HomeMy WebLinkAboutResolution No. 2011-091
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2011-091
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING A MANAGEMENT AGREEMENT BY
AND BETWEEN THE CITY OF THE COLONY, TEXAS, THE BOARD
OF DIRECTORS OF TAX INCREMENT REINVESTMENT ZONE
NUMBER ONE, CITY OF THE COLONY, TEXAS, AND THE COLONY
LOCAL DEVELOPMENT CORPORATION, CONCERNING
REINVESTMENT ZONE NUMBER ONE, CITY OF THE COLONY,
TEXAS; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, after a public hearing held on November 8, 2011, the City Council of the
City of The Colony, Texas (the "City Council"), approved Ordinance No. 2011-1926,
designating Reinvestment Zone Number One, City of The Colony, Texas (the "Zone") in
accordance with and pursuant to Chapter 311 of the Texas Tax Code, as amended; and
WHEREAS, on November 15, 2011, the City Council for the City (the "City Council"),
and the board of directors for the Zone (the "Zone Board") approved the Final Project and
Reinvestment Zone Financing Plan for the Zone (the "Final Project and Finance Plan"); and
WHEREAS, Section 311.010(f) of the Texas Tax Code provides the authority for the
City Council, the Zone Board, and The Colony Local Development Corporation to enter into this
Management Agreement, a copy of which is attached hereto as Exhibit A, to address the
management of the Zone, and the implementation of the Final Project and Finance Plan; and
WHEREAS, the City Council hereby determines it is in the best interest of the City of
The Colony, Texas, to adopt this Resolution approving the attached 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 Management Agreement, a copy of which is attached hereto as Exhibit A.
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.
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SECTION 4. This Resolution shall become effective immediately upon passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE
COLON', TEXAS, TFI1S 'THE 6"' day of' DECEMBER, 2011.
G
I C McCou ry, Mayor
ATTE
r
Christie Wilson, City Secretary
APPROVED AS TO F0101: ,
Jeff Moore `City Attorney
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Exhibit A
[Management Agreement]
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is executed by the City of The Colony,
Texas (the "City"), the Board of Directors of Tax Increment Reinvestment Zone Number One,
City of The Colony, Texas (the "Zone Board"), and The Colony Local Development Corporation
(the "Corporation") to be effective as of the Effective Date as provided herein, and to continue
until the Zone is terminated.
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 to "Section" mean a section
of this Agreement;
1.3 WHEREAS, the recitals set forth in this Section 1 are true and correct and
constitute representations and warranties of the Parties; and which recitals form the basis upon
which the Parties entered into this Agreement; and but for the truth and correctness of the recitals
the Parties would not have entered into this Agreement;
1.4 WHEREAS, the Zone was created by the City as an economic development tool
to pay TIF Project Costs including, but not limited to, costs for: (i) public works within and
outside the Zone; (ii) public improvements within and outside the Zone; (iii) programs for the
public purpose of economic development within the Zone to facilitate and/or pay for projects that
benefit the Zone, develop and diversify the economy of the Zone, and stimulate business and
commercial activity within the Zone; including, but not limited to, programs under Chapter 380,
Texas Local Government Code, as amended; (iv) other projects that benefit the Zone; and
(v) costs and expenses incidental to the foregoing works, improvements, programs, and projects
from all or a portion of. (A) increased ad valorem taxes collected by the City and the County
from within the Zone and attributable to new development within the Zone; and (B) increased
sales and use taxes collected by the City within the Zone and attributable to new development
within the Zone;
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1_5 WHEREAS, Section 311.010(f) of the TIF Act authorizes the City and the Zone
Board to contract with the Corporation to manage the Zone and to implement the Project and
Finance Plan;
1.6 WHEREAS, the Corporation was formed pursuant to the provisions of the
Transportation Code which authorizes the Corporation to assist and act on behalf of the City and
to engage in activities in the furtherance of the purposes for which the Corporation was created;
1.7 WHEREAS, the Corporation was organized for the purposes of aiding, assisting,
and acting for and on behalf of the City in the performance of the City's governmental functions,
including, but not limited to: (i) providing a means to implement and finance the costs of projects
located within and outside of, and benefitting, the Zone, including: (A) public works within and
outside such Zone, (B) public improvements within and outside such Zone, (C) programs
determined by the City Council to be necessary or convenient to the implementation of the
Project and Finance Plan for the public purposes of developing and diversifying the economy of
the Zone and developing and expanding business and commercial activity within the Zone,
(D) other projects that benefit the Zone, and, (E) costs and expenses incidental to the foregoing
works, improvements, programs, and projects; (ii) causing and arranging for all of the
acquisition, design, construction, assembly, installation, implementation, operation and
maintenance of the foregoing works, improvements, programs, and projects; (iii) issuing bonds
and notes for the financing of the foregoing works, improvements, programs, and projects; and,
(iv) owning, leasing, selling, granting, transferring, conveying and otherwise being responsible
for the foregoing works, improvements, programs, and projects; all for the public purpose of
encouraging development and redevelopment within the Zone;
1.8 WHEREAS, the Corporation is further authorized to aid, assist, and act on behalf
of the City and the Zone Board in the management of the Zone and the implementation of the
Project and Finance Plan, including the exercise of all the powers of the City and the Zone Board
under Chapter 380, Texas Local Government Code, as amended;
1.9 WHEREAS, in acting on behalf of the City, the Corporation will assist the City in
the performance of the City's governmental functions to promote, develop, encourage, and
maintain employment, commerce, and economic development in the City, the Zone, and the
State of Texas;
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1.10 WHEREAS, to the extent necessary to carry out its authorized purposes, the
Corporation shall have and exercise all of the rights, powers, privileges, authority, and functions
given by the general laws of the State to corporations incorporated under the Transportation
Code including, without limitation, all powers not in conflict with the Transportation Code
granted to domestic nonprofit corporations by the Texas Nonprofit Corporation Law as defined
by Section 1.008 of the Texas Business Organizations Code and governed by Chapter 20 and
2022 and the provisions of Title 1 of the Texas Business Organizations Code, and shall have all
other powers of a like or different nature not prohibited by law which are necessary or useful to
enable the Corporation to perform the authorized purposes for which it was created;
1.11 WHEREAS, the Corporation is a constituted authority and a public
instrumentality within the meaning of the regulations of the United States Treasury Department
and the rulings of the Internal Revenue Service and is authorized to act on behalf of the City as
provided in the articles of Incorporation of the Corporation; however the Corporation is not a
political subdivision or political corporation of the State, and no agreements, bonds, debts, or
obligations of the Corporation are or shall ever be deemed to be the agreements, bonds, debts, or
obligations, or the lending of credit, or a grant of public money or thing of value, of or by the
City, except as provided by State law, or any other political corporation, subdivision, or agency
of the State, or a pledge of the faith and credit of any of them;
1.12 WHEREAS, it is contemplated that, subject to the limitations prescribed in the
TIF Act, this Agreement, and the limitations of its articles of incorporation, the Corporation shall
have the authority to issue or enter into, from time to time, one or more series of TIF
Obligations, the proceeds of which will be used to pay TIF Project Costs, including but not
limited to such amounts necessary to provide for the funding of any necessary reserve funds,
capitalized interest amounts and the costs of issuance related to such TIF Obligations, in
accordance with the Project and Finance Plan and Development Agreement;
1.13 WHEREAS, the sources of revenue to pay Public Works Project Costs will
include the City Tax Increment, the City Sales Tax Increment, and any other funds legally
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available to pay such costs, and an additional source of revenue to pay Public Works Project
Costs, excluding costs foi• municipal buildings, will include the County Tax Increment;
1.14 WHEREAS, the sources of revenue to pay the Economic Development Project
Costs (or, alternatively, implement the Economic Development Programs and make the
corresponding Economic Development Grants) will include the City Sales Tax Increment, to the
extent permitted by law, and any other funds legally available for such purpose;
1.15 WHEREAS, the TIF Act and Transportation Code, authorize the City and the
Zone Board to enter into this Agreement with the Corporation for the purposes of providing
management and administration for the Zone, providing for services and improvements, and
otherwise performing the functions set forth herein, and, the City and the Zone Board agree to
pay for the Corporation's activities performed pursuant to this Agreement from the City Sales
Tax Increment, the City Tax Increment and the County Tax Increment as provided in this
Agreement;
1.16 WHEREAS, the City and the Zone Board desire to contract with the Corporation
to provide the assistance described in this Agreement during the term of the Zone;
1.17 WHEREAS, the Corporation is willing to enter into this Agreement with the
City and Zone Board setting forth the duties and responsibilities of the Corporation, the City and
the Zone Board: and
1.18 NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreement herein contained, it is agreed as follows:
2. DEFINITIONS
2.1 "Agreement" is defined in the introductory paragraph and means this
Management Agreement, as amended.
2.2 "City" is defined in the introductory paragraph and means the City of The Colony,
Denton County, Texas, a home-rule municipal corporation.
2.3 "City Council" means the governing body of the City.
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2_4 "City Sales Tax Increment" is defined in the Project and Finance Plan.
2.5 "City Tax Increment" is defined in the Project and Finance Plan.
2.6 "Corporation" is defined in the introductory paragraph and means The Colony
Local Development Corporation, a Texas nonprofit corporation created under the Transportation
Code by Resolution No. 2011-075 adopted by the City Council on November 8, 2011, and
legally formed by a certificate of incorporation (File No. 801506539) issued November 9, 2011,
by the Texas Secretary of State.
2.7 "County" means Denton County, Texas.
2.8 "County Tax Increment" is defined in the Project and Finance Plan.
2.9 "Developer" means LMG Ventures, LLC and TXFM, Inc.
2.10 "Development Agreement" means that certain Development and Tax Increment
Payment Agreement among the City, the Zone Board, the Corporation, and the Developer
approved by Ordinance No. 2011-1932, adopted by the City Council on November 15, 2011.
2.11 "Economic Development Grants" are defined in the Project and Finance Plan.
2.12 "Economic Development Programs" are defined in the Project and Finance Plan.
2.13 "Economic Development Project Costs" are defined in the Project and Finance
Plan.
2.14 "Effective Date" means the date of the latter to execute this Agreement by and
between the City, the Corporation, and the Zone Board.
2.15 "End Users" are defined in the Development Agreement.
2.16 "Notice" is defined in Section 5.1.
2.17 "Party" and "Parties" means, individually any of the City, the Zone Board, or the
Corporation; and collectively, the City, the Zone Board, and the Corporation.
2.18 "Pledged Revenue Fund" is defined in Section 3.5.5.
2.19 "Proceeds Fund" is defined in Section 3.5.6.
2.20 "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,
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approved by Ordinance No. 2011-1929 adopted by the City Council on November 15, 2011, as
amended.
2.21 "Public Works Project Costs" are defined in the Project and Finance Plan.
2.22 "Public Works Projects" are defined in the Project and Finance Plan.
2.23 "Tax Increment Fund" shall mean the Tax Increment Fund created by the City
pursuant to Ordinance No. 2011-1926 adopted on November 8, 2011, which included
subaccounts held therein; the City is required to deposit, or caused to be deposited, within such
Fund the City Tax Increment, the City Sales Tax Increment, the County Tax Increment, the
proceeds from the issuance of any TIF Obligations, and any other amounts otherwise required by
the TIF Act.
2.24 "TIF Act" means the Tax Increment Financing Act, Chapter 311, Texas Tax
Code, as amended.
2.25 "TIF Obligations" are defined in the Project and Finance Plan as one or more
series of bonds or notes or other obligations secured in whole or in part by the Tax Increment
Fund.
2.26 "TIF Project Costs" are defined in the Project and Finance Plan.
2.27 "TIF Projects" are defined in the Project and Finance Plan.
2.28 "Transportation Code" means Subchapter D of Chapter 431, Texas Transportation
Code, as amended.
2.29 "Zone" means Reinvestment Zone Number One, City of The Colony, Texas,
designated by the City Council pursuant to the TIF Act by Ordinance No. 2011-1926 adopted
November 8, 2011.
2.30 "Zone Board" is defined in the introductory paragraph and means the Board of
Directors established for the Zone by the City Council pursuant to the TIF Act by Ordinance
No. 2011-1926 adopted November 8, 2011.
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3. SERVICES OF THE CORPORATION
3.1 The Corporation will: (i) provide management and administrative services for the
Zone as requested by the Zone Board and the City as necessary or convenient to the
administration and implementation of the Project and Finance Plan; and (ii) perform or assist the
Zone Board and the City in performing their respective obligations under- the Project and Finance
Plan and under any other agreements to which the Zone Board or the City is a party or by which
either is bound and which are related to the administration or implementation of the Project and
Finance Plan.
3.2 As requested by the Zone Board and the City, from time to time, the Corporation
will assist the Zone Board and the City in the preparation of amendments to the Project and
Finance Plan and the Development Agreement.
3.3 As requested by the City, from time to time, the Corporation will issue or enter
into TIF Obligations and will deposit, or cause to be deposited, the proceeds from such TIF
Obligations into the Tax Increment Fund to be used solely to pay TIF Project Costs.
3.4 Construction of TIF Projects.
3.4.1 TIF Projects shall be financed and constructed by the Corporation in
phases in accordance with the terms, conditions and requirements of the Project and Finance
Plan and Development Agreement. The Parties will cooperate and coordinate their activities so
that the commencement, financing and construction of the TIF Projects occurs at such times as
are necessary or desirable to meet the time requirements for the construction of other
improvements within the Zone by the Developer or End Users. A construction schedule and
budget for the construction of each phase of the TIF Projects shall be prepared, maintained and
updated, from time to time, by the Corporation as required to implement the Project and Finance
Plan and Development Agreement, which schedule and budget, when completed and updated,
shall become part of this Agreement. The Parties shall use all reasonable efforts to construct the
TIF Projects on a schedule that will satisfy the performance standards set forth in the Project and
Finance Plan and Development Agreement. The Corporation may assign to the Developer the
responsibility to prepare such construction schedule and budget, to prepare plans and
specifications for the TIF Projects, to negotiate and recommend the award of contracts for the
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design and construction of the TIF Projects, and to manage and oversee construction of the TIF
Projects. The Zone Board and the City agree and acknowledge, and the Corporation
acknowledges, that the Developer may seek and receive payment and reimbursement in
accordance with this Agreement for all TIF Project Costs paid or incurred by the Developer in
performing its assigned duties under the Developer Agreement, including, but not limited to, all
costs and expenses paid or incurred by the Developer in connection with the creation of the Zone
and the implementation of the Project and Finance Plan and Development Agreement, out of
proceeds of TIF Obligations, the City Sales Tax Increment, the City Tax Increment , the County
Tax Increment or other funds available under this Agreement or the Development Agreement, as
applicable.
3.4.2 To the extent that any of the TIF Projects to be constructed are to be
located in City owned rights-of-way, the City shall grant to the Corporation access thereto to
enable the construction of such projects. In the event additional right-of-way is required to
construct the TIF Projects, the City will cooperate with the Corporation to acquire the necessary
right-of-way, including, but not limited to, the use of the City's condemnation powers. The
acquisition of such right-of-way shall be at the expense of the Corporation.
3.4.3 To the extent the Corporation, the Zone Board, the City or the Developer
incurs any costs, including financing costs, to undertake or construct any TIF Projects, such costs
shall constitute TIF Project Costs incurred in furtherance of the Project and Finance Plan. A
general description of the TIF Projects is contained in the Project and Finance Plan and
Development Agreement; however such description is not intended to be an exhaustive list of
projects. The Corporation will cause the TIF Projects to be constructed in substantial accordance
with the Project and Finance Plan and Development Agreement.
3.4.4 All contracts for the acquisition, design or construction of TIF Projects
shall be entered into by and in the name of the Corporation and shall be approved by the City
(which approvals shall not be unreasonably withheld or delayed); however, all such contracts
shall reflect that the "owner" of the TIF Projects being acquired, designed or constructed shall, at
all times, be and remain the City. To the extent permitted by law, such contracts shall be exempt
from any requirement for competitive bidding. Notwithstanding the fact that the City is the
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"owner," the contractors nevertheless agree to look solely to the Corporation for payment, and the
City shall have no liability whatsoever under such contracts, whether for payment or otherwise.
3.4.5 The Corporation shall require all contracts for the design and construction
of TIF Projects to include provisions relating to performance bonds, surety bonds, insurance, and
other performances standards that are approved by the City, which approvals shall not be
unreasonably withheld or delayed.
3.4.6 All TIF Projects shall be designed and constructed in accordance with the
applicable development regulations of the City including, but not limited to, zoning, subdivision,
and building code regulations. Except as expressly required by such applicable regulations, the
design and construction of the TIF Projects shall be determined by the Developer and End Users.
3.5 TIF Obligations.
3.5.1 The Parties agree that the Corporation has the authority to issue TIF
Obligations that are to be repaid from moneys to be paid by the City and the Zone Board to the
Corporation from the Tax Increment Fund pursuant to this Agreement.
3.5.2 The Parties agree that the Corporation has the power from time to time to
issue TIF Obligations upon such terms and conditions as the Corporation and the City shall
determine to be necessary or desirable to implement the Project and Finance Plan and
Development Agreement. The TIF Obligations may be in the form of a bond, note or other debt
instrument.
3.5.3 To implement the Project and Finance Plan and Development Agreement,
the Corporation may issue TIF Obligations in an amount necessary to finance the acquisition,
design and construction of the TIF Projects and pay TIF Project Costs (including amounts
necessary to fund reserve funds, capitalized interest and pay costs of issuance) all of which will
be repaid by the Corporation from payments made by the City and the Zone Board from the Tax
Increment Fund pursuant to this Agreement. The issuance of TIF Obligations by the Corporation
shall be subject to the approval of the City by a resolution duly adopted by the City Council. The
deposit and disbursement of proceeds from the issuance of TIF Obligations shall be made in
accordance with this Agreement, the applicable trust indenture for, and other bond documents
related to, the related TIF Obligations.
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3.5.4 The Corporation agrees to commence the process to issue and sell the TIF
Obligations from time to time, at such times and in such amounts as are required to produce
proceeds in an amount sufficient to acquire, design and construct the TIF Projects and pay TIF
Project Costs, however, the Corporation will use all reasonable efforts to issue and deliver the
first series of TIF Obligations in accordance with the Project and Finance Plan and Development
Agreement on or before May 1, 2012; and provided, further, that the failure of the Corporation to
issue such first series of TIF Obligations by such date shall not impose any financial liability on
the City or any further obligation on the City to fund TIF Project Costs and is not a "Default"
under this Agreement. The Corporation shall issue and sell the TIF Obligations, from time to
time, and the City and the Corporation shall hold and disburse the proceeds as provided in this
Agreement, the applicable trust indenture for, and other bond documents related to, such TIF
Obligations.
3.5.5 TIF Obligations issued by the Corporation shall be secured, in whole or in
part, by funds deposited from time to time into the "Pledged Revenue Fund" created by the
Corporation under the applicable trust indenture and held by the applicable trustee. The Pledged
Revenue Funds are the accounts into which all payments of the City Tax Increment, the City
Sales Tax Increment and the County Tax Increment made by the City and Zone Board pursuant
to this Agreement shall be deposited. The Pledged Revenue Funds will be maintained at all
times in the manner provided in the applicable trust indenture for the related TIF Obligations.
Moneys in the Pledged Revenue Funds may be invested and reinvested by the Corporation, or
directed by the Corporation to be invested and reinvested, only in investments which would be
eligible for investment by the City pursuant to the provisions of the Public Funds Investment Act
(Chapter 2256, Texas Government Code).
3.5.6 All proceeds generated from the issuance of the TIF Obligations shall be
deposited into the Tax Increment Fund and thereafter caused to be transferred by the City to the
appropriate "Proceeds Fund," created by the Issuer under the applicable trust indenture and held
by the trustee, and thereafter disbursed in such manner and at such times as shall be provided for
in such trust indenture for, and other bond documents related to, the related TIF Obligations. All
such proceeds shall be held separate and apart from, and shall not be commingled with, any other
funds of the City or the Corporation.
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3.5.7 To the extent necessary or desirable, the applicable trust indenture for, and
other bond documents related to, the TIF Obligations may provide that a reserve fund be
established and funded as mutually agreeable to the Corporation and the City to pay the principal
and interest on the TIF Obligations and/or to retire a portion of the TIF Obligations.
3.5.8 The Corporation agrees to provide to the City and the Zone Board copies
of the proposed trust indenture and/or bond resolution in connection with any issuance of any
TIF Obligations. In addition, to the fullest extent permitted by law, the Corporation agrees that it
will not revoke or amend any trust indentures, orders, resolutions or other actions relating to the
issuance, sale, or delivery of TIF Obligations, except as provided in such resolutions, trust
indentures, or other instruments adopted or executed in connection with the issuance, sale, and
delivery of the TIF Obligations.
3.6 Complete books and records shall be maintained showing deposits to and
disbursements from the Tax Increment Fund of the City and the Pledged Revenue Funds or other
funds of the Corporation, which books and records shall be deemed complete if kept in
accordance with generally accepted accounting principals as applied to Texas municipalities and
in accordance with the provisions of the TIF Act. Such books and records shall be available for
examination by the City during normal business hours upon request made not less than five (5)
business days prior to the date of such examination. The Corporation shall maintain such books
and records throughout the term of the Zone and for six (6) years thereafter, all subject to the
requirements of the TIF Act.
3.7 The Corporation will use the moneys in the Pledged Revenue Fund in accordance
with the terms of the applicable trust indenture for, and other bond documents related to, the TIF
Obligations.
3.8 The Corporation may pledge and assign all or a part of the Pledged Revenue Fund
to the owners and holders of the related TIF Obligations in accordance with the terms of the
applicable trust indenture for such TIF Obligations.
4. DUTIES OF THE CITY AND THE ZONE BOARD
4.1 The City agrees to provide customary City services in the Zone subject to the
provision of funds for these services in the City budget.
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4_2 The City has established the Tax Increment Fund, including subaccounts, in the
City treasury into which all the City Sales Tax Increment, City Tax Increment and the County Tax
Increment shall be deposited. During the term of this Agreement, the City, on behalf of itself and
the Zone Board, will pay the Corporation, or the trustee maintaining the applicable Pledged
Revenue Fund under the related trust agreement, on a monthly basis on the first business day of
each month, the City Sales Tax Increment, City Tax Increment and the County Tax Increment
then available in the Tax Increment Fund. Such funds shall be transferred and deposited into the
applicable Pledged Revenue Fund under the related trust indenture and used in accordance with
Section 3.7 heretofore. Also during the term of this Agreement, the City, on behalf of itself and
the Zone Board, will pay the Corporation, or the trustee maintaining the applicable Proceeds Fund
under the related trust agreement, immediately upon receipt of any proceeds of any TIF
Obligations the full amount of such deposit. Such proceeds shall be transferred and deposited
into the applicable Proceeds Fund under the related trust indenture and used in accordance with
Section 3.5.7 heretofore.
4.3 The City and the Zone Board shall have no financial obligation to the Corporation
other than as provided in this Agreement and in other agreements between the City, the Zone
Board and the Corporation. The obligation of the City and the Zone Board to the Corporation
under this Agreement is limited to the Tax Increment Fund. This Agreement shall create no
obligations of the City or the Zone Board which are payable from taxes or other moneys of the
City other than from the Tax Increment Fund.
4.4 In consideration of the services to be provided by the Corporation, the City and
the Zone Board covenant and agree that they will, as authorized under the TIF Act and other
applicable laws, continuously collect the City Tax Increment, County Tax Increment, and City
Sales Tax Increment in the manner and to the maximum extent permitted by applicable law. To
the extent the City and the Zone Board may legally do so, the City and the Zone Board also
covenant and agree that they will not permit a reduction in such tax increments. In addition, the
City covenants and agrees that it will not dissolve the Corporation and that any repeal of the right
and power to collect such tax increments will not be effective until all TIF Obligations of the
Corporation have been paid in full or until they are legally defeased. The City and the Zone
Board further covenant and agree that they will make all deposits of such tax increments directly
into the Tax Increment Fund without counterclaim or offset.
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4_5 The obligation of the City and the Zone Board to make the payments set forth in
this Agreement from the Tax Increment Fund shall be absolute and unconditional, and until
such time as this Agreement and all TIF Obligations issued pursuant to this Agreement have
been fully paid or otherwise satisfied or provision for payment thereof shall have been made in
accordance with their terms or the date of expiration of the Zone, whichever comes last, the City
and the Zone Board will not suspend or discontinue any payments provided for by this
Agreement for any cause.
5. ADDITIONAL PROVISIONS
5.1 Notices. Any notice or other communication required or contemplated 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 MAIL with
return receipt requested, and (iii) when addressed as follows or, in the case of a change of
address, as provided in a Notice notifying the other Parties of such address change.
To the City:
The City of The Colony, Texas
6800 Main Street
The Colony, Texas 75056
Frith a copy to:
Brown and Hofineister, LLP: c/o Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
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To the Zone Board:
Board of Directors
Tax Increment Reinvestment Zone Number One,
City of The Colony, Texas
6800 Main Street
The Colony, Texas 75056
With a copy to:
Brown and Hofineister, LLP: c/o Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
To the Corporation:
The Colony Local Development Corporation
6800 Main Sheet
The Colony, Texas 75056
With a copes:
Brown and Hofineister, LLP: c/o Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
5.2 No Personal Liability. To the extent permitted by State law, no director,
employee, or agent of the Corporation, no director, employee, or agent of the Zone Board, and
no elected official, officer, employee or agent of the City shall be personally responsible for any
liability arising under or growing out of this Agreement.
5.3 Default; Remedies. If any Party fails to perform any material covenant required
by this Agreement, any other Party may give Notice of such failure to the non-performing Party,
which Notice shall describe in reasonable detail the nature of the failed performance. If the non-
performing Party does not cure or remedy the failed performance 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. If any Party is in Default, the sole and exclusive
remedy of the other Parties is to enforce specific performance of this Agreement. No Default by
any Party shall entitle any other Party to terminate this Agreement.
5.4 Applicable Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, and all obligations of the Parties created
95338860.3/11108583 Page 14
hereunder are perfornable in Denton County, Texas. Venue for any action arising under this
Agreement shall lie in the state district courts of Denton County, Texas.
5.5 Binding Obligation; Entire Agreement; Amendments. This Agreement is binding
upon the Parties and their assignees as permitted by this Agreement and to the extent provided in
any assignment. This Agreement constitutes the entire understanding and agreement of the
Parties as to the matters set forth in this Agreement and supersedes all prior agreements and
understandings whether oral or in writing. Except as provided in this Section 5.5, no amendment
to this Agreement shall be effective unless the amendment is in writing and is signed by the
Party or Parties sought to be bound by the amendment. This Agreement shall be automatically
amended to add as a Party each assignee that executes an assignment permitted by this
Agreement, provided, however, the assignee will only be considered a Party for the limited
purposes set forth in the assignment.
5.6 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be considered an original and all of which, when taken together, shall constitute a
single document.
5.7 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.
5.8 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.
95338860.3/11108583 Page 15
CITY:
City of The Colony, Texas
a Texas home-rule municipality
0ecCoui y, Mayor
ATT ST:
Y:.
hristie Wilson, TRMC, City Secretary
APPROVED AS TO FORM:
;s
J_ eff Moor, City Attorney
ZONE BOARD:
Board of Directors of Tax Increment
Reinvestment Zone Number One, City of
The Colony, Texas
By:
Joe McCouny, President
ATTEST:
Perry Schrag, Secretary
CORPORATION:
The Colony Local Development Corporation
a Texas non-profit corporation
By:
Joe McCouny, President
ATTEST:
Richard Boyer, Secretary
95338860.3/11108583 Page 16
City Manager's Fiscal Impact Statement
TIRZ Number One Management Agreement
December 6t", 2011
The Management Agreement for the Tax Increment Reinvestment Zone Number One is income neutral
for the first three years and no anticipated costs in consecutive years.
Troy.,C Powell
City Manager
I