13-28 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 13-28
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 AN
INFRASTRUCTURE REIMBURSEMENT AGREEMENT BETWEEN
THE PROSPER ECONOMIC DEVELOPMENT CORPORATION AND
PROSPER DEVELOPMENT LTD., RELATED TO THE DESIGN AND
CONSTRUCTION OF CERTAIN DRAINAGE IMPROVEMENTS AT
THE NORTHEAST CORNER OF THE INTERSECTION OF FIRST
STREET AND PRESTON ROAD, AND THE TOWN OF PROSPER,
TEXAS,
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the ]'own of Prosper, Texas, is hereby authorized to
execute, on behalf of the Town Council of the Town of Prosper. Texas, an Infrastructure
Reimbursement Agreement between the Prosper Economic Development Corporation, the Town
of Prosper, Texas, and Preston Development, Ltd., related to the design and construction of
certain drainage improvements at the northeast corner of the intersection of First Street and
Preston Road, and the Town of Prosper, Texas, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED 'THIS THE 23 RD day of April, 2013.
APPROVED:
Ray Smith, � ayor
ATTEST:
Robyn Bathe, Town Secretary
S TATE OF TEXAS §
COUNTY OF COLLIN §
INFRASTRUCTURE REIMBURSEMENT AGREEMENT
This Infrastructure Reimbursement Agreement ("Agreement") is made by and among the
Prosper Economic Development Corporation ("PEDC"), the Town of Prosper, Texas ("Town"),
and Preston Development, Ltd. ("Preston Development") (collectively the "Parties" or singularly
a "Party"), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the Town intends to cause the design and construction of certain drainage
improvements at the northeast comer of the intersection of First Street and Preston Road in the
Town, to provide underground drainage, in accordance with plans approved by the Town (the
`Drainage Project"); and
WHEREAS, the Drainage Project will be constructed by the Town if the PEDC and
Preston Development agree to contribute funding for the Drainage Project to be provided to the
Town prior to commencement of any work; and
WHEREAS, the estimated cost of the design and construction of the Drainage Project is
One Hundred Thirty Thousand Dollars ($130,000.00) (the "Project Costs"), and
WHEREAS, the Town has Twenty -Five Thousand Dollars ($25,000.00) available in the
First Street Improvement Project Fund to apply to the Project Costs (the "Town Contribution")
and is willing to undertake the Project, provided the PEDC and Preston Development contribute
funding for the Project Costs; and
WHEREAS, Preston Development has agreed to pay Fifty Thousand Dollars
($50,000.00) to the Town towards the Project Costs of the Drainage Project (the "Preston
Development Contribution"; and
WHEREAS, PEDC has agreed to pay Fifty -Five Thousand Dollars ($55,000.00) to the
Town toward the Project Costs for the Drainage Project (the "PEDC Contribution"); and
WHEREAS, the PEDC has adopted programs for promoting economic development;
and
WHEREAS, the PEDC has determined that the Drainage Project constitutes
Infrastructure as defined by Section 501.103,'I'exas Local Government Code; and
WHEREAS, the PEDC has determined that the payment of Project Costs is suitable to
promote or develop new or expanded business enterprises within the Town and constitutes a
"project", as that term is defined in the Development Corporation Act, Chapters 501-505 of the
Texas Local Government Code (the "Act"); and
Page 1 Infrastructure Reimbursement Agreement for Drainage Project
� Prosper EDC and Town of Prosper (TM 58832)
WHEREAS, the PEDC and Town find and determine that this Agreement will further
the objectives of the PEDC, will benefit the Town and the Town's inhabitants, will promote local
economic development and stimulate business and commercial activity in the Town;
NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions
hereinafter set forth and for other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
Article I
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed
to them:
"Commencement of Construction" shall mean that: (i) the plans have been
prepared and all approvals thereof and permits with respect thereto required by applicable
governmental authorities have been obtained for construction of the Drainage Project;
and (ii) all necessary permits for the construction of the Drainage Project pursuant to the
respective plans therefore having been issued by all applicable governmental authorities.
"Completion of Construction" shall mean: (i) substantial completion of the
Drainage Project; and (ii) the City has accepted the Drainage Project.
"Contribution" collectively means the PEDC Contribution, the Preston
Development Contribution and the Town Contribution.
"Drainage Project" means the design and construction of certain drainage
improvements at the northeast corner of the intersection of First Street and Preston Road
in the Town to provide underground drainage in accordance with plans approved by the
Town.
"Effective Date" means the last date of execution hereof.
"Expiration Date" means the Parties have fully satisfied their respective
obligations under this Agreement.
"Force Majeure" shall mean any contingency or cause beyond the reasonable
control of a Party including, without limitation, acts of God or the public enemy, war,
riot, civil commotion, insurrection, adverse weather, government or de facto
governmental action (unless caused by acts or omissions of such Party), fires, explosions
or floods, strikes, slowdowns or work stoppages.
"Infrastructure" shall have the same meaning assigned by Section 501.103, Texas
Local Government Code.
Page 2 Infrastructure Reimbursement Agreement for Drainage Project
Prosper EDC and Town of Prosper (TM 58832)
"PEDC" means the Prosper Economic Development Corporation.
"Preston Development" means Preston Development, Ltd., a Texas limited
partnership.
"Town" means the Town of Prosper, Collin County, Texas.
Article 11
Term
The term of this Agreement shall begin on the Effective Date and continue until the
Expiration Date, unless sooner terminated as provided herein.
Article III
Infrastructure Payment
3.1 Drainage Project Construction. The Town agrees, subject to events of Force
Majeure, to cause Commencement of Construction of the Drainage Project to occur within six (6)
months after the Effective Date and, subject to events of Force Majeure, to cause Completion of
Construction of the Drainage Project to occur within eighteen (18) months thereafter.
3.2 Contribution Pavments. The PEDC agrees to pay the PEDC Contribution to the
Town within five (5) business days after written request by the Town. Preston Development
agrees to pay the Preston Road Contribution to the Town within five (5) business days after
written request by the Town.
3.3 Use of Contribution Funds. The Town agrees to use the Contribution Funds for
payment of Project Costs for the Drainage Project. The Town shall refund the PEDC
Contribution to the PEDC if the Town does not undertake the Drainage Project. The Town shall
refund the Preston Development Contribution to the Preston Development if the Town does not
undertake the Drainage Project. If the actual costs to design and construct the Drainage Project
are less than the total Contribution, the Town shall, within thirty (30) days after Completion of
Construction of the Drainage Project, refund to PEDC and Preston Development a prorated share
of their respective Contributions in excess of the actual costs of the Drainage Project.
Article IV
Termination
This Agreement shall terminate upon any one of the following:
(a) by written agreement of the Parties;
(b) upon the Expiration Date, and
(c) by either Party, if any subsequent Federal or State legislation or any
decision of a court of competent jurisdiction declares or renders this
Agreement invalid, illegal or unenforceable.
Page 3 Infrastructure Reimbursement Agreement for Drainage Project
� Prosper EDC and Town of Prosper (TM 58832)
Article V
Miscellaneous
5.1 Binding Agreement; Assignment. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, affiliates, administrators, executors, and permitted
assigns of the respective Parties. This Agreement may not be assigned by either Party without
the prior written consent of the other Party.
5.2 Limitation on Liability. It is acknowledged and agreed by the Parties that the
terms hereof are not intended to and shall not be deemed to create a partnership or joint venture
among the Parties. It is understood and agreed between the Parties that Town, in satisfying the
conditions of this Agreement, has acted independently, and PEDC assumes no responsibilities or
liabilities to third parties in connection with these actions.
5.3 Authorization. Each Party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
5.4 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the Party at the address set forth below or on the day
actually received as sent by courier or otherwise hand delivered.
If intended for the PEDC, to
Attn: Jim Wicker, President
Prosper Economic Development
Corporation
170 N. Preston Road, Suite 50
P.O. Box 1060
Prosper, Texas 75078-1060
972.346.3397 — telephone
If intended for the 'Town:
Attn: Harlan Jefferson
Town Manager
Town of Prosper
P.O. Box 307
Prosper, Texas 75078
972.346.2640 — telephone
With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
214.965.9900 — telephone
Page 4 Infrastructure Reimbursement Agreement for Drainage Project
I Prosper EDC and Town of Prosper (TM 58832)
If intended for Preston Development:
Attn: John Harris
Preston Development, Ltd.
170 N. Preston Road, Suite 10
Prosper, Texas 75078
972.347.1970 - telephone
5.5 Entire Agreement. This Agreement is the entire Agreement between the Parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement between the Parties that in any manner relates to the subject matter of this
Agreement, except as provided in any Exhibits attached hereto.
5.6 Governing Law. This Agreement shall be governed by the laws of the State of
Texas; and 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.
5.7 Amendment. This Agreement may be amended by the mutual written agreement
of the Parties.
5.8 Lev -al Construction. In the event 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 other provisions, and it is the
intention of the Parties to this Agreement that in lieu of each provision that is found to be illegal,
invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and
enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or
unenforceable.
5.9 Recitals. The recitals to this Agreement are incorporated herein.
5.10 Counter -parts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute
one and the same instrument.
5.11 Exhibits. Any exhibits to this Agreement are incorporated herein by reference for
the purposes wherever reference is made to the same.
5.12 Survival of Covenants. Any of the representations, warranties, covenants., and
obligations of the parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
5.13 EmOovinent of Undocumented Workers. During the term of this Agreement the
Town agrees not to knowingly employ any undocumented workers, and if convicted of a violation
under 8 U.S.C. Section 1324a (1), the Town shall repay the amount of the funds received by the
Page 5 Infrastructure Reimbursement Agreement for Drainage Project
I Prosper EDC and Town of Prosper (TM 58832)
Town from the PEDC as of the date of such conviction within 120 business days after the date the
Town is notified by the PEDC of such conviction, plus interest at the rate of 6% compounded
annually from the date of the conviction until paid. The Town is not liable for a violation of this
section by a subsidiary, affiliate, or franchisee of the 'Town or by a person with whom the Town
contracts.
(Signature page to follow)
Page 6 I
Infrastructure Reimbursement Agreement for Drainage Project
Prosper EDC and Town of Prosper (TM 58832)
=ZZMA, ra
EXECUTED on this day of —17 2013.
PROSPER ECONOMIC DEELOPMENT
CORPORATION
By:
Jid icker. President
Approved as to Form:
By:'=
Peter G. �njh
EXECUTED on this day of rn QQ 2013.
TOWN OF PROSPER, TEXAS
By:
zi K,
flarlanJefffier Town Manager
Vk
EXECUTED on this �r day of 2013.
PRESTON DEVELOPMENT, LTD.
Page 7 Infrastructure Reimbursement Agreement for Drainage Project
I Prosper EDC and Town of Prosper (TM 58832)
. F68 BRAiT f -4- i i "Ir
PEDC Acknowledgment
State of Texas §
County of Collin §
A
This instrument was acknowledged before me on the day of M� 2013,
by Jim Wicker, as President of the Prosper Economic Development Corporation, a Texas
nonprofit corporation, for and on behalf of said corporation.
= 'r GAMM Q. WEAVER
MY COMMISSION EXPIRES
�€ October 25, 2018
State of Texas §
County of Collin §
_z5
N
otary Public in and for
The State of Texas
My Commission Expires: C� r2 l
Prosper Acknowledgment
This instrument was acknowledged before me on the I j & day of _ 2013,
by Harlan Jefferson, as Town Manager of the Town of Prosper, Texas, a Texas ome rule
municipality, for and on behalf of said municipality.
ryR�
CARa WEBS
W C{AMISSIONEXPIR
ES hOVJO25,20I3
.s
Notary Public in and for
The State of Texas
My Commission Expires: /L) - a%j " 1
Page 8 Infrastructure Reimbursement Agreement for Drainage Project
Prosper EDC and Town of Prosper (TM 58832)
Preston Development Acknowledgment
State of Texas §
County of Collin §
.14
This instrument was acknowledged before me on the —Z
4A
by John Harris, as 79�j of Preston Development, Ltd., a
for and on behalf of said plYership.
Robyn D, Bat"tio
N—ary Publ#c,
State of Texas
Comm. Exp. 05-04-15
Notary Ptklic in and for
The State of Texas
day of Ar." I , 2013,
Texas Mited partnership,
My Commission Expires: 15--
Paoc 9 Infrastructure Reimbursement Agreement for Drainage Project
Prosper EDC and Town of Prosper (TM 58832)