HomeMy WebLinkAboutResolution No. 2012-009
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012- c .
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AMENDING THE ESTOPPEL
CERTIFICATE AND AGREEMENT DATE DECEMBER 7, 2011
BY AND BETWEEN BLUE SKY SPORTS CENTER AND THE
COMMUNITY CERTIFIED DEVELOPMENT CORPORATION;
AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AMENDED AGREEMENT; PROVIDING AN EFFECTIVE DATE
WHEREAS, on December 6, 2011 the City Council adopted Resolution 2011-
087 authorizing the city manager to execute an Estoppel Certificate and Agreement with
Blue Sky Sports Center and Community Certified Development Corporation to facilitate
financial restructuring for the facility; and,
WHEREAS, following approval of the Agreement was determined that the thirty
(30) day cure period noted in Section 4 of the Agreement should be extended to be a
sixty (60) day cure period; and,
WHEREAS, the City Council has determined it to be in the City's best interest to
authorize the execution of an amended Agreement that allows a sixty (60) day cure
period.
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
authorizes the city manager to execute an amended Estoppel Certificate and Agreement
with Blue Sky Sports Center and Community Certified Development Corporation that
includes a sixty (60) day cure period.
Section 2. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 7th day of February, 2012.
Jo McCour , Mayor
-le
ity of The olony, Texas
ATTE~T:
r
A j
Christie Wilson, TRMC, City Secretary
APPROVED AS TO FORM:
Jeff Moore, l ity Attorney
ESTOPPEL CERTIFICATE AND AGREEMENT
THIS ESTOPPEL CERTIFICATE AND AGREEMENT (the "Agreement") is entered
into effective as of December 7, 2011, by and between THE CITY OF THE COLONY, TEXAS,
a Texas municipal corporation (the "Sublessor"), BLUE SKY SPORTS CENTER, LP, a Texas
limited partnership (the "Sublessee"), and COMMUNITY CERTIFIED DEVELOPMENT
CORPORATION (the "Lender").
WITNESSETH:
WHEREAS, SECRETARY OF THE ARMY, on behalf of the United States of America
(the "Landlord") and the Sublessor executed that certain lease dated May 12, 2000 (the "Lease"),
covering the lease of certain real property and improvements, as is more particularly described on
Exhibit "A" attached hereto and incorporated herein (the "Leased Premises");
WHEREAS, pursuant to the terms of a Ground Lease Agreement dated January 3, 2000 (the
"Sublease"), Sublessor has subleased the Leased Premises to the Sublessee;
WHEREAS, the Lender has extended or will extend to the Sublessee an SBA 504 loan (the
"Loan") in the original principal amount of $867,000.00;
WHEREAS, the Sublessee has executed and delivered or will execute and deliver to the
Lender that certain Deed of Trust, Security Agreement and Assignment of Rents (the "Deed of
Trust"), granting the Lender a lien covering the leasehold estate as defined in the Sublease, said
Deed of Trust to be recorded in the Real Property Records of Denton County, Texas;
WHEREAS, the Sublessee has executed and delivered or will execute and deliver to the
Lender that certain Security Agreement (the "Security Agreement"), granting the Lender a lien
covering all equipment and fixtures owned by the Sublessee (the "Personal Property");
WHEREAS, the Personal Property is located within the Leased Premises, and as a
consequence thereof is subject to the Sublease and to certain specific terms and conditions thereof
which may now or hereafter afford Sublessor with certain contractual and/or statutory rights to and
interests in the Personal Property, including certain liens thereon, to secure payment of rents and/or
other sums of money becoming due and payable under the terms of the Sublease (collectively, the
"Landlord Liens"); and
WHEREAS, as a material inducement to the extension of the Loan from the Lender to the
Sublessee, the Lender has required that Sublessor and Sublessee enter into this Agreement.
ESTOPPEL CERTIF1CATE AND AGREENIENT - Page I
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NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual
covenants and agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby acknowledged, is agreed by the
Sublessor, Sublessee and Lender :
1. Sublessorrepresents, warrants and acknowledges as follows: (a) the rights of Lender
under the Deed of Trust and, no other third party (other than the parties to the Lease, Sublease and
Texas First Bank, respectively) has any rights, title or interest in and to the Lease or the Sublease;
(b) a true and correct copy of the Sublease is attached hereto as Exhibit "B" and are incorporated
herein for all purposes; (c) the Lease and Sublease have not been modified and they are in full force
and effect in accordance with their terms; (d) as of the date hereof, neither the Landlord nor the
Sublessor are in default under- the Lease or Sublease, nor to the knowledge of the Sublessor, has
there occurred any event or circumstance which with notice or the passage of time, or both, would
constitute a default under the Lease or Sublease; (e) as of the date hereof, there are no past due lease
payments under the terms of the Sublease; and, (f) Sublessor shall not further modify the Lease or
the Sublease without the Lender's prior written consent.
2. The Sublessor does hereby consent to: (a) the creation of the liens encumbering the
Sublease pursuant to the Deed of Trust, and acknowledges that such liens shall not constitute a
default thereunder, and (b) the creation of the liens encumbering the Personal Property, which are
located on the Leased Premises.
3. Sublessor hereby expressly subordinates all of its Landlord Liens with respect to the
Personal Property to the liens of the Lender securing the payment of the Loan, and agrees as a part
of such subordination that the Personal Property shall be deemed to remain personal property
notwithstanding any affixation thereof to the Leased Premises. In the event Lender shall become
entitled to recover possession of the Personal Property under the terms of the Security Agreement,
Lender may enter the Leased Premises and remove the Personal Property therefrom; provided,
however (a) any damage of or to the Leased Premises or debris left in the Leased Premises which
are caused by the removal of the Personal Property shall be promptly repaired or removed to
Sublessor's satisfaction by Lender at no cost to Sublessor, (b) Lender hereby agrees to indemnify
and hold Sublessor harmless from any and all claims, actions or suits arising from Lender's acts to
recover possession of the Personal Property, and (c) no sale or other disposition of the Personal
Property shall take place in the Leased Premises.
4. In the event of a default under the Sublease, the Sublessor agrees to give the Lender
written notice and opportunity to cure such default within sixty (60) days after the date of such
written notice, and if such default under the Sublease is incapable of being cured within such sixty
(60) day period, the Lender shall have such additional time as is reasonably necessary to cure such
default, provided the Lender diligently pursues curing such default after receipt of written notice
from the Sublessor. In no event shall the Lender be obligated to cure any default under the terms
of the Sublease provided, however, in no event shall Sublessor be obligated to provide Lender a cure
period in excess of the amount of time reasonably necessary for Sublessor to avoid or prevent such
default from causing a default under the Lease. The parties expressly acknowledge and agree that
ESTOPPEL CERTIFICATE AND AGREEMENT - Page 2
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in the event (i) there remains an outstanding balance due on the Note, and (ii) the rental payments
due under the Sublease are being paid to the Sublessor, the Sublessor shall not have any right to
terminate the Sublease, without the prior written consent of the Lender.
5. In the event that Lender acquires Sublessee's rights under the Sublease pursuant to
the terms of the Deed of Trust or otherwise, Lender, with the prior written consent of the Sublessor,
which consent shall not be unreasonably withheld or delayed, shall have the right to assign the
Sublease or lease the Leased Premises to a third party.
6. Any notice required or permitted to be given hereunder shall be given in writing, and
shall be delivered either via hand delivery to the parties at the addresses provided below, or
registered or certified mail, return receipt requested, postage prepaid, addressed to the addressee
thereof at the addresses set forth below. Any such notice shall be deemed received, upon actual
receipt if by hand delivery, or whether actually received or not, upon deposit thereof in an official
depository of the United States Postal Service. Any party hereto shall have the right to change such
party's address for notice hereunder to any other address by delivery of written notice to all other
parties hereto in the manner herein provided.
If to Sublessor: The City of The Colony, Texas
6800 Main Street
The Colony, Texas 75056-0008
Attn:
If to Sublessee: Blue Sky Sports Center, LP
7801 Main Street
The Colony, Texas 75056
If to Lender: Cormnunity Certified Development Corporation
8590 Highway 6 North
Houston, Texas 77095
7. This Agreement shall be construed and interpreted in accordance with the laws of the
State of Texas and the obligations of each of the parties hereto are and shall be performable in
Denton County, Texas. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. No provisions of this Agreement shall
be modified or limited except by written agreement between the parties thereto.
8. The unenforecability of any provision of this Agreement will not affect the
enforceability or validity of any other provision.
ESTOPPI:I. CERTIFICATE AND AGREEMENT - Page 3
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IN WITNESS WHEREOF, the parties have executed this Agreement in one or more
counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument, effective as of the day and year first above written.
SUBLESSOR:
THE CITY OF THE COLONY, TEXAS,
a Texas municipal corporation
By:--
Printe Name: -T-~
Title:
i
SUBLESSEE:
BLUE SKY SPORTS CENTER, LP,
a Texas limited partnership
By: Blue Sky Sports Center Holding, Inc.,
a Texas corporation,
General P rtner
By:
Peter , y esi nt
0
LENDER:
COMMUNITY CERTIFIED
DEVELOPMENT 0 PORATION
By:
William S. Ebersole, President
ESTOPPEL CERTIFICATE AND AGREEMENT - Page 4
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EXHIBIT "A"
Property Description
THE SUB-LEASEHOLD ESTATE CREATED BY UNRECORDED GROUND LEASE AGREEMENT DATED
JANUARY 3, 2000 BY AND BETWEEN THE CITY OF THE COLONY, A TEXAS MUNICIPAL CORPORATION,
SUB-LESSOR AND BLUE SKY SPORTS CENTER, LP, A TEXAS LIMTTED PARTNERSHIP, SUB-LESSEE AS
EVIDENCED BY MEMORANDUM OF LEASE RECORDED IN VOLUME 4796, PAGE 1331, OFFICIAL PUBLIC
RECORDS, DENTON COUNTY, TEXAS AND EXTENDED BY UNRECORDED EXTENSION OF GROUND
LEASE AGREEMENT DATED APRIL 16, 2001 AS EVIDENCED BY MEMORANDUM OF LEASE RECORDED
IN COUNTY CLERK'S FILE N~. 2004-17536, OFFICIAL PUBLIC RECORDS, DENTON COUNTY, TEXAS,
SAID LEASED PROPERTY BEING DESCRIBED AS FOLLOWS:
BEING A TRACT OF LAND SITUATED IN THE DAVID E. LAWHORN SURVEY, ABSTRACT NO. 727, THE
JOHN W. RAGLAND SURVEY, ABSTRACT NO. 1092 AND THE GEORGE EMBERLM SURVEY, ABSTRACT
NO. 394, DENTON COUNTY, TEXAS, AND BEING A PORTION OF UNITED STATES OF AMERICA TRACTS
6-622,6-623 AND 6-610-1, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF GARZA-LITTLE ELM ESTATES, AN ADDITION TO
DENTON COUNTY AS RECORDED IN VOLUME 2, PAGE 80 OF THE PLAT RECORDS OF DENTON
COUNTY, TEXAS, SAME BEING AN ELL CORNER OF SAID TRACT 6-610-1, SAME BEING IN THE WEST
LINE OF F.M. 423 (A VARIABLE WIDTH RIGHT-OF-WAY), SAME BEING IN AN ASPHALT ROAD
(CURRENTLY BEING USED AS F_M_ 423);
THENCE IN A WESTERLY DIRECTION WITH THE SOUTHERN LINE OF SAID TRACT 6-610-1 AND THE
NORTHERLY LINE OF SAID GARZA LITTLE ELM ESTATES THE FOLLOWING:
SOUTH 780 39'18" WEST, A DISTANCE OF 521.44 FEET TO A U.S. CORPS OF ENGINEERS MONUMENT
WITH A BRASS CAP STAMPED 610-1-14;
NORTH 710 28'42" WEST, A DISTANCE OF 274.68 FEET TO A U.S. CORPS OF ENGINEERS MONUMENT
WITH A BRASS CAP STAMPED 610-1-15;
NORTH 860 16' 33" WEST, A DISTANCE OF 960.98 FEET TO A U.S. CORPS OF ENGINEERS MONUMENT
WITH A BRASS CAP STAMPED 610-1-16;
NORTH 680 39'52" WEST, A DISTANCE OIL 1077.64 FEET TO A U.S. CORPS OF ENGINEERS MONUMENT
WITH A BRASS CAP STAMPED 610-1-17;
SOUTH 360 40'22" WEST, A DISTANCE OF 382.82 FEET TO A U_S. CORPS OF ENGINEERS MONUMENT
WITH A BRASS CAP STAMPED 610-1-18, SAME BEING THE MOST NORTHWESTERLY CORNER OF SAID
GARZA-LITTLE ELM ESTATES, SAME BEING THE MOST SOUTHWESTERLY CORNER OF SAID TRACT 6-
610-1 AND BEING IN A EAST LINE OF UNITED STATES OF AMERICA TRACT 6-624;
THENCE NORTH 00c'161521, WEST, WITH THE WEST LINE OF SAID TRACT 6-610-1 AND THE EAST LINE
OF SAID TRACT 6-624, A DISTANCE OF 720.00 FEET TO THE NORTHWEST CORNER OF SAID TRACT 6-
610-1;
THENCE NORTH 89° 13'08" EAST, WITH THE NORTH LINE OF SAID TRACT 6-610-1 AND THE SOUTH
LINE OF SAID TRACT 6-624, A DISTANCE OF 905.68 FEET TO THE SOUTHEAST CORNER OF SAID TRACT
6-624 AND THE SOUTHWEST CORNER OF SAID TRACT 6-623;
THENCE NORTH 00° 16'52" WEST, WITH THE WEST LINE OF SAID 6-623 TRACT AND THE EAST LINE OF
SAID 6-624 TRACT, A DISTANCE OF 500.00 FEET TO THE APPROXIMATE 515 MEAN SEA LEVEL
CONTOUR LINE;
EXHIBIT "A"
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EXHIBIT "A"
Property Description - Cont.
THENCE IN A NORTHERLY DIRECTION ALONG SAID 515 CONTOUR LIVE OVER AND ACROSS SAID
TRACT 6-623 THE FOLLOWING CALLS;
NORTH 14° 11' 08" EAST, A DISTANCE OF 210.96 FEET;
NORTH 33° 23'03" EAST, A DISTANCE OF 22S.10 FEET;
NORTH 500 11'41" EAST, A DISTANCE OF 185.29 FEET;
NORTH 640 36' 04" EAST, A DISTANCE OF 281.43 FEET;
NORTH 440 40'51" EAST, A DISTANCE OF 380.87 FEET;
NORTH 07° 43' 02" EAST, A DISTANCE OF 322.95 FEET;
NORTH 15° 00'27" EAST, A DISTANCE OF 242.55 FEET;
NORTH 07° 17' 10" WEST, A DISTANCE OF 263.00 FEET;
NORTH 00° 16'52" WEST, A DISTANCE OF 127.25 FEET;
THENCE NORTH 02° 16'58" EAST, DEPARTING SAID 515 M.S.L. CONTOUR LINE A DISTANCE OF 1400.00
FEET TO A U. S. CORPS OF ENGINEERS MONUMENT WITH A BRASS CAP STAMPED G623-1 FOUND FOR
THE NORTHWEST CORNER OF SAID 6-622 TRACT AND THE NORTHEAST CORNER OF SAID 6-623
TRACT, SAME BEING IN THE SOUTH LINE OF UNITED STATES OF AMERICA TRACT G-620-5;
THENCE NORTH 89° 39'08" EAST, WITH THE NORTH LINE OF SAID 6-622 TRACT AND THE SOUTH LINE
OF G_620-5 TRACT, PASSING AT A DISTANCE OF 561.81 FEET TO A U.S. CORPS OF ENGINEERS
MONUMENT WITH A BRASS CAP STAMPED G620-4 FOUND FOR THE SOUTHEAST CORNER OF SAID G-
620-5 TRACT, PASSING AT A DISTANCE OF 1013.56 FEET AN IRON ROD FOUND, IN ALL A TOTAL
DISTANCE OF 1073.61 FEET TO A POINT IN THE WEST RIGHT OF WAY LINE OF SAID F.M. NO. 423;
THENCE IN A SOUTHERLY DIRECTION ALONG THE WEST RIGHT OF WAY LINE OF SAID F.M. NO. 423
THE FOLLOWING:
SOUTH 00° 28'35" EAST, A DISTANCE OF 684.05 FEET TO IRON ROD SET;
SOUTH 00° 22' 00" EAST, A DISTANCE OF 2344.22 FEET TO AN IRON ROD SET;
SOUTH 01° 16' 00" EAST, A DISTANCE OF 30035 FEET TO IRON ROD SET;
SOUTH 180 01'24" E WEST, A DISTANCE OF 105.95 FEET TO IRON ROD SET;
SOUTH 01° 16'00" EAST, A DISTANCE OF 1185.93 FEET TO THE POINT OF BEGINNING AND CONTAINING
171.988 ACRES OF LAND, MORE OR LESS.
EXHIBIT "A"
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EXHIBIT "B"
Sublease
EXHIBIT "B" - Page Solo
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FOR
EXHIBITS/ATTACHMENTS:
SEE ORIGINAL DOCUMENT IN CITY SECRETARY'S OFFICE