HomeMy WebLinkAboutResolution No. 07-032
CITY OF THE COLONY
RESOLUTION NO. 07- D~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER
INTO A FACILITIES DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF THE COLONY AND HARVEST FAMILY
ENTERTAINMENT TEXAS, L.P. REGARDING FUNDING FOR PUBLIC
FACILITIES AND IMPROVEMENTS AS PROVIDED IN EXHIBIT "A",
WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN;
AUTHORIZING THE OPENING OF THE PARK THIS SEASON PRIOR
TO THE COMPLETION OF THE PARKING LOT EXPANSION; THAT
THE COMPLETION OF THE PARKING LOT EXPANSION WILL
OCCUR NOT LATER THAN AUGUST 1, 2007; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City has determined that it is in the best interest of the City to enter into
the agreement with Harvest Family Entertainment Texas, L.P., which is attached hereto and
incorporated herein by reference as Exhibit "A," under the terms and conditions provided
therein; and
WHEREAS, with this Facilities Development Agreement the City of The Colony has
granted the Developer the right to extend and construct a parking facility and, upon completion,
the City will obtain funding for the purchase ofthe parking lot expansion at such facility; and
WHEREAS, the City authorizes the opening of the park this season prior to the
completion of the parking lot expansion and that completion of the parking lot expansion will
occur not later than August 1, 2007.
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 hereby approves the
agreement with Harvest Family Entertainment Texas, L.P. regarding the funding for the purchase
of the public improvements and facilities to wit: parking lot expansion, as provided in Exhibit
"A", which is attached hereto and incorporated herein.
Section 2. That the City authorizes the opening of the park on or after May 1, 2007
prior to the completion of the parking lot expansion and that completion of the parking lot
expansion will occur not later than August 1, 2007.
Section 3. That the city manager is authorized to execute the agreement on behalf of the
City of The Colony, Texas.
Section 4. That this Resolution shall take effect immediately from and after its passage.
63918
PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this
16th day of April. 2007.
Dillard, Mayor
of The Colony, Texas
ATTEST:
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Chn' lson, TRMC, CIty Secretary
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APPROVED AS TO FORM:
63918
COUNTY OF DENTON
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~ FACILITIES / DEVELOPMENT AGREEMENT
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STATE OF TEXAS
This Development Agreement (the "Agreement") is made by and between the City of
The Colony, a Texas Home Rule Municipality (the "City"), and Harvest Family Entertainment
Texas, L.P., a Delaware Limited Partnership (the "Developer") (the City and the Developer are
hereinafter referred to together as the "Parties").
RECIT ALS
WHEREAS, the Developer intends to construct certain public improvements within the
City of The Colony to wit: parking lot facility (hereinafter referred to as the "Project"), as
depicted in Exhibit "A," which is attached hereto and incorporated herein by reference, on and
for the benefit of the Property and the City; and
WHEREAS, as a part of the Project, the City and has granted the Developer the right to
extend and construct a parking facility for the use of said property and City park facilities; and
WHEREAS, the City shall reimburse Developer for the costs to construct the parking
facility in accordance with the terms and provisions hereof; and
WHEREAS, the Parties desire to enter into an agreement pursuant to TEXAS LOCAL
GOVERNMENT CODE, Section 212.071 et Seq.;
NOW, THEREFORE, for and in consideration of the above and foregoing premises,
and other good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I
Incorporation of Premises
The above and foregoing premises are true and correct and are incorporated herein and
made a part hereof for all intents and purposes.
FACILITIES/DEVELOPMENT AGREEMENT-PAGE I
TM 14092.76.00
ARTICLE II
Definitions
2.1 "City" shall mean the City of The Colony, Texas
2.2 "City Engineer" shall mean the City of The Colony City Engineer, or designee.
2.3 "Commencement of Construction" shall mean the grading and/or preparation of the
parking lot expansion and construction.
2.4 "Completion of Construction" shall mean: (i) substantially completed in accordance with
the approved plans; and, (ii) the Project has been accepted by the City.
2.5 "Construction Documents" shall mean those certain plans and specifications prepared and
submitted for the design, installation and construction of the Project, and approved by the
City, which are attached hereto.
2.6 "Developer" shall mean Harvest Family Entertainment Texas, L.P.
2.7 "Effective Date" shall mean the last date of execution of this Agreement.
2.8 "Force Majeure" shall mean strikes, riots, acts of God, shortages of labor or materials,
war, governmental approvals, laws, regulations, or restrictions, or any other cause of any
kind, whatsoever, which is beyond the reasonable control of a party.
2.9 "Property" shall mean the property described in Exhibit "A," which is attached hereto.
2.10 "Project" shall collectively mean the Project to be constructed by the Developer pursuant
to this Agreement.
ARTICLE III
Agreement
3.1 As a condition precedent to the obligations contained herein, City shall obtain funding for
the purchase of the Project through a pending funding reimbursement agreement with
The Colony Community Development Corporation ("CDC") within ninety (90) days.
The City shall provide written notice to the Developer indicating whether or not such
funding has been obtained. In the event that such dedication or funding does not occur
and the City provides written notice to that effect, then either party may notify the other
party, in writing, of its election to terminate this Agreement (the "Termination Notice").
Upon such a Termination Notice from either party, the obligations under this Agreement
shall not have any force or affect. Notwithstanding the foregoing, however, if the City
notifies the Developer that the City has obtained the funding outside the ninety day
period, and neither party has provided the Termination Notice prior to such notice, then
the parties shall proceed under and be bound by the terms and conditions of this
Agreement.
3.2 Project Construction.
A. After written confirmation from the City that the condition precedent specified in
Section 3.1 above has been satisfied, and that funding has been obtained (the "Funding
Notice"), the Developer agrees to design plans and specifications to construct and install
the Project in accordance Exhibit A. The Developer agrees to cause the construction of
the Project after City approval of the Construction Documents and Developer's and/or
City's receipt of all necessary permits for Developer to commence construction, and to
FACILITIES / DEVELOPMENT AGREEMENT - PAGE 2
TM 14092.76.00
cause Completion (subject to Force Majeure) of Construction of the Project on or before
August 1,2007, or, if later, within 120 days following the Funding Notice.
B. The Developer agrees to extend and construct, in accordance with the
Construction Documents, parking facilities construction, as depicted on Exhibit "E."
C. Upon fifty (50%) Completion of Construction of the Project and acceptance by
the City Engineer, which acceptance shall not be withheld or delayed if the project is in
compliance with applicable building codes and this Agreement, the City agrees to
reimburse the Developer fifty percent (50%) of the costs of construction of the parking
facilities in an amount not to exceed One hundred eighty seven thousand five hundred
dollars ($187,500). The City shall cause payment to be provided thirty (30) days after
acceptance. Upon Completion of Construction of the Project and acceptance by the City,
the City will reimburse the Developer the remaining fifty percent (50%) in an amount not
to exceed One hundred eighty seven thousand five hundred dollars ($187,500) within
thirty (30) days after acceptance, which acceptance shall not be withheld or delayed if the
project is in compliance with applicable building codes and this Agreement,. If the cost
of construction is less than the original amount, the City and the Developer will prorate
the savings according to each individual's cost compared to the sum of the two.
D. The Developer shall provide the City Engineer with copies of all invoices and
records showing the total cost of the design, construction, and installation of the Project,
and such other information as may be reasonably requested by the City Engineer to verify
such costs.
ARTICLE IV
Termination
This Agreement may be terminated by the mutual written agreement of the parties.
Either party may terminate this Agreement if the other party breaches any of the terms and
conditions of this Agreement, and such breach is not cured (or cure of such breach is not
commenced) by such party within sixty (60) days after receipt of written notice thereof.
ARTICLE V
Miscellaneous
5.1 Parties Bound: Assie:nment. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective legal representatives, successors and
assigns and shall be a covenant running with the land. This Agreement may not be
assigned, transferred or otherwise conveyed by the Developer without the prior written
consent of the City. This Agreement shall not be recorded in the public land records
without the written consent of Developer and City.
5.2 Bonds. Developer agrees to execute a performance bond for the construction of the
Project by the Developer to ensure completion of the Project in accordance with Chapter
2253 TEXAS GOVERNMENT CODE and Section 212.073 of the TEXAS LOCAL
FACILITIES / DEVELOPMENT AGREEMENT - PAGE 3
TM 14092.76.00
GOVERNMENT CODE, or to cause its contractors to provide such performance bonds, and
payment bonds in forms reasonably satisfactory to the City for the construction and to
ensure completion of the Project.
5.3 INDEMNIFICATION / HOLD HARMLESS. DEVELOPER DOES HEREBY
RELEASE, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, AND THIRD PARTY REPRESENTATIVES
(COLLECTIVELY REFERRED TO AS "CITY") FROM ANY AND ALL
CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY KIND WHATSOEVER,
STATUTORY OR OTHERWISE, PERSONAL INJURY (INCLUDING DEATH),
PROPERTY DAMAGE AND LAWSUITS AND JUDGMENTS, INCLUDING
COURT COST, EXPENSES AND ATTORNEY'S FEES, AND ALL OTHER
EXPENSES ARISING DIRECTL Y OR INDIRECTL Y FROM THE
DEVELOPER'S PERFORMANCE OF THIS AGREEMENT. THE FOREGOING
RELEASE AND INDEMNITY SHALL EXPIRE AND BE OF NO FURTHER
FORCE AND EFFECT UPON THE CITY'S PURCHASE OF THE PUBLIC
INFRASTRUCTURE DESCRIBED IN SECTION 3.1 HEREINABOVE.
5.4 Notice. All notices required by this Agreement shall be in writing and addressed to the
following, or such other party or address as either party designates in writing, by certified
mail, postage prepaid or by hand delivery.
If intended for Developer, to:
With a copy to:
David J. Busch, President
Harvest Family Entertainment Texas, L.P.
11883 Silver Cliff Way
Gold River, CA 95670
Facsimile No. (916) 635-8436
Pamela Wesley
26220 Woodland Circle
Murrieta, CA 92563
Facsimile No. (951) 696-4470
and
Brad I. Pearson
DeSimone Pearson, LC
4324 Belleview, Suite 100
Kansas City, MO 64111
Facsimile No. (816) 753-2924
If intended for City, to:
With a copy to:
City of The Colony
A TTN: City Manager
6800 Main Street
The Colony, Texas 75056
Facsimile No. (972) 624-2312
Robert E. Hager, City Attorney
Nichols, Jackson, Dillard, Hager & Smith
1800 Lincoln Plaza, 500 N. Akard
Dallas, Texas 75201
Facsimile No. (214) 965-0010
5.5 Compliance with Laws. Developer shall fully comply with all local, state and federal
FACILITIES / DEVELOPMENT AGREEMENT - PAGE 4
TM 14092.76.00
laws, including all codes, ordinances and regulations applicable to this Agreement and
the work to be done thereunder, which exits or which may be enacted later by
governmental bodies having jurisdiction or authority for such enactment.
5.6 Warranty. The persons executing the same are authorized to execute this agreement on
behalf of each of the respective parties.
5.7 Governine: Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas. Venue shall be in Denton County, Texas.
5.8 Lee:al Construction. In case anyone 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 be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
5.9 Entire Ae:reement. This Agreement constitutes the entire agreement and understanding
between the City and the Developer. This Agreement may only be changed or modified
with the written consent of the Developer and the City Council. Such modification may
be requested by either party, but shall not, in any event, be effective unless and until
approved by the City Council of the City.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed by its undersigned duly authorized representative as of the date herein above first
mentioned.
EXECUTED on this 16th day of April, 2007.
CITY OF THE COLONY, TEXAS
HARVEST FAMILY ENTERTAINMENT
By:;:;t/LJ
David J. Busch, President
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Dale Cheatham, City Manager
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Att€~t:
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Christie Wilson, City Secretary
City of The Colony
Robert E. Hager, Cit
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FACILITIES / DEVELOPMENT AGREEMENT - PAGE 5
TM 14092.76.00
CITY'S ACKNOWLEDGMENT
STATE OF TEXAS ~
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COUNTY OF DENTON ~
This instrument was acknowledged before me on the -11.- day of(l' , 2007 by
Dale Cheatham, City Manager of the City of The Colony, a Texas municipalit , on behalf of said
municipality, r'
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"- Not~ry Public, State of Texas
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My Commission expires:
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i~'{*)~~ CHRISTIE NEU WILSON J
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........................... 'fllres 11.22-09 $
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DEVELOPER'S ACKNOWLEDGMENT
STATE OF TEXAS ~
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COUNTY OF DENTON ~
This instrument was acknowledged before me this J 0"'- day of 1YIa:J '
2007, by DavIDJ. 6uSc,," ,the 7(-e51~f\+ of Harvest Family
Entertainment Texas, L.P., a Delaware limited partnership, on behalf of such company.
My Commission expires:
~. 30, 200Cj
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DIANE M. BAXlER
MY COMMISSION EXPIRES
Janua/y 30, 21lO9
FACILITIES / DEVELOPMENT AGREEMENT - PAGE 6
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