HomeMy WebLinkAboutResolution No. 2012-035
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2012-035
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE
COLONY, TEXAS, APPROVING A CONSTRUCTION MANAGEMENT
AGREEMENT WITH THE CITY OF THE COLONY, TEXAS, THE
COLONY COMMUNITY DEVELOPMENT CORPORATION, AND NFM
SERVICES, INC, A TEXAS LIMITED LIABILITY COMPANY FOR
PAYMENT OF CERTAIN COSTS WITH NET PROCEEDS OF BONDS;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, The Colony Community Development Corporation (hereinafter referred
to as the "CDC") is a Type B economic development corporation, created pursuant to Chapter
505 of the Texas Local Government Code, as amended; and
WHEREAS, on November 15, 2011, the City Council (the "City Council") of the City of
The Colony, Texas (the "City") approved a Type B Performance Agreement by and between the
CDC, TXFM, Inc., and LMG Ventures, LLC, effective November 15, 2011, as amended
(hereinafter referred to as the "Type B Performance Agreement"); and
WHEREAS, the Type B Performance Agreement provides that Project Costs (as defined
therein) may be reimbursed or paid from Type B Sales Tax Revenues (as defined therein)
deposited into the Type B Reimbursement Account (as defined therein); and
WHEREAS, the City, CDC, and NFM Services, LLC, a Texas limited liability company
("NFM Services") contemplate that NFM Services will advance funds to or on behalf of the City
and/or the CDC to pay Project Costs allocable to the Warehouse & Distribution Facilities,
Regional Headquarters, and Public Improvements, as those terms are defined in the Construction
Management Agreement, attached hereto as Exhibit A and incorporated by reference as a part of
this resolution for all purposes (the "Agreement"); and
WHEREAS, the City Council of the City of The Colony, Texas, finds and determines
that the expenditure as specified in the Agreement, a copy of which is attached hereto as Exhibit
A, is in the best interest of the City of the Colony, Texas.
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 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 15"' day of MAY, 2012.
J McCour , Mayor
ATTE T:
L
s YY
Christie Wilson, City Secretary
APPROVED AS TO FORM:'
Jeff Moore,' ity Attorney
Exhibit A
[Agreement]
City Manager's Fiscal Impact Statement
Construction Management Agreement (with Bonds) Between The Colony
Community Development Corporation, The City of The Colony, and
NFM Services, LLC
May 15, 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.
Troy, . Powell
~anager
1775.010\26786.1
CONSTRUCTION MANAGEMENT AGREEMENT
This Construction Management Agreement (this "Agreement") among NFM
Services, LLC, a Texas limited liability company ("NFM Services"), The Colony
Community 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 May 15, 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, the Type B Performance Agreement provides that capital
assets funded by Financial Incentives have been bargained for to induce taxpayers to
locate and operate their business within the Property and are intended to be grants and
contributions to the capital of such taxpayers;
1.2 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 pursuant to this Agreement or any other
agreement;
1.3 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
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the value of the capital assets, and will ordinarily, if not always, be employed in or
contribute to the production of additional income by the taxpayer;
1.4 WHEREAS, capital assets to be contributed from time to time to taxpayers
as grants and contributions to capital are intended to benefit the public at large in the
form of increased jobs, sales tax revenues, and ad valorem tax revenues that promote
economic development within the Property and the City;
1.5 WHEREAS, a Project, as defined herein, includes capital assets to be
contributed from time to time to taxpayers as grants and contributions to capital
including, but not limited to, the approximately 1,280,000 square feet within the Facility
that will be used for warehouse and distribution purposes (the "Warehouse &
Distribution Facilities") and the approximately 25,000 square feet within the Facility that
will be used for regional headquarters purposes (the "Regional Headquarters");
1.6 WHEREAS, a Project can also include public infrastructure and public
improvements that are required or suitable to promote or develop the Warehouse &
Distribution Facilities and Regional Headquarters ("Public Improvements");
1.7 WHEREAS, the Type B Performance Agreement provides that Project
Costs may be reimbursed or paid from the proceeds of Bonds deposited in accordance
with the Act and as required by the applicable trust indenture;
1.8 WHEREAS, the Parties contemplate that NFM Services will advance
funds to or on behalf of the City and/or the Corporation to pay Project Costs allocable to
the Warehouse & Distribution Facilities, the Regional Headquarters and Public
Improvements (the "NFM Advances");
1.9 WHEREAS, the Parties contemplate that NFM Services will manage for or
on behalf of the City and/or the Corporation all activities directly or indirectly related to
the expenditure of Project Costs allocable to the Warehouse & Distribution Facilities, the
Regional Headquarters and Public Improvements;
1.10 WHEREAS, the Parties contemplate that the City and/or the Corporation
will reimburse NFM Services for the NFM Advances on a monthly basis from the
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proceeds of Bonds in accordance with the Act and deposited as required by the
applicable trust indenture;
1.11 WHEREAS, the Parties contemplate that in addition to being reimbursed
for NFM Advances from the proceeds of Bonds in accordance with the Act and
deposited as required by the applicable trust indenture, NFM Services will be paid from
Bond proceeds a portion of a "Construction Management Fee" to manage for or on
behalf of the City and/or the Corporation activities related to the expenditure of Project
Costs allocable to the Warehouse & Distribution Facilities, the Regional Headquarters
and Public Improvements;
1.12 WHEREAS, the Construction Management Fee will equal $362,000.00
plus $3,000.00 per day beginning on the Effective Date, and continuing until the Facility
is completed;
1.13 WHEREAS, the sum of the Construction Management Fee, Additional
Construction Management Fee, and any other similar construction management fee
paid to NFM Services in connection with activities related to managing the expenditure
of Project Costs allocable to the Facility and the public infrastructure or public
improvements required or suitable to promote or develop the Facility shall not exceed
the amount calculated pursuant to Section 1.12; and
1.14 WHEREAS, the Parties desire to set forth their agreement with respect to
using Bond proceeds to pay or reimburse the Corporation's administrative costs, land
acquisition costs, Project Costs paid or incurred by the City, the Construction
Management Fee, NFM Advances, and third-party contractors and service providers.
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2. DEFINITIONS.
2.1 "121 LLC" means 121 Acquisition Company, LLC, a Texas limited liability
company.
2.2 "Act" is defined in the Type B Performance Agreement.
2.3 "Additional Construction Management Fee" is defined in Section 3.3.
2.4 "Additional Facilities" are defined in Section 3.3 and restricted to those
permitted by the Act.
2.5 "Additional NFM Advances" are defined in Section 3.3.
2.6 "Additional Public Improvements" are defined in Section 3.3 and restricted
to those permitted by the Act.
2.7 "Agreement" is defined in the introductory paragraph.
2.8 "Bonds" are defined in the Type B Performance Agreement.
2.9 "Bond Validation Final Judgment" means the "Final Judgment" entered
January 18, 2012, in Ex Parte City of The Colony filed by the City of The Colony, Texas,
pursuant to Chapter 1205, Texas Government Code, in the 53rd Judicial District Court of
Travis County, Texas, Cause No. 0-1-GV-11-001995.
2.10 "City" is defined in the introductory paragraph.
2.11 "City Council" means the City Council of the City.
2.12 "Construction Management Fee" is defined in Section 1.11.
2.13 "Corporation" is defined in the introductory paragraph.
2.14 "Effective Date" is defined in the introductory paragraph.
2.15 "Facility" is defined in the Project and Finance Plan.
2.16 "Financial Incentives" are defined in the Type B Performance Agreement.
2.17 "Maximum Debt Limit" is defined in the Type B Performance Agreement.
2.18 "Notice" is defined in Section 8.
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2.19 "NFM Advances" are defined in Section 1.8.
2.20 "NFM Services" is defined in the introductory paragraph.
2.21 "Parties" are defined in the introductory paragraph.
2.22 "Party" is defined in the introductory paragraph.
2.23 "Project" is defined in the Type B Performance Agreement.
2.24 "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.
2.25 "Project Costs" are capital costs of the Project approved by the
Corporation and, as further described in the Type B Performance Agreement, Project
Costs are intended to include Soft Costs paid or incurred on or after September 16,
2011, except for preliminary expenditures meeting the exception described in Section
1.150-2(f)(2) of the Treasury Regulations that are paid or incurred on or after January 1,
2011.
2.26 "Property" is defined by metes and bounds in the Type B Performance
Agreement to include approximately 433.81 acres of undeveloped land on which the
Facility will be located.
2.27 "Public Improvements" are defined in Section 1.6.
2.28 "Regional Headquarters" are defined in Section 1.5.
2.29 "Soft Costs" mean capital costs that are allocable to the Warehouse &
Distribution Facilities, the Regional Headquarters and Public Improvements and are
approved by the Corporation including, but not limited to, an allocable portion of the
capital costs related to: (1) site selection (including, but not limited to, market studies,
economic and feasibility analyses, financial modeling, preliminary engineering, and
preliminary design); (2) the acquisition of property (including, but not limited to, real
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i
estate commissions, title insurance premiums, and the costs to prepare and review title
reports, surveys, engineering and geotechnical data, and environmental assessments);
(3) engineering, architectural design and other professional and consulting services;
,
(4) accounting, audit, appraisal, and related financial services; (5) telecommunications
studies; (6) bond validation litigation filed pursuant to Chapter 1205, Texas Government
Code, including all costs associated with obtaining the Bond Validation Final Judgment;
(7) costs of issuance of Bonds; (8) permits and inspections; (9) project, construction,
and contract management and consulting; (10) travel eligible to be capitalized pursuant
I
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.
2.30 "Type B Performance Agreement" means the "Type B Corporation
Performance Agreement" executed by TXFM, Inc., the Corporation, and LMG Ventures,
LLC effective November 15, 2011, as amended, and approved by the City Council.
2.31 "Undivided Type B Interest" is defined in Section 3.2.2.
2.32 "Warehouse & Distribution Facilities" are defined in Section 1.5.
3. WAREHOUSE & DISTRIBUTION FACILITIES, REGIONAL HEADQUARTERS
AND PUBLIC IMPROVEMENTS.
3.1 NFM Services agrees to make the NFM Advances on a schedule
consistent with the Type B Performance Agreement to pay Project Costs allocable to
the Warehouse & Distribution Facilities, the Regional Headquarters and Public
Improvements.
3.2 The Corporation, with the approval of the City as evidenced by the City
Council's approval of this Agreement, will use the net proceeds of Bonds (up to the
Maximum Debt Limit) deposited as required by the applicable trust indenture and in
accordance with the Act:
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3.2.1 FIRST, to pay the Corporation's actual administration costs for the
Financial Incentives as required by the Type B Performance Agreement.
3.2.2 SECOND, to acquire, in the name of the Corporation from 121 LLC,
an undivided interest in and to the Property approved by NFM Services and
allocable to the Warehouse & Distribution Facilities, the Regional Headquarters
and Public Improvements (the "Undivided Type B Interest"). The purchase price
for the Undivided Type B Interest shall be an allocable portion of the actual costs,
including Soft Costs, paid or incurred by 121 LLC in acquiring the Property, up to
but not exceeding the fair market value of the Property based on an appraisal
prepared on behalf of the Corporation by a third-party professional appraiser.
3.2.3 THIRD, to reimburse the City for Project Costs paid or incurred by
the City and allocable to the Warehouse & Distribution Facilities, the Regional
Headquarters and Public Improvements.
3.2.4 FOURTH, to pay the Construction Management Fee.
3.2.5 FIFTH, to reimburse NFM Services for the NFM Advances.
3.2.6 SIXTH, to pay directly to third-party contractors and service
providers engaged and managed by NFM Services future Project Costs allocable
to the Warehouse & Distribution Facilities, the Regional Headquarters and Public
Improvements.
3.2.7 LAST, to reimburse or pay any other Project Costs.
3.3 Additional Facilities and Related Matters. 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 City and/or the Corporation (the
"Additional NFM Advances") to pay Project Costs allocable to an approved Project that
will be used for additional purposes (the "Additional Facilities") and Project Costs
allocable to public infrastructure and public improvements required or suitable to
promote or develop the Additional Facilities (the "Additional Public Improvements").
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NFM Services may, from time to time, with the consent of the City and/or the
Corporation, manage for or on behalf of the City and/or the Corporation activities related
to the expenditure of Project Costs allocable to the Additional Facilities and Additional
Public Improvements, in which case NFM Services shall be entitled to an additional
construction management fee (the "Additional Construction Management Fee"). The
City and/or the Corporation will reimburse NFM Services for the Additional NFM
Advances and pay NFM Services the Additional Construction Management Fee from
the net proceeds of Bonds in the same order of priority as described in Sections 3.2.
Notwithstanding the specificity in this section, the Parties intend that if there are
Additional Facilities, Additional Public Improvements, Additional NFM Advances, and an
Additional Construction Management Fee, then this Agreement in its entirety shall apply
thereto in the same manner and to the same extent that it applies to the Warehouse &
Distribution Facilities, the Regional Headquarters, Public Improvements, NFM
Advances, and the Construction Management Fee.
4. DEFAULT; REMEDIES.
4.1 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.
4.2 In addition to Defaults described in Section 4.1, NFM Services shall be in
Default under this Agreement if NFM Services becomes delinquent in the payment of
any ad valorem taxes or sales taxes owed to the City and such delinquencies, including
penalties and interest, are not paid in full within sixty (60) days after written Notice of
such delinquencies is given. If NFM Services is in Default under this Section 4.2, the
City may pursue any remedies available at law or in equity (excluding termination of this
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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.
4.3 Except as provided in Section 4.2, 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.
4.4 Except as provided by the applicable trust indenture and the related
Bonds, if the Corporation is in Default, the sole and exclusive remedies of NFM
Services are to: (1) enforce specific performance of this Agreement; and (2) exercise
any rights recorded against the Property to secure performance by the Corporation
under this Agreement, including, rights under any (a) covenants, conditions and
restrictions; (b) easements; (c) conveyance documents that include a determinable
interest, reversion or other similar right; or (d) a deed of trust to secure performance.
4.5 No Default by either Party shall entitle any other Party to terminate this
Agreement.
5. REPRESENTATIONS OF THE CORPORATION.
5.1 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.
5.2 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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5.3 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.
5.4 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.
6. REPRESENTATIONS OF NFM Services.
6.1 NFM Services is a Texas limited liability company duly authorized,
created, and existing in good standing under the laws of the State of Texas.
6.2 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.
6.3 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.
6.4 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.
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7. REPRESENTATIONS OF THE CITY.
7.1 The City is a Texas home-rule municipal corporation duly authorized,
created, and existing under the laws of the State of Texas.
7.2 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.
7.3 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.
7.4 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.
8. 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 NFM Services: NFM Services, LLC
Attn: Doug Hamlin
700 S. 72nd Street
Omaha, NE 68114
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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 Community Development Corporation
Attn: Pam Nelson
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
9. ASSIGNMENT. NFM Services has the right to assign this Agreement, in whole
or in part, and any of its right, title, or interest in or to this Agreement, to the same extent
and in the same manner provided to the "Developer" under the Type B Performance
Agreement. Neither the City nor the Corporation may assign this Agreement or any of
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their respective right, title, or interest in or to this Agreement without the prior written
consent of NFM Services.
10. ADDITIONAL PROVISIONS.
10.1 Term. This Agreement shall begin on the Effective Date and continue until
the City and/or the Corporation has reimbursed NFM Services for the NFM Advances
(and, if applicable, the Additional NFM Advances) and has paid to NFM Services the
Construction Management Fee (and, if applicable, the Additional Construction
Management Fee).
10.2 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.
10.3 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.
10.4 Binding Obligation. This Agreement shall become a binding obligation of
the Parties upon execution by all Parties.
10.5 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.
10.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall constitute
one and the same document.
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10.7 Force Maieure. 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.
10.8 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.
10.9 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.
10.10 Time of the Essence. Time is of the essence in the performance of this
Agreement.
10.11 Execution of Agreement. The Board of Directors of the Corporation shall
authorize the execution of this Agreement on behalf of the Corporation.
10.12 Exemption from Public Bid Requirements. The Corporation is not required
by State law to comply with the competitive bidding requirements applicable to the City.
10.13 Undocumented Workers. NFM Services certifies (and shall cause each
permitted assignee under Section 9 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
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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
May 15, 2012.
NFiVI Services
NFM Services, LLC
a Texas limited liability c ,1 a y
By:
Jeff 4wsident"
CORPORATION
The Colony Community Development Corporation,
a Texas non-profit corporation
By:
TeR n Lawrence, President
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CITY
The City of The Colony, Texas
A Texas home-rule municipal'
By:
oe McCo rry, Mayor
TS
ristie Wilson, City Secretary
( A, T~ FORM:
ipff Moore) City Attorney
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