13-25 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 13-25
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER
OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A LETTER
AGREEMENT RELATED TO THE PROPOSED EXPENDITURES FOR
SH 289 IMPROVEMENTS TO BE INCLUDED IN FUTURE TIRZ
FINANCING AGREEMENT, BETWEEN BLUE STAR LAND, LP, AND
THE TOWN OF PROSPER.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby
authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a
Letter Agreement related to the proposed expenditures for SH 289 improvements to be
included in future TIRZ Financing Agreement, between Blue Star Land, LP, and the
Town of Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 261" of March, 2013.
Ray Smith, Mayor
ATTEST TO:
Harlan Jeers
Interim Town Lary
LETTER AGREEMENT BY AND BETWEEN
THE TOWN OF PROSPER, TE A,S AND BLUE STAR LAND. L.P.
(Preston Road Median Openings and Turn Bays)
This Letter Agreement (the "ALreernerrt") is entered into by and between the Town of
Prosper, Texas, a municipal corporation ("Town"), and Blue Star Land, L.P., a Texas limited
partnership, Blue Star Allen Land, LP, a Texas limited partnership and 183 Land Corporation, a
Texas corporation (collectively, "BSL").
RECITALS:
WHEREAS, the Texas Department of Transportation ("TxDOT") has begun construction
of certain improvements (the "Project") to State Highway 289/Preston Road ("Preston Road")
some of which improvements are adjacent to and benefit property owned by BSL;
WHEREAS, in conjunction with the construction of the Project and based on the benefit
of the Project to the Town and BSL, BSL requested the construction of median openings and one
or more attached left turn bay(s) on Preston Road at the locations hereinafter described
(hereinafter defined as the "Proverty Median Onenines") as depicted in EXHIBIT A, attached
hereto and incorporated herein for all purposes;
WHEREAS, Mario Sinacola & Sons Excavating, Inc. (Sinacola) is constructing the
Project for TxDOT;
WHEREAS, TxDOT and Prosper have allowed BSL to enter a contract directly with
Sinacola to construct the Property Median Openings and BSL has agreed to pay Sinacola the cost
of the work to construct the Property Median Openings ("P'ronerty Median Oiienini)- Costs") in
accordance with the cost schedule provided in EXHIBIT B;
WHEREAS, the Town Council adopted Ordinance No. 08-103 on October 28, 2008
designating Tax Increment Reinvestment Zone No. One ("TIRZ") for the purpose of financing
for certain public improvements for the Gates of Prosper Development ("TIRZ Projects");
WHEREAS, the Town and BSL entered into that certain Development and Financing
Agreement, dated March 25, 2008, as amended by that certain First Amendment to Development
and Financing Agreement dated May 17, 2011, as amended by that certain Second Amendment
to Development and Financing Agreement dated October 20, 2011, and as amended by that
certain Third Amendment to Development and Financing Agreement dated June 14, 2012
(collectively, the "Deyelovrnent and Finarrcina A,to-eement"), to provide the financing for TIRZ
Projects;
WHEREAS, the Property Median Openings constitute eligible TIRZ Projects under
Chapter 311 of the Texas Tax Code, as amended;
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WHEREAS, BSL has agreed to pay the Property Median Opening Costs conditioned
upon reimbursement pursuant to the terms of the Development and Financing Agreement; and
WHEREAS, the Town has investigated and determined that it would be advantageous
and beneficial to the Town and its citizens to participate in the construction of the Project and the
Property Median Openings as provided herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the covenants and conditions contained in this
Agreement, and other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Town and BSL agree as follows:
1. l esc,rintion of Project. The Project consists of the construction of certain
improvements to Preston Road, including without limitation, the location and construction of the
Property Median Openings, as more particularly depicted on Exhibit A.
2. Location of Median Ovenimt . TxDOT has agreed to allow BSL to contract with
Sinacola to design and construct the Property Median Openings: (a) at the locations shown on
Exlijbit A; and (b) in accordance with TxDOT design and construction standards.
3. Permit from TxDOT for Property Median O enin"s. The Town shall use
commercially reasonable efforts to apply for and obtain a permit from TxDOT to allow
construction of the Property Median Openings as described and contemplated hereby.
4. Reimbursement of Proverty Median Onenina Costs. The Town acknowledges
that the Property Median Openings constitute eligible TIRZ Projects under Chapter 311 of the
Texas Tax Code, as amended. As such, the Town shall cause the Property Median Opening
Costs paid by BSL to be reimbursed to BSL under the Development and Financing Agreement
and TIRZ.
5. Default. In the event the Town fails to comply with any of the provisions of this
Agreement, BSL shall have the right to seek specific performance in addition to any other rights
and remedies, at law or in equity.
6. Miscellaneous.
a. Notice. Any notice required to be sent under this Agreement must be in
writing and may be served by depositing same in the United States Mail, addressed to the party
to be notified, postage pre -paid and registered or certified with return receipt requested, or by
delivering the same in person to such party via a hand -delivery service, Federal Express or any
courier service that provides a return receipt showing the date of actual delivery of same to the
addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties shall be as follows:
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If to Prosper, to:
With a copy to:
Harlan Jefferson
Peter G. Smith
Town Manager
Nichols, Jackson, Dillard, Hager & Smith, LLP
Town of Prosper
1800 Lincoln Plaza
P.O. Box 307
Dallas, Texas 75201
Prosper, Texas 75078
If to Owner:
With a copy to:
Blue Star Land, LP
George Mitchell, SVP
One Cowboys Parkway
8000 Warren Parkway
Irving, Texas 75063
Building I, Suite 100
Attn: General Counsel
Frisco, Texas 75034
b. Bitiding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
C. Entire A rceineiit. This Agreement contains the entire agreement of the
parties with respect to the matters contained herein and may not be modified or terminated
except upon the provisions hereof or by the mutual written agreement of the parties hereto.
d. Governing_Lawv. The Agreement shall be governed by the laws of the
State of Texas, without giving effect to any conflicts of law rule or principle that might result in
the application of the laws of another jurisdiction; and exclusive venue for any action concerning
this Agreement shall be in the State District Court of Collin County, Texas. The parties agree to
submit to the personal and subject matter jurisdiction of said court.
e. CoutiterpijiLts. 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.
f 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 valid and effective on the date hereof.
g. Savhi slSeverabil'ity. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof,
and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
-3-
h. Miscellaneous Draflim, Provisions. This Agreement shall be deemed
drafted equally by all 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.
i. No Third Party l3ciiclieiaries. 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.
j. Attorneys' ]fees. In any legal proceeding brought to enforce the terms of
this Agreement, the prevailing party may recover its reasonable and necessary attorneys' fees
from the non -prevailing party as permitted by Section 271.159 of the Texas Local Government
Code, as it exists or may be amended.
k. hicorooratioji 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 Town and BSL.
1. Exhibits. All exhibits to this Agreement are incorporated herein.
M. Term. The term of this Agreement shall commence on the last date of
execution and shall continue until the Parties have fully satisfied their respective obligations
hereunder, unless sooner terminated as provided herein.
(Signature page to follow)
M
EXECUTEDoridiis.. le 11dlay of 12013.
own A'17 E" , S
S ,retar
APPROVED AS TO FORM:
Town Attorney
EXECUTED on thisonl�
TOWN OF PROSPER, TrXAS
By:
Ray Smiji, Mayor
day of 2011
BLUE STAR LAND, LP,
a Texas limited partnership
By: Blue Star Investments, Inc., a
Texas corporation, general partner
By
Name: "6 40
Title:
Blue Star Allen Land, LP, a
Texas limited partnership
By: Blue Star Investments, Inc., a
Texas corporation, general partner
1 ?5.
Te:
By
Na
Tit
-5-
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on &—aay of -(7)4h &L , 2013, by
Ray Smith, Mayor of the Town of Prosper, Texas, a Texas home rule municipality, on behalf of said
municipality.
"VI
A
CAROL MYERS
A
MY COMMISSION EXPIRES
October 25,2013
STATE OF TEXAS §
COUNTY OF COLLIN §
Notary Putl�1-6t
My Commission Expires:
11 r 11,1'rIt
T av-kilOwle-dge befoLe i c on the L 11
This "iistrutnew Wc e day of
c
2013, by J1.1, -�"Blue Star Investments, a Texas
j I I!bd I" ;Q
corporation, 6ggZc-,hWer2f)`ar'ttier of Blue Star Land, LP, a Texas limited partnership, on behalf of said
entities.
F)FE)i 01
12
STATE OF TEXAS §
COUNTY OF COLLIN §
' Titch
s ialstT"UnIe^a1.... ckK1 o�ledge la '� on theµ day of ' ` ��cA, a Texas
2013 by
the Blue Star Investments l
corl�caaat tral, ge11 1 partner of l3' lie
Star Allen Land LP, a Texas limited p arta•aersllap, on behalf
of said entities. —
STATE OF TEXAS §
COUNTY OF COLLIN §
[CFRRI HARRINGTON
ARY PUBLICTE OF TEXAS
M, EXP 2-10.2014
71ii*on)el
'1e11t Ala, ac t1t) d � d bets � on
2013, by the l 3
corporationot'saaid corporation.
-7-
the, day of
Land Corporation, li I ., a Texas
EXHIBIT "A"
(Dgeriotion of Project/Depiction of Property Median Openings)
M
NAM OTOO
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EXHIBIT "B"
(ILrovertv Median Opening Costs)
M
ATI NG ..Rfi ARIO ��
EXCAVATING, INC.
February 5, 2013
Blue Star Land
8000 Warren Pkwy
Frisco, TX 75034
ATTENTION: Scott Shipp
GENTLEMEN: We propose to furnish all labor, materials and equipment
necessary to construct the following described work:
PROJECT: Turn Lanes & Median Crossover at Lovers and Richland on SH 289
LOCATION: Prosper, Texas
Item
Description
Quantity
Unit
1
Excavation
1,336.00
CY
2
Lime
44.00
Ton
3
Lime Treated Subgrade (exist matt) 6"
4,007.00
SY
4
D-GR HMA TY-B PG 64-22
882.00
Ton
5
Conc Pavement (CRCP) 8"
4,007.00
SY
6
Curb (Type II)
690.00
LF
7
Conc Median
687.00
SY
8
Pavement surface prep and marking
1.00
LS
9
Remove curb
1,006.00
LF
10
Core concrete & install tie bars
1,006.00
LF
Unit Bid
Total Bid
9.00
$
12,024.00
140.00
$
6,160.00
2.60
$
10,418.20
49.95
$
44,055.90
44.00
$
176,308.00
1.00
$
690.00
40.00
$
27,480.00
12,337.00
$
12,337.00
8.00
$
8,048.00
10.00
$
10,060.00
$
307,581.10
Printed: 2/5/2013 Turn lanes Proposal; SH 289 Preston Road.xls - Prop Page:1 of 2
QUALIFICATIONS:
.,- Lump sum price proposal based upon drawings provided 1/10/13
Drawings show additional median openings, only work at Lovers and Richland is included
— TxDot approval will be required prior to any construction
Final "stamped" plans have not been provided, quantities will be adjusted based upon final plans
No bonds included
— Concrete testing is included according to TxDot specification, no other testing is included
No sales tax on incorporated materials
No conduits are shown and are not included
We have quoted this project on a unit price basis, any work not specifically quoted or qualified is excluded
Should you have any questions, or need clarification regarding this proposal, please feel free to contact this office.
Sincerely,
MARIO,A1 I 'ACO,LA & SONS EXCAVATING, INC.
H,
Brian Salerno
Vice President Public Construction Operations
Printed: 2/5/2013 Turn Lanes Proposal; SH 289 Preston Road.xls - Prop Page: 2 of 2