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HomeMy WebLinkAboutResolution No. 04-18 RESOLUTION NO. 04- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING A CONTRACT AMENDMENT TO THE HORIZON HAWAIIAN FALLS WATER PARK CONTRACT FOR ADDITIONAL FUNDING DUE TO UNFORSEEN SOIL CONDITIONS AT THE WATER PARK CONSTRUCTION SITE, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City has determined that it is in the best interest of the City to enter into a Contract Amendment with Horizon, which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein. WHEREAS, with this Amendment the City of The Colony is agreeing to funding assistance to Horizon in the amount of $250,000.00 and an increase in the percentage of the gross revenues that the City will receive by .25% each year for the first ten (10) years of the lease. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The Contract Amendment, which is attached and incorporated hereto as Exhibit "A", having been revie;ved by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the City Manager is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas. Section 2. That this Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 5th day of April, 2004. ,J~h~n Dillard, Mayor /pTTEpgT:.~ ~/tCity of The Colony, Texas ~lqri'stie Wilson, City ~cret~ [CITY SEAL] 63918 ORIGINAL STATE OF TEXAS § § ECONOMIC DEVELOPMENT § INCENTIVE AGREEMENT COUNTY OF DENTON § This Economic Developmem Incentive Agreement ("AGREEMENT") is made by and between the City of The Colony, Texas ("CITY"), the Hershcend Family Entertaiamem Coproration ("HFEC') and Horizon Amusement Southwest, LLC ("HORIZON"), acting by and through their respective authorized officers. WITNESSETH: WHEREAS, thc enhancement of the local economy is in the best interest of the citizens of the CITY; and WHEREAS, economic development incentives encourage businesses and companies to locate or expand operations in the CITY; and WHEREAS, the CITY has adopted programs for promoting economic development incentives and is authorized pursuant to Section 380, TEXAS LOCAL GOVERNMENT CODE to provide economic development incentives; and WHEREAS, the CITY, HFEC, and HORIZON have previously entered into a Water Park Groundlease and Operating Agreement which provides the terms and conditions as well as all the agreements made between the parties relating to the construction and operation ora Water Park ("PREMISES"); and. WHEREAS, HORIZON has determined that additional funds will be necessary to construct and operate the Water Park as provided in the above referenced Water Park Groundlease and Operating Agreement; and WHEREAS, ItGRIZON ha~ ~qu~¢d d~c CiTY to p~vvide an economic deveiopmem incentive to HORIZON to defray a portion of the cost to be incurred as a consequence of constructing and operating the Water Park within the CITY; and WHEREAS, the CITY has found and determined that making a conditional economic development incentive grant to HORIZON in accordance with this AGREEMENT will further the objectives of the CITY and will benefit the CITY and its inhabitants; and WHEREAS, the CITY and HORIZON recognize that said PREMISES require adequate infrastructure improvements ("IMPROVEMENTS") to enhance and accelerate the development of the samc: Page 1 64035 NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I Term 1. This AGREEMENT shall commence on {~A - ~'' _, 2004 and continue until all conditions precedent and subsequent have been performed as provided herein. ARTICLE II Economic Development Grant 2.(A) Subject to HORIZON'S continued satisfaction of all the terms and conditions of this AGREEMENT, CITY agrees to provide an economic incentive grant in the amount of two hundred and fifty thousand dollars ($250,000.00) for the purposes of providing infrastructure improvements upon and for the PREMISES. (B) Said Grant shall be repaid in the amount of one-quarter (¼) of one percent of the gross receipts of the Water Park during years one (1) through ten (10) as provided in Section 10, subsection 10.1(i) of the Water Park Groundlease and Operating Agreement. ARTICLE III Termination 3. In the event HORIZON fails to meet any of the conditions of this AGREEMENT or the Water Park Groundlease and Operating Agreement, as amended, then CITY shall give HORIZON written notice of such failure, and if HORIZON has not cured such failure within thirty (30) days after receipt of such written notice, this AGREEMENT subject to the provisions of Paragraph 8 below, may be terminated by the CITY without further notice. ARTICLE IV MISCELLANEOUS Other Economic Incentives 4. Nothing contained herein shall be construed to preclude or create any right, title or interest in any further economic incentive, tax abatement, or development grant. No Conflicts of Interest 5. The CITY represe~ts and warrants that ~he PREMISES or any adjacent property upon which the IMPROVEMENTS is to be located is not owned by any officer or employee of the CITY. Page 2 64035 Binding Agreement 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY. Limitation on Liability 7. It is understood and agreed between the parties that HORIZON, in the development of the IMPROVEMENTS and satisfying the conditions of this AGREEMENT, is acting independently, and thc CITY assumes no responsibilities or liabilities to third parties in connection with these actions. HORIZON agrees to indemnify and hold harmless the CITY from all such. claims, suits, and causes of actions, liabilities and expenses, including reasonable attorney's fees, of any nature whatsoever arising out of its respective obligations (but not the obligations of the CITY or other party) under this AGREEMENT. 8. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The CITY, past, present and future officers, elected officials, employees and agents of the CITY do not assume any responsibilities or liabilities to any third party in connection with the development of the IMPROVEMENTS or the design, construction or operation of the IMPROVEMENTS. In addition, HORIZON acknowledges and agrees that there shall be no recourse to any of the aforesaid parties, who shall incur no liability in respect of any claims based upon or relating to this AGREEMENT. Authorization 9. This AGREEMENT was authorized by City Council, authorizing the undersigned to execute this AGREEMENT on behalf of the CITY. 10. HORIZON represents that it has full capacity and authority to grant all rights and assume ali obligations that it has granted and assumed under this AGREEMENT. 11. HFEC represents that it has full capacity and authority to grant all rights and assume all obligations that it has granted and assumed under this AGREEMENT. Notice 12. All notices required by this AGREEMENT shall be addressed to the following, or other such party or address as either party designates in writing, by certified mail, postage prepaid or by hand-delivery: Page 3 64035 If intended for HORIZON, to: With a copy to: David J. Busch Brad I. Pearson Horizon Amusement Southwest, LLC Legal Counsel 11883 Silver CliffWay 4324 Belleview, Suite 100 Gold River, CA 95670 Kansas City, MO 64111 If intended for HFEC, to: With a copy to: Herschend Family Entertainment Corporation William J. Hart c/o Kenneth E. Jeffi'ies Legal Counsel 2800 W. Highway 76 1949 E. Sunshine, Suite 2-300 Branson, MO 65616 Springfield, MO 65804 If intended for CITY, to: City of The Colony, Texas Robert E. Hager Attn: City Manager 1800 Lincoln Plaza 6800 Main Street 500 N. Akard The Colony, TX 75056 Dallas, TX 75201 Entire Agreement 13. This AGREEMENT is the entire AGREEMENT between the parties with respect to the subject matter covered in this AGREEMENT. There is no other collateral oral or written AGREEMENT between the parties that in any manner relates to the subject matter of this AGREEMENT, except as referenced herein. Governing Law 14. The validity of the AGREEMENT and any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Denton County, Texas. Amendment 15. This AGREEMENT may be amended by the mutual written agreement of the pa~_ies. Page 4 64035 Legal Construction 16. In the event any one or more of the provisions contained in the AGREEMENT shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 17. The provisions of this AGREEMENT are hereby declared covenants running with thc PREMISES and are fully binding on all successors, heirs, and assigns of HORIZON who acquires any right, title, or interest in or to the PREMISES or any part thereof. Any person who acquires any right, title, or interest in or to the PREMISES, or any part hereof, thereby agrees and covenants to abide by and fully perform the provisions of this AGREEMENT with respect to the right, title or interest in such PREMISES. RECORDATION OF AGREEMENT 18. A certified copy of this AGREEMENT shall be recorded in the Deed Records of Denton County, Texas. RECITALS 19. The recitals to this AGREEMENT are incorporated herein. EXECUTED in duplicate originals on this /~ day of t~-~-- , 2004. - -1 CITY OF THE COLONY, TEXAS DALE CHEATHAM, CITY MANAGER ATTEST: 'CHRISTIE WILSON, CITY SECRETARY APPROVE~ ~(: Page 5 64035 EXECUTED in duplicate originals this the ~*~day of /~/~,'] ,2004. I HORIZON: Title: ff~stf/~, / EXECUTED in duplicate originals this the day of ., 2004. HFEC: By: Name: Title: Page 6 64035 CITY'S ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ day of ~, 2004, by Dale Cheatham, City Manager of the City of The Colony, Texas, a Texas municipality, on behalf of said municipality. Notary Public, State of Texas My Commission Expires: Page ? 64035 HORIZON'S ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ day of (?.i~/a~, t,, 2004, by Pq. O3t~ , C'~.7 of Horizon ~usement Southwest, LLC, on behalf of such LLC. Notary Public, State of Texas My Commission expires: // --y~-~ f- ~ Page 8 64035 HFEC'S ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of , 2004, by ., of Herschend Family Entertainment Corporation, on behalf of such Corporation. Notary Public, State of Texas My Commission expires: Page 9 64035