HomeMy WebLinkAboutResolution No. 2012-085
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-085
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, RESCINDING A CONSTRUCTION MANAGEMENT
AGREEMENT, RESOLUTION NO. 2012-038, AND RESCINDING A
REIMBURSEMENT AGREEMENT, RESOLUTION NO. 2012-041, BOTH
APPROVED ON MAY 15, 2012; PROVIDING A SEVERABILITY
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The Colony Community Development Corporation (hereinafter referred
to as the "CDC") is a Type B economic development corporation, created pursuant to Chapter
505 of the Texas Local Government Code, as amended; and
WHEREAS, on May 10, 2012, the Board of Directors of the CDC approved a
Resolution which approved a Construction Management Agreement by and between the City, the
CDC, and NFM Services, LLC, a Texas limited liability company, concerning reimbursement of
certain Project Costs from Type B Sales Tax Revenues deposited into the Type B
Reimbursement Account; and
WHEREAS, on May 10, 2012, the Board of Directors of the CDC also approved a
Resolution which approved a Reimbursement Agreement by and between the City, the CDC, and
NFM Services, LLC, a Texas limited liability company, concerning reimbursement of NFM
Services, LLC, for advancement of certain funds to pay for Project Costs allocable to the
Warehouse & Distribution Facilities, Regional Headquarters, and Public Improvements; and
WHEREAS, on May 15, 2012, the City Council approved Resolution No. 2012-038
which approved the Construction Management Agreement by and between the City, the CDC,
and NFM Services, LLC, a copy of Resolution No. 2012-038, and said Construction
Management Agreement are attached hereto as Exhibit A; and
WHEREAS, on May 15, 2012, the City Council also approved Resolution No. 2012-041
which approved the Reimbursement Agreement by and between the City, the CDC, and NFM
Services, LLC, a copy of Resolution No. 2012-041, and said Reimbursement Agreement is
attached hereto as Exhibit B; and
WHEREAS, the Construction Management Agreement approved by Resolution No.
2012-038, and the Reimbursement Agreement approved by Resolution No. 2012-041 were
intended to provide for reimbursement of certain costs in the event the CDC did not issue bonds
for the payment of such costs; and
WHEREAS, the CDC intends to issue bonds to finance the Projects contemplated by the
Type B Performance Agreement and the proceeds from such bonds will be available to pay
Project Costs; and
WHEREAS, on November 8, 2012, the Board of Directors of the CDC approved the
rescission of the Construction Management Agreement attached to and approved by Resolution
No. 2012-038; and
WHEREAS, on November 8, 2012, the Board of Directors of the CDC approved the
rescission of the Reimbursement Agreement attached to and approved by Resolution No. 2012-
041; and
WHEREAS, the City Council finds and determines that Resolution No. 2012-038 and
the Construction Management Agreement approved thereunder and attached thereto is no longer
necessary and both should be rescinded; and
WHEREAS, the City Council finds and determines that Resolution No. 2012-041 and
the Reimbursement Agreement approved thereunder and attached thereto is no longer necessary
and both should be rescinded.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. The findings set forth above are incorporated into the body of this Resolution
as if fully set forth herein.
SECTION 2. The City Council does hereby rescind for all purposes Resolution No.
2012-038 and the Construction Management Agreement approved thereunder and attached
thereto, a copy of which is attached hereto as Exhibit A and is incorporated herein for all
purposes.
SECTION 3. The City Council does hereby rescind for all purposes Resolution No.
2012-041 and the Reimbursement Agreement approved thereunder and attached thereto, a copy
of which is attached hereto as Exhibit B and is incorporated herein for all purposes.
SECTION 4. If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or application thereto to any persons or circumstances, is held invalid or unconstitutional
by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining
portions of this Resolution; and the City Council hereby declares it would have passed such
remaining portions of this Resolution despite such invalidity, which remaining portions shall remain
in full force and effect.
SECTION 5. This Resolution shall become effective immediately upon passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THIS THE 20t" day of November, 2012.
J McCourr~l Mayor
ATTEST:
d p /J{/~ 1 / JjJ
Christie Wilson, City Secretary
APPROVED AS TO FORM:
,ho
Jeff Moore, City Attomey
Exhibit A
Construction Management Agreement
Resolution No. 2012-038
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-038
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING A CONSTRUCTION MANAGEMENT
AGREEMENT WITH THE CITY OF THE COLONY, TEXAS, THE
COLONY COMMUNITY DEVELOPMENT CORPORATION, AND NFM
SERVICES, INC, A TEXAS LIMITED LIABILITY COMPANY FOR
PAYMENT OF CERTAIN COSTS WITH TYPE B SALES TAX
REVENUE; PROVIDING A SEVERABILITY CLAUSE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The Colony Community Development Corporation (hereinafter referred
to as the "CDC") is a Type B economic development corporation, created pursuant to Chapter
505 of the Texas Local Government Code, as amended; and
WHEREAS, on November 15, 2011, the City Council (the "City Council") of the City of
The Colony, Texas (the "City") approved a Type B Performance Agreement by and between the
CDC, TXFM, Inc., and LMG Ventures, LLC, effective November 15, 2011, as amended
(hereinafter referred to as the "Type B Performance Agreement"); and
WHEREAS, the Type B Performance Agreement provides that Project Costs (as defined
therein) may be reimbursed or paid from Type B Sales Tax Revenues (as defined therein)
deposited into the Type B Reimbursement Account (as defined therein); and
WHEREAS, the City, CDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that NFM Services will advance fiends to or on behalf of the City
and/or the CDC to pay Project Costs allocable to the Warehouse & Distribution Facilities,
Regional Headquarters, and Public Improvements, as those terms are defined in the Construction
Management Agreement, attached hereto as Exhibit A and incorporated by reference as a part of
this resolution for all purposes (the "Agreement'); and
WHEREAS, the City Council of the City of The Colony, Texas, finds and determines
that the expenditure as specified in the Agreement, a copy of which is attached hereto as Exhibit
A, is in the best interest of the City of the Colony, Texas.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. The findings set forth above are incorporated into the body of this Resolution
as if fully set forth herein.
SECTION 2. The City Council of the City of The Colony, Texas, does hereby approve
the Agreement, a copy of which is attached hereto as Exhibit A, and is incorporated herein for
all purposes.
SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or application thereto to any persons or circumstances, is held invalid or unconstitutional
by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining
portions of this Resolution; and the City Council hereby declares it would have passed such
remaining portions of this Resolution despite such invalidity, which remaining portions shall remain
in full force and effect.
SECTION 4. This Resolution shall become effective immediately upon passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THIS THE 15"' day of MAY, 2012.
~s
oe McCou Mayor
ATTEST-
Christie Wilson, City Secretary
APPROVED AS TO FORM:
Jeff Moore City Attorney
Exhibit A
[Agreement]
City Manager's Fiscal Impact Statement
Construction Management Agreement (No Bonds) Between The Colony
Community Development Corporation, The City of The Colony, and
NFM Services, LLC
May 15, 2012
The fiscal impact of this Construction Management Agreement is described in the Economic Feasibility
Study attached as Exhibit E to the Final Project and Reinvestment Zone Financing Plan for Tax Increment
Reinvestment Zone Number One, City of The Colony, Texas, adopted by Ordinance 2011-129 on
November 15, 2011. Any costs associated with this measure for the first three years and thereafter will
be offset by the future tax revenue generated by the development.
TTy owe II
xi.ty`Manager
1775.010\26787.1
CONSTRUCTION MANAGEMENT AGREEMENT
This Construction Management Agreement (this "Agreement") among NFM
Services, LLC, a Texas limited liability company ("NFM Services"), The Colony
Community Development Corporation, a Texas non-profit corporation (the
"Corporation"), and the City of The Colony, Texas, a Texas home-rule municipality (the
"Cifty'"), is executed to be effective May 15, 2012 (the "Effective Date"). NFM Services,
the Corporation, and the City are sometimes individually referred to as a "Party" and
collectively as the "Parties." Words or phrases used in this Agreement that have their
initial letters capitalized shall have the meanings given to them in this introductory
paragraph, in the RECITALS, and in Section 2 unless the context in which a word or
phrase is used clearly requires a different meaning. All references to "Section" shall
mean a Section of this Agreement.
1. RECITALS. The following RECITALS are true and correct, form the basis upon
which the Parties have entered into this Agreement, establish the intent of the Parties in
entering into this Agreement, are legislative findings, and are part of the covenants,
terms, and conditions of this Agreement.
1.1 WHEREAS, the Type B Performance Agreement provides that capital
assets funded by Financial Incentives have been bargained for to induce taxpayers to
locate and operate their business within the Property and are intended to be grants and
contributions to the capital of such taxpayers;
1.2 WHEREAS, capital assets to be contributed from time to time to taxpayers
as grants and contributions to capital are not in exchange for or as consideration for any
goods or services provided by such taxpayers pursuant to this Agreement or any other
agreement;
1.3 WHEREAS, capital assets to be contributed from time to time to taxpayers
as grants and contributions to capital will become a permanent part of such taxpayer's
working capital structure, will benefit such taxpayer in an amount commensurate with
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the value of the capital assets, and will ordinarily, if not always, be employed in or
contribute to the production of additional income by the taxpayer;
1.4 WHEREAS, capital assets to be contributed from time to time to taxpayers
as grants and contributions to capital are intended to benefit the public at large in the
form of increased jobs, sales tax revenues, and ad valorem tax revenues that promote
economic development within the Property and the City;
1.5 WHEREAS, a Project, as defined herein, includes capital assets to be
contributed from time to time to taxpayers as grants and contributions to capital,
including, but not limited to, the approximately 1,280,000 square feet within the Facility
that will be used for warehouse and distribution purposes (the "Warehouse &
Distribution Facilities") and the approximately 25,000 square feet within the Facility that
will be used for regional headquarters purposes (the "Regional Headquarters");
1.6 WHEREAS, a Project can also include public infrastructure and public
improvements that are required or suitable to promote or develop the Warehouse &
Distribution Facilities and Regional Headquarters (the "Public Improvements");
1.7 WHEREAS, the Type B Performance Agreement provides that Project
Costs may be reimbursed or paid from Type B Sales Tax Revenues deposited into the
Type B Reimbursement Account;
1.8 WHEREAS, the Parties contemplate that NFM Services will advance
funds to or on behalf of the City and/or the Corporation to pay Project Costs allocable to
the Public Improvements (the NFM Advances");
1.9 WHEREAS, the Parties contemplate that NFM Services will manage for or
on behalf of the City and/or the Corporation all activities directly or indirectly related to
the expenditure of Project Costs allocable to the Public Improvements;
1.10 WHEREAS, the Parties contemplate that the City and/or the Corporation
will reimburse NFM Services for the NFM Advances from Type B Sales Tax Revenues
deposited into the Type B Reimbursement Account;
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1.11 WHEREAS, the Parties contemplate that in addition to being reimbursed
for NFM Advances, NFM Services will be paid a "Construction Management Fee" from
Type B Sales Tax Revenue deposited into the Type B Reimbursement Account to
manage for or on behalf of the City and/or the Corporation activities related to the
expenditure of Project Costs allocable to the Public Improvements;
1.12 WHEREAS, the Construction Management Fee will equal $362,000.00
plus $3,000.00 per day beginning on the Effective Date, and continuing until the Facility
and Public Improvements have been completed;
1.13 WHEREAS, the sum of the Construction Management Fee, Additional
Construction Management Fee, and any other similar construction management fee
paid to NFM Services in connection with activities related to managing the expenditure
of Project Costs allocable to the public infrastructure or public improvements required or
suitable to promote or develop the Facility shall not exceed the amount calculated
pursuant to Section 1.12; and
1.14 WHEREAS, the Parties desire to set forth their agreement with respect to
using Type B Sales Tax Revenue deposited into the Type B Reimbursement Account to
pay or reimburse the Corporation's administrative costs, land acquisition costs, Project
Costs paid or incurred by the City, the Construction Management Fee, and NFM
Advances
2. DEFINITIONS.
2.1 "121 LLC" means 121 Acquisition Company, LLC, a Texas limited liability
company.
2.2 "Act" is defined in the Type B Performance Agreement.[]
2.3 "Additional Construction Management Fee" is defined in Section 3.3.
2.4 "Additional NFM Advances" are defined in Section 3.3.
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2.5 "Additional Public Improvements" are defined in Section 3.3 and restricted
to those permitted by the Act.
2.6 "Agreement" is defined in the introductory paragraph.
2.7 "Bond Validation Final Judgment" means the "Final Judgment" entered
January 18, 2012, in Ex Pane City of The Colony filed by the City of The Colony, Texas,
pursuant to Chapter 1205, Texas Government Code, in the 53rd Judicial District Court of
Travis County, Texas, Cause No. 0-1-GV-11-001995.
2.8 "City" is defined in the introductory paragraph.
2.9 "City Council" means the City Council of the City.
2.10 "Construction Management Fee" is defined in Section 1.11.
2.11 "Corporation" is defined in the introductory paragraph.
2.12 "Effective Date" is defined in the introductory paragraph.
2.13 "Facility" is defined in the Project and Finance Plan.
2.14 "Financial Incentives" are defined in the Type B Performance Agreement.
2.15 "Maximum Debt Limit" is defined in the Type B Performance Agreement.
2.16 "Notice" is defined in Section 8.
2.17 "NFM Advances" are defined in Section 1.8.
2.18 "NFM Interest Rate" means a rate equal to NFM's cost of borrowing
money [currently LIBOR (the one-month London Interbank Offer Rate established by
Reuters or any successor thereto) plus 0.75%];
2.19 "NFM Services" is defined in the introductory paragraph.
2.20 "Parties" are defined in the introductory paragraph.
2.21 "Party" is defined in the introductory paragraph.
2.22 "Private Debt" is defined in the Type B Performance Agreement.
2.23 "Project" is defined in the Type B Performance Agreement.
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2.24 "Project and Finance Plan" means the "Final Project and Reinvestment
Zone Financing Plan for Tax Increment Reinvestment Zone Number One, City of The
Colony, Texas," adopted by the Board of Directors of the zone on November 15, 2011,
and approved by the City Council by Ordinance No, 2011-1929 on November 15, 2011,
as amended from time to time.
2.25 "Project Costs" are capital costs of the Project approved by the
Corporation and as further described in the Type B Performance Agreement. Project
Costs are intended to include Soft Costs paid or incurred on or after January 1, 2011,
2.26 "Property" is defined by metes and bounds in the Type B Performance
Agreement to include approximately 433.81 acres of undeveloped land on which the
Facility will be located.
2.27 "Public Improvements" are defined in Section 1.6.
2.28 "Regional Headquarters" is defined in Section 1.5.
2.29 "Soft Costs" mean capital costs that are allocable to the Public
Improvements and are approved by the Corporation including, but not limited to, an
allocable portion of the capital costs related to: (1) site selection (including, but not
limited to, market studies, economic and feasibility analyses, financial modeling,
preliminary engineering, and preliminary design); (2) the acquisition of property
(including, but not limited to, real estate commissions, title insurance premiums, and the
costs to prepare and review title reports, surveys, engineering and geotechnical data,
and environmental assessments); (3) negotiating development regulations;
(4) negotiating economic development incentives with the Corporation and the City;
(5) engineering, architectural, design, and other professional and consulting services;
(6) accounting, audit, appraisal, and related financial services; (7) telecommunications
studies; (8) bond validation litigation filed pursuant to Chapter 1205, Texas Government
Code, including all costs associated with obtaining the Bond Validation Final Judgment;
(9) interest paid on NFM Advances; (10) costs of issuance of Private Debt; (11) permits
and inspections; (12) project, construction, and contract management and consulting;
and (13) legal services in support of all of the foregoing activities.
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2.30 "Type B Performance Agreement" means the "Type B Corporation
Performance Agreement" executed by the Corporation, TXFM, Inc., and LMG Ventures,
LLC effective November 15, 2011, as amended, and approved by the City Council.
2.31 "Type B Reimbursement Account" is defined in the Type B Performance
Agreement.
2.32 "Type B Sales Tax Revenues" are defined in the Type B Performance
Agreement.
2.33 "Undivided Type B Interest" is defined in Section 3.2.2.
2.34 "Warehouse & Distribution Facilities" are defined in Section 1.5.
3. PUBLIC IMPROVEMENTS.
3.1 NFM Services agrees to make the NFM Advances on a schedule
consistent with the Type B Performance Agreement to pay Project Costs allocable to
the Public Improvements.
3.2 The Corporation, with the approval of the City as evidenced by the City
Council's approval of this Agreement, will use Type B Sales Tax Revenues deposited
into the Type B Reimbursement Account:
3.2.1 FIRST, to pay the Corporation's actual administration costs for the
Financial Incentives as required by the Type B Performance Agreement.
3.2.2 SECOND, to acquire, in the name of the Corporation from 121 LLC,
an undivided interest in and to the Property approved by NFM Services and
allocable to the Public Improvements (the "Undivided Type B Interest"). The
purchase price for the Undivided Type B Interest shall be an allocable portion of
(1) the fair market value of the Property based on an appraisal prepared on
behalf of the Corporation by a third-party professional appraiser, or (2) the actual
costs, including Soft Costs, paid or incurred by 121 LLC in acquiring and holding
the Property. The purchase price shall be payable in installments on terms
approved by 121 LLC. The Undivided Type B Interest shall be free of monetary
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liens and monetary encumbrances (other than a deed-of-trust lien in favor of 121
LLC to secure payment of the purchase price), but otherwise subject to all
matters of record at the time of the conveyance, including restrictions
contemplated by the Type B Performance Agreement.
3.2.3 THIRD, to reimburse the City for Project Costs paid or incurred by
the City and allocable to the Public Improvements.
3.2.4 FOURTH, to pay the Construction Management Fee.
3.2.5 FIFTH, to reimburse NFM Services for the NFM Advances and
interest thereon at the NFM Interest Rate from the date of each advance until the
advance is reimbursed in full.
3.2.6 LAST, to reimburse or pay any other Project Costs.
3.3 Additional Public Improvements and Related Matters. NFM Services may,
from time to time, with the consent of the City and the Corporation and consistent with
the Act, advance additional funds to or on behalf of the City and/or the Corporation (the
"Additional NFM Advances") to pay Project Costs allocable to approved Projects that
will be used for infrastructure and public improvements (the "Additional Public
Improvements"). NFM Services may, from time to time, with the consent of the City
and/or the Corporation, manage for or on behalf of the City and/or the Corporation
activities related to the expenditure of Project Costs allocable to the Additional Public
Improvements, in which case NFM Services shall be entitled to an additional
construction management fee (the "Additional Construction Management Fee"). The
City and/or the Corporation will reimburse NFM Services for the Additional NFM
Advances (and interest thereon at the NFM Interest Rate from the date of each advance
until the advance is reimbursed in full) and pay NFM Services the Additional
Construction Management Fee from Type B Sales Tax Revenues deposited into the
Type B Reimbursement Account. Notwithstanding the specificity in this section, the
Parties intend that if there are Additional Public Improvements, Additional NFM
Advances, and an Additional Construction Management Fee, then this Agreement in its
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entirety shall apply thereto in the same manner and to the same extent that it applies to
the Public Improvements, NFM Advances, and the Construction Management Fee.
4. DEFAULT; REMEDIES.
4.1 If a Party fails to perform any material obligation required by this
Agreement, the other Party may give written Notice of such failure to the non-performing
Party, which Notice shall describe in reasonable detail the nature of the failed obligation.
If the nonperforming Party does not cure or remedy the failed obligation within a
reasonable period of time after the Notice is given (taking into consideration the nature
of the failed performance; but in no event more than thirty (30) days after the Notice is
given), then the non-performing Party shall be in "Default" under this Agreement.
4.2 In addition to Defaults described in Section 4.1, NFM Services shall be in
Default under this Agreement if NFM Services becomes delinquent in the payment of
any ad valorem taxes or sales taxes owed to the City and such delinquencies, including
penalties and interest, are not paid in full within sixty (60) days after written Notice of
such delinquencies is given. If NFM Services is in Default under this Section 4.2, the
City may pursue any remedies available at law or in equity (excluding termination of this
Agreement) including, but not limited to, exercise of the right of off-set against any
amounts to which NFM Services is entitled under this Agreement.
4.3 Except as provided in Section 4.2, if NFM Services is in Default under this
Agreement, the sole and exclusive remedy of the City is to enforce specific performance
of this Agreement.
4,4 Pursuant to Section 501.157 of the Texas Local Government Code, if a
Default occurs in the performance of any agreement contained in a proceeding,
mortgage, or instrument, the payment or performance may be enforced by:
(1) mandamus; or (2) the appointment of a receiver in equity with the power
to: (A) charge and collect rents, purchase price payments, and loan payments; and
(B) apply the revenue from the Project in accordance with the resolution, mortgage, or
instrument.
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4.5 Except as provided in Section 4.4, if the Corporation is in Default, the sole
and exclusive remedies of NFM Services are to: (1) enforce specific performance of this
Agreement; and (2) exercise any rights recorded against the Property to secure
performance by the Corporation or the City under this Agreement, including, rights
under any (a) covenants, conditions and restrictions; (b) easements; (c) conveyance
documents that include a determinable interest, reversion or other similar right; or (d) a
deed of trust to secure performance.
4.6 No Default by either Party shall entitle any other Party to terminate this
Agreement.
5. REPRESENTATIONS OF THE CORPORATION.
5.1 The Corporation is duly authorized, created, and existing in good standing
under the laws of the State of Texas and is qualified and authorized to implement and
conduct the functions and actions contemplated by this Agreement.
5.2 The Corporation has the power, authority, and legal right to enter into and
perform its obligations under this Agreement, and the execution, delivery, and
performance of those obligations: (1) has been duly authorized; (2) will not, to the best
of the Corporation's knowledge, violate any applicable judgment, order, law, or
regulation; and (3) does not constitute a default under, or result in the creation of, any
monetary lien, charge, encumbrance, or security interest upon any of the Corporation's
assets under any agreement or instrument to which the Corporation is a party, or by
which the Corporation or its assets may be bound or affected.
5.3 This Agreement has been duly authorized, executed, and delivered by the
Corporation and constitutes a legal, valid, and binding obligation of the Corporation
enforceable in accordance with its terms.
5.4 The execution, delivery, and performance of this Agreement by the
Corporation do not require the consent or approval of any person or entity other than
the City, and City consent and approval have been obtained.
6. REPRESENTATIONS OF NFM Services.
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6.1 NFM Services is a Texas limited liability company duly authorized,
created, and existing in good standing under the laws of the State of Texas.
6.2 NFM Services has the power, authority, and legal right to enter into and
perform its obligations under this Agreement, and the execution, delivery, and
performance of those obligations: (1) have been duly authorized; (2) will not, to the best
knowledge of NFM Services, violate any judgment, order, law, or regulation applicable
to NFM Services; and (3) do not constitute a default under, or result in the creation of,
any monetary lien, charge, encumbrance, or security interest upon any assets of NFM
Services under any agreement or instrument to which NFM Services is a party, or by
which NFM Services or its assets may be bound or affected.
63 This Agreement has been duly authorized, executed, and delivered by
NFM Services and constitutes a legal, valid, and binding obligation of NFM Services
enforceable in accordance with its terms.
6.4 The execution, delivery, and performance of this Agreement by NFM
Services do not require the consent or approval of any person or entity that has not
already been obtained.
7. REPRESENTATIONS OF THE CITY.
7.1 The City is a Texas home-rule municipal corporation duly authorized,
created, and existing under the laws of the State of Texas.
7.2 The City has the power, authority, and legal right to enter into and perform
its obligations under this Agreement, and the execution, delivery, and performance of
those obligations: (1) have been duly authorized; (2) will not, to the best knowledge of
the City, violate any judgment, order, law, or regulation applicable to the City; and (3) do
not constitute a default under, or result in the creation of, any monetary lien, charge,
encumbrance, or security interest upon any assets of the City under any agreement or
instrument to which the City is a party, or by which the City or its assets may be bound
or affected.
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7.3 This Agreement has been duly authorized, executed, and delivered by the
City and constitutes a legal, valid, and binding obligation of the City enforceable in
accordance with its terms.
7.4 The execution, delivery, and performance of this Agreement by the City do
not require the consent orI approval of any person or entity that has not already been
obtained.
8. NOTICES. Any notice or other communication required or permitted by this
Agreement (a "Notice") is effective when in writing (i) and personally delivered by any
nationally recognized delivery service such as Fed Ex or UPS, or (ii) three (3) days after
the Notice is deposited with the U.S. Postal Service, postage prepaid, certified with
return receipt requested, and addressed as follows or, in the case of a change of
address, as provided in a Notice notifying the other Party of such address change.
To NFM Services: NFM Services, LLC
Attn: Doug Hamlin
700 S. 72nd Street
Omaha, NE 68114
With a copy to: Glast, Phillips & Murray
Attn: Thomas Rosen
14801 Quorum Drive, Suite 500
Dallas, TX 75254
Shupe Ventura Lindelow & Olson, PLLC
Attn: Misty Ventura
9406 Biscayne Blvd.
Dallas, TX 75218
To the Corporation:
The Colony Community Development Corporation
Attn: Pam Nelson
6800 Main Street
The Colony, Texas 75056
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With a copy to:
Brown and Hofineister, LLP
Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
To the City:
The City of The Colony, Texas
Attn: Troy Powell, City Manager
6800 Main Street
The Colony, Texas 75056
With a copy to:
Brown and Hofineister, LLP
Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
9. ASSIGNMENT. NFM Services has the right to assign this Agreement, in whole
or in part, and any of its right, title, or interest in or to this Agreement, to the same
extent and in the same manner provided to the "Developer" under the Type B
Performance Agreement. Neither the City nor the Corporation may assign this
Agreement or any of their respective right, title, or interest in or to this Agreement
without the prior written consent of NFM Services.
10. ADDITIONAL PROVISIONS.
10.1 Term. This Agreement shall begin on the Effective Date and continue until
the City and/or the Corporation has reimbursed NFM Services for the NFM Advances
(and, if applicable, the Additional NFM Advances) and has paid to NFM Services the
Construction Management Fee (and, if applicable, the Additional Construction
Management Fee).
10.2 Amendments. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the Party sought to be charged or bound
CMA NFM Services No BONDS Type B - Warehouse/Distribution & Headquarters Public Improvements
Page 12
1775.010\26847.3
by the alteration or amendment. No course of dealing on the part of any Party, or failure
or delay by any Party with respect to the exercise of any right, power, or privilege under
this Agreement, shall operate as a waiver thereof.
10.3 Applicable Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, and all obligations of the
Parties created hereunder are performable in Denton County, Texas. Venue for any
action arising under this Agreement shall lie in the state district courts of Denton
County, Texas.
10.4 Binding Obligation. This Agreement shall become a binding obligation of
the Parties upon execution by all Parties.
10.5 Construction. This Agreement is a contract made under, and shall be
construed in accordance with and governed by, the laws of the United States of
America and the State of Texas.
10.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall constitute
one and the same document.
10.7 Force Majeure. If the performance by any Party of its obligations under
this Agreement is delayed due to unexpected circumstances beyond the reasonable
control of such Party, then such Party shall be excused from performance during the
period that such circumstances continue so long as such Party is diligently and
continuously seeking to eliminate the circumstances or otherwise resume performance
in spite of such circumstances.
10.8 Severability. If a court finds any provision of this Agreement to be invalid
or unenforceable as to any person or circumstance, such finding shall not render the
provision invalid or unenforceable as to any other persons or circumstances. To the
extent feasible, any provision found to be invalid or unenforceable shall be deemed to
be modified to be valid and enforceable; however, if the provision cannot be so
modified, it shall be stricken from this Agreement, and all other provisions of this
Agreement shall remain valid and enforceable and unaffected by the stricken y provision.
CMA NFM Services NO BONDS Type B - Warehouse/Distribution & Headquarters Public Improvements
Page 13
1775.01(Yw68473
10.9 Singular and Plural. Where the context permits, words used in the
singular also include the plural and vice versa, and the definitions of such words in
the singular also apply to such words when used in the plural and vice versa.
10.10 Time of the Essence. Time is of the essence in the performance of this
Agreement.
10.11 Execution of Agreement. The Board of Directors of the Corporation shall
authorize the execution of this Agreement on behalf of the Corporation.
10.12 Exemption from Public Bid Requirements. The Corporation is not required
by State law to comply with the competitive bidding requirements applicable to the City.
10.13 Undocumented Workers. NFM Services certifies (and shall cause each
permitted assignee under Section 9 to certify) that it does not and will not knowingly
employ an undocumented worker (in accordance with Chapter 2264 of the Texas
Government Code, as amended) in connection with the performance of its obligations
under this Agreement. If during the Term of this Agreement, NFM Services or any
permitted assignee is convicted of a violation under 8 U.S.C. § 1324a(f), NFM Services
or the assignee that is convicted shall repay the amount of the public subsidy provided
under this Agreement as required by law. Pursuant to Section 2264.101, Texas
Government Code, a business is not liable for a violation of Chapter 2264 by a
subsidiary, affiliate, or franchisee of the business, or by a person with whom the
business contracts.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as
May 15, 2012.
NFM Services
NFM Services, LLC
a Texas limited liabili co dny
By:
CMA NFM Services NO BONDS Type B - Warehouse/Distribute, n, eadquarter uublic Improvements
Page 4
1775.010\26847.3
Jeff Lind, President
CORPORATION
The Colony Community Development Corporation,
a Texas non-profit corporation
By:
3 `.k
rtf~ n Lawrence, President
CITY
The City of The Colony, Texas
A Texas home-rule municipality
By:
foeMcCo rry, Mayor
A E A~` a
Christie Wilson, City Secretary
ANF' _ E AS TO FORM:
eff Moor , City Attorney
CMA NFM Services NO BONDS Type B - Warehouse/Distribution & Headquarters Public Improvements
Page 15
1775.010`26847.:3
Exhibit B
Reimbursement Agreement
Resolution No. 2012-041
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-041
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING AND RATIFYING AN AGREEMENT
BY AND BETWEEN THE CITY OF THE COLONY, TEXAS, THE
COLONY COMMUNITY DEVELOPMENT CORPORATION, AND NFM
SERVICES, LLC, A TEXAS LIMITED LIABILITY COMPANY;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, The Colony Community Development Corporation (hereinafter referred
to as the "CDC") is a Type B Community Development corporation, created pursuant to Chapter
505 of the Texas Local Government Code, as amended; and
WHEREAS, on November 15, 2011, the City Council (the "City Council") of the City of
The Colony, Texas (the "City') approved a Type B Performance Agreement by and between the
CDC, TXFM, Inc., and LMG Ventures, LLC, effective November 15, 2011, as amended,
(hereinafter referred to as the "Type B Performance Agreement"); and
WHEREAS, the Type B Performance Agreement provides that Project Costs (as defined
therein) may be reimbursed or paid from Type B Sales Tax Revenues (as defined therein)
deposited into the Type B Reimbursement Account (as defined therein); and
WHEREAS, the City, CDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that NFM Services will advance funds to or on behalf of the City
and/or the CDC to pay Project Costs allocable to the Warehouse & Distribution Facilities,
Regional Headquarters, and Public Improvements, as those terms are defined in the
Reimbursement Agreement attached hereto as Exhibit A, and incorporated by reference as a part
of this resolution for all purposes (the "Agreement"); and
WHEREAS, the City Council hereby determines it is in the best interest of the City to
adopt this Resolution approving and ratifying the attached Agreement and hereby finds that the
Agreement benefits the City and the CDC.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. Each and every one"ofthe recitals, findings, and determinations contained in
the preamble to this Resolution, as well as each and every one of the recitals, findings, and
determinations contained in the Agreement, a copy of which is attached hereto as Exhibit A, are
incorporated into the body of this Resolution as if fully set forth herein and are hereby found and
declared to be true and correct legislative findings and are adopted as pant of this Resolution for all
purposes.
I
SECTION 2. The City Council of the City of The Colony, Texas, does hereby approve
the Agreement, a copy of which is attached hereto as Exhibit A, and is incorporated herein for all
purposes.
SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or application thereto to any persons or circumstances, is held invalid or
unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of
the remaining portions of this Resolution; and the City Council hereby declares it would have
passed such remaining portions of this Resolution despite such invalidity, which remaining portions
shall remain in full force and effect.
SECTION 4. This Resolution shall become effective immediately upon passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, THIS THE 15t" day of MAY, 2012.
*eCou , Mayor
ATTEST•
tie Wilson, City Secretary
APPROVED AS TO FORM:
teff'Moore ,City Attorney
Exhibit A
I
i
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into
by and between The City of The Colony, Texas, a Texas home-rule municipality (the "City"),
The Colony Community Development Corporation, a Type B Community Development
corporation, created pursuant to Chapter 505 of the Texas Local Government Code, as amended,
and a Texas non-profit corporation (the "CDC"), and NFM Services, LLC, a Texas limited
liability company ("NFM Services"), and collectively referred to as the "Parties."
WHEREAS, CDC is a Type B community development corporation operating pursuant
to the applicable provisions of the Development Corporation Act, Subtitle C1 of the Texas Local
Government Code, as amended (also referred to as the "Act"), and the Texas Non-Profit
Corporation Law, as described in Section 1.008(d) of the Texas Business Organizations Code, as
amended; and
WHEREAS, on November 15, 2011, the City Council of the City (the "City Council")
approved a Type B Performance Agreement by and between the CDC, TXFM, Inc., a Texas
corporation ("TXFM"), and LMG Ventures, LLC, a Texas limited liability company ("LMG"),
effective November 15, 2011 (as the same may be amended from time to time, the "Type B
Performance Agreement"); and
WHEREAS, the Type B Performance Agreement provides that Project Costs may be
reimbursed or paid from Type B sales tax revenues (the "Type B Sales Tax Revenues")
deposited into the Type B reimbursement account (the "Type B Reimbursement Account"); and
WHEREAS, the Parties contemplate that NFM Services will advance funds to or on
behalf of the City and/or the CDC to pay Project Costs allocable to the Warehouse &
Distribution Facilities, Regional Headquarters, and Public Improvements (hereinafter referred to
as the `NFM Advances").
NOW, THEREFORE, for and in consideration of the agreements contained herein; and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the City, the CDC, and NFM Services agree as follows:
SECTION 1. FINDINGS INCORPORATED.
The foregoing recitals are hereby incorporated into the body of this Agreement and shall
be considered part of the mutual covenants, consideration and promises that bind the parties.
SECTION 2. TERM.
This Agreement shall be effective as of the Effective Date, and shall continue thereafter
until all obligations of the City, CDC, and NFM Services have been performed in full, unless
terminated sooner under the provisions hereof.
1775.010\26858,2
SECTION 3. DEFINITIONS.
The following words shall have the following meanings when used in this Agreement.
(a) Act. The word "Act" means the Development Corporation Act, Subtitle Cl of the Texas
Local Government Code, as amended.
(b) Agreement. The word "Agreement" means this Reimbursement Agreement, together
with all exhibits and schedules attached hereto, if any, and as the same may be amended
from time to time.
(c) Bond. The word "Bond" means any bond, note, or other evidence of indebtedness issued
by the CDC and secured by funds in the Type B Reimbursement Account.
(d) Bond Validation Final Judgment. The words "Bond Validation Final Judgment" mean
the "Final Judgment" entered January 18, 2012, in Ex Parle City of The Colony filed by
the City of The Colony, Texas, pursuant to Chapter 1205 of the Texas Government Code,
in the 53rd Judicial District Court of Travis County, Texas, Cause No. 0-1-GV-11-
001995.
(e) CDC. The word "CDC" means The Colony Community Development Corporation, a Type
B community development corporation, created pursuant to Chapter 505 of the Act, and a
Texas non-profit corporation, and it successors and assigns. For purposes of this
Agreement, CDC's address is 6800 Main Street, The Colony, Texas 75056.
(f) City. The word "City" means the City of The Colony, Texas. For purposes of this
Agreement, the City's address is City of The Colony, 6800 Main Street, The Colony,
Texas 75056.
(g) City Council. The words "City Council" mean the City Council of the City.
(h) Effective Date. The words "Effective Date" mean May 15, 2012.
(i) Facility. The word "Facility" has the same meaning as defined in the Final Project and
Reinvestment Zone Financing Plan for Tax Increment Reinvestment Zone Number One,
City of The Colony, Texas, approved by the City Council on November 15, 2011.
(j) NFM Advances. The words "NFM Advances" mean the funds advanced by NFM
Services to or on behalf of the City and/or the CDC to pay Project Costs allocable to the
Warehouse Distribution Facilities, Regional Headquarters, and Public Improvements.
(k) NFM Services. The words "NFM Services" mean NFM Services, LLC, a Texas limited
liability company, its successors and assigns whose address for purposes of this
Agreement is 700 S. 72nd Street, Omaha, NE 68114.
1775.0
(1) Public Improvements. The words "Public Improvements" mean the public
infrastructure and public improvements that are required or suitable to promote or
develop the Warehouse & Distribution Facilities and Regional Headquarters.
(rn) Private Debt. The words "Private Debt" is defined in the Type B Performance
Agreement to mean bonds, notes, loans, or other forms of indebtedness issued or obtained
by an entity other than the CDC to pay Project Costs, and secured by a collateral
assignment of funds paid from the Type B Reimbursement Account.
(n) Project. The word "Project" means one or more projects authorized by the Act to be
undertaken and financed by the CDC, the intent being to liberally interpret the tern to
maximize the purposes for which Type B Sales Tax Revenues may be used. A Project
may include, to the extent permitted by law, but is not limited to, facilities that the Board
of the Directors of the CDC determines will bring to the Property entertainment, tourism,
and convention uses, together with related stores, restaurants, and concessions, that will
attract tourists, visitors, and shoppers from outside the City and Denton County such as a
convention center, indoor and outdoor- entertainment venues, sports facilities, theme
parks, theme restaurants, theme retail, amusement parks, hotels, and other related uses
including, but not limited to, retail stores and restaurants, as well as facilities that the
Board of the Directors of the CDC determines will bring to the Property regional
headquarters, warehouse, and distribution uses.
(o) Project Costs. The words "Project Costs" mean capital costs of the Project approved by
the CDC, and as further described in the Type B Performance Agreement. Project Costs
are intended to include Soft Costs paid or incurred on or after September 16, 2011, except
for preliminary expenditures meeting the exception described in Section 1.150-2(0(2) of
the Treasury Regulations that are paid or incurred on or after January 1, 2011.
(p) Property. The word "Property" means the property defined by metes and bounds in the
Type B Performance Agreement to include approximately 433.81 acres of undeveloped
land on which the Facility will be located.
(q) Regional Headquarters. The words "Regional Headquarters" mean the regional
headquarters portion of the Facility.
(r) Soft Costs. The words "Soft Costs" mean capital costs that are allocable to the
Warehouse & Distribution Facilities, the Regional Headquarters and Public
Improvements and are approved by the CDC including, but not limited to, an allocable
portion of the capital costs related to: (1) site selection (including, but not limited to,
market studies, economic and feasibility analyses, financial modeling, preliminary
engineering, and preliminary design); (2) the acquisition of property (including, but not
limited to, real estate commissions, title insurance premiums, and the costs to prepare and
review title reports, surveys, engineering and geotechnical data, and environmental
assessments); (3) engineering, architectural, design, and other professional and consulting
services; (4) accounting, audit, appraisal, and related financial services; (5)
telecommunications studies; (6) bond validation litigation filed pursuant to Chapter 1205,
1775.010\26858.2
Texas Government Code, including all costs associated with obtaining the Bond
Validation Final Judgment; (7) costs of issuance of Private Debt and/or Bonds; (8)
permits and inspections; (9) project, construction, and contract management and
consulting; (10) travel eligible to be capitalized pursuant to generally acceptable
accounting principles, including, but not limited to, transportation, lodging, and meals;
and (11) legal services in support of all of the foregoing activities.
(s) State Comptroller. The words "State Comptroller" mean the Office of the Texas
Comptroller of Public Accounts, or any successor agency.
(t) Term. The word "Term" means the term of this Agreement as specified in Section 2 of
this Agreement.
(u) Type B Performance Agreement. The words "Type B Performance Agreement" mean
the agreement entered into by and between the CDC, TXFM, and LMG on November 15,
2011, and approved by the City Council.
(v) Type B Reimbursement Account. The words "Type B Reimbursement Account" mean
the special account created or to be created by the City or the CDC into which Type B
Sales Tax Revenues are deposited in accordance with Sections 5 and 6 of the Type B
Performance Agreement from which Project Costs are reimbursed or paid.
(w) Type B Sales Tax Revenues. The words "Type B Sales Tax Revenues" mean the
proceeds of the Type B Sales Tax (the one-half of one percent (0.5%) sales and use tax
on taxable sales and services within the City that, pursuant to the procedures prescribed
in the Act, the voters within the City authorized for levy and collection on behalf of the
CDC for its corporate purposes at an election conducted on January 17, 1998) that are
actually received by the CDC, or by the City on behalf of the CDC from the State
Comptroller, from the levy and collection of the Type B Sales Tax from and after
November 15, 2011, on or with respect to taxable sales and transactions that occur only
within the Property.
(x) Warehouse & Distribution Facilities. The words "Warehouse & Distribution
Facilities" means the approximately 1,280,000 square feet within the Facility that will be
used for warehouse and distribution purposes.
SECTION 4. AFFIRMATIVE OBLIGATIONS.
The parties covenant and agree with each other that, while this Agreement is in effect, it
shall comply with the following terms and conditions:
(a) City Reimbursements. In the event the first series of Bonds has not been issued by
August 31, 2012, the City shall give written notice to NFM Services of the Project Costs
paid or incurred by the City or the CDC as of such date and allocable to the Warehouse &
Distribution Facilities, Regional Headquarters, and Public Improvements for which the
City or the CDC is entitled to reimbursement from Type B Sales Tax Revenues deposited
1775.010\26858
into the Type B Reimbursement Account but for which the City or the CDC has not been
reimbursed. The notice from the City shall include an accounting of the Project Costs
eligible for reimbursement, and NFM Services shall pay the reimbursement amount
within thirty (30) days after receiving Notice from the City. Amounts paid by NFM
Services to the City or the CDC pursuant to this Section shall be reimbursed as NFM
Advances.
Thereafter, to the extent Bonds are not issued after August 31, 2012 or to the extent Bond
proceeds have been exhausted, the City may, at its option, on each June 30, September
30, December 31, and March 31, give written notice to NFM Services of the Project
Costs paid or incurred by the City or the CDC as of such dates and allocable to the
Warehouse & Distribution Facilities, Regional Headquarters, and Public Improvements
for which the City or the CDC is entitled to reimbursement from Type B Sales Tax
Revenues deposited into the Type B Reimbursement Account but for which the City or
the CDC has not been reimbursed. The notice from the City shall include an accounting
of the Project Costs eligible for reimbursement, and NFM Services shall pay the
reimbursement amount within thirty (30) days after receiving Notice from the City.
Amounts paid by NFM Services to the City or the CDC pursuant to this Section shall be
reimbursed as NFM Advances.
(b) Performance. The City, CDC, and NFM Services agree to perform and comply with all
terms, conditions, and provisions set forth in this Agreement and in all other instruments
and agreements between the City, CDC, and NFM Services.
SECTION 5. EVENTS OF DEFAULT.
(a) If a party fails to perfoni7 any material obligation required by this Agreement, the other
party may give written notice of such failure to the non-performing Party, which notice shall
describe in reasonable detail the nature of the failed obligation. If the non-performing party
does not cure or rernedy the failed obligation within a reasonable period of time after- the
notice is given (taking into consideration the nature of the failed performance; but in no
event more than thirty (30) days after the notice is given), then the non-performing party
shall be in "Default" under- this Agreement.
(b) In addition to Defaults described in Section 5(a), NFM Services shall be in Default under
this Agreement if NFM Services becomes delinquent in the payment of any ad valorem
taxes or sales taxes owed to the City and such delinquencies, including penalties and
interest, are not paid in full within sixty (60) days after written notice of such delinquencies
is given. If NFM Services is in Default under this Section 5(b), the City may pursue any
remedies available at law or in equity (excluding termination of this Agreement) including,
but not limited to, exercise of the right of off-set against any amounts to which NFM
Services is entitled under this Agreement.
(c) Excerpt as provided in Section 5(b), if NFM Services is in Default under this Agreement, the
sole and exclusive remedy of the City is to enforce specific performance of this Agreement.
1775.010\26858.2
(d) If the City or the CDC is in Default, the sole and exclusive remedies of NFM Services are
to: (1) enforce specific perfonnance of this Agreement; and (2) exercise any rights recorded
against the Property to secure perfonnance by the City or the CDC under this Agreement,
including, rights under any (a) covenants, conditions and restrictions; (b) easements; (c)
conveyance documents that include a determinable interest, reversion or other similar right;
or (d) a deed of trust to secure performance.
(e) No Default by any Party shall entitle any other Party to terminate this Agreement.
SECTION 6. MISCELLANEOUS PROVISIONS.
The following miscellaneous provisions are a part of this Agreement:
(a) Amendments. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
(b) Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and all obligations of the parties created
hereunder are performable in Denton County, Texas. Venue for any action arising under
this Agreement shall lie in the state district courts of Denton County, Texas.
(c) Assignment. NFM Services has the right to assign this Agreement, in whole or in part,
and any of its right, title, or interest in or to this Agreement, to the same extent and in the
same manner provided to the "Developer" under the Type B Performance Agreement.
Neither the City nor the CDC may assign this Agreement or any of their respective right,
title, or interest in or to this Agreement without the prior written consent of NFM
Services.
(d) Binding Obligation. This Agreement shall become a binding obligation on the
signatories upon execution by all signatories hereto. City warrants and represents that the
individual executing this Agreement on behalf of City has full authority to execute this
Agreement and bind City to the same. NFM Services war7rants and represents that the
individual executing this Agreement on NFM Services' behalf has full authority to
execute this Agreement and bind it to the same.
(e) Caption Headings. Caption headings in this Agreement are for convenience purposes
only and are not to be used to interpret or define the provisions of the Agreement.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
document.
(g) Execution of Agreement. The Board of Directors of the CDC shall authorize the
execution of this Agreement on behalf of the CDC.
1775.0 10\2685U
(h) Force Majeure. It is expressly understood and agreed by the parties to this Agreement
that if the performance of any obligations hereunder is delayed by reason of war, civil
commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the
party so obligated or permitted shall be excused from doing or performing the same
during such period of delay, so that the time period applicable to such obligation or
requirement shall be extended for a period of time equal to the period such party was
delayed.
(i) Notices. Any notice or other communication required or permitted by this Agreement is
effective when in writing (i) and personally delivered by any nationally recognized
delivery service such as Fed Ex or UPS, or (ii) three (3) days after the Notice is deposited
with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and
addressed as follows or, in the case of a change of address, as provided in a notice
notifying the other Party of such address change.
To NFM Services: NFM Services, LLC
Attn: Doug Hamlin
700 S. 72nd Street
Omaha, NE 68114
With a copy to: Glast, Phillips & Murray
Attn: Thomas Rosen
14801 Quorum Drive, Suite 500
Dallas, TX 75254
Shupe Ventura Lindelow & Olson, PLLC
Attn: Misty Ventura
9406 Biscayne Blvd.
Dallas, TX 75218
To the CDC: The Colony Community Development Corporation
Attn: Pam Nelson
6800 Main Street
The Colony, Texas 75056
With a copy to: Brown and Hofineister, LLP
Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
To the City: The City of The Colony, Texas
Attn: Troy Powell, City Manager
6800 Main Street
The Colony, Texas 75056
1775.010\26858:?
With a copy to: Brown and Hofineister, LLP
Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
(j) Severability. If a court finds any provision of this Agreement to be invalid or
unenforceable as to any person or circumstance, such finding shall not render the
provision invalid or unenforceable as to any other persons or circumstances. To the
extent feasible, any provision found to be invalid or unenforceable shall be deemed to be
modified to be valid and enforceable; however, if the provision cannot be so modified, it
shall be stricken from this Agreement, and all other provisions of this Agreement shall
remain valid and enforceable and unaffected by the stricken provision.
(k) Singular and Plural. Where the context permits, words used in the singular also include
the plural and vice versa, and the definitions of such words in the singular also apply to
such words when used in the plural and vice versa.
(1) Time is of the Essence. Time is of the essence in the performance of this Agreement.
The Remainder of this Page Intentionally Left Blank]
1775,010''26859.2
THE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS
AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. THIS AGREEMENT IS
DATED AS OF EFFECTIVE AS OF THE EFFECTIVE DATE AS DEFINED HEREIN.
I
NFM SERVICES:
NFM SERVICES, LL C,
a Texas limited liability co ilp~hy
. r
By:
Jeff VJWY61ent
Date: S Za l Z.
1775.010`6855.2
CDC:
THE COLONY COMMUNITY
DEVELOPMENT CORPORATION,
11CXas 11011-profit corporation
By: r
TeRon anvrcpce, President
Date: rT_y~Lc r 'L
AT'I'Esl,:
ALisaLcy, Secretar
1775.0101268582
CITY:
CITY OF THE COLONY, TI-XAS,
a Texas honle-rule 111ptlicipality
By: G
Joe MCC urry, mayor
Dat . -!Z
ATI'ES"I '
Cilrlstic Wilson, City Secretary
APPROVED AS TO FORM:
Jeff Mbore, ityAltorney
,
1775.010126858,2
I
i