HomeMy WebLinkAboutResolution No. 2012-087
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-087
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, RESCINDING A CONSTRUCTION MANAGEMENT
AGREEMENT, RESOLUTION NO. 2012-040, AND RESCINDING A
REIMBURSEMENT AGREEMENT, RESOLUTION NO. 2012-043, BOTH
APPROVED ON MAY 151 2012; PROVIDING A SEVERABILITY
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, The Colony Local Development Corporation (hereinafter referred to as
the "LDC") is a Texas non-profit corporation created pursuant to Chapter 431 of the Texas
Transportation Code, as amended, and Chapter 394 of the Texas Local Government Code, as
amended; and
WHEREAS, on May 15, 2012, the Board of Directors of the LDC approved a Resolution
which approved a Construction Management Agreement by and between the City, the LDC, and
NFM Services, LLC, a Texas limited liability company (hereinafter referred to as "NFM
Services"), concerning reimbursement of certain TIF Project Costs allocable to the Public
Improvements; and
WHEREAS, on May 15, 2012, the Board of Directors of the LDC also approved a
Resolution which approved a Reimbursement Agreement by and between the City, the LDC, and
NFM Services concerning reimbursement for TIF Project Costs allocable to the Retail Facilities,
Additional Land, and Public Improvements; and
WHEREAS, on May 15, 2012, the City Council approved Resolution No. 2012-40
which approved the Construction Management Agreement by and between the City, the LDC,
and NFM Services, a copy of Resolution No. 2012-40, and said Construction Management
Agreement are attached hereto as Exhibit A; and
WHEREAS, on May 15, 2012, the City Council also approved Resolution No. 2012-043
which approved the Reimbursement Agreement by and between the City, the LDC, and NFM
Services, a copy of Resolution No. 2012-043, and said Reimbursement Agreement is attached
hereto as Exhibit 13; and
WHEREAS, the Construction Management Agreement approved by Resolution No.
2012-040. and the Reimbursement Agreement approved by Resolution No. 2012-043 were
intended to provide for reimbursement of certain costs in the event the LDC did not issue bonds
for the payment of such costs; and
WHEREAS, the LDC intends to issue bonds to finance the TIF Projects and the
proceeds from such bonds will be available to pay TIF Project Costs; and
WHEREAS, on November 20, 2012, the Board of Directors of the LDC approved the
rescission of the Construction Management Agreement attached to and approved by Resolution
No. 2012-040; and
WHEREAS, on November 20, 2012, the Board of Directors of the LDC approved the
rescission of the Reimbursement Agreement attached to and approved by Resolution No. 2012-
043; and
WHEREAS, the City Council finds and determines that Resolution No. 2012-040 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. 2012-043 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 filly set forth herein.
SECTION 2. The City Council does hereby rescind for all purposes Resolution No.
2012-040 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.
2012-043 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 frill 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
Joe McCoii-r-y`Mayor
ATTEST:
Christie Wilson, City Secretary
APPROVED AS TO FORM: '..~t.
r'
Jeff Moore, City Attorney='.a a ' .
Exhibit A
Construction Management Agreement
Resolution No. 2012-040
i
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-040
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 LOCAL DEVELOPMENT CORPORATION AND NFM
SERVICES, LLC, A TEXAS LIMITED LIABILITY COMPANY FOR
PAYMENT OF CERTAIN COSTS WITH TAX INCREMENT REVENUE;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, The Colony Local Development Corporation (hereinafter referred to as
the -LDC") is a Texas non-profit corporation created pursuant to Chapter 431 of the Texas
Transportation Code, as amended, and Chapter 394 of the Texas Local Government Code, as
amended; and
WHEREAS, the City, LDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that NFM Services will advance finds to or on behalf of the City
and/or the LDC to pay TIF Project Costs allocable to the Public Improvements, as that term is
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 for the City of The Colony, Texas, finds and determines
that the expenditures specified in the Construction Management Agreement, a copy of which is
attached hereto as Exhibit A, is in the best interest of the City of the Colony, Texas.
i`lOW 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 folly 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 cirC1,11-nstances, is held invalid or rulconstitutional
by a Coln-f 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.
J e McCour , Mayor
ATTEST:
Christie Wilson, City Secretary
APPROVED AS TO FORivY:
t
Jeff' Moore, City Attorney
Exhibit A
[Agreement]
it
CONSTRUCTION MANAGEMENT AGREEMENT
This Construction Management Agreement (this "Agreement") among NFM
Services, LLC, a Texas limited liability company ("NFM Services"), The Colony Local
Development Corporation, a Texas nonprofit corporation (the "Corporation"), and the
City of The Colony, Texas, a Texas home-rule municipality (the "City"), 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 rnanings givon to them in this introductory paragraph, in the
F= LC;ITALS, 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 WHERE=AS, the 0evelopmerit Agreement provides that capital assets that
are contributed to taxpayers as part of L.c.;OnorrriG Development Programs have been
bargained for to induce the taxpayers to locate and operate their business within the
Property and are intended to be grants and contribution; to the capital Of such
taxpayers;
1.2 WI ILI E A , capital assets to be contributed from time to time to taxpayers
as grant;; and contributions to capital are riot in exchange for or as consideration for any
goods or services provided by such taxpayers pur4;uant to this Agreornent 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
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working capital structure, will benefit such taxpayer in an amount commensurate with
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 WFIC-RM S, 11 Projects include capital assets to be contributed from time
to time to taxpayers as grants and contributions to capital including, but not limited to,
(1) the approximately 546,000 square feet within the Facility that will be used for retail
purposes (the "Retail Facilities") and (2) the approximately 30Y ;acres of the Property
that will be used for additional development (the "Additional Land");
1.6 WHEREAS, TIF Projects also include public infrastructure and public
improvements (including surface and structured parking) that are required or suitable to
promote or develop the Retail Facilities and the Additional Land (the "Public
Improvements");
1.7 WHEREAS, the Development: Agreement provides that TIF Project Costs
may be reimbursed or paid from "I'ax Increment Revenue deposited in accordance with
the Act;
1.£3 WI lI :REAS, the Parties contemplate that NF M Services will advance
funds to or on behalf of the City and/or the Corporation to pay TIF Project: Costs
allocable to the Public Improvements (the "Nl-M Advances");
1.9 WHEREAS), the Parties contemplate that NFM Services will manage for or
on behalf of the City and/or° the Corporation all activifies directly or indirectly related to
the expenditure of TIF Project Gosts allocable to the Public Improvements;
1.10 WHFRLAS, the ['allies contemplate that the City and/or the Corporation
will reimburse NFM Services for the NFM Advances on a monthly basis from Tax
Increment Revenue in accordance with the Act;
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1. 11 WHEREAS, the Parties contemplate that in addition to being reimbursed
for NFM Advances from Tax Increment Revenue, NFM Services will be paid from the
same sources a portion of a "Construction Management Fee" to manage for or on
behalf of the City and/or the Corporation activities related to the expenditure of TIF
Project Costs allocable to the Public Improvements;
1.12 WHERI~--"AS, 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
is completed;
1.13 WHERFA -3, the sure of the Construction Management lee, Additional
Construction Management Fee, and any other similar construction management fee
paid to Nl-M :services in connection with activities related to managing the expenditure
of TIF 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
the use of Tax Increment Revenue to pay or reimburse the Corporation's administrative
costs, land acquisition costs, TIF Project Costs paid or incurred by the City, the
Construction Management 1°ee, NFM /advances, and third-party contractors and service
providers.
2. DEFINITIONS.
2.1 "121 LLC" means 121 Acquisition Company, I,LC, a Texas limited liability
company.
2.2 "Act" is defined in the Development /agreement.
2.3 "Additional Construction Management_ I cad" is defined in section 3.3.
2.4 "Additional Land" is defined in Section 1.5.
2.5 "Additional NFM Advances" are defined in Section 3.3.
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2.6 "Additional Public Improvements" are defined in Section 3.3 and restricted
to those permitted by the Act.
2.7 "Agreement" is defined in the introductory paragraph.
2.8 "Bond Validation Final Judgment" means 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, Texas Government Code, in the 53rd Judicial District Court of
Travis County, Texas, Cause No. 0-1-GV-11-001995.
2.9 "City" is defined in the introductory paragraph.
2.10 "°City_Gouncil" rno ans, the City (pouncii of the City.
2.11 "Construction M anawwent Fee" is defined in Section 1.11.
2.12 "Corporation" is defined in the introductory paragraph.
2.13 "Development Agreement" means the "Development and Tax Increment
Payment Agreement" executed by the Board of Directors of the Tax Increment
Reinvestment Zone Number One, City of The Colony, Texas, the City, the Corporation,
TXFM, Inc., and LMG Ventures, LLC effective November 15, 2011, as amended, and
approved by the City Council.
2.1/1 "I conotnic Devolop_Me;nt ProcArdnrr: " arc; defirlect in the Project and
Finance Plan.
2.15 "Lffective;_ Dote" is defined in the introductory paragraph.
2.16 "Facility" is defined in the Project and Finance Plan.
2.17 "Maximum Debt Limit" is defined in the Development Agreement.
2.18 "Notice," is defined in Section 8.
2.19 "NI M Advances" are defined in Section 1.8.
2.20 "M"INI 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%1;
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2.21 "NFM Services" is defined in the introductory paragraph.
2.22 "Parties" are defined in the introductory paragraph.
2.23 "Party" is defined in the introductory paragraph.
2.24 "Private Debt" is defined in the Development Agreement.
2.25 "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 hoard of Directors of the zone on November 15, 2011,
and approved by the City Council by Ordinance No. 20111929 on November 15, 2011,
as amended from time to time.
2.26 "Prcpgrty" is defined by metes and bounds in the Project and Finance
flan 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 "Retail Facilities" are defined in Section 1.5.
2.29 "Sales Tax Increment" is defined in the Project and Finance Plan.
2.30 "Soft Costs" mean capital costs that are allocable to the Detail I `ac,ilitie.~
Additional Land, and 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 prelirrtinary 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 geotechni(-,.al data, and crrvironmental assessments); (3) negotiating
development regulations; (4) negotiating economic development incentive; 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
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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.
2.31 "Tax Increment" is defined in the Project and Finance Plan.
2.32 "Tax Increment Fund" is defined in the Project and Finance Plan.
2.33 "Tax Increment Revenue" means the Tax Increment and Sales Tax
Revenue deposited into the Tax Increment (Fund as required by the Act, the Project and
Finance Flan, and the I_ ovoloprnent Agreernent.
2.34. "TIF Proiecfs' are defined in the Project and Finance Flan.
2.35 "TIF Project Costs" are capital costs of TIF Projects approved by the
Corporation and, as further described in the Project and Finance Plan, TIF 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. `T'IF Project Costs are also intended to include (as a capitalized cost in
accordance with generally accepted accounting principles) the full- ime management
services of Tod Maurine, an employoo of the City, at an annual baso compensation of
$300,000 plus customary employment benefits beginning November 16, 2011, and
continuing thereafter until the Facility is completed, at which time Mr. Maurina (who will
at all times have remained an ernployee of tho City) will return to his rogular duties as
the Assistant City Manager of Operations.
2.36 "Undivided C orDOMtiOll Interest" is defined in Section 3.2.2.
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3. PUBLIC IMPROVEMENTS.
3.1 NFM Services agrees to make the NFM Advances on a schedule
consistent with the Development Agreement to pay TIF 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 Tax Increment Revenue:
3.2.1 FIRST, to pay the Corporation's actual administration costs
allocable to the Public Improvements.
3.2.2 17J,', )ND, to acquire, in the name of the Corporation from 121 H-G,
an undivided interest in arid to the I'lroperty approve(.! by NI~M Services and
allocable to the Retail Facilities, /additional Land, arid Public Improvements (the
"Undivided Corporation Interest"). The purchase price for the Undivided
Corporation 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 H-G. The
Undivided Corporation Interest shall be free; of monetary liens arid monetary
en(;urnbrance: (other than a de;od-of--trust lien in favor of 121 LLG to secure
payment of the purchase price), but otherwise subject to all matter: of record ai
the time of the conveyance, including restrictions contemplated by the
Development /Agreement.
3.2.3 "I'l I II ~I , to reirrrbunso, the City for TII 1 Project Costs paid or incurred
by the City and allocable to the Public Irrrprovements.
3.2.4 F_OURTI-1, to pay the (construction Management
3.2.5 FI IJ, to reimburse NI-IM 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.
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3.2.6 LAST, to reimburse or pay any other TIF 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 TIF Project Costs allocable to additional public,
infrastructure and public improvements (the "Additional Public Improvements"). NFM
Services may, frorn 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 TIF Project Costs allocable to the Additional Public Improvements, in
which case NI -'M :3ervices shall be entitled to an additional construction management
too (the "Additional Construction Management Fee"). The, City arid/or the Corporation
will reimburse NFIVI 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 Tax
Increment Revenue. 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 entirety shall apply
thereto in the sarrie, manner and to the same extent that it applies to the Public
Improvements, NI-:M Advances, ~1nd the Construction Management tree.
4. DEI_'AULT: {®L-WI-DII S.
4.1 If a Party tails to per corm any material obligation required by thing
Agreement, the other Marty may give written Notice of EMCh failure to the non-porforrning
Party, which Notice shall describe in reasonable detail the r-iature of the failed obligation.
If the iron-perforrrring Party does not cure or, remedy the failed obligation within a
reasonable period of tim< 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 Marty shall be in "Default" under this Agreement.
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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 F.xcept: as provided in Section 4.2, if NI-'M 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.
4.5 Fxcept as provided in :section 4.4, if the Corporation is in Mfault, the sole
and exclusive; remedies of NI=1VI ;yc3rviGOS are W: (1) eni'orce specific: perfOrrrr~ancc of thi,;
Agreement.; and (2) exercise any rights recorded against the property to secure
performance by the Corporation or the City under this Agreement, including, right;
tinder any (a) covenants, conditions and restrictions; (b) easements; (c) conveyance
documents that include a determinable interest, reversion or other similar right; or (d) o
deed of trust to secure performance.
4.6 No Default by either fatly shall ontitle; any other Party to terminate this
Agreement.
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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 riot constitute a default under, or, result in the creation of, any
monetary lien, charge, encurrrbrarwo, 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 the City's consent and approval have been obtained.
6. 1®LPRESEN TATIONS OFF NI'M Services.
6.1 NFM Services is a l-exas limited liability company duly authorized,
created, and existing in good standing under the laws of the State of `I"exas.
6.2 NFM ervices has the power, authority, and legal right to enter into and
perform its obligations under this Agreement, and the execution, delivery, and
I_aerformanco of those obligation.,;: (1) have boon duly authorixed; will not, to the boslt
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
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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
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. RFF1RFq_1:N`rATI0NS OF TFIF 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 laity under any agreement of
instrument to which the City is a party, or by which the City or its assets may be bound
or affected.
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 terrns.
7.4 The execration, delivery, and performance of this Agreement by the City do
not require the consent or approval of any peresorr or entity that has riot already been
obtained.
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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 EedEx 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 N{mM Services: NFM Services, I-LC
Attn: Doug Hamlin
700 S. 72nd Street
Omaha, NF 68114.
Withh cp y to: Glast, F'hillips & Murray
Attn: Thorrlas 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 I.ocal Development Corporation
Attn: Troy Powell, City Manager
6800 Main Street
The Colony, "i c:x~.IS /5056
With a qppy tp:
Drown arid Hofmeister, 11P
Attn: Jeff Moore
740 Cast Campbell Road, Suite 800
Itichard;orl, 'i"X 7:~08`I
o the C;ii:y:
he City of The Colony, I exas
Attn: I'roy Powell, City Manager
6800 Main Street
The Colony, Texas 75056
CMA NFM Services NO BONDS LGC - Retail, Land, & Public Improvements
Page 12
1775.01 0\26953.3
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 Development
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 I-ee).
10.1 Amend merits'. No alteration of or amendment to this Agreement shall be
efrc"ctive unless given in writing and signed by the Party sought to be Charged or bound
by the alteration or amendment. Na Course of dealing on the part of any Party, or failure
or delay by any I'arty with respect to the exercise of any right, power, or privilege under
this Agreement, shall operate as a waiver thereof.
10.3 Ap w ble_ Law; Vc nt-jo. This Agreerne;nt shall be governed by and
construed in accordam.;o with the laws of the :Mate of Texas, and all obligations of the
Parties created hereunder are perforrnable in Denton County, Texas. Venue for any
action arising under this Agroornont shall lie; in thc, :state district courts of Denton
County, Texas.
CMA NFM Services NO BONDS LGC - Retail, Land, & Public Improvements
Page 13
1775.010\26953.3
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.
101 Force Maieure. 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
extant 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.
10.9 Singular and 1=11.iral.. Where the context permits, words used in the
singular, also include the plural and vice versa, and the definition: of such words in
the singular also apply to such wordy when WSOd in the plural and vice versa.
10.10 Time of the L'ssence. `hime is of thc, essence in tho 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.
CMA NFM Services NO BONDS LGC - Retail, Land, & Public Improvements
Page 14
1775.010\26953.3
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 (lode, as emended) in connection with the performance of its obligations
under this Agreement. If during the Terris 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, Tex~is
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.
NFIVI Services
NFM Services, I__LC
a Texas limited liability company
13y:
Jeff Lind, President
CORPORATION
.1"he Colony Local Development Corporation,
a Texas non-profit corporations-
Icy:
Joc, Mc(;ou~'ry, President
Richard Boyer, Secr~tpfy
CMA NFM Services NO BONDS LGC - Retail, Land, & Public Improvements
Page 15
1775.010\26953.3
I
CITY
The City of The Colony, Texas
A Texas home-rule municipality
Y:
1 ?e McCou ry, Mayor
Ai,ET:
Christie Wilson, City Secretary
Al /V'TO FORM:
Jeff Moore; City Attorney
CMA NFM Services NO BONDS LGC - Retail, Land, & Public Improvements
Page 16
1775.010\26953.3
City Manager's Fiscal Impact Statement
Construction Management Agreement (No Bonds) Between The Colony Local
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.
Troy C. Powell
City Manager
1775.010\26789.1
Exhibit B
Reimbursement Agreement
Resolution No. 2012-043
i
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-043
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 LOCAL DEVELOPMENT CORPORATION, AND NFM
SERVICES, LLC, A TEXAS LIMITED LIABILITY COMPANY;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, The Colony Local Development Corporation (hereinafter referred to as
the "LDC") is a Texas non-profit corporation created pursuant to Chapter 431 of the Texas
Transportation Code, as amended, and Chapter 394 of the Texas Local Government Code, as
amended; and
WHEREAS, the City, LDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that the City and/or LDC may advance funds to pay TIF Project
Costs allocable to the Retail Facilities, Additional Land, 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 LDC.
NOW 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
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 trace 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 frill 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 15th day of NIAY, 2012. ~7
e McCoui ,Mayor
ATTES
i
C ristie Wilson, City Secretary , Y.
APPROVED AS TO FORNI: f`
Jeff Moor~~ity Attorney
Exhibit A
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 Local Development Corporation, a Texas non-profit corporation (the "LDC"), and
NFM Services, LLC, a Texas limited liability company ("NFM Services"), and collectively
referred to as the "Parties."
WHEREAS, the LDC is a Texas non-profit corporation created pursuant to Chapter
431 of the Texas Transportation Code, as amended, and Chapter 394 of the Texas Local
Government Code, as amended; and
WHEREAS, the City, LDC, and NFM Services contemplate that the City and/or LDC
may advance funds to pay TIF Project Costs allocable to the Retail Facilities, Additional Land,
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 Board of Directors of The Colony Local Development Corporation,
find and determine that the approval of the Agreement, a copy of which is attached hereto as
Exhibit A, is in the best interest of the City of the Colony, Texas, and the LDC.
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 LDC, 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, LDC, and NFM Services have been performed in full, unless
terminated sooner under the provisions hereof.
SECTION 3. DEFINITIONS.
The following words shall have the following meanings when used in this Agreement.
(a) Act. The word "Act" means the Tax Increment Financing Act, Chapter 311 of the Texas
Tax Code, as amended.
(b) Additional Land. The words "Additional Land" mean the approximately 307 acres of
the Property that will be used for additional development.
(c) 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.
(d) Bond. The word "Bond" or "Bonds" mean any bond, note, or other evidence of
indebtedness issued by the LDC, and secured by funds in the Tax Increment Fund.
(e) Bond Validation Final Judgment. The words "Bond Validation Final Judgment" mean
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 of the Texas Government Code,
in the 53rd Judicial District Court of Travis County, Texas, Cause No. 0-1-GV-11-
001995.
(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) Development Agreement. The words "Development Agreement" mean the "Development
and Tax Increment Payment Agreement" executed by the Board of Directors of the Tax
Increment Reinvestment Zone Number One, City of The Colony, Texas, the City, the LDC,
TXFM, Inc., and LMG Ventures, LLC effective November 15, 2011, as amended, and
approved by the City Council.
(i) Effective Date. The words "Effective Date" mean May 15, 2012.
(j) Facility. The word "Facility" has the same meaning as defined in the Project and
Finance Plan.
(k) LDC. The word "LDC" means The Colony Local Development Corporation, a Texas non-
profit corporation, and it successors and assigns. For purposes of this Agreement, LDC's
address is 6800 Main Street, The Colony, Texas 75056.
(1) NFM Advances. The words "NFM Advances" mean the funds advanced by NFM
Services to or on behalf of the City and/or the LDC to pay TIF Project Costs allocable to
the Retail Facilities, Additional Land, and Public Improvements.
(m) 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.
(n) Public Improvements. The words "Public Improvements" mean the public
infrastructure and public improvements (including surface and structured parking) that
are required or suitable to promote or develop the Retail Facilities and the Additional
Land.
(o) Private Debt. The words "Private Debt" have the same meaning as defined in the
Development Agreement to mean bonds, notes, loans, or other forms of indebtedness
issued or obtained by LMG Ventures, LLC and TXFM, Inc., to pay TIF Project Costs and
secured by a collateral assignment of any payments made to LMG Ventures, LLC and
TXFM, Inc., from the Tax Increment Fund in accordance with the Act.
(p) Project and Finance Plan. The words "Project and Finance Plan" mean 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.
(q) Property. The word "Property" means the property defined by metes and bounds in the
Development Agreement to include approximately 433.81 acres of undeveloped land on
which the Facility will be located.
(r) Retail Facilities. The words "Retail Facilities" mean the approximately 546,000 square
feet within the Facility that will be used for retail purposes.
(s) Soft Costs. The words "Soft Costs" mean capital costs that are allocable to the Retail
Facilities, Additional Land, and 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 or by
121 LLC in acquiring and holding the Property; (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.
(t) State Comptroller. The words "State Comptroller" mean the Office of the Texas
Comptroller of Public Accounts, or any successor agency.
(u) Tax Increment Fund. The words "Tax Increment Fund" have the same meaning as
defined in the Project and Finance Plan.
I
(v) Term. The word "Term" means the term of this Agreement as specified in Section 2 of
this Agreement.
(w) TIF Project Costs. The words "TIF Project Costs" mean the capital costs of TIF
Projects approved by the LDC, and as further described in the Project and Finance Plan,
TIF 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. TIF Project Costs are also intended to include (as a capitalized cost in
accordance with generally accepted accounting principles) the full-time management
services of Tod Maurina, an employee of the City, at an annual base compensation of
$300,000 plus customary employment benefits beginning November 16, 2011, and
continuing thereafter until the Facility is completed, at which time Mr. Maurina (who will
at all times have remained an employee of the City) will return to his regular duties as the
Assistant City Manager of Operations.
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 TIF Project
Costs paid or incurred by the City or the LDC as of such date and allocable to the Retail
Facilities, Additional Land, and Public Improvements for which the City or the LDC is
entitled to reimbursement from the Tax Increment Fund but for which the City or the
LDC has not been reimbursed. The notice from the City shall include an accounting of
the TIF 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 LDC 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 TIF Project
Costs paid or incurred by the City or the LDC as of such dates and allocable to the Retail
Facilities, Additional Land, and Public Improvements for which the City or the LDC is
entitled to reimbursement from the Tax Increment Fund but for which the City or the
LDC has not been reimbursed. The notice from the City shall include an accounting of
the TIF 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 LDC pursuant to this Section shall be
reimbursed as NFM Advances.
i
it
it
(b) Performance. The City, LDC, 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, LDC, and NFM Services.
SECTION S. 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 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.
(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) 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 LDC 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 LDC 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.
(c) 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 Development Agreement. Neither
the City nor the LDC 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.
(g) Execution of Agreement. The Board of Directors of the LDC shall authorize the
execution of this Agreement on behalf of the LDC.
(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 in the
party so obligated or pennitted 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 LDC: The Colony Local Development Corporation
Attn: Joe McCourry
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
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]
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.
NFM SERVICES:
NFM SERVICES, LL C,
a Texas limited liability company
By: /
Jeff I,3'a resit e
Date: Za
LDC:
THE COLONY LOCAL
DEVELOPMENT CORPORATION,
a Texas non-profit corporation
By: G
J e McCoun , President
Date:
ATTEST:
f J
Richard Boyer, Secret
i
I
CITY:
CITY OF THE COLONY, TEXAS,
a Texas home-rule municipality
By: G
oe McCo Mayor
. Date,
ATTEST••
Christie Wilson, City Secretary
APPROVED AS TO FORM:
Jeff Moore, City Attorney
,I