises: Approximately 35.983 acres, more or less, of land located in Hidden Cove
Park in The Colony, Denton County, Texas as more particularly described by metes and bounds on
Exhibit “A” attached hereto and incorporated herein by reference and as more particularly depicted
as Lease Tract 1B and Lease Tract 2 on Exhibit “A-1” and Lease Tract 3 on Exhibit “A-2” attached
hereto and incorporated herein along with (i) any and all improvements located in, on or across the
Demised Premises; and (ii) any and all rights of Sublessor in all easements and appurtenances in,
on and across the Demised Premises or in any way pertaining to the Demised Premises.
(7) Parking: Sublessee, its guests, invitees, and agents shall have the exclusive right to utilize the
parking lot depicted on Exhibit “A-1” and included within the Demised Premises (the “Exclusive
Parking”).
(8) Primary Sublease Term: Commencing on the Commencement Date and ending on June 30,
2042 unless this Sublease is sooner terminated pursuant to the Corps Lease (as defined herein) or
the City Sublease (as defined herein) or extended or terminated earlier as expressly provided herein.
(9) “Rent” shall mean the greater of either the Minimum Base Rent (as defined herein) or Percentage
Rent (as defined herein), and such other amounts due pursuant to this Sublease.
(10) Intentionally Omitted.
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(11) “Minimum Base Rent” for the initial Lease Year (as defined in the City Sublease) shall be $25,000
annually increasing over the amount payable in the immediately preceding Lease Years as set forth
in the City Sublease.
(12) “Percentage Rent” shall have the meaning ascribed in Article IV below which shall be one percent
(1%) of Sublessee’s Gross Revenue (as hereinafter defined) of boat sales and restaurant sales and
six percent (6%) of Sublessee’s Gross Revenue of all other sales.
(13) Permitted Uses: Any and all uses which are permitted by the U.S. Army Corps of Engineers (the
“Corps”) under the Corps Lease and the City of The Colony, Texas (the “City”) under the City
Sublease.
(14) Possession: Sublessor will give possession of the Demised Premises to Sublessee to begin
operation of the Demised Premises as of the Commencement Date.
(15) Sublessee License: Sublessee, its tenants, guests, invitees, and agents shall have an irrevocable
non-exclusive license during the Primary Sublease Term, and any extensions thereof, to utilize, in
common with other tenants, guests, invitees and agents of Sublessor, all exterior areas, amenities,
roadways, walkways, and sidewalks located within the Project (as hereinafter defined), subleased
by Sublessor pursuant to the City Sublease and designated from time to time by Sublessor as
common areas from time to time (the “Project Common Areas”). Sublessee’s tenants, guests,
invitees and agents shall be subject to normal park usage fees and dues imposed by Sublessor from
time to time, including any reasonable rate increases made in the ordinary course of Sublessor’s
business; and provided further, that the parties recognize that wet slip and dry slip tenants shall be
required to purchase annual passes. Sublessee shall comply with, and shall cause its tenants,
guests, invitees and agents to comply with, the reasonable rules and regulations promulgated by
Sublessor, the City or the Corps governing the use of the Project. Such rules and regulations shall
be provided by written notice to Sublessee.
(16) Sublessor License: Sublessor, its other tenants, guests, invitees, and agents shall have an
irrevocable non-exclusive license during the Primary Sublease Term, and any extensions thereof,
to utilize, in common with other tenants, guests, invitees and agents of Sublessee, all exterior areas,
amenities, roadways, walkways, and sidewalks located within the Demised Premises except for the
Exclusive Parking (the “Demised Premises Common Areas” and together with the Project
Common Areas, the “Common Areas”).
(17) Common Areas: Sublessee shall use commercially reasonable efforts to minimize interference
with Sublessor’s or other permitted users’ rights to use any parts of the Common Areas. Sublessor
shall use commercially reasonable efforts to minimize interference with Sublessee’s or other
permitted users’ rights to use any parts of the Common Areas.
(18) “Gross Revenue” shall have the meaning ascribed in 1.01(G) of the City Sublease.
Section 1.2. Additional Definitions:
(1) “Governmental Regulations” means all laws, ordinances, rules, regulations, statutes,
building codes and other matters of all governmental authorities having jurisdiction over the Demised
Premises, including all health, safety, environmental and regulatory requirements.
(2) “Improvements” means the real and personal property improvements located on the
Demised Premises. All of the improvements owned by Sublessor as of the Efffecitve Date, and all other
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improvements constructed by Sublessee on the Demised Premises including alterations, modifications, and
additions of the Improvements pursuant to the provisions of this Sublease, shall be owned by and shall be
the property of Sublessee for the Primary Sublease Term, subject to renewal and earlier termination as
provided herein.
(3) “Corps Lease” means that certain Lease No. DACW63-1-08-620 dated July 3, 2008, by
and between the Corps and the City, as may be amended from time to time.
(4) “City Sublease” means that certain Ground Lease, Real Property and Personal Property
Lease Agreement dated January 3, 2005, by and between the City and Sublessor, as amended by that certain
First Amendment dated January 10, 2005, that certain Second Amendment dated January 26, 2015, that
certain Third Amendment dated January 28, 2021, and that certain Fourth Amendment dated March 31,
2022, as may be further amended from time to time, pursuant to which Sublessor subleased from the City
a portion of property identified as Hidden Cove Park, consisting of approximately 428 acres, as more
particularly described in the City Sublease (the “Project”).
(5) “District Engineer” means the U.S. Army District Engineer for the Fort Worth District
who is in charge of the administration of the Lewisville Lake Project Area, its successors, assigns, or duly
authorized representatives, with addresses of District Engineer, Fort Worth District, Corps of Engineers,
P.O. Box 17300, Fort Worth, Texas 76102.
(6) Intentionally Omitted.
Section 1.3. Effect of Reference to Fundamental Lease Provisions and Definitions. Each
of the foregoing definitions and fundamental lease provisions shall be construed in conjunction with and
limited by the references thereto in the other provisions of this Sublease.
ARTICLE II.
Section 2.1. Demised Premises. In consideration of the obligation to Sublessee to pay Rent
as herein provided and in consideration of the other terms, covenants and conditions hereof, Sublessor
hereby demises and leases to Sublessee, and Sublessee hereby takes from Sublessor, the Demised Premises
as described in Section 1.1(6); subject, however, to (i) all terms and conditions of the Corps Lease and the
City Sublease, and (ii) all other matters of record in any way appertaining to the Demised Premises,
including any easements and mineral interests upon the Demised Premises, TO HAVE AND TO HOLD
the Demised Premises for the Primary Lease Term, as same may be extended or sooner terminated, all upon
the terms and conditions set forth in this Sublease. Sublessor further agrees, subject to the terms, covenants
and conditions hereof, that Sublessee shall have peaceful and quiet possession of the Demised Premises at
all times after the Commencement Date and during the continuance of this Sublease.
Section 2.2. Wet Slip Entitlements. The parties acknowledge that Sublessor or Sublessee
may seek to obtain entitlements to permit the construction by Sublessor or Sublessee of additional wet slips
at the Project (“Wet Slip Entitlements”).
(1) Wet Slips. Upon Sublessor or Sublessee obtaining any Wet Slip Entitlements, which shall
include obtaining the consent and authorization from all local, state, and federal authorities, including but
not limited to the City and the Corps, the approval of all plans and specifications, and the issuance of all
required permits, including but not limited to building permits, Sublessor or Sublessee, as applicable, shall
provide written notice to the other party that such Wet Slip Entitlements, consents, authorizations,
approvals, and permits have been obtained (each a “Wet Slip Entitlement Notice”). The Wet Slip
Entitlement Notice will contain the number of additional wet slips permitted to be constructed and the
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related entitlement fee due to Sublessor in accordance with Exhibit “B” based on such number of additional
wet slips. Sublessee shall have the option, in its sole discretion, to accept or reject any Wet Slip
Entitlements upon written notice to Sublessor delivered within ten (10) business days of receipt of a Wet
Slip Entitlement Notice (each a “Wet Slip Entitlement Acceptance”). Within twenty-one (21) business
days after the date of a Wet Slip Entitlement Acceptance, (i) Sublessee shall make a payment to Sublessor
in accordance with Exhibit “B” based on the number of wet slips to be constructed in accordance with the
plans and specifications related to the applicable Wet Slip Entitlement Notice, and (ii) Sublessor shall grant
to Sublessee, its agents, employees, and contractors, a non-exclusive temporary access and construction
easement to permit the construction of such additional wet slips. Sublessee, at its sole cost and expense,
shall be responsible for the construction of any additional wet slip facilities.
(2) Exclusive Rights. Sublessee shall be restricted from expanding the number of wet and
dry slips at the Demised Premises except in accordance with this Section 2.2. Sublessor shall not be
permitted to operate, or allow any third party to own or operate, any wet slips or any short or long-term
boat storage facilities at the Project, without the prior written consent of Sublessee which may be withheld
in Sublessee’s sole discretion.
Section 2.3. As-Is. Sublessee acknowledge that they have inspected the Demised Premises to
their complete satisfaction and accepts the Demised Premises “As Is” and with all faults and defects,
whether known or unknown to either Sublessor or Sublessee and without representation of warranty of any
kind from Sublessor as to the status or condition thereof, except Sublessor warrants that they (i) are the
“Lessees” under the City Sublease, (ii) have not previously assigned their rights under or entered into a
sublease with respect to the City Sublease, and (iii) have the absolute right, power and authority to enter
into this Sublease. Sublessee acknowledges that its decision to sublease the Demised Premises is based
solely upon the Sublessee’s comprehensive inspection of the Demised Premises and not upon any warranty
or representation of Sublessor (except as stated above), or the Sublessor’s employees, agents, or
representatives with regard thereto. Within limiting the foregoing, THERE IS NO WARRANTY,
EXPRESSED OR IMPLIED, OF SUITABILITY, MERCHANTABILITY, HABITABILITY, OR
FITNESS FOR ANY PARTICULAR PURPOSE GIVEN IN CONNECTION WITH THIS SUBLEASE.
ARTICLE III.
TERM
Section 3.1. Primary. The term of this Sublease shall commence on the Commencement Date
and continue in full force and effect for the Primary Sublease Term, subject to renewal and earlier
termination as provided herein.
Section 3.2. Renewal. In the event that Sublessee desires to extend the Sublease beyond the
Primary Sublease Term, Sublessee shall provide written notice (the “Renewal Notice”) to Sublessor at least
one hundred eighty (180) days before the end of the Primary Sublease Term in which case Sublessor shall
use commercially reasonable efforts to renew or extend the City Sublease in accordance with the terms
thereof; provided that such renewal or extension will be conditioned on Sublessee not being in default under
this Sublease beyond any applicable cure periods on the date such renewal or extension term commences.
In the event the City Sublease is extended beyond the Primary Sublease Term, the Corps Lease is still in
effect, and Sublessee is not then in default under this Sublease beyond any applicable cure periods at the
time Sublessee delivers the Renewal Notice or at the commencement of the Renewal Lease Term (as
hereinafter defined), the term of the Sublease shall be extended for the same extended term under the City
Sublease (the “Renewal Lease Term”). Sublessor will promptly notify Sublessee if the City Sublease is
extended beyond the Primary Sublease Term. The renewal and extension of this Sublease for such
Renewal Lease Term shall be on and under the same covenants, agreements, terms, provisions, and
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conditions that are contained herein for the Primary Sublease Term, except for those modifications required
by the City for the renewal or extension of the term of the City Sublease, and all leasehold improvements
within the Demised Premises shall be provided in their then existing condition (on an “AS-IS” basis) at the
time the Renewal Lease Term commences.
Section 3.3. Cooperation. Sublessee shall cooperate with Sublessor and the City to renew the
term of the City Sublease with Sublessor so as to avoid a competitive bidding process for future leases of
the Project. This provision will expressly survive termination of the Sublease. Sublessee shall not discuss
the terms of this Sublease or the City Sublease with any third-party that may be a potential subtenant with
the City.
Section 3.4. Memorandum of Sublease. The parties agree to execute, acknowledge, and
deliver a mutually acceptable form of Memorandum of Sublease (subject to the approval of the City),
contemporaneously with the Commencement Date, and such Memorandum of Sublease shall be recorded
in the real property records of Denton County, Texas. In the event the Sublease is extended pursuant to
Section 3.2 hereof, then the parties shall record an updated Memorandum of Sublease to commemorate the
Renewal Lease Term. At the expiration or termination of the term of this Sublease, Sublessor and
Sublessee shall execute a termination of Sublessee’s interest in this Sublease.
ARTICLE IV.
RENTAL
Section 4.1. Payment of Rent. Rent shall accrue and shall be payable directly (if permitted
by the City) to the City as set forth in the City Sublease, including, without limitation, at the time and place
contemplated therein. Rent shall be the greater of either the Minimum Base Rent or the Percentage Rent
as follows:
(1) Minimum Base Rent. The annual Minimum Base Rent for the Primary Sublease Term,
commencing with the Commencement Date, is payable in annual installments to the City as follows:
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Primary Sublease Term
Annual Minimum Base Rent
Year 1
$25,000.00, with the first payment
due on the Effective Date, and
subsequent payments due on the
annual anniversary date under the
City Sublease. In the event that the
term of this Sublease commences on
a day other than the date that fixed
minimum rent is due under the City
Sublease, a prorated amount of
Minimum Base Rent shall be due
with respect to such partial Lease
Year (as defined in the City
Sublease) (based on the actual
number of days within such Lease
Year (as defined in the City
Sublease)).
Years 2 through expiration of
the Primary Sublease Term
Adjusted annually in accordance
with the City Sublease
OR
(2) Percentage Rent. In the event the Gross Revenues percentage amounts exceed the annual
Minimum Base Rent, Sublessee shall pay the following Percentage Rent:
(a) One percent (1%) of Gross Revenue from boat sales and restaurant sales; and
(b) Six percent (6%) of Gross Revenue from other sales and fees collected.
Section 4.2. Interest on Late Payments. In the event any rent to be paid hereunder or any
other sum payable by Sublessee under the provisions of this Sublease is not received by the City or
Sublessor from Sublessee within three (3) days from the date it is due and payable, Sublessee shall pay to
Sublessor an additional sum equal to five percent (5%) of the amount due. Additionally, in the event any
Rent to be paid hereunder or any other sum payable by Sublessee to the City or Sublessor under the
provisions of this Sublease is not received by the City or Sublessor within seven (7) days after its due for
any reason whatsoever, it is agreed that the amount thus due shall bear interest from its due date at the
Floating Rate (as defined in the City Sublease). Any such interest shall be payable as additional rent
hereunder, shall not be deducted as a business expense for the purpose of determining Gross Revenue, and
shall be paid immediately upon demand.
Section 4.3. Percentage Rent Calculation. Percentage Rent shall be the percentage rental
determined by multiplying the total Gross Revenue in or from the Demised Premises during the particular
Lease Year by the percentage rental rate stated in Section 4.1(2) above. The Percentage Rent shall accrue
as of the Commencement Date and shall be paid in annually to the City in accordance with the provisions
of the City Sublease.
Section 4.3.(1). Fractional Years. If the Commencement Date is on a date other than the first
day of a calendar year or the term of this Sublease terminates on a date other than the last day of a calendar
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year, percentage rental for such fractional part of the calendar year following the Commencement Date or
preceding the termination date, as the case may be, shall be paid at the specified rate for all Gross Revenue
made during such fractional part of a calendar year.
Section 4.3.(2). Statement of Gross Revenue. Sublessee shall prepare and deliver to the City
all reports of Gross Revenue and shall maintain all books and records in accordance with the requirements
set forth in the City Sublease. Sublessee agrees to furnish copies of such reports to Sublessor.
ARTICLE V.
USE OF DEMISED PREMISES
Section 5.1. Use. The Demised Premises shall be used by Sublessee only for the Permitted
Uses specified in Section 1.1.(12) above, and for no other purpose without the prior written consent of the
City and the Corps.
Section 5.2. Limitations on Use.
(1) All property kept, stored or maintained within the Demised Premises by Sublessee shall be
at Sublessee’s sole risk.
(2) Sublessee shall comply with local noise ordinances in the operation of radios, televisions,
loudspeakers or amplifiers on the Demised Premises.
(3) Sublessee shall take good care of the Demised Premises and keep the same free from waste
at all times.
(4) Sublessee covenants and agrees that during the Sublease it will maintain appropriate
certifications and licenses for the Permitted Uses.
Section 5.3. City Use. During the term of this Sublease, the City shall have the right to use
the Demised Premises for the purposes set forth in Article 4 of the City Sublease, as applicable.
Section 5.4. Disclaimer of Representations and Warranties. Sublessor makes no
representations or warranties, express, implied, or otherwise, as to the suitability of the Demised Premises
for use by Sublessee.
ARTICLE VI.
SUBLEASE TERMS
Section 6.1. Incorporation By Reference. Except as otherwise set forth herein, the terms and
conditions of this Sublease shall include all of the terms of the City Sublease and such terms are
incorporated into this Sublease as if fully set forth herein, except that: (i) each reference in such incorporated
sections to “Lease” shall be deemed a reference to “Sublease”; (ii) each reference to the “Leased Premises”
and “Initial Term” shall be deemed a reference to the “Demised Premises” and “Primary Sublease Term”,
respectively; (iii) each reference to “Lessor” and “Lessee” shall be deemed a reference to “Sublessor” and
“Sublessee”, respectively, except as otherwise expressly set forth herein; (iv) with respect to work, services,
repairs, restoration, insurance, indemnities, representations, warranties or the performance of any other
obligation of the City under the City Sublease, the sole obligation of Sublessor shall be to request the same
in writing from the City as and when requested to do so by Sublessee, and to use Sublessor’s reasonable
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efforts (without requiring Sublessor to spend more than a nominal sum unless Sublessee pays the full
amount of any additional costs and provided in no event shall Sublessor be required to engage in litigation)
to obtain the City’s performance; (v) with respect to any obligation of Sublessee to be performed under this
Sublease, wherever the City Sublease grants to Sublessor a specified number of days to perform its
obligations under the City Sublease, except as otherwise provided herein, Sublessee shall have three (3)
fewer days to perform the obligation, including, without limitation, curing any defaults (provided, that
Sublessee shall have two (2) fewer days if the time period permitted for such obligation is less than three
(3) days); (vi) with respect to any approval required to be obtained from the “Lessor” under the City
Sublease, such consent must be obtained from both the City and Sublessor, and the approval of Sublessor
may not be (unless another standard is expressly set forth in the City Sublease or this Sublease)
unreasonably withheld, conditioned or delayed, but may not be withheld if the City’s consent is obtained;
(vii) in any case where the “Lessor” reserves or is granted the right to manage, supervise, control, repair,
alter, regulate the use of, enter or use the Demised Premises or any areas beneath, above or adjacent thereto,
perform any actions or cure any failures, such reservation or right shall be deemed to be for the benefit of
both the City and Sublessor provided such benefit is conducted in accordance with the terms and provisions
of the City Sublease; (viii) in any case where “Lessee” is to indemnify, release or waive claims against
“Lessor”, such indemnity, release or waiver shall be deemed to cover, and run from Sublessee to, both the
City and Sublessor; (ix) in any case where “Lessee” is to execute and/or deliver certain documents or notices
to “Lessor”, such obligation shall be deemed to run from Sublessee to both the City and Sublessor; (x)
except as otherwise set forth herein, all payments shall be made to the Sublessor; and (xi) Sublessor’s
obligations under Section 5.04 of the City Sublease are limited to forwarding statements and refunds
provided by the City, and Sublessee shall have no right to dispute or audit such statements.
Section 6.2. Assumption of Obligations. This Sublease is and at all times shall be subject
and subordinate to the Corps Lease, the City Sublease and the Development Agreement, respectively, and
the rights of the Corps and the City thereunder. Sublessee hereby expressly assumes and agrees: (i) to
comply with all provisions of the City Sublease which are incorporated hereunder; (ii) to perform all the
obligations on the part of the “Lessee” to be performed under the terms of the City Sublease during the term
of this Sublease that are incorporated hereunder as such obligations apply to the Demised Premises; and
(iii) to perform all the obligations on the part of the “Developer” to be performed under Sections 4.2, 4.3,
4.5, 4.6, 6.2 and 6.3 of the Development Agreement as such provisions relate to the Demised Premises
during the term of this Sublease. Sublessor shall comply with all provisions of the City Sublease which
are incorporated hereunder as such obligations apply to the Demised Premises. In the event that either the
Corps Lease or the City Sublease is terminated for any reason other than by reason of Sublessor’s default
under the Corps Lease or the City Sublease, and this Sublease is terminated as a result thereof, then
Sublessor shall not be liable to Sublessee for the termination of this Sublease.
ARTICLE VII.
SECURING GOVERNMENTAL APPROVALS AND COMPLIANCE WITH LAW
Section 7.1. Compliance with Laws.
Section 7.1.(1). Intentionally Omitted.
Section 7.1.(2). Sublessee shall procure at its sole expense any permits, approvals, authorizations,
and licenses required for the transaction of business in, or operation of the Demised Premises, and/or in any
way related to the Demised Premises and shall comply with all laws, ordinances, codes, rules, regulations
and orders now in effect or hereafter enacted or passed during the term of this Sublease and relating to the
Demised Premises, Sublessee’s use thereof, or any signs of Sublessee, and shall, except as herein otherwise
provided, make at Sublessee’s own cost and expense all repairs, additions and alterations to the Demised
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Premises ordered or required by any governmental authorities, whether in order to meet the special needs
of Sublessee, or by reason of the occupancy of Sublessee, or otherwise. All permits, licenses,
authorizations, and approvals required for Sublessee’s use and occupancy of the Demised Premises will be
in the name of Sublessee, except as may otherwise be required by law.
Section 7.1.(3). Sublessee’s compliance with all applicable laws, rules, ordinances, codes, and
regulations shall include, but not be limited to, full compliance with (a) all federal, state, and local laws,
rules, ordinances, codes, and regulations concerning the possession, storage, use, disposal, handling,
transport, generation and clean-up of or otherwise relating to any and all types of “Hazardous Materials”
which as used in this Sublease shall mean any waste, substance, or material defined or identified as
hazardous or toxic, or as a pollutant or contaminant by applicable Governmental Regulations, including
petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls,
and per- and polyfluoroalkyl substances and (b) the Americans with Disabilities Act and Americans with
Disabilities Act Accessibility Guidelines as they apply to the improvements within the Demised Premises.
Section 7.1.(4). Sublessee shall obtain any and all needed regulatory approvals, licenses,
authorizations, and/or permits relating to the operation of its business, its occupancy of the Demised
Premises, and any other such approvals, authorizations, licenses or permits relating in any way to the
Demised Premises during the Primary Sublease Term, as same may be extended, including, but not limited
to, any such approvals, permits, authorizations, or licenses relating to Hazardous Materials possessed, used,
generated, handled, discharged, disposed, released, or stored on or transported or for which transportation
is arranged to or from the Demised Premises by Sublessee.
Section 7.1.(5).
(a) Subject to the provisions of subsection (b) below, in the event of any accident, release,
discharge, disposal, or spillage of any Hazardous Materials on or at the Demised Premises during
the Primary Sublease Term, as may be extended, Sublessee shall comply with all federal, state and
local laws, rules, and regulations and requirements of any governmental agency or authority
pertaining thereto, including notification of proper authorities, safety of all persons potentially
affected, evacuation of Demised Premises if necessary, investigation, clean-up or other corrective
action, and disposal. Additionally, Sublessee shall be solely responsible for all costs associated
with any accident, release, discharge, disposal, or spillage of any such Hazardous Materials on or
at the Demised Premises, including, but not limited to, any investigation clean-up, other corrective
action, and disposal of any such Hazardous Materials on the Demised Premises which occur during
the Primary Sublease Term, as extended, in accordance with applicable laws, rules, and regulations
and requirements of any governmental agency or authority unless and to the extent caused by
Sublessor.
(b) Sublessor shall be solely responsible for all costs associated with any accident, release,
discharge, disposal, or spillage of any Hazardous Materials on or at the Demised Premises and for
the clean-up and disposal of any such Hazardous Materials, on the Demised Premises to the extent
caused by Sublessor, its employees, officers, affiliates, agents, and representatives in accordance
with applicable laws, rules, and regulations and requirements of any governmental agency or
authority.
Section 7.2. Environmental Covenants.
Section 7.2.(1).
(a) Sublessee covenants that during the Primary Sublease Term, as may be extended (a)
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Sublessee shall not cause or permit any Hazardous Materials to be generated, treated, stored,
discharged or disposed of, or otherwise deposited in or located on, or released on, in, from or to the
Demised Premises, including, without limitation, the surface and the subsurface waters of the
Demised Premises, (b) Sublessee will not engage in and will not permit any other party to engage
in any activity on the Demised Premises which would cause (i) the Demised Premises to become a
hazardous waste treatment, storage, or disposal facility within the meaning of, or otherwise bring
the Demised Premises within the ambit of, the Resource Conservation and Recovery Act of 1975
(“RCRA”), 42 U.S.C. ‘6901, et seq., as amended, or any similar state law or local ordinance or
other environmental law, (ii) a release or threatened release of a Hazardous Material from or to the
Demised Premises within the meaning of, or otherwise bring the Demised Premises within the
ambit of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980
(“CERCLA”), 42 U.S.C. ‘9601-9657, as amended, or any similar state law or local ordinance or
any other environmental law, or (iii) the discharge of pollutants or effluents into any water source
or system, or the discharge into the air of any emissions, which would require a permit under the
Federal Water Pollution Control Act, 33 U.S.C. ‘1251, et sea., or the Clean Air Act, 42 U.S.C.
‘7401, et seq., or any similar state law or local ordinance or any other environmental law, (c)
Sublessee will not permit any substance or conditions in or on the Demised Premises which might
support a claim or causes of action under RCRA, CERCLA, or any other federal, state or local
environmental statutes, regulations, rules, ordinances, codes, or other environmental regulatory
requirements, and (d) no underground storage tank will be located on or under the Demised
Premises, except as presently exists or as approved by Sublessor, the City, the Corps, and the other
applicable authorities. As used herein, the terms “release” shall have the meanings specified in
CERCLA, and the terms “disposal” (or “disposed”) shall have the meanings specified in RCRA;
provided, in the event either CERCLA or RCRA is amended so as to broaden the meaning of any
term defined thereby, such broader meaning shall apply subsequent to the effective date of such
amendment, provided further, to the extent that the laws of the State of Texas establish a meaning
for such terms which is broader than that specified in either CERCLA or RCRA, such broader
meaning shall apply.
(b) Sublessor covenants that during the Primary Sublease Term, as may be extended (a)
Sublessor shall not cause or permit any toxic or hazardous substances, including, without limitation,
asbestos and the group of organic compounds known as polychlorinated biphenyls, to be generated,
treated, stored or disposed of, or otherwise deposited in or located on, or released on or to the
Demised Premises, including, without limitation, the surface the subsurface waters of the Demised
Premises, (b) Sublessor will not engage in and will not permit any other party to engage in any
activity on the Demised Premises which would cause (i) the Demised Premises to become a
hazardous waste treatment storage or disposal facility within the meaning of, or otherwise bring
the Demised Premises within the ambit of, the RCRA, 42 U.S.C. ‘6901, et seq., as amended, or any
similar state law or local ordinance or other environmental law, (ii) a release or threatened release
of a hazardous substance from or to the Demised Premises within the meaning of, or otherwise
bring the Demised Premises within the ambit of, the CERCLA, 42 U.S.C. ‘9601-9657, as amended,
or any similar state law or local ordinance of any other environmental law, or (iii) the discharge of
pollutants or effluents into any water source or system, or the discharge into the air of any
emissions, which would require a permit under the Federal Water Pollution Control Act, 33 U.S.C.
‘1251, et sea., or the Clean Air Act, 42 U.S.C. ‘7401, et seq., or any similar state law or local
ordinance or any other environmental law, and (c) Sublessor will not permit any substance or
conditions in or on the Demised Premises which might support a claim or causes of action under
RCRA, CERCLA, or any other federal, state or local environmental statutes, regulations,
ordinances or other environmental regulatory requirements.
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Section 7.2.(2). In the event Sublessee or Sublessor is obligated by any applicable federal, state
or local law, ordinance, code, rule, or regulation or otherwise directed by any governmental agency or
authority, to clean up, remove or encapsulate or cause the clean-up, removal, or encapsulation of any
Hazardous Materials from the Demised Premises, the Sublessee hereby guarantees to Sublessor that it shall
(i) promptly undertake to arrange for such clean up, removal and disposal in accordance with all
Governmental Regulations, (ii) exercise its best efforts to ensure that such clean up and removal shall be
conducted in a timely and diligent manner, and (iii) assume the costs and expense, including any fines, of
such clean up and removal.
Section 7.3. Storage Tanks. Sublessee shall be responsible for all existing fuel storage tanks
and lines located on the Demised Premises, including any inspections, maintenance, labor, and costs to
maintain compliance with all applicable laws and requirements and to keep current with applicable
guidelines issued by any regulatory authorities, and any that Sublessee installs as permitted herein.
Sublessee shall provide annually to Sublessor all documentation that the fuel storage tanks have been
maintained and are in compliance with all laws and requirements of the underground storage tanks division
of the applicable jurisdiction and any other regulatory authorities. The fuel storage tanks shall be used
solely for boat refueling purposes by Sublessee, its guests, invitees, or tenants.
Section 7.4. Corps Lease and City Sublease. Sublessee and Sublessor agree to comply with
all provisions under the Corps Lease and the City Sublease, regarding Hazardous Materials and to the extent
there is a conflict among such provisions in this Sublease, the City Sublease and the Corps Lease, the more
restrictive requirement will apply.
Section 7.5. Indemnification. Sublessee shall indemnify, defend and hold harmless
Sublessor and its employees, officers, affiliates, agents, and representatives from and against any and all
losses, claims, suits, damages, judgments, penalties, fines, expenses, costs, and liability (including, without
limitation, all reasonable attorneys’ fees and expenses for investigation, remediation, cleanup, monitoring,
or corrective action) directly or indirectly arising out of or in connection with (i) Sublessee’s breach of its
obligations in this Article VII, and (ii) the presence, use, generation, handling, transportation, storage,
release or threatened release, discharge, or disposal of Hazardous Materials on, in, under or from the
Demised Premises during the Primary Sublease Term, including any personal injury, property damage or
destruction arising out of or related to such Hazardous Materials. Sublessee’s indemification obligation
hereinabove shall survive the termination or expiration of this Sublease. Sublessor shall indemnify, defend
and hold harmless Sublessee and its employees, officers, affiliates, agents, and representatives from and
against any and all losses, claims, suits, damages, judgments, penalties, fines, expenses, costs, and liability
(including, without limitation, all reasonable attorneys’ fees and expenses for investigation, remediation,
cleanup, monitoring, or corrective action) directly or indirectly arising out of or in connection with (i)
Sublessor’s breach of its obligations in this Article VII, and (ii) the presence, use, generation, handling,
transportation, storage, release or threatened release, discharge, or disposal of Hazardous Materials on, in,
under or from the Demised Premises occurring prior to the Commencement Date, including any personal
injury, property damage or destruction arising out of or related to such Hazardous Materials. Sublessor’s
indemification obligation hereinabove shall survive the termination or expiration of this Sublease.
ARTICLE VIII.
TAXES
Section 8.1. Taxes and Assessments. From and after the Commencement Date, Sublessee
shall pay when due, directly to the applicable governmental authorities (or, to the extent not separately
assessed, at Sublessor’s option, to Sublessor at least thirty (30) days prior to the date due and payable), all
ad valorem taxes, assessments and other governmental charges and impositions levied or assessed against
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Sublessee’s fixtures, equipment and personal property on, attached to, or used in connection with the
Demised Premises or any part thereof; provided, however, that if any tax is payable in installments,
Sublessee may also pay in installments, but all such taxes shall be paid in full prior to the expiration of the
Primary Sublease Term, as may be extended if applicable. Sublessor shall promptly present Sublessee
with copies of all tax bills received for each lease year for which Sublessee is expressly responsible.
Sublessee shall pay when due, directly to the applicable governmental authorities (or, to the extent not
separately assessed, at Sublessor’s option, to Sublessor at least thirty (30) days prior to the date due and
payable), all property taxes, assessments and other governmental charges and impositions levied or assessed
against the Demised Premises or any part thereof, and Sublessee’s fixtures, equipment and personal
property on, attached to, or used in connection with the Demised Premises or any part thereof. Sublessee
shall have the right at Sublessee’s election to protest the levy, assessment or collection of any taxes,
assessments, charges or impositions by appropriate legal action, provided that Sublessee shall not thereby
permit any lien (other than the lien for current taxes not yet due and payable) or judgment for any taxes,
assessments, charges or impositions to be filed or enforced against the Demised Premises. Upon the
written request of Sublessee, Sublessor will join with Sublessee in any such protest on the condition that
Sublessee pay all of the reasonable costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by Sublessor in connection with this joinder. Sublessee, at its expense, shall prepare and file all
tax returns and reports in respect of any taxes for which Sublessee is expressly responsible as may be
required by governmental authorities. Sublessor and Sublessee shall, upon request of the other, provide
such data as is maintained by the party to whom the request is made with respect to the Demised Premises
as may be necessary to prepare any required tax returns and reports.
ARTICLE IX.
INSURANCE
Section 9.1. Insurance Requirements for Sublessee. Sublessee shall maintain such
insurance as required of the “Lessees” pursuant to the City Sublease.
Section 9.2. Insurance Requirements for Sublessor. Sublessor shall maintain such
insurance as required of the “Lessor” pursuant to the City Sublease.
Section 9.3. Waiver of Subrogation. Anything in this Sublease to the contrary
notwithstanding, Sublessor and Sublessee each hereby waive any and all rights of recovery, claim, action,
or cause of action, against the other, its agents, officers, or employees, for any loss or damage arising from
any cause covered by insurance required to be carried by each of them pursuant to this Sublease or any
other insurance actually carried by each of them, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers, or employees, and covenants that no insurer shall hold any right of
subrogation against such other party. All insurance obtained by either Sublessee or Sublessor hereunder,
especially including the property damage insurance described herein shall contain appropriate waiver of
subrogation rights endorsements whereby the insurer releases all rights of subrogation against both
Sublessor and Sublessee and any and all sub-sublessees. Each party shall provide the other with copies of
such endorsements upon request.
ARTICLE X.
MAINTENANCE AND REPAIR; ALTERATIONS; UTILITIES; SURRENDER
Section 10.1. Maintenance and Repair of Demised Premises. Subject to the provisions to
Articles VI and XI hereof, Sublessee shall keep and maintain, or cause to be kept and maintained, in the
condition required under the City Sublease, the entire Demised Premises and all of the Improvements,
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fixtures, equipment and personal property which may be constructed, placed, located, or erected on the
Demised Premises, and keep them free from waste or nuisance. Sublessee shall have the responsibility for
proper maintenance of the roadways, structures, buildings, infrastructure, grounds, shoreline, buoys, docks,
and all other amenities located within the Demised Premises, identified but not limited to, maintenance
standards outlined in the Developer’s Agreement (as defined in the City Sublease).
Section 10.2. Alterations. Sublessee shall have the right, from time to time, but subject to
Section 2.2, to make additions, alterations and changes to improvements in accordance with the terms and
conditions of the City Sublease and as approved by the Corps, City and Sublessor (hereinafter sometimes
referred to collectively as “alterations”) which consent by Sublessor shall not be unreasonably withheld,
conditioned, or delayed. Notwithstanding the foregoing, if Sublessee obtains the approval of the Corps
and the City, then Sublessor’s approval shall not be required.
Section 10.3. Utilities. Sublessee shall be responsible for the payment of all separately metered
utilities serving the Demised Premises. Sublessee shall establish accounts with the respective utility
provider and pay all charges directly to the utility provider. Sublessee shall have the right to use the
existing sanitary sewer and irrigation water systems which serve the Demised Premises. With respect to
jointly metered utilities, Sublessor and Sublessee agree to use reasonable efforts to monitor their respective
uses of utilities with the intent that the utility costs will be divided between Sublessor and Sublessee based
on each party’s actual use and the costs associated with such use, as reasonably determined by Sublessor.
For any such jointly metered utilities, Sublessee agrees to reimburse Sublessor for its portion of such costs
within thirty (30) days after presentation to Sublessee of receipted copies of the bills covering the same.
Sublessee shall only pay Sublessee’s allocable share of the charges for water or any other utility
connections, tap-in fees and services applicable to the Demised Premises.
Section 10.4. Surrender. On the expiration or earlier termination of this Sublease or any
extension hereof, Sublessee shall deliver the Demised Premises to the Sublessor in the manner and the
condition required under the City Sublease. The provisions of this Section 10.4 shall survive the
termination or expiration of this Sublease.
ARTICLE XI.
CASUALTY DAMAGE, DESTRUCTION AND CONDEMNATION
Section 11.1. Casualty Damage or Destruction.
(1) Sublessee’s and Sublessor’s Obligation to Restore. If the Improvements or equipment
situated on the Demised Premises during the Primary Sublease Term are wholly or partially destroyed or
damaged by fire, or any other casualty whatsoever, Sublessee will promptly give written notice thereof to
Sublessor, generally describing the nature and extent of such damage and/or destruction. Sublessee shall,
whether or not the insurance proceeds, if any, payable on account of such damage and/or destruction shall
be sufficient for such purpose, at Sublessee’s sole cost, risk and expense, promptly repair, replace, restore
or reconstruct the same in substantially the form in which the same existed prior to any such casualty, all
in compliance with the provisions of this Sublease.
(2) No Abatement. In the event of any such casualty, Rent and other payments herein
provided for shall not be abated, and the happening of any such casualty shall not cause a termination of
this Sublease except as herein provided.
Section 11.2. Condemnation. Sublessor and Sublessee agree that if the whole or any portion
of the Demised Premises is acquired or condemned by eminent domain for any public or quasi-public use
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or purpose, or sold to a condemning authority under threat of condemnation, this Sublease shall not
terminate but the Rent due hereunder shall be adjusted equitably by agreement to the parties hereto. The
rental adjustment shall not commence until said condemning authority actually takes possession of the
condemned portion of the Demised Premises. Sublessee shall promptly upon receipt of the proceeds of
the condemnation aware restore the Improvements on the Demised Premises, and the condemnation
proceeds to which Sublessor and Sublessee are entitled shall be awarded and paid first to cover the costs
and expenses for restoring the remaining portion of the Demised Premises to a condition susceptible to
efficient and economic occupation and operation by Sublessee, and any remaining proceeds to which
Sublessor and Sublessee are entitled shall be awarded and paid to Sublessor and Sublessee, as their interest
may appear. Sublessee may, but shall not be required to, expend funds in excess of the amount of any
award it receives in order to restore the remaining portion of the Demised Premises to operation.
ARTICLE XII.
ASSIGNMENT, SUBLETTING AND MORTGAGE
Section 12.1. Assignment. Subject to Sublessor’s Right of First Refusal (defined herein) and
provided Sublessor or Sublessee, as applicable, obtains the required consents set forth in the Corps Lease
and City Sublease, Sublessee shall have the right to assign this Sublease or sublet all or a portion of the
Demised Premises without the consent of Sublessor.
Section 12.2. Sublessor’s Right of First Refusal. In the event Sublessee desires to: (1) assign
its right, title, and interest in the leasehold estate pursuant to this Sublease or sublet all of the Demised
Premises, or (2) sell all or substantially all of Sublessee’s assets necessary for the operation of Sublessee’s
business at the Demised Premises, in each case to an unaffiliated third party in an arms-length transaction,
then Sublessor shall have the right of first refusal (“Sublessor’s Right of First Refusal”), to accept such
assignment or sublease or acquire such assets on the terms set forth between Sublessee any such unaffiliated
third party. Notwithstanding the foregoing, Sublessor’s Right of First Refusal shall not apply in the event
such assignment or sale of assets is (a) offered as part of a portfolio transaction by Sublessee or any of
Sublessee’s affiliates, or (b) consummated pursuant to a foreclosure or conveyance-in-lieu of foreclosure
pursuant to a Leasehold Mortgage, or the first assignment following a foreclosure or conveyance-in-lieu
thereof pursuant to a Leasehold Mortgage. Sublessee shall be required to provide written notice to
Sublessor containing the terms and conditions of any such proposed assignment or sale of assets
(“Sublessee Offer Notice”) and, upon receipt of the Sublessee Offer Notice, Sublessor shall have a period
of thirty (30) days (“Sublessor Election Period”) to elect to assume the Sublease or acquire the assets
based upon the terms and conditions contained in the Sublessee Offer Notice by providing written notice
of such election to Sublessee (“Sublessor Election Notice”). If Sublessor fails to deliver the Sublessor
Election Notice during the Sublessor Election Period, then Sublessor’s Right of First Refusal shall expire
and Sublessee shall be free to proceed with the proposed transaction.
Section 12.3. Sublessee’s Right of First Refusal. In the event Sublessor desires to: (1) assign
its right, title, and interest in the Project pursuant to the City Sublease or sublet all of the Project, or (2) sell
all or substantially all of Sublessor’s assets necessary for the operation of Sublessor’s business at the
Project, in each case to an unaffiliated third party in an arms-length transaction, then Sublessee shall have
the right of first refusal (“Sublessee’s Right of First Refusal”), to accept such assignment of the City
Sublease or subletting of the Project, or acquire such assets on the terms set forth between Sublessor any
such unaffiliated third party. Sublessor shall be required to provide written notice to Sublessee containing
the terms and conditions of any such proposed assignment, sublet, or sale of assets (“Sublessor Offer
Notice”) and, upon receipt of the Sublessor Offer Notice, Sublessee shall have a period of thirty (30) days
(“Sublessee Election Period”) to elect to assume the City Sublease, the subletting of the Project, or acquire
the assets based upon the terms and conditions contained in the Sublessor Offer Notice by providing written
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notice of such election to Sublessor (“Sublessee Election Notice”). If Sublessee fails to deliver the
Sublessee Election Notice during the Sublessee Election Period, then Sublessee’s Right of First Refusal
shall expire and Sublessor shall be free to proceed with the proposed transaction.
Section 12.4.
(1) Leasehold Mortgagee’s Rights Not Greater than Sublessee’s. With the exception of the
rights granted to Leasehold Mortgagees pursuant to the express provisions of this Section 12.4, the
execution and delivery of a mortgage, deed of trust or Leasehold Mortgage shall not give nor shall be
deemed to give a mortgagee, a beneficiary under a deed of trust or a Leasehold Mortgagee any greater rights
against Sublessor than those granted to Sublessee hereunder.
(2) Definitions.
“Institutional Lender” means any savings bank, a savings and loan association, a
commercial bank or trust company (whether acting individually or in a fiduciary capacity), an
insurance company organized and existing under the laws of the United States or any state thereof,
a public or privately-held fund principally engaged in real estate and/or corporate lending, a federal,
state or municipal employee’s welfare, benefit, pension or retirement fund, any governmental
agency or entity insured by a governmental agency, a credit union, investment bank or company,
trust or endowment fund, or any other business or institution affiliated with any of the foregoing
and regularly engaged in the business of making, acquiring and holding loans secured by real estate
and/or loans to real estate companies or any combination of Institutional Lenders. Institutional
Lenders shall also include any other person approved by Sublessor, such approval not to be
unreasonably withheld.
“Leasehold Mortgage” means any mortgage or deed of trust that constitutes a lien on all
or any portion of Sublessee’s interest in this Sublease and the leasehold estate created hereby, (i)
that is held by an Institutional Lender, and (ii) a photostatic copy of which has been delivered to
Sublessor, together with a certification by Sublessee and the Leasehold Mortgagee confirming that
the photostatic copy is a true copy of such Leasehold Mortgage and giving the name and notice
address of the holder thereof.
“Leasehold Mortgagee” means the holder or holders of a Leasehold Mortgage.
(3) Mortgage of Leasehold. Upon the circumstances and subject to the terms contained in
this Section 12.4, Sublessee may grant a Leasehold Mortgage to a Leasehold Mortgagee. Sublessor hereby
agrees as follows:
(i) Leasehold Mortgagee may realize on the security afforded by the leasehold estate
by exercising foreclosure proceedings or other remedies afforded at law or in equity and acquire
and succeed to the interest of Sublessee by virtue of the exercise of any such remedies;
(ii) if the Leasehold Mortgage is foreclosed upon by the Leasehold Mortgagee, and the
Demised Premises is acquired by such Leasehold Mortgagee or an independent third party as the
result of a foreclosure sale or conveyance in lieu of foreclosure under said Leasehold Mortgage,
Leasehold Mortgagee shall be permitted to exercise any rights of Sublessee under the Sublease;
(iii) all notices required to be given Sublessee pursuant to the terms of the Sublease
shall be given simultaneously to the Leasehold Mortgagee, so long as Sublessor has been given
written notice of its address, and no notice shall be effective against Leasehold Mortgagee (and no
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grace period or cure period shall commence with respect to Leasehold Mortgagee) until such notice
has been given to Leasehold Mortgagee;
(iv) all grace periods or rights to cure or remedy defaults held by Sublessee or to which
Sublessee is entitled by reason of any notice hereunder shall likewise be held by the Leasehold
Mortgagee (provided that, so long as Leasehold Mortgagee has commenced to cure the default and
is proceeding with due diligence to cure the default, Leasehold Mortgagee shall receive an
additional thirty (30) days to cure any such defaults, and if such default cannot reasonably be cured
within a thirty (30) day period and Leasehold Mortgagee is diligently proceeding to cure the default,
Leasehold Mortgagee shall have such additional time period to cure the default as may be
reasonably required not to exceed one hundred twenty (120) days);
(v) if the Demised Premises is acquired by such Leasehold Mortgagee or an
independent third party as the result of a foreclosure sale or conveyance in lieu of foreclosure under
said Leasehold Mortgage, Sublessor agrees not to terminate the Sublease in connection with such
foreclosure sale or conveyance in lieu thereof, provided that (A) Leasehold Mortgagee or such third
party prosecutes and completes such foreclosure or other appropriate proceedings to acquire
possession of and control over Sublessee’s leasehold estate in the Sublease with reasonable
diligence, (B) during the pendency of any such foreclosure or other proceedings with respect to
Sublessee’s interest in the Sublease, Leasehold Mortgagee cures any defaults of Sublessee under
this Sublease susceptible of being cured by Leasehold Mortgagee without possession of the
Demised Premises by the Leasehold Mortgagee, and (C) upon Leasehold Mortgagee’s acquiring
possession of the Demised Premises, it expressly assumes Sublessee liabilities and obligations and
privileges under the Sublease and promptly commences to cure any default of Sublessee susceptible
of being cured by Leasehold Mortgagee after Leasehold Mortgagee obtains possession of the
Demised Premises;
(vi) no substantive modification, amendment, waiver, release, termination or other
substantive change in the terms of the Sublease will be effective as to any Leasehold Mortgagee
without the prior written consent of the Leasehold Mortgagee;
(vii) if the Sublease, without the consent of Leasehold Mortgagee, is terminated for any
reason (whether by reason of default of Sublessor or Sublessee, rejection of the Sublease in any
bankruptcy case, voluntary surrender and acceptance, or otherwise) prior to its stated term, as the
same may be extended, then Sublessor shall provide written notice of such termination to Leasehold
Mortgagee and, upon written request from Leasehold Mortgagee made within thirty (30) days after
such notification, enter into a new lease of the Demised Premises with Leasehold Mortgagee subject
to any approval rights held by the City under the City Sublease or the Corps under the Corps Lease.
The new lease shall be effective as of the date of termination of the Sublease and be on the same
terms and conditions as the Sublease (including, without limitation, any rights or options to extend
the term of the Sublease), and shall not materially expand or reduce the rights or obligations of the
landlord or tenant thereunder. Leasehold Mortgagee and its nominee shall not be liable for or
otherwise be required to cure any defaults which are personal to Sublessee (such as, for example,
any default arising by virtue of any bankruptcy, insolvency or dissolution of Sublessee). Sublessor’s
obligation to enter into the new lease shall be conditioned upon the following: (A) Leasehold
Mortgagee shall have cured all defaults under the Sublease that can be cured by the payment of
money or performance of an action and paid to Sublessor all Rent and other sums that would have
been due and payable by Sublessee under this Sublease but for such termination; and (B) Leasehold
Mortgagee shall reimburse Sublessor for all reasonable costs and expenses incurred in entering into
the new lease. To the extent practicable, such new lease shall have the same priority as this Sublease
as of the Effective Date; provided, however, that Sublessor shall not be deemed to have represented
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or covenanted that such new lease shall be superior to encumbrances suffered or created by
Sublessee, or claims of Sublessee, its other creditors or a judicially appointed receiver or trustee
for Sublessee;
(viii) in any case commenced by or against Sublessor under Title 11 of the United States
Code (the “Bankruptcy Code”), if Sublessor elects to reject the Sublease pursuant to the provisions
of the Bankruptcy Code, the rejection will not terminate the Sublease but will be treated only as a
breach of the Sublease by the Sublessor. Sublessor further agrees that in such a bankruptcy case
Sublessee shall be deemed in possession of the Demised Premises for purposes of Section 365(h)
of the Bankruptcy Code, whether Sublessee has retained actual occupancy and use, or has by
sublease, assignment or license permitted third parties to occupy and use portions of the Demised
Premises; and as a result, upon a rejection of the Sublease by Sublessor the Sublessee shall have
the right to elect to remain in possession of the Demised Premises under Section 365(h). Sublessor
acknowledges that Leasehold Mortgagee shall have a lien on any rights and interests acquired or
retained by Sublessee as a result of Sublessor’s rejection of the Sublease. Sublessor acknowledges
that Leasehold Mortgagee has in such bankruptcy case a power of attorney or other right to act for
and on behalf of Sublessee in relation to any proposed rejection or assumption of the Sublease (but
Leasehold Mortgagee shall not have any obligations under the Sublease unless Leasehold
Mortgagee expressly assumes the same); and
(ix) If more than one Leasehold Mortgagee has exercised any of the rights afforded
by this Section 12.4 hereof, only that Leasehold Mortgagee, to the exclusion of all other Leasehold
Mortgagees, whose Leasehold Mortgage is most senior in lien shall be recognized by Sublessor as
having exercised such right, unless such Leasehold Mortgagee has designated a Leasehold
Mortgagee whose Leasehold Mortgage is junior in lien to exercise such right. If the parties shall
not agree on which Leasehold Mortgage is prior in lien, such dispute shall be determined by a title
insurance company chosen by Sublessor, and such determination shall conclusively bind the parties
hereto and all Leasehold Mortgagees.
Section 12.5 Non-Disturbance. In the event that Sublessor does not obtain, at or prior to the
Commencement Date, the release of the Demised Premises from the Leasehold Deed of Trust (as defined
in the EPA) and any other leasehold deed of trust which encumbers the Demised Premises, then Sublessor
shall obtain non-disturbance agreements from all lenders with a leasehold deed of trust which encumbers
the Demised Premises in the form attached hereto as Exhibit “C”. The encumbrance of the Demised
Premises by any future leasehold deed of trust shall be conditioned upon Sublessor obtaining non-
disturbance agreements substantially in the form attached hereto as Exhibit “C” from any such future
lenders, with such commercially reasonable modifications as may be requested by such future lenders. In
addition to the foregoing, Sublessor shall use commercially reasonable efforts to obtain non-disturbance
agreements in a form reasonably acceptable to Sublessee from the Corps and the City prior to the
Commencement Date of this Sublease.
Section 12.6 Restrictions on Sublessor Transfers, Assignments, and Subletting. Subject to
Sublessee’s Right of First Refusal, Sublessor shall have the right to assign this Sublease without the consent
of Sublessee; provided, however, Sublessee’s prior written consent, which consent may be withheld in
Sublessee’s sole discretion, shall be required if Sublessor desires to assign this Sublease or sublet any
interest in the Demised Premises to a Sublessee Competitor. “Sublessee Competitor” means those enities
set forth on Exhibit D attached hereto, as well as any entity which (A) acquires all or substantially all of the
stock, membership interests or assets of a Sublessee Competitor, or (B) is the resulting entity of a merger
or consolidation with such Sublessee Competitor, and, in either case, which is identified by Sublessee in a
written notice to Sublessor, together with reasonably acceptable supporting documentation evidencing the
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same. Not more than once during any twelve (12) month period, upon thirty (30) days’ prior written notice
to Sublessor, Sublessee shall be entitled to replace one (1) or more of the Sublessee Competitors with other
entities; provided, however, Sublessee may not replace a party that is a Sublessee Competitor until the date
that is the first anniversary of the Effective Date. Notwithstanding the foregoing, in no event shall the list
of Sublessee Competitors ever include more than five (5) entities.
ARTICLE XIII.
MUTUAL INDEMNIFICATION
Section 13.1. Sublessee. From and after the Commencement Date, Sublessee agrees to protect,
defend (with counsel reasonably acceptable to Sublessor), indemnify and hold harmless Sublessor and its
employees, officers, affiliates and agents from and against any and all loss, cost, damage and liability and
expense (including court costs and reasonable attorneys’ fees) arising from (i) the failure by Sublessee or
any of its employees or sub-sublessees to perform Sublessee’s duties and obligations under this Sublease
in accordance with the terms hereof, or (ii) the operation of Sublessee’s business in the Demised Premises,
and any other activities of Sublessee on or about the Demised Premises or Project Common Areas, unless
arising from caused by the gross negligence, recklessness or intentional acts of Sublessor.
Section 13.2. Sublessor. From and after the Commencement Date, Sublessor agrees to protect,
defend (with counsel reasonably acceptable to Sublessee), indemnify and hold harmless Sublessee and its
employees, officers, affiliates and agents from and against any and all loss, cost, damage and liability and
expense (including court costs and reasonable attorneys’ fees) arising from (i) the failure by Sublessor or
any of its employees or contractors to perform Sublessor’s duties and obligations under this Sublease in
accordance with the terms hereof, (ii) any of Sublessor’s activities on or about the Demised Premises
Common Areas, or (iii) the gross negligence, recklessness or intentional acts of Sublessor, Sublessor’s
employees, contractors, or invitees entering the Demised Premises under express or implied invitation of
Sublessor.
Section 13.3. Survival of Indemnification. This Article XIII shall survive the termination or
expiration of this Sublease.
ARTICLE XIV.
DEFAULT AND REMEDIES
Section 14.1. Default by Sublessee. Each of the following events is a “Sublessee Event of
Default” by Sublessee under this Sublease:
(1) Failure by Sublessee to pay any or all sums payable under this Sublease, whether as Rent, utilities
or service charges, insurance premium costs, taxes, charges, or assessments, or any other charges
whatsoever, if such failure shall continue for a period of thirty (30) business days after written
notice thereof has been delivered to Sublessee by Sublessor (with a copy of said notice to any
Leasehold Mortgagee or trustee as provided by Article XII hereof).
(2) Sublessee vacates or abandons the Demised Premises for a period of more than 90 (90) consecutive
days, for reasons other than because of adverse weather conditions, natural disaster or other force
majeure reasons.
(3) Failure by Sublessee to perform or observe any of the terms, covenants, conditions, agreements and
provisions of this Sublease (other than the payment of Rent) stipulated in this Sublease to be
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observed and performed by Sublessee if such failure shall continue for a period of thirty (30)
business days after written notice thereof has been delivered to Sublessee by Sublessor (with a copy
of said notice to any Leasehold Mortgagee or trustee as provided by Article XII hereof); provided,
however, that if any such failure cannot reasonably be cured within such thirty (30) business day
period, then Sublessor shall not have the right to exercise Sublessor’s remedies for so long as
Sublessee proceeds in good faith and with due diligence to remedy and correct any such failure for
a period not to exceed one hundred eighty (180) days, provided that Sublessee has commenced to
cure such failure after the effective date of such notice within such thirty (30) business day period.
(4) If Sublessee commits any act or omission which constitutes a default under the City Sublease or
the Development Agreement, which has not been cured after delivery of written notice and passage
of the applicable grace period provided in the City Sublease as modified, if at all, by the provisions
of this Sublease.
(5) Failure by Sublessee to make any Installment Payment (as defined in the EPA) as and when
required under the EPA, if such failure shall continue for a period of thirty (30) business days after
written notice thereof has been delivered to Sublessee by Sublessor.
Section 14.2. Sublessor Remedies for Sublessee Default. If a Sublessee Event of Default occurs
hereunder and continues beyond any applicable cure period, Sublessor may as Sublessor’s remedies for
such Sublessee Event of Default:
(1) Sublessor shall be entitled pursue an action to recover from Sublessee any and all actual damages
incurred by Sublessor arising from such Sublessee Event of Default; or
(2) Subject to the provisions of Article XII hereof with respect to the rights of any Leasehold
Mortgagee, terminate this Sublease by giving Sublessee written notice of termination (with a copy
of said notice to any Leasehold Mortgagee or trustee as provided in Article XII hereof), in which
event this Sublease and the leasehold estate created hereby and all interest of Sublessee and all
parties claiming by, through or under Sublessee shall automatically terminate upon the effective
date of such termination notice.
Section 14.3. Sublessor’s Remedies Cumulative. Pursuit of any one or more of the foregoing
remedies by Sublessor shall not preclude the simultaneous or subsequent pursuit of any other remedy
provided herein, nor shall the pursuit of any one or more remedies set forth in this Sublease constitute a
forfeiture or waiver of any amount payable by Sublessee hereunder or of any damages accruing to or
suffered by Sublessor by reason of any Sublessee Event of Default. If a Sublessee Event of Default occurs,
Sublessor may elect to proceed by appropriate judicial proceedings, either at law or in equity, to enforce
performance or observance by Sublessee of the applicable provisions of this Sublease and/or to recover
damages for breach thereof.
Section 14.4. Default by Sublessor. Each of the following events is a “Sublessor Event of
Default” by Sublessor under this Sublease:
(1) Failure by Sublessor to pay or cause to be paid any monetary obligations due to Sublessee or any
other third party under this Sublease, taxes (to the extent Sublessor is obligated to pay same or
cause same to be paid), utilities, insurance premiums or other liquidated sums of money herein
stipulated in this Sublease to be paid by Sublessor if such failure shall continue for a period of five
(5) business days after written notice.
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(2) Failure by Sublessor to perform or observe any of the terms, covenants, conditions, agreements and
provisions of this Sublease (other than the payment of monetary obligations, taxes, utilities,
insurance premiums or other liquidated sums of money) stipulated in this Sublease to be observed
and performed by Sublessor if such failure shall continue for a period of thirty (30) days after notice
thereof has been delivered to Sublessor; provided, however, that if any such failure (other than a
failure involving payment of liquidated sums of money) cannot reasonably be cured within such
thirty (30) day period, then Sublessee shall not have the right to exercise Sublessee’s remedies for
so long as Sublessor proceeds in good faith and with due diligence to remedy and correct any such
failure, provided that Sublessor has commenced to cure such failure after the effective date of such
notice within such thirty (30) day period.
(3) Failure by Sublessor to perform or observe any of the terms, covenants, conditions, agreements and
provisions of the Corps Lease or the City Sublease (including the payment of monetary obligations,
taxes, utilities, insurance premiums or other liquidated sums of money) stipulated to be observed
and performed by Sublessor, subject to the applicable notice and cure periods, if any, set forth
therein.
Section 14.5 Sublessee Remedies for Sublessor Default. If a Sublessor Event of Default
occurs hereunder, except as expressly limited elsewhere in this Sublease, Sublessee may, at any time
thereafter do one or more of the following as Sublessee’s remedies as Sublessee’s remedies for such
Sublessor Event of Default:
(1) Restrain or enjoin any breach or threatened breach of any covenant or obligation of Sublessor
contained within this Sublease without the necessity of proving the inadequacy of any legal remedy
or irreparable harm and without bond;
(2) Pursue an action for actual damages arising from such Sublessor Event of Default; or
(3) Seek specific performance of the action giving rise to such Sublessor Event of Default.
Section 14.6. Sublessee’s Remedies Cumulative. Pursuit of any one or more of the foregoing
remedies by Sublessee shall not preclude the simultaneous or subsequent pursuit of any other remedy
provided herein, nor shall the pursuit of any one or more remedies set forth in this Sublease constitute a
forfeiture or waiver of any amount payable by Sublessor hereunder or of any damages accruing to or
suffered by Sublessee by reason of any Sublessor Event of Default.
Section 14.7. Survival. This Article XIV shall survive the expiration or earlier termination of
this Sublease.
ARTICLE XV.
ACCESS AND INSPECTION
Notwithstanding anything to the contrary in this Sublease, (i) Sublessor and its agents, representatives,
and designees shall have the right to enter the Demised Premises upon reasonable notice to Sublessee during
regular business hours, and in accordance with Sublessee’s reasonable instructions, solely to ascertain
whether Sublessee is complying with this Sublease; and (ii) designated representatives from the City and
the Corps shall have the right to enter upon the Demised Premises for the purposes set forth in the City
Sublease. In entering the Demised Premises, Sublessor and its designees shall not unreasonably interfere
with operations on the Demised Premises and shall comply with Sublessee’s reasonable instructions.
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ARTICLE XVI.
MISCELLANEOUS
Section 16.1. Waiver of Default. No waiver by the parties hereto of any default or breach of
any term, condition or covenant of this Sublease shall be deemed to be a waiver of any subsequent default
or breach of the same or any other term, condition or covenant contained herein.
Section 16.2. Attorneys’ Fees. In the event of any litigation between the parties relating to this
Sublease, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, expenses and costs
and court costs as part of any judgment, award or settlement. The right to attorneys’ fees shall survive the
expiration or earlier termination of this Sublease. For purposes of this Section 16.2, a party will be
considered to be the prevailing party if: (i) such party initiated the litigation and, as determined by the court
or arbitrator, substantially obtained the relief which it sought (whether by judgment, voluntary agreement
or action of the other party, trial or alternative dispute resolution process); (ii) such party did not initiate the
litigation and either (A) received a judgment in its favor, or (B) did not receive judgment in its favor, but
the party receiving the judgment did not substantially obtain the relief which it sought, as determined by
the court or arbitrator; or (iii) the other party to the litigation withdrew its claim or action without having
substantially received the relief which it was seeking as determined by the court or arbitrator.
Section 16.3. Estoppel Certificates. Both parties hereto agree that from time to time, on
twenty (20) days’ prior written request, the non-requesting party will deliver to the requesting party a
statement in writing certifying as of the date of such statement:
(1) if the facts permit, that this Sublease is unmodified and in full force and effect (or if there
have been modifications, that this Sublease as modified is in full force and effect and stating the
modifications);
(2) the dates to which Rent and other charges have been paid;
(3) to the non-requesting party’s knowledge that the requesting party is not in default under
any monetary obligation or other material term or provision of this Sublease, and if in default the nature
thereof in detail in accordance with an exhibit attached thereto; and
(4) any other information reasonably requested by the requesting party or its mortgagee.
Section 16.4. No Partnership. It is understood and agreed that in leasing and operating the
Demised Premises, Sublessee is acting independently and is not acting as agent, partner, joint venturer or
employee of Sublessor.
Section 16.5. Intentionally Omitted.
Section 16.6. Exhibits. All exhibits, attachments, annexed instruments and addenda-referred
to herein shall be incorporated in this Sublease and considered a part of this Sublease for all purposes. The
parties acknowledge that the Exhibits may not be complete and final as of the Effective Date of this
Sublease. To the extent an Exhibit is not complete or final, then on or before the Commencement Date,
Sublessor and Sublessee will attach the final version of each and every Exhibit mutually agreed to in writing
by Sublessor and Sublessee and to the extent required, accepted and approved by the City and the Corps.
Additionally, if and to the extent the City requires a change by Sublessor to an Exhibit, then Sublessee’s
consent is not required for such change as long as such change does not prevent the use of the Demised
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Premises as a marina. Sublessor shall deliver a copy of any such amended or substituted Exhibit to
Sublessee within fifteen (15) business days of the change, substitution or amendment.
Section 16.7. Use of Language. Words of any gender used herein shall be held and construed
to include any other gender, and words in the singular shall be held to include the plural, unless the context
otherwise requires.
Section 16.8. Captions. The captions or headings of paragraphs in this Sublease are inserted
for convenience only, and shall not be considered in construing the provisions hereof if any question of
intent should arise.
Section 16.9. Successors. The terms, conditions and covenants contained in this Sublease shall
apply to, inure to the benefit of, and be binding upon the parties hereto and their respective successors in
interest, and successor trustees, heirs, executors, administrators and legal representatives. All rights,
powers, privileges, immunities and duties of either party under this Sublease, including, but not limited to,
any notices required or permitted to be delivered by either party hereunder, may, at such party’s option, be
exercised or performed by such party’s agent or attorney.
Section 16.10. Severability. If any provision herein is held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Sublease shall not be affected thereby.
Section 16.11. Notices. All notices which are required or permitted hereunder must be in writing
and shall be deemed to have been given, delivered or made, as the case may be (notwithstanding lack of
actual receipt by the addressee): (i) upon actual receipt or refusal by the addressee by hand; or (ii) three (3)
business days after having been deposited in the United States mail, certified, return receipt requested,
sufficient postage affixed and prepaid; or (iii) one (1) business day after having been deposited with an
expedited, overnight courier service (such as by way of example but not limitation, U.S. Express Mail,
Federal Express or Purolator), addressed to the party to whom notice is intended to be given at the address
set forth below:
Sublessor: c/o Marine Quest – Hidden Cove, L.P.
20488 Hackberry Creek Park Road
Frisco, TX 75036
Attention: Justin Bosworth
Email: bosworthjustin@gmail.com
With a Copy To: Sidley Austin LLP
2021 McKinney Ave., Suite 2000
Dallas, TX 75201
Attention: Bill Howell and Hannah Marshall
Email: bhowell@sidley.com; hmarshall@sidley.com
Sublessee: Suntex Marina Investors LLC
17330 Preston Road, Suite 100C
Dallas, Texas 75252
Attention: Bryan C. Redmond
Email: bryan@suntex.com
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With a Copy To: Bradley Arant Boult Cummings LLP
1445 Ross Avenue, Suite 3600
Dallas, Texas 75202
Attn: Sarah B. Fandrey
Telephone: (214) 257-9771
Email: sfandrey@bradley.com
A party may change its notice address by delivering ten (10) days’ prior written notice to the other party.
Section 16.12. Fees or Commissions. Each party hereby represents and warrants to the other,
that it has neither contacted nor entered into an agreement with any real estate broker, agent, finder, or any
other party in connection with this transaction, or taken any action that would result in any real estate
broker’s, finder’s, or other fees or commissions being due or payable to any other party with respect to the
transaction contemplated by this Sublease. Each party hereby indemnities and agrees to hold the other
party harmless from any loss, liability, damage, cost, or expense (including reasonable attorney’s fees)
resulting to the other party from a breach of the representation made by the indemnifying party in this
Section 16.12.
Section 16.13. Counterparts. This Sublease may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the same instrument.
Section 16.14. Limitation of Sublessor’s Liability. Sublessee specifically agrees to look
solely to all of Sublessor’s interest in the City Sublease and the Project for the recovery of any judgments
against Sublessor. Sublessor (and Sublessor’s shareholders, venturers, and partners, and their
shareholders, venturers, and partners, and all of their officers, directors, and employees) shall not be
personally liable for any such judgments.
Section 16.15. Force Majeure. Whenever a period of time is herein prescribed for action to be
taken by Sublessor, Sublessor shall not be liable or responsible for, and there shall be excluded from the
computation of any such period of time, any delays due to force majeure.
Section 16.16. Joint and Several. In the event that Sublessee is comprised of more than one
individual or entity, the obligations of such individuals or entities under this Sublease shall be joint and
several.
Section 16.17. Governing Law; Provisions Severable. The laws of the State in which the
Demised Premises are situated shall govern the interpretation, validity, performance and enforcement of
this Sublease. If any provision of this Sublease should be held to be invalid or unenforceable, the validity
and enforceability of the remaining provisions of this Sublease shall not be affected thereby. Venue for
any action under this Sublease shall be the county in which the Demised Premises are located.
Section 16.18. Entire Agreement and Amendments. This Sublease and the EPA embody the
entire agreement between Sublessor and Sublessee and supersedes all prior agreements and understandings,
whether written or oral, and all contemporaneous oral agreements and understandings relating to the subject
matter hereof. Except as otherwise specifically provided herein, no agreement hereafter made shall be
effective to change, modify, discharge or effect an abandonment of this Sublease, in whole or in part, unless
such agreement is in writing and signed by or on behalf of the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
Section 16.19. Dispute Resolution. If a dispute arises with respect to this Sublease, the parties
to the dispute shall first attempt to resolve it through direct discussions in the spirit of mutual cooperation.
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If the parties’ attempts to resolve their disagreements through negotiation fail, the dispute shall be mediated
by a mutually acceptable third-party to be chosen by the disputing parties within thirty (30) days after
written notice by one of them demanding mediation. Request for mediation by a party shall be filed in
writing with the other party. The disputing parties shall share the costs of the mediation equally. By
mutual agreement the parties may postpone mediation until each has completed some specified but limited
discovery about the dispute. By mutual agreement the parties may use another nonbinding form of dispute
resolution other than mediation. Any nonbinding dispute resolution process conducted under the terms of
this section shall be confidential within the meaning of Tex. Civ. Prac. and Rem. Code Sec. 154.053 and
154.073. If neither a negotiated or mediated resolution is obtained within the time periods provided by
this section, the parties may pursue any available legal or equitable remedy. Positions and statements made
by any party during mediation may not be used against it in later proceedings if the parties fail to reach a
settlement agreement during mediation. Agreements reached in any mediation proceeding shall be
enforceable as settlement agreements in any court having jurisdiction thereof.
Section 16.20. Bankruptcy or Insolvency. Sublessor and Sublessee agree that if Sublessee
becomes the subject of a bankruptcy proceeding under the Federal Bankruptcy Laws, as now enacted or
hereinafter amended, then “adequate protection” of Sublessor’s interest in the Demised Premises pursuant
to the provisions of Sections 361 and 363 (or their successor sections of the Bankruptcy Code, 11 U.S.C.
§101, et seq.) prior to the assumption and/or assignment of this Sublease by Sublessee shall include, but
not be limited to all (or any part) of the following:
(1) The continued payment by Sublessee of all Rent and other sums due and owing under this
Sublease and the performance of all other covenants and obligations under this Sublease by
Sublessee; and
(2) The furnishing of a security deposit by Sublessee in the amount of three times the then-
current monthly annual Rent payable hereunder.
Notwithstanding anything in this Sublease to the contrary, all amounts payable by Sublessee to or on
behalf of Sublessor under this Sublease, whether or not expressly denominated as “rent,” shall constitute
“rent” for the purposes of §502 (b) (7) of the U.S. Bankruptcy Code. If this Sublease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered in connection with such assignment shall be paid and
delivered to Sublessor, shall be and remain the exclusive property of Sublessor and shall not constitute
property of Sublessee or the estate of Sublessee within the meaning of the U.S. Bankruptcy Code. Any
and all monies or other considerations constituting Sublessor’s property under the preceding sentence not
paid or delivered to Sublessor shall be held in trust by Sublessee for the benefit of Sublessor and shall be
promptly paid to or turned over to Sublessor.
[Signature Page Follows]
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EXECUTED as of the day, month and year first above written.
Sublessor: Sublessee:
Marine Quest – Hidden Cove Park, L.P., _______________________,
a Texas limited liability company a Delaware limited liability company
By: By:
Name: Name:
Title: Title:
101
Exhibit “A”
Metes and Bounds Legal Description of the Demised Premises
102
27
Exhibit “A-1”
Depiction of Premises
103
LEWISVILLE LAKE
1
9
3
8
.
9
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POCPOC
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L1 L2
L3
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L6 L7
L8
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9
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L12
L1
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L1
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L15
L16 L17
L18
L1
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L20
L21
L22
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POBPOB
8
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6
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C1 262.08'N90°00'00"E
C
2
L26
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3
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4
C5
C6
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C10C11
C1
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Line Table
Line #
L1
L2
L3
L4
L5
L6
L7
L8
L9
L10
L11
L12
L13
L14
L15
L16
L17
L18
L19
L20
L21
L22
L23
Direction
N85°00'00"E
N48°36'45"E
N26°53'58"E
N47°41'53"E
N58°05'43"E
N59°22'24"E
S71°34'00"E
S56°12'16"E
S44°20'43"E
S58°47'06"E
S81°52'16"E
N58°51'52"E
N20°21'21"E
N29°30'53"E
N52°15'25"E
N85°39'11"E
N69°12'52"E
N47°06'10"E
N27°52'53"E
N68°04'38"E
S89°05'53"E
N66°15'12"E
N61°47'53"E
Length
38.87
38.06
37.45
58.25
60.44
42.75
88.62
70.48
29.78
37.35
17.11
27.14
64.01
58.95
18.98
136.72
55.91
65.41
75.56
82.96
117.92
39.66
106.11
Line Table
Line #
L24
L25
L26
L27
L28
L29
L30
Direction
S88°35'02"E
S1°24'58"W
N69°07'05"E
S33°09'27"W
S38°00'15"W
N41°50'32"W
N1°24'58"E
Length
30.00
58.59
29.99
3.28
25.43
4.90
58.59
Curve Table
Curve #
C1
C2
C3
C4
C5
C6
C7
C8
C9
C10
C11
C12
C13
C14
C15
C16
C17
C18
C19
Delta
0°53'21"
8°16'57"
9°15'15"
8°23'02"
7°45'52"
17°27'50"
14°51'32"
0°52'39"
9°36'24"
56°29'07"
12°48'42"
6°29'47"
13°09'36"
0°17'22"
9°02'23"
0°48'29"
10°18'43"
12°45'03"
8°28'07"
Radius
543.00'
434.49'
451.66'
415.51'
485.68'
198.43'
157.08'
971.37'
139.24'
88.20'
148.80'
375.00'
225.94'
197.91'
220.71'
237.41'
257.64'
335.00'
572.34'
Arc Length
8.43'
62.81'
72.95'
60.80'
65.82'
60.48'
40.74'
14.87'
23.35'
86.95'
33.27'
42.52'
51.90'
1.00'
34.82'
3.35'
46.37'
74.55'
84.60'
Chord Bearing
S0°58'18"W
N18°03'34"W
S17°38'00"E
S7°49'58"E
S0°23'24"W
S11°27'50"W
S28°29'05"W
S36°46'53"W
S43°14'26"W
S76°17'12"W
N69°03'54"W
N59°35'00"W
N49°49'22"W
N40°59'19"W
N36°14'46"W
N31°26'33"W
N25°47'22"W
N13°53'45"W
N2°48'48"W
Chord Length
8.43'
62.75'
72.87'
60.75'
65.77'
60.25'
40.62'
14.87'
23.32'
83.47'
33.20'
42.50'
51.78'
1.00'
34.78'
3.35'
46.31'
74.40'
84.52'
L11
S
1
1
°
5
8
'
5
9
"
E
LEWISVILLE LAKE
LEWISVILLE LAKE
LEWISVILLE LAKE
LEASE
TRACT 2
LEASE
TRACT 1B
Line Table
Line #
L1
L2
L3
L4
L5
L6
L7
L8
L9
L10
L11
L12
L13
L14
L15
L16
L17
L18
L19
L20
L21
L22
L23
Direction
N85°00'00"E
N48°36'45"E
N26°53'58"E
N47°41'53"E
N58°05'43"E
N59°22'24"E
S71°34'00"E
S56°12'16"E
S44°20'43"E
S58°47'06"E
S81°52'16"E
N58°51'52"E
N20°21'21"E
N29°30'53"E
N52°15'25"E
N85°39'11"E
N69°12'52"E
N47°06'10"E
N27°52'53"E
N68°04'38"E
S89°05'53"E
N66°15'12"E
N61°47'53"E
Length
38.87
38.06
37.45
58.25
60.44
42.75
88.62
70.48
29.78
37.35
17.11
27.14
64.01
58.95
18.98
136.72
55.91
65.41
75.56
82.96
117.92
39.66
106.11
S
3
0
°
5
7
'
3
1
"
E
L23
1
6
3
2
.
9
1
'
Line Table
Line #
L24
L25
L26
L27
L28
L29
L30
Direction
S88°35'02"E
S1°24'58"W
N69°07'05"E
S33°09'27"W
S38°00'15"W
N41°50'32"W
N1°24'58"E
Length
30.00
58.59
29.99
3.28
25.43
4.90
58.59
Curve Table
Curve #
C1
C2
C3
C4
C5
C6
C7
C8
C9
C10
C11
C12
C13
C14
C15
C16
C17
C18
C19
Delta
0°53'21"
8°16'57"
9°15'15"
8°23'02"
7°45'52"
17°27'50"
14°51'32"
0°52'39"
9°36'24"
56°29'07"
12°48'42"
6°29'47"
13°09'36"
0°17'22"
9°02'23"
0°48'29"
10°18'43"
12°45'03"
8°28'07"
Radius
543.00'
434.49'
451.66'
415.51'
485.68'
198.43'
157.08'
971.37'
139.24'
88.20'
148.80'
375.00'
225.94'
197.91'
220.71'
237.41'
257.64'
335.00'
572.34'
Arc Length
8.43'
62.81'
72.95'
60.80'
65.82'
60.48'
40.74'
14.87'
23.35'
86.95'
33.27'
42.52'
51.90'
1.00'
34.82'
3.35'
46.37'
74.55'
84.60'
Chord Bearing
S0°58'18"W
N18°03'34"W
S17°38'00"E
S7°49'58"E
S0°23'24"W
S11°27'50"W
S28°29'05"W
S36°46'53"W
S43°14'26"W
S76°17'12"W
N69°03'54"W
N59°35'00"W
N49°49'22"W
N40°59'19"W
N36°14'46"W
N31°26'33"W
N25°47'22"W
N13°53'45"W
N2°48'48"W
Chord Length
8.43'
62.75'
72.87'
60.75'
65.77'
60.25'
40.62'
14.87'
23.32'
83.47'
33.20'
42.50'
51.78'
1.00'
34.78'
3.35'
46.31'
74.40'
84.52'
Drawing: F:\job\2022\810\021 Hidden Cove Marina\01 Design & Drafting\01 Survey\06 Lease Tracts\Tract 1B & 2 Alta.dwg
949 Hilltop Drive, Weatherford, TX 76086
tstock@bhbinc.com • 817.596.7575 • bhbinc.com
TBPELS Firm #44 • TBPELS FIRM #10194146
N
W
S
E
Vicinity Map - Not to Scale
LEASE TRACT 1B
LEASE TRACT 2
ALTA-NSPS LAND TITLE SURVEY
Lease Tract 1B-Being 29.297 acres
Lease Tract 2-Being 1.911 acres
situated within the
B.B.B.&.C RR CO. SURVEY ABSTRACT No. 170,
F.M. GRACE SURVEY ABSTRACT No. 469 &
G.W. GRACE SURVEY ABSTRACT No. 490,
The Colony, Denton County, Texas
November 2023
METES & BOUNDS LEASE TRACT 2
BEING a tract of land situated in the F.M. Grace Survey, Abstract Number 469 and the G.W. Grace Survey, Abstract Number
490, The Colony, Denton County, Texas, said tract being a portion of land described as Tract No. E-401-2 by deed to United
States of America, as recorded in Volume 382, Page 127, Deed Records, Denton County, Texas, and being more particularly
described by metes and bounds as follows: (Bearings referenced to U.S. State Plane Grid 1983 - Texas North Central Zone
(4202) NAD83 as established using the AllTerra RTKNet Cooperative Network. Reference frame is NAD83(2011) Epoch
2010.0000. Distances shown are U.S. Survey feet displayed in surface values.)
COMMENCING at a found 1/2-inch capped iron rod marked DAA for the southeast corner of Lot 37, Block X, of The Enclave At
Hidden Cove Phase Twelve, an addition to the Denton County Fresh Water Supply District No. 4-A, Denton County, Texas,
accordingly to the plat thereof recorded under Clerk's File No. 2014-291, Plat Records, Denton County, Texas, same being the
southwest corner of Lot 38, Block X of said Enclave At Hidden Cove;
THENCE South 11°58'59" East, over and across aforesaid Tract No. E-401-2, a distance of 1,235.89 FEET to the POINT OF BEGINNING;
THENCE over and across said Tract No. E-401-2, the following courses and distances:
South 88°35'02" East, a distance of 30.00 feet;
South 1°24'58" West, a distance of 58.59 feet;
Along a curve to the left, having a radius of 543.00 feet, a central angle of 0°53'21", an arc length of 8.43 feet, and a chord which
bears South 00°58'18" West, a distance of 8.43 feet;
North 90°00'00" East, a distance of 262.08 feet;
Along a curve to the left, having a radius of 434.49 feet, a central angle of 8°16'57", an arc length of 62.81 feet, and a chord which
bears North 18°03'34" West, a distance of 62.75 feet;
North 67°07'05" East, a distance of 29.99 feet for the northeast corner of the hereon described tract from which a 1/2-inch capped
iron rod marked “DAA” for the southeast corner of Lot 46, Block X, of aforementioned The Enclave at Hidden Cove Phase 12, bears
North 00°12'20" East, a distance of 1,214.74 feet;
Along a curve to the right, having a radius of 451.66 feet, a central angle of 9°15'15", an arc length of 72.95 feet, and a chord which
bears South 17°38'00" East, a distance of 72.87 feet;
Along a curve to the right, having a radius of 415.51 feet, a central angle of 8°23'02", an arc length of 60.80 feet, and a chord which
bears South 7°49'58" East, a distance of 60.75 feet;
Along a curve to the right, having a radius of 485.68 feet, a central angle of 7°45'52", an arc length of 65.82 feet, and a chord which
bears South 00°23'24" West, a distance of 65.77 feet;
Along a curve to the right, having a radius of 198.43 feet, a central angle of 17°27'50", an arc length of 60.48 feet, and a chord which
bears South 11°27'50" West, a distance of 60.25 feet;
Along a curve to the right, having a radius of 157.08 feet, a central angle of 14°51'32", an arc length of 40.74 feet, and a chord which
bears South 28°29'05" West, a distance of 40.62 feet;
South 33°09'27" West, a distance of 3.28 feet;
Along a curve to the right, having a radius of 971.37 feet, a central angle of 00°52'39", an arc length of 14.87 feet, and a chord which
bears South 36°46'53" West, a distance of 14.87 feet;
South 38°00'15" West, a distance of 25.43 feet;
Along a curve to the right, having a radius of 139.24 feet, a central angle of 09°36'24", an arc length of 23.35 feet, and a chord which
bears South 43°14'26" West, a distance of 23.32 feet;
Along a curve to the right, having a radius of 88.20 feet, a central angle of 56°29'07", an arc length of 86.95 feet, and a chord which
bears South 76°17'12" West, a distance of 83.47 feet;
Along a curve to the right, having a radius of 148.80 feet, a central angle of 12°48'42", an arc length of 33.27 feet, and a chord which
bears North 69°03'54" West, a distance of 33.20 feet;
Along a curve to the right, having a radius of 375.00 feet, a central angle of 06°29'47", an arc length of 42.52 feet, and a chord which
bears North 59°35'00" West, a distance of 42.50 feet;
Along a curve to the right, having a radius of 225.94 feet, a central angle of 13°09'36", an arc length of 51.90 feet, and a chord which
bears North 49°49'22" West, a distance of 51.78 feet;
North 41°50'32" West, a distance of 4.90 feet;
Along a curve to the right, having a radius of 197.91 feet, a central angle of 00°17'22", an arc length of 1.00 feet, and a chord which
bears North 40°59'19" West, a distance of 1.00 feet;
Along a curve to the right, having a radius of 220.71 feet, a central angle of 09°02'23", an arc length of 34.82 feet, and a chord which
bears North 36°14'46" West, a distance of 34.78 feet;
Along a curve to the right, having a radius of 237.41 feet, a central angle of 00°48'29", an arc length of 3.35 feet, and a chord which
bears North 31°26'33" West, a distance of 3.35 feet;
Along a curve to the right, having a radius of 257.64 feet, a central angle of 10°18'43", an arc length of 46.37 feet, and a chord which
bears North 25°47'22" West, a distance of 46.31 feet;
Along a curve to the right, having a radius of 335.00 feet, a central angle of 12°45'03", an arc length of 74.55 feet, and a chord which
bears North 13°53'45" West, a distance of 74.40 feet;
Along a curve to the right, having a radius of 572.34 feet, a central angle of 08°28'07", an arc length of 84.60 feet, and a chord which
bears North 02°48'48" West, a distance of 84.52 feet;
North 01°24'58" East, a distance of 58.59 feet to the POINT OF BEGINNING and containing 83,258 square feet or 1.911 acres
of land, more or less.
AC.........................Air Conditioner
CO.........................Clean Out
CONC....................Concrete
CIRF.......................1/2" Capped Iron Rod Marked DAA Found
D.R.D.C.T...............Deed Records, Denton County, Texas
EM.........................Electrical Meter
ET..........................Electrical Transformer
EW.........................Edge of Water
LT..........................Light (Solar)
MONU...................Monument
P.R.D.C.T...............Plat Records, Denton County, Texas
POB.......................Point of Beginning
POC.......................Point of Commencement
USACE...................United States Army Corps of Engineers
LEGEND
METES & BOUNDS LEASE TRACT 1B
BEING a tract of land situated in the F.M. Grace Survey, Abstract Number 469 and the B.B.B.&C. RR. Co. Survey, Abstract
Number 170, The Colony, Denton County, Texas, said tract being a portion of land described as Tract No. E-401-2 by deed to
United States of America, as recorded in Volume 382, Page 127, Deed Records, Denton County, Texas, and being more
particularly described by metes and bounds as follows: (Bearings referenced to U.S. State Plane Grid 1983 - Texas North
Central Zone (4202) NAD83 as established using the AllTerra RTKNet Cooperative Network. Reference frame is NAD83(2011)
Epoch 2010.0000. Distances shown are U.S. Survey feet displayed in surface values.)
COMMENCING at a found concrete monument with Army Core of Engineers for an inner ell corner of said Tract No. E-401-2,
same being the southwest corner of The Enclave At Hidden Cove Phase Twelve, an addition to the Denton County Fresh Water
Supply District No. 4-A, Denton County, Texas, accordingly to the plat thereof recorded under Clerk's File No. 2014-291, Plat
Records, Denton County, Texas;
THENCE South 11°25'27" East, over and across said Tract No. E-401-2, a distance of 1,938.65 feet to the POINT OF BEGINNING;
THENCE over and across said Tract No. E-401-2, the following courses and distances:
North 85°00'00" East, a distance of 38.87 feet;
North 48°36'45" East, a distance of 38.06 feet;
North 26°53'58" East, a distance of 37.45 feet;
North 47°41'53" East, a distance of 58.25 feet;
North 58°05'43" East, a distance of 60.44 feet;
North 59°22'24" East, a distance of 42.75 feet;
South 71°34'00" East, a distance of 88.62 feet;
South 56°12'16" East, a distance of 70.48 feet;
South 44°20'43" East, a distance of 29.78 feet;
South 58°47'06" East, a distance of 37.35 feet;
South 81°52'16" East, a distance of 17.11 feet;
North 58°51'52" East, a distance of 27.14 feet;
North 20°21'21" East, a distance of 64.01 feet;
North 29°30'53" East, a distance of 58.95 feet;
North 52°15'25" East, a distance of 18.98 feet;
North 85°39'11" East, a distance of 136.72 feet;
North 69°12'52" East, a distance of 55.91 feet;
North 47°06'10" East, a distance of 65.41 feet;
North 27°52'53" East, a distance of 75.56 feet;
North 68°04'38" East, a distance of 82.96 feet;
South 89°05'53" East, a distance of 117.92 feet;
North 66°15'12" East, a distance of 39.66 feet;
North 61°47'53" East, a distance of 106.11 feet for the northeast corner of the hereon described tract from which a 1/2-inch capped
iron rod marked “DAA” for the southeast corner of Lot 46, Block X, of aforementioned The Enclave at Hidden Cove Phase 12, bears
North 23°45'30" West, a distance of 1,632.91 feet;
South 30°57'31" East, a distance of 818.16 feet;
South 60°14'53" West, a distance of 1,452.80 feet;
North 30°06'48" West, a distance of 561.60 feet;
North 00°55'33" East, a distance of 518.52 feet to the POINT OF BEGINNING and containing 1,276,159 square feet or 29.297
acres of land, more or less.
SURVEYOR'S CERTIFICATION
FLOOD ZONE NOTE
A portion of the subject property lies within SPECIAL FLOOD HAZARD AREAS (SFHAs) SUBJECT TO INUNDATION
BY THE 1% ANNUAL CHANCE FLOOD:
Zone AE - Base flood elevations determined per FIRM, Flood Insurance Rate Map, Community Panel Number
48121C0420G, Map Revised April 18, 2011. The location as shown is per scaling. This does not represent a
drainage study floodplain limits.
A.A portion of the subject property lies within FLOODWAY AREAS IN ZONE AE - The floodway is the channel
of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1%
annual chance flood can be carried without substantial increases in flood heights per FIRM, Flood
Insurance Rate Map, Community Panel Number 48121C0420G, Map Revised April 18, 2011. The location
as shown is per scaling. This does not represent a drainage study floodplain limits.
B.A portion of the subject property lies within OTHER FLOOD AREAS - Zone X - Areas of 0.2% annual chance
flood; areas of 1% annual chance flood with average depths of less than 1 foot or with drainage areas less
than 1 square mile; and areas protected by levees from 1% annual chance flood per FIRM, Flood
Insurance Rate Map, Community Panel Number 48121C0420G, Map Revised April 18, 2011. The location
as shown is per scaling. This does not represent a drainage study floodplain limits.
The remainder of the subject property lies within Zone X - Areas determined to be outside the 0.2% annual
chance floodplain per FIRM, Flood Insurance Rate Map, Community Panel Number 48121C0420G, Map
Revised April 18, 2011.
GENERAL NOTES
1. Basis of bearing being U.S. State Plane Grid - Texas North Central
Zone (4202) NAD83 as established using the AllTerra RTKNet
Cooperative Network. Reference frame is NAD83(2011) Epoch
2010.0000. Distances shown are U.S. Survey feet displayed in
surface values.
2. Vertical Datum established using the AllTerra RTKNet
Cooperative Network. All elevations shown are NAVD88.
3. All property corners are found 5/8" capped iron rod marked
"BHB INC" unless otherwise noted.
4. No evidence of earth moving, building construction, or building
additions were observed while conducting field survey.
I, Toby G. Stock, a Registered Professional Land Surveyor licensed in the State of Texas, do
hereby declare that this survey is true and correct and was prepared from an actual survey
made under my supervision on the ground. Further, this survey conforms to the general rules
of procedures and practices of the most current Texas Engineering and Land Surveying Practice
Acts and Rules Concerning Practice and Licensure.
_______________________________
Toby G. Stock
State of Texas Registered Professional Land Surveyor
No. 6412
Date: November 17, 2023
PRELIMINARY, THIS DOCUMENT SHALL NOT BE RECORDED
FOR ANY PURPOSE AND SHALL NOT BE USED OR VIEWED
OR RELIED UPON AS A FINAL SURVEY DOCUMENT.
10
4
28
Exhibit “A-2”
Depiction of Premises
105
N87°18'05"W
546.90'
250.1
1
'
N62°4
4
'
3
4
"
E
POCPOC POCPOC
N52°
2
9
'
1
4
"
E
1107
.
9
2
'
500
.
0
6
'
MEREDITH DRIVE
SO
M
E
R
V
I
L
L
E
D
R
I
V
E
S33
°
4
8
'
4
5
"
W
POBPOB
S0
9
°
3
1
'
5
6
"
W
N0
9
°
5
9
'
3
5
"
E
24
3
.
6
7
'
25
5
.
3
8
'
480.67'
N80°15'49
"
W L1
L2
L3
C
1
C2
C3
L4
L5
L6
L7
L8
L9
L1
0
L1
1
L12
POBPOB
LEASE
TRACT 4
LEASE
TRACT 3
C
4
C5
C6
S(N) 80°23'
4
8
"
E
(
W
)
S80°04'07"
E
N0
9
°
2
0
'
3
8
"
E
S1
0
°
3
1
'
4
4
"
W
503.00'
30
6
.
0
9
'
30
8
.
6
7
'
L15
L1
6
L1
7
L18
L19
L2
0
L1
3
L14
594.04'
FCP
FCP
FCP
FCP
FCP
FCP
FCP
FCP
FCP
FCP
FCP
FCP
HA
C
K
B
E
R
R
Y
C
R
E
E
K
PA
R
K
R
O
A
D
Line Table
Line #
L1
L2
L3
L4
L5
L6
L7
L8
L9
L10
L11
L12
Direction
N80°29'30"W
S3°41'11"W
N5°41'28"E
S10°17'00"W
N11°28'36"E
N76°58'48"W
N11°39'46"E
N79°50'48"W
S80°03'42"E
N11°01'26"E
S9°46'30"W
S79°37'23"E
Length
84.49
39.21
22.18
34.00
38.39
1.86
29.10
85.96
52.15
29.67
30.07
51.81
Line Table
Line #
L13
L14
L15
L16
L17
L18
L19
L20
Direction
S9°55'53"W
S80°04'07"E
N79°37'23"W
N9°46'30"E
S11°01'26"W
N80°03'42"W
S80°04'07"E
N9°55'53"E
Length
30.00
116.00
51.81
30.07
29.67
52.15
86.00
30.00
Drawing: F:\job\2022\810\021 Hidden Cove Marina\01 Design & Drafting\01 Survey\06 Lease Tracts\Tract 3 & 4 Alta.dwg
949 Hilltop Drive, Weatherford, TX 76086
tstock@bhbinc.com • 817.596.7575 • bhbinc.com
TBPELS Firm #44 • TBPLES FIRM #10194146
Vicinity Map - Not to Scale
ALTA-NSPS LAND TITLE SURVEY
Lease Tract 3-Being 4.775 acres
Lease Tract 4-Being 4.888 acres
situated within the
G.W. GRACE SURVEY ABSTRACT No. 490,
The Colony, Denton County, Texas
November 2023
METES & BOUNDS LEASE TRACT 4
CO.........................Clean Out
CONC....................Concrete
CIRF.......................1/2" Capped Iron Rod Marked DAA Found
D.R.D.C.T...............Deed Records, Denton County, Texas
ET..........................Electrical Transformer
EW.........................Edge of Water
FCP........................Fence Corner Post
GI..........................Grate Inlet
MONU...................Monument
P.R.D.C.T...............Plat Records, Denton County, Texas
POB.......................Point of Beginning
POC.......................Point of Commencement
USACE...................United States Army Corps of Engineers
LEGEND
METES & BOUNDS LEASE TRACT 3
BEING a tract of land situated in the G. W. Grace Survey, Abstract Number 490, The Colony, Denton County,
Texas, said tract being a portion of land described as Tract No. E-401-2 by deed to United States of
America, as recorded in Volume 382, Page 127, Deed Records, Denton County, Texas (D.R.D.C.T.), and
being a portion of land described in deed to the United States of America, as recorded in Volume 384, Page
225 (D.R.D.C.T.) and being more particularly described by metes and bounds as follows: (Bearings
referenced to U.S. State Plane Grid 1983 - Texas North Central Zone (4202) NAD83 as established using the
AllTerra RTKNet Cooperative Network. Reference frame is NAD83(2011) Epoch 2010.0000. Distances shown
are U.S. Survey feet displayed in surface values.)
COMMENCING at a found concrete monument with Army Core of Engineers for an inner ell corner of said
Tract No. E-401-2, same being the southwest corner of The Enclave At Hidden Cove Phase Twelve, an
addition to the Denton County Fresh Water Supply District No. 4-A, Denton County, Texas, accordingly to
the plat thereof recorded under Clerk's File No. 2014-291, Plat Records, Denton County, Texas;
THENCE South 33°48'45" West, over and across said Tract No. E-401-2, a distance of 500.06 feet to a fence
corner post for the northeast corner of the hereon described tract and being the POINT OF BEGINNING;
THENCE over and across said Tract No. E-401-2 and generally along a chain-link fence, the following courses
and distances:
South 9°31'56" West, a distance of 255.38 feet to a fence corner post for the northeast corner of the
hereon described tract from which a 1/2-inch capped iron rod marked “DAA” for the southeast corner
of Lot 46, Block X, of aforementioned The Enclave at Hidden Cove Phase 12, bears North 52°29'14"
East, a distance of 1,107.92 feet;
North 80°29'30" West, a distance of 84.49 feet to fence corner post;
THENCE continuing over and across said Tract No. E-401-2, the following course and distances:
South 3°41'11" West, a distance of 39.21 feet and the beginning of a curve to the left;
With said curve to the left, having a central angle of 38°46'20", a radius of 40.00 feet, an arc length of
27.07 feet; and a chord which bears South 34°09'12" East, a distance of 26.55 feet and the beginning
of a curve to the left;
With said curve to the left, having a central angle of 1°31'47", a radius of 2,193.00 feet, an arc length
of 58.55 feet; and a chord which bears North 78°41'44" West, a distance of 58.55 feet and the
beginning of a curve to the left;
With said curve to the left, having a central angle of 64°04'47", a radius of 20.00 feet, an arc length of
22.37 feet; and a chord which bears North 50°34'30" East, a distance of 21.22 feet;
North 5°41'28" East, a distance of 22.18 feet;
North 80°15'49" West, a distance of 480.67 feet to a fence corner post;
South 10°17'00" West, a distance of 34.00 feet and the beginning of a curve to the left
With said curve to the left,
With said curve to the left, having a central angle of 40°06'28", a radius of 20.00 feet, an arc length of
14.00 feet; and a chord which bears South 26°17'39" East, a distance of 13.72 feet and the beginning
of a curve to the left;
With said curve to the left, having a central angle of 2°59'17", a radius of 815.00 feet, an arc length of
42.50 feet; and a chord which bears North 88°51'19" West, a distance of 42.50 feet and the beginning
of a curve to the left;
With said curve to the left, having a central angle of 46°16'24", a radius of 20.00 feet, an arc length of
16.15 feet; and a chord which bears North 40°53'15" East, a distance of 15.72 feet;
North 11°28'36" East, a distance of 38.39 feet;
North 76°58'48" West, a distance of 1.86 feet to a fence corner post;
THENCE continuing over and across said Tract No. E-401-2 and aforementioned United States of America
(384-225) tract, and generally along a chain-link fence, the following courses and distances:
North 11°39'46" East, a distance of 29.10 feet to a fence corner post;
North 79°50'48" West, a distance of 85.96 feet to a fence corner post;
North 9°59'35" East, a distance of 243.67 feet to a fence corner post;
South 80°03'42" East, a distance of 52.15 feet to a fence corner post;
North 11°01'26" East, a distance of 29.67 feet to a fence corner post;
South 80°23'48" East, a distance of 594.04 feet to a fence corner post;
South 9°46'30" West, a distance of 30.07 feet to a fence corner post;
South 79°37'23" East, a distance of 51.81 feet to the POINT OF BEGINNING and containing 207,980
square feet or 4.775 acres of land, more or less.
FLOOD ZONE NOTE
A portion of the subject property lies within SPECIAL FLOOD HAZARD AREAS (SFHAs) SUBJECT TO INUNDATION
BY THE 1% ANNUAL CHANCE FLOOD:
Zone AE - Base flood elevations determined per FIRM, Flood Insurance Rate Map, Community Panel Number
48121C0420G, Map Revised April 18, 2011. The location as shown is per scaling. This does not represent a
drainage study floodplain limits.
A.A portion of the subject property lies within FLOODWAY AREAS IN ZONE AE - The floodway is the channel
of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1%
annual chance flood can be carried without substantial increases in flood heights per FIRM, Flood
Insurance Rate Map, Community Panel Number 48121C0420G, Map Revised April 18, 2011. The location
as shown is per scaling. This does not represent a drainage study floodplain limits.
B.A portion of the subject property lies within OTHER FLOOD AREAS - Zone X - Areas of 0.2% annual chance
flood; areas of 1% annual chance flood with average depths of less than 1 foot or with drainage areas less
than 1 square mile; and areas protected by levees from 1% annual chance flood per FIRM, Flood
Insurance Rate Map, Community Panel Number 48121C0420G, Map Revised April 18, 2011. The location
as shown is per scaling. This does not represent a drainage study floodplain limits.
The remainder of the subject property lies within Zone X - Areas determined to be outside the 0.2% annual
chance floodplain per FIRM, Flood Insurance Rate Map, Community Panel Number 48121C0420G, Map
Revised April 18, 2011.
GENERAL NOTES
1.Basis of bearing being U.S. State Plane Grid - Texas North
Central Zone (4202) NAD83 as established using the AllTerra
RTKNet Cooperative Network. Reference frame is NAD83(2011)
Epoch 2010.0000. Distances shown are U.S. Survey feet displayed in
surface values.
2.Vertical Datum established using the AllTerra RTKNet
Cooperative Network. All elevations shown are NAVD88.
3.All property corners are found 5/8" capped iron rod marked
"BHB INC" unless otherwise noted.
4.No evidence of earth moving, building construction, or
building additions were observed while conducting field survey.
BEING a tract of land situated in the G. W. Grace Survey, Abstract Number 490, The Colony, Denton County,
Texas, said tract being a portion of land described as Tract No. E-401-2 by deed to United States of
America, as recorded in Volume 382, Page 127, Deed Records, Denton County, Texas (D.R.D.C.T.), being a
portion of land described in deed to the United States of America, as recorded in Volume 384, Page 225
(D.R.D.C.T.) and also a portion of land described in deed to the United States of America, as recorded in
Volume 380, Page 49 (D.R.D.C.T), being more particularly described by metes and bounds as follows:
(Bearings referenced to U.S. State Plane Grid 1983 - Texas North Central Zone (4202) NAD83 as established
using the AllTerra RTKNet Cooperative Network. Reference frame is NAD83(2011) Epoch 2010.0000.
Distances shown are U.S. Survey feet displayed in surface values.)
COMMENCING at a found concrete monument with Army Core of Engineers for an inner ell corner of said
Tract No. E-401-2, same being the southwest corner of The Enclave At Hidden Cove Phase Twelve, an
addition to the Denton County Fresh Water Supply District No. 4-A, Denton County, Texas, accordingly to
the plat thereof recorded under Clerk's File No. 2014-291, Plat Records, Denton County, Texas;
THENCE North 87°18'05" West, over and across said United States of America tract(s), a distance of 546.90
feet for the northernmost corner of the hereon described tract and being the POINT OF BEGINNING;
THENCE over and across said United States of America tract(s), the following courses and distances:
South 80°04'07" East, a distance of 503.00 feet;
South 9°55'53” West, a distance of 30.00 feet;
South 80°04'07" East, a distance of 116.00 feet for the northeast corner of the hereon described tract
from which a 1/2-inch capped iron rod marked “DAA” for the southeast corner of Lot 46, Block X, of
aforementioned The Enclave at Hidden Cove Phase 12, bears North 62°44'34" East, a distance of
250.11 feet;
South 10°31'44” West, a distance of 306.09 feet to a fence corner post for the southeast corner of the
hereon described tract;
THENCE continuing over and across said Unites States of America trat and generally with a chain-link fence,
the following courses and distances:
North 79°37'23" West, a distance of 51.81 feet to a fence corner post;
North 9°46'30" East, a distance of 30.07 feet to a fence corner post;
North 80°23'48" West, a distance of 594.04 feet to a fence corner post;
South 11°01'26' West, a distance of 29.67 feet to a fence corner post;
North 80°03'42" West, a distance of 52.15 feet to a fence corner post;
THENCE over and across said United States of America tract(s), the following courses and distances
North 9°20'38" East, a distance of 308.67 feet;
South 80°04'07" East, a distance of 86.00 feet;
North 9°55'53" East, a distance of 30.00 feet feet to the POINT OF BEGINNING and containing 212,924
square feet or 4.888 acres of land, more or less.
N
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SURVEYOR'S CERTIFICATION
I, Toby G. Stock, a Registered Professional Land Surveyor licensed in the State of Texas, do
hereby declare that this survey is true and correct and was prepared from an actual survey
made under my supervision on the ground. Further, this survey conforms to the general rules
of procedures and practices of the most current Texas Engineering and Land Surveying Practice
Acts and Rules Concerning Practice and Licensure.
_______________________________
Toby G. Stock
State of Texas Registered Professional Land Surveyor
No. 6412
Date: November 17, 2023
PRELIMINARY, THIS DOCUMENT SHALL NOT BE RECORDED
FOR ANY PURPOSE AND SHALL NOT BE USED OR VIEWED
OR RELIED UPON AS A FINAL SURVEY DOCUMENT.
LEASE TRACT 4LEASE TRACT 3
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Exhibit “B”
Entitlement Values
Wet Slip Entitlement = $[ ] per slip
107
30
Exhibit “C”
Form of Non-Disturbance Agreements
[TO BE INSERTED]
108
Exhibit “D”
Sublessee Competitors
1. [_____]
2.
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AFTER RECORDING RETURN TO:
_____________________
_____________________
_____________________
_____________________
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN PUBLIC RECORDS: YOUR SOCIAL
SECURITY NUMBER OR DRIVER’S LICENSE NUMBER.
THE STATE OF TEXAS §
§
COUNTY OF DENTON §
CONSENT TO SUB-SUBLEASE AND NON DISTURBANCE AGREEMENT
THIS CONSENT TO SUB-SUBLEASE AGREEMENT (this “Consent”) dated as of this
____ day of ______________, 202__ (the “Effective Date”), is executed by The City of the
Colony, Texas (together with its permitted successors and assigns, the “City”), Marine Quest –
Hidden Cove, L.P., a Texas limited partnership (together with its permitted successors and assigns,
“Marine Quest”), and HCM Dry Storage, LLC, a Texas limited liability company (toge ther with
its permitted successors and assigns, “HCM”).
Recitals
A.The United States Secretary of the A rmy (the “Corps”), as lessor, and The City, as
lessee, executed and entered into that certain Lease No. DACW63-1-00-0816 dated as of May 12,
2000, and replaced as of July 3, 2008 (as amended and replaced, th e “Underlying Lease”)
concerning certain real property as more fully described in the Underlying Lease.
B.The City, as sublessor, and Marine Quest, as sublessee, executed and entered into
that certain Ground Lease, Leased Real Property and Personal Property Lease Agreement dated as
of January 3, 2005 (as amended, the “Marine Quest Sublease”) concerning certain real property
as more fully described in the Marine Quest Sublease (the “Marine Quest Premises”).
C.Marine Quest, as sublandlord, and HCM, as sublessee, executed and entered into
that certain Amended and Restated Subl ease dated as of ____________, 202___ (as amended,
restated, replaced, supplemented or otherwise modified from time to time, the “HCM Sublease”)
concerning certain real pr operty as set forth in Exhibit A (the “HCM Subleased Premises”).
1.Defined Terms. Unless otherwise defined in this Consent, each defined term used
in this Consent shall have the same meaning given to such term in the HCM Sublease.
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2.Consent to Sublease. The City here by consents to HCM subleasing the HCM
Subleased Premises from Marine Quest pursuant to the terms and conditions of the HCM Sublease
The City further consents to any Leasehold Mortgagee acquiring the HCM Subleased Premises
from HCM in accordance with the terms of the HCM Sublease, and agrees that the HCM Subleased
Premises may be assigned in accordance with the terms of the HCM Sublease.
3.City’s Representations and Warranties. The City hereby represents and warrants to
HCM that, to the City’s current actual knowledge, (a) the Marine Quest Sublease is in full force
and effect; (b) neither the City nor Marine Quest is in default under the Marine Quest Sublease;
(c)the Underlying Lease is in full force and effec t; and (d) neither the City nor the Corps is in
default under the Underlying Lease.
4.Marine Quest’s Representations and Warranties. Marine Quest hereby represents
and warrants to the HCM that, to Marine Quest’s current actual knowledge, (a) the Marine Quest
Sublease is in full force and effect; (b ) the Marine Quest Sublease has not been assigned,
encumbered, modified, extended or supplemented; and (c) neither Marine Quest nor the City is in
default under the Marine Quest Sublease.
5.HCM’s Cure Rights.
(a)The City agrees to provide HCM with copies of all notices of defa ult and any notice of
termination given by the Corps to the City under the Underlying Lease within twenty (20)
days of receipt by the City of such notice a nd, in any event, with sufficient advance notice
to HCM to provide HCM with a reasonable period of time to cure such default. HCM and
any Leasehold Mortgagee, at each of their option and in their sole discretion, shall be
permitted to cure any of the City’s defaults under the Underlying Lease, in which event the
City shall be liable for and obligated to repay HCM or its Leasehold Mortgagee for all of
the costs incurred by HCM or its Leasehold Mortgagee in curing such default of the C ity
under the Underlying Lease; provided, however, th at the City is only able to provide HCM
and its Leasehold Mortgagee with the same cure period as the City has under the
Underlying Lease (which cure periods shall r un concurrently), and any extension of such
cure period shall be in the Corps’ discretion. HCM’s and its Leasehold Mortgagee’s right
to cure defaults is for the full protection of HCM and its Leasehold Mortgagee and the
existence of this right shall not re lease the City from the obligation to perform all of its
obligations under the Underlying Lease or deprive HCM or its Leasehold Mortgagee of
any other right which HCM or its Leasehold Mo rtgagee may have by reason of such default
by the City.
(b)The City and Marine Quest agree to provide HCM with copies of all notices of default and
any notice of termination given by the City to Marine Quest under the Marine Quest
Sublease concurrently with the delivery of (or receipt of, as applicable) such notice. HCM
and its Leasehold Mortgagee, at their option a nd in their sole discretion, shall be permitted
to cure any of Marine Quest’s defaults unde r the Marine Quest Sublease, in which event
Marine Quest shall be liable for and obligated to repay HCM or its Leasehold Mortgagee
for all of the costs incurred by HCM or its Leasehold Mortgagee in curing such default of
Marine Quest under the Marine Quest Subl ease; provided, however, that HCM or its
Leasehold Mortgagee must cure Marine Quest’s default under the Marine Quest Sublease
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within the same cure period as Marine Ques t has under the Marine Quest Sublease (which
cure periods shall run concurrently). HCM’s and its Leasehol d Mortgagee’s right to cure
defaults is for the full protection of HCM and its Leasehold Mortgagee and the existence
of this right shall not release Marine Quest from the obligation to perform all of its
obligations under the Marine Quest Sublease or deprive HCM or its Leasehold Mortgagee
of any other right which HCM or its Leasehold Mortgagee may have by reason of such
default by Marine Quest.
6.Estoppel. By executing this Consent, Marine Quest hereby ratifies, confirms and
approves the Marine Quest Sublease. Marine Quest represents and warrants to HCM, as of the
Effective Date, that, to Marine Quest’s current actual knowledge, (a) the City is not in default of
its obligations under the Marine Quest Sublease; and (b) no event has occurred or failed to occur
that with the passage of time, th e giving of notice or both would constitute a default or breach by
the City or Marine Quest of their respective obligations and liabilities under the Marine Quest
Sublease. To Marine Quest’s current actu al knowledge, Marine Quest is not entitled to any
refunds, rebates, offsets or credits with respec t to any amounts heretofore paid by Marine Quest
under the Marine Quest Sublease. T o Marine Quest’s current actual knowledge, Marine Quest has
no claim, counterclaim or other defense to the payment of rent or other amounts due or to become
due under the Marine Quest Sublease or the performance of any of Marine Quest’s other
obligations under the Marine Quest Sublease. As of the Effective Date, Marine Quest has not
assigned the HCM Sublease, in whole or in part, nor has Marine Quest assigned any of its rights,
title or interests and Marine Quest has not subl eased the HCM Subleased Premises or any part
thereof. As of the Effective Date, all l easehold improvements and other alterations and
modifications to the HCM Subleased Premis es have been fully completed in accordance with the
provisions of the Marine Quest Sublease and all obligations of and to the City have been paid and
performed in full. As of the Effective Date, the Marine Quest Subleased Premises are tenantable
and occupied by Marine Quest. As of the Effectiv e Date, the City has no obligation to install or
construct any leasehold improvements or other alte rations or modifications to the Marine Quest
Subleased Premises or to pay or reimburse Mari ne Quest for any amounts in connection therewith.
7.Non-Disturbance and Attornment. The City agrees that during the term of th e HCM
Sublease, including any extended term thereof, HCM’s rights under the HCM Sublease and
HCM’s possession of the HCM Subleased Premises shall not be disturbed, modified, enlarged, or
otherwise affected, and HCM’s rights and privileges under the HCM Sublease shall not be
diminished or interfered with by the City upon any exercise of its rights (including any proceeding
to foreclose) under the Underlying Lease or the Marine Quest Sublease, and the City will not join
HCM as a party defendant in any proceeding resulting from a default by the City or Marine Quest
under the Underlying Lease or the Marine Quest Subl ease. In the event that the City exercises any
of its remedies in the event of a default by Marine Quest or any other rights, as provided for in the
Underlying Lease or Marine Quest Sublease, or in the event the Marine Quest Sublease is
terminated by reason of rejection of the Marine Quest Sublease in any bankruptcy case without
the prior written consent of HCM and any Leasehold Mortgagee, the HCM Sublease shall not be
terminated or affected by the default or action of the City or Marine Quest, or all. HCM covenants
and agrees to attorn to the City, as its new landlord if Marine Quest’s rights under the Marine
Quest Sublease are terminated, a nd the HCM Sublease shall continue in full force and effect as a
direct lease between the City a nd HCM, or upon written request of HCM at the time of termination
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by City, the City agrees to enter into a new lease of the HCM Subleased Premises with HCM,
provided that the City has received consents necessary from the Corps in accordance with the
Underlying Lease. The new lease shall be effective as of the date of termination or rejection of
the Marine Quest Sublease and be on the same te rms and conditions as the Marine Quest Sublease
(including, without limitation, any rights or options to extend the term of the Marine Quest
Sublease), shall not materially expand or reduce the rights or obligations of the landlord or tenant
thereunder. HCM shall not be liab le for or otherwise be required to cure any defaults which are
personal to Marine Quest (such as, for example, any default arising by virtue of any bankruptcy,
insolvency or dissolution of Marine Quest). The City’s obligation to enter into the new lease shall
be conditioned upon HCM having cured all monetary defaults under the Marine Quest Sublease
relating to rental payments or the physical upkeep and maintenance of the HCM Subleased
Premises. The new lease shall be su perior to all rights, liens and inter ests granted at any time on
the City’s leasehold interest in the HCM Subleased Premises and to all rights, liens and interests
intervening between the date of the HCM Sublease and the granting of the new lease.
Notwithstanding anything to the contrary contained in this Consent, HCM shall not interfere with
or attempt to diminish in any way Marine Ques t’s rights and privileges under the Marine Quest
Sublease or any other agreements between the City and Marine Quest.
8.Not an Amendment to Marine Quest Sublease. This Consent does not constitute,
and shall not be deemed, construed or held to be, an amendment or modification of the Marine
Quest Sublease. During the term of the Underlying Lease, the City shall be prohibited from (a)
amending the Underlying Lease in any way that will increase the liabilities or obligations of HCM
under the HCM Sublease or this Consent or otherwise reduce the rights of HCM wi th respect to
the HCM Subleased Premises or its use thereof; or (b) voluntarily agreeing to terminate the
Underlying Lease prior to its natural expiration thereof unless such termination arises from a
casualty or condemnation, which casualty or condemnation, by itself, results in the termination of
the HCM Sublease. During the term of the Marine Quest Sublease, the City and Marine Que st
shall be prohibited from (a) amending the Marine Quest Sublease in any way that will increas e the
liabilities or obligations of HCM under the HCM Sublease or this Consent or otherwise reduce the
rights of HCM with respect to the HCM Subleased Premises or its use thereof; or (b) voluntarily
agreeing to terminate the Marine Quest Sublease prior to its natural expiration thereof unless such
termination arises from a casualty or condemnat ion, which casualty or condemnation, by itself,
results in the termination of the HCM Sublease.
9.Amendment. This Consent constitutes the entire agree ment of the parties with
respect to the subject matter contained herein. This Consent cannot be modified or amended except
in writing executed by the City, Marine Quest, and HCM.
10.Authority. Each party executing this Consent on behalf of a party hereto represents
and warrants to the other party hereto that the ag ent, partner or officer executing this Consent on
the representing party’s behalf is fully authorized, directed and empowered to execute and deliver
this Consent in such capacity as the act and deed of the party on whose behalf he or she is executing
this Consent and that all corporate or company action requisite to such execution and delivery has
been taken by such party.
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11.Governing Law. This Consent shall be governed by and construed and enforced in
accordance with the laws of the State of Texas.
12.Counterparts. This Consent may be execu ted in counterparts, and each counterpart
when fully executed and delivered by the parties hereto will be an original instrument, but all such
counterparts will constitute one agreement.
[Signature Page(s) to Follow]
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Executed and effective as of the Effective Date.
CITY: The City of the Colony, Texas,
By: ______________________________
Name: ______________________________
Its: ______________________________
MARINE QUEST: Marine Quest – Hidden Cove, L.P.,
a Texas limited partnership
By: ______________________________
Name: ______________________________
Its: ______________________________
HCM: HCM Dry Storage, LLC,
a Texas limited liability company
By: ______________________________
Name: ______________________________
Its: ______________________________
115
Exhibit “A”
HCM SUBLEASED PREMISES
116
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2024 - __________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN
AMENDED AND RESTATED GROUND SUB-SUBLEASE AGREEMENT
AND CONSENT TO SUB-SUBLEASE AND NON-DISTURBANCE
AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND
MARINE QUEST - HIDDEN COVE, L.P., ATTACHED HERETO AS
EXHIBIT “A”; PROVIDING AN EFFECTIVE DATE.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. That the City Council of the City of The Colony, Texas, has duly reviewed
and considered the Amended and Restated Ground Sub-Sublease Agreement and Consent to Sub-
Sublease and Non-Disturbance Agreement by and between the City of The Colony and Marine Quest
- Hidden Cove, L.P., which is attached hereto as Exhibit A, of this Resolution.
SECTION 2.That this an Amended and Restated Ground Sub-Sublease Agreement and
Consent to Sub-Sublease and Non-Disturbance Agreement by and between the City of The Colony
and Marine Quest - Hidden Cove, L.P., which is attached hereto as Exhibit A, is found to be
acceptable and in the best interest of the City and its citizens, and the Mayor is hereby authorized to
execute said agreements.
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 THE 6TH DAY OF AUGUST, 2024.
_____________________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
___________________________________________
Tina Stewart, TRMC, CMC, City Secretary
117
Page 2
APPROVED AS TO FORM:
____________________________________
Jeffrey L. Moore, City Attorney
118
Page 3
Exhibit A
[Amended and Restated Ground Sub-Sublease Agreement and
Consent to Sub-Sublease and Non-Disturbance Agreement]
119
Agenda Item No:5.4
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Tina Stewart
Submitting Department: Facilities Maintenance
Item Type: Resolution
Agenda Section:
Subject:
Discuss and consider approving a resolution authorizing the City Manager to execute a contract with Steele &
Freeman, Inc., for the Trinity North City Hall renovations in the amount of $9,898,847.00. (Shallenburger)
Suggested Action:
Attachments:
Trinity North City Hall Renovation Exhibits.pdf
Res. 2024-xxx Steele & Freeman Inc - Trinity North Renovations.doc
120
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124
125
126
127
128
129
130
131
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133
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2024 - _______
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT
BETWEEN THE CITY OF THE COLONY AND STEELE & FREEMAN
INC., FOR THE TRINITY NORTH (CITY HALL) RENOVATIONS,
WHICH IS ATTACED HERETO AND INCORPORATED HEREIN AS
EXHIBIT “A”; AND PROVIDING AN EFFECTIVE DATE.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. That the City Manager of the City of The Colony, Texas, is hereby
authorized and empowered to execute a contract with Steele & Freeman, Inc., for the Trinity
North (city hall) renovations.
Section 2. That a true and correct copy of the amendment is attached hereto and
incorporated herein as Exhibit “A”.
Section 3.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, TO BE EFFECTIVE THIS 6TH DAY OF AUGUST, 2024.
__________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
___________________________________
Tina Stewart, TRMC, CMC, City Secretary
APPROVED AS TO FORM:
___________________________________
Jeffrey L. Moore, City Attorney
134
Agenda Item No:5.5
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Tina Stewart
Submitting Department: City Secretary
Item Type: Resolution
Agenda Section:
Subject:
Discuss and consider approving a resolution ordering the November 5, 2024 Election for at large positions,
specifically Mayor, Place 1 and Place 2. (Council)
Suggested Action:
Attachments:
Res. 2024-xxx General Election Order.doc
135
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2024 - _______
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
ORDERING AGENERAL ELECTIONOF THE QUALIFIED VOTERS
OF THE CITY TO BE HELD ON NOVEMBER 5, 2024 FOR THE
PURPOSE OF ELECTING THE MAYOR AND TWO
COUNCILMEMBERS; PROVIDING FOR A JOINT ELECTION
BETWEEN DENTON COUNTY ELECTIONS AND THE CITY; AND
ESTABLISHING OTHER PROVISIONS RELATING TO THE
ELECTION.
WHEREAS, the term of office of the Mayor and two (2) Council Members presently
on the City Council expire on November 5, 2024; and
WHEREAS, it is hereby found and determined by the Mayor, acting in his official
capacity, and the City Council acting as the governing body of the City, that it is in the best
interest of the City and its citizens to hold an election for the purpose of electing the Mayor
and two (2) Council Members to the City Council Places 1 and 2; and
WHEREAS, Election Code, Section 3.004 authorizes such election; and
WHEREAS, Election Code, Section 41.001 specifies the date on which such elections
may be held.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS THAT:
Section 1. Ageneral municipal election is hereby called and ordered for the 5th day of
November, 2024, at which all qualified voters residing within the city limits of the City may
vote for the purpose of electing the Mayor and two (2) Council Members to serve on the City
Council Places 1 and 2.
Section 2. The said election shall be held jointly with Denton County Elections by
contract.
Section 3.The City election precincts for this election shall consist of the territory
situated within the various Denton County election precincts located within the corporate
limits of the City and bearing the following numbers, and the polling places of said election
shall be as follows:
POLLING PLACE:(To Be Determined)
The Colony, Texas
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Section 4. That each of the polling places on Election Day, November 5, 2024, shall
be open from 7:00 a.m. to 7:00 p.m.
Section 5. That no person’s name shall be placed on the ballot as a candidate for the
position of Councilmember of the City Council until such person has filed his/her sworn
application and affidavit as provided by the laws of the State of Texas and the Charter of the
City of The Colony, Texas with the City Secretary between the dates of July 20, 2024 and
August 19, 2024.
Section 6. That voting for said election shall be by electronic voting system or paper
ballot, or by any other method as approved in the Texas Election Code, as amended, and said
ballots shall be prepared in accordance with the Texas Election Code, as amended.
Section 7. That the Denton County Elections Administratoris hereby designated as the
Early Voting Clerk.
Section 8. That early voting by personal appearance shall be conducted at Denton
County Elections, 701 Kimberly Drive, Suite A101, Denton, Texas 76208 on the following
dates and times:
Monday, October 21 – Friday, October 25 8 a.m. – 5 p.m.
Saturday, October 26 7 a.m. – 7 p.m.
Sunday, October 27 11 a.m. – 4 p.m.
Monday, October 28 – Friday, November 1 7 a.m. – 7 p.m.
ANY ELIGIBLE DENTON COUNTY VOTER MAY CAST THEIR VOTE DURING
EARLY VOTING AT ANY DENTON COUNTY EARLY VOTING SITE, LOCATIONS
TO BE DETERMINED AT A LATER DATE.
Section 9. That the Denton County Elections Administrator shall receive applications
for a ballot to be voted by mail until the close of business on TBD. Applications should be
mailed to: Early Voting Clerk, Denton County Elections, 701 Kimberly Drive, Suite A101,
Denton, Texas 76208.
Section 10. That election materials as enumerated in the Texas Election Code 272.005
shall be printed in both English and Spanish for use at the polling places and for early voting
for said election.
Section 11. The City Secretary is hereby authorized and directed to publish and/or
post, in the time and manner prescribed by law, all notices required in connection with the
conduct of this election. Notice of said election shall be given by publishing the notice at
least one time, not more than thirty (30) days or less than ten (10) days before the election, in
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at least one newspaper regularly published in theCity. A copy of the notice shall be filed with
the City Secretary and another copy shall be posted on a bulletin board where council agendas
are commonly posted at least twenty-one (21) days before the election. The City Secretary of
the City of The Colony, Texas shall keep a copy of the notice as published, together with the
name(s) of the newspaper(s) and date or dates of publication.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, TO BE EFFECTIVE THIS 6TH DAY OF AUGUST, 2024.
__________________________
Richard Boyer, Mayor
City of The Colony, Texas
ATTEST:
___________________________________
Tina Stewart, TRMC, CMC, City Secretary
APPROVED AS TO FORM:
___________________________________
Jeffrey L. Moore, City Attorney
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Agenda Item No:6.1
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Kimberly Thompson
Submitting Department: City Secretary
Item Type: Discussion
Agenda Section:
Subject:
A. Council shall convene into a closed executive session pursuant to Sections 551.072 and 551.087 of the
Texas Government Code to deliberate regarding purchase, exchange, lease or value of real property and
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).
Suggested Action:
Attachments:
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Agenda Item No:7.1
CITY COUNCIL Agenda Item Report
Meeting Date: August 6, 2024
Submitted by: Kimberly Thompson
Submitting Department: City Secretary
Item Type: Discussion
Agenda Section:
Subject:
A. Any action as a result of executive session regarding purchase, exchange, lease or value of real property and
commercial or financial information the city has received from a business prospect(s), and the offer of a
financial or other incentive to a business prospect(s).
Suggested Action:
Attachments:
140