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HomeMy WebLinkAboutResolution No. 2012-043 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2012-043 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING AND RATIFYING AN AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY, TEXAS, THE COLONY LOCAL DEVELOPMENT CORPORATION, AND NFM SERVICES, LLC, A TEXAS LIMITED LIABILITY COMPANY; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The Colony Local Development Corporation (hereinafter referred to as the "LDC") is a Texas non-profit corporation created pursuant to Chapter 431 of the Texas Transportation Code, as amended, and Chapter 394 of the Texas Local Government Code, as amended; and WHEREAS, the City, LDC, and NFM Services, LLC, a Texas limited liability company ("NFM Services") contemplate that the City and/or LDC may advance funds to pay TIF Project Costs allocable to the Retail Facilities, Additional Land, and Public Improvements, as those terms are defined in the Reimbursement 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 hereby determines it is in the best interest of the City to adopt this Resolution approving and ratifying the attached Agreement and hereby finds that the Agreement benefits the City and the LDC. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION 1. Each and every one of the recitals, findings, and determinations contained in the preamble to this Resolution, as well as each and every one of the recitals, findings, and determinations contained in the Agreement, a copy of which is attached hereto as Exhibit A, are incorporated into the body of this Resolution as if fully set forth herein and are hereby found and declared to be true and correct legislative findings and are adopted as part of this Resolution for all purposes. 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. e McCour y, Mayor ATTES ,1 Christie Wilson, City Secretary APPROVED AS TO FORM: r ~ Jeff Moore/City Attorney Exhibit A i REIMBURSEMENT AGREEMENT This REIMBURSEMENT AGREEMENT (the "Agreement") is made and entered into by and between The City of The Colony, Texas, a Texas home-rule municipality (the "City"), The Colony Local Development Corporation, a Texas non-profit corporation (the "LDC"), and NFM Services, LLC, a Texas limited liability company ("NFM Services"), and collectively referred to as the "Parties." WHEREAS, 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, LDC, and NFM Services contemplate that the City and/or- LDC may advance funds to pay TIF Project Costs allocable to the Retail Facilities, Additional Land, and Public Improvements, as those terms are defined in the Reimbursement Agreement attached hereto as Exhibit A, and incorporated by reference as a part of this resolution for all purposes (the "Agreement"); and WHEREAS, the Board of Directors of The Colony Local Development Corporation, find and determine that the approval of the Agreement, a copy of which is attached hereto as Exhibit A, is in the best interest of the City of the Colony, Texas, and the LDC. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, the LDC, and NFM Services agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date, and shall continue thereafter until all obligations of the City, LDC, and NFM Services have been performed in full, unless terminated sooner under the provisions hereof. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Act. The word "Act" means the Tax Increment Financing Act, Chapter 311 of the Texas Tax Code, as amended. (b) Additional Land. The words "Additional Land" mean the approximately 307 acres of the Property that will be used for additional development. (c) Agreement. The word "Agreement" means this Reimbursement Agreement, together with all exhibits and schedules attached hereto, if any, and as the same may be amended from time to time. (d) Bond. The word "Bond" or "Bonds" mean any bond, note, or other evidence of indebtedness issued by the LDC, and secured by funds in the Tax Increment Fund. (e) Bond Validation Final Judgment. The words "Bond Validation Final Judgment" mean 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 of the Texas Government Code, in the 53rd Judicial District Court of Travis County, Texas, Cause No. 0-1-GV-11- 001995. (f) City. The word "City" means the City of The Colony, Texas. For purposes of this Agreement, the City's address is City of The Colony, 6800 Main Street, The Colony, Texas 75056. (g) City Council. The words "City Council" mean the City Council of the City. (h) Development Agreement. The words "Development Agreement" mean the "Development and Tax Increment Payment Agreement" executed by the Board of Directors of the Tax Increment Reinvestment Zone Number One, City of The Colony, Texas, the City, the LDC, TXFM, Inc., and LMG Ventures, LLC effective November 15, 2011, as amended, and approved by the City Council. (i) Effective Date. The words "Effective Date" mean May 15, 2012. (j) Facility. The word "Facility" has the same meaning as defined in the Project and Finance Plan. (k) LDC. The word "LDC" means The Colony Local Development Corporation, a Texas non- profit corporation, and it successors and assigns. For purposes of this Agreement, LDC's address is 6800 Main Street, The Colony, Texas 75056. (1) NFM Advances. The words "NFM Advances" mean the funds advanced by NFM Services to or on behalf of the City and/or the LDC to pay TIF Project Costs allocable to the Retail Facilities, Additional Land, and Public Improvements. (m) NFM Services. The words "NFM Services" mean NFM Services, LLC, a Texas limited liability company, its successors and assigns whose address for purposes of this Agreement is 700 S. 72nd Street, Omaha, NE 68114. (n) Public Improvements. The words "Public Improvements" mean the public infrastructure and public improvements (including surface and structured parking) that are required or suitable to promote or develop the Retail Facilities and the Additional Land. (o) Private Debt. The words "Private Debt" have the same meaning as defined in the Development Agreement to mean bonds, notes, loans, or other forms of indebtedness issued or obtained by LMG Ventures, LLC and TXFM, Inc., to pay TIF Project Costs and secured by a collateral assignment of any payments made to LMG Ventures, LLC and TXFM, Inc., from the Tax Increment Fund in accordance with the Act. (p) Project and Finance Plan. The words "Project and Finance Plan" mean 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. (q) Property. The word "Property" means the property defined by metes and bounds in the Development Agreement to include approximately 433.81 acres of undeveloped land on which the Facility will be located. (r) Retail Facilities. The words "Retail Facilities" mean the approximately 546,000 square feet within the Facility that will be used for retail purposes. (s) Soft Costs. The words "Soft Costs" mean capital costs that are allocable to the Retail Facilities, Additional Land, and Public Improvements and are approved by the Corporation including, but not limited to, an allocable portion of the capital costs related to: (1) site selection (including, but not limited to, market studies, economic and feasibility analyses, financial modeling, preliminary engineering, and preliminary design); (2) the acquisition of property (including, but not limited to, real estate commissions, title insurance premiums, and the costs to prepare and review title reports, surveys, engineering and geotechnical data, and environmental assessments); (3) negotiating development regulations; (4) negotiating economic development incentives with the Corporation and the City; (5) engineering, architectural, design, and other professional and consulting services; (6) accounting, audit, appraisal, and related financial services; (7) telecommunications studies; (8) bond validation litigation filed pursuant to Chapter 1205, Texas Government Code, including all costs associated with obtaining the Bond Validation Final Judgment; (9) interest paid on NFM Advances or by 121 LLC in acquiring and holding the Property; (10) costs of issuance of Private Debt; (11) permits and inspections; (12) project, construction, and contract management and consulting; and (13) legal services in support of all of the foregoing activities. (t) State Comptroller. The words "State Comptroller" mean the Office of the Texas Comptroller of Public Accounts, or any successor agency. (u) Tax Increment Fund. The words "Tax Increment Fund" have the same meaning as defined in the Project and Finance Plan. (v) Term. The word "Term" means the term of this Agreement as specified in Section 2 of this Agreement. (w) TIF Project Costs. The words "TIF Project Costs" mean the capital costs of TIF Projects approved by the LDC, and as further described in the Project and Finance Plan, TIF 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. TIF Project Costs are also intended to include (as a capitalized cost in accordance with generally accepted accounting principles) the full-time management services of Tod Maurina, an employee of the City, at an annual base compensation of $300,000 plus customary employment benefits beginning November 16, 2011, and continuing thereafter until the Facility is completed, at which time Mr. Maurina (who will at all times have remained an employee of the City) will return to his regular duties as the Assistant City Manager of Operations. SECTION 4. AFFIRMATIVE OBLIGATIONS. The parties covenant and agree with each other that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) City Reimbursements. In the event the first series of Bonds has not been issued by August 31, 2012, the City shall give written notice to NFM Services of the TIF Project Costs paid or incurred by the City or the LDC as of such date and allocable to the Retail Facilities, Additional Land, and Public Improvements for which the City or the LDC is entitled to reimbursement from the Tax Increment Fund but for which the City or the LDC has not been reimbursed. The notice from the City shall include an accounting of the TIF Project Costs eligible for reimbursement, and NFM Services shall pay the reimbursement amount within thirty (30) days after receiving notice from the City. Amounts paid by NFM Services to the City or the LDC pursuant to this Section shall be reimbursed as NFM Advances. Thereafter, to the extent Bonds are not issued after August 31, 2012 or to the extent Bond proceeds have been exhausted, the City may, at its option, on each June 30, September 30, December 31, and Parch 31, give written notice to NFM Services of the TIF Project Costs paid or incurred by the City or the LDC as of such dates and allocable to the Retail Facilities, Additional Land, and Public Improvements for which the City or the LDC is entitled to reimbursement from the Tax Increment Fund but for which the City or the LDC has not been reimbursed. The notice from the City shall include an accounting of the TIF Project Costs eligible for reimbursement, and NFM Services shall pay the reimbursement amount within thirty (30) days after receiving Notice from the City. Amounts paid by NFM Services to the City or the LDC pursuant to this Section shall be reimbursed as NFM Advances. (b) Performance. The City, LDC, and NFM Services agree to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between the City, LDC, and NFM Services. SECTION 5. EVENTS OF DEFAULT. (a) If a parry 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. (b) In addition to Defaults described in Section 5(a), NFM Services shall be in Default under this Agreement if NFM Services becomes delinquent in the payment of any ad valorem taxes or sales taxes owed to the City and such delinquencies, including penalties and interest, are not paid in full within sixty (60) days after written notice of such delinquencies is given. If NFM Services is in Default under this Section 5(b), the City may pursue any remedies available at law or in equity (excluding termination of this Agreement) including, but not limited to, exercise of the right of off-set against any amounts to which NFM Services is entitled under this Agreement. (c) Except as provided in Section 5(b), 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. (d) If the City or the LDC 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 City or the LDC 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. (e) No Default by any Party shall entitle any other Party to terminate this Agreement. SECTION 6. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) 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 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. (c) 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 Development Agreement. Neither the City nor the LDC may assign this Agreement or any of their respective right, title, or interest in or to this Agreement without the prior written consent of NFM Services. (d) Binding Obligation. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. City warrants and represents that the individual executing this Agreement on behalf of City has full authority to execute this Agreement and bind City to the same. NFM Services warrants and represents that the individual executing this Agreement on NFM Services' behalf has full authority to execute this Agreement and bind it to the same. (e) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (f) 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. (g) Execution of Agreement. The Board of Directors of the LDC shall authorize the execution of this Agreement on behalf of the LDC. (h) Force Majeure. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such obligation or requirement shall be extended for a period of time equal to the period such party was delayed. (i) Notices. Any notice or other communication required or permitted by this Agreement 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 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 LDC: The Colony Local Development Corporation Attn: Joe McCouriy 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 (j) 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. (k) 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. (1) Time is of the Essence. Time is of the essence in the performance of this Agreement. [The Remainder of this Page Intentionally Left Blank] THE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. THIS AGREEMENT IS DATED AS OF EFFECTIVE AS OF THE EFFECTIVE DATE AS DEFINED HEREIN. NFM SERVICES: NFM SERVICES, LL C, a Texas limited liability company By: - Jeff Irk / r_s Date: LDC: THE COLONY LOCAL DEVELOPMENT CORPORATION, a Texas non-profit corporation By: J e McCoun , President Date: ATTEST: ichard Boyer, Secret 4 CITY: CITY OF THE COLONY, TEXAS, a Texas home-rule municipality jell By: 2n~~ oe McCo rry, Mayor Date° ATTEST- Christie Wilson, City Secretary APPROVED AS TO FORM: Jeff Moore;; City Attorney