08.26.2008 Town Council PacketISPER
OWN OF
1. Call to Order / Roll Call.
2. Invocation and Pledge of Allegiance.
AGENDA
Regular Meeting of the Prosper Town Council
Prosper Middle School - Library
605 E. Seventh Street, Prosper, Texas
Tuesday, August 26, 2008 at 6:00 p.m.
3. Announcements of dates and times of upcoming community events.
EXECUTIVE SESSION
4. Recess into Closed Session in compliance with Section 551.001 et. seq. Texas Government Code,
to wit: Section 551.087 to deliberate regarding economic development negotiations regarding the Prosper
West project.
5. Reconvene into Regular Session and take any action necessary as a result of the Closed Session.
CONSENT AGENDA
(Items placed on the Consent Agenda are considered routine in nature and are considered non -controversial. The Consent Agenda can be acted upon in one
motion. A majority vote of the Council is required to remove any item for discussion and separate action. Council members may vote nay on any single item
without comment and may submit written comments as part of the official record.)
6. Consent Agenda
MINUTES
a. Consider and act upon minutes from the following Council meetings. (MD)
August 12, 2008 — Town Council Meeting
ORDINANCES, RESOLUTIONS. AND AGREEMENTS
b. Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the Town
Council to the Development Services Department, pursuant to Chapter 4, Section 1.5(C)(7) and 1.6(Bx7)
of the Town's Zoning Ordinance, regarding action taken by the Planning & Zoning Commission on any site
plan or preliminary site plan. (CC)
C. Consider and act upon an ordinance amending the Zoning Ordinance (Chapter 3, Sections 1 and 2) creating
a definition for a wind energy system and prohibiting a wind energy system in all zoning districts. (Z08-9).
(CC)
FINANCIALS
d. Consider and act upon the financial statements ending July 31, 2008. (MG)
CITIZEN'S COMMENTS
(The public is invited to address the Council on any topic. However, the Council is unable to discuss or take action on any topic not listed on this agenda.
Please complete a "Public Comments Form" and present it to the Town Secretary prior to the meeting.)
7. Other Comments by the Public.
Page 1 of 3
REGULAR AGENDA
(If you wish to address the Council during the regular agenda portion of the meeting, please fill out a "Speaker Request Form" and present it to the Town
Secretary prior to the meeting. Citizens wishing to address the Council for items listed as public hearings will be recognized by the Mayor. Those wishing to
speak on a non-public hearing related items will be recognized on a case -by -case basis, at the discretion of the Mayor and Town Council.)
DEPARTMENT ITEMS
8. Consider and act upon 1) a User Agreement between the Prosper Area Soccer Association and the Town of
Prosper, regarding the use of Folsom Park and 2) adopt a resolution authorizing the Town Manager to
execute the same. (WH)
9. Consider and act upon a resolution acknowledging the Town's intent regarding the improvements at
Folsom Park. (WI)
10. Consider and act upon 1) an Escrow Agreement regarding the timing of construction of various turn lane
improvements to serve the Prosper Plaza Project and 2) adopt a resolution authorizing the Town Manager
to execute the same. (HW)
11. Consider and act upon 1) an Interlocal Cooperative Agreement between the City of McKinney and the
Town of Prosper concerning the construction of various turn lanes at the northwest corner of US Highway
380 and FM 2478, Custer Road (FM 2478) from Stonebridge Drive to US 380 Improvements and 2) adopt
a resolution authorizing the Town Manager to execute the same. (HW)
12. Consider and act upon 1) an Interlocal Cooperation Agreement between Denton County and the Town of
Prosper regarding the maintenance of roads in Denton County and 2) adopt a resolution authorizing the
Town Manager to execute the same. (HW)
13. Consider and act upon a change order #1 to JRJ Paving, Inc, for the US 380 / Coit Road Right Turn Lane
Project. (HW)
PUBLIC HEARINGS
14. A public hearing to consider and act upon a request to rezone 11.3f acres, located on the west side of
Coleman Street, 200f feet south of Eagle Lane, from Agricultural (A) to Commercial (C). (Z08-10). (CC)
15. A public hearing to consider and act upon a request to rezone 0.6f acre (508 East Broadway Street), located
on the southwest corner of Broadway Street and Field Street, from Single Family-15 (SF-15) to Downtown
Office (DTO). (Z08-12). (CC)
16. A public hearing to consider and act upon a request to rezone 2.1f acres, located on the southwest corner of
Prosper Trail and Robison Creek Drive, from Single Family-15 (SF-15) to Single Family-12.5 (SF-12.5).
(Z08-13). (CC)
17. Presentation of Service Plan and second public hearing to consider the voluntary annexation of
approximately 11.925 acres of land located in the Collin County School Land Survey, Abstract No. 147,
Collin County and being more generally located west of Coleman Street and +1750' south of Prosper
Trail. (MID)
18. A public hearing to discuss the Town of Prosper proposed 2008-2009 tax rate. (MI.)
19. Town Manager Comments.
20. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting.
Page 2 of 3
21. Adjourn.
CERTIFICATION
I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the inside window at the Town Hall of the Town of Prosper, Texas, a
place convenient and readily accessible to the general public at all times, and said Notice was posted by the following date and time: Friday, August 22, 2008
at 5:00 p.m. and remained so posted at least 72 hours before said meeting was con``rl� '
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4ew D. Denton, TRMC s •••• ate Noticed Removed
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In addition to any specifically identified Executive Sessions, Council may con ' to Z'*04less der Section 551 of the Texas Government Code at
any point during the open meeting to discuss any item posted on this agenda. The }� rovides specific exceptions that require that a meeting
be open. Should Council elect to convene into Executive Session, those exceptions will bd 1jeL��i , ally identified and announced. Any subsequent action, as a
result of this Executive Session, will be taken and recorded in open session.
NOTICE OF ASSISTANCE AT PUBLIC MEETINGS: The Prosper Town Council Meetings are wheelchair accessible. Persons with disabilities who plan
to attend this meeting and who may need auxiliary aids or services such as Interpreters for persons who are deaf or hearing impaired, readers, or large print, are
requested to contact the Town Secretary's Office at (972) 346-2640 or by FAX (972) 347-2111. BRAILLE IS NOT AVAILABLE.
Page 3 of 3
ISPER
OWN OF
1. Call to Order / Roll Call.
The meeting was called to order at 6:06 p.m.
Roll call was taken by the Town Secretary.
MINUTES
Regular Meeting of the Prosper Town Council
Prosper Middle School - Library
605 E. Seventh Street, Prosper, Texas
Tuesday, August 12, 2008 at 6:00 p.m.
Council present included: Mayor Charles Niswanger, Mayor Pro-Tem Ray Smith, Deputy Mayor Pro -Tern
Kenneth Dugger, David Vestal, Meigs Miller, and Danny Wilson.
Staff present included: Mike Land, Town Manager; Hulon Webb. irector of Develpment Services; Chris
Copple, Senior Planner; Wayne Snell, Building Official; Matthew. Garrett Finance Direc�to Ronnie Tucker, Fire
Chief; Kirk McFarlin, Police Chief; Frank Jaromin, Director of Public Works; and Matthe Denton, Town
Secretary.
2. Invocation and Pledge of Allegiance.
The Invocation was given by David Benefield, Lighthouse Christian
The Pledge of Allegiance was led by three Boy
3. Announcements of dates and times of
EXECUTIVE SESSION
4. Recess into
wit:
a. Section
b. ..Section
5. OIR666nvene into
Motioned by Coun
to the end of the ag
Motion approved 7
CONSENT AGENDA "
6. Consent Agenda
Aftession in\compliance with `Section 551.001 et. seq. Texas Government Code, to
w�--'.
51.072' 'lelii�bteration's�rega�ng'real property for parks and recreation.
51:087 to deliberate regarding economic development negotiations regarding the
?V�t project.
regular Session antake any action necessary as a result of the Closed Session.
seconded by Deputy Mayor Pro-Tem Dugger to move the Executive Session
ber Turill I
MINUTES
a. Consider and act upon minutes from the following Council meetings. (MD)
• July 21, 2008 — Budget Work Shop
• July 22, 2008 — Town Council Meeting
Page 1 of 5
ORDINANCES. RESOLUTIONS. AND AGREEMENTS
b. Consider and act upon an ordinance rezoning 0.3t acre, located on the north side of First Street,
100f feet west of Field Street, from Single Family-15 (SF-15) to Downtown Office (DTO). (Z08-
11). (CC)
C. Consider and act upon a resolution supporting the discontinuation of the diversion of transportation
user revenues to non -transportation uses and the appropriation of all revenue generated from
highway user fees and taxes to fund transportation projects. (ML)
d. Consider and act upon a resolution setting the schedule for the involuntary annexations. (MD)
e. Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the
Town Council to the Development Services Department, pursuant to. Chapter 4, Section 1.5(C)(7)
and 1.6(11)(7) of the Town's Zoning Ordinance, regarding action taken by the Planning & Zoning
Commission on any site plan or preliminary site plan. (CC)
f. Consider and act upon a resolution calling for Public Hearing to be held on October 14, 2008 for
the creation of the Tax Increment Refinancing Zone. (NM)
ANNEXATION PETITIONS
g. Consider and act to accept a petition presented by Prosper Partners LP to set dates for two public
hearings and call for a service plan for the voluntary annexation of approximately 121.281 acres of
land generally located north of HWY 380 and ±3640' west of the Dallas North Tollway. (MD)
Motioned by Deputy Mayor Pro-Tem Dugger, seconde?by ayor Pro -Tern Smith to approve the consent agenda
subject to staff recommendations.
Motion approved 7-0.
CITIZEN'S COMMENTS v.
7. Other Comments by the Public. 's
,;rm
Lisa Dritschler, 1285 Wheatland, addressed the council regarding issues with the Prosper Youth Sports Association.
Scott Dafft,,PO Box 538, addressed the council regarding issues with the Prosper Youth Sports Association.
Mike McClung, 1400 Cedar Springs, addressed the council regarding the use of Folsom Park.
PaulaO LuAllen, 1470 Harvest Ridge, addressed the council regarding issues with the Prosper Youth Sports
Association.
Heather Doke, 636 Creek View, addressed the council regarding issues with the Prosper Youth Sports Association.
Pam Cooper, 403 Brookview Ct., addressed the council regarding issues with the Prosper Youth Sports
Association.
Barb Mills, 490 Cloud View Ct., addressed the council regarding issues with the Prosper Youth Sports Association.
Cindy Jones, 1351 Cedar Lake Dr., addressed the council regarding issues with the Prosper Youth Sports
Association.
REGULAR AGENDA
PUBLIC HEARINGS
8. A public hearing to consider and act upon an amendment to the Zoning Ordinance (Chapter 3,
Sections land 2) creating a definition and development standards for a Wind
Energy System. (Z08-9). (CC)
Page 2 of 5
Chris Copple, Senior Planner, gave council background information on this item.
Motioned by Councilmember Turley, seconded by Mayor Pro -Tern Smith to open the public hearing. Motion
approved 7-0.
Mayor Niswanger opened the public hearing at 6:47 p.m.
Cleburne Smith, 17300 Dallas Parkway, Ste. 3310, Dallas Texas, opposed the ordinance.
David Bird, 2010 Beaver Trail, opposed the ordinance.
Dale Clark, 16250 Dallas N. Pkwy, opposed the ordinance.
David Blum, 6860 N. Dallas Pkwy, opposed the ordinance.
Tom Bolen, 1450 Woodhaven Dr., opposed the ordinance.
Tom Clark, 170 N. Preston, # 10, opposed the ordinance.
David Cardile, Bonham, TX, supports the ordinance.
Charles Crumbly, gave a presentation supporting the ordinance.
Motioned by Mayor Pro -Tern Smith, seconded by Councilmember Turley to close the public hearing.
Motion approved 7-0.�
Mayor Niswanger closed the public hearing at 7:45 p.m.,_
Motioned by Councilmember Turley, seconded by Mayor Pro -Tern S i to amend the Zoning Ordinance creating
a definition for wind energy systems and prohibiting wind energy systems in the Town of Prosper.
Motion approved 7-0.
9. Presentation of Service Plan and First Public hearing to consider the voluntary annexation of
approximately 11.925 acres of land located in the Collin County School Land Survey, Abstract No.
147, Collin County and being more generally located west of Coleman Street and +1750' south of
Prosper Trail. (MD)
Motioned by Councilme ber Turley, seconded by Mayor Pro-Tem Smith to open the public hearing.
Motion approved 7-0.
Mayor Niswanger opened the public hearing at 8:06 p.m.
There were no comments by the public.
_ . . "o
Motioned by Deputy Mayor Pro -Tern Dugger, seconded by Councilmember Turley to close the public hearing.
Motion approved 7-0.
Mayor Niswanger closed the public hearing at 8:07 p.m.
DEPARTMENT ITEMS
10. Consider and act upon 1) award of bid of Prosper Road Improvement Project 2008, 2) enter into a
contract agreement with low bidder Quality Excavation LTD, regarding the construction services
for Prosper Road Improvement Project 2008 and 3) approve a resolution authorizing the Town
Manager to execute the same. (F.n
Frank Jaromin, Director of Public Work, gave council background information on this item.
Motioned by Councilmember Vestal, seconded by Mayor Pro -Tern Smith to enter into a contract agreement with
Quality Excavation LTD regarding the construction services for Prosper Road Improvement Project 2008 and
approve a resolution authorizing the Town Manager to execute the same.
Page 3 of 5
Motion approved 7-0.
11. Submission of Budget and Budget Message by the Town Manager. (MEL)
Mike Land, Town Manager, gave a presentation of the proposed budget to council.
12. Consider and act upon a proposed tax rate for FY 2008-2009. (MEL)
Motioned by Councilmember Turley, seconded by Mayor Pro-Tem Smith to propose a tax rate of 0.52 per $100
valuation, which would increase property tax revenues by $928,567 over last year's budget.
Motion approved 7-0.
13. Consider and act upon a schedule for public hearings on the
Motioned by Deputy Mayor Pro-Tem Dugger, seconded by Coun
proposal to increase total tax revenues for August 26`h at 6:00
meeting taking place here in the Prosper Middle School Library .4
Motion approved 7-0.
EXECUTIVE SESSION
4. Recess into Closed Session in compliance with Section 55HOi
wit: "'M
a. Section 551.072 Deliberations !!kgahrdk& property
b. Section 551.087 to deliberate regarding economic deve
Prosper West project.IIK Vokh.
Motioned by Councilmember
Motion approved 7-0. A
The council recessed into
5. Reconvene into
14.
15. Possibly
Council directed staff to
citizens raised.
16. Adjourn.
2008-2009 tax rate. (ML)
a Turley'fo`se,'�t,.Jhe public hearings on the
3 September 9%at 6:00 p.m., with each
605 E. Seventh Sheet.
et. seq. Texas Government Code, to
recreation.
iations regarding the
by May&&Pro-Tem Smitffto recess into closed session.
8:45 p.m.
necessary as a result of the Closed Session.
by Deputy Mayor Pro-Tem Dugger to reconvene into regular
,ff to schedule topic(s) for discussion at a future meeting.
or
with the Parks and Recreation Board and the PYSA to address the concerns the
Motioned by Mayor Pro-Tem Smith, seconded by Councilmember Turley to adjourn.
Motion approved 7-0.
The meeting was adjourned at 9:21 p.m.
Page 4 of 5
Attest:
Matthew D. Denton, TRMC
Town Secretary
Charles Niswanger, Mayor
Page 5 of 5
PLANNING
p T SPER.
To: Mayor and Town Council
From: Chris Copple, Senior Planner
Cc: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of
the Town Council to the Development Services Department, pursuant to Chapter 4, Section
1.5(C)(7) and 1.6(B)(7) of the Town's Zoning Ordinance, regarding action taken by the Planning
& Zoning Commission on any site plan or preliminary site plan.
Description of Agenda Item:
Attached are the site plans and preliminary site plans acted on by the Planning & Zoning
Commission at their August 19, 2008 meeting. Per the Town's Zoning Ordinance, the Town
Council has the ability to direct staff to submit a written notice of appeal on behalf of the Town
Council to the Development Services Department for any site plan or preliminary site plan acted
on by the Planning & Zoning Commission.
Attached Documents:
1. Preliminary site plan of Prosper Plaza, Block A, Lots 1-4 and 7, approved 5-0 by the
Planning & Zoning Commission.
Town Staff Recommendation:
Town staff recommends that the Town Council take no action based on the approval of the site
plans and preliminary site plans by the Planning & Zoning Commission.
Agenda Item No. 6b - Page 1 of 1
f
'�� PLANNING
p
TOWN
SPER.
To: Mayor and Town Council
From: Chris Copple, Senior Planner
Cc: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
Consider and act upon an ordinance amending the Zoning Ordinance (Chapter 3, Sections 1
and 2) creating a definition for a wind energy system and prohibiting a wind energy system in all
zoning districts. (Z08-9).
Description of Agenda Item:
At the August 12, 2008 meeting, the Town Council, by a vote of 7-0, approved an amendment to
the Zoning Ordinance creating a definition for a wind energy system and prohibiting a wind
energy system in all zoning districts. Town staff has prepared an ordinance reflecting the
motion as approved by the Town Council.
Budget Impact:
There are no significant budget implications associated with this amendment to the Zoning
Ordinance.
Legal Obligations and Review:
State law requires that the Town Council hold a public hearing before amending the Zoning
Ordinance. A public hearing has been held and the Town Council approved the amendment to
the Zoning Ordinance. The ordinance has been prepared. Review of the ordinance by the
Town Attorney is not required.
Attached Documents:
1. The ordinance amending the Zoning Ordinance (Chapter 3, Sections 1 and 2) creating a
definition for a wind energy system and prohibiting a wind energy system in all zoning
districts is attached.
Town Staff Recommendation:
Town staff recommends the Town Council adopt the attached ordinance amending the Zoning
Ordinance (Chapter 3, Sections 1 and 2) creating a definition for a wind energy system and
prohibiting a wind energy system in all zoning districts.
Agenda Item No. 6c — Page 1 of 1
TOWN OF PROSPER, TEXAS
ORDINANCE NO. 08-_
AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, AMENDING CHAPTER 3, SECTIONS
1.3 AND 2 OF ZONING ORDINANCE NO. 05.20; PROVIDING FOR A PENALTY FOR THE
VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND
SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE;
AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF.
WHEREAS, the Town Council of the Town of Prosper, Texas ("Town Council") has determined that Chapter
3, Sections 1.3 and 2 of the Town of Prosper, Texas ("Prosper") Zoning Ordinance No.05-20 should be amended;
and
WHEREAS, Prosper has complied with all notices and public hearings as required by law; and
WHEREAS, the Town Council finds that it will be advantageous, beneficial and in the best interest of the
citizens of Prosper to amend Prosper's Zoning Ordinance No. 05-20 as set forth below.
TEXAS:
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER,
SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this
Ordinance as if fully set forth herein.
SECTION 2: Amendment to Prosper's Zoning Ordinance No. 05-20. Chapter 3, Sections 1.3 (Schedule
of uses) and 2 (Definitions) of the Town of Prosper's Zoning Ordinance No. 05-20 are hereby amended to read as
follows:
Chapter 3, Section 1.3
Residential Districts
Non -Residential
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Wind Energy System I PROHIBITED IN ALL DISTRICTS1 PROHIBITED IN ALL DISTRICTS
Chapter 3, Section 2
Wind Energy System — A wind energy conversion system consisting of a wind turbine, a tower, and associated
control or conversion electronics, which has a rated capacity of not more than 10kW and is intended to reduce on -site
consumption of electricity.
SECTION 4: Savings/Repealing Clause: Prosper's Zoning Ordinance No. 05-20 shall remain in full force and effect,
save and except as amended by this or any other Ordinance. All provisions of any ordinance in conflict with this
Ordinance are hereby repealed, but such repeal shall not abate any pending prosecution for violation of the repealed
ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the
repeal of the ordinance. Any remaining portions of said ordinance shall remain in full force and effect.
SECTION 5: Severabili : Should any section, subsection, sentence, clause or phrase of this Ordinance be
declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all
remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby declares that it would have
passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or
more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid.
SECTION 6: Penalty Provision. Any person, firm, corporation or business entity violating this Ordinance or
any provision of Prosper's Zoning Ordinance No. 05-20, or as amended, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be fined a sum not exceeding Two Thousand Dollars ($2,000.00). Each continuing
day's violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this
Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains all legal rights and
remedies available to it pursuant to local, state and federal law.
SECTION 7: Effective Date: This Ordinance shall become effective from and after its adoption and
publication as required by law.
DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS ON
THIS 261hDAY OF AUGUST, 2008.
ATTESTED TO AND
CORRECTLY RECORDED BY:
Matthew Denton, Town Secretary
DATE OF PUBLI CATION.
APPROVED AS TO FORM:
Charles Niswanger, Mayor
Dallas Morning News — Collin County Addition
2
t
P TOWN ER.
To: Mayor and Town Council
From: Wade Harden, Senior Planner
PARKS & RECREATION
CC: Mike Land, Town Manager
Hulon T. Webb, Jr., PE., Director of Development Services / Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
Consider and act upon 1) a User Agreement between the Prosper Area Soccer Association and
the Town of Prosper, regarding the use of Folsom Park and 2) adopt a resolution authorizing the
Town Manager to execute the same.
Description of Agenda Item:
The Folsom Park improvements are substantially complete, with Staff working with the contractor
to address some minor issues on the site. The project will provide area residents with new
recreational opportunities including the option of using the facility for organized athletic team
practice. Following collaboration with the Town Parks Board (PARBd), Town Council and the
LaCima Home Owner's Association (HOA) Advisory Board, staff has drafted an agreement for the
use of the fields for organized team practices. The agreement specifically addresses the following
1. Town's right to control the use of the field for organized team practice.
2. The required parking locations for patrons of the User.
3. User's requirement to inform its patrons concerning the required parking location.
4. The use of trash receptacles on -site.
5. The placement of restroom facilities being prohibited.
6. The use of the sports field lights is restricted to Monday thru Friday to 9:00 P.M. during
the game season (note: over -ride timers will shut off lights at 9:00 P.M.).
7. Establishes communication between the User and Town regarding concerns with the
Park and the use of the Park.
8. The use of the site for practice functions only, no game play is permitted.
Budget Impact:
There are no significant budget implications associated with the approval of this agreement.
Agenda Item No. 8 - Page 1 of 2
Leaal Obliaations and Review:
The agreement has standard language as with previous agreements reviewed by the Town
Attorney.
Attached Documents:
• User Agreement
• Resolution authorizing the Town Manager to execute the agreement.
Board. Committee and/or Staff Recommendation:
The use of Folsom Park was discussed at the June 19th and the July 24th PARBd meeting. The
PARBd recommends the Town Council approve the agreement as drafted to address specific
issues regarding the use of the park.
Town staff recommends the Town Council approve 1) a User agreement with the Prosper Area
Soccer Association; and 2) a resolution authorizing the Town Manager to execute the same.
Agenda Item No. 8 - Page 2 of 2
FOLSOM FIELD USE AGREEMENT
This Use Agreement ("Agreement") is made and entered into this day of ,
2008, by and between the Town of Prosper, Texas, a municipal corporation organized under the laws
of the State of Texas ("Town"), with the authorization of its governing body, and the Prosper Area
Soccer Association (P.A.S.0)., (hereinafter described as the "User"), on the terms and conditions
hereinafter set forth.
WHEREAS, the Property is adjacent to Folsom Elementary School, 10.9f acres, more or
less, described as Lakes of La Cima, Phase Three, Block 36, Tract 2X as shown on the attached
Exhibit "A";
WHEREAS, the Town has determined that a special use agreement for the use of open space
at the Folsom Park location is needed for the benefit of the Town and its citizens;
WHEREAS, the Town has designated Folsom Park as a Neighborhood Park intended for, but
not limited to passive recreational uses and for organized team sports practice area. The use of the
park for scheduled organized game play is not an appropriate use at the Folsom Park location and
shall be prohibited;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Obligations.
A. Obligations of Town.
i) Town shall reserve the right to prohibit the use of Folsom Park by any single team or
all teams for the use of organized practices, if it deems it in the best interest of the
Town.
B. Obligations of the User
i) The User shall require all of its patrons to use the Folsom Park parking facilities
designated within Exhibit A. At no time shall the User's patrons use on -street parking
facilities during scheduled practices for organized team sports.
ii) The User shall make all reasonable efforts to inform its patrons of the designated
Folsom Park parking locations. Verbal communication, newsletters, and flyers should
be considered as part of the process to inform patrons of the User.
iii) User shall make every effort to keep the Folsom Site free of litter from use by its
patrons. Trash receptacles are provided by the Town for the User's patrons.
iv) At no point in time shall the User locate temporary or permanent restroom facilities
within Folsom Park.
Page 1 of 6
v) The sports field lighting may be operated Monday through Friday for team practice
during the sports season. At no point in time shall the sports field lighting remain in
use following 9:00 P.M. at any point during the week. The User shall not operate the
sports field lights on Saturday or Sunday.
vi) User shall not schedule the Folsom Park location for league games or competitive
play among two opposing teams, excluding scrimmage practice games. The site shall
be used for practice and functions associated with practice to improve a player's skill
sets for game play.
C. Joint Obligations of the Parties.
i) To keep the Park and its users in harmony with the surrounding neighborhood, the
Town and the User shall maintain communication regarding the Park and its use.
2. Rules and Regulations. Use of the Park not specifically outlined as part of this agreement
must comply with the Town's Comprehensive Parks Ordinance as existing or amended.
A. Liability
i) Town shall not be liable for any damage or injury to the persons, business (or any loss
of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other
property of the User, User's employees, invitees or licensees, whether the damage or
injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b)
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, or lighting fixtures or any other cause; (c) conditions arising on
or in the Park, or from other sources or places; or (d) any act or omission of the User.
Town shall not be liable for any damage or injury even though the cause of or the
means of repairing the damage or injury are not accessible to User. Town does not
waive its right of sovereign immunity by entering into or performing the terms and
conditions of this Agreement.
ii) User does not waive its right of sovereign immunity by entering into or performing
the terms and conditions of this Agreement.
B. Compliance with the Law.
i) Parties will insure that all operations and vendor activities will comply with applicable
federal, state and local laws. User and Town will not be responsible for the
compliance of third parties with this provision.
3. Incidents. All accidents to persons or damage to the fields / field equipment by the User's
patrons shall be reported by the User receiving the report of the accident or damage to the
other party verbally within twenty-four (24) hours, verbal notice may include leaving a voice
mail message at the contact numbers identified in paragraph 6 below, and in writing within
three (3) business days from the date of such accident or damage.
Page 2 of 6
4. Default. Failure of a party to abide by any of the terms and conditions of this Agreement
shall constitute an Event of Default. The defaulting party shall have ten (10) days from the
date of notice within which to cure the default. The non -defaulting party shall have the right
to immediately terminate this Agreement.
5. User and Town Council Approval. This Agreement is entered into by Prosper Area Soccer
Association (P.A.S.0 approved by its Board of Trustees dated , 2008, authorizing
the Chairman to execute the same on behalf of the Prosper Area Soccer Association., and by
Town pursuant to a resolution passed by Town Council dated , 2008, authorizing
the Town Manager to execute the same on behalf of the Town of Prosper.
6. Miscellaneous Provisions.
A. Notices. Any notice required or permitted under this Agreement shall be given when
actually delivered or when deposited in the United States mail as certified mail addressed
as follows:
To User: Prosper Area Soccer Association
Attn: Lloyd Mills
P.O. Box 1207
Prosper, TX 75078
Telephone: 972-5 62-0684
To Town: Town of Prosper
Town Manager
P.O. Box 307
Prosper, Texas 75078
Telephone: 972-346-2640
Facsimile: 972-347-2304
B. Entire Agreement. 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.
C. Venue. This Agreement shall be construed in accordance with the laws of the State of
Texas and shall be performable in Collin County, Texas.
D. Consideration. This Agreement is executed by the parties hereto without coercion or
duress and for substantial consideration, the sufficiency of which is forever confessed.
E. Sovereign Immunity. Nothing in this Agreement shall be deemed a waiver of the
governmental, sovereign, or official immunity afforded by law to either the Town or
User.
F. Non -Transferable. Neither party hereto shall sublet, transfer or assign any of its rights
hereunder to a third party.
Page 3 of 6
G. Cumulative Remedies. All rights and remedies of Town and User under this Article
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.
H. Waiver of Breach. A waiver by either Town or User 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.
I. 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.
J. Legal Construction. In case any one or more of the provisions contained in the
Agreement shall for any reason be held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of the Agreement, and the Agreement shall be
construed as if the invalid, illegal, or unenforceable provision had never been included in
the Agreement.
K. Equal by all Parties. The Agreement shall be deemed drafted equally by all parties
hereto. The language of all parts of the 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.
L. Amendment. No amendment, modification, or alteration of the terms of the Agreement
shall be binding unless it is in writing, dated subsequent to the date of the Agreement, and
duly executed by the parties to the Agreement.
M. Force Majeure. Neither Town nor User 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 User and which by the exercise of due diligence
Town or User is unable, wholly or in part, to prevent or overcome.
N. Expiration. The agreement shall expire on July 31 of each calendar year.
Page 4 of 6
Attest:
Matt Denton,
Town Secretary
TOWN OF PROSPER, TEXAS
Mike Land, Town Manager
Date:
PROSPER AREA SOCCER ASSOCIATION
Lloyd Mills, P.A.S.O. Chair
Date:
Page 5 of 6
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EXHIBIT "A"
TOWN OF PROSPER, TEXAS
RESOLUTION NO.
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 USER
AGREEMENT BETWEEN PROSPER AREA SOCCER ASSOCIATION,
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
user agreement between Prosper Area Soccer Association, and the Town of Prosper, as
hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 261h day of August, 2008.
Charles Niswanger, Mayor
ATTEST TO:
Matthew Denton
Town Secretary
p
TOWN
SPER
To: Mayor and Town Council
From: Wade Harden, Senior Planner
PARKS A RECREATION
CC: Mike Land, Town Manager
Hulon T. Webb, Jr., PE., Director of Development Services / Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
Consider and act upon a resolution acknowledging the Town's intent regarding the improvements
at Folsom Park.
Description of Agenda Item:
Following collaboration with the Town Parks Board (PARBd), Town Council, LaCima Home
Owner's Association (HOA) Advisory Board and citizens, staff has drafted a resolution outlining the
Town's intent with the Folsom Park location. This resolution specifically addresses the following-
1. Town's intent not to allow league game play on the site.
2. The requirement for athletic leagues to enter into contract with the Town prior to using the
location for organized practice functions.
3. Town's intent to keep six permanent soccer goals on the site.
4. Town's intent to remove all bleachers from the location.
5. Town's intent to revisit the option of removing the sports lights following one year from the
approval of the resolution.
Budget Impact:
There are no significant budget implications associated with the approval of this agreement.
Legal Obligations and Review:
The resolution does not require legal review and has not been reviewed the Town Attorney.
Attached Documents:
• Resolution expressing the Town's intentions with Folsom Park.
Board. Committee and/or Staff Recommendation:
The use of Folsom Park was discussed at the June 19th and the July 24th PARBd meeting. The
PARBd recommends the Town Council approve the resolution addressing the concerns stated.
Town staff recommends the Town Council review the proposed resolution and consider adopting it
as proposed or with minor changes.
Agenda Item No. 9 - Page 1 of 1
TOWN OF PROSPER, TEXAS RESOLUTION NO.
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY ACKNOWLEDGING THE TOWNS
INTENT FOR THE USE OF FOLSOM PARK.
WHEREAS, the Town Council recognizes Folsom Park as a public neighborhood park
as designated by the 2007 Parks, Recreation and Open Space Master Plan; and
WHEREAS, improvements made to Folsom Park will provide benefit to the Citizens of
the Town of Prosper; and
WHEREAS, the Town Council has determined that the development and future use of
Folsom Park should remain that of a public neighborhood park; and
WHEREAS, the Town Council has determined organized athletic team practices within
the Park are an appropriate use of the facility; and
WHEREAS, the Town Council has determined that organized league game play is not
an appropriate use of the park facility; and
WHEREAS, the Town Council has determined that athletic leagues using the park
should enter into an agreement with the Town for field use: and
WHEREAS, The Town Council has determined there is no need to install permanent or
temporary restroom facilities; and
WHEREAS, the Town Council has determined the six goals on site is an appropriate
number of goals to serve the citizen in the area; and
WHEREAS, the Town Council has determined that the development and future use of
Folsom Park should remain that of a public neighborhood park; and
WHEREAS, the Town Council has determined the removal of all bleachers from the site
will not have a bearing on the intensity of the Parks use and direct Staff to
remove the bleacher from the Park; and
WHEREAS, the Town Council has determined it is appropriate to review and receive
input from Town Citizens regarding the removal of the four (4) sports field lighting
fixtures one year from date this Resolution is approved.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: That this Resolution shall take effect immediately upon its passage.
RESOLVED by affirmative vote of the Town Council on this 26th day of August, 2008.
Charles Niswanger, Mayor
ATTEST:
Matthew Denton, Town Secretary
ENGINEERING
To: Mayor and Town Council
From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
CC: Mike Land, Town Manager
Re: Town Council Meeting — August 26, 2008
Date: August 21, 2008
Aaenda Item:
Consider and act upon 1) an Escrow Agreement regarding the timing of construction of various
turn lane improvements to serve the Prosper Plaza Project and 2) adopt a resolution authorizing
the Town Manager to execute the same.
Description of Agenda Item:
In conjunction with the development of Prosper Plaza, the developer is required to install and/or
fund various turn lane improvements with the development, with the TxDOT Intersection
Improvement Project at US 380 and Custer Road, and immediately following the TxDOT
Intersection Improvement Project. These improvements include the following:
Phase 1: (To be constructed with the development)
• Installation of a right turn lane at the northern most entrance into the Development off of
F.M. 2478-Custer Road.
• Installation of a right turn lane at the western most entrance into the Development off of
U.S. Highway 380.
• Restriping of a left turn lane on U.S. Highway 380 at the western most entrance into the
Development.
• Restriping of a left turn lane on U.S. Highway 380 at the main divided entrance into the
Development.
Phase 2: (To be constructed with the TxDOT Intersection Improvement Project)
• Installation of a left turn lane for northbound traffic into the Development at the main
divided entrance on F.M. 2478-Custer Road.
• Reconstruction of the left turn lane for eastbound traffic into the Development at the
main divided entrance at U.S. Highway 380.
Agenda Item No. 10 - Page 1 of 2
Phase 3: (To be constructed immediately following the TxDOT Intersection Improvement Project)
• Installation of a right turn lane for southbound traffic on F.M. 2478-Custer Road into the
Development at the main divided entrance at F.M. 2478-Custer Road.
• Installation of a right turn lane for westbound traffic on U.S. Highway 380 into the
Development at the main divided entrance at U.S. Highway 380.
In order for the Phase 2 improvements to be constructed with the TxDOT Intersection
Improvements Project, the Town will be responsible for entering into an Interlocal Cooperative
Agreement with the City of McKinney.
Budget Impact:
Per the terms of the attached Escrow Agreement, the Developer would be responsible for the
cost associated with the improvements in the following manner:
• Phase One. Developer, at Developer's sole cost and expense, shall complete the
Phase One work on or before December 1, 2008, subject to a Force Majeure Event.
Phase Two. On or before December 1, 2008, Developer shall deposit in escrow with
Town the sum of Ninety-eight Thousand Eight Hundred Eighty Dollars and 75/100
($98,880.75) to be applied toward the construction costs for the Phase Two work.
Developer further agrees to cover any cost overruns associated with the items not
reasonably known or identified as of the date of this Agreement.
Phase Three. On or before December 1, 2008, Developer shall deposit in escrow with
Town the sum of One Hundred Thirty-five Thousand Four Hundred Eighty Dollars
($135,480.00) representing the cost of the Phase Three work. Developer further agrees
to cover any cost overruns associated with the items not reasonably known or identified
as of the date of this Agreement. Any remaining escrowed funds after final completion
and payment of the Phase Three work shall be returned by Town to Developer.
Legal Obligations and Review:
The Escrow Agreement was review and approved by the Town Attorney.
Attached Documents:
The following documentation is being provided for review:
• Escrow Agreement
• Resolution authorizing the Town Manager to execute the agreement
Board. Committee and/or Staff Recommendation:
Town staff recommends that the Town Council: 1) approve an Escrow Agreement regarding the
timing of construction of various turn lane improvements to serve the Prosper Plaza Project and
2) adopt a resolution authorizing the Town Manager to execute the same.
Agenda Item No. 10 - Page 2 of 2
ESCROW AGREEMENT FOR PROSPER PLAZA
TURN LANE IMPROVEMENTS
This ESCROW AGREEMENT (the "Agreement") is entered into effective as of
, 2008, among the Town of Prosper, Texas, a municipal corporation (the
"Town") and Custer -Prosper, LP (the "Developer'), a Texas limited partnership, and Town
Manager of the Town or his/her designee (the "Escrow Agent').
RECITALS
A. Developer is currently developing a retail shopping center site of approximately
39 acres in the Town at the northwest corner of U.S. Highway 380 and F.M. 2478-Custer Road
(the "Development"), which is described on Exhibit A, attached hereto and made a part hereof
(hereinafter referred to as the "Property").
B. As a part of Developer's obligations in connection with the Development, Town
has required Developer to install certain turn lanes into the Development from both U.S.
Highway 380 and F.M. 2478-Custer Road (hereinafter defined and referred to as "Phase One"
work).
C. As an additional part of Developer's obligations in connection with the
Development, Town shall require Developer to pay the construction costs of a left turn lane into
the Development from U.S. Highway 380 and a left turn lane into the Development from F.M.
2478-Custer Road to be constructed by the Texas Department of Transportation ("TxDOT") as
part of TxDOT's other improvements to the intersection of U.S. Highway 380 and F.M. 2478-
Custer Road (hereinafter defined and referred to as "Phase Two" work).
D. As a further additional part of Developer's obligations in connection with the
Development, Town shall require Developer to install a right turn lane for southbound traffic on
F.M. 2478-Custer Road into the Development at the main divided entrance at F.M. 2478-Custer
Road and install a right turn lane for westbound traffic on U.S. Highway 380 into the
Development at the main divided entrance at U.S. Highway 380 (hereinafter defined and referred
to as "Phase Three" work).
E. Developer has agreed to install and pay for the Phase One work.
F. Developer has further agreed to deposit funds (hereinafter referred to as the
"Escrow Funds") in escrow to pay for the Phase Two and Phase Three work based upon
estimates of the cost of that work; provided, however, if the cost of the Phase two and/or Phase
Three Work exceeds the amount of the Escrow Funds, Developer has agreed to pay the
additional costs as provided below.
G. Town and Developer wish to reduce to writing the above referenced construction
and financial obligations of Developer and the timeline for satisfying same.
Therefore, for good and valuable consideration, the parties agree as follows:
I . Definitions. In this Agreement:
a. "Force Maieure Event" means a delay in performance caused by war, terrorist
acts, insurrection, strikes or other labor disturbances, walkouts, riots, floods,
earthquakes, fires, casualties, or acts of God; restrictions or delays imposed or
mandated by governmental agencies; enactment of laws that prevent or
preclude compliance; and litigation, relating to the work.
b. "KCl/Kennedv Consulting Agreement" means that certain letter agreement
dated April 25, 2008 between Developer and KCUKennedy Consulting for
engineering and design services to be provided by KCUKennedy Consulting
in connection with the Phase Two and Phase Three work, attached hereto as
Exhibit B. and incorporated herein for all purposes.
c. "Phase One" means the work shown on Exhibit C, attached hereto and listed
below:
i. Installation of a right turn lane at the northern most entrance into the
Development off of F.M. 2478-Custer Road.
ii. Installation of a right turn lane at the western most entrance into the
Development off of U.S. Highway 380.
iii. Restriping of a left turn lane on U.S. Highway 380 at the western most
entrance into the Development.
iv. Restriping of a left turn lane on U.S. Highway 380 at the main divided
entrance into the Development.
d. "Phase Two" means the work shown on Exhibit D, attached hereto and listed
below:
i. Installation of a left turn lane for northbound traffic into the
Development at the main divided entrance on F.M. 2478-Custer Road
(to be constructed by Texas Department of Transportation ("TxDOT")
in connection with TxDOT's Intersection Improvement Project).
ii. Reconstruction of the left turn lane for eastbound traffic into the
Development at the main divided entrance at U.S. Highway 380 (to be
constructed by TxDOT in connection with TxDOT's Intersection
Improvement Project).
e. "Phase Three" means the work as shown Exhibit E, attached hereto and listed
below:
i. Installation of a right turn lane for southbound traffic on F.M. 2478-
Custer Road into the Development at the main divided entrance at
F.M. 2478-Custer Road.
ii. Installation of a right turn lane for westbound traffic on U.S. Highway
380 into the Development at the main divided entrance at U.S.
Highway 380.
f. "TxDOT Intersection Improvement Proiect' means the improvements to be
constructed by TxDOT at the intersection of U.S. Highway 380 and F.M.
2478-Custer Road as referenced in that certain Interlocal Agreement between
Town and the City of McKinney attached hereto as Exhibit F. and
incorporated herein for all purposes ("Interlocal Agreement').
2. Construction of Phase One. Developer, at Developer's sole cost and expense, shall
complete the Phase One work on or before December 1, 2008, subject to a Force
Majeure Event.
3. Construction of Phase Two. On or before December 1, 2008, Developer shall
deposit in escrow with Town the sum of Ninety-eight Thousand Eight Hundred
Eighty Dollars and 75/100 ($98,880.75) to be applied toward the construction costs
(as set out on Exhibit D-1 attached hereto) for the Phase Two work. Developer
further agrees to cover any cost overruns associated with the items listed on Exhibit
D=1 which are not reasonably known or identified as of the date of this Agreement.
Town agrees to release the escrowed funds as required by the Interlocal Agreement.
4. Construction of Phase Three. Within thirty (30) days after receipt of written notice
from Town that the Phase Two work has been satisfactorily completed by the TxDOT
contractor, Developer shall commence construction of the Phase Three work and
diligently pursue the construction thereof to its conclusion within sixty (60) days after
commencement, subject to a Force Majeure Event. To ensure Town of Developer's
financial ability to complete the Phase Three work, Developer shall, on or before
December 1, 2008, escrow with Town the sum of One Hundred Thirty-five Thousand
Four Hundred Eighty Dollars ($135,480.00) representing the cost of the Phase Three
work (as set out on Exhibit E-1 attached hereto). Developer further agrees to cover
the cost of overruns associated with the items listed on Exhibit E-1 which are not
reasonably known or identified as of the date of this Agreement. Town agrees to pay
to the contractor all or portions of the One Hundred Thirty-five Thousand Four
Hundred Eighty Dollars ($135,480.00) within thirty (30) days after receipt from the
contractor performing the Phase Three work an invoice for the Phase Three work
completed to the date of invoice. Any remaining escrowed funds after final
completion and payment of the Phase Three work shall be returned by Town to
Developer.
5. Engineering Service Fees. Developer will pay the cost of the engineering service
fees of KCl/Kennedy Consulting for the Phase Two and Phase Three work as set
forth in Exhibit B.
6. Delivery of Funds to Escrow Agent. Developer and the Town hereby agree that the
amount of the Escrow Funds for the Phase Two work (the "Phase Two Escrow") is
Ninety-eight Thousand Eight Hundred Eighty Dollars and 75/100 ($98,880.75). A
cost estimate of the Phase Two work is set forth in the Exhibit D-1 of this
Agreement. On or before December 1, 2008, Developer shall deliver the Escrow
Funds associated with the Phase Two work in cash or other immediately available
funds to Escrow Agent. Escrow Agent agrees to hold and disburse the Escrow Funds
in the Phase Two Escrow in strict accordance with the provisions of this Agreement.
Escrow Agent shall deposit the Escrow Funds in an interest bearing account. All
interest earned on the Escrow Funds shall remain deposited in escrow with Escrow
Agent, and such interest shall become attributable to Developer and shall be paid to
Developer upon completion of the Phase Two work, provided the amount of the
Escrow Funds in the Phase Two Escrow exceeds the cost of the Phase Two work.
Developer acknowledges that this Agreement requires the Developer to pay the full
costs of the Phase Two work and that additional funds will be required from
Developer if the Escrowed Funds in the Phase Two Escrow are less than the cost of
the Phase Two work.
Developer and the Town hereby agree that the amount of the Escrow Funds for the
Phase Three work (the "Phase Three Escrow") is One Hundred Thirty-five Thousand
Four Hundred Eighty Dollars ($135,480.00). A cost estimate of the Phase Three
work is set forth in the Exhibit E-1 of this Agreement. Developer shall deliver to the
Escrow Agent the Escrow Funds associated with the Phase Three work on or before
December 1, 2008 in cash or other immediately available funds. Escrow Agent
agrees to hold and disburse the Escrow Funds in the Phase Three Escrow in strict
accordance with the provisions of this Agreement. Escrow Agent shall deposit the
Escrow Funds in an interest bearing account. All interest earned on the Escrow
Funds shall remain deposited in escrow with Escrow Agent, and such interest shall
become attributable to Developer and shall be paid to Developer upon completion of
the Phase Three work, provided the amount of the Escrow Funds in the Phase Three
Escrow exceeds the cost of the Phase Three work. Developer acknowledges that this
Agreement requires the Developer to pay the full costs of the Phase Three work and
that additional funds will be required from Developer if the Escrowed Funds in the
Phase Three Escrow are less than the cost of the Phase Three work.
7. Disbursement of Escrow Funds. The Escrow Funds shall be held and disbursed by
Escrow Agent to pay for the respective costs of the Phase Two and Phase Three work,
as the case may be. From time to time, but no more frequently than monthly, and
promptly upon receipt by Escrow Agent from Town of a request for funds (which
requests shall include invoices, contracts or other evidence that a payment is due
towards the construction of the Phase Two and Phase Three work, as the case may
be), Escrow Agent shall release to the Town -authorized requestor from the Escrowed
Funds (the Phase Two Escrow or the Phase Three Escrow, as the case may be) the
amount requested. The portions of this Agreement applicable to the Phase Two work
and the Phase Two Escrow will terminate upon the final disbursement of the Phase
Two Escrow funds by the Escrow Agent or the satisfactory completion of the Phase
Two work and its final acceptance by the Town whichever is later. The portions of
this Agreement applicable to the Phase Three work and the Phase Three Escrow will
terminate upon the final disbursement of the Phase Three Escrow funds by the
Escrow Agent or the satisfactory completion of the Phase Three work and its final
acceptance by the Town whichever is later.
8. Duties of Escrow Agent. Escrow Agent shall act as escrow agent hereunder.
Simultaneously with the execution of this Agreement, Developer shall pay to Escrow
Agent the sum of no dollars ($0.00) for the performance of Escrow Agent's
obligations under this Agreement. Escrow Agent shall not be liable for any act or
thing done or caused to be done, directly or indirectly, by him under or pertaining to
this Agreement or the Escrow Funds, except for the gross negligence or willful
misconduct of Escrow Agent. In the event of any conflicting demands made upon
Escrow Agent, he may withhold his performance under this Agreement until said
conflicting demands are withdrawn or until the rights of the respective parties have
been settled by a court of competent jurisdiction, as evidenced by an executed
judgment that is final and non -appealable.
9. Resignation of Escrow Agent. Escrow Agent may resign as Escrow Agent under
this Agreement by giving written notice to Developer and Town, in accordance with
the provisions of this Agreement at least thirty (30) days prior to the effective date of
such resignation. Thereafter, Escrow Agent shall deliver to Town and Developer,
jointly, any remaining Escrow Funds held pursuant to this Agreement upon the joint
written and signed order of Developer and Town. If no such order is received by
Escrow Agent within thirty (30) days after the giving of such notice, Escrow Agent is
authorized and empowered to deposit the Escrow Funds into the registry of a court of
competent jurisdiction. Upon the effective date of the resignation of Escrow Agent
and delivery of the Escrow Funds in accordance with this section, Escrow Agent shall
have no further obligations, duties and/or liabilities with regard to this Agreement.
10. Removal of Escrow Agent. Developer and Town may jointly remove Escrow
Agent, with or without cause, and appoint a substitute escrow agent or otherwise
designate the disposition of the Escrow Funds without additional formality other than
giving written notice to Escrow Agent at Escrow Agent's address set forth below in
which event Escrow Agent shall deliver the Escrow Funds in accordance with the
joint written and signed instructions of Developer and Town and shall thereupon be
deemed to be removed as of the date designated in such notice, or if no date is
designated, as of the date such delivery is made. Upon the effective date of the
removal of Escrow Agent and delivery of the Escrow Funds in accordance with this
paragraph, Escrow Agent shall have no further obligations, duties and/or liabilities
with regard to this Agreement.
11. Miscellaneous Provisions.
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 the receipt at the address of the addressee. For purposes of notice, the
addresses of the parties shall be as follows:
If to Town: Town of Prosper
Attention: Town Manager
121 W. Broadway, P.O. Box 307
Prosper, Texas 75078-0307
With Copy to: Abernathy, Roeder, Boyd and Joplin, P.C.
Attention: Rebecca Brewer
1700 Redbud Blvd., Suite 300
McKinney, Texas 75070-1210
If to Developer: Custer -Prosper LP
c/o Cross Development
Attention: Steve Rumsey
One Bent Tree Tower
16475 N. Dallas Parkway, Suite 550
Addison, Texas 75001
With Copy to: Robert L. Trimble, Esq.
8333 Douglas Ave., Suite 1350
Dallas, TX 75225
If to Escrow Agent: Matthew Garrett
121 W. Broadway
P.O. Box 307
Prosper, Texas 75078-0307
b. Entire Agreement. 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.
c. Venue. This Agreement shall be construed in accordance with the laws of the
State of Texas and shall be performable in Collin County, Texas.
d. Consideration. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the sufficiency of which
is forever confessed.
e. 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.
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 an 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. Savings/Severability. 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 if such invalid, illegal or unenforceable provision had never been
contained herein.
h. Representations. Each signatory represents this Agreement has been read by
the party for which this Agreement is executed and that such party has had an
opportunity to confer with its counsel.
i. Miscellaneous Drafting 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.
j. Sovereign Immunity. Except for its obligations hereunder, the parties agree
that Town has not waived its sovereign immunity by entering into and
performing its obligations under this Agreement.
k. Assignment. Except as otherwise stated herein, this Agreement or any part
thereof shall not be assigned or transferred by any party without the prior
written consent of the other party. The Developer, however, may assign this
Agreement to any entity or person who purchases all or any portion of the
Property from the Developer (the "Purchaser") upon the following conditions:
i. the assignment of this Agreement must be evidenced by a written
document, which is subject to the reasonable review and approval of the
Town (Town shall respond within thirty (30) days after its receipt);
ii. at the time of any assignment, the Developer must give written
notice that any and all obligations, covenants and/or conditions
contained in this Agreement will be assumed solely and
completely by the Purchaser, and the Purchaser will assume same in
writing,
iii. the Developer shall provide the Town with the name, address, phone
number, fax number and the name of a contact person for the
Purchaser.
1. Waiver. Waiver by either party of any breach of this Agreement, or the
failure of either party to enforce any of the provisions of this Agreement, at
any time, shall not in any way affect, limit or waive such party's right
thereafter to enforce and compel strict compliance.
in. Reference to Developer. When referring to "Developer" herein, this
Agreement shall refer to and be binding upon Developer, and its successors
and assignees.
n. No Third Party 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.
o. Attorney's Fees. In any legal proceeding brought to enforce the terms of this
Agreement, the prevailing party may recover its reasonable and necessary
attorney's 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.
p. Incorporation 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 Town and Developer.
IN WITNESS WHEEOF, the parties have executed this Agreement to be effective the
day of , 2008.
Developer:
Custer -Prosper, L.P., a Texas
limited partnership
By: Cross Development Prosper-Catlyn, L.P.,
a Texas limited partnership,
its general partner
Attest:
By: Cross Development Prosper-Catlyn
GP, LLC, a Texas limited liability
company, its general partner
Steve Rumsey, Vice President
Town:
Town of Prosper, Texas
Matthew Denton, Town Secretary Mike Land, Town Manager
Approved as to form:
Abernathy Roeder Boyd & Joplin P.C.
Rebecca Brewer, Town Attorney
Escrow Agent:
Matthew Garrett
Finance Director, Town of Prosper
Exhibit "A"
(Property Description)
STATE OF TEXAS §
COUNTY OF COLLIN §
WHEREAS, Custer -Prosper, L.P. is the owner of a tract of land situated in the City of Prosper, Collin
County, Texas out of the Jeremiah Horn, Abstract No. 411 and being al 1 of a 39.8517 acre tract of land
conveyed to Custer -Prosper, L.P. according to the deed fled for record in County Clerk's File Number
20070423000540690, Deed Records, Collin County, Texas and being more particularly described by
metes and bounds as follows:
BEGINNING at a 5/8" iron rod found in the north right of way line of U.S. Highway 380 (variable -width
right of way), the most southerly southeast corner of said 39.5817 acre tract;
THENCE, along said north right of way line, the south line of said 39.8517 acre tract, South 87 degrees
25 minutes 28 seconds West, a distance of 343.74 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 89 degrees 10 minutes 04 seconds West, a distance
of 545.75 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 89 degrees 18 minutes 42 seconds West, a distance
of 444.58 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, North 69 degrees 03 minutes 20 seconds West, a distance
of 60.54 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 74 degrees t2 minutes 42 seconds West, a distance
of 45.03 feet to a point in a drainage ditch, the southwest corner of said 39.851 7 acre tract;
THENCE, departing said common line, and along the west line of said 39.8517 acre tract, North 11
degrees 22 minutes 46 seconds West, a distance of 458.07 feet to a point;
THENCE, continuing along said west line, North 26 degrees 49 minutes 38 seconds East, a distance of
359.64 feet to a point;
THENCE, continuing along said west line, North 07 degrees 39 minutes 59 seconds East, a distance of
376.71 feet to a point, the northwest corner of said 39.8517 acre tract;
THENCE, along the north line of said 39.8517 acre tract, North 89 degrees 10 minutes 00 seconds East, a
distance of 1,393.69 feet to the northeast corner of said 39.8517 acre tract, lying in the west right of way
line of Custer Road (F.M. 2478) (variable width right of way), a point from which a 5/8' iron rod found
bears North 20 degrees 05 minutes, 00 seconds, West, a distance of 0.39 feet;
THENCE, along said west right of way line, the east line of said 39.8517 acre tract, South 00 degrees 50
minutes 00 seconds East, a distance of 1046.68 feet to a point from which a concrete monument found
with brass disk stamped "Geological Survey Benchmark" bears South 05 degrees 43 minutes, 00 seconds,
East, a distance of 1.63 feet, the most easterly southeast corner of said 39.5817 acre tract, the beginning of
a corner clip;
THENCE, along said corner clip, South 44 degrees 55 minutes 12 seconds West, a distance of 138.00 feet
to the POINT OF BEGINNING, and containing 1,735,940 square feet or 39.8517 acres of land, more or
less.
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Exhibit "B"
KENNEDY GONSVLliNr3
April 25,.2008
Mr. Kevin Wiles
Cross Development
16475 N. Dallas Pkwy
Addison, TX 75001
Re: Proposal for Civil Engineering Services
Prosper Development —Turn Lane Design
Dear Kevin:
Suite 101
1871 karroun Avenue
MCKlnnry, Texea
75069
TEL 972 sit 17s1
FAX 972 529 2294
We appreciate the opportunity to provide our services for your new Prosper Plaza turn lanes on
FM 2478 (Custer Road) and US 380 in the Town of Prosper. Based on our familiarity with the
site and 'IADOT design criteria, we prepared the following Scope of Services for your
consideration:
SCOPE OF SERVICES
Development Q2grdinot ion — Kennedy Consulting, Ltd. (KCI) will coordinate with RKM
Consulting Engineers, Inc. and any other consultants as necessary to fialize the design
of various turn lanes on Custer Road and US 380 (Phase Two: two (2) tell turn lanes and
Phase Three: two (2) right turn lang . We will attend meetings with the Town of Prosper
(Town) and (lie TxDOT Collin County Area Office ('1'xD0'I'), if necessary to finalize the
construction drawings. Although no utility design or permitting Is being provided by
KCI under this agreement, we will coordinate with the client and private utility
companies regarding any potential utility conflicts within the construction limits of this
project.
Infrastructure Deslen — In accordance with the proposed phasing Qf constriction for the
required Town of Prosper turn lane improvements Bear Prosper Plaza (NWC US 380 /
FM 2478), KCI shall perfon» the following tasks:
PHASE ONE (BYOTHERS): With the development of /lie NW coiner of US 380 and IrM
2478, the Improveulews listed below ivill be designed and constructed by others:
I'M247N
■ Right iurn at the northern entrance
US 380
■ J,efl han lane reslriping at the ivestern entrance.
• Right turn lane at the ivestern entrance
■ Left ha•n lane mslriping at the main divided entrance
BECM
kerMeOV CONSULnNb
Mr. Kevin Wiles
April 23, 2008
Page 2 of 4
PHASE TWO: With the US 380 / FM 2478 Intersection Improvements Project, the
improvement listed below will be designed by KCi and constructed by others:
78
• Left turn lane at the main divided entrance
US 380
• Left turn lane reconstruction at the main divided entrance (with Intersection
Improvement Project)
KCI will prepare and % or revise deliriled engineering plans for construction of these two
left turn lanes under the current TXDOT-Caster Road project (approximated at 14 sheets).
PHASE. THRE-R.- Tmmedlately preceding the US 380 / FM 2478 Intersection
Improvements Project, the improvement listed below will be designed by KCI and
constructed by others:
FM 2478
• Right turn at titb rmuiin divided entrance
US 380
• Right turn lane at the main divided entrance
KCI will prepare detailed engineering plans and estimates for those two right tuna lanes
tinder a separate stand alone plan set for construction by others (approximated at 30
sheets). The stand alone right turn lane construction plans will include general notes,
dimension control, grading, existing utility locations (horizontal only), stonn sewer,
drainage, miscellaneous details, proposed cross sections, paving and erosion control
plans.
3. Reimbutsable Expenses — Reimbursable expenses include outside services not performed
by KCI personnel. These services typically Include, but are not limited to reproduction,
deliveries, and any review or permit fees not paid directly by Cross Development. We
have included an estimate of anticipated reimbursable costs ror budgeting purposes.
KENNEOV CONSVLTWc-
CONDITIONS OF PROPOSAL
Mr. Kevin Wiles
April 25, 2008
Page 3 of 4
I
This proposal is limited in Scope and Fee and is based on the following conditions:
1. Upon final approval of the turn lane design and drawings by the Town and TzDOT,
services will be considered rendered and no other services are intended.
2. Any services performed and not described in the Scope of Services shall be considered
Additional Services and shall be performed on an hourly rate basis as authorized or
otherwise negotiated with you.
3. Our design shall be based on the final Prosper Plaza site plan as approved by Cross
Development and final construction documents from the adjacent TxDOT improvements.
Revisions to construction plans resulting from site plan revisions, either during or after
the plans have been completed, shall be considered an Additional Service.
4. Our scope does not include any variances to Town or District criteria. Coordination of
any variance requests shall be considered an Additional Service.
5. Landscape design is not included in our proposal.
6. Separate instrument easement documents and legal descriptions are not anticipated and
not included in our scope. If required, separate instrument easements will be prepared as
an Additional Service.
7. Off -site infrastructure, including pavement extensions, is not anticipated and is not
included in our scope.
8. Our design shall be based on a geotechnical report, if necessary, to be provided by the
developer.
9. Construction phase services shall be considered as an Additional Service and shall be
performed on an hourly basis.
A
N
NEDV CONSVLTIM4
CLOSURE
Mr. Kevin Wiles
April 25, 2008
Page 4 of 4
in consideration of the defined Scope, we prepared the attached Schedule of Professional Pees.
Lump Sum fees shall he payable on a monthly basis as determined by the percentage of
completion of the work during the bilihng period and such billings will be due and payable within
25 dnys. Hourly fees shall be based on our Schedule of Hourly Rates attached, which is subject
to annual revision. Proposed fees do not include the amount of any excise, VAT, gross receipts,
or sales tax that may be imposed. Any required taxes will be added to our invoices accordingly.
This agreement shall be subject to our Standard Provisions attached. 'Ilia proposed fees shall be
considered for the entire Scope of Services. Should you wish to contract with us for only a
portion of the work, we reserve the right to negotiate individual Scope items on their own merits.
This proposal shall be valid for sixty (60) days and may be extended upon our approval.
We look forward to helping you make this a successitd project. This letter shall be considered a
notice to proceed upon authorized signature below and return of one copy to our office. Please
call if you have any questions.
Sincerely,
Kurt W. Aungst, P
Sr. Associate of G.P.
Kennedy Consulting, Ltd
By: O'Malley -Chick, LLC (as OP)
Attachments: Schedule of Professional Pees
KCI Standard Provisions
KCI Standard Rate Schedule
AGREED AND ACCEPTED:
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KENNEDY CONSULTING LTD
STANDARD PROVISIONS
(1) Consultant's Scope of Services: The Consultant's undertaking to perform professional services extends only to the services
specifically described in this Agreement. However, if requested by the Client and agreed to by the Consultant, the Consultant will
perform additional services ("Additional Services") hereunder. The Consultant is also authorized, but not required, to perform
Additional Services for services deemed appropriate by the Consultant in response to emergencies, unanticipated actions by the
Client's contractors, revised regulations, or requirements of authorities, if advance authorization cannot be obtained. The
Consultant will notify the Client as soon as practical of the inception of such Additional Services.
(2) Client's Responsibilities In addition to other responsibilities described herein or Imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority
to transmit instructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Clients requirements, objectives, and expectations for the project including all
numerical criteria that are to be met and all standards of development, design, or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably
necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements,
zoning or other land use regulations, etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services.
(e) Review all documents or oral reports presented by the Consultant and tender in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of the Consultant.
() Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents
from other parties as may be necessary for completion of the Consultant's services.
(g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client
may require or the Consultant may reasonably request.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and
timing of the Consultant's services or any defect or noncompliance in any aspect of the project.
(i) Bear all costs incident to the responsibilities of the Client.
(3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of
this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions
permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as
necessary for delays or suspensions due to any circumstances that the Consultant does not control. Such a delay or suspension shall
not terminate this Agreement unless the Consultant elects to terminate pursuant to other provisions of this Agreement. If such delay
or suspension extends for more than six months (cumulatively), the rates of compensation provided for in this Agreement shalt be
renegotiated.
(4) Compensation for Additional Services Unless otherwise agreed to in writing, the Client shall pay the Consultant for the
performance of any Additional Services certain direct expenses including duplicating, mileage, express delivery, and other direct
expenses at 1.15 times cost. Technical use of computers for design, analysis, and graphics, etc., will be billed at $20.00 per hour.
(5) Method of Payment Compensation shall be paid to the Consultant in accordance with the following provisions:
(a) Invoices will be submitted by the Consultant to the Client periodically for services performed and expenses incurred. Payment
of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all taxes, if any, whether state,
local, or federal, levied with respect to amounts paid hereunder. Interest will be added to accounts not paid within 25 days at 12%
per annum beginning on the 25th day. The Consultant shall be compensated in U.S. dollars. If the Client fails to make any payment
due the Consultant for services and expenses within 30 days after the Consultants transmittal of its invoice, the Consultant may,
after giving 7 days' written notice to the Client, suspend services under this Agreement until all amounts due are paid In full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the
invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.
(c) If the Consultant Initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable
attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost, at the
Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees.
(d) The Client agrees that the payment for services rendered and expenses incurred by the Consultant pursuant to this Agreement is
not subject to any contingency or condition.
(6) Use of Documents: All documents, including but not limited to drawings, specifications and data or programs stored
electronically, prepared by the Consultant are related exclusively to the services described in this Agreement. They are not intended
or represented to be suitable for partial use or reuse by the Client or others on extensions of this project or on any other project. Any
modifications made by the Client to any of the Consultant's documents, or any partial use or reuse of the documents without written
authorization or adaptation by the Consultant will be at the Client's sole risk and without liability or legal exposure to the
Consultant, and the Client shall indemnity, defend and hold the Consultant harmless from all claims, damages, losses and expenses,
including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the Consultant to
further compensation at rates to be agreed upon by the Client and the Consultant.
(7) Opinions of Cost Because the Consultant does not control the cost of labor, materials, equipment or services furnished by
others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but
not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its
judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee
that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of
any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation
established by the Client will be paid for as Additional Services.
(8) Termination The obligation to provide further services under this Agreement may be terminated by either party upon seven
days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no
fault of the terminating party. In the event of any termination, the Consultant shall be paid for all services rendered and expenses
incurred to the effective dale of termination, and other reasonable expenses incurred by the Consultant as a result of such
termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the
total fee based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount
of services which were to have been performed, less prior partial payments.
(9) Insurance The Consultant is protected by Workers' Compensation insurance, professional liability insurance, and general
liability insurance for bodily injury and property damage and will exchange certificates of insurance upon request. If the Client
directs the Consultant to obtain increased insurance coverage, or if the nature of the Consultant's activities requires additional
insurance coverage, the Consultant will take out such additional insurance, if obtainable, at the Client's expense.
(10) Liability In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised,
under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No
warranty, express or implied, Is made or intended by the Consultants undertaking herein or its performance of services, and it is
agreed that the Consultant is not a fiduciary with respect to the Client. To the fullest extent of the law, and notwithstanding any
other provisions of this Agreement, the total liability, in the aggregate of the Consultant and the Consultants officers, directors,
employees, agents, and sub -consultants to the Client or to anyone claiming by, through or under the Client, for any and all claims,
losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under this Agreement from
any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of
contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and sub -
consultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever
is greater. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other
consequences due to changed conditions or for costs related to the failure of contractors to perform work in accordance with the
plans and specifications.
(11) Certifications The Consultant shall not be required to execute any certifications or other documents that in any way might, in
the judgment of the Consultant, increase the Consultant's risk or affect the availability, applicability, or cost of its insurance.
(12) Expenses of litigation If litigation or arbitration related to the services performed is initiated against the Consultant by the
Client, its contractors, or subcontractors, and such proceeding concludes with the entry of a judgment or award favorable to the
Consultant, the Client shall reimburse the Consultant its reasonable attorneys' fees, reasonable experts' fees, and other expenses
related to the proceeding. Such expenses shall include the cost, determined at the Consultants normal hourly billing rates, of the
time devoted to the proceedings by the Consultant's employees.
(13) Dispute Resolution All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation
in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a condition precedent to
litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted
but in no event later than allowed by applicable statutes.
(14) Hazardous Substances and Conditions
(a) Unless stated in the scope of services, it is agreed that the Client does not request the Consultant to perform any services or to
make any determinations involving hazardous substances or conditions, as defined by federal or state law. If such services are
agreed to, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous
substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting,
including, when agreed to, plans and specifications for isolation, removal, or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated In the scope of services of which
the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its
services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to proceed with its
services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional
scope, fee, and terms for such services.
(c) Except to the extent of negligence, if any, on the part of the Consultant in performing services expressly undertaken in
connection with hazardous substances and conditions, the Client agrees to hold harmless, indemnify, and defend the Consultant
from and against any and all claims, losses, damages, liability, and costs in any way arising out or connected with the presence,
discharge, release, or escape of hazardous substances or conditions of any kind, or environmental liability of any nature, in any
manner related to services of the Consultant.
(15) Construction Phase Services
(a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not retained
to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction
observation, and the Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means,
methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant
have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of
endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform
to the construction documents prepared by the Consultant. Consultant neither guarantees the performance of contractors, nor
assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents.
(c) The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site
safety and for its means and methods; that the contractor shall indemnify the Client and the Consultant for all claims and liability
arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's
general liability insurance policy.
(16) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone other than the Client and the
Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and
the Consultant. Neither the Client nor the Consultant shall assign or transfer any rights under or interest in this Agreement without
the written consent of the other. However, nothing herein shall prevent or restrict the Consultant from retaining independent
professional associates, sub -consultants, and suppliers as the Consultant may deem appropriate.
(17) Confidentiality The Client consents to the use and dissemination by the Consultant of photographs of the project and to the
use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any
facts, data or Information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care
to maintain the confidentiality of that material.
(18) Miscellaneous Provisions This Agreement is to be governed by the law of the State of Texas. This Agreement shall bind, and
the benefits thereof shall inure to, the parties hereto, their legal representatives, executors, administrators, successors and assigns.
This Agreement contains the entire and fully integrated agreement between the parties, and supersedes all prior and
contemporaneous negotiations, representations, agreements or understandings, whether written or oral. This Agreement can be,
supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or
additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. Any
provision in this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any
other jurisdiction. The non -enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it
affect the enforceability of that provision or of the remainder of this Agreement.
K-1
KENNEDY CONSULTING
Kennedy Consulting, Ltd.
2008 HOURLY RATE SCHEDULE
Labor Classification
Hourly
Rate
Principal
$
175.00
Project Manager
$
150.00
Professional
$
125.00
Professional
$
95.00
Technician 2
$
90.00
Technician 1
$
75.00
Clerical
$
45.00
Effective January 1, 2008
Subject to Annual Revision
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Exhibit "F"
INTERLOCAL COOPERATIVE AGREEMENT
BETWEEN
THE CITY OF MCKINNEY AND THE TOWN OF PROSPER
CONCERNING THE CONSTRUCTION OF VARIOUS
TURNS LANES AT THE NORTHWEST CORNER OF
US HIGHWAY 380 AND FM 2478,
CUSTER ROAD (FM 2478) FROM STONEBRIDGE DRIVE
TO US 380 IMPROVEMENTS
WHEREAS, the City of McKinney, Texas ("City") and the Town of Prosper, Texas
("Town") desire to enter into an agreement concerning the construction of improvements to
Custer Road (FM 2478) in McKinney, Collin County, Texas ("Agreement"); and
WHEREAS, City and Town mutually desire to be subject to the provisions of Texas
Government Code, Chapter 791, the Interlocal Cooperation Act (the "Act"), which authorizes
Texas local governments to contract with one or more other local governments to perform
governmental functions and services under the terms of the Act; and
WHEREAS, the City and Town have determined that the improvements may be
constructed most economically by implementing this Agreement.
NOW, THEREFORE, this Agreement is made and entered into by the City and the
Town upon and for the mutual consideration stated herein.
WITNESSETH:
ARTICLE I.
The City shall arrange for the construction of improvements to F.M. 2478 and U.S. 380
(the "Project'). Specifically, the improvements shall include the installation of a left turn lane
for northbound traffic into the Prosper Plaza Development ("Development') at the main divided
entrance on F.M. 2478-Custer Road and reconstruction of the left turn lane for eastbound traffic
into the Development at the main divided entrance at U.S. Highway 380 ("Improvements"). All
the improvements are to be constructed by the Texas Department of Transportation ("TxDOT")
in connection with TxDOT's Intersection Improvement Project.
Upon completion of the Project, Town shall have final review of Improvements made by
TxDOT, before final acceptance of the Project.
ARTICLE II.
The City estimates the total actual cost of the Project to be ninety-eight thousand eight
hundred dollars and seventy-five cents ($98,800.75). The Town agrees to fund the cost to
construct the Project in an amount not to exceed ninety-eight thousand eight hundred dollars and
seventy-five cents ($98,800.75), through an agreement between the Town and Custer -Prosper,
L.P. (the "Developer'), attached hereto as Exhibit A and incorporated herein for all references
("Escrow Agreement'). Whereby, the Developer is agreeing to pay for the Project and to escrow
the estimated costs with Town. The Town shall remit fifty (50%) percent of the amount of
forty-nine thousand four hundred dollars and thirty-eight cents ($49,400.38) to the City within
thirty (30) days after issuing a notice to proceed for construction of the Project as authorized by
the City Council and the City requests payment. The Town will remit the remaining fifty (50%)
percent within thirty (30) days after receipt of notice from the City that the Project is fifty (50%)
percent complete. The "total cost of the Project" shall include the construction, inspection, and
testing.
ARTICLE III.
If the total cost to construct the Project exceeds the amount estimated in Article II above,
the Town shall pay for the excess costs pursuant to the terms of the Escrow Agreement.
ARTICLE IV.
The City shall prepare for the Town an itemized statement specifying project costs that
have been incurred to date at fifty (50%) percent complete and one hundred (100%) percent
complete.
ARTICLE V.
The City and Town agree that the party paying for the performance of governmental
functions or services shall make those payments only from current revenues legally available to
the paying party.
ARTICLE VI.
VENUE. The laws of the State of Texas shall govern the interpretation, validity,
performance and enforcement of this Agreement. The parties agree that this Agreement is
performable in Collin County, Texas, and that exclusive venue shall lie in Collin County, Texas.
ARTICLE VII.
SEVERABILITY. The provisions of this agreement are severable. If any paragraph,
section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a
court of competent jurisdiction to be contrary to law or contrary to any rule or regulation having
the force and effect of the law, the remaining portions of the Agreement shall be enforced as if
the invalid provision had never been included.
ARTICLE VIII.
ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the
parties and may only be modified in a writing executed by both parties.
ARTICLE IX.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties
hereto, their successors, heirs, personal representatives and assigns. Neither party will assign or
transfer an interest in this Agreement without the written consent of the other party.
ARTICLE X.
IMMUNITY. It is expressly understood and agreed that, in the execution of this
Agreement, neither party waives, nor shall be deemed hereby to have waived any immunity or
defense that would otherwise be available to it against claims arising in the exercise of
governmental powers and functions. By entering into this Agreement, the parties do not create
any obligations, express or implied, other than those set forth herein, and this Agreement shall
not create any rights in parties not signatories hereto.
TERM. This Agreement shall be effective upon execution by both parties and shall
continue in effect for three (3) one-year terms. This Agreement shall automatically renew
annually during this three-year period.
ARTICLE XII.
DEFAULT. In the event of a breach of this Agreement by either Party, the other Party
may pursue any remedies available to it at law or in equity.
ARTICLE XIII.
NOTICES. Any notice required or permitted under this Agreement shall be given when
actually delivered as certified mail addressed as follows:
To Town: Town of Prosper
Attention: Town Manager
121 W. Broadway
Prosper, Texas 75078
To City: City of McKinney
Attention:
ARTICLE XIV.
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.
ARTICLE XV.
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.
ARTICLE XVI.
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.
ARTICLE XVII.
NO THIRD PARTY 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.
ARTICLE XVIII.
INCORPORATION 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.
ARTICLE XIX.
CONSIDERATION. This Agreement is executed by the Parties hereto without coercion
or duress and for substantial consideration, the sufficiency of which is forever confessed.
ARTICLE XX.
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.
ARTICLE XXI.
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.
ARTICLE XXII.
FORCE MAJEURE. Neither City nor Town 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 City or Town and which by the exercise of due diligence City or Town is unable, wholly or in
part, to prevent or overcome.
ARTICLE XXIII.
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.
ATTEST: CITY OF McKINNEY, TEXAS
�0
Name Sandy Hart, TRMC, MMC
Title: City Secretary
Name: Frank Ragan
Title City Manager
Date: Date:
Executed on behalf of the City of McKinney
pursuant to City Council Resolution
No.
APPROVED AS TO FORM:
Name Mark Houser
Title: City Attorney
Date:
ATTEST:
Name: Matthew D. Denton, TRMC
Title: Town Secretary
Date:
APPROVED AS TO FORM:
am
Date:
TOWN OF PROSPER, TEXAS
am
Name: Mike Land
Title: City Manager
Date:
Abernathy Roeder Boyd & Joplin P.C.
Rebecca Brewer, Town Attorney
Executed on behalf of the Town of Prosper
pursuant to Town Council Resolution
No.
STATE OF TEXAS
COUNTY OF COLLIN
This instrument was acknowledged before me on the day of , 2008
by Frank Ragan, City Manager of the City of McKinney, a Texas municipal corporation, on
behalf of the corporation.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF COLLIN
This instrument was acknowledged before me on the day of , 2008
by Mike Land, Town Manager of the Town of Prosper, a Texas municipal corporation, on
behalf of the corporation.
Notary Public, State of Texas
TOWN OF PROSPER, TEXAS
IS��01>l[11136 RJ4 61
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 ESCROW
AGREEMENT REGARDING THE TIMING OF CONSTRUCTION OF
VARIOUS TURN LANE IMPROVEMENTS TO SERVE THE PROSPER
PLAZA PROJECT, BY AND BETWEEN CUSTER — PROSPER, L.P.
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, an
Escrow Agreement regarding the timing of construction of various turn lane
improvements to serve the Prosper Plaza Project, by and between Custer -Prosper, L.P.
and the Town of Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 26'h day of August, 2008.
Charles Niswanger, Mayor
ATTEST TO:
Matthew Denton
Town Secretary
t
p
T SPER.
To: Mayor and Town Council
ENGINEERING
From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
CC: Mike Land, Town Manager
Re: Town Council Meeting — August 26, 2008
Date: August 21, 2008
Agenda Item:
Consider and act upon 1) an Interlocal Cooperative Agreement between the City of McKinney
and the Town of Prosper concerning the construction of various turn lanes at the northwest
corner of US Highway 380 and FM 2478, Custer Road (FM 2478) from Stonebridge Drive to US
380 Improvements and 2) adopt a resolution authorizing the Town Manager to execute the
same.
Description of Agenda Item:
In conjunction with the development of Prosper Plaza, the developer is required to install and/or
fund various turn lane improvements with the development, with the TxDOT Intersection
Improvement Project at US 380 and Custer Road, and immediately following the TxDOT
Intersection Improvement Project. In order for the following improvements to be constructed
with the TxDOT Intersection Improvement Project, the Town needs to enter into an Interlocal
Cooperative Agreement with the City of McKinney, the Project Manager for the TxDOT
Intersection Improvement Project:
• Installation of a left turn lane for northbound traffic into the Development at the main
divided entrance on F.M. 2478-Custer Road.
• Reconstruction of the left turn lane for eastbound traffic into the Development at the
main divided entrance at U.S. Highway 380.
Budget Impact:
On or before December 1, 2008, the developer of Prosper Plaza will deposit in escrow with
Town the sum of Ninety-eight Thousand Eight Hundred Eighty Dollars and 75/100 ($98,880.75)
to be applied toward the construction costs for the improvements to be incorporated into the
TxDOT Intersection Improvement Project. Any cost overruns associated with the construction
of the improvements will also be paid by the developer. These funds will then be released to
the City of McKinney in the following manner:
The Town shall remit fifty (50%) percent of the amount of forty-nine thousand four
hundred dollars and thirty-eight cents ($49,400.38) to the City within thirty (30) days after
issuing a notice to proceed for construction of the TxDOT Intersection Improvement
Project as authorized by the City Council and the City requests payment.
• The Town will remit the remaining fifty (50%) percent within thirty (30) days after receipt
of notice from the City that the Project is fifty (50%) percent complete
Agenda Item No. 11 - Page 1 of 2
Leaal Oblinations and Review:
The Interlocal Cooperative Agreement was review and approved by the Town Attorney.
Attached Documents:
The following documentation is being provided for review:
• Interlocal Cooperative Agreement
• Resolution authorizing the Town Manager to execute the agreement
Board. Committee and/or Staff Recommendation:
Town staff recommends that the Town Council: 1) approve an Interlocal Cooperative Agreement
between the City of McKinney and the Town of Prosper concerning the construction of various
turn lanes at the northwest corner of US Highway 380 and FM 2478, Custer Road (FM 2478)
from Stonebridge Drive to US 380 Improvements and 2) adopt a resolution authorizing the Town
Manager to execute the same.
Agenda Item No. 11 - Page 2 of 2
INTERLOCAL COOPERATIVE AGREEMENT
BETWEEN
THE CITY OF MCKINNEY AND THE TOWN OF PROSPER
CONCERNING THE CONSTRUCTION OF VARIOUS
TURNS LANES AT THE NORTHWEST CORNER OF
US HIGHWAY 380 AND FM 2478,
CUSTER ROAD (FM 2478) FROM STONEBRIDGE DRIVE
TO US 380 IMPROVEMENTS
WHEREAS, the City of McKinney, Texas ("Cily") and the Town of Prosper, Texas
("Town") desire to enter into an agreement concerning the construction of improvements to Custer
Road (FM 2478) in McKinney, Collin County, Texas ("Agreement'); and
WHEREAS, City and Town mutually desire to be subject to the provisions of Texas
Government Code, Chapter 791, the Interlocal Cooperation Act (the "Act"), which authorizes Texas
local governments to contract with one or more other local governments to perform governmental
functions and services under the terms of the Act; and
WHEREAS, the City and Town have determined that the improvements may be constructed
most economically by implementing this Agreement.
NOW, THEREFORE, this Agreement is made and entered into by the City and the Town
upon and for the mutual consideration stated herein.
WITNESSETH:
ARTICLE I.
The City shall arrange for the construction of improvements to F.M. 2478 and U.S. 380 (the
"Project"). Specifically, the improvements shall include the installation of a left turn lane for
northbound traffic into the Prosper Plaza Development ("Development") at the main divided
entrance on F.M. 2478-Custer Road and reconstruction of the left turn lane for eastbound traffic into
the Development at the main divided entrance at U.S. Highway 380 ("Improvements"). All the
improvements are to be constructed by the Texas Department of Transportation ("TxDOT") in
connection with TxDOT's Intersection Improvement Project.
Upon completion of the Project, Town shall have final review of Improvements made by
TxDOT, before final acceptance of the Project.
ARTICLE II.
The City estimates the total actual cost of the Project to be ninety-eight thousand eight
hundred dollars and seventy-five cents ($98,800.75). The Town agrees to fund the cost to construct
the Project in an amount not to exceed ninety-eight thousand eight hundred dollars and seventy-five
ILA between the Town of Prosper and the City of McKinney Page 1
522761-1
cents ($98,800.75), through an agreement between the Town and Custer -Prosper, L.P. (the
"Developer"), attached hereto as Exhibit A and incorporated herein for all references ("Escrow
Agreement"). Whereby, the Developer is agreeing to pay for the Project and to escrow the estimated
costs with Town. The Town shall remit fifty (50%) percent of the amount of forty-nine thousand
four hundred dollars and thirty-eight cents ($49,400.38) to the City within thirty (30) days after
issuing a notice to proceed for construction of the Project as authorized by the City Council and the
City requests payment. The Town will remit the remaining fifty (50%) percent within thirty (30)
days after receipt of notice from the City that the Project is fifty (50%) percent complete. The "total
cost of the Project" shall include the construction, inspection, and testing.
ARTICLE III.
If the total cost to construct the Project exceeds the amount estimated in Article II above, the
Town shall pay for the excess costs pursuant to the terms of the Escrow Agreement.
ARTICLE IV.
The City shall prepare for the Town an itemized statement specifying project costs that have
been incurred to date at fifty (50%) percent complete and one hundred (100%) percent complete.
ARTICLE V.
The City and Town agree that the party paying for the performance of governmental functions
or services shall make those payments only from current revenues legally available to the paying
Party
ARTICLE VI.
VENUE. The laws of the State of Texas shall govern the interpretation, validity,
performance and enforcement of this Agreement. The parties agree that this Agreement is
performable in Collin County, Texas, and that exclusive venue shall lie in Collin County, Texas.
ARTICLE VII.
SEVERABILITY. The provisions of this agreement are severable. If any paragraph,
section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a court
of competent jurisdiction to be contrary to law or contrary to any rule or regulation having the force
and effect of the law, the remaining portions of the Agreement shall be enforced as if the invalid
provision had never been included.
ARTICLE VIII.
ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the
parties and may only be modified in a writing executed by both parties.
ILA between the Town of Prosper and the City of McKinney Page 2
522761-1
ARTICLE IX.
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto,
their successors, heirs, personal representatives and assigns. Neither party will assign or transfer an
interest in this Agreement without the written consent of the other party.
ARTICLE X.
IMMUNITY. It is expressly understood and agreed that, in the execution of this Agreement,
neither party waives, nor shall be deemed hereby to have waived any immunity or defense that would
otherwise be available to it against claims arising in the exercise of governmental powers and
functions. By entering into this Agreement, the parties do not create any obligations, express or
implied, other than those set forth herein, and this Agreement shall not create any rights in parties not
signatories hereto.
ARTICLE XI.
TERM. This Agreement shall be effective upon execution by both parties and shall continue
in effect for three (3) one-year terms. This Agreement shall automatically renew annually during this
three-year period.
ARTICLE XII.
DEFAULT. In the event of a breach of this Agreement by either Party, the other Party may
pursue any remedies available to it at law or in equity.
ARTICLE XIII.
NOTICES. Any notice required or permitted under this Agreement shall be given when
actually delivered as certified mail addressed as follows:
To Town: Town of Prosper
Attention: Town Manager
121 W. Broadway
Prosper, Texas 75078
To City: City of McKinney
Attention:
ILA between the Town of Prosper and the City of McKinney Page 3
522761-1
ARTICLE XIV.
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.
ARTICLE XV.
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.
ARTICLE XVI.
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.
ARTICLE XVII.
NO THIRD PARTY 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.
ARTICLE XVIH.
INCORPORATION 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.
ARTICLE XIX.
CONSIDERATION. This Agreement is executed by the Parties hereto without coercion or
duress and for substantial consideration, the sufficiency of which is forever confessed.
ARTICLE XX.
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.
ILA between the Town of Prosper and the City of McKinney Page 4
522761-1
ARTICLE XXI.
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.
ARTICLE XXII.
FORCE MAJEURE. Neither City nor Town 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
City or Town and which by the exercise of due diligence City or Town is unable, wholly or in part, to
prevent or overcome.
ARTICLE XXIII.
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.
ATTEST: CITY OF McKINNEY, TEXAS
Name Sandy Hart, TRMC, MMC
Title: City Secretary
Date:
I0
Name: Frank Ragan
Title Ci y Manager
Date:
Executed on behalf of the City of McKinney
pursuant to City Council Resolution
No.
ILA between the Town of Prosper and the City of McKinney Page 5
522761-1
APPROVED AS TO FORM:
Lm
Name Mark Houser
Title: City Attorney
Date:
ATTEST:
an
Name: Matthew D. Denton, TRMC
Title: Town Secretary
Date:
APPROVED AS TO FORM:
I�
Date:
TOWN OF PROSPER, TEXAS
:
Name: Mike Land
Title: Ci y Manager
Date:
Abernathy Roeder Boyd & Joplin P.C.
Rebecca Brewer, Town Attorney
Executed on behalf of the Town of Prosper
pursuant to Town Council Resolution
No.
ILA between the Town of Prosper and the City of McKinney Page 6
522761-1
STATE OF TEXAS
COUNTY OF COLLIN
This instrument was acknowledged before me on the day of , 2008 by
Frank Ragan, City Manager of the City of McKinney, a Texas municipal corporation, on behalf of
the corporation.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF COLLIN
This instrument was acknowledged before me on the day of , 2008 by
Mike Land, Town Manager of the Town of Prosper, a Texas municipal corporation, on behalf of the
corporation.
Notary Public, State of Texas
ILA between the Town of Prosper and the City of McKinney Page 7
522761-1
Exhibit "A"
ESCROW AGREEMENT FOR PROSPER PLAZA
TURN LANE IMPROVEMENTS
This ESCROW AGREEMENT (the "Agreement") is entered into effective as of
, 2008, among the Town of Prosper, Texas, a municipal corporation (the "Town")
and Custer -Prosper, LP (the "Developer'), a Texas limited partnership, and Town Manager of the
Town or his/her designee (the "Escrow Agent').
RECITALS
A. Developer is currently developing a retail shopping center site of approximately 39
acres in the Town at the northwest corner of U.S. Highway 380 and F.M. 2478-Custer Road (the
"Development"), which is described on Exhibit A, attached hereto and made a part hereof
(hereinafter referred to as the "Pro a ").
B. As a part of Developer's obligations in connection with the Development, Town has
required Developer to install certain turn lanes into the Development from both U.S. Highway 380
and F.M. 2478-Custer Road (hereinafter defined and referred to as "Phase One" work).
C. As an additional part of Developer's obligations in connection with the Development,
Town shall require Developer to pay the construction costs of a left turn lane into the Development
from U. S. Highway 3 80 and a left turn lane into the Development from F.M. 2478-Custer Road to be
constructed by the Texas Department of Transportation ("LxDOT') as part of TxDOT's other
improvements to the intersection of U.S. Highway 380 and F.M. 2478-Custer Road (hereinafter
defined and referred to as "Phase Two" work).
D. As a further additional part of Developer's obligations in connection with the
Development, Town shall require Developer to install a right turn lane for southbound traffic on
F.M. 2478-Custer Road into the Development at the main divided entrance at F.M. 2478-Custer
Road and install a right turn lane for westbound traffic on U.S. Highway 380 into the Development
at the main divided entrance at U.S. Highway 380 (hereinafter defined and referred to as "Phase
Three" work).
E. Developer has agreed to install and pay for the Phase One work.
F. Developer has further agreed to deposit funds (hereinafter referred to as the "Escrow
Funds") in escrow to pay for the Phase Two and Phase Three work based upon estimates of the cost
of that work; provided, however, if the cost of the Phase two and/or Phase Three Work exceeds the
amount of the Escrow Funds, Developer has agreed to pay the additional costs as provided below.
G. Town and Developer wish to reduce to writing the above referenced construction and
financial obligations of Developer and the timeline for satisfying same.
Therefore, for good and valuable consideration, the parties agree as follows:
1. Definitions. In this Agreement:
a. "Force Majeure Event" means a delay in performance caused by war, terrorist
acts, insurrection, strikes or other labor disturbances, walkouts, riots, floods,
earthquakes, fires, casualties, or acts of God; restrictions or delays imposed or
mandated by governmental agencies; enactment of laws that prevent or preclude
compliance; and litigation, relating to the work.
b. "KCl/Kennedy Consulting, Agreement" means that certain letter agreement dated
April 25, 2008 between Developer and KCl/Kennedy Consulting for engineering
and design services to be provided by KCl/Kennedy Consulting in connection
with the Phase Two and Phase Three work, attached hereto as Exhibit B. and
incorporated herein for all purposes.
c. "Phase One" means the work shown on Exhibit C, attached hereto and listed
below:
i. Installation of a right turn lane at the northern most entrance into the
Development off of F.M. 2478-Custer Road.
ii. Installation of a right turn lane at the western most entrance into the
Development off of U.S. Highway 380.
iii. Restriping of a left turn lane on U.S. Highway 380 at the western most
entrance into the Development.
iv. Restriping of a left turn lane on U.S. Highway 380 at the main divided
entrance into the Development.
d. "Phase Two" means the work shown on Exhibit D, attached hereto and listed
below:
i. Installation of a left turn lane for northbound traffic into the Development
at the main divided entrance on F.M. 2478-Custer Road (to be
constructed by Texas Department of Transportation ("TxDOT") in
connection with TxDOT's Intersection Improvement Project).
ii. Reconstruction of the left turn lane for eastbound traffic into the
Development at the main divided entrance at U.S. Highway 380 (to be
constructed by TxDOT in connection with TxDOT's Intersection
Improvement Project).
e. "Phase Three" means the work as shown Exhibit E, attached hereto and listed
below:
i. Installation of a right turn lane for southbound traffic on F.M. 2478-
Custer Road into the Development at the main divided entrance at F.M.
2478-Custer Road.
ii. Installation of a right turn lane for westbound traffic on U.S. Highway
380 into the Development at the main divided entrance at U.S. Highway
380.
f. "TxDOT Intersection Improvement Pro ec ' means the improvements to be
constructed by TxDOT at the intersection of U.S. Highway 380 and F.M. 2478-
Custer Road as referenced in that certain Interlocal Agreement between Town
and the City of McKinney attached hereto as Exhibit F, and incorporated herein
for all purposes ("Interlocal Agreement').
2. Construction of Phase One. Developer, at Developer's sole cost and expense, shall
complete the Phase One work on or before December 1, 2008, subject to a Force Majeure
Event.
3. Construction of Phase Two. On or before December 1, 2008, Developer shall deposit
in escrow with Town the sum of Ninety-eight Thousand Eight Hundred Eighty Dollars
and 75/100 ($98,880.75) to be applied toward the construction costs (as set out on
Exhibit D-1 attached hereto) for the Phase Two work. Developer further agrees to cover
any cost overruns associated with the items listed on Exhibit D-1 which are not
reasonably known or identified as of the date of this Agreement. Town agrees to release
the escrowed funds as required by the Interlocal Agreement.
4. Construction of Phase Three. Within thirty (30) days after receipt of written notice
from Town that the Phase Two work has been satisfactorily completed by the TxDOT
contractor, Developer shall commence construction of the Phase Three work and
diligently pursue the construction thereof to its conclusion within sixty (60) days after
commencement, subject to a Force Majeure Event. To ensure Town of Developer's
financial ability to complete the Phase Three work, Developer shall, on or before
December 1, 2008, escrow with Town the sum of One Hundred Thirty-five Thousand
Four Hundred Eighty Dollars ($135,480.00) representing the cost of the Phase Three
work (as set out on Exhibit E-1 attached hereto). Developer further agrees to cover the
cost of overruns associated with the items listed on Exhibit E-1 which are not reasonably
known or identified as of the date of this Agreement. Town agrees to pay to the
contractor all or portions of the One Hundred Thirty-five Thousand Four Hundred Eighty
Dollars ($135,480.00) within thirty (30) days after receipt from the contractor
performing the Phase Three work an invoice for the Phase Three work completed to the
date of invoice. Any remaining escrowed funds after final completion and payment of
the Phase Three work shall be returned by Town to Developer.
5. Engineering Service Fees. Developer will pay the cost of the engineering service fees
of KCl/Kennedy Consulting for the Phase Two and Phase Three work as set forth in
Exhibit B.
6. Delivery of Funds to Escrow Agent. Developer and the Town hereby agree that the
amount of the Escrow Funds for the Phase Two work (the "Phase Two Escrow") is
Ninety-eight Thousand Eight Hundred Eighty Dollars and 75/100 ($98,880.75). A cost
estimate of the Phase Two work is set forth in the Exhibit D-1 of this Agreement. On or
before December 1, 2008, Developer shall deliver the Escrow Funds associated with the
Phase Two work in cash or other immediately available funds to Escrow Agent. Escrow
Agent agrees to hold and disburse the Escrow Funds in the Phase Two Escrow in strict
accordance with the provisions of this Agreement. Escrow Agent shall deposit the
Escrow Funds in an interest bearing account. All interest earned on the Escrow Funds
shall remain deposited in escrow with Escrow Agent, and such interest shall become
attributable to Developer and shall be paid to Developer upon completion of the Phase
Two work, provided the amount of the Escrow Funds in the Phase Two Escrow exceeds
the cost of the Phase Two work. Developer acknowledges that this Agreement requires
the Developer to pay the full costs of the Phase Two work and that additional funds will
be required from Developer if the Escrowed Funds in the Phase Two Escrow are less
than the cost of the Phase Two work.
Developer and the Town hereby agree that the amount of the Escrow Funds for the Phase
Three work (the "Phase Three Escrow") is One Hundred Thirty-five Thousand Four
Hundred Eighty Dollars ($135,480.00). A cost estimate of the Phase Three work is set
forth in the Exhibit E-1 of this Agreement. Developer shall deliver to the Escrow Agent
the Escrow Funds associated with the Phase Three work on or before December 1, 2008
in cash or other immediately available funds. Escrow Agent agrees to hold and disburse
the Escrow Funds in the Phase Three Escrow in strict accordance with the provisions of
this Agreement. Escrow Agent shall deposit the Escrow Funds in an interest bearing
account. All interest earned on the Escrow Funds shall remain deposited in escrow with
Escrow Agent, and such interest shall become attributable to Developer and shall be paid
to Developer upon completion of the Phase Three work, provided the amount of the
Escrow Funds in the Phase Three Escrow exceeds the cost of the Phase Three work.
Developer acknowledges that this Agreement requires the Developer to pay the full costs
of the Phase Three work and that additional funds will be required from Developer if the
Escrowed Funds in the Phase Three Escrow are less than the cost of the Phase Three
work.
7. Disbursement of Escrow Funds. The Escrow Funds shall be held and disbursed by
Escrow Agent to pay for the respective costs of the Phase Two and Phase Three work, as
the case may be. From time to time, but no more frequently than monthly, and promptly
upon receipt by Escrow Agent from Town of a request for funds (which requests shall
include invoices, contracts or other evidence that a payment is due towards the
construction of the Phase Two and Phase Three work, as the case may be), Escrow Agent
shall release to the Town -authorized requestor from the Escrowed Funds (the Phase Two
Escrow or the Phase Three Escrow, as the case may be) the amount requested. The
portions of this Agreement applicable to the Phase Two work and the Phase Two Escrow
will terminate upon the final disbursement of the Phase Two Escrow funds by the Escrow
Agent or the satisfactory completion of the Phase Two work and its final acceptance by
the Town whichever is later. The portions of this Agreement applicable to the Phase
Three work and the Phase Three Escrow will terminate upon the final disbursement of
the Phase Three Escrow funds by the Escrow Agent or the satisfactory completion of the
Phase Three work and its final acceptance by the Town whichever is later.
8. Duties of Escrow Agent. Escrow Agent shall act as escrow agent hereunder.
Simultaneously with the execution of this Agreement, Developer shall pay to Escrow
Agent the sum of no dollars ($0.00) for the performance of Escrow Agent's obligations
under this Agreement. Escrow Agent shall not be liable for any act or thing done or
caused to be done, directly or indirectly, by him under or pertaining to this Agreement or
the Escrow Funds, except for the gross negligence or willful misconduct of Escrow
Agent. In the event of any conflicting demands made upon Escrow Agent, he may
withhold his performance under this Agreement until said conflicting demands are
withdrawn or until the rights of the respective parties have been settled by a court of
competent jurisdiction, as evidenced by an executed judgment that is final and non -
appealable.
9. Resignation of Escrow Agent. Escrow Agent may resign as Escrow Agent under this
Agreement by giving written notice to Developer and Town, in accordance with the
provisions of this Agreement at least thirty (30) days prior to the effective date of such
resignation. Thereafter, Escrow Agent shall deliver to Town and Developer, jointly, any
remaining Escrow Funds held pursuant to this Agreement upon the joint written and
signed order of Developer and Town. If no such order is received by Escrow Agent
within thirty (30) days after the giving of such notice, Escrow Agent is authorized and
empowered to deposit the Escrow Funds into the registry of a court of competent
jurisdiction. Upon the effective date of the resignation of Escrow Agent and delivery of
the Escrow Funds in accordance with this section, Escrow Agent shall have no further
obligations, duties and/or liabilities with regard to this Agreement.
10. Removal of Escrow Agent. Developer and Town may jointly remove Escrow Agent,
with or without cause, and appoint a substitute escrow agent or otherwise designate the
disposition of the Escrow Funds without additional formality other than giving written
notice to Escrow Agent at Escrow Agent's address set forth below in which event Escrow
Agent shall deliver the Escrow Funds in accordance with the joint written and signed
instructions of Developer and Town and shall thereupon be deemed to be removed as of
the date designated in such notice, or if no date is designated, as of the date such delivery
is made. Upon the effective date of the removal of Escrow Agent and delivery of the
Escrow Funds in accordance with this paragraph, Escrow Agent shall have no further
obligations, duties and/or liabilities with regard to this Agreement.
11. Miscellaneous Provisions.
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 the receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
If to Town: Town of Prosper
Attention: Town Manager
121 W. Broadway, P.O. Box 307
Prosper, Texas 75078-0307
With Copy to: Abernathy, Roeder, Boyd and Joplin, P.C.
Attention: Rebecca Brewer
1700 Redbud Blvd., Suite 300
McKinney, Texas 75070-1210
If to Developer: Custer -Prosper LP
c/o Cross Development
Attention: Steve Rumsey
One Bent Tree Tower
16475 N. Dallas Parkway, Suite 550
Addison, Texas 75001
With Copy to: Robert L. Trimble, Esq.
8333 Douglas Ave., Suite 1350
Dallas, TX 75225
If to Escrow Agent: Matthew Garrett
121 W. Broadway
P.O. Box 307
Prosper, Texas 75078-0307
b. Entire Agreement. 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.
c. Venue. This Agreement shall be construed in accordance with the laws of the
State of Texas and shall be performable in Collin County, Texas.
d. Consideration. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the sufficiency of which is
forever confessed.
e. 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.
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 an 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. Savings/Severability. 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 if such invalid,
illegal or unenforceable provision had never been contained herein.
h. Representations. Each signatory represents this Agreement has been read by the
party for which this Agreement is executed and that such party has had an
opportunity to confer with its counsel.
i. Miscellaneous Drafting 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.
j. Sovereign Immunity. Except for its obligations hereunder, the parties agree that
Town has not waived its sovereign immunity by entering into and performing its
obligations under this Agreement.
k. Assignment. Except as otherwise stated herein, this Agreement or any part
thereof shall not be assigned or transferred by any party without the prior written
consent of the other party. The Developer, however, may assign this Agreement
to any entity or person who purchases all or any portion of the Property from the
Developer (the "Purchaser") upon the following conditions:
i. the assignment of this Agreement must be evidenced by a written document,
which is subject to the reasonable review and approval ofthe Town (Town
shall respond within thirty (30) days after its receipt);
I at the time of any assignment, the Developer must give written nofrethat
any and all obligations, covenants and/or conditions contained in this
Agreement will be assumed solely and completely by the Purchaser, and
the Purchaser will assume same in writing;
iii. the Developer shall provide the Town with the name, address, phone
number, fax number and the name of a contact person for the
Purchaser.
1. Waiver. Waiver by either party of any breach of this Agreement, or the failure of
either party to enforce any of the provisions of this Agreement, at any time, shall
not in any way affect, limit or waive such parry's right thereafter to enforce and
compel strict compliance.
in. Reference to Developer. When referring to "Developer" herein, this Agreement
shall refer to and be binding upon Developer, and its successors and assignees.
n. No Third Party 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.
o. Attorney's Fees. In any legal proceeding brought to enforce the terms of this
Agreement, the prevailing party may recover its reasonable and necessary
attorney's 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.
p. Incorporation 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 Town
and Developer.
IN WITNESS WHEEOF, the parties have executed this Agreement to be effective the
day of 92008.
Developer:
Custer -Prosper, L.P., a Texas
limited partnership
By: Cross Development Prosper-Catlyn, L.P.,
a Texas limited partnership,
its general partner
By: Cross Development Prosper-Catlyn
Attest:
UZ
GP, LLC, a Texas limited liability
company, its general partner
Steve Rumsey, Vice President
Town:
Town of Prosper, Texas
Matthew Denton, Town Secretary Mike Land, Town Manager
Approved as to form:
Abernathy Roeder Boyd & Joplin P.C.
Rebecca Brewer, Town Attorney
Escrow Agent:
Matthew Garrett
Finance Director, Town of Prosper
Exhibit "A"
(Property Description)
STATE OF TEXAS §
COUNTY OF COLLIN §
WHEREAS, Custer -Prosper, L.P. is the owner of a tract of land situated in the City of Prosper, Collin County,
Texas out of the Jeremiah Horn, Abstract No. 411 and being al 1 of a 39.8517 acre tract of land conveyed to
Custer -Prosper, L.P. according to the deed filed for record in County Clerk's File Number
20070423000540690, Deed Records, Collin County, Texas and being more particularly described by metes
and bounds as follows:
BEGINNING at a 5/8" iron rod found in the north right of way line of U.S. Highway 3 80 (variable -width right
of way), the most southerly southeast corner of said 39.5817 acre tract;
THENCE, along said north right of way line, the south line of said 39.8517 acre tract, South 87 degrees 25
minutes 28 seconds West, a distance of 343.74 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 89 degrees 10 minutes 04 seconds West, a distance of
545.75 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 89 degrees 18 minutes 42 seconds West, a distance of
444.58 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, North 69 degrees 03 minutes 20 seconds West, a distance of
60.54 feet to a 5/8" iron rod found;
THENCE, continuing along said common line, South 74 degrees t2 minutes 42 seconds West, a distance of
45.03 feet to a point in a drainage ditch, the southwest corner of said 39.851 7 acre tract;
THENCE, departing said common line, and along the west line of said 39.8517 acre tract, North 11 degrees 22
minutes 46 seconds West, a distance of 458.07 feet to a point;
THENCE, continuing along said west line, North 26 degrees 49 minutes 38 seconds East, a distance of359.64
feet to a point;
THENCE, continuing along said west line, North 07 degrees 39 minutes 59 seconds East, a distance of 376.71
feet to a point, the northwest corner of said 39.8517 acre tract;
THENCE, along the north line of said 39.8517 acre tract, North 89 degrees 10 minutes 00 seconds East, a
distance of 1,393.69 feet to the northeast corner of said 39.8517 acre tract, lying in the west right of way line of
Custer Road (F.M. 2478) (variable width right of way), a point from which a 5/8' iron rod found bears North
20 degrees 05 minutes, 00 seconds, West, a distance of 0.39 feet;
THENCE, along said west right of way line, the east line of said 39.8517 acre tract, South 00 degrees 50
minutes 00 seconds East, a distance of 1046.68 feet to a point from which a concrete monument found with
brass disk stamped "Geological Survey Benchmark" bears South 05 degrees 43 minutes, 00 seconds, East, a
distance of 1.63 feet, the most easterly southeast corner of said 39.5817 acre tract, the beginning of a corner
clip;
THENCE, along said corner clip, South 44 degrees 55 minutes 12 seconds West, a distance of 138.00 feet to
the POINT OF BEGINNING, and containing 1,735,940 square feet or 39.8517 acres of land, more or less.
Exhibit "B"
KeNNEDY CONSUVINr
April 25,,2009
Mr. Kevin Wiles
Cross Development
16475 N. Dallas Pkwy
Addison, TX 75001
Ite: Proposil for Civil Engineering Services
Prosper Development —Turn Lane Design
Dear Kevin:
Sulu 101
1871 HP,roun Avon•
#4danney, T*Xas
75669
TU 972 $42 1754
FAX 972 5292294
We appreciate the- opportunity to provide our services for your new Prosper Plaza turn lanes on
FM 2478 (Custer Road) and US 380 in the Town of Prosper. Based on our ftNitiiiarity with the
site and 'NDOT design criteria, we prepared the following Scope of Services for your
consideration:
SCOPE OF SERVICES
Development Coordination — Kennedy Consulting, Ltd. (KCI) will coordinate with RKM
Consulting Engineers, Inc. and nny other consultants as necessary to finalize the design
of various turn lanes on Custer Road and US 380 (Phase Two: two (2) lell turn lanes and
Phase Three: two (2) right lum lanes). We will attend meetings with Ihe'rown of Prosper
(Town) and the'NDOT Collin County Area Office (TxD01), if necessary to finalize the
construction drawings. Although no utility design or penniuing is being provided by
KCI under this agreement, we will coordinate with the client and private utility
companies regarding any potential utility conflicts within the construction limits of this
project.
2. Infrastructure Design — In accordance with the proposed phasing of constriction for the
required Town of Prosper turn lane improvements near Prosper Plaza (NWC US 380 /
PM 2478), KCI shall perronn the following tasks:
PHASE ONE (BY 07 HERS).- With the development of the NW corner of US 380 and FA4
2478, the lmp•ovenents listed below will be designed and constructed by others:
FX 2478
w Right turn at the northern entrance
US 380
■ W limn lane muriphig at the western entrance
■ Right turn lane at the western entrance
■ Left turn lane restilping at the nwin divided entrance
10ENNEDY CONSULTING
Mr. Kevin Wiles
April 25, 2008
Page 2of4
PHASE TWO: With the US 380 / FM 2478 Intersection hnprovements Project, the
improvement listed below will be designed by KCI and constructed by others:
FM 2478
• Left turn lane at the main divided entrance
US 380
• Left turn lane reconstruction at the main divided entrance (with Intersection
Improvement Project)
KCl will prepare and / or revise detailed engineering plans for construction of these two
left turn lanes under the current TxDOT-Custer Road project (approximated at 14 sheets).
P14AS13 THREE: Immediately preceding the US 380 / FM 2478 Intersection
Improvements Project, the improvement listed below will be designed by KCI and
constructed by others:
I.M ?A7.ii
• Right turn at the maim divided entrance
US 380
• Right turn land at the main divided entrance
KCI will prepare detailed engineering plans and estimates for these two right turn lanes
under a separate sland alone plan set for construction by others (approximated at 30
sheets). The stand alone right turn lane construction plans will inchude general notes,
dimension control, grading, existing utility locations (horizontal only), storm sewer,
drainage, miscellaneous details, proposed cross sections, paving and erosion control
plans.
3. Reimbursable Expenses —Reimbursable expenses include outside services not performed
by KCI personnel. These services typically Include, but are not limited to reproduction,
deliveries, and any review or permit fees not paid directly by Cross Development. We
have included an estimate of anticipated reimbursable costs for budgeting purposes.
KENNrCW CONSULTING
CONDMONS OF PROPOSAL
Mr, Kevin Wiles
April 25, 2008
Page 3 of 4
i
This proposal is limited in Scope and Fee and is based on the following conditions:
1. Upon final approval of the turn lane design and drawings by the Town and TxDOT,
services will be considered rendered and no other services are intended.
2. Any services performed and not described in the Scope of Services shall be considered
Additional Services and shall be performed on an hourly rate basis as authorized or
otherwise negotiated with you.
3. Our design shall be based on the final Prosper Plaza site plan as approved by Cross
Development and final construction documents from the adjacent TxDOT improvements.
Revisions to construction plans resulting from site plan revisions, either during or after
the plans have been completed, shall be considered an Additional Service.
4. Our scope does not include any variances to Town or District criteria. Coordination of
any variance requests shall be considered an Additional Service.
5. Landscape design is not included in our proposal.
6. Separate instrument easement documents and legal descriptions are not anticipated and
not included in our scrape. If required, separate instrument easements will be prepared as
an Additional Service.
7. Off -site infrastructure, including pavement extensions, is not anticipated and is not
included in our scope.
8. Our design shall be based on a geotechnical report, if necessary, to be provided by the
developer.
9. Construction phase services shall be considered as an Additional Service and shall be
performed on an hourly basis.
KENNEDY CONSULTINO
CLOSURE
Mr. Kevin Wiles
April 25, 2008
Page 4 of 4
In consideration of the defined Scope, we prepared the attached Schedule of Professional Pees.
Lump Sum fees shall he payable on n monthly basis as determined by the percentage of
completion of the work during the billhig period and such billings will be due and payable within
25 clays. Hourly fees shall be based on our Schedule of Hourly Rates attached, which is subject
to annual revision. Proposed fees do not include the amount of any excise, VAT, gross receipts,
or sales tax that may be imposed. Any required taxes will be added to our invoices accordingly.
This agreement shall be subject to our Standard Provisions attached. 'the proposed fees shall be
considered for the entire Scope of Services. Should you wish to contract with us for only a
portion of the work, we reserve the right to negotiate individual Scope items on their own merits.
This proposal shall be valid for sixty (60) days and may be extended upon our approval.
We look for.vard to helping you make this a successfld project. This letter shall be considcred a
notice to proceed upon authorized signature below and return of one copy to our office. Please
call if you have any questions.
Sincerely,
Kurt W. Aungst, P
Sr. Associate of G.P.
Kennedy Consulting, Ltd
By: O'Malley -Chick, LLC (as GP)
Attachments: Schedule of Professional Fees
KCI Standard Provisions
KCI Standard Rate Schedule
AGREED AND ACCEPTED:
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KENNEDY CONSULnNG
KENNEDY CONSULTING LTD
STANDARD PROVISIONS
(1) Consultant's Scope of Services: The Consultant's undertaking to perform professional services extends only to the services
specifically described in this Agreement. However, if requested by the Client and agreed to by the Consultant, the Consultant will
perform additional services ("Additional Services') hereunder. The Consultant is also authorized, but not required, to perform
Additional Services for services deemed appropriate by the Consultant in response to emergencies, unanticipated actions by the
Client's contractors, revised regulations, or requirements of authorities, if advance authorization cannot be obtained. The
Consultant will notify the Client as soon as practical of the inception of such Additional Services.
(2) Client's Responsibilities In addition to other responsibilities described herein or imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority
to transmit instructions, receive information, and make or interpret the Clients decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project including all
numerical criteria that are to be met and all standards of development, design, or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably
necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements,
zoning or other land use regulations, etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services.
(a) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of the Consultant.
(1) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents
from other parties as may be necessary for completion of the Consultants services.
(g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client
may require or the Consultant may reasonably request.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and
timing of the Consultant's services or any defect or noncompliance in any aspect of the project.
(i) Bear all costs incident to the responsibilities of the Client.
(3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of
this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions
permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as
necessary for delays or suspensions due to any circumstances that the Consultant does not control. Such a delay or suspension shall
not terminate this Agreement unless the Consultant elects to terminate pursuant to other provisions of this Agreement. If such delay
or suspension extends for more than six months (cumulatively), the rates of compensation provided for in this Agreement shall be
renegotiated.
(4) Compensation for Additional Services Unless otherwise agreed to in writing, the Client shall pay the Consultant for the
performance of any Additional Services certain direct expenses including duplicating, mileage, express delivery, and other direct
expenses at 1.15 times cost. Technical use of computers for design, analysis, and graphics, etc., will be billed at $20.00 per hour.
(5) Method of Payment Compensation shall be paid to the Consultant in accordance with the following provisions:
(a) Invoices will be submitted by the Consultant to the Client periodically for services performed and expenses incurred. Payment
of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all taxes, if any, whether state,
local, or Weral, levied with respect to amounts paid hereunder. Interest will be added to accounts not paid within 25 days at 12%
per annum beginning on the 25th day. The Consultant shall be compensated in U.S. dollars. If the Client fails to make any payment
due the Consultant for services and expenses within 30 days after the Consultant's transmittal of its invoice, the Consultant may,
after giving 7 days' written notice to the Client, suspend services under this Agreement until all amounts due are paid in full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the
invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.
(c) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable
attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost, at the
Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees.
(d) The Client agrees that the payment for services rendered and expenses incurred by the Consultant pursuant to this Agreement is
not subject to any contingency or condition.
(6) Use of Documents: All documents, including but not limited to drawings, specifications and data or programs stored
electronically, prepared by the Consultant are related exclusively to the services described in this Agreement. They are not intended
or represented to be suitable for partial use or reuse by the Client or others on extensions of this project or on any other project. Any
modifications made by the Client to any of the Consultant's documents, or any partial use or reuse of the documents without written
authorization or adaptation by tine Consultant will be at the Client's sole risk and without liability or legal exposure to the
Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses,
including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the Consultant to
further compensation at rates to be agreed upon by the Client and the Consultant.
(7) Opinions of Cost Because the Consultant does not control the cost of labor, materials, equipment or services furnished by
others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but
not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its
judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee
that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of
any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation
established by the Client will be paid for as Additional Services.
(8) Termination The obligation to provide further services under this Agreement may be terminated by either party upon seven
days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no
fault of the terminating party. In the event of any termination, the Consultant shall be paid for all services rendered and expenses
incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such
termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the
total fee based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount
of services which were to have been performed, less prior partial payments.
(9) Insurance The Consultant is protected by Workers' Compensation insurance, professional liability insurance, and general
liability insurance for bodily injury and property damage and will exchange certificates of insurance upon request. If the Client
directs the Consultant to obtain increased insurance coverage, or if the nature of the Consultant's activities requires additional
insurance coverage, the Consultant will take out such additional insurance, If obtainable, at the Clients expense.
(10) Liability In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised,
under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No
warranty, express or implied, Is made or intended by the Consultant's undertaking herein or its performance of services, and it is
agreed that the Consultant Is not a fiduciary with respect to the Client. To the fullest extent of the law, and notwithstanding any
other provisions of this Agreement, the total liability, in the aggregate of the Consultant and the Consultants officers, directors,
employees, agents, and sub -consultants to the Client or to anyone claiming by, through or under the Client, for any and all claims,
losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under this Agreement from
any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of
contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and sub -
consultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever
is greater. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other
consequences due to changed conditions or for costs related to the failure of contractors to perform work in accordance with the
plans and specifications.
(11) Certifications The Consultant shall not be required to execute any certifications or other documents that in any way might, in
the judgment of the Consultant, increase the Consultant's risk or affect the availability, applicability, or cost of its insurance.
(12) Expenses of Litigation If litigation or arbitration related to the services performed is initiated against the Consultant by the
Client, its contractors, or subcontractors, and such proceeding concludes with the entry of a judgment or award favorable to the
Consultant, the Client shall reimburse the Consultant its reasonable attorneys' fees, reasonable experts' fees, and other expenses
related to the proceeding. Such expenses shall include the cost, determined at the Consultants normal hourly billing rates, of the
time devoted to the proceedings by the Consultants employees.
(13) Dispute Resolution All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation
in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a condition precedent to
litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted
but in no event later than allowed by applicable statutes.
(14) Hazardous Substances and Conditions
(a) Unless stated in the scope of services, it is agreed that the Client does not request the Consultant to perform any services or to
make any determinations involving hazardous substances or conditions, as defined by federal or state law. If such services are
agreed to, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous
substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting,
including, when agreed to, plans and specifications for isolation, removal, or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services of which
the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its
services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to proceed with its
services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional
scope, fee, and terms for such services.
(c) Except to the extent of negligence, if any, on the part of the Consultant in performing services expressly undertaken in
connection with hazardous substances and conditions, the Client agrees to hold harmless, indemnify, and defend the Consultant
from and against any and all claims, losses, damages, liability, and costs in any way arising out or connected with the presence,
discharge, release, or escape of hazardous substances or conditions of any kind, or environmental liability of any nature, in any
manner related to services of the Consultant.
(15) Construction Phase Services
(a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not retained
to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction
observation, and the Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means,
methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant
have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of
endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform
to the construction documents prepared by the Consultant. Consultant neither guarantees the performance of contractors, nor
assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents.
(c) The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site
safety and for its means and methods, that the contractor shall indemnify the Client and the Consultant for all claims and liability
arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's
general liability insurance policy.
(16) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone other than the Client and the
Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and
the Consultant. Neither the Client nor the Consultant shall assign or transfer any rights under or interest in this Agreement without
the written consent of the other. However, nothing herein shall prevent or restrict the Consultant from retaining independent
professional associates, sub -consultants, and suppliers as the Consultant may deem appropriate.
(17) Confidentiality The Client consents to the use and dissemination by the Consultant of photographs of the project and to the
use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any
facts, data or Information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care
to maintain the confidentiality of that material.
(18) Miscellaneous Provisions This Agreement is to be governed by the law of the State of Texas. This Agreement shall bind, and
the benefits thereof shall inure to, the parties hereto, their legal representatives, executors, administrators, successors and assigns.
This Agreement contains the entire and fully integrated agreement between the parties, and supersedes all prior and
contemporaneous negotiations, representations, agreements or understandings, whether written or oral. This Agreement can be
supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or
additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. Any
provision in this Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any
other jurisdiction. The non -enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it
affect the enforceability of that provision or of the remainder of this Agreement.
KENNEDY CONSULTING
Kennedy Consulting, Ltd.
2008 HOURLY BATE SCHEDULE
Labor Classification
Hourly
Rate
Principal
$
175.00
Project Manager
$
150.00
Professional
$
125.00
Professional
$
95.00
Technician 2
$
90.00
Technician 1
$
75.00
Clerical
$
45.00
Effective January 1, 2008
Subject to Annual Revislon
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TOWN OF PROSPER, TEXAS
RESOLUTION NO.
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 INTERLOCAL
COOPERATIVE AGREEMENT REGARDING THE CONSTRUCTION OF
VARIOUS TURN LANES AT THE NORTHWEST CORNER OF US
HIGHWAY 380 AND FM 2478, CUSTER ROAD (FM 2478) FROM
STONEBRIDGE DRIVE TO US 380 IMPROVEMENTS, BY AND
BETWEEN THE CITY OF MCKINNEY 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, an Interlocal
Cooperative Agreement regarding the construction of various turn lanes at the northwest
corner of US Highway 380 and FM 2478, Custer Road (FM 2478) from Stonebridge
Drive to US 380 Improvements, by and between the City of McKinney and the Town of
Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 26h day of August, 2008.
Charles Niswanger, Mayor
ATTEST TO:
Matthew Denton
Town Secretary
p
TOWN
;ISPER
To: Mayor and Town Council
ENGINEERING
From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
CC: Mike Land, Town Manager
Re: Town Council Meeting — August 26, 2008
Date: August 21, 2008
Agenda Item:
Consider and act upon 1) an Interlocal Cooperation Agreement between Denton County and the
Town of Prosper regarding the maintenance of roads in Denton County and 2) adopt a
resolution authorizing the Town Manager to execute the same.
Description of Agenda Item:
With the recent annexation of the Mahard Ranch development, multiple roadways previously
located within the jurisdiction of Denton County are now located within the city limits of the Town
of Prosper. In order to clarify the maintenance responsibility of these roadways, Denton County
has requested that the Town of Prosper enter into an Interlocal Cooperation Agreement to
specify the sections of roadways that will be maintained by the Town of Prosper.
Included in the Interlocal Cooperation Agreement is an exhibit that clearly identifies the sections
of roadways that will be maintained by the Town of Prosper, Denton County, and the Texas
Department of Transportation and is summarized below:
Town of Prosper
• Parvin Road: From Good Hope Road to Legacy Drive
• Prosper Trail: From Good Hope Road to Legacy Drive
• Fishtrap Road: From approximately 3,300 feet east of FM 1385 to Legacy Drive
• Gee Road: From US 380 to Fishtrap Road
• Good Hope Road: From US 380 to Parvin Road
• Fields Road: From US 380 to Prosper Trail
• Legacy Drive: From US 380 to Parvin Road
Denton County
Parvin Road: From FM 1385 to Good Hope Road
Fishtrap Road: From FM 1385 to approximately 3,300 feet east of FM 1385
Texas Department of Transportation:
• US 380: From FM 1385 to Legacy Drive
• FM 1385: From US 380 to Parvin Road
Agenda Item No. 12 - Page 1 of 2
Budaet Impact:
The addition of these roadways to the Town infrastructure will increase the Public Works Street
Departments operation and maintenance budget. The exact costs are unknown at this time.
Lenal Obilaations and Review:
The Interlocal Cooperation Agreement was review and approved by the Town Attorney.
Attached Documents:
The following documentation is being provided for review:
• Interlocal Cooperation Agreement
• Resolution authorizing the Town Manager to execute the agreement
Board. Committee and/or Staff Recommendation:
Town staff recommends that the Town Council: 1) approve an Interlocal Cooperation
Agreement between Denton County and the Town of Prosper regarding the maintenance of
roads in Denton County and 2) adopt a resolution authorizing the Town Manager to execute the
same.
Agenda Item No. 12 - Page 2 of 2
THE STATE OF TEXAS §
COUNTY OF DENTON §
INTERLOCAL COOPERATION AGREEMENT BETWEEN
DENTON COUNTY, TEXAS, AND THE TOWN OF PROSPER, TEXAS
THIS AGREEMENT is made and entered into by and between Denton County,
Texas, a political subdivision of the State of Texas, hereinafter "the County," and the
Town of Prosper, Texas, a corporate and political body duly organized and existing under
the laws of the State of Texas, hereinafter "the Town." The County and the Town are
both collectively referred to herein as "the Parties." This Agreement is for the purpose of
performing maintenance on certain roads, as described in attached Exhibit "A,"
hereinafter "the Project."
WHEREAS, the County and the Town mutually desire to be subject to the
provisions of Texas Government Code Chapter 791, the Interlocal Cooperation Act,
which provides authorization for a local government to contract with one or more local
governments to perform governmental functions and services under the terms of the Act;
and
WHEREAS, the roads involved in the Project are an integral part of the road
system of the County and the Town; and
WHEREAS, the boundary line between unincorporated Denton County and the
corporate limits of the Town of Prosper runs down the centerline of some roads and
divides other roads in half, and
WHEREAS, the County and the Town propose to divide the maintenance of the
roads indicated on attached Exhibit "A;" and
WHEREAS, maintenance shall include, but not be limited to, general road
maintenance according to the established standards of the County and the Town,
including pothole patching, mowing, tree trimming, ditch work and trash pick-up; and
NOW, THEREFORE, the County and the Town, for the mutual consideration
stated herein, agree and understand as follows:
Interlocal Cooperation Agreement — Town of Prosper Page 1 of 8
WITNESSETH:
I.
The term of this Agreement shall be for a term of one year beginning on October
1, 2008.
II.
Pursuant to Texas Government Code § 791.011, the Parties hereto agree that the
purpose of this Agreement is to ensure that certain governmental functions and services
in the area of streets, roads and drainage are performed. The Parties further agree that
each of them is authorized to perform the functions and services individually.
III.
The County and the Town propose to divide the maintenance of the roads in
attached Exhibit "A" as depicted by the legend in attached Exhibit "A," which right-of-
way is bisected by the boundary line between the unincorporated area of the County and
the corporate limits of the Town. The County will provide funding for and maintain the
entire right-of-way along its designated section of the roads in attached Exhibit "A,"
including the portion of the right-of-way that is located in the Town of Prosper. The
Town will provide funding for and maintain the entire right-of-way along its designated
section of the roads in attached Exhibit "A," including the portion of the right-of-way
that is located in the unincorporated area of Denton County. This exchange of in -kind
services is deemed adequate consideration for the obligations exchanged by the parties
herein.
IV.
The County agrees and understands that the County, its employees, servants,
agents and representatives shall at no time represent themselves to be employees,
servants, agents and/or representatives of the Town.
V.
The Town agrees and understands that the Town, its employees, servants, agents
and representatives shall at no time represent themselves to be employees, servants,
agents and/or representatives of the County.
Interlocal Cooperation Agreement — Town of Prosper Page 2 of 8
VI.
The County agrees to accept full responsibility for the acts, negligence and/or
omissions of all County employees, agents, subcontractors and/or contract laborers and
for those of all other persons doing work under a contract or agreement with the County.
VII.
The Town agrees to accept full responsibility for the acts, negligence and/or
omissions of all Town employees, agents, subcontractors and/or contract laborers and for
those of all other persons doing work under a contract or agreement with the Town.
VIII.
This Agreement is not intended to extend the liability of the Parties beyond that
provided by law. Neither the County nor the Town waive, nor shall be deemed to have
hereby waived, any immunity or defense that would otherwise be available to it against
claims made by third parties.
IX.
The validity of this Agreement and of any of its terms or provisions, as well as the
rights and duties of the Parties hereto, shall be governed by the laws of the State of
Texas. Further, this Agreement shall be performable in Denton County, Texas.
X.
In the event that any portion of this Agreement shall be found to be contrary to
law, it is the intent of the Parties hereto that the remaining portions shall remain valid and
in full force and effect to the extent possible.
XI.
The undersigned officer and/or agents of the Parties hereto are the properly
authorized officials and have the necessary authority to execute this Agreement on behalf
of the Parties hereto, and each party hereby certifies to the other that any necessary
resolutions extending said authority have been duly passed and are now in full force and
effect.
MI.
This Agreement represents the entire agreement between the County and the
Town and supersedes all prior negotiations, representations and/or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by
Interlocal Cooperation Agreement — Town of Prosper Page 3 of 8
the governing bodies of both the County and the Town or those authorized to sign on
behalf of those governing bodies.
XIII.
This Agreement becomes effective when signed by the last party whose signing
makes the respective agreement fully executed.
XIV.
This Agreement may be terminated in whole or in part by the County or the Town
upon thirty (30) days written notice to the other party at any time, with or without cause.
No such termination may be affected unless the party is given [1] written notice delivered
via certified mail, return receipt requested, of intent to terminate, and [2] an opportunity
for consultation with the terminating party prior to termination. Notices shall be directed
as follows:
For Town: Honorable Charles Niswanger
Mayor of the Town of Prosper, Texas
P.O. Box 307
Prosper, Texas 75078
Copy To: Mike Land, Town Manager
Town of Prosper, Texas
P.O. Box 307
Prosper, Texas 75078
For County: Honorable Mary Horn
Denton County Judge
110 West Hickory Street, 2"d Floor
Denton, Texas 76201
Copy To: Denton County Criminal District Attorney's Office
Civil Division
P.O. Box 2850
Denton, Texas 76201
Interlocal Cooperation Agreement — Town of Prosper Page 4 of 8
EXECUTED this day of
DENTON COUNTY, TEXAS
110 West Hickory Street, 2nd Floor
Denton, Texas, 76201
Honorable Mary Horn
Denton County Judge
Acting on behalf and by the authority of
the
Denton County Commissioners Court
ATTEST:
Denton County Clerk
APPROVED AS TO FORM:
La-fi
Assistant District Attorney
2008.
TOWN OF PROSPER, TEXAS
P.O. Box 307
Prosper, Texas 75078
By:
Honorable Charles Niswanger
Mayor of the Town of Prosper, Texas
Acting on behalf and by the authority of
the
Town of Prosper, Texas
ATTEST:
Town Secretary
APPROVED AS TO FORM:
an
Town Attorney
Interlocal Cooperation Agreement — Town of Prosper Page 5 of 8
COUNTY AUDITOR'S CERTIFICATE
I hereby certify funds will be available to accomplish and pay the obligation of
Denton County, Texas, under this Agreement.
County Auditor
TOWN AUDITOR'S CERTIFICATE
I hereby certify funds will be available to accomplish and pay the obligation of
the Town of Prosper, Texas, under this Agreement.
Town Auditor
Interlocal Cooperation Agreement — Town of Prosper Page 6 of 8
APPROVAL OF INTERLOCAL COOPERATION AGREEMENT
Denton County, Texas, acting by and through the Denton County Commissioners
Court, and the Town of Prosper, Texas, acting by and through the Prosper Town Council,
having been advised of the Project requiring the assignment of responsibility and
obligation for road maintenance to certain roads described and depicted in attached
Exhibit "A," which right-of-way is bisected by the boundary line between the
unincorporated area of Denton County and the corporate limits of the Town of Prosper,
herein gives their specific written approval of the Project prior to beginning the Project in
satisfaction of the requirements of Texas Government Code Chapter 791, the Interlocal
Cooperation Act, and specifically Texas Government Code § 791.014.
The description of the Project to be undertaken and its location are as follows:
assignment of responsibility and obligation for road maintenance of the roads described
in attached Exhibit "A," which right-of-way is bisected by the boundary line of
unincorporated Denton County and the corporate limits of the Town of Prosper.
The local governments which requested the project and with whom the agreement
is by and between are Denton County, Texas, and the Town of Prosper, Texas.
By vote on the date below, the Denton County Commissioners Court and the
Prosper Town Council have approved the project identified above and authorized
execution of this document by the presiding officer of each governmental body.
Date: Date:
LIM
Presiding Officer of the Presiding Officer of the
Denton County Commissioners Court Prosper Town Council
Interlocal Cooperation Agreement — Town of Prosper Page 7 of 8
EXHIBIT "A"
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oil
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Interlocal Cooperation Agreement -- Town of Prosper Page 8 of 8
TOWN OF PROSPER, TEXAS
RESOLUTION NO.
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
INTERLOCAL COOPERATION AGREEMENT REGARDING THE
MAINTENANCE OF ROADS IN DENTON COUNTY, BY AND
BETWEEN DENTON COUNTY 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, an
Interlocal Cooperation Agreement regarding the maintenance of roads in Denton
County, by and between Denton County and the Town of Prosper, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 26th day of August, 2008.
Charles Niswanger, Mayor
ATTEST TO:
Matthew Denton
Town Secretary
p
TOWN
;1SPER
To: Mayor and Town Council
ENGINEERING
From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
CC: Mike Land, Town Manager
Re: Town Council Meeting — August 26, 2008
Date: August 21, 2008
Agenda Item:
Consider and act upon a change order #1 to JRJ Paving, Inc., for the US 380 / Coit Road Right
Turn Lane Project.
Description of Agenda Item:
At the July 22, 2008, Town Council Meeting, JRJ Paving, Inc., was awarded a contract in the
amount of $75,028.39 to construct a dedicated right turn lane at Coit Road along US 380 to
facilitate the new middle school along Coit Road north of US 380.
During the construction of the project it was discovered by the TxDOT inspector that the existing
shoulder texturing/rumble strip needs to be removed. Since the removal of this texturing was not
included in the construction plans prepared by TxDOT, the cost for this removal was not a part of
the original contract. This change order will facilitate removal of the texturing by milling out a 2 foot
wide swath at a depth of 1.5 inches.
Budget Impact:
The $4,319.07 cost for the change order is unfunded.
Legal Obiloations and Review:
No legal review of this request by the Town's Attorney is required.
Attached Documents:
The following documentation is being provided for review:
• Change Order #1
Board. Committee and/or Staff Recommendation:
Town staff recommends that the Town Council approve the Change Order #1 in the amount of
$4,319.07 to JRJ Paving, Inc., for the US 380 / Coit Road Right Turn Lane Project.
Agenda Item No. 13 - Page 1 of 1
CERTIFICATE OF INSURANCE ISSUE DA DD/YY)
8/18/OS18/08
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
PASCHALL WALLACE INSURANCE GROUP LLC
EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
3308 FORT WORTH HWY
WEATHERFORD, TX 76087
COMPANIES AFFORDING COVERAGE
COMPNY A SCOTTSDALE INSURANCE COMPANY
LETTEINSURED
COMPANY B
LETTER
PONIES & PALS, INC
COMPANY
C
15930 FM 17
LETTER
CANTON, TX 75103
COMPANY
D
LETTER
COMPANY E
LETTER
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED NOTWITHSTANDING ANY REQUIREMENT TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO.
LTR
TYPE OF INSURANCE
POLICY NUDiBER
�LI� EFFECTIVE
DATE D/YY
POLICY EXPIRATION
DATE MM/DD/YY
ALL LIMITS IN THOUSANDS
GENERAL LIABILITY
GENERAL AGGREGATE S 1000
A
® COMMERCIAL GENERAL LIABILITY
PRODUCTS-COMP/OPS AGGREGATE S 1000
❑ CLAIMS MADE ® OCCUR
CLS1479058
4/18/08
4/18/09
PERSONAL& ADVERTISING INJURY S 1000
EACH OCCURRENCE S 1000
❑ OWNER'S& CONTRACTOR'S PROT
FIRE DAMAGE (Any one fire) S 100
❑
MEDICAL EXPENSE (Any one person) S 5
AUTOMOBILE LIABILITY
COMBINED
SMGLE S
❑ ANY AUTO
LI4IT
BODILY
❑ ALL OWNED AUTOS
❑ SCHEDULED AUTOS
INJURY S
(Per person)
BODILY
❑ HIRED AUTOS
❑ NONOWNER AUTOS
INJURY S (Per accident)
❑ GARAGE LIABILITY
PROPERTY
S
El
DAMAGE
EXCESS LIABILITY
EACH AGGREGATE
❑
OCCURRENCE
❑ OTHER THAN UMBRELLA FORM
S S
OTHER
El
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS
CERTIFICATE HOLDER IS LISTED AS AN ADDITIONAL INSURED UNDER THE GL POLICY
CERTIFICATE HOLDER
CANCELLATION
TOWN OF PROSPER
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
121 W BROADWAY
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
PROSPER, TX 75078
MAIL 1 O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
ATTN: KAREN GILL
LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
EVENT DATE: 12/13/08
LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES
AUTHORIZED REPRESENTATIVE
TSU-C1 (4/1/97)
CHANGE ORDER REQUEST
To:
Hulon T. Webb, Jr., Dir. Of Development Svcs.
407 E. First St.
Prosper, Texas 75078
From: JRJ Paving, LP
1805 Royal Lane, Suite 107
Dallas, TX 75229
Original Contract Amount: $75,028.40
Previous Change Orders: 0
Contract Sum: $ 75,028.40
Value of this Change Order: 4319.07
New Contract Sum: $ 79,347.47
The Contract Completion date will change by:
0 DAYS
The Contract is Chanced as Follows:
Change Order Number Chance Order Date:
1 8/15/2008
Protect Name:
Right Turn Lane for US 380 @ Coit Road
Contract for.
Contract Date:
Our Project Code: Architect's Project Number:
28156
Distribute To:
X Owner Contractor Other
Architect X Field Construction Manager
The expected completion date will be:
Per direction by Matt Phillips of TXDOT, The shoulder texturing should be milled out in a 2 foot wide swath at
1.5 inches deep using the following bid item:
Item 354-2041, Plane Asph Conc Pav (1.5"), SY
The fill should be Type C HMAC which has already been set up in the plans for use in the widened portion.
Architect
Signature
Date
rnntrartnr
JRJ Paving, LP
1805 Royal Lane, Suite 107
Dall 75229
/`►' ` zL,,-,
Signature
g-%5--Dg
Date
Owner
Town of Prosper, Texas
407 E. First Street
Prosper, Texas 75078
Signature
Date
ISPER
PLANNING
P
To: Mayor and Town Council
From: Chris Copple, Senior Planner
Cc: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
A public hearing to consider and act upon a request to rezone 11.3t acres, located on the west
side of Coleman Street, 200t feet south of Eagle Lane, from Agricultural (A) to Commercial (C).
(Z08-10).
Description of Agenda Item:
The zoning and land use of the surrounding properties are as follows:
Zoning
Current Land Use
Future Land Use Plan
North
Commercial
Retail
Old Town Core District -
Commercial
East
Single Family-15
Prosper High School
School
South
Single Family-15
Dairy
Old Town Core District -
Manufacturing/Undeveloped
Commercial
West
Planned Development-
Undeveloped
Neighborhood Office
26-Office/Industrial
Requested Zoning — Z08-10 is a request to rezone 11.3t acres, located on the west side of
Coleman Street, 200t feet south of Eagle Lane, from Agricultural (A) to Commercial (C). The
Commercial (C) district allows for the development of commercial, retail, service, and office
uses.
Future Land Use Plan — The Future Land Use Plan (FLUP) recommends Old Town Core District
- Commercial for the property. The zoning request conforms to the FLUP.
Conformance to the Future Thoroughfare Plan — The zoning exhibit complies with the Future
Thoroughfare Plan.
Water and Sanitary Sewer Services — Water and sewer service will have to be extended to the
property either before or with the development.
Agenda Item No. 14 - Page 1 of 2
Access —Access to the property is from Coleman Street.
Schools — This property is located within the Prosper Independent School District (PISD). A
school site is not needed on this property.
Parks — This property is not needed for the development of a park.
Budget Impact:
There are no significant budget implications associated with the approval of this zoning request.
Legal Obligations and Review:
Zoning is discretionary. Therefore, the Town Council is not obligated to approve the request.
Notification was provided to neighboring property owners as required by State law. Town staff
has received one public hearing notice reply form and it is not in opposition to the zoning
request.
Attached Documents:
1. Zoning Exhibit A.
2. Public hearing notice reply form.
Planning & Zoning Commission Recommendation:
At their August 5, 2008 meeting, the Planning & Zoning Commission recommended that the
Town Council approve the request to rezone 11.3t acres, located on the west side of Coleman
Street, 200t feet south of Eagle Lane, from Agricultural (A) to Commercial (C) by a vote of 7-0.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the request to rezone 11.3t acres,
located on the west side of Coleman Street, 200t feet south of Eagle Lane, from Agricultural (A)
to Commercial (C).
Agenda Item No. 14 - Page 2 of 2
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PLANNUNG DEPARTMENT
P.O. Box 307
Prosper, TX 75078
Phone: 972-346-3502
Fax: 972-347-9006
REPLY FORM
SUBJECT:
Zoning Case Z08-10: The Town of Prosper has received an application to rezone 11.3± acres from Agricultural (A)
to Commercial (C).
LOCATION OF SUBJECT PROPERTY:
The property is located 150± feet south of Eagle Way on the west side of Coleman Street. (See exhibit on the back
side of this page).
DESCRIPTION OF THE REQUEST:
The requested zoning would allow for the development of commercial, light intensity wholesale, retail, service, and
office type uses on the property.
❑ I OPPOSE the request as described in the notice of public hearing.
Avo1 DO NOT OPPOSE the request as described in the notice of public hearing.
COMMENTS (ATTACH ADDITIONAL SHEETS IF NECESSARY):
141)2y Co>4rZ _
Name (please print)
&
Address
prmljw 7-<0 >
City, State, a d Zip Code
Signature
Date
E-mail Address
PLANNING
p
T SPER.
To: Mayor and Town Council
From: Chris Copple, Senior Planner
Cc: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
A public hearing to consider and act upon a request to rezone 0.6t acre (508 East Broadway
Street), located on the southwest corner of Broadway Street and Field Street, from Single
Family-15 (SF-15) to Downtown Office (DTO). (Z08-12).
Description of Agenda Item:
The zoning and land use of the surrounding properties are as follows:
Zoning
Current Land Use
Future Land Use Plan
North
Single Family-15
Single Family Residential
Old Town Core District -
Office
East
Single Family-15
Single Family Residential
Old Town Core District -
Office
South
Single Family-15
Single Family Residential
Old Town Core District -
Single Family Residential
West
Single Family-15
Single Family Residential
Old Town Core District -
Office
Reauested Zoning — Z08-12 is a request to rezone 0.6t acre (508 East Broadway Street),
located on the southwest corner of Broadway Street and Field Street, from Single Family-15
(SF-15) to Downtown Office (DTO). The Downtown Office (DTO) district accommodates a
variety of office uses providing for professional, financial, medical, and similar services for local
residents and service uses necessary to support such office uses.
Future Land Use Plan — The Future Land Use Plan (FLUP) recommends Old Town Core District
- Office for the property. The zoning request conforms to the FLUP.
Conformance to the Future Thoroughfare Plan — The zoning exhibit complies with the Future
Thoroughfare Plan.
Water and Sanitary Sewer Services — Water and sanitary sewer service have been extended to
the property.
Agenda Item No. 15 - Page 1 of 2
Access — Access to the property is from Broadway Street and Field Street.
Schools — This property is located within the Prosper Independent School District (PISD). A
school site is not needed on this property.
Parks — This property is not needed for the development of a park.
Budaet Impact:
There are no significant budget implications associated with the approval of this zoning request.
Leaal Oblictations and Review:
Zoning is discretionary. Therefore, the Town Council is not obligated to approve the request.
Notification was provided to neighboring property owners as required by State law. Town staff
has not received any public hearing notice reply forms.
Attached Documents:
1. Zoning Exhibit A.
Plannina & Zonina Commission Recommendation:
At their August 5, 2008 meeting, the Planning & Zoning Commission recommended that the
Town Council approve the request to rezone 0.6t acre (508 East Broadway Street), located on
the southwest corner of Broadway Street and Field Street, from Single Family-15 (SF-15) to
Downtown Office (DTO) by a vote of 7-0.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the request to rezone 0.6t acre (508
East Broadway Street), located on the southwest corner of Broadway Street and Field Street,
from Single Family-15 (SF-15) to Downtown Office (DTO).
Agenda Item No. 15 - Page 2 of 2
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PLANNING
p T SPER.
To: Mayor and Town Council
From: Chris Copple, Senior Planner
Cc: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting — August 26, 2008
Date: August 20, 2008
Agenda Item:
A public hearing to consider and act upon a request to rezone 2.1t acres, located on the
southwest corner of Prosper Trail and Robison Creek Drive, from Single Family-15 (SF-15) to
Single Family-12.5 (SF-12.5). (Z08-13).
Description of Agenda Item:
The zoning and land use of the surrounding properties are as follows:
Zoning
Current Land Use
Future Land Use Plan
North
Planned Development-
Single Family Residential
Medium Density
31-Single Family
Residential
East
Single Family -Estate
Single Family Residential
Medium Density
Residential
South
Single Family -Estate
Single Family Residential
Medium Density
Residential
West
Planned Development-
Single Family Residential
Medium Density
30-Single Family-12.5
Residential
Requested Zoning — Z08-13 is a request to rezone 2.1t acres, located on the southwest corner
of Prosper Trail and Robison Creek Drive, from Single Family-15 (SF-15) to Single Family-12.5
(SF-12.5). The purpose of the zoning request is to allow for the property owner to subdivide the
property into three lots, creating two lots south of the existing house.
Future Land Use Plan — The Future Land Use Plan (FLUP) recommends Medium Density
Residential for the property. Medium Density Residential recommends a density of 2.1 to 3.5
dwelling units per acre. The zoning request conforms to the FLUP.
Conformance to the Future Thoroughfare Plan — The zoning exhibit complies with the Future
Thoroughfare Plan.
Water and Sanitary Sewer Services — Water and sanitary sewer service have been extended to
the property.
Agenda Item No. 16 - Page 1 of 2
Access — Access to the property is from Robison Creek Drive.
Schools — This property is located within the Prosper Independent School District (PISD). A
school site is not needed on this property.
Parks — This property is not needed for the development of a park.
Budget Impact:
There are no significant budget implications associated with the approval of this zoning request.
Legal Obligations and Review:
Zoning is discretionary. Therefore, the Town Council is not obligated to approve the request.
Notification was provided to neighboring property owners as required by State law. Town staff
has received one public hearing notice reply form in opposition to the request.
Attached Documents:
1. Zoning Exhibit A.
2. Public hearing notice reply form.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the request to rezone 2.1t acres,
located on the southwest corner of Prosper Trail and Robison Creek Drive, from Single Family-
15 (SF-15) to Single Family-12.5 (SF-12.5).
Agenda Item No. 16 - Page 2 of 2
F' S
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PTOWN OF
�.
REPLY FORM
PLAMNING 0EPAVTRf,i0k,1r
P.O. Box 307
Prosper, TX 75078
Phone: 972-346-3502
Fax: 972-347-9006
SUBJECT:
Zoning Case Z08-13: The Town of Prosper has received an application to rezone 2.1± acres from Single Family-15
(SF-15) to Single Family-12.5 (SF-12.5).
LOCATION OF SUBJECT PROPERTY:
The property is located on the southwest comer of Prosper Trail and Robison Creek Drive. (See exhibit on the back
side of this page).
DESCRIPTION OF THE REQUEST:
The Single Family-12.5 District is established to provide for development of single family detached dwelling units on
a minimum lot size of twelve thousand five hundred (12,500) square feet.
I OPPOSE the request as described in the notice of public hearing.
❑ I DO NOT OPPOSE the request as described in the notice of public hearing.
COMMENTS (ATTACH ADDITIONAL SHEETS IF NECESSARY):
(N POAIALP S'Ko u1SK`1
Name (please print)
tPAIR6 44*- —STd- 307
Address
.5*6(,UvA1R-7 , LA- 7l (d I
City, State, and Zip Code
�V'
Date '--
R6NgI-KOV4 usKY(P Ml rejry
E-mail Address
ADMINISTRATION
Regular Meeting
Prosper Town Council
August 26, 2008 - 6:00 p.m.
To: Mayor and Town Council
From: Matthew D. Denton, Town Secretary
Xc: Mike Land, Town Manager
Re: Annexation of approximately 11.295 acres of land generally located west of
Coleman Street and +1750' south of Prosper Trail.
Description:
Council accepted the petition for the voluntary annexation of approximately 11.295 acres of land
generally located west of Coleman Street and +1750' south of Prosper Trail at their July 22,
2008 meeting. This is the second of two public hearings required to annex the property.
Following is a service plan for the property.
Recommendation:
Staff recommends that Council receive any input at the public hearing. Following the public
hearing, no Council action is required.
Agenda Item No. 17
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TOWN OF PROSPER, TEXAS
SERVICE PLAN FOR ANNEXED AREA
ANNEXATION ORDINANCE: NO.
DATE OF ANNEXATION ORDINANCE:
ACREAGE ANNEXED:
SURVEY, ABSTRACT & COUNTY:
CURRENT PROPERTY OWNER:
08-XXX
September 9, 2008
Approximately 11.295 acres
Collin County School Land Survey, Abstract No. 147, Collin
County
Charles Winikates
MUNICIPAL SERVICES TO THE ACREAGE DESCRIBED ABOVE SHALL BE FURNISHED BY OR ON BEHALF
OF THE TOWN OF PROSPER, TEXAS, AT THE FOLLOWING LEVELS AND IN ACCORDANCE WITH THE
FOLLOWING SCHEDULE:
A. POLICE SERVICE
PATROLLING, RESPONSES TO CALLS, AND OTHER ROUTINE POLICE SERVICES, WITHIN THE
LIMITS OF EXISTING PERSONNEL AND EQUIPMENT, WILL BE PROVIDED UPON THE
EFFECTIVE DATE OF THE ANNEXATION ORDINANCE.
2. UPON ULTIMATE DEVELOPMENT OF THE AREA, THE SAME LEVEL OF POLICE SERVICE WILL
BE PROVIDED TO THIS AREA AS ARE FURNISHED THROUGHOUT THE TOWN.
B. FIRE SERVICE
1. FIRE PROTECTION AND EMERGENCY AMBULANCE EQUIPMENT BY THE PRESENT
PERSONNEL AND THE PRESENT EQUIPMENT OF THE FIRE DEPARTMENT, WITHIN THE LIMITS
OF AVAILABLE WATER AND DISTANCES FROM THE EXISTING FIRE STATION, WILL BE
PROVIDED TO THIS AREA UPON THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE.
2. UPON ULTIMATE DEVELOPMENT OF THE AREA, THE SAME LEVEL OF FIRE AND
EMERGENCY AMBULANCE SERVICES WILL BE PROVIDED TO THIS AREA AS ARE FURNISHED
THROUGHOUT THE TOWN.
C. ENVIRONMENTAL HEALTH AND CODE ENFORCEMENT SERVICES
1. ENFORCEMENT OF THE TOWN'S ENVIRONMENTAL HEALTH ORDINANCE AND
REGULATIONS, INCLUDED BUT NOT LIMITED TO WEED AND BRUSH ORDINANCES, JUNKED
AND ABANDONED VEHICLE ORDINANCE, AND ANIMAL CONTROL ORDINANCES, SHALL BE
PROVIDED WITHIN THIS AREA 60 DAYS TO THE EFFECTIVE DATE OF THE ANNEXATION
ORDINANCE. THESE ORDINANCES AND REGULATIONS WILL BE ENFORCED THROUGH THE
USE OF EXISTING PERSONNEL.
2. INSPECTION SERVICES, INCLUDING THE REVEIW OF BUILDING PLANS, THE ISSUANCE OF
PERMITS AND THE INSPECTION OF ALL BUILDINGS, PLUMBING, MECHANICAL, AND
ELECTRICAL WORK TO ENSURE COMPLIANCE WITH TOWN CODES AND ORDINANCES WILL
BE PROVIDED WITHIN 60 DAYS OF THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE.
EXISTING PERSONNEL WILL BE USED TO PROVIDE THESE SERVICES.
3. THE TOWN'S ZONING, SUBDIVISION, SIGN, AND OTHER ORDINANCES SHALL BE ENFORCED
IN THIS AREA BEGINNING UPON THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE.
4. ALL INSPECTION SERVICES FURNISHED BY THE TOWN OF PROSPER, BUT NOT MENTIONED
ABOVE, WILL BE PROVIDED TO THIS AREA BEGINNING WITHIN 60 DAYS OF THE EFFECTIVE
DATE OF THE ANNEXATION ORDINANCE.
5. AS DEVELOPMENT AND CONSTRUCTION COMMENCE IN THIS AREA, SUFFICIENT PERSONNEL
WILL BE PROVIDED TO FURNISH THIS AREA THE SAME LEVEL OF ENVIRONMENTAL HEALTH
AND CODE ENFORCEMENT SERVICES AS ARE FURNISHED THROUGHOUT THE TOWN.
D. PLANNING AND ZONING SERVICES
THE PLANNING AND ZONING JURISDICTION OF THE TOWN WILL EXTEND TO THIS AREA
UPON THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE. TOWN PLANNING WILL
THEREAFTER ENCOMPASS THIS PROPERTY, AND IT SHALL BE ENTITLED TO
CONSIDERATION FOR ZONING IN ACCORDANCE WITH THE TOWN'S COMPREHENSIVE PLAN.
E. PARK AND RECREATION SERVICES
I. RESIDENTS OF THIS PROPERTY MAY UTILIZE ALL EXISTING PARK AND RECREATIONAL
SERVICES, FACILITIES, AND SITES THROUGHOUT THE TOWN, BEGINNING UPON THE
EFFECTIVE DATE OF THE ANNEXATION ORDINANCE.
2. ADDITIONAL FACILITIES AND SITES TO SERVE THIS PROPERTY AND ITS RESIDENTS WILL BE
ACQUIRED, DEVELOPED, AND MAINTAINED AT LOCATIONS AND TIMES PROVIDED BY
APPLICABLE PLANS, POLICIES AND PROGRAMS AND DECISIONS OF THE TOWN OF PROSPER.
THIS PROPERTY WILL BE INCLIDED IN ALL FUTURE PLANS FOR PROVIDING PARKS AND
RECREATION SERVICES TO THE TOWN.
3. THIS PROPERTY WILL BE INCLUDED IN ALL PLANS FOR PROVIDING PARKS AND
RECREATION SERVICES TO THE TOWN. THE SAME LEVEL OF PARKS AND RECREATION
SERVICES SHALL BE FURNISHED TO THIS PROPERTY AS IS FURNISHED THROUGHOUT THE
TOWN.
4. EXISTING PARKS, PLAYGROUNDS, AND OTHER RECREATIONAL FACILITIES
WITHIN THIS PROPERTY SHALL, UPON DEDICATION TO AND ACCEPTANCE BY THE TOWN,
BE MAINTAINED AND OPERATED BY THE TOWN OF PROSPER, BUT NOT OTHERWISE.
F. SOLID WASTE COLLECTION
I. SOLID WASTE COLLECTION SHALL BE PROVIDED TO THE PROPERTY IN ACCORDANCE WITH
EXISTING TOWN POLICIES, BEGINNING UPON THE EFFECTIVE DATE OF THE ANNEXATION
ORDINANCE. RESIDENTS OR COMMERCIAL USERS OF THIS PROPERTY UTILIZING PRIVATE
COLLECTION SERVICES AT THE TIME OF ANNEXATION MAY CONTINUE TO DO SO IN LIEU OF
RECEIVINH CITY SERVICES UNTIL THE SECOND ANNIVERSARY OF THE EFFECTIVE DATE OF
THIS ORDINANCE.
2. AS DEVELOPMENT AND CONSTRUCTION COMMENCE ON THIS PROPERTY, AND POPULATION
DENSITY INCREASES TO THE PROPERTY LEVEL, SOLID WASTE COLLECTION SHALL BE
PROVIDED TO THIS PROPERTY IN ACCORDANCE WITH THE CURRENT POLICIES OF THE
TOWN AS TO FREQUENCY, CHANGES AND SO FORTH.
G. STREETS
I. THE TOWN OF PROSPER'S EXISTING POLICIES WITH REGARD TO STREET MAINTENANCE,
APPLICABLE THROUGHOUT THE ENTIRE TOWN, SHALL APPLY TO THIS PROPERTY
BEGINNING UPON THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE. UNLESS A
STREET WITHIN THIS PROPERTY HAS BEEN
CONSTRUCTED OR IS IMPROVED TO THE TOWN'S STANDARDS AND SPECIFICATIONS,
THAT STREET WILL NOT BE MAINTAINED BY THE TOWN OF PROSPER.
2. AS DEVELOPMENT, IMPROVEMENT OR CONSTRUCTION OF STREETS TO TOWN
STANDARDS COMMENCE WITHIN THIS PROPERTY, THE POLICIES OF THE TOWN OF PROSPER
WITH REGARD TO PARTICIPATION IN THE COSTS THEREOF, ACCEPTANCE UPON
COMPLETION, AND MAINTENANCE AFTER COMPLETION, SHALL APPLY.
3. THE SAME LEVEL OF MAINTENANCE SHALL BE PROVIDED TO STREETS
WITHIN THIS PROPERTY WHICH HAVE BEEN ACCEPTED BY THE TOWN OF PROSPER AS IS
PROVIDED TO TOWN STREETS THROUGHOUT THE TOWN.
4. STREET LIGHTING INSTALLED ON STREETS IMPROVED TO TOWN STANDARDS
SHALL BE MAINTAINED BY THE EXISTING FRANCHISE IN ACCORDANCE WITH CURRENT
POLICIES.
H. WATER SERVICES
1. CONNECTION TO EXISTING TOWN WATER MAINS FOR WATER SERVICE FOR DOMESTIC,
COMMERCIAL, AND INDUSTRIAL USE WITHIN THIS PROPERTY WILL BE PROVIDED IN
ACCORDANCE WITH EXISTING TOWN POLICIES. UPON CONNECTION TO EXISTING MAINS,
WATER WILL BE PROVIDED AT RATES ESTABLISHED BY TOWN ORDINANCES FOR SUCH
SERVICE THROUGHOUT THE TOWN.
AS DEVELOPMENT AND CONSTRUCTION COMMENCE IN THIS PROPERTY, WATER MAINS OF
THE TOWN WILL BE EXTENDED IN ACCORDANCE WITH PROVISIONS OF THE SUBDIVISION
ORDINANCE AND OTHER APPLICABLE ORDINANCES AND REGULATIONS. TOWN
PARTICIPATION IN THE COSTS OF THESE EXTENSIONS SHALL BE IN ACCORDANCE WITH THE
APPLICABLE TOWN ORDINANCES AND REGULATIONS. SUCH EXTENSIONS WILL BE
COMMENCED WITHIN TWO AND ONE-HALF (2 '/2) YEARS FROM THE DATE OF ADOPTION OF
THE ANNEXATION ORDINANCE, OR UPON COMMENCEMENT OF DEVELOPMENT OF A
SUBDIVISION WITHIN THIS PROPERTY, WHICHEVER OCCURS LATER.
3. WATER MAINS INSTALLED OR IMPROVED TO TOWN STANDARDS WHICH ARE WITHIN THE
ANNEXED AREA AND ARE WITHIN DEDICATED EASEMENTS SHALL BE MAINTAINED BY THE
TOWN OF PROSPER BEGINNING UPON THE EFFECTIVE DATE OF THE ANNEXATION
ORDINANCE.
4. THEIR OWNERS, IN ACCORDANCE WITH EXISTING POLICIES APPLICABLE THROUGHOUT THE
TOWN, SHALL MAINTAIN PRIVATE WATER LINES WITHIN THIS PROPERTY.
I. SANITARY SEWER SERVICES
1. CONNECTIONS TO EXISTING TOWN SANITARY SEWER MAINS FOR SANITARY SEWAGE
SERVICE IN THIS AREA WILL BE PROVIDED IN ACCORDANCE WITH EXISTING TOWN
POLICIES. UPON CONNECTION, SANITARY SEWAGE SERVICE WILL BE PROVIDED AT RATES
ESTABLISHED BY TOWN ORDINANCES FOR SUCH SERVICE THROUGHOUT THE TOWN.
2. SANITARY SEWAGE MAINS AND/OR LIFT STATIONS INSTALLED OR IMPROVED TO TOWN
STANDARDS, LOCATED IN APPROVED DEDICATED EASEMENTS, AND WHICH ARE WITHIN
THE ANNEXED AREA AND ARE CONNECTED TO TOWN MAINS WILL BE MAINTAINED BY THE
TOWN BEGINNING UPON THE EFFECTIVE DATE OF THE ANNEXATION ORDINANCE. PRIVATE
SEWER LINES SHALL BE MAINTAINED BY THE OWNERS THEREOF IN ACCORDANCE WITH
EXISTING TOWN POLICIES, PRACTICES AND REGULATIONS.
3. AS DEVELOPMENT AND CONSTRUCTION COMMENCE IN THIS AREA, SANITARY SEWER
MAINS OF THE TOWN WILL BE EXTENDED IN ACCORDANCE WITH PROVISIONS OF THE
SUBDIVISION ORDINANCE AND OTHER APPLICABLE TOWN ORDINANCES AND
REGULATIONS. TOWN PARTICIPATION IN THE COSTS OF THE EXTENSIONS SHALL BE IN
ACCORDANCE WITH APPLICABLE TOWN ORDINANCES AND REGULATIONS. SUCH
EXTENSIONS WILL BE COMMENCED WITHIN TWO AND ONE-HALF (2 1/2) YEARS FROM THE
EFFECTIVE DATE OF THE ANNEXATION ORDINANCE, UNLESS THE SERVICES CANNOT BE
REASONABLY PROVIDED IN THAT PERIOD, THEN TOWN SHALL PROPOSE A SERVICE
SCHEDULE TO PROVIDE FOR THE PROVISION OF THE SERVICES WITHIN FOUR AND ONE-
HALF (4-1/2) YEARS AFTER THAT DATE.
J. MISCELLANEOUS
1. ANY FACILITY OR BUILDING LOCATED WITHIN THE ANNEXED AREA AND UTILIZED BY THE
TOWN OF PROSPER IN PROVIDING SERVICES TO THE AREA WILL BE MAINTAINED BY THE
TOWN COMMENCING UPON THE DATE OF USE OR UPON THE EFFECTIVE DATE OF THE
ANNEXATION ORDINANCE, WHICHEVER OCCURS LATER.
2. GENERAL MUNICIPAL ADMINISTRATION AND ADMINISTRATIVE SERVICES TO THE TOWN
SHALL BE AVAILABLE TO THE ANNEXED AREA BEGINNING UPON THE EFFECTIVE DATE OF
THE ANNEXATION ORDINANCE.
3. NOTWITHSTANDING ANYTHING SET FORT ABOVE, THIS SERVICE PLAN DOES NOT REQUIRE
ALL TOWN SERVICES BE PROVIDED AS SETFORTH ABOVE IF DIFFERENTCHARACTERISTICS
OF TOPOGRAPHY, LAND USE AND POPULATION DENSITY ARE CONSIDERED A SUFFICIENT
BASIS FOR PROVIDING DIFFERENT LEVELS OF SERVICE.
4. THE SERVICE PLAN IS VALID FOR TEN (10) YEARS FROM THE EFFECTIVE DATE OF THE
ORDINANCE.
;ISPER
OWN OF ADMINISTRATION
To: Mayor and Town Council
From: Mike Land, Town Manager
Re: Town Council Meeting — August 26, 2008
Date: August 21, 2008
Anenda Item:
Public Hearing for the Proposed 2008-2009 Fiscal Year Budget
Description of Auenda Item:
Attached please find my budget memo presented on August 12, 2008. Tonight is the first of two
public hearings to be held regarding the 2008-2009 Budget. I do not plan on going through the
entire presentation again but will have copies of the August 12, 2008 Power Point presentation
available. Regarding the difference between the current tax rate of $0.52 and a tax rate of $0.501,
this equates to a property tax revenue reduction of approximately $188,000. Staff is working
through the difference, examining other revenue opportunities to make up the reduction without
having to reduce proposed staffing, program or capital investments.
Budoet Impact:
NA
Legal Oblisiations and Review:
NA
Attached Documents:
Budget Memo presented August 12, 2008 to the Prosper Town Council
Town Staff Recommendation:
This is the first of two public hearings for the proposed 2008-2009 Budget.
Agenda Item No. 18 - Page 1 of 1
P TOWN SER
August 8, 2008
Honorable Mayor and Town Council
Citizens of Prosper
Mayor, Town Council, Citizens,
I am pleased to present to you the Proposed 2008-2009 Town of Prosper Annual Operations and
Maintenance Budget for your consideration. This document details the comprehensive strategic plan by
which the Town of Prosper strives to enhance the community's quality of life. For the first time, the Prosper
Town Council has adopted a Strategic Vision and Work Plan that was used in guiding the development of
this proposed budget. The most important element of their effort resulted in the following Purpose
Statement:
TOWN OF PROSPER
PURPOSE STATEMENT
"Prosper is a place where everyone matters."
In the coming year, a corresponding Performance Plan will be adopted that will be used to implement the
Council's Strategic Vision and Work Plan. The Work Plan in conjunction with Performance Measures are
important tools that will be used to define the level and quality of services to be provided to the citizens of
Prosper. By establishing standards, the Council, citizens and team members of the Town will have clear
expectations before them, helping everyone understand better the operations of the Town and the value of
what is being provided.
BUDGET OVERVIEW
The Town of Prosper 2008-2009 Proposed Budget represents a continuation of most Town services at
the same or similar levels, with added focus on improving public safety and community services.
Understanding that the Town's growth and revenues are directly related to uncertain economic
conditions in various markets, the budget is being proposed after prudent examination and with
conservative forecasts.
The Town of Prosper currently employs 75 team members - 61 full-time, 2 part-time and 12 on -call
temporary. Within the proposed budget there is a recommendation to only hire one additional
employee, a Communications Manager in the Police Department. All other department's personnel
will be funded at their current staffing levels. The budget does identify a four (4%) percent pay
increase for all employees.
In evaluating the 2008-2009 Proposed Budget it is important to consider several historical
organizational initiatives, current environmental factors and the impact each has on planning for
additional appropriations. Those with the greatest impact are listed below.
FY 2009 will include the first full year's implementation of the Waters Consulting Group Pay
Plan that was adopted in 2007. The current Fiscal Year Budget, 07-08, implemented the pay
plan in three phases, with the final phase not being implemented until this September, 2008.
Implementing the plan in this way afforded the Town the opportunity to improve employees
pay while at the same time minimizing its costs in the current Fiscal Year. The Fiscal Year
08-09 Budget though reflects the full cost of the pay plan's implementation. This will
automatically increase personnel cost approximately $105,000 plus benefits.
• The Town is continuing to receive negatively trending sales tax revenues. The budget
recognizes a decrease of nearly 17% or $200,000 in budgeted sales tax compared to the 07-08
Budget despite the addition of some commercial space in 2009.
• The addition of EMS/Fire staff as approved in FY 2007 has resulted in additional costs totaling
$548,000, which are partially offset by grant revenues anticipated to be $341,550. This grant
will continue for four more years with a decreasing value paid to the Town each year of the
grant.
• Energy and Fuel costs continue to rise at an alarming rate. The proposed 08-09 Fiscal Year
General Fund Budget anticipates increased cost totaling $85,000, or a 46% increase over the
adopted 07-08 Fiscal Year Budget.
• The State of Texas on July 25, 2008 granted the Town of Prosper the ability to create its own
911 Dispatch Center. This was necessitated by the fact that the Town will no longer be
receiving 911 dispatch services from Frisco sometime after the first quarter of 2009. In the
interim and prior to the Town establishing its own Dispatch Center, the Town will be served by
the Collin County Sheriff's Department. As a result of these actions, it is recommended that
the Town hire a Communications Manager to shepherd this project, ensuring that the citizens
of Prosper receive the best service possible with no service interruptions.
The proposed 2008 — 2009 Budget Appropriations total $11,209,939 for all funds not including debt service
payments. Of that amount, approximately $6,289,129 is for General Fund operations and maintenance,
$3,897,686 is for the Town's Enterprise Funds including Solid Waste, Water and Sewer utilities, and the yet
to be funded Stormwater Drainage utility. Debt service payments will total $2,127,619.
Property Values
Certified freeze -adjusted, taxable property valuations increased by $178M (23.4%) in FY 2008-09. These
values increased from $762,250,305 to $940,820,954. While the growth in certified property valuations
continues to increase, economic and inflationary pressures of rising energy cost are counterbalancing this
growth specifically with the continuing decline in sales tax collection. This past year the Town has seen a
stabilized residential construction market indicating property tax values will continue to increase.
Property Tax Rate
This year the property tax rate as proposed is consistent with the current tax rate of $0.52 per $100 of
property valuations. The portion of the tax applied to debt service is $0.214989.
Sales Taxes
In the face of rising energy and fuel cost and the slow down in the construction industry throughout the
region the Town's retail sales tax collections are projected to continue to decline.
Utility Rates
The Town of Prosper Town Council this past spring engaged the services of J. Stowe and Company to
produce with staff a Water and Wastewater Utility Comprehensive Business Plan. The Plan will be
presented to the Town Council within the next sixty (60) days. Contained within the plan are
recommendations to enhance revenues, to establish a 60 day operations and maintenance reserve account and
to fund an annual contribution of 2% to a capital replacement program.
Solid Waste rates will be increasing this coming Fiscal Year reflecting the fuel service charge being added
by IESI, as allowed for in the current contract with the service provider.
Stormwater Drainage Utility rates will be implemented in the coming year. Staff continues to research data
prior to recommending the establishment of a rate.
GENERAL FUND
The 2008-2009 Proposed Budget as presented is based on using the Existing Tax Rate of $0.52. The
projected effective tax rate, that is the rate that would generate the same amount of property tax
revenues in 2008-2009 that were generated in this fiscal year, is $0.486331. The rollback rate, which
equates to 108% of the effective operating rate, plus the debt service rate, less the additional sales tax
adjustment dedicated to property tax relief is $0.501568. Without the sales tax adjustment of
$0.038043, the rollback rate would be $0.539611. Each penny of the tax rate generates approximately
$94,000 in property tax revenue. Additionally, for property tax revenue projections the Collin County
Tax Assessor -Collector states that it again expects to collect 100% of the current property taxes due.
Revenues are expected to exceed Appropriations resulting in an increase of $55,232 to the Town's
Fund balance. The Audited Fund Balance at the end of 2006 — 2007 was $3,093,165. Revised Fund
balance prior to the final audit for 2007 — 2008 is expected to increase to $3,208,047. (The actual
2007-2008 budget called for no increase to the Fund Balance.) Should the current projections hold
true, the total projected fund balance as of September 30, 2009 could be $3,260,279.
The Town has historically called for a reserve level equal to 16% (or 60 days) of appropriations. In the
Proposed 2008-2009 Budget, the target reserve level has been elevated to 25% (or 90 days). In
addition to this reserve, staff has earmarked an amount of the fund balance equal to 10% of the total
general fund expenditures to conform to the Town Charter provision regarding contingent funds.
At the end of the 2008-2009 fiscal year the projected total fund balance not otherwise restricted or held
in contingency should total $1,068,959 which equates to an additional 61 days of operations depending
on final audited numbers.
REVENUES
Overall, revenues are projected to increase 18.4% compared to budgeted 2007-2008. This increase
continues to reflect the overall decrease in sales tax collections. Property Tax Revenues for Operations
and Maintenance are projected to increase by approximately 32.3% compared to budgeted 2007-2008
revenues. Sales Taxes are projected to decrease at a 9.1% rate over collections for this year while
Franchise and other related Taxes are projected to increase 11.3% primarily as the result of increased
energy cost and growth in the community.
Staff continues to be conservative when projecting sales tax because of the down turn in construction
related projections for the DFW metroplex. The Town's sales tax has seen a continued decline
beginning in 2006 when it was at its height to the current year. In the current year, excluding the
onetime audited adjustment from the State reflecting a single payment for sales tax collections between
2000 and 2003, the Town is expected to receive $1,012,000. This represents a decline of
approximately 33% in sales tax receipts over the last 3 years.
Permit Revenues are projected to remain constant when compared to the 2007-2008 Budget yet
substantially less than actual revenues for the current fiscal year reflecting less new home or multi-
family construction and minimal non-residential construction in the coming year. Municipal Court
Fines and Licenses are projected to remain consistent with the current year's projected revenues. Fees
and Other Revenues are projected to increase by 105% over the prior budget. Street rental and
payment in lieu of taxes from the Town's Enterprise Funds are projected as new revenue in the 2008-
2009 budget. The expected SAFER Grant revenues ($341,550) contribute to most of this large
increase.
General Fund Revenues by Source
Revenue Category
FY 2009 Proposed
% of Total
Property Tax
$ 2,884,060
45.5%
Licenses, fees, and permits
$ 1,055,785
16.6%
Sales Tax
$ 1,003,045
15.8%
Grants
$ 341,550
5.4%
Franchise
$ 299,494
4.7%
Interfund Transfer In
$ 199,502
3.1%
Fines & warrants
$ 191,875
3.0%
Charges for services
$ 159,700
2.5%
Miscellaneous
$ 106,150
1.7%
Investment Income
$ 100,200
1.6%
Revenue Total
$ 6,341,361
100.0%
APPROPRIATIONS
Total General Fund Appropriations for the 2008 — 2009 Budget are $6,289,129. This is an increase of
approximately 17.4% compared to the 2007 — 2008 Budget. Personnel costs constitute 65.3% of the
General Fund Budget. There is only one (1) new addition to Personnel in the proposed budget and all
other Departmental existing positions are proposed to be funded. Program Enhancement and Capital
Expenditures included in the proposed appropriations and planned for the 2008 -- 2009 Fiscal year by
Division are as follows:
CONTINUATION
AND PROGRAM
DIVISION ENHANCEMENT DESCRIPTION
Administration $12,000 Dedicated Community Communications
Program
Planning $55,000 GIS increase, Annexation, Aerial Maps,
Subscription to TRAKiT Program Hosting
Engineering $40,000 Update to Town's Roadway Impact Fee
Ordinance
Police
Fire
Streets
Parks and
Recreation
Administration
$186,000 Communications Manager, Hand held
radios, Outfit police officers for safety,
Leased vehicles and additional cruisers,
Weapons and vehicle equipment to outfit 3
vehicles- 2 new and a seized Tahoe
$14,000 Leased vehicle
$11,200 Trailer
$17,000 Support equipment for maintenance
The Administration proposed budget includes funding a dedicated communication program for the
community. This represents funding one of the Town Council's goals and fulfills the commitment to
improve communication between the Town and those it serves. What once was a section of the
budget, Communications, has been folded into the Administration's budget. There are no other
additions to the Administration budget.
Police
While additional Police Officers have been requested, the budget as presented does not include any
additional Police personnel with the exception of a Communications Manager. With the Town's
successful designation by the State to implement a 911 Dispatch Operation, there is a need to hire a
Communications Manager in the coming Fiscal Year. This position will be responsible for the
coordination of the dispatch project from inception and is expected to later serve as the Dispatch
Supervisor.
The budget as presented includes funding for the purchase or required tactical equipment including
vests, personal and vehicle radios, and the continued acquisition of police vehicles. Additional costs
reflected in the Police Department budget include contractual costs with Collin County for Animal
Control.
Municipal Court
The 2008-2009 Municipal Court proposed budget reflects increased costs resulting from the potential
relocation of the Police Department to the current Town Hall, and the entire costs associated with their
current location now being the responsibility of the Municipal Court. These increased costs even
though they are actually just being redistributed from the Police Department's budget, include
additional rent, electricity and IT costs.
EMS/Fire
The 2008-2009 proposed budget reflects the addition of the six (6) personnel the Town was able to
bring on as a result of receiving the SAFER Grant. The SAFER grant reimbursement will cover 62.3%
of these six firefighters and an additional three (3) that were already budgeted for 2007-2008 and were
able to be incorporated into the Grant. With these additional Firefighters/Paramedics, the Town for the
first time is able to provide full time paid staff service to the residents on a 24/7 basis for both Fire and
Ambulance services. Up until this time, paid part time staff and volunteers supplemented paid staff in
accomplishing this goal. Personnel cost in this department reflect the single largest increase in the
overall budget for the Town in the coming fiscal year.
Public Works — Streets and Parks and Recreation
There are no significant changes or additions to the Street Budget proposed in 2008-2009 over the
current fiscal year.
In Parks and Recreation there are a several program changes proposed. The first change in Contracted
Services represents increases resulting from additional park land coming online this coming fiscal year,
including Folsom and Whitley Place parks. In the case of Whitley Place, the Town has entered into an
agreement stating that the costs for the maintenance of this park will be pass through costs, reimbursed
by the Developer; therefore the costs while revenue neutral should be recognized. The second cost
increase in this division reflects the continued purchase of equipment to support the maintenance of the
fields.
Development Services - Inspections. Planning and Engineering
There are no significant changes proposed for any of the divisions of Development Services. The
Inspections Division will continue to utilize a private contractor to perform all health/food
establishment/hotel inspections.
Planning will continue to contract with Frisco's GIS department for mapping services and planned
expenses are identified for the continuation of the Town's annexation of areas within its existing ETJ.
This budget also includes the hosting service fee for the TRAKiT software program, which will
support all of Development Services better than the existing tool.
Contained within the Engineering Division's proposed budget is the update to the Town's Roadway
Impact Fee Ordinance necessitated by the continued growth of the Town, increased construction cost
and certain development agreements that have been entered into by the Town.
ENTERPRISE AND SPECIAL REVENUE FUNDS
GENERAL OBLIGATION I&S FUND
This fund represents the debt portion of the tax rate. Debt payments from I&S for 2008-2009 will total
$2,055,959, an increase of $189,011 from the current year's budget.
WATER, SEWER AND SOLID WASTE UTILITY FUND
Revenues for the Water, Sewer and Solid Waste Fund are expected to increase to $3,895,993 without
any revenue enhancements. Based on a the to be adopted business plan for the Water and Sewer
Utility Fund, there will need to be revenue enhancements adopted to cover existing and future
operations and maintenance costs as well as debt service and contracted sewer costs with Upper Trinity
beginning in the 2009-2010 fiscal year. Additionally due to TCEQ rules, the Town will need to adopt
the equivalent of a per connection/door charge for any existing and future multi -family, nursing home
and mobile home parks. Regarding Solid Waste, IESI has begun to bill the Town an additional $0.53
per residential customer per month for fuel costs. The fuel surcharge increase for commercial
customers is $1.71 per month. This additional cost of approximately $1,700 per month and should be
passed on to the customer as contemplated in the contract with IESI.
Water/Sewer Fund Revenues by Source
Revenue Category
FY2009 Proposed
% of
Total
Water Charges
$ 2,417,300
62.05%
Sewer Charges
$ 674,200
17.30%
Solid Waste Charges
$ 424,900
10.91%
W/S Tap & Construction
$ 200,000
5.13%
Investment Income
$ 93,000
2.39%
Penalties
$ 69,300
1.78%
Service Initiation
$ 14,000
0.36%
Licenses, fees, and permits
$ 1,650
0.04%
Miscellaneous
$ 1,643
0.04%
Revenue Total
$ 3,895,993
100.00%
Expenses for the fund total $3,965,346 resulting in a net "loss" of $69,353 for the fiscal year, which
will decrease the net asset balance of these funds. The projected Operating Revenues are well short of
the targets established within the proposed business plan for these utilities. The additional revenues
over expenses projected in the business plan are to be designated for reserves, capital investment
reserves and debt service reserves.
There is a $45,000 increase in Professional Services for the implementation of a Rate Study for the
Water and Sewer Fund. This is critical in light of the targets, and in anticipation of the payments to the
Upper Trinity system for sewer service beginning October 1, 2009. The Contractual/Professional
Services category of the enterprise fund accounts for 34.5% of the budgeted expenditures; this category
is comprised of sewer management fees and other directly related professional service fees, but also
includes the Town's solid waste expense.
The proposed budget calls for the addition of a mower and a 1-Ton Utility Pickup. Utility Billing
received funds to complete the setup for online utility payments on STW, the Town's financial system.
There have been numerous citizen requests for this feature and the major hardware is already in place.
There are currently no Revenues or Expenditures identified for this fund. Staff is completing an initial
rate analysis that would at least cover the cost of engineering studies needed for establishing the
parameters for a base rate for all customers, residential and non-residential.
GENERAL DISCUSSION ITEMS
The following items also have been incorporated into the Proposed 08-09 Budget:
• In an effort to defer the rising costs of health care and simultaneously provide a more cost -
feasible medical plan to our employees, the Town has elected to insure through a high
deductible plan accompanied by a Medical Expense Reimbursement Plan (MERP). This will
require some funding to the Internal Service Fund, but should produce a net savings based on
actuarial experience. Expected MERP claims are $45 per member per month, but the proposed
budget funded this at twice the amount to ensure ample coverage. The cost to have renewed
the previous coverage would have been $213,528. Including the new design, MERP
administration fees and MERP liability, the Town is projected to save almost $38,000 in
medical premiums. If the claims experience is twice the actuarial estimate, the Town still
saves $5,900 dollars as compared to the traditional plan.
• Proposed Personnel Policy Manual revision impacts:
Two (2) days total paid time off were added.
The merits of the current longevity pay practice (whereby employees receive
$25/month of service and are capped at $1,000) are being reviewed and possibly
revised to a $5/month with a benefit service limit of 25 years. This is more in line
with standard practice in the market and would do more to incentivize long term
service. This would not be implemented at any financial loss to existing
employees. To make sure existing employees receive the full benefit as they had
before the policy change, the Town could add the difference between the previous
calculation and the new calculation directly into the employee's salary.
The Proposed Budget includes $60,304 for payments made to employees to "cash
out" vacation balances in excess of 40 hours. This is written in the policy so as to
allow a total of 80 hours to be paid out per employee per fiscal year, but is being
reduced to 40 hours due to budget constraints. The purpose of introducing this
option is to reduce the Town's accrued liability from carrying existing employees
"banked" vacation hours, placing a new limit on carry over, and limiting the
Town's future liability in this area as new employees are hired.
• Changes were made to TMRS to allow for a 20 year, any age retirement instead of the current
25 years. This constitutes an increase of 0.29% of employee wages or $10,225. For an
additional 0.17% or $6,000, the Proposed Budget also calls for the allowance of a TMRS
provision called Transfer Updated Service Credit. These updates combined should help in
Town's recruitment efforts, especially for experienced public safety staff.
Due to budget priorities and constraints, additional staff requests other than the Police
Communications Manager's position have not been included. One last personnel issue that will be
examined for implementation in the coming Fiscal Year is the implementation of a Public Safety Step
Plan for Police and Fire. As this Step Plan is being finalized, it will be presented in the coming months
for formal adoption separate and apart from this proposed budget. The plan will have to be
implemented in phases and as such the first phase will not be recommended for implementation until
April of 2009 if accepted by the Town Council. If Council supports the implementation of the Step
Plan, the impact on the 2008-2009 fiscal year will be approximately $55,000.
Other Budget Issues to be addressed in Fiscal Year 2008-2009:
The Town Council and staff in the coming Fiscal Year will be working to create budget policies that
address targets for Fund Balance/Net Assets as a percent of Annual Revenues over Annual
Appropriations/Expenditures, Salaries and Related Expenses as a percent of annual operations and
maintenance costs, target capital expenditures and multi -year budgeting. Other items that will be
addressed include improving monthly budget reports designed to assist in identifying cash
flow/operating requirements and the impact of economic cycles on the Town's budget.
In summary, staff is able to present a proposed budget that meets the objectives provided by Council,
utilizing the current tax rate, keeping personnel cost minimized compared to overall Appropriations,
while maintaining continued capital and equipment investment.
The momentum of the Town's growth going into FY 09 has been slowed somewhat by the downturn in
the market. With the opening of the DNT frontage road north through Prosper, the addition of a couple
of high quality multi -family projects and additional commercial space, the Town will continue to
experience solid growth in population and property values. In this time of slower growth, the Town
will prepare itself to better manage the rapid demand for services expected in future years. The
Proposed Budget facilitates only needed improvements and expansions to this end.