HomeMy WebLinkAboutResolution No. 06-026
RESOLUTION NO. 06-~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE ASSIGNMENT, CONSENT TO
ASSIGNMENT AND ASSUMPTION OF WATERPARK GROUND AND
OPERATING AGREEMENT FOR THE HAWAIIAN FALLS
WATERPARK, WHICH IS ATTACHED HERETO AND
INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE
MAYOR TO EXECUTE THE APPROPRIATE DOCUMENTS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, on or about December 1, 2003 the City and Horizon Amusement South,
LLC entered into a Waterpark Ground Lease and Operating Agreement concerning the
maintenance and operation of the Hawaiian Falls Waterpark; and
WHEREAS, said lease provides that any assignment shall require the express written
approval of the City; and
WHEREAS, Horizon Amusement South, LLC, with the City's approval, assigned such
lease to HFE Horizon, LP, on or about September 30, 2004, a copy of which is attached hereto
and incorporated herein as Exhibit "B"; and
WHEREAS, HFE Horizon, LP now desires to assign the existing lease to CNL Income
Properties, Inc. and pursuant to Lease, Horizon Amusement South, LLC is seeking the City's
approval for the same; and
WHEREAS, the City has determined that it is in the best interest of the City to approve
the assignment of the Lease Agreement from HFE Horizon, LP to CNL Income Properties, Inc.,
which is attached hereto and incorporated herein as Exhibit "A."
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS THAT:
Section 1. That the City Council hereby approves the assignment of the existing Waterpark
Ground Lease and Operating Agreement, dated December 1, 2003, and reassigned on September
30, 2004 for the Hawaiian Falls Waterpark from Horizon HFE, LP to CNL Income Properties,
Inc., as provided in the Assignment, Consent to Assignment and Assumption ofWaterpark Ground
Lease and Operating Agreement, which is attached hereto and incorporated herein as Exhibit "A";
and, the Mayor is hereby authorized to execute the appropriate documents for such assignment on
behalf ofthe City of The Colony, Texas.
Section 2. That this Resolution shall take effect immediately from and after its adoption
and it is so resolved.
64684
PASSED, APPROVED and EFFECTIVE this k day O~006.
~.J IJ~
CHnstie Wilson, TMRC, City Secretary
City of The Colony, Texas
APPROVED AS TO FORM:
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City of The Colony, Texas
(REH//cdb 3/15/06)
64684
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ASSIGNMENT. CONSENT TO ASSIGNMENT AND ASSUMPTION OF
W ATERP ARK GROUND LEASE AND OPERATING AGREEMENT
THIS ASSIGNMENT, CONSENT TO ASSIGNMENT AND ASSUMPTION OF
WATERPARK GROUND LEASE AND OPERATING AGREEMENT ("Agreement"),
made and entered into this _day of , 2006 by and among HFE
HORIZON, L.P., a Texas limited partnership (the "Assignor"), and
a (the "Assignee") and the CITY OF THE COLONY, TEXAS,
a Texas home-rule municipality (the "City").
WITNESSETH:
WHEREAS, Horizon Amusement South, LLC, a Missouri Limited Liability
company (HAS) and City entered into a Waterpark Ground Lease and Operating
Agreement dated the 1st day of December, 2003 (the "Original Lease") whereby the City
leased to Assignor certain real property located in Denton County, Texas, more
specifically described on Exhibit "A" attached hereto and incorporated herein by this
reference (the "Leased Premises"); and
WHEREAS, pursuant to the terms and conditions of that certain Assignment and
Assumption of Ground Lease dated September 30, 2004 attached hereto, Assignor
assumed all right, title and interest in and to the Ground Lease.
WHEREAS, under the terms of the Original Lease, City must consent to any
assignment by Assignor; and
WHEREAS, pursuant to the Purchase Agreement, Assignor desires to assign all
of its right, title and interest in and to the Original Lease to Assignee, and Assignee
desires to assume all obligations and liabilities of Assignor under the Original Lease;
NOW, THEREFORE, for and in consideration of the foregoing, the mutual
covenants herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged by the parties by their
execution hereof, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of Assignor's right, title
and interest as tenant, in, under and to the Original Lease.
2. Assumption. Assignee hereby assumes and agrees to keep, observe and
perform, all of the covenants, terms and conditions required to be kept, observed
and performed by Assignor as tenant pursuant to the Lease first arising from and
after the date of this Assignment.
3, Indemnification. Assignor hereby agrees to indemnify Assignee against, and
hold Assignee harmless from, any and all cost, liability, loss, damage or expense,
including, without limitation, reasonable attorneys' fees, first arising or accruing
0914625\120001 \932728\2
prior to the date hereof in connection with Assignor's performance or observance
of, or the failure to perform or observe, any agreement or obligation of Assignor
arising under the Original Lease. Assignee hereby agrees to indemnify Assignor
against, and hold Assignor harmless from, any and all cost, liability, loss, damage
or expense, including, without limitation, reasonable attorneys' fees, arising or
accruing as of or subsequent to the date hereof in connection with Assignee's
performance or observation of, or failure to perform or observe any agreement or
obligation under the Original Lease hereby assumed by Assignee.
4. City Consent. City, by the execution hereof, consents to this assignment of
Assignor's interest in the Original Lease to Assignee as provided for herein;
furthermore, City agrees that it shall recognize and treat Assignee as the tenant
under the Original Lease and all obligations owed by City to Assignor under the
Original Lease shall now run to Assignee. In addition, City certifies to Assignee
that City's address for notices and payment of rent is:
The City of The Colony
Attn: Dale Cheatham, City Manager
6800 Main Street
The Colony, Texas 75066
5. Binding Effect and Benefits. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
aSSIgns.
6. Further Assurances. Each party hereto agrees to execute and deliver any further
instruments and documents as the other party may reasonably request in order to
fully effectuate the purpose and intent of this Agreement.
7. Representations.
(a) Assignor represents that it holds all right, title and interest of tenant under the
Original Lease and Assignor has the right to convey the same to Assignee;
(b) City and Assignor each represent that the Original Lease is in full force and
effect and has not been amended or modified by City and Assignor;
(c) City and Assignor each represent that it has not entered into any agreements of
any nature (either written or oral) regarding the Leased Premises except the
Original Lease;
(d) City and Assignor each represent that to the best of its knowledge, there is no
present default on the part of City or Assignor, and, there is no condition existing
that could, given the passage of time or the giving of notice, ripen into a default
thereunder; and
0914625\120001\932728\2
(e) City and Assignor each represent that no Rent due under the Original Lease
has been paid in advance.
8. Limitation of Liability. Notwithstanding anything contained herein to the
contrary, any claim based on or in respect of any liability of Assignee under this
Agreement shall be enforced only against Assignee's interest in the Leased
Premises and not against any other assets, properties or funds of (i) Assignee or
any partner, shareholder, director, officer, employee, agent, successor or assign
thereof, (ii) any predecessor or successor partnership or corporation (or other
entity) of Assignee, respectively, either directly or through Assignee or any other
predecessor or successor partnership or corporation (or other entity) or (iii) any
other person or entity.
[The remainder of this page intentionally left blank]
0914625\120001 \932728\2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
"ASSIGNOR"
HFE HORIZON, L.P., a Texas limited partnership
By:
, a
, its General Partner
By:
Name:
Title:
"ASSIGNEE"
, a
By:
Name:
Title:
"CITY~'
CITY OF THE COLONY, TEXAS, a Texas home-
rule municipality
By:
Name:
Title:
0914625\120001\932728\2
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
2006, by , as of a
, the General Partner of HFE Horizon, LP, a Texas limited
partnership, on behalf of such . He/she is personally known to me
or has produced as identification.
Notary Public
Name:
Commission No.:
My Commission Expires:
(SEAL)
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before
2006, by, as
a
He/she is personally known to
as identification.
me this _ day of
of
on behalf of such
me or has produced
Notary Public
Name:
Commission No.:
My Commission Expires:
(SEAL)
STATE OF TEXAS
COUNTY OF DENTON
The foregoing instrument was acknowledged before me this _ day of
, 2006, by , as of the City of The
Colony, Texas, a Texas home-rule municipality, on behalf of such municipality. He/she
is personally known to me or has produced' as identification.
Notary Public
Name:
Commission No.:
My Commission Expires:
(SEAL)
0914625\120001\932728\2
EXHIBIT '~'
METES AND BOUNDS DESCRIPTION
Being a 7.601 acre tract ofland out of Lot 1, Block 1, Memorial Park Site according to the plat
filed for record in Cabinet Q, Page 161 of the Plat Records of Denton County, Texas (PRDCT)
and being more particularly described by metes and bounds as follows;
COMMENING at a 112-inch found iron rod wi "Dowdy" cap at the most southerly southwest
corner of Lot 14, Block J of the Legend Trails Phase IT Addition as described by plat in Cabinet
T, Page 258-259 of the PRDCT; said point also being in the north or northeast right of way line
of Worley Drive, a 60-foot right-of-way; thence South 59 degrees 51 minutes 33 seconds East
along the north or northeast right of way line of said Worley Drive for a distance of21.00 feet to
a point; thence South 30 degrees 08 minutes 27 seconds West, departing said north or northeast
right of way line, for a distance of 60.00 feet to a point for the intersection ofthe south or
southwest right of way line of Worley Drive and the west or northwest line of a 100-foot
drainage and utility Cd~ement shown 0n said Memorial Park Site plat; thence continue South 30
degrees 08 minutes 27 seconds West along the west or northwest line of said100 foot drainage
~ .
and utility easement for a distance of 343.78 feet to a lI2-inch set iron rod with yellow plastic
cap stamped "HALFF ASSOC., INC.", hereinafter referred to as set iron rod "with cap", for the
POINT OF BEGINNING;
THENCE along the west or northwest line of said 100-foot drainage and utility easement the
following calls and distances;
South 30 degrees 08 minutes 27 seconds West for a distance of 88.69 feet to set iron rod
with,.<<ap for the,..pojnt.Qfc.u.fYat.ur..e..m_a.tangentcurvetQthe right having a radius of
1,230.00 fe~t ~d whose long cho_~d bears Sout~ 5~ degrees OQ minutes 12 seconds West
__._._~gistance of916.05 feet; ~~~"__~._~'___"__~___
Southwesterly, along said curve to the right through a central angle of 43 degrees 43
minutes 29 seconds and an arc distance of938.66 feet to a set ironrod with cap for the
point()fc?rnp()~~d-c.~<l!?r~-_~_~ t~$.eJ?!c.~~~~_~l1~ ~~t}:?:a'1I1g ~_!.adius of 25 .00 feet
~ . . ~-and.whose::longc;chord-bears-North: 1-ldegrees40-mmutes24 seconds Wesfa distance of
26.84 feet;
-4-
---~._~-~--~_.._--- ---"----.---- ._------~--
THENCE northwesterly, departing said lOO-foot drainage and utility easement and along said
curve to the right though a central angle of 64 degrees 55 minutes 17 seconds and an arc distance
of28.33 feet to a set iron rod with cap for the point of reverse curvature ofa tangent curve to the
left having a radius of 125.00 feet and whose chord bears North 59 degrees 17 minutes 53
seconds West a distance of77.61 feet;
THENCE northwesterly, along said curve through a central angle of36 degrees 10 minutes 14
seconds and an arc distance of78.9l feet to a set iron rod with cap for the point of reverse
curvature of a tangent curve to the right having a radius of25.00 feet and whose chord bears
North 45 degrees 45 minutes 54 seconds West a distance of26.21 feet;
THENCE westerly, along said curve to the right through a central angle of 63 degrees 14
minutes 12 seconds and an arc distance of27.59 feet to a set iron rod with cap for the point of
reverse curvature of a tangent curve to the left having a radius of 970.00 feet and whose chord
bears North 16 degrees 39 minutes 18 seconds West a distance of84.91 feet; said point on the
east line of said 100- foot drainage and utility easement;
THENCE along the east line of said 100-foot drainage and utility easement the following calls
and distances;
Nor111erly, ,llong said curve to the left through a central angle of 05 degrees 01 minute 00
seconds and an arc distance of_84-23 fe~to a set iioiI rod with cap for the point of reverse
curvature of a tangent curve to the right having a radius of 670.00 feet and whose long
chord bears North 15 degrees 57 minutes 36 seconds West a distance of 72.58 feet;
Northerly, along said curve to the right through a central angle of 06 degrees 12 minutes
36 seconds and an arc distance of72.62 feet to a set iron rod with cap; said point on the
east line of a 50-foot Lone Star Gas Easement as described in Volume 734, Page 215 of
the D~~d Re,~Qnl~Qf D~l1t~n_CQJmty,:rexas.(DJll1CI);_~c"C_~__ __
THENCE. NoJih 17 degrees 12_miriUte~~s~.ondsJfast-.depaiti.ngcsaiddQ04Get~inage and
utility easement and along the 'east line of said 50-foot Lone Star Gas Easement foiJuiislance of
225,7-8 fe_eJ.to a.,seG~onrodwiili c~~6i~t -of ~11rJatute.hr~ TlO~-f:lngeiif c;i;n,~~kLthe left
having a radius of61.50 feet and whose long chord bears North 87 degrees 36 minutes 21
seconds Eastadistance of28.32 feet;-.o=o- __.
THENCE easterly, along said curve to the left through a central angle of26 degrees 3Tminutes
14 seconds and an arc distance of 28.57 feet to a sefifon rod with cap -for the point()f'co~pound~~ --:c~-~-'
curvature of a tangent curve to the left having a radius of 183.50 feet and whose long chord bears
North 55 degrees 16 minutes 46 seconds East a distance of 119.58 feet;
-5-
THENCE easterly, along said curve to the left through a central angle of38 degrees 01 minute
56 seconds and an arc distance of 121.80 feet to a set iron road with cap for the point of reverse
curvature ofa tangent curve to the right having a radius of29.00 feet and whose long chord bears
North 63 degrees 01 minute 03 seconds East a distance of26.11 feet;
THENCE northeasterly, along said curve to the right through a central angle of 53 degrees 30
minutes 30 seconds and an arc distance of27.08 feet to a set iron rod with cap;
THENCE North 89 degrees 46 minutes 18 seconds Bast for a distance of 109.57 feet to a set
iron rod with cap for the point of curvature of a tangent curve to the left having a radius of
313.50 feet and whose long chord bears North 74 degrees 45 minutes 09 seconds East a distance
of 162.48 feet;
THENCE easterly, along said curve to the left through a central angle of 30 degrees 02 minutes
18 seconds and an arc distance of 164.36 feet to a set iron rod with cap;
THENCE North 59 degrees 44 minutes 00 seconds East for a distance of212.44 feet to a set
iron rod with cap for the point of curvature ofa curve to the right having a radiusof236.50 feet
and whose long chord bears North 88 degrees 31 minutes 56 seconds East a distance of227.86
feet;
THENCE northeasterly, along said cuive to the right through -a central angle of 57 degrees 35
minutes 51 seconds and an arc distanceof237.74 feet to a set iron rod with cap for the point of
compound curvature of a tangent curve to the right having a radius of 59.00 feet and whose long
chord bears South 46 degrees 09 minutes 23 seconds East a distance of33.54 feet;
THENCE southeasterly, along said curve to the right through a central angle of33 degrees 01
minute 31 seconds and an arc distance of34.01 feet to a set iron rod with cap for the point of
reverse curvature of a tangent curve to the left having a radius of 69.00 feet and whose long
chord bears South 32 degrees 24 minutes 21 seconds East a distance of 6.65 feet;
-----.--.-----'--.....~,.~.~~_T~..._'7....._.........__"_-~_____~"'....~.____~__.............._~~..........___...""""_'___......_..._.....~._____.
THENCE southe_al;terlY,J!lo;QK sai(l_<;wy~ to th~J~ft th.91,l~_c! c~ntnlj:llJJgJ~tof05 degrees 31
---- --1Ilinutes24-=-seeonds-~andan arc-distance of6.65 feeho the POINT OF BEGINNING and
------.-------.
containing 331,111 square feet or 7.601 acres ofJand, more or less.
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03/15/2005 07:18
951-595-4453
PAMELA WESLEY
h<6rr- ~6"
TIllS ASSIGNMENT, CONSENT TO ASSIG NT AND ASSUMPTION OF
W A TERPARK GROUND LEASE AND OPERATING REEMENT (n Agreement"), made
and entered into this ~day of September, 2004, by an among HORIZON AMUSEMENT
SOUTIlWEST, L.L.C., a Missouri limited liability compa y (the "Assignor"), and HFE
HORIZON, L.P., a Texas limited partnership (the "Assign ") and the CITY OF THE
COLONY, TEXAS (the "City").
WITNESSET
WHEREAS, Assignor and City entered into a Wa ark Gmund Lease and Operating
Agreement dated the 1st day of Dccember, 2003 (the "Ori inal Lease>>) whereby the City leased
to Assignor certain real property located in Denton Cou Texas, more specifically described
on Es:blbit "A" attached hereao and incorporated herein b this reference (the "Leased
Premises"); and
PAGE 01
WHEREAS, punuant to the terms and conditions an Asset Purchase Agreement dated
~ ,..~. ~. 2004, between Assignor and Assignee (th "Purchase Agreement") Assignee has
purchased substantially all of the assets of Assignor; and
WHEREAS, under the terms of the Original Lease City must consent to any assignment
by Assignor; and
WHEREAS, pursuant to the Purchase Agreement, ssignor desires to assign all of its
right, title and interest in and to the Original Lease to Assi nee, and Assignee desires to assume
all obligations and liabilities of Assignor under tbe Origin Lease;
NOW, THEREFORE, for and in consideration of e foregoing. the mutual covenants
herein contained and other good and valuable consideratio , the receipt, adequacy and
sufficiency of which is hereby acknowledged by the partie by their execution hereof, the parties
hereto agree as follows:
1. Assianment. Assignor hereby assigns to A ignee all of Assignor's rights, title
and interest. in, under and to the Original Lease.
2. Assumption. Assignee hereby assumes a agrees to keep, observe and perform.
all of the covenants, temu and conditions required to be k t. observed and performed by
Assignor pursuant to the Lease.
SI'IJNOFlEW-lm31-v)-Aa,icnmcm&.ad ~Dn orW.......k Oruund l-. Opondin& Ap-ccmcmLOOC
03/15/2006 15:48
951-696-4463
PAMELA WESLEY
PAGE 02
'-..../
3. Ci(y Consent. City, by the execution here ,consents to this assignment of
Assignor's interest in the Original Lease to Assignee as p ided for herein; furthermore, City
agrees that it shall recogni~ and treat Assignee u the te nt under the Original Lease and all
obligations owed by City to Assignor under the Original se shall now run to Assignee. In
addition. City certifies to Assignee that City's address fOf otices and payment of rent is:
The City of The Colony
Ann: Dale Cheatham, City
6800 Main Street
The Colony, Texas 75066
t shall be binding upon, and shall
succeuors and assigns.
4. BincliOll. Effect and Benefits. This Agree
inure to the benefit ot: the parties hereto BOd their respecti
S. Further AssufanceJ. Each party hereto
instrument. and documents as the other party may reaso
the purpose and intent of this Aaroement.
6. Rc.presenwiofl$. City and Aujgnor certi to Assignee that:
5 to execute and deliver any further
Iy request in order to fully effectuate
(a) The Original Lease is in full force and ect and hu not been amended or
modified eKeept by those amendments (if any) as retofore disclosed by City to
Asaignee;
(b) City and Assignor have not entered jnt any agreements of any nature (either
written or oral) regarding the Leucd Premises ex t the Original Lease and any
amendments thereto;
(c) There is no present default on the part Assignor and, to the best oftbe
knowledge of City and Assignor. there is no con<li n existiDa that could, given tbe
passage of time or the giving of notice, ripen into default thereunder; and
(d) Rent has not been paid IQ advance.
[The remainder of this page intent' ally left blank]
.~
SPIUNGFIElD-I790l1-vj.Alfi....llh...,A ",...... orw..... t'1MlII...... 0pIiflUiaa ___.DOC
63/15/2666 15:48
951-696-4463
PAMELA WESLEY
PAGE 63
IN WITNBSS WHEREOF, the parties hereto ha executed this Agreement as of the day
and year first above written.
HORIZON
a Missouri I
SEMENT SOUTHWEST. L.L.C.,
ited liability company
By:
Name:
Title:
"AssignoC
mEHO
N, L.P., a Texas limited partnership
By:
Name:
Title:
"Assignee"
',..~.
CITY OF COLONY, TEXAS, a Texas
home-rule m nicipality
.-..
By:
Name:
Title:
"City"
8P1UNOFlELD-l~al"']_AII"'" and AI-"oHI onl.....,.,n ~1NIllI a-.. ~ ~.DOC
03/16/2006 07:18
951-696-4463
PAMELA WESLEY
PAGE 02
IN WITNESS WHEREOF. the parties hereto hay executed this Agreement as ofthe day
and year first above written.
HORIZON USEMENT SOUTHWEST. L.L.C.,
a Missouri Ii ited liability company
By:
Name:
Title:
"Assignor"
By:
Name: J
Title:
N, L.P., a Texas limited partnership
"Assignee"
CITY OF T COLONY, TEXAS, a Texas
home-rule m icipality
By:
Name:
Title:
"City"
'--'
AsIiaDmeIll and A&IuIlpIiOll of wlllaplft Ground IM.e and OpenItilllJ'lreemelll_ v3