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11-052 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 11-52 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN INFRASTRUCTURE DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF PROSPER AND THE PROSPER ECONOMIC DEVELOPMENT CORPORATION. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Mayor of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an infrastructure development agreement between Town of Prosper and the Prosper Economic Development Corporation, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 12th day of July, 2011. P0 -6-v' Ray Smith, ayor ATTEST TO: xz' tm Amy Piuk na Town Secretary INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City and Prosper Partners) STATE OF TEXAS COUNTY OF COLLIN This Infrastructure Development Agreement (this "Agreement") is made and entered into by and between the Town of Prosper, Texas ("Town") and the Prosper Economic Development Corporation ("PEDC") (referred to as the "Parties" or individually a "Party"). WHEREAS, Town has entered into a Developer Participation Agreement with Forest City Prosper Limited Partnership and Prosper Partners, L.P., which is attached hereto as Exhibit "A", ("Developer Participation Agreement") related to the construction of certain water and sewer infrastructure; and WHEREAS, PEDC desires to contribute to the Project (as defined herein) to help expedite its completion and to promote economic development in the area; and WHEREAS, the Parties have investigated and determined that it is in the best interest of the public to share in the costs of the water and sewer infrastructure as set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the Parties hereto agree as follows: 1. Description of Project/Management of -the Projcct. The Project consists of the design and construction of the water and sewer improvements identified in the Developer Participation Agreement (the "Pr�o'ect"). Construction of the Project will begin by March 1, 2012, in accordance with the plans and specifications prepared in accordance with the Developer Participation Agreement. Town shall administer payments to the construction contractor for the Project in accordance with the Developer Participation Agreement. 2. 1'roiect Construction Costs Paid by Parties. Pursuant to the Developer Participation Agreement and in compliance with Texas Local Government Code §212.072(d), the Town's maximum financial contribution for the water infrastructure shall be the lower of Four Hundred Seventy Eight Thousand Dollars and .00/100 ($478,000.00) or 14.45% of the costs authorized by the Developer Participation Agreement and the Town's maximum financial contribution for the sewer infrastructure shall be the lower of Five Hundred Twelve Thousand Four Hundred Twenty Five Dollars and .00/100 ($512,425.00) or 25.75% of the costs authorized by the Developer Participation Agreement. PEDC agrees to pay Two Hundred Eighty Four Thousand Three Hundred Thirty Three Dollars and .00/100 ($284,333.00) to Town for Town to use in meeting these financial obligations under the Developer Participation Agreement ("Contribution"). 3. `l`irne of Pavinents Fav PEDC to `["own. Simultaneously with the execution of this INFRASTRUCTURE DEVELOPMENT_ AGREEMENT (Forest City & Prosper Partners) Page 1 of 5 M:\Mike\My Documents\City Council\Prosper\Economic Development\West Prosper Development Group\TownandPEDCagreementforEDC'scontributiontocosts0821 I Ldoc Agreement, PEDC shall pay Twenty Eight Thousand Four Hundred Thirty Three Dollars and .00/100 ($28,433.00) (being 10% of the Contribution) to Town. Within ten (10) days of Town notifying PEDC of the start of construction of either the water or sewer infrastructure improvements, PEDC shall pay Ninety Nine Thousand, Five Hundred Seventeen Dollars and .00/100 ($99,517.00) (being 35% of the Contribution) to Town. Within ninety (90) days of Town notifying PEDC of the start of construction of either the water or sewer infrastructure improvements, PEDC shall pay One Hundred Fifty Six Thousand, Three Hundred Eighty Three Dollars and .00/100 ($156,383.00) (being 55% of the Contribution) to Town. 4. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally by the Parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the Parties and are not intended to be used in construing this document. 5. Default. In the event of a breach of this Agreement by either Party, the other Party may pursue any remedies available at law or in equity. 6. Term. This Agreement shall become effective on the latest date of execution by a Party, and shall terminate upon: (a) PEDC tendering the entire Contribution to Town, or (b) if applicable, termination of the Developer Participation Agreement if terminated prior to a construction contract being executed due to final cost exceeding 15% of the anticipated cost as allowed therein. 7. Immunity. Neither Party has waived its sovereign immunity by entering into and performing its obligations under this Agreement. 8. Non -Transferable. Neither Party hereto shall transfer or assign any of its rights hereunder to a third party. 9. Notices. Any notice required or permitted under this Agreement shall be given when actually delivered as certified mail addressed as follows: To PEDC: Executive Director Prosper Economic Development Corporation 170 N. Preston Rd. Ste. 50 P.O. Box 1060 Prosper, Texas 75078 To Town: Town of Prosper Attn: Town Manager P.O. Box 307 Prosper, Texas 75078 INFRASTRUCTURE DEVELOPMENT AGREEMFNT (Forest City & Prosper Partners) Page 2 of 5 M:\Mike\My Documents\City Council\Prosper\Economic Development\West Prosper Development Group\TownandPEDCagreementforEDC'scontributiontocosts0821 I Ldoc 10. Cumulative Remedies. All rights and remedies of the Parties under this Agreement shall be cumulative, and none shall exclude any other right or remedy provided by law, or by any other provisions of the Agreement. All such rights and remedies may be exercised and enforced concurrently and whenever, and as often, as occasion for their exercise arises. 11. Waiver of Breach. A waiver by either Party of a breach of the Agreement by the other Party does not constitute a continuing waiver or a waiver of any subsequent breach of the Agreement. 12. Parties Bound. The Agreement shall be binding upon, and inure to the benefit of, the Parties to the Agreement and their respective heirs, executors, administrators, legal representatives, successors, and assigns when permitted by this Agreement. 13. No Third Par Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the Parties do not intend to create any third party beneficiaries by entering into this Agreement. 14. Incor oration of Recitals. The representations, covenants and recitations set forth in the foregoing recitals of this Agreement are true and correct and are hereby incorporated into the body of this Agreement and adopted as findings of the Parties. 15. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the matters contained herein and may not be modified, amended or terminated except upon the provisions hereof or by the mutual written agreement of the Parties hereto. The subject matter of this Agreement is for the construction of Broadway Street only and not any other matters that may exist between the Parties past, present or future. 16. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. 17. Consideration. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. 18. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 19. Authority to Execute. The individuals executing this Agreement on behalf of the respective Parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the Party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the Party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is INFRASTRUCTURE DEVELOPMENT AGREEMENT Forest City & Prower Partners Page 3 of 5 H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement PEDC\Town and PEDC agreement for EDC's contribution to costs07071 Ldoc valid and effective on the date hereof. 20. Force MaJeure. Neither Town nor PEDC shall be required to perform any term, condition, or covenant in the Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riots, floods, and any other cause not reasonably within the control of Town or PEDC and which by the exercise of due diligence Town or PEDC is unable, wholly or in part, to prevent or overcome. IN WITNESS WHEREOF, the Parties have executed this Agreement and caused this Agreement to be effective on the latest date as reflected by the signatures below. TOWN OF PROSPER, T XAS By: Pat,, Ray Smith; Ma or Date Executed: Attest: Amy Piukar Town Seer tary PROSPER ECONOMIC DEVELOPMENT CORPORATION Mike Wadsworth, President Date Executed: no` I b' /,1 INFRASTRUCTURE DEVELOPMENT AGREEMENT Farest City & Pros er Partners Page 4 of 5 H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc EXHIBIT A DEVELOPER PARTICIPATION AGREEMENT INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest &, Prosper F'aewers) Page 5 of 5 H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement PEDC\Town and PEDC agreement for EDC's contribution to costs07071 Ldoc