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HomeMy WebLinkAboutResolution No. 2012-101 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2012-101 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING A FUNDING AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY, TEXAS, THE BOARD OF DIRECTORS OF THE TAX INCREMENT REINVESTMENT ZONE NUMBER ONE, CITY OF THE COLONY, TEXAS, THE COLONY LOCAL DEVELOPMENT CORPORATION, LiMG VENTURES, LLC, AND TXFNI, INC., PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on November 8, 2011, the City Council of the City of The Colony, Texas, approved Ordinance No. 2011-1926, designating Reinvestment Zone Number One, City of The Colony, Texas, and designated a Board of Directors for said Zone (hereinafter referred to as the "Board"), in accordance with and pursuant to Chapter 311 of the Texas Tax Code, as amended; and 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 of The Colony, Texas, the Board, and the LDC desire to enter into a Funding Agreement, a copy of which is attached hereto as Exhibit A, and is incorporated IZerein for all purposes, with LMG Ventures, LLC, and TXFM, Inc., addressing the payment and reimbursement of certain TIF Projcct Costs. 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 for the City of The Colony, Texas, hereby approves the Funding 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 uncornstitLit] onal by a Court of competent jurisdictiou, 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. r 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 11"' day of DECEMBER, 2012. Jo, McCouny ayor ATTEST: , Christie Wilson, City Secretary APPROVED AS TO FORM: Xz~ ♦ J 1' t ~a jtt Jeff Moore, City Attorney y 1 nf~ Exhibit A Funding Agreement r City Manager's Fiscal Impact Statement Funding Agreement with the City of The Colony, Texas; the Board of Directors of Tax Increment Reinvestment Zone Number One, City of The Colony; The Colony Local Development Corporation; LMG Ventures, LLC; and TXFM, Inc. December 11, 2012 The fiscal impact of this Funding 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. -r-i T,roo- owell amity manager 1775.010\30979.1 FUNDING AGREEMENT This Funding Agreement (this "Agreement") is entered into among the City of The Colony, Texas (the "City"), the Board of Directors (the "Board") of Tax Increment Reinvestment Zone Number One, City of The Colony, Texas (the "Zone"), The Colony Local Development Corporation (the "Corporation"), and LMG Ventures, LLC ("LMG") and TXFM, Inc. ("TXFM") (LMG and TXFM are sometimes referred to in the alternative as the "Applicable Taxpayer" and collectively as the "Taxpayers") to be effective December 11, 2012 (the "Effective Date"). The City, the Board, the Corporation, and the Taxpayers are individually referred to as a "Party" and collectively as the "Parties." The City, the Board, and the Corporation are collectively referred to as the "Public Parties." 1. RECITALS 1.1 WHEREAS, words and phrases used in this Agreement that have their initial letters capitalized shall have the meanings given to them in the introductory paragraph above, in these RECITALS, and in Section 2 unless the context in which a word or phrase is used clearly requires a different meaning; 1.2 WHEREAS, unless otherwise specified, all references in this Agreement to "Section" mean a section of this Agreement, and all references to "Exhibit" mean the exhibits attached to and made a part of this Agreement for all purposes; 1.3 WHEREAS, the Tax Increment Agreement and Bond Validation Final Judgment authorize the Corporation to construct TIF Projects that are Private Improvements using the proceeds of Bond Obligations and transfer to the Applicable Taxpayer completed TIF Projects as a contribution to the capital of the Applicable Taxpayer; 1.4 WHEREAS, the Tax Increment Agreement and Bond Validation Final Judgment authorize the Corporation to construct TIF Projects that are Private Improvements using the proceeds of Private Debt and transfer to the Applicable Taxpayer completed TIF Projects as a contribution to the capital of the Applicable Taxpayer; 1.5 WHEREAS, the Tax Increment Agreement provides that if for any given year the balance in the Tax Increment Fund exceeds the amount required to pay Debt Service Obligations, the excess will first be used to pay "shortfall amounts" by which the Debt Service Obligations for prior years exceeded the balance in the Tax Increment Fund for such prior years; 1.6 WHEREAS, issuance by the Corporation of Bond Obligations is a legislative act that may not be impaired by contract; 1.7 WHEREAS, the Public Parties are willing to authorize the Taxpayers to construct TIF Projects that are Private Improvements using Private Funding and to repay the Qualified Costs of such Private Improvements to the Applicable Taxpayer from the Tax Increment Fund as contributions to the capital of the Applicable Taxpayer; LGC Funding Agreement 1775.010\29953.11 Page 1 1.8 WHEREAS, for so long as Private Funding payable from the City Sales Tax Increment remains unpaid, the Public Parties are willing to deposit City Sales Tax Increment each year into the Tax Increment Fund up to the amount required to pay Debt Service Obligations for the related Private Funding Obligations; 1.9 WHEREAS, the Parties intend that upon payment in full of all Private Debt and Private Funding secured by or payable from the City Sales Tax Increment, funds in the applicable sub-account of the Tax Increment Fund, shall be used as provided in the Tax Increment Agreement and the Economic Development Agreement; 1.10 WHEREAS, the purpose of this Agreement is to authorize the Taxpayers, at their option and subject to the Project Finance Ceiling and Coverage Confirmation, to construct all or any portion of the Private Improvements using Private Funding and, upon completion and approval by the Corporation of the Qualified Costs for such Private Improvements, to be repaid fi°om the applicable sub-account of the Tax Increment Fund, as Private Funding Obligations of the Corporation and as a contribution to the capital of the Applicable Taxpayer; 1.11 WHEREAS, any Debt Service Obligations for Private Funding Obligations shall be payable from time to time only after all Debt Service Obligations for Bond Obligations have been fully satisfied on each payment date established by the trust indenture for such Bond Obligations; 1.12 WHEREAS, the option to finance Private Improvements with Private Funding has been bargained for to induce the Taxpayers to locate and operate their businesses within the Zone and are intended to be contributions to the capital of the Taxpayers; 1.13 WHEREAS, Private Funding Obligations are not in exchange for or as consideration for any goods or services provided by the Taxpayers; 1.14 WHEREAS, the Parties intend for Private Funding Obligations to become a permanent part of the Applicable Taxpayer's capital structure, will benefit the Applicable Taxpayer in an amount commensurate with the value of the payments, and will be employed in or contribute to the production of additional income by the Applicable Taxpayer; 1.15 WHEREAS, the Private Improvements financed with Private Funding are intended to benefit the public at large in the form of increased jobs, sales tax revenues, and ad valorem tax revenues and otherwise promote economic development within the Zone and the City; and 1.16 WHEREAS, the rights of the Taxpayers under this Agreement are intended to be in addition to the rights, duties, and obligations of the parties under the Development and Performance Agreements. 2. DEFINITIONS 2.1 "Act" means the Tax Increment Financing Act, Chapter 311, Texas Tax Code, as amended. LGC Funding Agreement 1775.010\29953.11 Page 2 2_2 "Agreement" means this Funding Agreement among the Public Parties and the Taxpayers. 2.3 "Amortization Formula" means the amortization schedule set forth on Exhibit A. which schedule is the basis for determining the annual Debt Service Obligation for Private Debt Obligations and the annual Debt Service Obligation for Private Funding Obligations. 4 „ 2 Annual Payment CAP„ means the maximum Debt Service Obligations payable in any given year for Private Debt Obligations and Private Funding Obligations based on the Amortization Formula. If the maximum obligations are not paid in any given year, the shortfall will be added to the Annual Payment CAP for the next year. 2.5 "Applicable Taxpayer°" is defined in the introductory paragraph. 2.6 "Board" is defined in the introductory paragraph. 2.7 "Bond Obligations" mean one or more series of bonds or notes issued as public debt by the City or the Corporation and secured in whole or in part by City Sales Tax Increment deposited in related sub-accounts within the Tax Increment Fund; 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 53'd 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 Council" means the City Council of the City. 2.11 "CitManager" means the City Manager of the City. 2.12 "City Sales Tax Increment" is defined in the Project and Finance Plan. 2.13 "Construction" is defined in Section 5.1. 2.14 "Corporation" is defined in the introductory paragraph. 2.15 "Coverage Confinnation" means the Applicable Taxpayer's certification to the City that City Sales Tax Increment projections from new projects plus the City Sales Tax Increment for the most recent 12-month period equals at least 100% of the annual Debt Service Obligations. 2.16 "Debt Service Obligations" mean, with respect to TIF Obligations, (i) all amounts required to be paid in connection with such TIF Obligations including, but not limited to, principal, interest, debt service or similar reserves (not to exceed an amount equal to one year's principal and interest), capitalized interest, costs and expenses in connection with the issuance of TIF Obligations and the Annual Payment CAP; and (ii) all amounts required to pay, repay, or LGC Funding Agreement 1775.0 Page 3 ~I reimburse any prior year shortfall of principal, interest, or amounts required for debt service or similar reserves related to any TIF Obligations, including the Annual Payment CAP. 2.17 "Development and Performance Agreements" mean, collectively, the Tax Increment Agreement, the Type A Performance Agreement, the Type B Performance Agreement, and the Economic Development Agreement. 2.18 "Economic Development Agreement" means the Economic Development Agreement entered into among LMG, TXFM, and the City effective November 15, 2011. 2.19 "Effective Date" is defined in the introductory paragraph. 2.20 "Facility" is defined in the Project and Finance Plan. 2.21 "LMG" is defined in the introductory paragraph. 2.22 "Party" and "Parties" are defined in the introductory paragraph. 2.23 "Private Debt" is defined in the Tax Increment Agreement to mean any bonds, notes, loans, or other forms of indebtedness issued or obtained by the "Developer" under such agreement to pay TIF Project Costs and secured by a collateral assignment of any payments made to the Developer from the Tax Increment Fund. 2.24 "Private Debt Obligations" mean, with respect to Private Debt, all amounts paid to the Applicable Taxpayer from the applicable sub-account within the Tax Increment Fund in connection with any Private Debt. 2.25 "Private Funding" means funds advanced by or on behalf of the Applicable Taxpayer to pay TIF Project Costs for Private Improvements that are not otherwise paid from the proceeds of Bond Obligations or the proceeds of Private Debt Obligations, which advances are to be repaid as contributions to capital of the Applicable Taxpayer fi•om the City Sales Tax Increment deposited in the applicable sub-account of the Tax Increment Fund. 2.26 "Private Funding Obligations" mean, with respect to Private Funding, all amounts paid to the Applicable Taxpayer as contributions to the capital of the Applicable Taxpayer from the related sub-account within the Tax Increment Fund in connection with any Private Funding used to finance Private Improvements including interest that is limited to the construction period of such Private Improvements and that must be capitalized. 2.27 "Private Improvements" mean any TIF Project to be owned or operated by the Applicable Taxpayer. 2.28 "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, approved by the Board on November 14, 2011, and by Ordinance No. 2011-1929 approved by the City Council on November 15, 2011. LGC Funding Agreement 1775.010\29953.11 Page 4 2.29 "Project Costs" are defined in the Type A Performance Agreement and Type B Performance Agreement. 2.30 "Project Finance Ceiling" means: (i) $800,000,000 consisting of the total of the following: (i) the aggregate principal amount of all TIF Obligations issued by the Corporation; (ii) the aggregate principal amount of all Type A Bonds issued by the Type A Corporation; (iii) the aggregate principal amount of all Type B Bonds issued by the Type B Corporation; (iv) the aggregate principal amount of all Private Debt issued or obtained pursuant to the Tax Increment Agreement, Type A Performance Agreement, or Type B Performance Agreement; and (v) the aggregate principal amount of all Private Funding provided pursuant to this Agreement; and (vi) $1,100,000,000 (consisting of the total amounts enumerated above) if a Super Retail Store is located within the Zone. 2.31 "Public Parties" are defined in the introductory paragraph. 2.32 "Qualified Costs" are defined in the Project and Finance Plan. 2.33 "Sales Tax Increment" is defined in the Project and Finance Plan. 2.34 "Super Retail Store" means a retail store that is in addition to the Facility and that will generate at least $500,000,000 in total taxable sales during the first full calendar year after the store is completed and open for business to the public. 2.35 "Tax Increment" is defined in the Project and Finance Plan. 2.36 "Tax Increment Agreement" means the Development and Tax Increment Payment Agreement entered into among the City, the Board, the Corporation, LMG, and TXFM effective November 15, 2011. 2.37 "Tax Increment Fund" is defined in the Project and Finance Plan. 2.38 "Taxpayers" are defined in the introductory paragraph. 2.39 "Term" is defined in Section 4. 2.40 "TIF Obligations" are defined in the Project and Finance Plan to mean one or more series of bonds or notes issued or other obligations entered into by the Corporation and secured in whole or in part by funds deposited in related sub-accounts within the Tax Increment Fund, which obligations include Bond Obligations, Private Debt Obligations and Private Funding Obligations. Proceeds from such obligations may be used to pay or finance TIF Project Costs. 2.41 "TIF Project Costs" are defined in the Project and Finance Plan. 2.42 "TIF Projects" are defined in the Project and Finance Plan. 2.43 "Type A Bonds" means bonds, notes, or other evidence of indebtedness issued by the Type A Corporation pursuant to the Type A Performance Agreement. LGC Funding Agreement 1775.010\29953.11 Page 5 2.44 "Type A Corporation" means The Colony Economic Development Corporation, a Texas non-profit corporation. 2.45 "Type A Performance Agreement" means the Type A Corporation Performance Agreement among LMG Ventures, LLC, a Texas limited liability company, TXFM, Inc., a Texas corporation, and the Type A Corporation effective November 15, 2011. 2.46 "Type A Reimbursement Account" is defined in the Type A Performance Agreement. 2.47 "Type B Bonds" means bonds, notes, or other evidence of indebtedness issued by the Type B Corporation pursuant to the Type B Performance Agreement. 2.48 "Type B Corporation" means The Colony Community Development Corporation, a Texas non-profit corporation. 2.49 "Type B Performance Agreement" means the Type B Corporation Performance Agreement among LMG Ventures, LLC, a Texas limited liability company, TXFM, Inc., a Texas corporation, and the Type B Corporation effective November 15, 2011. 2.50 "Type B Reimbursement Account" is defined in the Type B Performance Agreement. 2.51 "TXFM" is defined in the introductory paragraph. 2.52 "Zone" is defined in the introductory paragraph. 3. FINDINGS INCORPORATED. The RECITALS set forth in Section 1 are true and correct, establish the intent of the Parties in entering into this Agreement, constitute representations and warranties of the Parties, are incorporated into the body of this Agreement, and shall be considered part of the mutual covenants, consideration, and promises that bind the Parties. 4. TERM. This Agreement shall be effective on the Effective Date and shall continue for the term of the Zone and for so long thereafter as may be necessary for the Parties to fully perform their obligations under this Agreement. 5. CONSTRUCTION OF TIF PROJECTS. 5.1 Construction. Subject to the Project Finance Ceiling and the Coverage Confirmation, the Public Parties authorize the Taxpayers to use Private Funding to construct all or any portion of the TIF Projects previously approved by the Public Parties and authorized by the Act and the Development and Performance Agreements that are Private Improvements on a schedule determined by the Taxpayers and consistent with the performance standards set forth in the Development and Performance Agreements. The Applicable Taxpayer shall identify to the City Manager, fi•om time to time, the Private Improvements to be financed with Private Funding, including an estimate of the amount of the Private Funding. All Private Improvements financed with Private Funding shall be engineered, designed, constructed, installed, and inspected LGC Funding Agreement 1775.010\29953.11 Page 6 (collectively referred to as "Construction") in accordance with all applicable laws, ordinances, rules, and regulation of all governmental authorities with jurisdiction over the Construction. Upon the completion of each Private Improvements financed with Private Funding, the Applicable Taxpayer shall present to the City Manager an accounting of the Qualified Costs paid or incurred in the Construction for which the Applicable Taxpayer is seeking repayment from the City Sales Tax Increment in the applicable sub-account of the Tax Increment Fund. The City Manager shall have 30 days to review the accounting and to object to any line item thereof, and if there are no objections within such 30-day period, the accounting shall be deemed approved by the City Manager and eligible for repayment from the applicable sub-account of the Tax Increment Fund; provided, however, interest on Private Funding shall be limited to the construction period of such Private Improvements. 5.2 Insurance. Engineers, architects, and contractors involved with Construction shall be required to maintain in effect at all times during Construction general liability insurance provided by insurers licensed to do business in Texas and providing coverages approved by the City (which approval shall not be unreasonably withheld) and naming each of the Public Parties as additional insureds. Evidence of such insurance coverage shall be provided to the City upon request, and no insurance shall be modified or cancelled without at least 30 days' prior written notice to the City. 5.3 Release and Indemnification. The Taxpayers, together with the engineers, architects, and contractors involved with Construction, shall release, and use commercially reasonable efforts to cause their insurers to release, the Public Parties (and their respective elected and appointed officials, officers, and employees) from all claims which they or their insurers might have against the Public Parties arising from or in any way related to the Construction. In addition, the Taxpayers, together with the engineers, architects, and contractors involved with the Construction, shall indemnify the Public Parties (and their respective elected and appointed officials, officers, and employees) from claims against them (and their respective elected and appointed officials, officers, and employees) that arise fi•om or are in any way related to the Construction. This indemnification survives termination of this Agreement; however, this indemnity terminates: (i) if any of the Public Parties is in Default under this Agreement; or (ii) if any of the Public Parties fails to assert a claim of immunity that could otherwise be asserted in accordance with state law in the absence of an indemnification; or (iii) with respect to specific Construction if the claim arises more than two years after the specific Construction was completed. 5.4 Books and Records. The Taxpayers shall at all times keep complete and accurate books and records and shall allow any representative of the Public Parties, at all reasonable times and with at least three business days' prior notice, to examine and copy the books and records of the Taxpayers that relate to this Agreement. 6. CONTRIBUTIONS TO CAPITAL. 6.1 Private Funding. Subject to the Project Finance Ceiling and Coverage Confirmation, the Public Parties authorize the Taxpayers, at the option of the Taxpayers, to finance the Construction of Private Improvements with Private Funding and agree to repay the Applicable Taxpayer for Qualified Costs from the applicable sub-account of the Tax Increment LGC Funding Agreement 1775.010\29953.11 Page 7 Fund, through Private Funding Obligations of the Corporation that constitute contributions to the capital of the Applicable Taxpayer. Notwithstanding the foregoing, Debt Service Obligations for Bond Obligations secured by the City Sales Tax Increment will be paid first before any Debt Service Obligations will be paid for Private Debt Obligations secured by the City Sales Tax Increment and before any Debt Service Obligations will be paid for Private Funding Obligations payable from the City Sales Tax Increment. 6.2 City Sales Tax Increment and Sales Tax Increment. 6.2.1 For so long as any Private Debt Obligations secured by the City Sales Tax Increment or any Private Funding Obligations payable from the City Sales Tax Increment remain unpaid, the Public Parties agree to continue to deposit the City Sales Tax Increment into a dedicated sub-account of the Tax Increment Fund relating to such Private Debt Obligations and Private Funding Obligations up to the amount each year required to pay the respective Debt Service Obligations for all Private Debt Obligations and all Private Funding Obligations. 6.2.2 If in any given year the City Sales Tax Increment on deposit in the applicable sub-account or accounts of the Tax Increment Fund relating to Bond Obligations secured by the City Sales Tax Increment is sufficient to pay Debt Service Obligations for such Bond Obligations, then the City Sales Tax Increment shall be deposited as required by Section 6.2.1 and shall be used first to pay all Debt Service Obligations for Private Funding payable from the City Sales Tax Increment and second to pay all Debt Service Obligations for Private Debt secured by the City Sales Tax Increment. The Debt Service Obligations for Private Funding and the Debt Service Obligations for Private Debt will each be amortized over a 16-year period as described in the Amortization Formula and illustrated in the example attached as Exhibit B. The Annual Payment CAP equals the amount payable each year from the City Sales Tax Increment on deposit in the applicable sub-accounts of the Tax Increment Fund for Debt Service Obligations for Private Funding and Debt Service Obligations for Private Debt and equals the sum of all Debt Service Obligations for Private Funding and Debt Service Obligations for Private Debt. 6.2.3 If in any given year all Debt Service Obligations for Bond Obligations have been paid and all Debt Service Obligations for Private Funding and Private Debt have been paid up to the Annual Payment CAP, then, for the remainder of such ear all additional Sales Tax Increment shall not constitute City Sales Tax Increment and is not required to be deposited into the Tax Increment Fund, and 50% of such additional Sales Tax Increment received by the City shall be deposited into the City's general fund and 50% shall be utilized by the City first to retire Private Funding Obligations paid by TXFM for the Facility, next to retire any additional Private Funding Obligations (in the order incurred), next to retire Private Debt Obligations (in the order incurred), and last to retire Bond Obligations (in the order incurred). If all Private Funding Obligations and Private Debt Obligations have been paid in full, none of the Sales Tax Increment shall constitute City Sales Tax Increment and shall not be required to be deposited pursuant to the Project and Finance Plan, unless additional Bond Obligations, Private Funding Obligations, or Private Debt Obligations are subsequently issued, in which case the City LGC Funding Agreement 1775.010\29953.11 Page 8 Sales Tax Increment promptly deposited into the applicable sub-account of the Tax Increment Fund, shall again be as described in the Project and Finance Plan and as described above in this Section 6. 6.2.4 When the Bond Obligations, Private Funding Obligations, and Private Debt Obligations have been paid in full, the Public Parties agree that 50% of the Sales Tax Increment shall continue to be deposited into the City's general fund and 50% shall be paid to the Taxpayers as an economic development grant pursuant to the Economic Development Agreement. 6.3 To the extent the Applicable Taxpayer elects to finance the Construction of Private Improvements with Private Funding, then the Public Parties release NFM Services, LLC, from all obligations to make advances required for such Private Improvements under those certain Amended and Restated Construction Management Agreements among NFM Services, LLC, and the Public Parties effective November 20, 2012 (collectively, the "CMAs"). For so long as the Corporation is obligated to pay Debt Service Obligations for Private Funding Obligations or Debt Service Obligations for Private Debt Obligations, in the event of a conflict between this Agreement and the CMAs, this Agreement shall control. 6.4 The flow of funds from the applicable sub-account of the Tax Increment Fund with respect to the payment of Debt Service Obligations for Bond Obligations, Private Funding Obligations, and Private Debt Obligations is illustrated, in principal, on Exhibit C. 7 DEFAULT; REMEDIES. 7.1 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. 7.2 If the Taxpayers are in Default under this Agreement, the sole and exclusive remedy of the Public Parties is to enforce specific performance of this Agreement. 7.3 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 the Applicable Taxpayer is to enforce specific performance of this Agreement. 7.4 No Default by any Party shall entitle any other Party to terminate this Agreement. 8 REPRESENTATIONS OF THE CORPORATION. 8.1 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. LGC Funding Agreement 1775.010\29953.1 1 Page 9 W 8.2 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. 8.3 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. 8.4 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. 9 REPRESENTATIONS OF THE CITY. 9.1 The City is a Texas home-rule municipal corporation duly authorized, created, and existing under the laws of the State of Texas. 9.2 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. 9.3 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. 9.4 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. 10 REPRESENTATIONS OF TXFM. 10.1 TxFM, Inc. is a Texas corporation duly authorized, created, and existing in good standing under the laws of the State of Texas. 10.2 TXFM 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 TXFM, violate any judgment, order, law, or regulation applicable to TXFM; and (3) do not constitute a default under, or result in the creation of, any monetary lien, charge, encumbrance, or security interest LGC Funding Agreement 1775.010\29953.11 Page 10 upon any assets of TXFM under any agreement or instrument to which TXFM is a party, or by which TXFM or its assets may be bound or affected. 10.3 This Agreement has been duly authorized, executed, and delivered by TXFM and constitutes a legal, valid, and binding obligation of TXFM enforceable in accordance with its terms. 10.4 The execution, delivery, and performance of this Agreement by TXFM do not require the consent or approval of any person or entity that has not already been obtained. 11 REPRESENTATIONS OF LMG. 11.1 LMG Ventures, LLC, is a Texas limited liability company duly authorized, created, and existing in good standing under the laws of the State of Texas. 11.2 LMG 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 LMG, violate any judgment, order, law, or regulation applicable to LMG; 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 LMG under any agreement or instrument to which LMG is a party, or by which LMG or its assets may be bound or affected. 11.3 This Agreement has been duly authorized, executed, and delivered by LMG and constitutes a legal, valid, and binding obligation of LMG enforceable in accordance with its terms. 11.4 The execution, delivery, and performance of this Agreement by LMG do not require the consent or approval of any person or entity that has not already been obtained. 12 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. To TXFM: TxFM, Inc. Attn: Doug Hamlin 700 S. 72nd Street Omaha, NE 68114 To LMG: LMG Ventures, LLC Attn: Doug Hamlin 700S.72 nd Street Omaha, NE 68114 With a copy to: Glast, Phillips & Murray LGC Funding Agreement 1775.010\29953.11 Page 11 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 13 ASSIGNMENT. The Taxpayers have the right to assign this Agreement, in whole or in part, and any of their obligations, 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 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 the Taxpayers. 14 ADDITIONAL PROVISIONS. 14.1 Tenn. This Agreement shall begin on the Effective Date and continue until the Corporation has paid all Debt Service Obligations and all Private Funding Obligations. 14.2 Applicability. The rights granted to Taxpayers by this Agreement may be made applicable to future taxpayers upon approval by the Parties to this Agreement, which approval shall not be unreasonably withheld or delayed, and upon the written agreement of such future taxpayers to be bound by this Agreement. 14.3 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 LGC Funding Agreement 1775.010\29953.11 Page 12 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. 14.4 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. 14.5 Binding Obligation. This Agreement shall become a binding obligation of the Parties upon execution by all Parties. 14.6 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. 14.7 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. 14.8 Force Maje~ ur•e. 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. 14.9 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. 14.10 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. 14.11 Time of the Essence. Time is of the essence in the performance of this Agreement. 14.12 Execution of Agreement. The Board of Directors of the Corporation shall authorize the execution of this Agreement on behalf of the Corporation. 14.13 Exemption from Public Bid Requirements. The Corporation is not required by State law to comply with the competitive bidding requirements applicable to the City. LGC Funding Agreement 1775.010\29953.11 Page 13 14.14 Undocumented Workers. The Taxpayers certify (and shall cause each permitted assignee under Section 13 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, the Taxpayers or any permitted assignee is convicted of a violation under 8 U.S.C. § 1324a(f), the Applicable Taxpayer 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 11 th day of December, 2012. CITY: j J e McCourry ayor A TST r~ ~ AiA A Chnstie Wilson, TRMC, City Secretary APP AS T Jeff Moore, City Attorney LGC Funding Agreement 1775.010\29953.11 Page 14 r BOARD: Board of Directors of Tax Increment Reinvestment Zone Number One, 'ity of The Colony, Texas l By: ~Ioe McCourry, President ATTEST: } i~ "Secretary Boa of Directors of Tax Increment Reinvestment Zone Number One, City of The Colony, Texas LGC Funding Agreement 1775.010\29953.1 1 Page 15 W CORPORATION: The Colony Local Development Corporation a Texas non-profit corporation By: Joe McCourry, President ATTEST: 1 ii,~.t~c,fl ecretary The Colony Local Development Corporation LGC Funding Agreement 1775.010\29953.11 Page 16 LMG Ventures, LC, a Texas limite i pany By: Je r # t TXFM, Inc., I a Texas corpor i e By: Je r e t I LGC Funding Agreement 1775.010\29953.11 Page 17 Exhibit A Amortization Formula Years TIF Sales % Year 1 9.820% Year 2 1.187% Year 3 1.896% Year 4 2.667% Year 5 3.514% Year 6 4.287% Year 7 5.022% Year 8 5.832% Year 9 6.730% Year 10 7.346% Year 11 7.901% Year 12 8.286% Year 13 8.681% Year 14 9.085% Year 15 9.501% Year 16 8.244% Year 17 Year 18 To calculate the Annual Payment CAP for a particular year, multiply the original principal amount of the Private Debt Obligation or Private Funding Obligation by the percentage applicable to the year. Year 1 is the first year of repayinent for the Private Debt Obligations or Private Funding Obligations. Year I for Private Funding Obligations in connection with the construction of the Facility will be calendar year 2016. LGC Funding Agreement 1775.010\29953.11 Page 18 Exhibit B Example Illustrating Amortization Formula Calculations a a o o ^ ss m S n w~ S e oS ~ 8 j j ~ m a w° ~ m w° 2 `K ~ rv ~ ~ ~ ~ K ? 2 ~ Z ¢ ~ Z 2 ~ z E < µz ? ~ Z LGC Funding Agreement 1775.010\29953.11 Page 19 DRAFT December 7, 2012 Exhibit C Sales Tax Increment Flow of Funds Debt sere ice shortfalls paid front insurance to pay Debt Ser% ice proceeds Obligations for INSURED Bond - Obligations for land and 1st to repay parking usurer While T'IF Obligations secured be or payable from EXCESS the sales tax increment are outstanding. 9V-, of the Sales Tax Increment will be - AND 1st to pa} Private Funding Obligations deposited in related and 2nd to pay Prid ate Debt Obligations sub-accounts of the Tax Debt sern'ice in the order incurred (subject to the Increment Fund shortfalk paid Project Finance Ceiling) up to the to pay Debt Service from assessment Annual Payment Cap based on the Obligations for Bond revenue Amortization Formula. including prim Obligations (add itional11 _ year shortfall atttounts secured bF assessment revenue) for public iniproyements Shortfall amounts are carried 1st. Private Funding --4w- EXCESS forward and included in the next Obligations for the Annual Pa_yntent CAP Facility: 2nd, additional Private Funding Obligations in the order 5W', to Incurred: 3rd. Private rite City' Debt Obligations in the EXCESS order Incurred. and 4th. 50<< by Bond Ohilgatlons in the the Cite order incurred to ac THEN' not deposited In the Tax Increment Find but paid as 381) Economic Development grants hags 20 1775.010\29953.9