HomeMy WebLinkAboutResolution No. 2012-090
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-090
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 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, 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 of The
Colony, Texas (the "City"), the LDC, and NFM Services, LLC, a Texas limited liability
company (hereinafter referred to as "NFM Services", and together with the City and the LDC,
the "Parties"), concerning reimbursement of certain TIF Project Costs reimbursed or paid from
bond proceeds; and
WHEREAS, on May 15, 2012, the City Council approved Resolution No. 2012-037
which approved the Construction Management Agreement by and between the Parties; and
WHEREAS, the City Council finds and determines that the Constriction 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 fin•ther 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. 2012-037, 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.
J e McCou - y, Mayor
ATTEST- J
Christie Wilson, City Secretary
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 Local 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.
Tro owell
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y Manager
71775.010\29921.1
November 20, 2012
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
Local 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" shall mean a Section of this Agreement.
1. RECITALS. The following RECITALS are true and correct, form the basis upon which
the Parties have entered into this Agreement, establish the intent of the Parties in entering into
this Agreement, are legislative findings, and are part of the covenants, terms, and conditions of
this Agreement.
1.1 WHEREAS, 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. 2012-037, 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 20, 2012, the Board of Directors of the Corporation
passed a resolution rescinding the agreements approved by Resolution No. 2012-040 and
Resolution No. 2012-043 of the City Council of the City;
1.3 WHEREAS, the Development and Payment Agreement provides for Economic
Development Projects funded by Economic Development Grants that have been bargained for to
induce taxpayers to locate and operate their business within the Zone 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
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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 Zone and the City;
1.7 WHEREAS, the Development and Payment Agreement provides for Public
Works Projects necessary to promote or develop the Economic Development Projects;
1.8 WHEREAS, Economic Development Projects, as defined herein, include capital
assets to be contributed from time to time to taxpayers as grants and contributions to capital,
including, but not limited to, approximately 546,000 square feet within the Facility that will be
used for retail sales to the general public (the "Retail Facilities"), approximately 280.41 acres of
ancillary land that will be used for the Related Development (the "Ancillar. Land"), and surface
and structured parking that will remain open to the public and will serve the Facility (the
"Parking Facilities");
1.9 WHEREAS, Public Works Projects, as defined herein, include public
infrastructure and site work (collectively, the "Public Improvements") necessary to promote or
develop the Retail Facilities, Ancillary Land, and Parking Facilities;
1.10 WHEREAS, the Development and Payment Agreement provides that Project
Costs may be reimbursed or paid from Bond Proceeds in accordance with the Act and as required
by the applicable trust indenture;
1.11 WHEREAS, the Development and Payment Agreement provides that, as an
alternative to payment from Bond Proceeds, Project Costs may be reimbursed or paid from the
Tax Increment Fund;
1.12 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 costs (the ,~NFM Advances");
1.13 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 the Economic Development Projects and Public Works Projects and the
expenditure of Project Costs;
1.14 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 Development and Payment Agreement, or in the
event no Bond Proceeds are available to make such reimbursement, then on a monthly basis from
the Tax Increment Fund in accordance with the Act and the Development and Payment
Agreement;
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1.15 WHEREAS, the Parties contemplate that in addition to being reimbursed for
NFM Advances, 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 the Economic Development Projects and Public Works Projects and
the expenditure of Project Costs, which Professional Services Fee constitutes a Qualified Cost
under the Development and Payment Agreement and as authorized by the Act and shall be
payable from Bond Proceeds in accordance with the Act, the applicable trust indenture, and the
Development and Payment Agreement; or, in the event no Bond Proceeds are available to make
such reimbursement, then the Professional Services Fee shall be payable from the Tax Increment
Fund in accordance with the Act and the Development and Payment Agreement;
1.16 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 the
Economic Development Projects and Public Works Projects and the expenditure of the Project
Costs is a proportional share (as approved by the Parties and based on the proportion of the
Facility and related public infrastructure and public improvements to be financed by the
Corporation) of $362,000.00 plus $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
1.17 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, from the Tax Increment Fund.
2. DEFINITIONS.
2.1 "121 LLC" means 121 Acquisition Company, LLC, a Texas limited liability
company.
2.2 "Act" is defined in the Development and Payment 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.
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2.9 "Bond Proceeds" means the proceeds derived from the issuance and sale of TIF
Obligations and made available for the payment of Project Costs in accordance with the Act and
the applicable trust indentures.
2.10 "City" is defined in the introductory paragraph.
2.11 "City Council" means the City Council of the City.
2.12 "Corporation" is defined in the introductory paragraph.
2.13 "Development and Payment Agreement" means the "Development and Tax
Increment Payment Agreement" executed by the City, the Corporation, LMG Ventures, LLC,
and TxFM, Inc. effective November 15, 2011, as amended.
2.14 "Economic Development Grants " are defined in the Project and Finance Plan.
2.15 "Economic Development Project Costs" are defined in the Project and Finance
Plan.
2.16 "Effective Date" is defined in the introductory paragraph.
2.17 "Facility" is defined in the Project and Finance Plan.
2.18 "Interest" means a market rate of interest approved by the Parties.
2.19 "Notice" is defined in Section 9.
2.20 "NFM Advances" are defined in Section 1.12.
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 1.15.
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 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.
2.26 "Project Costs" are Economic Development Project Costs for the (i) Retail
Facilities, (ii) Ancillary Land, (iii) Parking Facilities, and (iv) Public Improvements approved by
the Corporation including 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.
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2.27 "Property" is defined by metes and bounds in the Project and Finance Plan and
includes the approximately 433 acres of undeveloped land on which the Facility and related
public infrastructure and public improvements will be constructed.
2.28 "Public Improvements" are defined in Section 1.9.
2.29 "Public Works Projects" are defined in the Project and Finance Plan.
2.30 "Public Works Project Costs" are defined in the Project and Finance Plan.
2.31 "Qualified Cost" is defined in the Project and Finance Plan.
2.32 "Related Development" is defined in the Project and Finance Plan.
2.33 "Soft Costs" mean capital costs that are allocable to the Retail Facilities, the
Ancillary Land, the Parking Facilities, 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 TIF Obligations; (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.
2.34 "Tax Increment Fund" is defined in the Project and Finance Plan.
2.35 "TIF Obligations" ions" are defined in the Project and Finance Plan.
2.36 "Zone" means Tax Increment Reinvestment Zone Number One, City of The
Colony, Texas; which Zone includes the Property.
3. RETAIL FACILITIES, ANCILLARY LAND, PARKING FACILITIES AND PUBLIC
IMPROVEMENTS.
3.1 Unless and until Bond Proceeds are available to pay Project Costs, or in the event
no TIF Obligations are issued, unless and until funds deposited into the Tax Increment Fund are
sufficient to pay Project Costs, NFM Services agrees to make the NFM Advances on a schedule
consistent with the Development and Payment 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
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funds deposited into the Tax Increment Fund are insufficient to pay Project Costs, NFM Services
agrees to make additional NFM Advances.
3.2 The Corporation, with the approval of the City, will use Bond Proceeds, or in the
event no TIF Obligations are issued, then funds deposited into the Tax Increment Fund, in the
following order of priority:
3.2.1 FIRST, to pay the Corporation's actual administration costs related to this
Agreement;
3.2.2 SECOND, to pay for the undivided interest in the Property allocable to the
Retail Facilities, Ancillary Land, Parking Facilities, and Public Improvements, which
undivided interests were 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
3.2.7 LAST, to reimburse or pay any other Project Costs.
3.3 City Reimbursements. In the event the first series of TIF Obligations 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
Retail Facilities, Ancillary Land, Parking Facilities, and Public Improvements for which the City
or the Corporation is entitled to reimbursement from the Tax Increment Fund 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 TIF Obligations 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
Retail Facilities, Ancillary Land, Parking Facilities, and Public Improvements for which the City
or the Corporation is entitled to reimbursement from the Tax Increment Fund but for which the
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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.
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 the Retail Facilities, Parking Facilities, and Public Improvements. The City
and the Corporation expressly retain all beneficial rights to and interests in any contractual
benefits, including but not limited to, liquidated damages and insurance proceeds. In addition,
NFM Services shall comply with any applicable state and local procurement laws, and the City
and the Corporation shall approve, in advance, any change orders to the construction of the
Retail Facilities, Parking Facilities, 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 TIF Obligations, 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 Economic Development Projects
and Public Works 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 infrastructure 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 Additional Facilities and Additional Public Improvements and the expenditure of
Project Costs for such facilities and 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 funds in the Tax Increment Fund 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 Retail Facility,
Ancillary Land, Parking Facilities, Public Improvements, NFM Advances, and the Professional
Services Fee.
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5. DEFAULT, REMEDIES.
5.1 If a Party fails to perform any material obligation required by this Agreement, the
other Party may give written Notice of such failure to the non-performing Party, which Notice
shall describe in reasonable detail the nature of the failed obligation. If the 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 5.2, 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 TIF
Obligations, 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.
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.
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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.
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.
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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 (1) 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
700S.72 d 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 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
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 Development and Payment
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.
11.7 Force Mgjeure. 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
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November 20, 20 ] 2
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
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 20th day of November, 2012.
NFM Services
NFM Services, LLC
a Texas limited liabilpty compa~ y
By:
-Je f Lind, resident
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1775.010\29891.3
November
20, 2012
CORPORATION
The Colony Local Development Corporation,
a Texas non-profit corporation
By:
'Joe McCouiry, President
CITY
The City of The Colony, Texas
A Texas home-rule municipality
By:
a
J`oe McCouny; Mayor
TES g~
Christie Wilson, City Secretary
APP V D AS TO ORM<
- IX
Jeff Moore, City Attorney
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