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Home My WebLink AboutResolution No. 2015-039CITY OF THE COLONY, TEXAS RE, SOL NO. 2015--011 A ti .2015- A RESOLUTION OF THE C'ITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, FINDING THAT THE DEVELOPER'S OBLIGATIONS REQUIRED BY SECTION 7 OF THE TYPE B CORPORATION PERFORMANCE AGREEMENT BY AND BETWEEN LMG VENTURES, LLC, TYFM, INC., AND THE COLONY COMMUNITY DEVELOPMENT CORPORATION EFFECTIVE NOVEMBER 15, 2011 HAVE BEEN FULLY SATISFIED, AS OF THE EFFECTIVE DATE OF THIS RESOLUTION; FINDING NO DEFAULT BY 'THE DEVELOPER UNDER THE TYPE B CORPORATION PERFORMANCE AGREEMENT; FINDING THAT ALL EXPENDITURES UNDER THE TYPE B CORPORATION PERFORMANCE AGREEMENT HAVE BEEN FOR AUTHORIZED PROJECT COSTS; FINDING THAT THE COLONY COMMUNITY DEVELOPMENT CORPORATION HAS SPENT BOND PROCEEDS FOR AUTHORIZED PURPOSES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS. on No-�embcr 15. 2011. The Colon; City Council adopted. Resolution 2011-055 appro\ing and ratif�ling a Type B Corporation Performance Agreement by and bete een LMG Ventures, LLC, TXF' 4., Inc., and The ColonN CommunitN7 Development Corporation (.the "Type B Performance agreement"); and NN, IHEREAS.. all capitalized terms used in this Resolution shall have the meaning set forth in the Type B Performance :agreement unless other, ise defined herein; and NA'7HEREAS, Section 7 of the Type B Performance Agreement includes the following obligations of the Developer, ,,Ahich are set forth N,erbatim belot,�- (collecti\,ely, the "Performance Standards" �: (a) Completion of the Facilitv. The Facility shall be completed and open for business to the public no later than December 31. 2015. subject to "force majeure" delays and delays approved b�) the Type B Corporation. If the Facility is not completed and open for business bN such data, an amount equal to 550,000 for each month that the Facility is late in opening shall: (i ) FIRST. reduce the l\4axirnurn Debt Limit for Bonds and PriN ate debt: and (ii) SECONTD, after giving effect to such. reductions, the remainder of such amount, if any. shall be deducted from the 380 Incentive Program or from any other legally, available funds owed bN° the Type B Corporation to the Developer. excluding funds required to pad Bonds. lb) Qualified Casts. At least 5100.0+10.000 in Qualified Costs shall be expended to construct and open the. Facility . The Dei eloper agrees to submit to the T� pe B Corporation or the Cite by JanuarN 31, 2016, invoices. receipts, or other documentation acceptable to the Type B Corporation or the Citi evidencing expenditure of the required minimum amount of Qualified Costs. If less than the required amount of Qualified Costs is expended. the amount of the deficiency shall: (i) FIRST, reduce the Maximum Debt Limit for Bonds and Private debt: and (ii) SECOND_ after giving effect to such reductions.. the remainder of such amount, if anc shall be deducted from the 380 Incentive Program or from ani other legally available funds owed by the Type B Corporation to the Developer, excluding funds required to pay Bonds. (c) Full -Time Equ�t Jobs. On January l of the first calendar near after the Facility is completed and open for business. the Facility will provide employment for a minimum of 850 Full -Time Equivalent Jobs. If the Facility- doers not provide the required minimum number of Full -Time Equivalent Jobs, an amount equal to 55,000 for each job that is not provided shall: (i) FIRST, reduce, the Maximum Debt Limit for Bonds and Private debt:.. and (ii) SECOND., after giving effect to such reductions, the remainder of such amount, if any, shall be deducted from the 380 Incentive Program or from any, other legally ati ailable funds owed by the "Pepe B Corporation to the Developer under this Agreement. excluding funds rewired to pay- TIF Obligations. (d) Forfeiture of Project Costs. Any reductions in the ivlaximum Debt Limit described in Sections 7(a) through 71c), inclusive, shall constitute a permanent forfeiture of the right of the Developer to be paid or reimbursed for Project Costs in an amount equal to the reductions. If the failure to satisfythe performance standards described in Sections 7(a) through 7(c), inclusive, occurs after the Maximum Debt Limit is reached (and provided the reductions have not been deducted from the 380 Incentive Program or from any other legally- available funds oN ed by the City to the Developer).. then the reductions shall constitute a permanent forfeiture of the right orf the Developer to be paid or reimbursed for future Project Costs in an amount equal to the reductions. (e) Performance. The Developer agrees to perforin and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between the Developer and the T -pe B Corporation. and anti7 related agreements between the Developer and the T>pe B Corporation. (f) Certain Prohibited Economic Incentives. The Developer covenants and agrees and will cause each End User to covenant and agree that this Agreement does not violate Section 501.161 of the Texas Local Government Code. as amended. WHEREAS, the Citi- Corulcil finds that the Facility is completed and open for business to the public: and NXWEREEAS, the Citi- Council finds that at least 51.00,000,000 in Qualified Costs has been expended to construct and open the Facility. and acknowledges that the Developer has submitted to the Type B Corporation and the City invoices, receipts, or other documentation acceptable to the Ty, pe B Corporation and the City evidencing expenditure of the required minimum amount of Qualified Costs; and NAVHEREAS.. the City Council finds that the Facility is completed and open for business. and is currently providing ea employ mnt for a minimum of 850 Full -Time Equivalent Jobs: and Pa 5 010,45 44. WHEREAS. the City Council anticipates that,: on January 1 of the first calendar year after the Facility is completed and open for business. the Facility , ill continue to provide emplo3 rent for a minimum of 8.50 Full -Time Equivalent Jobs. and NIT HEREAS, the Cit`- Council finds that the Developer to date has performed and complied NN ith all terms, conditions. and provisions set forth in the Type B Performance Agreement: and WHEREAS, the City- Council finds that, to date, the Developer has caused each End User to covenant and agree that the Type B Performance Agreement does not violate Section 501.161 of the Texas focal Government Code, as amended: and. WHEREAS, the City Council. finds that the Dee eloper has timely satisfied all of the Performance Standards to date: and WHEREAS. the City Council finds that the Performance Standards are independent performance obligations that are subject only to the monetary penalties described in the Type B Performance Agreement, and WHEREAS. the City. Council finds that, as of the date of this Resolution. the Developer is in compliance with the terms of the Type B Performance Agreement and at no time has there been a default by the Developer under the Type B Performance Agreement, and WHEREAS, the City Council finds that all expenditures of funds bS- the City pursuant to the terms of the Type B Performance Aoreement have been for Project Costs authorized b-,,- the agreement, and WHEREA.S. the Citi Council finds that all Developer expenditures submitted to the City for reimbursement pursuant to the terms of the Type B Performance Agreement have been for Project Costs authorized by the Type B Performance Agreement, and WHEREAS. the Cit -N- Council finds that the expenditure by The Colony- Community Development Corporation of the proceeds of the Series 201.3 Nebraska. Furniture Mart Teras project bonds has been in accordance with the Indenture of Trust and Security Agreement, dated as of February 1. ?013, and. WHEREAS, the Citi° Council finds that all of the findinTos contained herein are true and correct as of the March 4. 2015 opening date of the Facility, tiO'4'4" THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION1. The findings set forth above are incorporated into the body of this Resolution as if fully- set forth herein. Nue 3 tn75.0P).,447,744, SECTION 2. This Resolution shall become effective immediately upon passage. PASSED AND APPROVED BY T COLON i', TEXAS, THIS THE 7" DAY OF ATTICS 5. Christie Wilson, City Secretary MOMMMIM-11RIM 1113 111MM IE CITY COUNCIL OF THE CITY OF THE APRIL, 2015. Jo McCotd�6j Page 4 177S 45744_-,