HomeMy WebLinkAboutResolution No. 08-036
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 08-036
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF
THE AGREEMENT AS TO LEASE AND SUBLEASE AGREEMENT
ASSIGNMENT, BY THE CITY OF THE COLONY, TEXAS, IN FAVOR
OF JEFFERSON BANK, PROVIDING FOR THE ADVANCE OF A LOAN
TO MARINE QUEST -HIDDEN COVE, L.P., WHICH IS A TT ACHED
HERETO AND INCORPORATED HEREIN AS ATTACHMENT "A";
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of The Colony ("City") is the holder of a leasehold interest in and
to the real property in Denton County leased to Marine Quest - Hidden Cove, L.P.; and
WHEREAS, Marine Quest-Hidden Cove, L.P. ("Subtenant") has requested that
Jefferson Bank ("Lender") advance a loan which will be used by Subtenant to construct a marina
and related development at Hidden Cove Park; and
WHEREAS, as a condition to Lender's agreement to advance the loan to Subtenant,
Lender has required the Agreement as to Lease and Sublease Agreement Assignment; and
WHEREAS, the City desires to approve under the terms and conditions of the
Agreement as to Lease and Sublease Agreement Assignment ("Agreement"), which is attached
hereto and incorporated herein as Attachment "A" and to authorize the City Manger to execute
the same.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, THAT:
Section 1. The City Council hereby approves the terms and conditions of the Agreement
as to Lease and Sublease Agreement Assignment, by the City of The Colony, Texas in favor of
Jefferson Bank, providing for the advance of a loan to Marine Quest-Hidden Cove, L.P., which is
attached hereto and incorporated herein as Attachment "A."
Section 2. The City Manager is hereby authorized to execute all appropriate documents
to enter into said Agreement as provided for herein.
Section 3. This Resolution shall become effective immediately from and after its
passage, as the law and charter in such cases provides.
Page 1
65929
PASSED, APPROVED and EFFECTIVE this 17th day of March 2008.
C ristie Wilson, City Secretary,
City of The Colony, Texas
Ro ert E. Hager,
City of The Colo
fY'\
Page 2
J n Dillard, Mayor
Ity of The Colony, Texas
c;:;~ A r
UL"l \ L..
65929
AGREEMENT AS TO LEASE AND SUBLEASE AGREEMENT ASSIGNMENT
MARINE QUEST - HIDDEN COVE, L.P.
LEASE NO. DACW63-1-00-0816
LAKE LEWISVILLE, TEXAS
THIS AGREEMENT, made this --3- day of IJ p R. ,\ L- ,2008, by and between
THE UNITED STATES OF AMERICA, UNITED STATES ARMY CORPS OF ENGINEERS,
hereinafter referred to as "Lessor"; THE CITY OF THE COLONY, TEXAS, hereinafter referred to
as "Lessee" or "City"; MARINE QUEST - HIDDEN COVE, L.P., hereinafter referred to as
"Subtenant"; and JEFFERSON BANK, hereinafter referred to as "Lender."
WITNESSETH THAT
WHEREAS, City is the holder of the leasehold under Lease No. DACW63-l-00-08l6, dated
12 May 2000, granted by authority of the Secretary ofthe Army for a term of fifty years, beginning
1 April 2000, and cover:ing approximately 720 acres of land and water in Denton County, State of
Texas, known as Hidden Cove Park, hereinafter referred to as the "Lease Premises," more
particularly described in said lease; and,
WHEREAS, Subtenant is the ho lder of a Ground Lease, Real Property, and Personal Property
Lease Agreement (the "Sublease Agreement") dated 3January 2005, granted by authority of the
Lessee, for an initial term of twenty five (25) years, beginning 10 January 2005 and ending 10
January 2030, covering approximately 428 acres ofland and water in Denton County, State of Texas,
being a portion of Hidden Cove Park, hereinafter referred to as the "Premises", more particularly
described or determined pursuant to the Sublease Agreement; and,
WHEREAS, Subtenant will develop a marina operation on the Premises and,
WHEREAS, Lender has agreed at the request of Subtenant to finance the development by
the Subtenant, provided that Lender is adequately secured; and
WHEREAS, Condition 10 of Lease No. DACW63-l-00-0816 and Section 10.01 of the
Sublease Agreement provide that Lessee or Subtenant shall neither transfer, assign, nor grant any
interest or lien in said Sublease Agreement without permission, in writing, from the District Engineer
of Lessor and from City; and
NOW THEREFORE, in consideration of the benefits inuring to all parties, Lessor, Lessee,
Lender, and Subtenant agree as follows:
1. Notwithstanding any term or condition of the Sublease Agreement, including,
without limitation, 910.01 thereof, Lessor and City hereby consent to the assignment,
220954.3 [Februaty 22,2008] Agreement as to Lease and Sublease Agreement Assignment
Page I of 7
transfer, and conveyance of said Sublease Agreement by Subtenant to Lender for
collateral purposes, with right of reassignment by Lender to a purchaser at Lender's
foreclosure sale or by Lender to a purchaser if Lender acquires the Sublease
Agreement through foreclosure, but subject to the consent of Lessor and written
consent of Ci ty, which consent shall not be unreasonably upheld or delayed; provided
however, that the assignment following foreclosure shall become effective when, but
only when, Lender provides written notification to Lessor and City that Lender or
another purchaser at foreclosure has come into lawful ownership and possession of
the rights of Subtenant under the Sublease Agreement, pursuant to the terms of the
specified loan agreement( s) and security agreements between Lender and Subtenant,
and Lessor and City have fumished to Lender their separate acknowledgments in a
form satisfactory to Lessor and City of its receipt of Lender's written notification.
If Lender or another purchaser at foreclosure has obtained such possession through
judicial proceedings, the notice to Lessor and City required by this provision shall be
accompanied by a certified copy of the order of the Court in such proceedings.
After Lender has foreclosed its interest, if Lender is the purchaser at foreclosure,
Lender may reassign the Sublease Agreement, subject to its terms, in Lender's efforts
to satisfy and make Lender whole as a result of Subtenant's default. Approvalofthe
assignment shall not become effective until approved in writing by the District
Engineer of the Corps of Engineers and City as provided in the Lease and Sublease
Agreement, with such approval not being unreasonably withheld or delayed.
2. Lessor hereby represents that Lease No. DACW63-1-00-0816 is in full force and
effect as of this date, and that neither or none of the parties to said lease is known to
be in default. Lessor also warrants and represents to Lender that there has been no
consent to any assignment of or pledge of the Lease by Lessee or Subtenant.
3. Lessor and City agree that if Subtenant shall fail or refuse to perform any of the
covenants or agreements contained in Lessor's Lease No. DACW63-l-00-0816 or
the Sublease Agreement sufficient to constitute default on the part of Subtenant,
Lessor or City will provide the same notice of such default to Lender as to the
Subtenant under the terms of said Lease and Sublease Agreement, and Lender shall
have the right and shall be given a reasonable opportunity to cure such default if
Lessee or Subtenant shall fail to cure the default.
In the event of a default by the Lessee which would affect this agreement, Subtenant
or Lender shall have the right to cure such default as to the area covered by the Lease
and upon such cure, shall be entitled to continue the Lease in force as to the
Premises.
4. Lessor and City agree not to modify Lessor's Lease No. DACW63-1-00-0816 and
Subtenant's Sublease Agreement respectively without prior notification to Lender.
220954.3 [Februaty 22,2008] Agreement as to Lease and Sublease Agreement Assignment
Page 2 of 7
5. Subtenant shall, promptly upon final execution, provide to Lessor and City a copy of
the security agreement(s) and loan agreement(s) pertaining to Subtenant's
indebtedness to Lender, including all renewals, extensions, and modifications
thereof. This agreement and consent shall be voidable if Lender makes a transfer or
assignment of such loan and/or security agreement(s) without the written consent of
Lessor and City. Lessor and Lessee agree that they shall not unreasonably withhold
the consent to a transfer or assignment of the loan and/or the security agreement(s).
Lender shall provide to lessor and Lessee notification of any extensions of times of
payments or any changes to terms and conditions of Subtenant's indebtedness to
Lender. Lender shall provide written notice to Lessor and City when the
indebtedness of Subtenant to Lender covered by this agreement has been paid in full.
At such time this agreement shall become null and void.
6. All Notices shall be addressed as follows:
District Engineer
Fort Worth District
Corps of Engineers
Attn: CESWF-RE-M
P.O. Box 17300
Fort Worth, Texas 76102-0300
The City of The Colony, Texas
Dale Cheatham
6800 Main Street
The Colony, TX 75056
Marine Quest - Hidden Cove, L.P.
Marcel Bosworth
1207 S. White Chapel
Southlake, TX 76092
Jefferson Bank
Notice shall be deemed to have been duly given if and when enclosed in a properly
sealed envelope or wrapper, addressed as aforesaid, and deposited postage prepaid,
certified mail, return receipt requested, in a post office or branch post office regularly
maintained by the United States Postal Service.
7. Except as specifically provided for, any reference herein to "Secretary of the Army",
"District Engineer", or "Lessor", shall include their duly authorized representatives.
220954.3 [Februaty 22, 2008] Agreement as to Lease and Sublease Agreement Assignment
Page 3 of 7
Any reference to "City", "Lessee", "Subtenant" or "Lender" shall include their duly
authorized representative.
8. The parties agree to work together to resolve any dispute under this Agreement.
However, should a dispute between the City and Subtenant or Lender not be
resolved, it shall be resolved under the provisions of TEXAS GOVERNMENT
CODE, CHAPTER 2260. Further, nothing herein is intended and the parties agree
that no provision of this Agreement will waive any immunity the state may enjoy
under the law.
IT IS FURTHER AGREED that the effective date of this Agreement As To Lease and
Sublease Agreement Assignment shall be the ~ day of /J.pl"l'L , 2008.
IN WITNESS WHEREOF, I have hereunto set my hand by authority of the Secretary of the
Army this ~ day of AD,..,' L- , 2008.
I
SECRETARY OF THE ARMY,
on behalf of the United States of America
By:
R-IJ P.
ROCKY D. LEE
Acting Chief, Real Estate Division
~...
,
Name:
Title:
220954.3 [Februaty 22,2008] Agreement as to Lease and Sublease Agreement Assignment
Page 4 of 7
. .
2008.
2008.
THIS AGREEMENT is also executed by the Lessee this 17th day of
March
THE CITY OF THE COLONY, TEXAS
By:
g~~
Name:
Dale Cheatham
Title:
City Manager
THIS AGREEMENT IS also executed by the Subtenant on this I i day of
1l1t1. ,.~-1,'\ , 2008.
MARINE QUEST - HIDDEN COVE, L.P.
~// ~ .
By //(~/> ---V
11 ').
Name: /1/"" fL.;;;' I 6,;?-5~'C;'C'1--~
Title: C::Zo
THIS AGREEMENT is also executed by the Lender this ~ day of (V\S\-~ '"
JEFFERSON BANK
By:
~~~
Name:
Title:
s,,~
220954.3 [Februaty 22, 2008] Agreement as to Lease and Sublease Agreement Assignment
Page 5 of 7
STATE OF TEXAS
COUNTY OF It; r y- el n I-
ACKNOWLEDGMENT
This instrument was acknowledged before me this the ~ day of ----.A.p r: \ ,
2008, by ROCKY b. / F:€; for the Secretary of the Army, on behalf of the
United States of America.
My Commission Expires:
L~/ ~()--~
C1fotary Public, State of exa
Lo t/e-rT€ t. OrOK..-iO
Notary's Printed Name
STATE OF TEXAS
COUNTYOF~
ACKNOWLEDGMENT
Th~ MknowlJ7ged before me this thr:I2f/]Jay ~ar-~,
2004, by ( a.:n arYl of THE CITY OF THE COLONY, TEXAS, for
THE CITY OF THE COLONY, TEXAS..
~""~"""""""""""~
~ !tI''''';'Y '1/"+,- s
, $' ~"'"\"" 1I#~ ~
~ !-f'l'.,__I:::-fC'\ ANGelA KELLY i
i ~;.. \" f ~ ~ I'lotary Public, Statui 1Uas i
, ~"J "''''\\' "" ~ ,
i ,fOf '''~~' Illy Commission hpires 09.08.1 0 ~
l",~:~""""""",,___,~~
(ffi
My Commission Expires:
qlf/ZD/O
rinted Name
220954.3 [Februaty 22,2008] Agreement as to Lease and Sublease Agreement Assignment
Page 6 of 7
STATE OF TEXAS
COUNTY OF r /fML/I.... rf
ACKNOWLEDGMENT
This instrument was ac owl edged before me this the X~ day of m~c (, t.
2008, by ~NL Ce' .."3 ./,/,-t. of MARINE QUEST - HIDDEN COVE, L.P., on
behalf of MARINE QUEST - HIDDEN COVE, L.P.
~~
My Commission Expires: Notary Public, State of Texas
cJ/ /0 '!?/'lo/I
r r
~ ~ r Ih'~e.y
Notary's Printed Name
~~..f'~1:.
~'~".('l
~\~....:,
~n;;#~
Kary Toomer
My Commission Expires
0110312011
STATE OF TEXAS
COUNTY OF T ~LAJv r
ACKNOWLEDGMENT
This instrument was ~cknowledged before me this the L day of $$tc 4
2004, by {/~} / ~ ~ p/r of JEFFERSON BANK, on behalf of JEFFERSON
BANK. /
My Commission Expires:
~-~
1f6tary Public, State of Texas
0/ JrJ7> /2011
/ I
.4tv r~~ e..--
Notary's Printed Name
~'!..f'(J","
0.*. ...~
~i "('l
..
"'\ ......~
lI'~OF~
Kary Toomer
My Commission Expires
01/03/2011
220954.3 [Februaty 22.2008] Agreement as to Lease and Sublease Agreement Assignment
Page70f7