Loading...
HomeMy WebLinkAboutResolution No. 2010-046CITY OF THE COLONY, TEXAS RESOLUTION NO. 2010- 4(a A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AND DELIVER A NOTICE OF TERMINATION LETTER TO JOHN W. McDONALD TERMINATING THE LEASE AGREEMENT CONCERNING CERTAIN LAND LOCATED WITHIN THE CITY AS DESCRIBED IN THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on February 7, 1994, the City of The Colony, Texas ("City"), entered into that certain Agreement (the "Agreement") with Club Fore Sports Center, a Texas general partnership, concerning the use and management of certain land located within the City as described in the Agreement, and a copy of said Agreement is attached hereto as Exhibit A; and WHEREAS, Sondancers, L.L.C., (d/b/a Club Fore Corral and/or Club Fore Sports Center) ("Sondancers") entered into that certain Assignment of Agreement with Texas Legends Golf Ranch, L.L.C, dated January 26, 1998, and consented to by the City on February 2, 1998 ("First Assignment"), assigning all of Sondancers' interests in the Agreement to Texas Legends Golf Ranch, L.L.C.; and WHEREAS, on February 15, 2002, Texas Legends Golf Ranch, L.L.C. ("Texas Legends") entered into that certain Assignment of Agreement with John W. McDonald assigning all of Texas Legends" interests in the Agreement to John W. McDonald ("Second Assignment"), and a copy of said Second Assignment is attached hereto as Exhibit B; and WHEREAS, Section F.V. of the Agreement provides that the Agreement "shall be effective upon execution by both parties and shall expire in seven (7) years from the effective date and shall be automatically renewed in three (3) successive ten (10) year increments unless written notice to terminate this contract is given to the other party not more than nine (9) months or less than six (6) months prior to the expiration of the term"; and WHEREAS, the initial seven (7) year term of the Agreement expired on February 7, 2001, and the Agreement was automatically renewed for the first ten (10) year term, pursuant to Section F.V. of the Agreement; and WHEREAS, the first ten (10) year term of the Agreement will expire on February 7, 2011, and the time to provide notice of termination pursuant to Section F.V. of the Agreement is between May 7, 2010, and August 7, 2010; and WHEREAS, pursuant to Section F.V. of the Agreement, the City Council of the City of The Colony, Texas ("City Council") desires to terminate the Agreement, and to authorize the Mayor to provide notice of termination to the Contractor, who is Mr. John W. McDonald by virtue of the Second Assignment, so that the Agreement will terminate at the conclusion of the Agreement's current term on February 7, 2011; and WHEREAS, the City Council has reviewed the Agreement, all related documents, and the draft notice of termination letter attached to this Resolution as Exhibit C, and finds that it is in the best interests of the City and of the citizens of the City of The Colony to authorize the Mayor to execute notice of termination and provide same to Mr. John W. McDonald, in order to terminate the Agreement at the end of its current term, on February 7, 2011, for the health, safety and welfare of the citizens of the City of The Colony. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: Section 1. The foregoing recitals are hereby found to be true and correct legislative findings of the City of The Colony, Texas, and are fully incorporated into the body of this Resolution as if repeated verbatim. Section 2. The City Council hereby expressly authorizes the Mayor to execute and deliver to Mr. John W. McDonald notice of termination of the Agreement, notifying Mr. John W. McDonald pursuant to Section F.V. of the Agreement of the City's termination of the Agreement effective February 7, 2011. Section 3. This Resolution shall become effective immediately from and after its passage, and it is accordingly so resolved. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THIS THE 18t" DAY OF MAY, 2010. Page 2 Exhibit A Agreement Page 3 ORIGINAL AGREEMENT This agreement, hereinafter known as the "Contract" is entered into by the City of The Colony, Texas, hereinafter referred to as the "City", and Club Fore Sports Center, hereinafter known as the "Contractor". The intent of this contract is to outline the procedures and define the conditions whereby Contractor will utilize land owned by the City for the installation of a privately owned Golf Driving Range and Recreation Facility, hereinafter known as the "Center". A. ORGANIZATION Contractor is structured as a partnership and will be the sole operator of the Center. The City shall be notified thirty (30) days in advance, in writing, prior to a change of fifty percent (50%) or more of the ownership of the Contractor and/or a change in the structure of the entity itself. B. TRANSFERABILITY OF CONTRACT Other than by operation of law, no assignment of the contract or any right accruing under this contract without the express written consent of the City, which consent shall not be unreasonably withheld. In the event of any approved assignment, the assignee shall assume the responsibilities and liabilities under this contract thereby relieving the Contractor of such responsibilities and liabilities. C. INDEMNITY/INSURANCE I. The Contractor will defend, indemnify, and hold harmless the city from all damages, costs, expenses, and attorney fees for all claims and suits including claims and suits for death, personal injury, and property damage, arising out of, or connected with, the work under this contract, WHETHER OR NOT CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS AGENTS, OR EMPLOYEES. II. INSURANCE REQUIREMENTS: a. Contractor shall provide proof of comprehensive, general liability insurance in the amount of five hundred thousand dollars ($500,000.00) minimum. Such insurance shall be primary and without right of contribution from any other insurance that may be carried by the City with respect to the operations of the contractor. b. Insurance shall not be cancelled for any reason whatsoever, or have any substantial change made without at least thirty (30) days written notice to Page 4 the City. Such cancellation or change shall not be effective to the City until thirty (30) days after receipt of notice of such written notice. C. Insurance coverage shall include the City, its authorities, boards, bureaus, commissions, divisions, departments, officers, councilmembers, individual members and employees as additional insured. CL The insurance carrier shall agree to provide the following waivers: 1. Any right of counterclaim or other deduction, whether by attachment or otherwise, that such insurer may have against the City, and 2. Any rights of subornation against the City. D. IMPROVEMENTS TO PROPERTY I. Contractor will provide a site plan for approval by the City and must comply with all City codes, ordinances, and requirements except where noted in this contract and/or the related drawing. The contractor will also provide a "Planned Development Schedule" for the first term of this contract herein attached as Exhibit "A". Club Fore reserves the right to alter, amend or delete any item listed on such exhibit with prior written approval by the City. H. The site plan, any future development and/or all related drawings shall call - out all specifications and exceptions for development and shall be approved by the authorized agents of the City prior to construction by the Contractor. all such plans and/or drawings shall become an internal part of this Contract and attached as Exhibit "B" - "Site Plan". III. Due to the term length of this contract, the access of the public and the substantial investment being made by the contractor, the following provisions shall be made: The Contractor shall in addition to Exhibit "A": a. Provide an adequate asphalt paved entry road form FM 423 to the property line (556 ft.) per specifications approved by the City on Exhibit "B" - "Site Plan". b. Provide an adequate asphalt paved entry road form the property line to the parldng lot (300 ft.) per specifications approved by the City on Exhibit "B" - "Site Plan". Page 5 C. Provide an adequate asphalt paved and lighted parking lot (+/- 12,000 sq. ft.) per specifications approved by the City on Exhibit 'B" - "Site Plan Parking Lot". d. Provide an adequate asphalt paved road from the parking lot to the City's life station (+/- 250 ft.) per specifications approved by the City on Exhibit 'B" - "Site Plan Parking Lot". e. Provide a permanent building (+/- 1,100 sq. ft.) with public facilities per specifications approved by the City on Exhibit 'B" - "Site Plan Building". f. Provide maintenance and upkeep for the leasehold improvements listed in Section D, Paragraph III, Items b, c, d and a of this contract. g. Relinquish all leasehold improvements listed in Section D, Paragraph III of this contract to the City, should the contractor terminate this contract for any reason other than those allowed herein prior to the end of the first term of this contract. The City shall: a. Provide maintenance and upkeep for the leasehold improvement listed in Section D, Paragraph III, Item a of this contract. b. Provide a Pro -rata agreement for the entry road and water and sewer improvements upon request by contractor. IV. The Contractor shall be responsible for the maintenance and expenses of the following: a. all monthly utility expenses b. all landscaping on premises and outside the perimeters, including mowing, trash removal, etc. C. all landscaping and driving range equipment d. maintenance and equipment yard e. entry sign and island landscaping L trash removal on a regular basis equal to that of the lift station dumpster. 3 Page 6 V. The City shall be responsible for the maintenance and expenses of the following: a. area inside the lift station perimeter fence b. upkeep of lift station fence itself C. trash removal within lift station on regular basis d. trash removal along entry road to property e. any other City installed property not specified herein such as sanitary sewer line, 1 1/2" water line, etc. VI. Any violation of Section D, Paragraph IV could be GROUNDS FOR TERMINATION of this contract, only upon thirty (30) days written notice by the City to the contractor and the expiration of thirty (30) days to cure and correct the problem. E. SCHEDULE OF OPERATION AND ACTIVITIES I. General Operation will be, but are not limited to: & rental of golf balls for practice b. golf instruction, both private and group C. sale of equipment, supplies and apparel d. general recreation activities including batting cages and arcade. 11. Hours of operation will be as follows: a. 7:00 am until 10:00 pm, Sunday through Thursday b. 7:00 am until 12:00 am, Friday and Saturday C. closing times may be earlier on holidays d. closed Christmas day and any day management so chooses e. Club Fore Sports Center reserves the right to reduce the hours of operation due to unprofitable activity. 4 Page 7 III. Snack Bar Requirements: a. all City and State health codes must be met b. a list of prepackaged foods and drinks will be provided to the City C. alcoholic beverages will be limited to beer and wine under the "Special Use Permit" granted by the City for the Center. I. The project will be fully operational by April 15, 1994. If contractor is unable to complete construction by this date, an additional ninety (90) days will be granted, at the end of which, if construction is not completed, this contract becomes null and void. II. Contractor agrees as follows: a. to pay the City rent of three percent (3%) of gross revenues for each month of operation. b. provide the Finance Department of the City with payment and a sales report by the 7th business day of the month. III. City agrees as follows: a. construction may commence on February 8, 1994 b. first payment will be due on July 7, 1994 C. to renegotiate the percentage paid by the contractor at the end of each term of this contract. The new lease payment shall not be more than an annual increase of two percent (2%) with a term ceiling of six percent (6%). IV. The City and contractor agree to conduct periodic audits and reviews of the financial records of the contractor with at least seven (7) days prior written notification. V. This contract shall be effective upon execution by both parties and shall expire in seven (7) years from the effective date and shall be automatically renewed in three (3) successive ten (10) year increments unless written notice to terminate this contract is given to the other party not more than nine (9) months or less than six (6) months prior to the expiration of the term. Id Page 8 AGREED to on this the �Z//— day of Buz 1994. THE CITY OF THE COLONY: 5151 North Colony Boulevard The Colony, Texas 75056 Patti A. Hicks C'ty Manager William W. Manning' Mayor �J CLUB FORE SPORTS CENTER P. O. Box 560761 The Colony, Texas 75056-0761 6,, s- a'33.3 By: , R. Gregory Vine Director of Operations By: / - rt. o es Head Golf Pr essional By: Delbert L. Jones Office Manager ATTEST: "L,� m"" Sandie Chance Deputy City Secretary a SIX MONTH NOTICE DEADLINE: day of ['si�T� It -ft/ .4994- ,E CONTRACT CANCELLATION DATE: % day of t �? A 2_ 'f9yGD'#I Page 9 b o � 14D00 �. ro 'L7 �t p p S O S O O O ti S S N ro pdp O w ti CD c w ro C� t.A O, O VI O N W L', t.) LA to O SS c S BE SSS 8o8 o8 S 0 C) o co 000 000 000 0 SS S SS SSS SSS 8S8 g w � r t �- nn� b td z b , '1 n, n, .-C'' � r - ..y F A w o G. � R:M �. p ws y - rb to w. O „ o. p � •b ro as O �' � H C] G ro JJ on " y� rn ro �0 M do (D ro ro � f ro d 0 ??, O N pN OO O rn � G� 1r C C7� C�d CC� Cdd C7 O N y y N y y Pr w Uri K, ro rn �. ro 'L7 �t p p S O S O O O ti S S N ro pdp O w C� t.A O, O VI O N W L', t.) LA to O SS c S BE SSS 8o8 o8 S 0 C) o co 000 000 000 0 SS S SS SSS SSS 8S8 g Page 10 51 rn �. OOp OO tpp 'L7 �t p p S O S O O O ti Page 10 51 O O O S S oO O pdp O Page 10 51 Exhibit B Assignment of Agreement Page 11 Cur -f STATE OF TEXAS ASSIGNEMNT OF AGREEMENT COUNTY OF DENTON § THIS .ASSIGNMENT OF AGREEMENT ("Assignment") is made effective as of kry ,. f+. 2002 by and between Texas Legends Golf Ranch, L.L.C. ("Assignor") and John W. McDonald ("Assignee"). WHEREAS, on or about February 7, 1994, the City of The Colony, Texas ("City") entered into an Agreement (the "Agreement") with Club Fore Sports Center, a Texas general partnership, a true and correct copy of which is attached hereto as Exhibit "D" and incorporated herein, regarding the use and management of certain land located within. the City as described in the Agreement; and WHEREAS, the Agreement was amended on July 11, 1994, a true and correct copy of which is attached hereto as Exhibit "C" and incorporated herein; and WHEREAS, the Agreement was further amended by that Addendum to the Agreement Between the City of The Colony and Club Fore Sports Center dated April 1, 1996, a true and correct copy of which is attached hereto as Exhibit "B" and incorporated herein; and WHEREAS, on or about January 26, 1998, the City of The Colony consented to an Assignment of Agreement (the "Assignment") between Sondancers; L.L.C. (d/b/a Club Fore Conal and or Club Fore Sports Center) (Assignor') and Texas Legends Golf Ranch, L.L.C. ("Assignee") a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein: and WHEREAS, Assignor is the lawful successor in interest under the Agreement, and has all of the rights, duties, responsibilities, liabilities and obligations as "Contractor" under the Agreement; and WHEREAS, the Agreement provides that no assignment of the Agreement may occur without the express written consent of the City, which consent may not be unreasonably withheld; and WHEREAS, Assignor desires to assign and convey all of its rights, duties, responsibilities, liabilities and obligation sunder the agreement to Assignee, and Assignee desires to received and accept the same. NOW, THEREFORE, for and in consideration of the payment of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assigned do hereby agree as follows: 1. The above and foregoing recitals are true and correct and are incorporated herein and made a part hereof for all purposes. Page 12 2. Assigynor does hereby assign and convey all of its rights. duties, responsibilities, liabilities and obligat ions i:ader the Agreement to Assignee and Assignee assumes all of Assignor's rights, duties responsibilities, liabilities and obligations under the Agreement. 3. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Assignment on behalf of the parties hereto, and each party hereby ce�ifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are nogv in full force and effect. EXECUTED effective this day of Fe ','- _ 2002. ASSIGNOR: ASSIGNEE: Texas Legends Golf, L.L.C. John W. McDonald Authorized Manager 14horizcd Manager CONSENT TO ASSIGNMENT The City of The Colony, Texas does hereby consent to the above and foegoing Assigmrnent of Agreement, subject to the following: 1. John W. McDonald shall comply with all of the terms and conditions in the Agreement. DATED this _.�`L_ day of L'( 2002. CITY OF THE COLONY, TEXAS (3-_c -_ Dale jq_ Cheatham, City Manager Page 13 Exhibit C Termination Letter Page 14 THE rrCOLONY Cite by the Lake May 19, 2010 Mr. John W. McDonald, M.Ed. Texas Legends Golf Center 6001 Main Street The Colony, Texas 75056 Re: Notice of Termination of Lease Agreement Dear Mr. McDonald: Via Certified Mail, Return Receipt Requested This letter is sent to provide you written notice of termination of the Agreement entered into between the City and Club Fore Sports Center, dated February 7, 1994 ("Agreement"), regarding the lease of City property that is the subject of said Agreement and upon which Texas Legends Golf Center operates. This notice is provided pursuant to Paragraph F.V. of said Agreement. That paragraph states: V. This contract shall be effective upon execution by both parties and shall expire in seven (7) years from the effective date and shall be automatically renewed in three (3) successive ten (10) year increments unless written notice to terminate this contract is given to the other parry not more than nine (9) months or less than six (6) months prior to the expiration of the term. Agreement, p. 5, ¶ F.V. The initial seven (7) year lease term was from February 7, 1994, to February 7, 2001. The lease did not expire and was automatically renewed at that time, so that the next lease term is for ten (10) years, from February 7, 2001, to February 7, 2011. That lease term is the current lease term. Since this termination notice is provided to you by the City not more than nine (9) months or less than six (6) months prior to the expiration of the current lease term, this lease will terminate on February 7, 2011, pursuant to paragraph F.V. Pursuant to the Assignment of Agreement, dated February 15, 2002 ("Assignment"), you were assigned and conveyed all of the rights, duties, responsibilities, liabilities and obligations under the Agreement. As a result of the Assignment, you also assumed all of the rights, duties, responsibilities, liabilities and obligations under the Agreement. This notice, therefore, is applicable to you and to the Agreement, as specified above, and effectuates termination of this Agreement. Mr. John W. McDonald, M.Ed. May 19, 2010 Page 2 By copy of this letter, a copy of this notice is being provided to your counsel in the pending lawsuit you have brought against the City, styled John W. McDonald, et al. v. City of The Colony, Texas, et al., Cause No. 2007-30734-211, pending in the 211th District Court of Denton County, Texas, as well as to counsel for the City and all other counsel of record in that lawsuit. Thank you for your attention to these matters. Yours Very Truly, 6� e ayoroef,McCourry r City of The Colony, Texa cc: Members of the City Council of the City of The Colony, Texas Troy C. Powell, City Manager Jeffrey L. Moore, Esq., City Attorney Edwin P. Voss, Jr., Esq., Assistant City Attorney Ray L. Vela, Esq., Counsel for John W. McDonald Daniel A. Knott, Esq., Counsel for Legacy Contracting, L.P. d/b/a Control Specialist Services, L.P. Christopher M. Losey, Esq., Counsel for American Civil Constructors, Inc.