HomeMy WebLinkAboutResolution No. 2012-089
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 201.2-089
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING AN AMENDED AND RESTATED
CONSTRUCTION MANAGEMENT AGREEMENT WITH THE CITY OF
THE COLONY, TEXAS, THE COLONY ECONOMIC DEVELOPMENT
CORPORATION, AND NFNI SERVICES, LLC, A TEXAS LIMITED
LIABILITY COMPANY, FOR PAYMENT OF CERTAIN COSTS WITH
NET PROCEEDS OF BONDS; PROVIDING A SEVERABILITV 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 of The
Colony, Texas (the "City"), the EDC, and NFM Services, LLC, a Texas limited liability
company (hereinafter referred to as "NFM Services", and together with the City and the EDC,
the "Parties"), concerning reimbursement of certain Project Costs reimbursed or paid from bond
proceeds; and
WHEREAS, on May 15, 2012, the City Council approved Resolution No. 2012-036
which approved the Construction Management Agreement by and between the Parties; and
WHEREAS, the City Council finds and determines that the Construction Management
Agreement approved by the City Council on May 15, 2012, should be amended and restated to
reflect the mutual obligations of the Parties; and
WHEREAS, the Amended and Restated Construction Management Agreement, a copy
of which is attached hereto as Exhibit A, and is incorporated herein for all purposes, reflects the
mutual obligations of the Parties, and further amends, restates, and replaces in its entirety that
certain Construction Management Agreement dated May 15, 2012, executed by the Parties and
approved by City Council Resolution No. 2012-036, which agreement shall automatically and
unconditionally terminate (without further obligations, duties, rights, or liabilities of the parties
thereto) upon the execution of this Amended and Restated Construction Management
Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
SECTION 1. The findings set forth above are incorporated into the body of this Resolution
as if fully set forth herein.
SECTION 2. The City Council of the City of The Colony, Texas, does hereby approve
the Amended and Restated Construction Management 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 20t" day of NOVEMBER, 2012.
7 J e McCoOry Mayor
AT ST:
0
l
Christie Wilson, City Secretary b
APPROVED AS TO FORM:
(Jeff Moore, City Attorney
Exhibit A
Amended and Restated
Construction Management Agreement
City Manager's Fiscal Impact Statement
Amended and Restated Construction Management Agreement with the City of
The Colony, Texas, The Colony Economic Development Corporation,
and NFM Services, LLC
November 20, 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.
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1775.010\29921.1
AMENDED AND RESTATED
CONSTRUCTION MANAGEMENT AGREEMENT
This Amended and Restated 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 The Colony, Texas, a Texas home-rule municipality (the "City"), is executed to be
effective November 20, 2012 (the "Effective Date"). NFM Services, the Corporation, and the
City are sometimes individually referred to as a "Party" and collectively as the "Parties." Words
or phrases used in this Agreement that have their initial letters capitalized shall have the
meanings given to them in this introductory paragraph, in the RECITALS, and in Section 2
unless the context in which a word or phrase is used clearly requires a different meaning. All
references to "Section" mean a Section of this Agreement.
1. RECITALS. The following RECITALS are true and correct, form the basis upon which
the Parties have entered into this Agreement, establish the intent of the Parties in entering into
this Agreement, are legislative findings, and are part of the covenants, terms, and conditions of
this Agreement.
1.1 WHEREAS, this Agreement amends, restates, and replaces in its entirety that
certain Construction Management Agreement dated May 15, 2012, executed by the Parties and
approved by City Council Resolution No. 2012-039, which agreement shall automatically and
unconditionally terminate (without further obligations, duties, rights, or liabilities of the parties
thereto) upon the execution of this Agreement;
1.2 WHEREAS, on November 14, 2012, the Board of Directors of the Corporation
passed a resolution rescinding the agreements approved by Resolution No. 2012-039 and
Resolution No. 2012-042 of the City Council of the City;
1.3 WHEREAS, the Type A Performance Agreement provides that capital assets
funded by Financial Incentives have been bargained for to induce taxpayers to locate and operate
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their business within the Property and are intended to be grants and contributions to the capital of
such taxpayers;
1.4 WHEREAS, capital assets to be contributed from time to time to taxpayers as
grants and contributions to capital are not in exchange for or as consideration for any goods or
services provided by such taxpayers;
1.5 WHEREAS, capital assets to be contributed from time to time to taxpayers as
grants and contributions to capital will become a permanent part of such taxpayer's working
capital structure, will benefit such taxpayer in an amount commensurate with 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;
1.6 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;
1.7 WHEREAS, a Project, as defined herein, includes capital assets to be contributed
from time to time to taxpayers as grants and contributions to capital, including, but not limited
to, the approximately 1,280,000 square feet within the Facility that will be used for warehouse
and distribution proposes (the "Warehouse & Distribution Facilities") and the approximately
25,000 square feet within the Facility that will be used for regional headquarters purposes (the
"Regional Headquarters");
1.8 WHEREAS, a Project also includes public infrastructure and public
improvements that are required or suitable to promote or develop the Warehouse & Distribution
Facilities and Regional Headquarters (the "Public Improvements");
1.9 WHEREAS, the Type A Performance Agreement provides that Project Costs may
be reimbursed or paid fi•om Bond Proceeds in accordance with the Act and as required by the
applicable trust indenture;
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1.10 WHEREAS, the Type A Performance Agreement also provides that, as an
alternative to payment from Bond Proceeds, Project Costs may be reimbursed or paid from Type
A Sales Tax Revenues deposited into the Type A Reimbursement Account;
1.11 WHEREAS, the Parties contemplate that in the event Bond Proceeds are not
available to pay Project Costs, NFM Services will advance funds to or on behalf of the
Corporation to pay such Project Costs (the NFM Advances");
1.12 WHEREAS, the Parties contemplate that NFM Services will manage for or on
behalf of the City and the Corporation all activities directly or indirectly related to the
construction of Projects and the expenditure of Project Costs;
1.13 WHEREAS, the Parties contemplate that the Corporation will reimburse NFM
Services for the NFM Advances, together with Interest, from Bond Proceeds in accordance with
the Act, the applicable trust indenture, and the Type A Performance Agreement, or in the event
no Bond Proceeds are available to make such reimbursement, then on a monthly basis from Type
A Sales Tax Revenues deposited into the Type A Reimbursement Account in accordance with
the Act and the Type A Performance Agreement;
1.14 WHEREAS, the Parties contemplate that in addition to being reimbursed for
NFM Advances as described above, NFM Services will be paid a market-rate professional
services fee (the "Professional Services Fee") to manage for or on behalf of the City and the
Corporation activities related to the construction of Projects and the expenditure of Project Costs,
which Professional Services Fee constitutes a Project Cost under the Act and shall be payable
from Bond Proceeds in accordance with the Act, the applicable trust indenture, and the Type A
Performance Agreement; or, in the event no Bond Proceeds are available to make such
reimbursement, then the Professional Services Fee shall be payable fi-om Type A Sales Tax
Revenues deposited into the Type A Reimbursement Account in accordance with the Act and the
Type A Performance Agreement;
1.15 WHEREAS, the Parties have determined that the market-rate for the Professional
Services Fee paid to NFM Services to manage activities related to the construction of Projects
and the expenditure of Project Costs is a proportional share (as approved by the Parties and based
on the proportion of the Project to be financed by the Corporation) of $362,000.00 plus
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$3,000.00 per day beginning May 15, 2012, and continuing until the Facility and related public
infrastructure and public improvements have been completed; and
1.16 WHEREAS, the Parties desire to set forth their agreement with respect to the use
of Bond Proceeds or, in the event no Bond Proceeds are available, Type A Sales Tax Revenues
deposited into the Type A Reimbursement Account.
2. DEFINITIONS.
2.1 "121 LLC" means 121 Acquisition Company, LLC, a Texas limited liability
company.
2.2 "Act" is defined in the Type A Performance Agreement.
2.3 "Additional Facilities" are defined in Section 4 and restricted to those permitted
by the Act.
2.4 "Additional NFM Advances" are defined in Section 4.
2.5 "Additional Professional Services Fee" is defined in Section 4.
2.6 "Additional Public Improvements" are defined in Section 4 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 "Bond Proceeds" means the proceeds derived from the issuance and sale of Bonds
and deposited and made available for the payment of Project Costs in accordance with the Act
and the applicable trust indenture.
2.10 "Bonds" are defined in the Type A Performance Agreement.
2.11 "City" is defined in the introductory paragraph.
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2.12 "City Council" means the City Council of the City.
2.13 "Corporation" is defined in the introductory paragraph.
2.14 "Effective Date" is defined in the introductory paragraph.
2.15 "Facility" is defined in the Project and Finance Plan.
2.16 "Financial Incentives" are defined in the Type A Performance Agreement.
2.17 "Interest" means a market rate of interest approved by the Parties.
2.18 "Maximum Debt Limit" is defined in the Type A Performance Agreement.
2.19 "Notice" is defined in Section 9.
2.20 "NFM Advances" are defined in Section 1.11.
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 "Professional Services Fee" is defined in Section 1.14.
2.25 "Project" is defined in the Type A Performance Agreement.
2.26 "Project and Finance Plan" means the "Final Project and Reinvestment Zone
Financing Plan for Tax Increment Reinvestment Zone Number One, City of The Colony, Texas,"
adopted by the Board of Directors of the zone on November 15, 2011, and approved by the City
Council by Ordinance No. 2011-1929 on November 15, 2011, as amended from time to time.
2.27 "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 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.
2.28 "Propert y" is 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.
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2.29 "Public Improvements" are defined in Section 1.8.
2.30 "Regional Headquarters" is defined in Section 1.7.
2.31 "Soft Costs" mean capital costs that are allocable to the Warehouse & Distribution
Facilities, the Regional Headquarters 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) 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; (7) costs of issuance of Bonds; (8) permits and inspections; (9) project, construction,
and contract management and consulting; (10) travel eligible to be capitalized pursuant to
generally acceptable accounting principles, including, but not limited to, transportation, lodging,
and meals; and (11) legal services in support of all of the foregoing activities.
2.32 "Type A Performance Agreement" means the "Type A Corporation Performance
Agreement" executed by TxFM, Inc., the Corporation, and LMG Ventures, LLC effective
November 15, 2011, as amended, and approved by the City Council.
2.33 "Type A Reimbursement Account" is defined in the Type A Performance
Agreement.
2.34 "Type A Sales Tax Revenues" are defined in the Type A Performance Agreement.
2.35 "Warehouse & Distribution Facilities" are defined in Section 1.7.
3. WAREHOUSE & DISTRIBUTION FACILITIES, REGIONAL HEADQUARTERS
AND PUBLIC IMPROVEMENTS.
3.1 Unless and until Bond Proceeds are available to pay Project Costs, or in the event
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no Bonds are issued, unless and until Type A Sales Tax Revenues are on deposit in the Type A
Reimbursement Account in amounts sufficient to pay Project Costs, NFM Services agrees to
make the NFM Advances on a schedule consistent with the Type A Performance Agreement to
pay Project Costs. So long as Bond Proceeds are available, such funds shall be used to pay
Project Costs, and NFM Services shall have no obligation to make NFM Advances. In the event
Bond Proceeds are exhausted and the amount of Type A Sales Tax Revenues available in the
Type A Reimbursement Account is insufficient to pay Project Costs, NFM Services agrees to
make additional NFM Advances.
3.2 The Corporation, with the approval of the City as evidenced by the City Council's
approval of this Agreement, will use Bond Proceeds, or in the event no Bonds are issued or Bond
Proceeds are not available, then Type A Sales Tax Revenues deposited into the Type A
Reimbursement Account in the following order of priority:
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 SECOND, to pay for the undivided interest in the Property allocable to the
Warehouse & Distribution Facilities, the Regional Headquarters and Public
Improvements, which undivided interest was acquired by the Corporation by Special
Warranty Deed (including Promissory Note and Deed of Trust) from 121 LLC pursuant
to action taken by the Board of Directors of the Corporation at a meeting held for such
purpose on September 26, 2012;
3.2.3 THIRD, to reimburse the City for Project Costs paid or incurred by the
City;
3.2.4 FOURTH, to pay the Professional Services Fee;
3.2.5 FIFTH, to reimburse NFM Services for the NFM Advances, including
Interest on NFM Advances from the date of each advance until the advance is reimbursed
in full;
3.2.6 SIXTH, to pay directly Project Costs to third party contractors and service
providers engaged and managed by NFM Services; and
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3.2.7 LAST, to reimburse or pay any other Project Costs.
3.3 City Reimbursements. In the event the first series of Bonds has not been issued
by December 31, 2012, the City shall give written notice to NFM Services of the Project Costs
paid or incurred by the City or the Corporation as of such date and allocable to the Warehouse &
Distribution Facilities, the Regional Headquarters, and Public Improvements for which the City
or the Corporation is entitled to reimbursement from Type A Sales Tax Revenues deposited into
the Type A Reimbursement Account but for which the City or the Corporation 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
Corporation pursuant to this Section shall be reimbursed as NFM Advances. Thereafter, to the
extent Bonds are not issued after December 31, 2012 or to the extent Bond proceeds have been
exhausted, the City may, at its option, on each March 31, June 30, September 30, and December
31, give written notice to NFM Services of the Project Costs paid or incurred by the City or the
Corporation as of such dates and allocable to the Warehouse & Distribution Facilities, Regional
Headquarters, and Public Improvements for which the City or the Corporation is entitled to
reimbursement from Type A Sales Tax Revenues deposited into the Type A Reimbursement
Account but for which the City or the Corporation has not been reimbursed. The notice fi°om 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 Corporation pursuant to this Section
shall be reimbursed as NFM Advances.
3.4 Consistent with Section 3.2.6., by the execution of this Agreement, the City and
the Corporation each delegate to NFM Services the authority to enter into agreements, contracts,
instruments, or other documents with third party contractors and service providers engaged and
managed by NFM Services on behalf of and for the benefit of the City and the Corporation for
the construction of Projects. The City and the Corporation expressly retain all beneficial rights
to and interests in any contractual benefits, including but not limited to, liquidated darnages and
insurance proceeds. In addition, NFM Services shall comply with any applicable state and local
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procurement laws, and the City and the Corporation shall approve, in advance, any change orders
to the construction of the Warehouse & Distribution Facilities, the Regional Headquarters, and
Public Improvements. The City and the Corporation shall also determine, in their sole
discretion, whether the trustee, in its capacity as trustee under the applicable indentures related to
the Bonds, is added as a third party beneficiary to any agreement, contract, instrument, or other
document entered into by NFM Services on their behalf.
4. ADDITIONAL FACILITIES, IMPROVEMENTS, ADVANCES, AND FEE. If Bond
Proceeds are not available to pay Project Costs for additional Projects (including additional
interests in the Property or portions thereof) to be contributed from time to time to taxpayers as
grants and contributions to capital (the "Additional Facilities") and for additional public
infi•astructure and public improvements required or suitable to promote or develop the Additional
Facilities (the "Additional Public Improvements"), 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 Corporation (the "Additional NFM Advances") to pay Project Costs for the
Additional Facilities and Additional Public Improvements. NFM Services may, from time to
time, with the consent of the City and the Corporation, manage for or on behalf of the City and
the Corporation activities related to the construction of Projects and the expenditure of Project
Costs for the Additional Facilities and Additional Public Improvements, in which case NFM
Services shall be entitled to an additional market-rate professional services fee approved by the
Parties (the "Additional Professional Services Fee"). The Corporation will reimburse NFM
Services for the Additional NFM Advances, including Interest from the date of each advance until
the advance is reimbursed in full, and pay NFM Services the Additional Professional Services
Fee. Notwithstanding the specificity in this Section, if there are Additional Facilities, Additional
Public Improvements, Additional NFM Advances, and Additional Professional Services Fees, the
Parties intend that this Agreement, in its entirety (including, but not limited to the priority set
forth in Section 3.2 for the use of Bond Proceeds and available Type A Sales Tax Revenues
deposited into the Type A Reimbursement Account and the delegation of authority set forth in
Section 3.4), shall apply to such additional facilities, improvements, advances, and fee in the same
manner and to the same extent that this Agreement applies to the Warehouse and Distribution
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Facilities, the Regional Headquarters, Public Improvements, NFM Advances, and the
Professional Services Fee.
5. DEFAULT; REMEDIES.
5.1 If a Party fails to perfonn 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.
5.2 In addition to Defaults described in Section 5.1, 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.
5.3 Except as provided in Section 5.2, if NFM Services is in Default under this
Agreement, the sole and exclusive remedy of the City is to enforce specific performance of this
Agreement.
5.4 Except as provided by the applicable trust indenture and the related Bonds, if the
Corporation is in Default, the sole and exclusive remedy of NFM Services is to enforce specific
performance of this Agreement.
5.5 No Default by either Party shall entitle any other Party to terminate this
Agreement.
6. REPRESENTATIONS OF THE CORPORATION.
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6.1 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.
6.2 The Corporation has the power, authority, and legal right to enter into and
perform its obligations under this Agreement, and the execution, delivery, and performance of
those obligations: (1) has been duly authorized; (2) will not, to the best of the Corporation's
knowledge, violate any applicable judgment, order, law, or regulation; and (3) does not
constitute a default under, or result in the creation of, any monetary lien, charge, encumbrance,
or security interest upon any of the Corporation's assets under any agreement or instrument to
which the Corporation is a party, or by which the Corporation or its assets may be bound or
affected.
6.3 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.
6.4 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.
7. REPRESENTATIONS OF NFM SERVICES.
7.1 NFM Services is a Texas limited liability company duly authorized, created, and
existing in good standing under the laws of the State of Texas.
7.2 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.
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7.3 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.
7.4 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.
8. REPRESENTATIONS OF THE CITY.
8.1 The City is a Texas home-rule municipal corporation duly authorized, created,
and existing under the laws of the State of Texas.
8.2 The City has the power, authority, and legal right to enter into and perform its
obligations under this Agreement, and the execution, delivery, and performance of those
obligations: (1) have been duly authorized; (2) will not, to the best knowledge of the City,
violate any judgment, order, law, or regulation applicable to the City; and (3) do not constitute a
default under, or result in the creation of, any monetary lien, charge, encumbrance, or security
interest upon any assets of the City under any agreement or instrument to which the City is a
party, or by which the City or its assets may be bound or affected.
8.3 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.
8.4 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.
9. 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 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.
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To NFM Services: NFM Services, LLC
Attn: Doug Hamlin
700S.72 nd Street
Omaha, NE 68114
With a copy to: Glast, Phillips & Murray
Attn: Thomas Rosen
14801 Quorum Drive, Suite 500
Dallas, TX 75254
Shupe Ventura Lindelow & Olson, PLLC
Attn: Misty Ventura
9406 Biscayne Blvd.
Dallas, TX 75218
To the Corporation:
The Colony Economic Development Corporation
Attn: Keri Samford
6800 Main Street
The Colony, Texas 75056
With a copes:
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
10. ASSIGNMENT. NFM Services has the right to assign this Agreement, in whole or in
part, and any of its obligations, right, title, or interest in or to this Agreement, to the same extent
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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
obligations, right, title, or interest in or to this Agreement without the prior written consent of
NFM Services.
11. ADDITIONAL PROVISIONS.
11.1 Term. This Agreement shall begin on the Effective Date and continue until the
Corporation has reimbursed NFM Services for the NFM Advances (and, if applicable, the
Additional NFM Advances), including Interest on NFM Advances, and has paid to NFM
Services the Professional Services Fee (and, if applicable, the Additional Professional Services
Fee).
11.2 Amendments. No alteration of or amendment to this Agreement shall be effective
unless given in writing and signed by the Party sought to be charged or bound 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
11.3 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.
11.4 Binding _Obligation. This Agreement shall become a binding obligation of the
Parties upon execution by all Parties.
11.5 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.
11.6 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.
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11.7 Force Majeure. If the performance by any Party of its obligations under this
Agreement is delayed due to unexpected circumstances beyond the reasonable control of such
Party, then such Party shall be excused from performance during the period that such
circumstances continue so long as such Party is diligently and continuously seeking to eliminate
the circumstances or otherwise resume performance in spite of such circumstances.
11.8 Severability. If a court finds any provision of this Agreement to be invalid or
unenforceable as to any person or circumstance, such finding shall not render the provision
invalid or unenforceable as to any other persons or circumstances. To the extent feasible, any
provision found to be invalid or unenforceable shall be deemed to be modified to be valid and
enforceable; however, if the provision cannot be so modified, it shall be stricken from this
Agreement, and all other provisions of this Agreement shall remain valid and enforceable and
unaffected by the stricken provision.
11.9 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.
11.10 Time of the Essence. Time is of the essence in the performance of this
Agreement.
11.11 Execution of Agreement. The Board of Directors of the Corporation shall
authorize the execution of this Agreement on behalf of the Corporation.
11.12 Exemption from Public Bid Requirements. The Corporation is not required by
State law to comply with the competitive bidding requirements applicable to the City.
11.13 Undocumented Workers. NFM Services certifies (and shall cause each permitted
assignee under Section 10 to certify) that it does not and will not knowingly employ an
undocumented worker (in accordance with Chapter 2264 of the Texas Government Code, as
amended) in connection with the performance of its obligations under this Agreement. If during
the Term of this Agreement, NFM Services or any permitted assignee is convicted of a violation
under 8 U.S.C. § 1324a(f), NFM Services or the assignee that is convicted shall repay the
amount of the public subsidy provided under this Agreement as required by law. Pursuant to
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Section 2264.101, Texas Government Code, a business is not liable for a violation of Chapter
2264 by a subsidiary, affiliate, or franchisee of the business, or by a person with whom the
business contracts.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as
of the 20t" day of November, 2012.
NFM Services
NFM Services, LLC
a Texas limited liabilit
By:
Jef ' d, e n t
CORPORATION
The Colony Economic Development Corporation,
a Texas non-profit corporation
By:
Tom Tvardzik, President
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CITY
The City of The Colony, Texas
A Texas home-rule municipality
By:
Je McCourry, Mayor
ST.
AT
i
Christie Wilson, City Secretary
APP AST F .
Jeff Moore, City Attorney
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