HomeMy WebLinkAboutResolution No. 2012-086
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-086
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, RESCINDING A CONSTRUCTION MANAGEMENT
AGREEMENT, RESOLUTION NO. 2012-039, AND RESCINDING A
REIMBURSEMENT AGREEMENT, RESOLUTION NO. 2012-0425 BOTH
APPROVED ON MAY 15, 2012; PROVIDING A SEVERABILITY
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The Colony Economic Development Corporation (hereinafter referred to
as the "EDC") is a Type A economic development corporation, created pursuant to Chapter 504
of the Texas Local Government Code, as amended; and
WHEREAS, on May 9, 2012, the Board of Directors of the EDC approved a Resolution
which approved a Construction Management Agreement by and between the City, the EDC, and
NFM Services, LLC, a Texas limited liability company (hereinafter referred to as "NFM
Services"), concerning reimbursement of certain Project Costs from Type A Sales Tax Revenues
deposited into the Type A Reimbursement Account; and
WHEREAS, on May 9, 2012, the Board of Directors of the EDC also approved a
Resolution which approved a Reimbursement Agreement by and between the City, the EDC, and
NFM Services, concerning reimbursement of NFM Services for advancement of certain fields to
pay for Project Costs; and
WHEREAS, on May 15, 2012, the City Council approved Resolution No. 2012-039
which approved the Construction Management Agreement by and between the City, the EDC,
and NFM Services, a copy of Resolution No. 2012-039, and said Construction Management
Agreement are attached hereto as Exhibit A; and
WHEREAS, on May 15, 2012, the City Council also approved Resolution No. 2012-042
which approved the Reimbursement Agreement by and between the City, the EDC, and NFM
Services, a copy of Resolution No. 2012-042, and said Reimbursement Agreement is attached
hereto as Exhibit B; and
WHEREAS, the Construction Management Agreement approved by Resolution No.
2012-039, and the Reimbursement Agreement approved by Resolution No. 2012-042 were
intended to provide for reimbursement of certain costs in the event the EDC did not issue bonds
for the payment of such costs; and
WHEREAS, the EDC intends to issue bonds to finance the Projects contemplated by the
Type A Performance Agreement and the proceeds from such bonds will be available to pay
Project Costs; and
WHEREAS, on November 14, 2012, the Board of Directors of the EDC approved the
rescission of the Construction Management Agreement attached to and approved by Resolution
No. 2012-039; and
WHEREAS, on November 14, 2012, the Board of Directors of the EDC approved the
rescission of the Reimbursement Agreement attached to and approved by Resolution No. 2012-
042; and
WHEREAS, the City Council finds and determines that Resolution No. 2012-039 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. 2012-042 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 frilly set forth herein.
SECTION 2. The City Council does hereby rescind for all purposes Resolution No.
2012-039 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.
2012-042 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 20"' day of November, 2012.
J e McCourry; Mayor
ATTEST:
Christie Wilson, City Secretary
APPROVED AS TO FORM:
Jeff Moore, City Attorney
ICI
Exhibit A
Constriction Management Agreement
Resolution No. 2012-039
~I
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012039
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 ECONOMIC DEVELOPMENT CORPORATION, AND NFM
SERVICES, INC, A TEXAS LIMITED LIABILITY COMPANY FOR
PAYMENT OF CERTAIN COSTS WITH TYPE A SALES TAX
REVENUE; PROVIDING A SEVERABILITY CLAUSE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The Colony Economic Development Corporation (hereinafter referred to
as the "EDC") is a hype A ecorron-ric development corporation, created pursuant to Chapter 504
of the 'T'exas 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 A Performance Agreement by and between the
EDC, TXFM, Inc., and LMG Ventures, LLC, effective November 15, 2011, as amended
(hereinafter referred to as the "Type A Performance Agreement"); and
WHEREAS, the Type A Performance Agreement provides that Project Costs (as defined
therein) may be reimbursed or paid from Type A Sales Tax Revelries (as defined therein)
deposited into the Type A Reimbursement Account (as defined therein); and
WHEREAS, the City, EDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that NFivl Services will advance funds to or on behalf of the City
and/or the F,DC to pay Project Costs allocable, to the Warehor.ise & Distribution Facilities and
Warehoi.rse Public Improvements, as those terms are defined in the Construetiorl Management
Agreement, attached hereto as Exlaibit 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.
NO~,I THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF '11-11COLONY, TEXAS, TIIAT-
SEC'T'ION 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"' dad, of IVIAY, 2012.
j
. oe MCCOUI-{Y, Mayor
ATTEST:
P
Clristie~ Wilson, City Secretary
APPROVED AS TO FORM:
Jeff Moore, pity Attorney
Exhibit A
[Agreement]
CONSTRUCTION MANAGEMENT AGREEMENT"
This Construction Management Agreement (this "Agreement") among NFM
Services, LLC, a Texas limited liability company ("NFM Services"), The Colony
Economic Development Corporation, a Texas non--profit corporation (the "Corporation"),
and the city of `f he Colony, Texas, a Texas home-rule municipality (the "City,") is
executed to be effective May 15, 20'11 (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 hiavc the meanings given to them in this introductory
paragraph, in the RECH A1.8, arid in Section 2 unless thO 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 condition: of this Agreement.
1.1 VVl-l1=RI AS, the Type A Performance Agreement provide.; that capital
furadc d by financial Incentives have been bargained for to induce taxp<.aycars to
locate and operate their business within the Property and are intended to be grunts and
contributions to the capital of such taxpayers;
1.2 VVIIFF`L AS, capital assets to be contributed from time to time to taxpayers
as grants and corli:ributions to capital are not in exchange for or as consideration for any
goods or services provided by such taxpayers pursuant to this Agreement c_ar any other
agreement;
1.3 VVHLRLAS, 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 WHFRFAS, 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, usr~cl for w;-mr hou-,(= ~:Ill1 dit-Jribl.1iiorl purpos,r,:; (Th( "Warehouse &
Distribution I acilities");
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 (the "Warehouse Public Improvements");
1.7 WHEREAS, the Type A Performance Agreement provides that Project
Costs may be reimbursed or paid from Type A Sales Tax Revenues deposited into the
Type A Reimbursement Account;
1.8 WI-11=-RI-.AS, the Parties contemplate that NFM Services. will ..advance
funds, to or on behalf of the City and/or the Corporation to pay I'rojc,ct Coat,,, allocable to
the Warehouse Public Improvements (the NF=M Advances");
1.9 WI- 1-RE:AS, the Parties contemplate that NFM Services will rrranage for or
on behalf of the City and/or the Corporation all activitierj directly or indirectly related to
ihe;experldituro of Project Costs allocable to the V\I<arehUt.a:7c, I'ublir, laiproverrnents;
1.10 Wl 111 the Pr:art.ie.; (;ont(mll- late that the City sand/or the Corporation
will rcirnburso NFM Services for the N1 --'M Advances from Type A Sales 'Tax New"nues
deposited into the 't'ype A Reimbursement Account;
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
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Type A Sales Tax Revenue deposited into the Type A 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 Warehouse 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 Warehouse Public Improvements have been completed;
1.13 WHEREAS, the sr.rm oi' the Construction Management Fee, Additional
ConstrUc.tion Management F=ee, and any other sirfrilar construction rnanagemont fee
paid to NI-`M Services in connection with :activities related to managing f.ho c;xpenditurf:
of Project Costs allocable to the public infra-structure; or public improvements required or
suitable to promote or develop the f=acility 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 A Sales Tax Revenue deposited into the Type A 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 NF M
Advance
2. D F F I N I 10W'7.
2.1 ".1,21 L LG" means 121 Acquisition Company, [.LC, a Texas limited liability
corrnpany.
2.2 "Act" is defined in they Type A Performance Agreernent.11
nt_C=ee" is defined in aectiorl 3.3.
2.3 "/`,ciditicyrlaI (.onsfiruction IVlanac rm
2A. "Additional I IVr Advances" are defined in Section 3.3,
2.5 "Additional Public Irnmovements" are defined in Section 3.3 and restricted
to those permitted by the Act.
2.6 "Agreement" is defined in the introductory paragraph.
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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 53 I'd 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 Cc~ur~cil" means the City Council of the City.
2.10 "Construction Management I- - ee" is defined in Section 1.11.
2.11 "Corporation" is defined in the introductory paraqraph.
2.12 "Effective Date." iti. defined in the introductory paragraph.
2.13 "Fiacility" is defined in the Project and Finance Ilan.
2.14 "Financial Incentives" are defined in the Type A Performance Agreement.
2.15 "Maximum Debt Lit-nit" is defined in the Type A 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; e gUal to NFM's cost of borrowing
rnoney [currently LIBOR (the one-m-nonth London Interbank Offer Rate established by
Reuters or any successor thereto) plus 01169/4
2.19 "NFIVI 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 ".1iri-v_ate [debt" is defiriod iii the; 'l-ype A Per orrn4 rwe Aclree,,rnont.
2.23 "Proiect." is de fined in th(-) 'I-ype A Performance,. Agreement.
2.24 "1=-)Mggt anda__Finaric~e Flan" 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,
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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 A 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 A Performance
Agreement to include approximately 433.81 acres of undeveloped land on which the
f=acility will be located.
2.27 "Soft Costs" mean capital costs that are allocable to the Warehouse 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, awhitectural, 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 I inal 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.
2.28 "Type A Performance Agreement" means the "Type A Corporation
Performance Agreement" executed by the Corporation, TXl-M, Inc., and I.M ; Venturo.
LI_.C effective November 15, 2011, as amended, and approved by the City Council.
2.29 "Type A Reimbursement Account" is defined in the Type A Performance
Agreement.
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2.30 "Type A Sales Tax Revenues" are defined in the Type A Performance
Agreement.
2.31 "Undivided Type A Interest" is defined in Section 3.2.2.
i
2.32 "Warehouse & Distribution Facilities" are defined in Section 1.5.
I
2.33 "Warehouse Public Improvements" are defined in Section 1.6.
3. WAREHOUSE PUBLIC IMPROVEMENTS.
3.1 NFM Services agrees to make the NFM Advances on a schedule
consistent witl► tho l ype A I'errormanco Agreement to pay Project Costs allocable to
the Warehouse 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 A Sales Tax Revenues deposited
into the Type A Reimbursement Account:
3.2.1 FIRST, to pay the Corporation's actual administration costs for the
Financial Incentives as required by the Type A Performance Agreement.
3.2.2 SLCOND, to acquire, in the name of the Corporation from 121 LLC,
an undivided interest in and to the Property approved by NI-'M Services and
allocable; to the Warehouse Public Improvements (the "Undivided -I ype A
Interest"). 1-he purchase price for the Undivided `type A 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
l .I. C in acquiring and holding the 1='roperty. The pur(;hase price shall be payable:
in installments on terms approved by 121 I.LC:. The Undivided `hype A Interest
shall bo frec; of monetary lions and monetary encumbrances (other thair 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 A Performance Agreement.
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3.2.3 THIRD, to reimburse the City for Project Costs paid or incurred by
the City and allocable to the Warehouse 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 reirburse 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 arse NFM Services shall be entitled to an additional
construction managernent fee; (the "Additional Construction Management I -ee"). The
City and/or the Corporation will reimburse; NFM Services for the Additional NF M
Advances (and interest thereon at the Nl--'IVI Interest Date from the date of each advance
until the advance is reimbursed in full) and pay NF=IVI Services the Additional
Construction Management Fee from Type; A Sales Tax Revenuer; deposited into the
'T'ype A Reimbursement Account. Notwithstanding the specificity iii this section, the
Parties intend that if there are Additional Public IrTlprovernerrts, Additional NFM
Advances, and ail Additional Construction K/lanagernent Fee, then this Agreement in its
entirety shall apply thercAo in the Sarno rrlanner and to the same extent that it applies to
the Warehouse Public Improvements, NI :M Advances, and the Construction
Management Fee.
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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 nonperforming 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 l-:xcept as provided in Section 4.2, if NFM Services ic> in l )efault under this
Agreement, the sole and exclusive remedy of the City is to enforce specific performance
of this /agreement.
4.4 Pursuant to Section 501.167 of the Texas Local Government Code, it a
Default occurs in the performance of any agreement contained in a proceeding,
mortgage, or instrument, the payment or performance rnay be enforced by:
(1) mandamus; or (2) the appointment of a receiver in equity with the power
to: (A) charge and collect rents, pr.rrchase price payments, and loan payments; and
(H) apply the revenue from the Project in accordance; with the resolution, mortgage, of
instrurnont.
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
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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 agitate of Texas and is qualified and authorized to implement and
conduct the functions and actions contemplated by this Agreement.
5.2 -l-he 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 agreernent or instrument to which the Corporation is a party, or by
which the Corporation or its assets rnay be bound or affected.
5.;3 This Agreement has been duly authorized, executed, land delivered by the
Corporation and constitutes a legal, valid, and binding obligation of the Corporation
enforceable in accordance with its terns.
5.4. The execution, delivery, and performance of this Agroolrlorlt by the,
Corporation do riot require the consent or approval of any person or- oi,itity other than
the City, and City consent and approval have been obtained.
6, f l I'1~1-:SCAN I I~`I ICaNt 01= NFM a-)c;rvicc <a.
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.
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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.
6.3 This Agreement has been duly authorized, executed, and delivered by
NI M Services and constitutes a legal, valid, and binding obligation of N1=M :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, acrd 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 riot, 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,
c,llcrrrrnbrance, or security interest upon any assets of the City under any agreement or
instrument to which the City is a parity, 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 or 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 I-edf-x or IA 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, LL.C
Attn: Doug Hamlin
700S.72 nd Street
Omaha, NE 68114
With _a copy i:a: Glast, Phillips Murray
Attn: Thomas F~osen
14801 Quorum Drive, Suite 500
Dallas, TX 7525"
Shupe Ventura Lindelow & Olson, PLLC
Attn: Misty Ventura
9406 Biscayne Blvd.
Dallas, TX 75218
To the Corporation:
The Colony Lconornic; Development Gorporation
Attn: Kori Sarnford
6800 Main Street
The Colony, Texas 75056
With a copy to:
Brown and Hofineister, LLP
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Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
To the City:
_Fhe City of The Colony, `texas
Attn: Troy Powell, City Manager
6800 Main Street
The Colony, Texas 75056
With a coon to:
Brown arid Hofineister, 1_.111'
Attn: Jeff Moore
140 Cast 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 A
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 Service:;.
'10. ADDITIONAF. PROVISIONS.
10.1 Term. This Agreement shell begin on the Effective Date arid contirrr.rc: until
the City arid/or the Corporation has reirnbursed NFM Service,,, for the NFM Advances
(arid, if applicable, the Additional NFM Advances) arid has paid to NFM Services the
Construction Management Fee (and, if appli(.able, the Additional G,01 "LlGtron
Mariager'nont I-e;c;).
10.2 Amendrrionts. No alteration of crr arnondrrlerrt to this Agreement :;hall bu
effective, unless given in writing and signed by the Parity sought to be charged or bound
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.
CMA NFM Services NO BONDS Type A - Warehouse Public Improvements
Page 12
1775.010\26603.5
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 Bindina 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
biros ics, ,arid 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 continua so long as such Party is diligently and
continuously seeking to eliminate the circumstances or otherwise resume performance
in :,pits; of .,r.rch cil-Mimstances.
10.83 owerability. If a court find,-; 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 circ.urrnstances. To the
extend feasible, any provision found to be invalid or unenfores,cable small be deemed to
be modified to be valid and enforceable; however, if t1-10 provision cannot be so
rnodific d, it shall be stricken from this Agreement, and all other provisions of this
Agroor-nont shall remain valid acid enforceable and unaffected by thu stricken provision.
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.
CMA NFM Services NO BONDS Type A Warehouse Public Improvements
Page 13
1775.010\26603,5
10.10 Time of the Essence. `rime 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_Ree uirements. The Corporation is not required
by State law to comply with the competitive: bidding requirements applicable to the City.
'10.13 Undocumented Workers. NFIVI Services certifies (and shall cause each
perrnittc,d assignee: under Section g to coriity) that it does not and will not knowingly
employ an undocumented worker (in accordance with Chapter 2204 of the 'l e.xeas
Government Code, as amended) in connection with the performance of its obligatiorn..
under this Agreement. If during the Term of this Agreement, NFM Services or any
permitted assignee is convicted of a violation under 3 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 !l HErivor, the Parties have execrated this Agreement to be effective as
May 15, 2012.
NFM Serl°vtf es
N F M S er-vice:~,, I .I_.C,
a Texas limited liability c.ornp;-any
13y:
Jeff Lind, I''resident
CMA NFM Services NO BONDS Type A - warehouse Public Improvements
Page 14
1'/75.010\26603.5
CORPORATION
The Colony Economic Development Corporation,
a Texas non-profit corporation
By:
Tom Tvardzik, President
CITY
The City of 'rho Colony, Texas
A Texas horne.-rule municipality
f r,
54
doe McC, urry, Mayor
f
A TTL-ST:
Christie Wilson, City Secretary
APPROVI _D N'31_0 FORM:
Jof Mo6re, City Attorney
CMA NFM Services NO BONUS Type A- Warehouse Public Improvements
Page 15
1775.010\26603.5
City Manager's Fiscal Impact Statement
Construction Management Agreement (No Bonds) Between The Colony
Economic 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 "fax Increment
Reinvestment Zone Number One, City of The Colony, Texas, adopted by Ordinance 2011-129 on
November 1.5, 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.
I
Troy C. Powell
City Manager
1775.010\26616.1
Exhibit B
Reimbursement Agreement
Resolution No. 2012-042
I~
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-042
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 ECONOMIC DEVELOPMENT CORPORATION, AND NFM
SERVICES, LLC, A TEXAS LIMITED LIABILITY COMPANY;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, The Colony Economic Development Corporation (hereinafter referred to
as the "EDC") is a Type A economic development corporation, created pursuant to Chapter 504
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 A Performance Agreement by and between the
EDC, TXFM, Inc., and LMG Ventures, LLC, effective November 15, 2011, as amended
(hereinafter referred to as the "Type A Performance Agreement"); and
WHEREAS, the Type A Performance Agreement provides that Project Costs (as defined
therein) may be reimbursed or paid from Type A Sales Tax Revenues (as defined therein)
deposited into the Type A Reimbursement Account (as defined therein); and
WHEREAS, the City, EDC, 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 LDC to pay Project Costs allocable to the Warehouse & Distribution Facilities and
Warehouse 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 EDC.
NOVN' THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. Each and every one of the recitals, findings, and determinations contained in
the preamble to this Resolution, as well as each and every one of the recitals, findings, and
detern-nnations 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 part of this Resolution for all
purposes.
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`h day of MAY, 2012.
e McCou , Mayor
ATTEST:;
Christie{Wilson, City Secretary
APPROVED AS TO FORM:
~y
Jeff Moore, rty Attorney
Exhibit A
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 Economic Development Corporation, a Type A economic development corporation,
created pursuant to Chapter 504 of the Texas Local Government Code, as amended, and a Texas
non-profit corporation (the "EDC"), and NFM Services, LLC, a Texas limited liability company
("NFM Services"), and collectively referred to as the "Parties."
WHEREAS, EDC is a Type A economic development corporation operating pursuant
to the applicable provisions of the Development Corporation Act, Subtitle C 1 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 A Performance Agreement by and between the EDC, 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 A
Performance Agreement"); and
WHEREAS, the Type A Performance Agreement provides that Project Costs may be
reimbursed or paid from Type A sales tax revenues (the "Type A Sales Tax Revenues")
deposited into the Type A reimbursement account (the "Type A Reimbursement Account"); and
WHERE, AS, the Parties contemplate that NFM Services will advance funds to or on
behalf of the City and/or the EDC to pay Project Costs allocable to the Warehouse &
Distribution Facilities and Warehouse Public improvements (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 EDC, and NFM Services agree as follows:
S RECT70N I. F NDINGS 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, EDC, and NFM Services have been performed in full, unless
terminated sooner under the provisions hereof.
1775 01 ffi?FUSS
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.
I
(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 EDC and secured by funds in the Type A Reimbursement Account.
(d) Bond Validation Final Judgment. The words "Bond Validation Final Judgment" mean
the "Final Judgment" entered January 18, 2012, in Ex Parte 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) 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.
City Council. The words "City Council" mean the City Council of the City.
(g) EDC. The word "EDC" means The Colony Economic Development Corporation, a Type A
economic development corporation, created pursuant to Chapter 504 of the Act and a Texas
non-profit corporation, and it successors and assigns. For purposes of this Agreement,
EDC's address is 6800 Main Street, The Colony, Texas 75056.
(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.
Nl♦M Advances. The words "NFM Advances" mean the funds advanced by NFM
Services to or on behalf of the City and/or the EDC to pay Project Costs allocable to the
Warehouse & Distribution Facilities and Warehouse 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.
(1) Private Debt. The words "Private Debt" is defined in the Type A Performance
Agreement to mean bonds, notes, loans, or other forms of indebtedness issued or obtained
by an entity other than the EDC to pay Project Costs, and secured by a collateral
assignment of funds paid from the Type A Reimbursement Account.
(m) Project. The word "Project" means one or more projects authorized by the Act to be
undertaken and financed by the EDC, the intent being to liberally interpret the term to
maximize the purposes for which Type A Sales Tax Revenues may be used. A Project
may include, to the extent permitted by law, but is not limited to, projects authorized by
Section 501.101 of the Act, including land, buildings, equipment, facilities, expenditures,
targeted infrastructure, and improvements for the creation or retention of Primary Jobs
and found by the Board to be required or suitable for the development, retention, or
expansion of a regional corporate headquarters facility, a distribution center, warehouse
facilities, transportation facilities, and related parking facilities for Primary Job
employers. A Project may also include, to the extent permitted by law, but is not limited
to, projects authorized by Section 501.103 of the Act, which authorizes expenditures
found by the Board to be required or suitable for infrastructure necessary to promote or
develop new or expanded enterprises, limited to streets and roads, rail spurs, water and
sewer utilities, electric utilities, or gas utilities, drainage, site improvements (including
on-site parking facilities), and related improvements, as well as telecommunications and
internet improvements. For purposes of this definition, a "corporate headquarters
facility" means buildings proposed for construction or occupancy as the principal office
for a business enterprise's administrative and management services.
(n) Project Costs. The words "Project Costs" mean capital costs of the Project approved by
the EDC, and as further described in the Type A 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(f)(2) of
the Treasury Regulations that are paid or incurred on or after January 1, 2011.
(o) Property. The word "Property" means the property defined by metes and bounds in the
Type A Performance Agreement to include approximately 433.81 acres of undeveloped
land on which the Facility will be located.
(p) Soft Costs. The words "Soft Costs" mean capital costs that are allocable to the
Warehouse & Distribution Facilities and Warehouse Public Improvements and are
approved by the EDC 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, Texas Government
Code, including all costs associated with obtaining the Bond Validation Final Judgment;
1775.010\268.57.2
(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, transportation,
lodging, and meals; and (11) legal services in support of all of the foregoing activities.
(q) State Comptroller. The words "State Comptroller" mean the Office of the Texas
Comptroller of Public Accounts, or any successor agency.
(r) 'T'erm. The word "Term" means the term of this Agreement as specified in Section 2 of
this Agreement.
(s) Type A Performance Agreement. The words "Type A Performance Agreement" mean
the agreement entered into by and between the EDC, TXFM, and LMG on November 15,
2011, and approved by the City Council.
(t) Type A Reimbursement Account. The words "Type A Reimbursement Account" mean
the special account created or to be created by the City or the EDC into which Type A
Sales Tax Revenues are deposited in accordance with Sections 5 and 6 of the Type A
Performance Agreement from which Project Costs are reunbursed or paid.
(u) Type A Sales Tax Revenues. The words "Type A Sales Tax Revenues" mean the
proceeds of the Type A 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
EDC for its corporate purposes at an election conducted on January 17, 1998) that are
actually received by the EDC, or by the City on behalf of the EDC from the State
Comptroller, from the levy and collection of the Type A Sales Tax from and after.
November 15, 2011, on or with respect to taxable sales and transactions that occur only
within the Property.
(v) 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.
(w) Warehouse Public Improvements. The words "Warehouse Public Improvements"
means the public infrastructure and public improvements that are required or suitable to
promote or develop the Warehouse & Distribution Facilities.
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 EDC as of such date and allocable to the Warehouse &
177101 MUQ4 7
Distribution Facilities and Warehouse Public Improvements for which the City or the
EDC is entitled to reimbursement from Type A Sales Tax Revenues deposited into the
Type A Reimbursement Account but for which the City or the EDC 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 EDC 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 EDC as of such dates and allocable to
the Warehouse & Distribution Facilities and Warehouse Public Improvements for which
the City or the EDC is entitled to reimbursement from Type A Sales Tax Revenues
deposited into the Type A Reimbursement Account but for which the City or the EDC
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 EDC pursuant to this Section shall be reimbursed as
NFM Advances.
(b) Performance. The City, EDC, 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, EDC, and NFM Services.
SECTION 5. EVENTS OF DEFAULT.
(a) 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 non-performing parry
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.
(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.
1775.010126857.2
(c) Except 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.
(d) If the City or the EDC 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 City or the EDC 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.
SECTJON 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,
an
~ d any of its right, title or interest in or to this
Y Agreement to the
same extent and in the
same manner provided to the "Developer" under the Type A Performance Agreement,
Neither the City nor the EDC 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 warrants 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.
1775.01 M26857.2
(g) Execution of Agreement. The Board of Directors of the EDC shall authorize the
execution of this Agreement on behalf of the EDC.
(h) Force Majeure. It is expressly understood and agreed by the pai-ties 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 FedEx 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 EDC: The Colony Economic Development Corporation
Attn: Keri Samford
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
1775.010126857.2
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
(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.
['l'ine Remainder of this Page Intentionally Left Blank]
lhnc of A.n sn n n
TIDE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS
AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. 'I'RIS AGREEMENT IS
DATED AS OF EFFECTIVE AS OF THE E JF>F'ECTIVE DATE AS DEFINED HEREIN.
N FYI SERVICES:
NFM SER PYCES, LL C,
a Texas limited liability company
By:
Jeff L'ndf-'resident
Date: ,5 ,.14
1775 0 1ll AR57 9
EDC:
THE COLONY ECONOA11C DEVELOPMENT
CORPORATION,
a Texas non-profit corporation
By: ) o`;
Tom Tvardzik, President
Date:
ATTEST:
Femi Omonije, Secretary
1775.010\1,6857.2
CITY:
CITY OF THE COLONY, TEXAS,
a Texas home-Wile municipality
By: '
J e McCo Mayor
Da
ATTEST:
Christie Wilson, City Secretary
APPROVED AS TO FORM:
Jiff Moore, City Attorney
1775.010\26857.2