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HomeMy WebLinkAboutOrdinance No. 04-1525 CITY Or T.E COLONY, TEXAS ORDINANCE NO. AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH FIRST AMERICAN BANK REGARDING THE GROUND LEASE FOR THE BLUE SKY SPORTS CENTER; ATTACHING THE APPROVED AGREEMENT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City an agreement with First American Bank regarding the ground lease for the Blue Sky Sports Center; the approved agreement is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 5th day of January, 2004. APPROVED: Patti A. Hicks, City SeCretary APP ,~{~ FORM: City Attom~ CONSENT TO ENCUMBRANCE This Consent to Encumbrance of Lease (hereina~er "Consent"), entered into this ~ day of January, 2004 by and between FIRST AMERICAN BANK, SSB (hereinafter "Encumbraneer"), CITY OF THE COLONY (hereinafter "Lessor") and BLUE SKY SPORTS CENTER,, L.P., a Texas limited partnership (hereinafter "Lessee") pursuant to a certain Ground Lease Agreement dated January 3, 2000 between Lessor and Lessee as modified by Extension of Ground Lease Agreement dated April 16, 2003. (hereinafter the "Lease"), pertaining to the property described as follows (hereinafter the "Promises"): See Exhibit "A" attached hereto and made a part hereof. 1. Lessor consents to Lessee's assignment and encumbrance of Lessee's leasehold interest by a Deed of Trust/Mortgage, various other loan documents executed in connection therewith, and any and all extensions, renewals and amendments thereto as they may take place in the future (hereinafter the "Deed of Trust/Mortgage") in favor of Encumbrancer to secure a promissory note (hereinafter the "Note") in the approximate principal sum of One Million Five Hundred Thirty Thousand and No/100 Dollars ($1,530,000.00) and other obligations set forth in the Deed of Trust/Mortgage. The terms and provisions of this Consent to Encumbrance are in addition to the rights given to un encumbrancer in the Lease, and the terms of this Consent to Encumbrance shall control in the event ora conflict between its terms and the Lease terms. 2. Lessor and Lessee affmn that as of the date of this Consent, the Lease is in full force and effect and no default or ground for termination thereof exists. Lessor further confirms that the Lease is a sublease pursuant to that certain lease between the Department of the Army (the "Department") and the Lessor dated May 12, 2000 (the "Primary Lease") which Primary Lease is in full force and effect, not subject to an existing default, and has not been modified. A true and correct copy of the Primary Lease is attached hereto as Exhibit "A", together with the written approval oftha Lease by the Department. 3. (a). Without the further consent of Lessor, Encumbrancer may acquire or obtain an assignment of the interest of Lessee under the Lease by (i) judicial or non- judicial foreclosure, (ii) assignment in lieu of foreclosure, or (iii) Eneumbrancer obtaining a new lease pursuant to paragraph 11 of this Consent. (b) Upon Encumbrancer acquiring the Lessee's interest, it may further sublease or assign the Lease to a third party. However, any subsequent assignment of the Lease after any assignment to or acquisition by Eneumbrancer as provided for in 3 (a) above, may be made only with the written consent of Lessor, which consent will not be unreasonably withheld nor unreasonably delayed; provided, however, that such assignment must be made to an entity or person that would operate the Promises consistent with any use restrictions contained in the Lease. (c) In the event Encumbrancer acquires the Lease as provided for in 3 (a) (i) or (ii) above, for so long as Eneumbrancer has not entered into possession of the Premise. s covered by said Lease, and no sub-tenant under Encumbrancer has entered into possession of the Premises, Eneumbrancer shall not be liable for rent and any other obligations of Lessee under the Lease, and Lessee shall remain liable for rent and all other obligations. Notwithstanding anything herein to the contrary, in the event Encumbraneer shall have notified Lessor in writing of Encumbrancer's intent to surrender the Premises to Lessor, all obligations of Encumbrancer under the Lease after such surrender shall terminate. Further, subject to the terms of this Consent, including without limitation Paragraph 4 below, Lessor shall retain the right to terminate the Lease within the terms thereof and hereunder if rent and other sums due under the Lease are not paid by either Lessee, Encumbrancer, or the successors in interest of either of them. In this event, Eneumbrancer may, at its option, remove the Collateral consisting of personal property located on the Premises (the "Personalty") as described in Paragraph 21 hereof for further disposition free and clear of any claims of Lessor. 4. Lessor may not terminate the Lease because of any default or breach thereunder on the part of Lessee without giving the Encumbraneer written notice of Lessor's intention to terminate the Lease at least sixty (60) days in advance of the proposed effective date of such termination and may not thereafter terminate the Lease if the Encumbrancer, or a receiver appointed pursuant to the Deed of TrusffMortgage, within said sixty (60) days period: (a). Cures the default or breach if it can be cured by the payment or expenditure of money provided to be paid under the terms of the Lease, or if the default or breach is not so curable, commences, or muses a receiver appointed pursuant to the Deed of Trust/Mortgage to commence, and thereafter to diligently pursue to completion, steps and proceedings to foreclose on the leasehold covered by the Deed of Trust/Mortgage; and (b). Keeps and performs all of the covenants and conditions of the Lease requiring the payment or expenditure of money by Lessee until such time as the leasehold is sold upon foreclosure pursuant to the Deed of Trust/Mortgage, or is released or reconveyed thereunder, or is transferred upon judicial foreclosure or by an assignment in lieu of foreclosure. 5. Any notice to Eneumbraneer provided for in the preceding paragraph may be given concurrently with or after the notice of default to Lessee. 6. Lessee shall keep in force a policy or policies of f~re and extended coverage insurance which shall include the amount of the full replacement value of the leasehold improvements made to the Premises by Lessee, and such insurance shall be payable to Lessor, and then to Lessee as set forth below. In the event of damage to or destruction of the leasehold improvements (a) if neither Lessor nor Lessee elects to terminate the Lease, the proceeds of the iusuranee shall be used for repair or rebuilding of the improvements, including Lessee's leasehold improvements, (b) if Lessor or Lessee elects to terminate the Lease, the proceeds of the insurance shall be paid first to Encumbrancer, second to Lessor to the extent of the mount due Lessor, and third to Lessee. 7. Lessor, Lessee and Encumbrancer shall be named loss payees in the order of priority as set forth above in all fire and other hazard insurance policies covering the Premises carried by Lessee. Any cost or expense in connection therewith shall be paid solely by Lessee. 8. Subject to applicable law, any and all eminent domain or condemnation awards or damages payable to Lessee shall first be applied in payment of the then outstanding balance, if any, of the loans made to Lessee by Encumbraneer and the balance shall be paid to Lessee. 9. The Lease may not be amended, relinquished, surrendered, or terminated by any party without the prior written consent of Encumbraneer, provided that, Lessor may terminate the Lease upon Lessee's default in accordance with Paragraph 4 hereof. 10. Neither bankruptcy, insolvency, nor the appointment of a receiver or trustee shall be a condition of default under, or otherwise affect, the Lease so long as the obligations of Lessee, as set forth in the Lease, are being performed by Lessee, or are being performed by Eneumbraneer as provided for herein, or the successors in interest of either of them. 11. In the event of a termination of the Lease prior to the expiration of the term thereof, Lessor shall, within 60 days fi.om the termination of the Lease, serve upon Encmnbraneer written notice of such termination together with a statement of any and all sums which would be due under the Lease as of the date of notice but for the termination of the Lease and a description of any and all events of default under the Lease. 12. The terms hereof shall inure to the benefit of and be binding upon the parties, their successors and assigns. 13. To the extent that this document gives rights to Encumbraneer, such rights shall accrue only to the benefit of the Encumbrancer and its successors and assigns and only for so long as the note and/or Deed of Trust/Mortgage of the Encumbraneer is valid and in existence. In the event Encumbraneer acquires the Lease as provided for herein, rights this document gives to Encumbraneer shall accrue to the benefit of the Eneumbrancer and its successors and assigns. 14. In the event that any of the provisions, terms, and conditions hereof are ambiguous or inconsistent, with respect to or conflict with any of the terms and provisions of the Lease, any other amendments thereto, or any other documents executed in connection therewith, the provisions, terms, and conditions of Lease shall control. 15. Unless the Encumbraneer shall expressly consent in writing, the fee title to the Premises and the Leasehold estate of Lessee shall not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee title and said Leasehold Estate by Lessor or by Lessee or by a third party, by purchase or otherwise. 16. The terms of this Consent are severable. If any of the terms and conditions hereof shall, for any reason, be deemed void, voidable, or unenforceable, the remaining terms and conditions hereof shall remain in full rome and effect as though such void, voidable, or unanfomeable provisions were not included. · 17. Lessor represents and warrants it has full authority to enter into and fully perform uncter th~s Consent; that Lessor s interest in the Premises is free and clear of all unrecorded liens and encumbrances, unrecorded contractual rights or claims, unrecorded previous transfers or conveyances, or unrecorded agreements to transfer or convey, except the Lease. 18. Lessee represents and warrants that Lessee's interest in the Lease and inthe Premises is free and clear of all liens and encumbrances, contractual rights or claims, previous transfers or conveyances or agreements to transfer or convey, recorded or unrecorded, except the Lease, recorded rights-of-way, easements, taxes, covenants, conditions, and restrictions, except for the Primary Lease, and that Lessee has full authority to enter into and fully perform under the terms of this document. 19. Lessor and Lessee shall give Encumbrancer prompt written notice of all arbitration or legal proceedings between Lessor and Lessee involving obligations under the Lease. Encumbrancer shall have the fight to intervene in any such proceedings and be made a party to such proceedings; and the parties hereto do hereby consent to such intervention. In addition Lessor and Lessee agree to provide a copy of any and all notices between Lessor and Lessee, at the same time said notice is being sent by said Lessor or Lessee. 20. If the Encumbraneer acquires the leasehold estate of Lessee pursuant to foreclosure, conveyance in lieu of foreclosure, or other proceedings, Encumbrancer shall succeed to rights of Lessee, if any, in and to any security deposit and any prepaid rents paid by Lessee to Lessor and the rights of Lessee, if any, in and to all rights of first refusal, rights of reimbursement, rights to extend the Lease, rights to elect between alternative provisions of the Lease, and all other rights of, or accorded to, Lessee in and by virtue of the Lease. In such event, Lessee shall have no further rights to such security deposit(s) and prepaid rents, and Lessor shall owe such security deposit and prepaid rents for and on behalf of Encumbrancer. 21. The Note to Eneumbrancer shall be secured by, among other things, all of Lessee's now owned or hereafter acquired machinery, equipment, furniture, fixtures and inventory (as such terms are defined in the Uniform Commercial Code) together with all accessions to, products of and proceeds thereof (collectively the "Personalty"). Any Lessor's lien, right of distraint or levy, security interest or other interest which the Lessor may now or hereafter acquire in any of the Personalty for unpaid rent or otherwise, whether by virtue of a lease, landlord-tenant relationship, statute or otherwise shall be subordinated in all respects to any security interests in the Personalty now or hereafter held by Encumbrancer. The Personalty shall be considered removeable and not a part of the Premises real estate. 22. All notices, requests, demands, and other communications under this agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows: LESSOR: City of The Colony Attn: City Manager 6800 Main Street The Colony, Texas 75056-0008 LESSEE: Blue Sky Sports Center, L.P. 51 Remington Drive Highland Village, Texas 75077 Attn: Mr. Peter Brody with a copy to: Mr. Grog Bertrand Bertrand & Bertrand, P.C. 1278 FM 407, Suite 109 Lewisville, Texas 75077 (972) 317-3199 (Telephone) (972) 317-9595 (Telecopy) ENCUMBRANCER: First American Bank, SSB 8401 North Central Expressway Suite 500 Dallas, Texas 75225 Attn: Don Johnson Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above. 24. The undersigned hereby certify that they are authorized to sign this Agreement and that all actions necessary to authorize the execution to this Agreement by the undersigned have been taken. 25. In the foregoing Consent, the masculine gender includes feminine and neuter, and the singular number includes the plural, whenever the context so requires. 26. This consent may only be modified by a written document signed by all of the parties hereto. 5 Dated: January ~ '' ,2004 ENCUMBRANCER: First American Bank, SSB By: ~/'Tz ~ Title: LESSOR: CITY OF THE COLONY Title: C~ LESSEE: Blue Sky Sports Center, L.P., a Texas limited partnership By: Blue Sky Sports Center Holding, Inc., Partner 6 STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the updersigned, a Notary Public in an,drfor ~id County and State, on this day personally appeared"~>O/ of First American Bank, SSB, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in the capacity therein stated, as the act of the entity for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ~.~Y-~-~ day of January, 2004. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared~ (n,~_~q.~-/~ . ("~'i, ~"~/V/~-~-~ of the City of The Colony, known to me to be the person who~e name is Sa/bscribed to the foregoing instrument and acknowledged to me that she/he executed the same in the capacity therein stated, as the act of the entity for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ~ day of January, 2004. Notary Public, State of Texas 7 STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared Peter A. Brody, President of Blue Sky Sports Center Holding, Inc., General Partner of Blue Sky Sports Center, L.P., a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in the capacity therein stated, as the act of the entity for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ~c/~ day of January, 2004. i~;.,.',~).~ N~,~,,~c, St~o~T,., gl · - ~] ~,,~,".~.,,f' M~, C~ni.lon Exp. lO.t 6-~OOS ~ Notary Pubhc, State of T .a.. '.',.,...:. ...................