07.12.2011 Town Council PacketPage 1 of 2
]
1. Call to Order / Roll Call
2. Invocation, Pledge of Allegiance, and Pledge to the Texas Flag
3. Announcements of dates and times of upcoming community events
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.)
4. Consent Agenda
MINUTES
a. Consider and act upon minutes from the following Council meetings (AP)
• June 28, 2011 – Regular Town Council Meeting
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.)
5. Other Comments by the Public
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 item will be recognized on a case-by-case basis, at the discretion of the
Mayor and Town Council.)
DEPARTMENT ITEMS
6. Consider and act upon a request to rezone 47.7± acres, located on the south side of Fishtrap Road,
1,400± feet east of F.M. 1385, from Agricultural (A) and Planned Development-40 (PD-40) to
Planned Development-Single Family (PD-SF). (Z11-0008) (CC)
AGENDA
Regular Meeting of the Prosper Town Council
Prosper Municipal Chambers
108 W. Broadway, Prosper, Texas
Tuesday, July 12, 2011 at 6:00 p.m.
Page 2 of 2
7. Consider and act upon the Fiscal Year 2011-2012 Budget Calendar. (MG)
8. Consider and discuss the issuance of debt for the purpose of refunding existing debt of the Town,
funding drainage improvements and Parks equipment. (MG)
9. Consider and act upon Ordinance No. 11-50 authorizing a Water and Sewer Developer Participation
Agreement with Forest City Prosper Limited Partnership and Prosper Partners, L.P., for a
Developer Participation Agreement related to the construction of certain water and sewer
infrastructure. (ML)
10. Consider and act upon the Town of Prosper and PEDC Agreement for Economic Development’s
contribution to costs. (ML)
11. Consider and act on a resolution authorizing the Town Manager to enter into a Tower Site Lease
Agreement with Dallas MTA, L.P., d/b/a Verizon Wireless. (ML)
12. Discuss and act upon amendments to the Comprehensive Parks Ordinance. (WH)
13. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting.
EXECUTIVE SESSION
Recess into Closed Session in compliance with Section 551.001 et. seq. Texas Government Code, to wit; and
Section 551.071 Meeting with City Attorney regarding a matter(s) in which the duty of the City Attorney
under the Texas Disciplinary rules of Professional Conduct of the State Bar of Texas conflicts with the Open
Meetings Act regarding:
a. Section 551.072. To deliberate the purchase, exchange, lease or value of real property totaling 18 acres
and located south and east of the intersection of Cook Lane and Prosper Trail.
b. To reconvene in Regular Session and take any action necessary as a result of the Closed Session.
14. 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 at least 72 hours before said meeting was convened.
_________________________________ ________________ ____________________
Amy Piukana, Town Secretary Date Notice Posted Date Noticed Removed
In addition to any specifically identified Executive Sessions, Council may convene into Executive Session under Section 551 of the Texas Government Code at any
point during the open meeting to discuss any item posted on this agenda. The Open Meetings Act provides specific exceptions that require that a meeting be open.
Should Council elect to convene into Executive Session, those exceptions will be specifically 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 1 of 3
]
Prosper is a place where everyone matters.
1. Call to Order / Roll Call.
Mayor Smith called the meeting to order at 6:11 p.m.
Council Members present included: Mayor Ray Smith, Mayor Pro-Tem Kenneth Dugger, Deputy Mayor
Pro-Tem Meigs Miller, Dave Benefield, Danny Wilson, Curry Vogelsang Jr. and Jason Dixon.
Council Member(s) absent: None
Staff present included: Mike Land, Town Manager; Amy Piukana, Town Secretary; Hulon Webb, Director
of Development Services; Chris Copple, Planning & Zoning Manager; Wade Harden, Senior Parks and
Recreation Planner; and Matthew Garrett, Finance Director.
2. Invocation, Pledge of Allegiance, and Pledge to the Texas Flag.
The invocation was given by Samantha Parsons representing Chambersville and Cottage Hill United
Methodist Church. The pledge of allegiance and pledge to the Texas Flag was given.
3. Town Librarian Linda Shaw gave a brief overview of the Prosper Community Library and its
programs.
4. Wayne Bartley with Cornerstone Assistance Network of North Texas gave a brief presentation
regarding the various programs for anyone in need of financial assistance, rental assistance, clothing or
household items.
5. Announcements of dates and times of upcoming community events- Council Member Dixon
announced that the Parks and Recreation All Stars Little League are having a tournament this weekend.
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
Regular Meeting of the Prosper Town Council
Town of Prosper Municipal Chambers
108 W. Broadway, Prosper, Texas
Tuesday, June 28, 2011 at 6:00 p.m.
Page 2 of 3
MINUTES
a. Consider and act upon minutes from the following Council meetings. (AP)
• June 14, 2011 – Regular Town Council Meeting
ORDINANCES, RESOLUTIONS, AND AGREEMENTS
b. Consider and act upon the financial statements ending May 31, 2011.
Mayor Pro-Tem Dugger moved to approve Consent Items 6a.-6b., as presented. Motion seconded by Deputy
Mayor Pro-Tem Miller. Motion approved by vote of 7-0.
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- Ann Lieber spoke and gave a handout regarding the establishment of
the White House Rural Council addressing the potential local implications.
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 item will be recognized on a case-by-case basis, at the discretion of the
Mayor and Town Council.)
PUBLIC HEARING
8. A public hearing to consider and act upon a request to rezone 47.7± acres, located on the south side
of Fishtrap Road, 1,400± feet east of F.M. 1385, from Agricultural (A) and Planned Development-40 (PD-
40) to Planned Development-Single Family (PD-SF). (Z11-0008) Planning and Zoning Manager Chris
Copple briefed Council regarding the proposed zoning request. The applicant is requesting to develop one
hundred twenty-one (121) single family lots. Mr. Copple showed a brief Power Point of the zoning exhibits,
and an aerial map of the 100 year floodplain.
After discussion, Mayor Pro-Tem Dugger made a motion to open the Public Hearing. Motion seconded by
Council Member Wilson. Motion approved by vote of 7-0.
David Jackson who resides at Glenbrooke Estates spoke regarding his concern that the new development not
be viewed as competitive housing to Glenbrook but rather as a neighboring community enhancing the area.
Mayor Pro-Tem Dugger made a motion to close the public hearing. Motion seconded by Deputy Mayor Pro-
Tem Miller. Motion approved by vote of 7-0.
After discussion, Mayor Pro-Tem Dugger moved to postpone the rezone request to the July 12, 2011 Council
Meeting to allow the Developer more time to show details regarding the window trim, garage door accents,
amount of fiber board being used and amended wording stating the brick accents must be similar to drawings
Page 3 of 3
submitted to Council. Motion seconded by Council Member Benefield. Motion approved by vote of 6-1,
Deputy Mayor Miller voting against.
DEPARTMENT ITEMS
9. Presentation and discussion regarding the Town’s Information Technology projects and contracted
services with NCC Data. NCC Data Director of Sales Scott Moffitt gave a presentation showing the
contracted services they provide to the Town of Prosper.
After discussion, Council Member Vogelsang recommended a strategic emergency policy and procedure be
created for the Town in case of a disaster.
10. Receive comments on the proposed design of Windmill Playground. Director of Public Works Hulon
Webb briefed Council regarding the design of the Windmill Playground.
Mayor Pro-Tem Dugger asked that the Tarp used to cover the playground be constructed of a long lasting
durable material.
11. Consider and act upon an application to the Collin County Parks & Open Space Project Funding
Assistance Program and Resolution No. 11-49. Senior Parks and Recreation Planner Wade Harden briefed
Council regarding the project showing a map of the Parks and Trails Master Plan, and a preliminary plat of
the property. The application request is to obtain matching funds in order to acquire additional park land in
Brookhollow Phase I and to secure the Waterline Community Park location.
Deputy Mayor Pro-Tem Miller moved to approve the expenditure of Park Dedication funds in an amount not
to exceed $860,000 in conjunction with $500,000 from Collin County for the acquisition of 43 +/- acres of
land for Waterline Community Park and to approve Resolution No. 11-49 authorizing the Town Manager to
be the official project representative and authorizing the application submittal. Motion seconded by Mayor
Pro-Tem Dugger. Motion approved by vote of 7-0.
12. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting.
13. Adjournment- Mayor Pro-Tem Dugger moved to adjourn the meeting. Motion seconded by Council
Member Dixon. Motion approved by vote of 7-0. The meeting adjourned at 8:36 p.m.
_______________________ ___________________________________
Amy Piukana Ray Smith, Mayor
Town Secretary
Page 1 of 3
To: Mayor and Town Council
From: Chris Copple, AICP, Planning & Zoning Manager
Cc: Mike Land, Town Manager
Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting – July 12, 2011
Date: July 7, 2011
Agenda Item:
Consider and act upon a request to rezone 47.7± acres, located on the south side of Fishtrap
Road, 1,400± feet east of F.M. 1385, from Agricultural (A) and Planned Development-40 (PD-40) to
Planned Development-Single Family (PD-SF). (Z11-0008).
History:
On June 28th, the Town Council held a public hearing and discussed the proposed Planned
Development (PD) request. By a vote of 6-1, the Town Council tabled the item to July 12th to allow
the applicant time to revise the proposed PD language to incorporate the changes suggested by
the Planning & Zoning Commission and to add additional language regarding the landscaping,
exterior lighting, garage door, and the architectural detail/accent development standards. The
applicant has revised Exhibit C of the proposed PD in an attempt to address the Town Council’s
comments. The applicant has provided the attached redline copy of the revised Exhibit C to
highlight the changes to the proposed PD.
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-51
and Agricultural Undeveloped Medium Density Residential
East
Planned Development-9-
Single Family Undeveloped Green Space/Flood Zone
South
Agricultural (Glenbrooke) Single Family Residential Medium Density Residential
West
Agricultural (Glenbrooke) Single Family Residential Medium Density Residential
Prosper is a place where everyone matters.
PLANNING
Page 2 of 3
Requested Zoning – Z11-0008 is a request to rezone 47.7± acres, located on the south side of
Fishtrap Road, 1,400± feet east of F.M. 1385, from Agricultural (A) and Planned Development-40
(PD-40) to Planned Development-Single Family (PD-SF). The requested Planned Development
(PD) District allows for the development of one hundred twenty-one (121) single family lots or a
maximum density of 2.56 dwelling units per gross acre. The PD specifies two lots types, Type A
and Type B, which include development standards as shown in the table on the follow page. The
PD requires a minimum of 15% (revised PD requires a minimum of 24%) of the lots be developed
to Type B standards.
Type A Type B SF-10
Min. Lot Area 6,720 square feet 7,200 square feet 10,000 square feet
Min. Lot Width 56 feet 60 feet 80 feet
Min. Lot Depth 120 feet 120 feet 125 feet
Min. Dwelling Area
1,800 square feet
(revised PD requires
1,900 square feet)
2,000 square feet 1,800 square feet
Front Yard Setback 25 feet 25 feet 25 feet
Side Yard Setback 8 feet 8 feet 8 feet
Rear Yard Setback 20 feet 20 feet 25 feet
Maximum Height 40 feet 40 feet 40 feet
Max. Lot Coverage 45% 45% 45%
The PD requires a minimum 40 foot landscape setback adjacent to thoroughfares, requires open
space and a playground to be owned and maintained by the HOA, and includes standards
regulating impervious area, driveways, fencing, exterior lighting, garages, repetition of elevations,
and accessory structures that exceed the development standards set forth in the Town’s Zoning
Ordinance. The PD also includes a concept plan (Exhibit D) and conceptual renderings of house
elevations.
Future Land Use Plan – Future Land Use Plan (FLUP) recommends Medium Density Residential
uses for the property. The requested Planned Development (PD) District allows for the
development of one hundred twenty-one (121) single family lots or a maximum density of 2.56
dwelling units per gross acre. The maximum density without considering the 100-year floodplain
area (9.2 acres) is 3.14 dwelling units per acre. The FLUP recommends a density not to exceed
3.5 dwelling units per acre in areas designated for Medium Density Residential. The zoning
request conforms to the FLUP.
The Comprehensive Plan also includes several recommendations that aim to protect open space,
floodplain, and riparian zones. The proposed development plan conforms to the Town’s
development standards for residential development adjacent to a major creek and does not show
any reclamation of the 100-year floodplain.
Page 3 of 3
Conformance to the Thoroughfare Plan – The property is adjacent Fishtrap Road, a future four
lane divided thoroughfare.
Water and Sanitary Sewer Services – Water and sanitary sewer service will have to be extended to
the property either before or with development.
Access – Access to the property is provided from Fishtrap Road.
Schools – This property is located within the Denton Independent School District. Any future
school sites are to be determined at the time of plat.
Parks – This property is subject to the Town’s park dedication requirements as they exist or may
be amended. Any future park sites are to be determined at the time of plat.
Environmental Considerations – The 100 year floodplain located on the property is shown on the
attached Exhibit A.
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 three public hearing notice reply forms, with none in opposition to the request.
Attached Documents:
1. Redline copy of Exhibit C, highlighting the changes made by the applicant since the June
28, 2011 Town Council meeting.
2. Zoning Exhibits A, B, C, D, and E.
3. Zoning map of the surrounding area.
4. Aerial map showing the 100-year floodplain.
5. Public hearing notice reply forms.
Planning & Zoning Commission Recommendation:
At their June 7, 2011 meeting, the Planning & Zoning Commission recommended the Town
Council approve a request to rezone 47.7± acres, located on the south side of Fishtrap Road,
1,400± feet east of F.M. 1385, from Agricultural (A) and Planned Development-40 (PD-40) to
Planned Development-Single Family (PD-SF), by a vote of 7-0, subject to the following revisions:
1. Type A lots shall have a minimum dwelling area of 1,900 square feet;
2. the amount of Type B lots shall be a minimum of 24% of the total lots;
3. garage doors in front of the home shall be carriage style; and
4. the shared fencing between the proposed single family lots and those of Glenbrooke Estates
shall be a consistent, wooden board on board fence.
Town Staff Recommendation:
Town staff recommends the Town Council approve the request to rezone 47.7± acres, located on
the south side of Fishtrap Road, 1,400± feet east of F.M. 1385, from Agricultural (A) and Planned
Development-40 (PD-40) to Planned Development-Single Family (PD-SF) subject to the revisions
as shown in the attached Exhibit C.
EXHIBIT "C" (REDLINE COPY)
Development Standards for The Preserve at Doe Creek, Town of Prosper, Texas
Conformance with the Town's Zoning Ordinance and Subdivision Ordinance: Except as
otherwise set forth in these Development Standards, the regulations of the Town's Zoning
Ordinance (Ordinance No. 05-20 as it currently exists or may be amended) and Subdivision
Ordinance (as it currently exists or may be amended) shall apply.
SINGLE FAMILY RESIDENTIAL (47.5 Gross Acres)
The single family residential tract shall develop under the standards for Single Family-10 (SF-10) as
contained in the Zoning Ordinance as it exist or may be amended, except as otherwise set forth in the
development standards below.
1. AMENITY PROGRAM
a. General. The Preserve at Doe Creek community will have a system of amenities
throughout. These amenities combine to create a family friendly neighborhood.
The neighborhood amenities that are addressed within these Standards are:
1. Large Open Spaces
2. Pocket Parks
b. Large Open Spaces The properties proximity to flood plain and the integration of
the hike and bike trail allows for large natural open areas providing unobstructed
vistas.
1. Enhanced landscaping of native plantings around the detention pond to
blend into the existing native grasses and plants of Doe Creek
2. Twenty percent of the development is open/undeveloped space.
c. Pocket Parks Additional components of the Preserve at Doe Creek amenities
program are pocket parks. These parks will be an HOA owned and maintained
component, and allow for:
1. Open play areas;
2. Neighborhood playgrounds;
3. Small neighborhood gathering spaces.
2. USE, DENSITIES AND LOT SIZE REGULATIONS
a. General Description:
1. Allowed Uses: Land uses allowed within the Single Family Residential
Tract are as follows: Uses followed by an S are permitted by Specific
Use Permit. Uses followed by a C are permitted subject to conditional
development standards. Conditional development standards are set forth
in Chapter 3, Section 1 of the Town's Zoning Ordinance.
• Accessory Building, subject to Chapter 4, Section 7 of the Zoning
Ordinance.
• Antenna and/or Antenna Support Structure, Non-Commercial C
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 2
• Athletic Stadium or Field, Private C
• Athletic Stadium or Field, Public
• Bed and Breakfast Inn S
• Cemetery or Mausoleum S
• Day Care Center, Adult S
• Day Care Center, Child C
• Day Care Center, In-Home C
• Farm, Ranch, Stable, Garden, or Orchard
• Garage Apartment (Can not be rented or offered for rent)
• Home Occupation C
• Homebuilder Marketing Center C
• House of Worship
• Household Care Facility
• Model Home
• Municipal Uses Operated by the Town of Prosper
• Park or Playground
• Private Recreation Center
• Private Utility, Other Than Listed
• Rehabilitation Care Facility C
• School District Bus Yard C
• School, Public
• School, Private or Parochial S
• Sewage Treatment Plant/Pumping Station S
• Single Family Dwelling, Detached
• Stealth Antenna, Commercial C
• Telephone Exchange S
• Temporary Building C
• Utility Distribution/Transmission Facility S
• Water Treatment Plant S
b. Density: The maximum number of single family detached units for the
Properties is 121/47.5Acres or 2.56 dwelling units per acre.
c. Lot Types: The single family detached lots developed within the Properties shall
be in accordance with the following Lot Types:
1. Type A Lots: Minimum 56’ x 120’ (6,720 square feet)
2. Type B Lots: Minimum 60’ x 120’ (7,200 square feet)
3. Minimum of 1524% Type B lots
3. MINIMUM STANDARDS FOR ALL RESIDENTIAL LOTS:
a. Front Yard: The minimum front yard setback shall be twenty five (25) feet.
b. Side Yard: The minimum side yard setback shall be eight (8) feet. The side yard
setback adjacent to a street shall be fifteen (15) feet.
c. Rear Yard: The minimum rear yard setback shall be twenty (20) feet.
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 3
d. Staggering of setbacks: The minimum front yard setbacks for all lots fronting
onto the same street along a block shall be staggered such that one third (1/3) of
the lots have a front yard setback that is reduced by five (5) feet, one third (1/3) of
the lots have a front yard setback of twenty five (25) feet, and one third (1/3) of
the lots have a front yard setback that is increased by five (5) feet. No more than
two lots in a row may incorporate the same front yard setback. The lots with an
increased front building line may also decrease the rear building line by five (5)
feet to maintain the necessary building pad depth.
e. Maximum Height: Two and a half (2.5) stories, no greater than forty (40) feet.
f. Maximum Lot Coverage: The maximum lot coverage shall be forty five (45)
percent.
g. Impervious Area: The Maximum impervious area shall be 50% of the area
between the street and main building.
h. Thoroughfare Screening and Landscaping: A minimum forty (40) foot
landscape buffer shall be provided adjacent to all thoroughfares. The landscape
buffer shall be located in a private “non-buildable” lot that is owned and
maintained by the HOA. All plantings, screening walls, and design elements shall
comply with the Town’s Subdivision Ordinance.
4. AREA AND BUILDING REGULATIONS:
a. Type A Lots: The area and building standards for Type A Lots are as follows and
as set forth in Table 1:
1. Minimum Lot Width. The minimum lot width for Type A Lots
shall be fifty-six (56) feet.
2. Minimum Lot Area is 6,720 Square feet
3. Minimum Floor Space. Each dwelling constructed on a Type A
Lot shall contain a minimum of one thousand, eight nine hundred
(1,800900) square feet of floor space. Floor space shall include air-
conditioned floor areas, exclusive of porches, garages, patios, terraces or
breezeways attached to the main dwelling
b. Type B Lots: The area and building standards for Type B Lots are as follows and
as set forth in Table 1:
1. Minimum Lot Width. The minimum lot width for Type B Lots
shall be sixty (60) feet.
2. Minimum Lot Area is 7,200 Square feet
3. Minimum Floor Space. Each dwelling constructed on a Type B
Lot shall contain a minimum of two thousand, (2,000) square feet of
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 4
floor space. Floor space shall include air-conditioned floor areas,
exclusive of porches, garages, patios, terraces or breezeways attached to
the main dwelling.
5. BUILDING STANDARDS
1. Permitted Encroachment:
i. Architectural features and porches may encroach into required
front and rear yards up to five (5) feet.
ii. Swing-in garages may encroach into required front yards up to ten
(10) feet.
2. Driveways:
i. Driveways fronting on a street shall be constructed of the
following materials: concrete, brick pavers, stone, interlocking
pavers, stamped concrete, or concrete with stone or brick border.
3. Fencing:
i. Privacy fences on single family residential lots shall be located ten
(10) feet behind the front elevation of the main building and shall
not exceed eight (8) feet in height above grade. All fencing
located on single family residential lots adjacent to open space,
parks, or floodplain shall consist of ornamental metal (wrought
iron or decorative tubular steel). Wooden fencing to be board on
board with metal post. A common wood fence stain color shall be
established for the property by the developer. Fencing abutting the
Glenbrooke Subdivision shall be wood board on board with metal
post.
4. Residential Landscaping:
i. A minimum of two (2) trees totaling – foureight (48) caliper inches
trees shall be located in the front yard of all single family
residential lots. The Trees may be two large trees or one large tree
and one ornamental tree. All large trees shall be separated by a
minimum of twenty-five (25) feet from the next closest onsite or
offsite large tree. A minimum of fifteen (15) – three (3) gallon
shrubs shall be located in the front yard of all single family
residential lots. All plantings shall comply with the Town’s
approved planting list in the Zoning Ordinance.
5. Exterior Lighting:
i. All homes shall provide an exterior lighting package to illuminate
front entrances, and garages.
i.ii. Provide a minimum of two (2) up or down lights per street
elevation to accent building architectural or landscape features
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 5
visible from the street. Security lighting may not be substituted for
accent lighting.
6. Garages:
i. All garage doors shall incorporate the following details:
a. Single doors separated by column (In place of one large
single door)
b. Cast stone surrounds or ornamental brick accent
ii. No more than one third (1/3) of all garages doors shall be located
in front of the front door. All garage doors located in front of the
front door will have carriage style garage doors.
ii.iii. Homes shall have a minimum of two (2) car garage spaces and no
more than three (3).
iii.iv. No carports shall be permitted.
iv.v. Homes with three (3) car garage spaces shall not have more than
two (2) garage doors facing the street. (Note that one 20’ door
counts as two garage doors).
v.vi. Garage doors shall be constructed of either metal or wood.
7. Exterior Surfaces:
i. The exterior facades of a main building or structure, excluding
glass windows and doors, shall be constructed of one hundred
(100) percent masonry. Cementitious fiber board is considered
masonry, but may only constitute fifty (50) percent of the area for
stories other than the first story. However, cementitious fiber board
may not be used as a façade cladding material for portions of upper
stories that are in the same vertical plane as the first story.
Cementitious fiber board may also be used for architectural
features, including window box-outs, bay windows, roof dormers,
garage door headers, columns, chimneys not part of an exterior
wall, or other architectural features approved by the Building
Official.
ii. Address Plaque. A cast stone address plaque
is required. The style of the cast stone address plaque shall be
uniform throughout each section of development.
iii. Stucco. Stucco on structures on shall be traditional 3-coat process
cement plaster stucco.
iv. EIFS. EIFS (Exterior Insulating and Finish
Process) is not allowed on structures.
8. Windows:
i. All window framing on structures shall be bronzed, cream, sand or
white anodized aluminum, vinyl or wood.
ii. Window shutters may be used on structures. Window shutters shall
be painted, stained wood, or fiberglass.
iii. No reflective window coverings or treatments shall be permitted.
9. Brick Detailing and Accenting
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 6
i. Provide brick or stone accents and detailing at all brick and stone
windows and garage door openings to include Pre-cast concrete
lintels, Rowlocks, Solider or Sailor Courses or Stone Surrounds.
Accents may include products such as specialty brick that varies
from the field by size or contrast color. Accents may occur at the
Head or Sill or around the entire window opening. No more than
one third (1/3) of residential lots may use unstained mortar
9.10. Roofing:
i. Structures shall have a composition, slate or tile roof.
ii. The color of the composition roof must appear to be weathered
wood shingles, black or slate.
iii. Composition roof shingles must be laminated and have a minimum
warranty of 30 years or meet the Town’s Green Building
Ordinance, whichever is more restrictive.
iv. A minimum of sixty-five percent (65%) of the surface area of
composition roofs shall maintain a minimum roof pitch of 8:12. A
minimum of seventy-five percent (75%) of the surface area of clay
tile, cement tile, slate or slate products or metal roofs shall
maintain a minimum roof pitch of 3:12.
v. Pitched End Roofs shall be 100% guttered.
10.11. Plate Height:
i. Each structure shall have a minimum principal plate height of 9'
on the first floor.
11.12. Mailboxes:
i. Mail boxes shall be consistent throughout a subdivision and should
be constructed of masonry or ornamental metal, unless otherwise
required by the United States Postal Service.
12.13. Satellite Dishes:
i. Satellite dishes, limited to eighteen inches (18") in diameter or
smaller, mounted below the ridgeline on the roof, and not in public
view from the front of the home are permitted.
13.14. Air Conditioners:
i. No window or wall air conditioning units will be permitted on
structures.
ii. Air conditioning units and pool equipment shall be entirely
screened from view from adjacent public right-of-way by a
living screen consisting of evergreen shrubs, a solid
privacy fence, or through building orientation.
14.15. Plan Elevations:
i. Plan elevations shall alternate at a minimum of every four (4)
homes on the same side of a street and every three (3) homes on
opposite sides of the street.
15.16. Accessory Structures:
i. Accessory structures used as a garage, or a garage apartment, will
be allowed, subject to Chapter 4, Section 7 of the Zoning
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 7
Ordinance.
ii. Accessory structures shall be subject to the same exterior
construction and architectural standards as the main dwelling.
iii. Accessory structures shall be separate from the main dwelling by a
minimum of ten (10) feet, have a minimum rear yard setback of ten
(10) feet, and a minimum side yard setback of eight (8) feet.
General Requirements for the Preserve at Doe Creek
a. Development Plan:
i. A Conceptual Development Plan is hereby attached (Exhibit "D") and
made a part of these development standards. It establishes the most
general guidelines for the district by identifying the project boundaries,
land use types, approximate thoroughfare locations, R.O.W. dedication
and roads.
b. Maintenance of Facilities:
i. The Developers shall establish a Homeowner's Association ("HOA") for
single family residential areas in which membership is mandatory for each
lot, and that will be responsible for operation and maintenance of all
common areas and/or common facilities contained within the area of the
residential development or adjacent Right-of-Way ("ROW').
c. Conceptual Elevations:
i. Conceptual elevations are provided to indicate the direction and intent of
the design standards. Final designs may vary depending on the selected
builders but designs shall sustainably conform with the intent of the
attached designs.
EXHIBIT “B” THE PRESERVE AT DOE CREEK PLANNED DEVELOPMENT DISTRICT STATEMENT OF INTENT AND PURPOSE The Planned Development District provides for a residential subdivision for families wishing to be close to retail but with large natural green space within the Town of Prosper. The PD is designed for those wanting less upkeep but requiring the highest standards in design and amenities. The subdivision has been designed to take advantage of large green spaces and natural vistas to give the residents a country experience while being within walking distance of retail services. The property’s proximity to Doe Creek and the location of the Hike and Bike along the creek allow residents to enjoy nature as well as all of the conveniences of modern living. The development located south of a future retail development west of Forest City and East of Glenbrook while holding strict development standards fits into the adjacent developments with comparable lot sizes and amenities.
EXHIBIT "C"
Development Standards for The Preserve at Doe Creek, Town of Prosper, Texas
Conformance with the Town's Zoning Ordinance and Subdivision Ordinance: Except as
otherwise set forth in these Development Standards, the regulations of the Town's Zoning
Ordinance (Ordinance No. 05-20 as it currently exists or may be amended) and Subdivision
Ordinance (as it currently exists or may be amended) shall apply.
SINGLE FAMILY RESIDENTIAL (47.5 Gross Acres)
The single family residential tract shall develop under the standards for Single Family-10 (SF-10) as
contained in the Zoning Ordinance as it exist or may be amended, except as otherwise set forth in the
development standards below.
1. AMENITY PROGRAM
a. General. The Preserve at Doe Creek community will have a system of amenities
throughout. These amenities combine to create a family friendly neighborhood.
The neighborhood amenities that are addressed within these Standards are:
1. Large Open Spaces
2. Pocket Parks
b. Large Open Spaces The properties proximity to flood plain and the integration of
the hike and bike trail allows for large natural open areas providing unobstructed
vistas.
1. Enhanced landscaping of native plantings around the detention pond to
blend into the existing native grasses and plants of Doe Creek
2. Twenty percent of the development is open/undeveloped space.
c. Pocket Parks Additional components of the Preserve at Doe Creek amenities
program are pocket parks. These parks will be an HOA owned and maintained
component, and allow for:
1. Open play areas;
2. Neighborhood playgrounds;
3. Small neighborhood gathering spaces.
2. USE, DENSITIES AND LOT SIZE REGULATIONS
a. General Description:
1. Allowed Uses: Land uses allowed within the Single Family Residential
Tract are as follows: Uses followed by an S are permitted by Specific
Use Permit. Uses followed by a C are permitted subject to conditional
development standards. Conditional development standards are set forth
in Chapter 3, Section 1 of the Town's Zoning Ordinance.
• Accessory Building, subject to Chapter 4, Section 7 of the Zoning
Ordinance.
• Antenna and/or Antenna Support Structure, Non-Commercial C
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 2
• Athletic Stadium or Field, Private C
• Athletic Stadium or Field, Public
• Bed and Breakfast Inn S
• Cemetery or Mausoleum S
• Day Care Center, Adult S
• Day Care Center, Child C
• Day Care Center, In-Home C
• Farm, Ranch, Stable, Garden, or Orchard
• Garage Apartment (Can not be rented or offered for rent)
• Home Occupation C
• Homebuilder Marketing Center C
• House of Worship
• Household Care Facility
• Model Home
• Municipal Uses Operated by the Town of Prosper
• Park or Playground
• Private Recreation Center
• Private Utility, Other Than Listed
• Rehabilitation Care Facility C
• School District Bus Yard C
• School, Public
• School, Private or Parochial S
• Sewage Treatment Plant/Pumping Station S
• Single Family Dwelling, Detached
• Stealth Antenna, Commercial C
• Telephone Exchange S
• Temporary Building C
• Utility Distribution/Transmission Facility S
• Water Treatment Plant S
b. Density: The maximum number of single family detached units for the
Properties is 121/47.5Acres or 2.56 dwelling units per acre.
c. Lot Types: The single family detached lots developed within the Properties shall
be in accordance with the following Lot Types:
1. Type A Lots: Minimum 56’ x 120’ (6,720 square feet)
2. Type B Lots: Minimum 60’ x 120’ (7,200 square feet)
3. Minimum of 24% Type B lots
3. MINIMUM STANDARDS FOR ALL RESIDENTIAL LOTS:
a. Front Yard: The minimum front yard setback shall be twenty five (25) feet.
b. Side Yard: The minimum side yard setback shall be eight (8) feet. The side yard
setback adjacent to a street shall be fifteen (15) feet.
c. Rear Yard: The minimum rear yard setback shall be twenty (20) feet.
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 3
d. Staggering of setbacks: The minimum front yard setbacks for all lots fronting
onto the same street along a block shall be staggered such that one third (1/3) of
the lots have a front yard setback that is reduced by five (5) feet, one third (1/3) of
the lots have a front yard setback of twenty five (25) feet, and one third (1/3) of
the lots have a front yard setback that is increased by five (5) feet. No more than
two lots in a row may incorporate the same front yard setback. The lots with an
increased front building line may also decrease the rear building line by five (5)
feet to maintain the necessary building pad depth.
e. Maximum Height: Two and a half (2.5) stories, no greater than forty (40) feet.
f. Maximum Lot Coverage: The maximum lot coverage shall be forty five (45)
percent.
g. Impervious Area: The Maximum impervious area shall be 50% of the area
between the street and main building.
h. Thoroughfare Screening and Landscaping: A minimum forty (40) foot
landscape buffer shall be provided adjacent to all thoroughfares. The landscape
buffer shall be located in a private “non-buildable” lot that is owned and
maintained by the HOA. All plantings, screening walls, and design elements shall
comply with the Town’s Subdivision Ordinance.
4. AREA AND BUILDING REGULATIONS:
a. Type A Lots: The area and building standards for Type A Lots are as follows and
as set forth in Table 1:
1. Minimum Lot Width. The minimum lot width for Type A Lots
shall be fifty-six (56) feet.
2. Minimum Lot Area is 6,720 Square feet
3. Minimum Floor Space. Each dwelling constructed on a Type A
Lot shall contain a minimum of one thousand, nine hundred (1,900)
square feet of floor space. Floor space shall include air-conditioned floor
areas, exclusive of porches, garages, patios, terraces or breezeways
attached to the main dwelling
b. Type B Lots: The area and building standards for Type B Lots are as follows and
as set forth in Table 1:
1. Minimum Lot Width. The minimum lot width for Type B Lots
shall be sixty (60) feet.
2. Minimum Lot Area is 7,200 Square feet
3. Minimum Floor Space. Each dwelling constructed on a Type B
Lot shall contain a minimum of two thousand, (2,000) square feet of
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 4
floor space. Floor space shall include air-conditioned floor areas,
exclusive of porches, garages, patios, terraces or breezeways attached to
the main dwelling.
5. BUILDING STANDARDS
1. Permitted Encroachment:
i. Architectural features and porches may encroach into required
front and rear yards up to five (5) feet.
ii. Swing-in garages may encroach into required front yards up to ten
(10) feet.
2. Driveways:
i. Driveways fronting on a street shall be constructed of the
following materials: concrete, brick pavers, stone, interlocking
pavers, stamped concrete, or concrete with stone or brick border.
3. Fencing:
i. Privacy fences on single family residential lots shall be located ten
(10) feet behind the front elevation of the main building and shall
not exceed eight (8) feet in height above grade. All fencing
located on single family residential lots adjacent to open space,
parks, or floodplain shall consist of ornamental metal (wrought
iron or decorative tubular steel). Wooden fencing to be board on
board with metal post. A common wood fence stain color shall be
established for the property by the developer. Fencing abutting the
Glenbrooke Subdivision shall be wood board on board with metal
post.
4. Residential Landscaping:
i. A minimum of two (2) trees totaling – eight (8) caliper inches shall
be located in the front yard of all single family residential lots.
The Trees may be two large trees or one large tree and one
ornamental tree. All large trees shall be separated by a minimum
of twenty-five (25) feet from the next closest onsite or offsite large
tree. A minimum of fifteen (15) – three (3) gallon shrubs shall be
located in the front yard of all single family residential lots. All
plantings shall comply with the Town’s approved planting list in
the Zoning Ordinance.
5. Exterior Lighting:
i. All homes shall provide an exterior lighting package to illuminate
front entrances, and garages.
ii. Provide a minimum of two (2) up or down lights per street
elevation to accent building architectural or landscape features
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 5
visible from the street. Security lighting may not be substituted for
accent lighting.
6. Garages:
i. All garage doors shall incorporate the following details:
a. Single doors separated by column (In place of one large
single door)
b. Cast stone surrounds or ornamental brick accent
ii. No more than one third (1/3) of all garages doors shall be located
in front of the front door. All garage doors located in front of the
front door will have carriage style garage doors.
iii. Homes shall have a minimum of two (2) car garage spaces and no
more than three (3).
iv. No carports shall be permitted.
v. Homes with three (3) car garage spaces shall not have more than
two (2) garage doors facing the street. (Note that one 20’ door
counts as two garage doors).
vi. Garage doors shall be constructed of either metal or wood.
7. Exterior Surfaces:
i. The exterior facades of a main building or structure, excluding
glass windows and doors, shall be constructed of one hundred
(100) percent masonry. Cementitious fiber board is considered
masonry, but may only constitute fifty (50) percent of the area for
stories other than the first story. However, cementitious fiber board
may not be used as a façade cladding material for portions of upper
stories that are in the same vertical plane as the first story.
Cementitious fiber board may also be used for architectural
features, including window box-outs, bay windows, roof dormers,
garage door headers, columns, chimneys not part of an exterior
wall, or other architectural features approved by the Building
Official.
ii. Address Plaque. A cast stone address plaque
is required. The style of the cast stone address plaque shall be
uniform throughout each section of development.
iii. Stucco. Stucco on structures on shall be traditional 3-coat process
cement plaster stucco.
iv. EIFS. EIFS (Exterior Insulating and Finish
Process) is not allowed on structures.
8. Windows:
i. All window framing on structures shall be bronzed, cream, sand or
white anodized aluminum, vinyl or wood.
ii. Window shutters may be used on structures. Window shutters shall
be painted, stained wood, or fiberglass.
iii. No reflective window coverings or treatments shall be permitted.
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 6
9. Brick Detailing and Accenting
i. Provide brick or stone accents and detailing at all brick and stone
windows and garage door openings to include Pre-cast concrete
lintels, Rowlocks, Solider or Sailor Courses or Stone Surrounds.
Accents may include products such as specialty brick that varies
from the field by size or contrast color. Accents may occur at the
Head or Sill or around the entire window opening. No more than
one third (1/3) of residential lots may use unstained mortar.
10. Roofing:
i. Structures shall have a composition, slate or tile roof.
ii. The color of the composition roof must appear to be weathered
wood shingles, black or slate.
iii. Composition roof shingles must be laminated and have a minimum
warranty of 30 years or meet the Town’s Green Building
Ordinance, whichever is more restrictive.
iv. A minimum of sixty-five percent (65%) of the surface area of
composition roofs shall maintain a minimum roof pitch of 8:12. A
minimum of seventy-five percent (75%) of the surface area of clay
tile, cement tile, slate or slate products or metal roofs shall
maintain a minimum roof pitch of 3:12.
v. Pitched End Roofs shall be 100% guttered.
11. Plate Height:
i. Each structure shall have a minimum principal plate height of 9'
on the first floor.
12. Mailboxes:
i. Mail boxes shall be consistent throughout a subdivision and should
be constructed of masonry or ornamental metal, unless otherwise
required by the United States Postal Service.
13. Satellite Dishes:
i. Satellite dishes, limited to eighteen inches (18") in diameter or
smaller, mounted below the ridgeline on the roof, and not in public
view from the front of the home are permitted.
14. Air Conditioners:
i. No window or wall air conditioning units will be permitted on
structures.
ii. Air conditioning units and pool equipment shall be entirely
screened from view from adjacent public right-of-way by a
living screen consisting of evergreen shrubs, a solid
privacy fence, or through building orientation.
15. Plan Elevations:
i. Plan elevations shall alternate at a minimum of every four (4)
homes on the same side of a street and every three (3) homes on
opposite sides of the street.
16. Accessory Structures:
i. Accessory structures used as a garage, or a garage apartment, will
EXHIBIT "C"
Development Standards for the Preserve at Doe Creek
Page | 7
be allowed, subject to Chapter 4, Section 7 of the Zoning
Ordinance.
ii. Accessory structures shall be subject to the same exterior
construction and architectural standards as the main dwelling.
iii. Accessory structures shall be separate from the main dwelling by a
minimum of ten (10) feet, have a minimum rear yard setback of ten
(10) feet, and a minimum side yard setback of eight (8) feet.
General Requirements for the Preserve at Doe Creek
a. Development Plan:
i. A Conceptual Development Plan is hereby attached (Exhibit "D") and
made a part of these development standards. It establishes the most
general guidelines for the district by identifying the project boundaries,
land use types, approximate thoroughfare locations, R.O.W. dedication
and roads.
b. Maintenance of Facilities:
i. The Developers shall establish a Homeowner's Association ("HOA") for
single family residential areas in which membership is mandatory for each
lot, and that will be responsible for operation and maintenance of all
common areas and/or common facilities contained within the area of the
residential development or adjacent Right-of-Way ("ROW').
c. Conceptual Elevations:
i. Conceptual elevations are provided to indicate the direction and intent of
the design standards. Final designs may vary depending on the selected
builders but designs shall sustainably conform with the intent of the
attached designs.
EXHIBIT “E” THE PRESERVE AT DOE CREEK PLANNED DEVELOPMENT DISTRICT DEVELOPMENT SCHEDULE It is expected that the development of the Preserve at Doe Creek will begin within two to five years after approval of the planned development. During this period requisite studies, design and drawings will be prepared for the development and marketing of the property. Progress of the development will depend strongly on market trends and demands of the area. It is expected that the development of Doe Creek Crossing will be completed within 8 years of development approval.
A
A
SF-10
A
C
R
A
SF-15
SF-15
SFPD-40
RPD-51
FM 1385FISHTRAP RD
LANCASHIRE LNENGLISH IVY DRCRESTWOOD DRCHEROKEE ROSE TRLEXETER DR
STOCKPORT DR
COLCHESTER DR
OAKBROOK STKENT DRLINCOLN WOOD DRWESTMORELAND DRMANITOU DR
CANTERBURY DRCOVENTRY DR
BELLE MANOR DRNILES CTMAGNOLIA BLVD
MIMOSA CT
0 250 500 750125
Feet
1 inch = 500 feet
Z11-0008
Agenda Item No. __ - Page 1 of 1
To: Mayor and Town Council
From: Matthew B. Garrett, Finance Director
CC: Mike Land, Town Manager
Re: Town Council Meeting – July 12, 2011
Date: July 7, 2011
Agenda Item:
Consider and discuss the issuance of debt for the purpose of refunding existing debt of the
Town, funding drainage improvements and parks equipment.
Description of Agenda Item:
The Town has several refunding opportunities on existing debt. Refunding all eligible bonds
would allow the Town to take advantage of better than historical averages for short term rates.
The Certificates of Obligation Series 1996, 1998 and 2001 are callable as of August 15, 2011.
Estimated savings total about $220,017 over the next ten years.
There are several other projects being discussed that may also be best funded through debt
issuance. Staff has discussed Parks Equipment and Storm Drainage Utility projects as items to
consider in a future issuance. The Town’s Bond Counsel is reviewing the eligibility of Parks
Equipment as GO debt. Staff will present a few of these items to consider.
The Town’s Financial Advisor, Jason Hughes will be present to discuss the refunding and/or
answer any questions that may arise.
Budget Impact:
The refunding will reduce future year debt service payments by the projected annual savings.
Any new money issuance for Parks may shift future M&O costs to debt service. It is believed
the rate available through debt issuance will be less than any dollar-lease interest rate available.
Any new money issuance for Storm Drainage Utility will create a recurring debt expense in the
Utility and reduce the total available for maintenance budgets.
Legal Obligations and Review:
N/A
Attached Documents:
Refunding Bond Schedule and Savings Analysis
Schedule Estimating New Issuance Costs
Board/Committee Recommendation:
N/A
Town Staff Recommendation:
Town staff recommends that the Town Council review and give staff direction.
Prosper is a place where everyone matters.
Administration
Agenda Item No.
Town of ProsperDebt Repaid with Stormwater Utility Fund RevenuesABCDEFGTax Notes - August 2011 - 7 Years - 2.35%Certificates of Obligation - August 2011 - 10 Years - 2.77%YearPrincipal (1)Interest Total P+IPrincipal (1)Interest Total P+I20112012 75,000$ #16,750$ 91,750$ 45,000$ #18,972$ 63,972$ 201375 000#11 75086 75050 000#14 13864 138201375,000 #11,750 86,750 50,000 #14,138 64,138 2014 80,000 ##10,200 90,200 55,000 ##13,088 68,088 2015 80,000 ##8,600 88,600 55,000 ##11,988 66,988 2016 85,000 ##6,525 91,525 55,000 ##10,613 65,613 2017 85,000 ##3,975 88,975 60,000 ##8,888 68,888 ,,,,,,2018 90,000 ##1,350 91,350 60,000 ##7,088 67,088 2019 60,000 ##5,288 65,288 2020 65,000 ##3,331 68,331 2021 65,000 ##1,138 66,138 570,000$ 59,150$ 629,150$ 570,000$ 94,528$ 664,528$ (1) Sizing includes estimated costs of issuance.
Town of ProsperSummary of Potential RefundingABCDEFGHYearPrincipal InterestTotal P+I PrincipalInterest (2)Total P+ISavingsRefunded Debt Service (1)Refunding Debt ServiceYearPrincipalInterestTotal P+IPrincipalTotal P+ISavings20112012 230,000$ 111,345$ 341,345$ 265,000$ 57,926$ 322,926$ 18,419$ 2013 245,000 100,220 345,220 270,000 53,163 323,163 22,058 2014 255,000 #88,163 343,163 270,000 #47,763 317,763 25,400 2015265 000#75 461340 461270 000#42 363312 36328 0992015265,000 #75,461 340,461 270,000 #42,363 312,363 28,099 2016 280,000 #61,963 341,963 280,000 #35,463 315,463 26,500 2017 225,000 #49,945 274,945 220,000 #27,963 247,963 26,983 2018 230,000 #39,295 269,295 225,000 #21,288 246,288 23,008 2019 180,000 #28,320 208,320 175,000 #15,288 190,288 18,033 2020190 000#19 500209 500185 000#9 656194 65614 8442020190,000 #19,500 209,500 185,000 #9,656 194,656 14,844 2021 200,000 #10,000 210,000 190,000 #3,325 193,325 16,675 2,300,000$ 584,211$ 2,884,211$ 2,350,000$ 314,194$ 2,664,194$ 220,017$ (1) Assumes refunding all of the Series 1996 Certificates, SeriesEstimated Present Value Savings 169,691$ 1998 Certificates and Series 2001 Certificates.(2) Based on current market rates as of 7.7.11 plus 0.10%;Estimated % of Refunded Bonds Savings 7.378% preliminary, subject to change.
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 1 of 26
026881.0100\597803.08
STATE OF TEXAS § After Recording Return to:
§ Town Manager
COUNTIES OF COLLIN § Town of Prosper
AND DENTON § P.O. Box 307
Prosper, Texas 75078
WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT
THIS WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT
(the "Agreement") is made and entered into to be effective as of this ____ day of
_______________, 2011, (the "Effective Date") by and among FOREST CITY PROSPER
LIMITED PARTNERSHIP ("Forest City") and PROSPER PARTNERS L.P. ("Prosper
Partners", collectively with Forest City and Prosper Partners are sometimes hereinafter
individually referred to as a "Developer" and jointly as the "Developers"), and the TOWN OF
PROSPER, TEXAS ("Town")(collectively the "Parties" and individually a "Party"), on the
terms and conditions hereinafter set forth.
W I T N E S S E T H:
WHEREAS, Developers collectively own approximately _____ acres of property that is
the subject of this Agreement, being more particularly depicted on Exhibit A attached hereto and
incorporated herein by reference and reflecting the general location of the designated Areas
referred to herein (and defined in Paragraph 1 below), which consists of each Tract (as defined in
Paragraph 1 below) described by metes and bounds in an exhibit to this Agreement;
WHEREAS, Forest City owns approximately _________ acres of land (the "Forest City
Tract") located in the Prosper, Denton County, Texas which Forest City Tract is more
particularly described on Exhibit B and depicted on Exhibit B-1, attached hereto and
incorporated herein by reference, and designated thereon as Area 11;
WHEREAS, Prosper Partners owns approximately 477.818 acres of land (the "Prosper
Partners Tract") located in Prosper, Collin County and Denton County, Texas which Prosper
Partners Tract is more particularly described on Exhibit C and depicted on Exhibit C-1, attached
hereto and incorporated herein by reference, and designated thereon as Areas 8, 13 and 13A;
WHEREAS, the Water Improvements (as defined in Paragraph 3(b) below) and Sewer
Improvements (as defined in Paragraph 4(b) below, and collectively with the Water
Improvements, the "Improvements") will be constructed to serve the Forest City Tract and the
Prosper Partners Tract, which Improvements will be located as generally depicted on Exhibit D,
attached hereto and incorporated herein be reference;
WHEREAS, subject to the terms and provisions hereof, the Developers desire to
construct the Improvements so that their respective Tracts and improvements to be constructed
thereon will receive water and sanitary sewer service; and
WHEREAS, each Developer desires to fulfill its respective obligation to pay Water
Impact Fees (as defined in Paragraph 3(a) below) and Sewer Impact Fees (as defined in
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 2 of 26
026881.0100\597803.08
Paragraph 4(a) below) as prescribed in Town Ordinance No. 95-01, amended by Ordinance Nos.
96-17, 01-24, 02-19, 02-57 and 06-91, as they exist or may be hereafter amended (individually
and collectively, the "Impact Fee Ordinance") as provided in this Agreement, which is authorized
by Texas Local Government Code Section 212.071, et. seq.
NOW, THEREFORE, for and in consideration of the mutual covenants of the Parties
set forth in this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are acknowledged and agreed by the Parties, the Parties agree as follows:
1. Land Subject to Agreement. The land that is subject to this Agreement is the Forest
City Tract and the Prosper Partners Tract, which are each divided into Areas (as defined below)
and depicted on Exhibit A (each, a "Tract" and collectively, the "Property", with each Tract
being divided into one (1) or more numbered "Areas" on Exhibit A). Forest City and Prosper
Partners each represent that it is the sole owner of its respective Tract or has the authority to
commit said Tract to this Agreement.
2. Easements for Water and Sewer Improvements. (a) Within one hundred eighty (180)
days of the Effective Date, Developers agree to convey easements, free and clear of liens and
encumbrances, by instrument acceptable to the attorney for the Town, which is expected to be
generally located as depicted in Exhibit D containing _____ acres, more or less, with the actual
locations to be determined by Town upon completion of the final engineering (the "Easement
Parcels"), which shall include a permanent water and sewer line easement, each being a
minimum of fifteen (15) feet wide and an additional minimum fifty (50) foot wide temporary
construction easement that expires upon completion of construction (the "Temporary
Construction Easement"). The final widths of the Easement Parcels will be determined upon
completion of the final engineering, as approved by the Town. The width of the applicable
Easement Parcel shall be approximately one and one-half times the depth at which the applicable
Improvements will be buried and the applicable Temporary Construction Easement shall have a
width that is two times wider that the width of the applicable Easement Parcel, but not less than
fifty (50) feet, unless otherwise approved by the Town. The easement instruments shall be in
substantially the same form as the easements attached hereto as Exhibit E-1, Exhibit E-2,
Exhibit E-3 and Exhibit E-4.
(b) The Parties shall cooperate with each other in obtaining from any third parties (other than
the Parties hereto) any and all easements, including, but not limited to, permanent easements and
temporary construction easements (the "Third Party Water and Sewer Improvement Easements"
and "Third Party Temporary Construction Easements" respectively) to the extent such Third
Party Water and Sewer Improvement Easements and Third Party Temporary Construction
Easements are necessary or appropriate, as reasonably determined by the Town based upon the
final engineering with respect to the Easement Parcel, for timely construction, completion and
dedication of the Improvements required herein. The Third Party Water and Sewer Improvement
Easements and Third Party Temporary Construction Easements shall be in substantially the same
form as the easements attached hereto as Exhibit E-1, Exhibit E-2, Exhibit E-3 and Exhibit E-4.
(i) Developers' Responsibilities. Each Developer shall be responsible for a
portion of the actual Easement Acquisition Fees (hereinafter defined) associated with
acquiring, by purchase, dedication or condemnation, all Third Party Water and Sewer
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 3 of 26
026881.0100\597803.08
Improvement Easements and Third Party Temporary Construction Easements in a
percentage equal to the proportion that such Developer's aggregate contributions for the
Improvements bears to the total contributions by Developers for the Improvements (such
percentage, the "Developer's Share"). If Easement Acquisition Fees include amounts for
any hard costs (including, but not limited to, tees, fire hydrants and meters) , Developers
and Town shall each be responsible for a portion thereof in a percentage equal to the
proportion that such Developer’s or Town’s aggregate contributions for the
Improvements bears to the total contributions by Developers and Town for the
Improvements. For purposes of this Agreement, "Easement Acquisition Fees" shall
mean any and all reasonable third party costs and expenses incurred for or in connection
with acquiring the Third Party Water and Sewer Improvement Easements and Third
Party Temporary Construction Easements, whether by condemnation or otherwise,
including, but not limited to, title work, appraisals, expert fees, attorneys' fees and
expenses, engineering fees and expenses, surveying fees and expenses, land costs, court
costs, commissioner's fees, amounts awarded by commissioners, and costs of appeal, if
any. Developers shall lead all easement acquisition efforts for the Third Party Water and
Sewer Improvement Easements and Third Party Temporary Construction Easements,
including, but not limited to, providing all necessary engineering and surveying support
required to obtain the Third Party Water and Sewer Improvement Easements and Third
Party Temporary Construction Easements. Developers shall be responsible for any and
all Easement Acquisition Fees. Any and all Easement Acquisition Fees incurred by
Developers in the acquisition of the Third Party Water and Sewer Improvement
Easements and Third Party Temporary Construction Easements shall be excluded in the
Water Improvement Costs (as defined in Paragraph 3(d) below) and Sewer Improvement
Costs (as defined in Paragraph 3(d) below). Town shall notify Developers of the amount
of the Easement Acquisition Fees on the first (1st) day of each month. Developers shall
pay Town the Easement Acquisition Fees each month within thirty (30) days of the date
of such Developer's receipt from Town of the notice of the Easement Acquisition Fees
incurred since the last such notice. Developers may not terminate this Agreement based
upon the amount of Easement Acquisition Fees incurred by Town unless the Easement
Acquisition Fees exceed $150,000. If Developers believe that any settlement by Town
with a property owner on the fair market value of the property to be taken by
condemnation proceedings is excessive, Developers may direct Town to pursue, at
Developers' sole cost and expense, a special commissioners' hearing regarding
determination of fair market value for such property.
(ii) Town's Rights and Responsibilities. Subject to Developers'
reimbursement obligation set forth in Paragraph 2(b)(i) above, Town will institute, at any
time upon the written request of the Developers, condemnation proceedings with respect
to Third Party Water and Sewer Improvement Easements and Third Party Temporary
Construction Easements and provide other assistance to Developers reasonably deemed
necessary by Town, including assistance with negotiations prior to instituting
condemnation, for the acquisition of the Third Party Water and Sewer Improvement
Easements and the Third Party Temporary Construction Easements, and Town shall
review and approve any and all documents associated with the Third Party Water and
Sewer Improvement Easements and the Third Party Temporary Construction Easements.
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 4 of 26
026881.0100\597803.08
Subject to the provisions of Paragraph 2(d) below, if the Parties determine that
condemnation proceedings are necessary to secure the Third Party Water and Sewer
Improvement Easements and/or the Third Party Temporary Construction Easements,
Town shall, subject to the Developers' reimbursement obligation set forth in
Paragraph 2(b)(i) above, to take any and all steps Town deems necessary to initiate said
proceedings.
(c) Without limiting the foregoing, the obligations of Developers in Paragraph 3 below shall
be conditioned upon obtaining, or initiating condemnation procedures to obtain, the Third Party
Water and Sewer Improvement Easements and the Third Party Temporary Construction
Easements within the time period specified in Paragraph 2(d) below. In this regard, the
commencement of construction of the Improvements or any portion thereof shall not begin prior
to the date, whichever is earlier, that (i) such Third Party Water and Sewer Improvement
Easements and the Third Party Temporary Construction Easements are filed and recorded, (ii) a
right of entry is secured, (iii) a condemnation award is tendered with the appropriate Registry of
the court, and/or (iv) a right of possession by any other means is obtained in a form deemed
acceptable solely by the Town.
(d) If the Third Party Water and Sewer Improvement Easements and the Third Party
Temporary Construction Easements are not obtained with respect to the applicable land, in a
form reasonably acceptable to the Town or a right to possess the same has not been obtained,
within one hundred eighty (180) days after the Effective Date on terms reasonably acceptable to
the Town, then the Town shall commence, and provide written notice to Developers of such
commencement and thereafter diligently pursue to completion, condemnation proceedings,
subject to the Developers' reimbursement obligation set forth in Paragraph 2(b)(i) above, to
obtain such Third Party Water and Sewer Improvement Easements and the Third Party
Temporary Construction Easements as soon as reasonably possible; provided Town shall
commence such proceedings prior to the expiration of such one hundred eighty (180) day period
upon request of Developers as provided in Paragraph 2(b)(ii) above.
3. Water Improvements. (a) Subject to the provisions of this Paragraph 3 and this
Agreement, the Property will be assessed water impact fees at the rates then in effect pursuant to
the Impact Fee Ordinance as it presently exists or may be subsequently amended ("Water Impact
Fees").
(b) Pursuant to the terms and provisions hereof and in that certain "Water and Sewer
Improvement Construction Agreement" (herein so called) entered between and among the
Developers of even date herewith, each Developer has agreed to construct and fund the amount
identified as such Developer's Financial Contribution for Water Improvements identified in
Paragraph 3(c)(i)(A) for the Water Improvement Costs (as defined in Paragraph 3(d) below)
relating to the construction of a regional water trunk line from Preston Road along State
Highway 380 to eastern portion of the Forest City Tract (the "Water Improvements"); provided,
however, the Parties agree that this Agreement and the Developers', individual and collective
obligations set forth herein are in no way contingent upon and/or subject to the Water and Sewer
Improvement Construction Agreement. The Parties agree that this Agreement and the Water
and Sewer Improvement Construction Agreement are separate and distinct agreements, and this
Agreement shall not be conditioned, contingent nor reliant on the Water and Sewer
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 5 of 26
026881.0100\597803.08
Improvement Construction Agreement and/or any other agreement. The Town shall fund the
amount identified in Paragraph 3(c)(i)(C) towards the Water Improvement Costs. The Water
Improvements shall be constructed and installed in the locations generally depicted on Exhibit D
attached hereto and in accordance with engineering plans, specifications and designs approved
by the Town's engineer, which approval shall not be unreasonably withheld or delayed. Unless
otherwise specified herein or in a separate written agreement between the Town and any of the
Developers with respect to that portion of the Water Improvements on that portion of the
Property owned by such Developer, such portion of the Water Improvements shall be completed
and accepted by the Town prior to the Town's final acceptance of any final plat(s) for any of the
Tracts, or portion thereof, and shall be dedicated to the Town prior to or contemporaneously with
the filing of the first final plat in the Collin and/or Denton County Land Records for any portion
of the Property to be developed. Conveyance plats may be approved and recorded at any time in
accordance with the ordinances of Town, including, but not limited to, the Town's Subdivision
Regulations, and state law. Notwithstanding the foregoing, if (i) a final plat has been approved
but not yet released by Town for filing, (ii) construction of the Water Improvements has
commenced, and (iii) the applicant signs a waiver in the form attached hereto as Exhibit F, the
Town will issue building permits for at least two (2) model homes per builder for each
Developer's respective Tract; however no certificates of occupancy will be issued for any
structure constructed under a building permit authorized by this sentence until the applicable
portion of the Water Improvements are finally accepted by the Town and a final plat approved by
the Town that contains the lot for which the certificate of occupancy is sought is filed in the
Collin and/or Denton County Land Records.
(c) Provided that (i) that portion of the Water Improvements are completed and
accepted by the Town, and (ii) any of the Developers provides evidence, in a form reasonably
acceptable to the Town, that all Water Improvement Costs have been paid by such Developer,
including, but not limited to, Affidavits of Payment/Affidavits as to Debts and Liens, each
applicable Developer shall receive reimbursement of its respective portion of the Water
Improvement Costs from the Water Impact Fees collected by the Town related to service from
the Water Improvements in the following amounts, subject to the provisions of this Agreement:
(i) a reimbursement of the Water Improvement Costs paid to each
Developer up to the following amounts ("Water Costs Reimbursement"), subject
to Paragraph 3(d):
(A) Calculations were determined as follows:
Owner Developer's
Financial
Contribution for
Water
Improvements
Water Costs
Reimbursement
Developer's Pro-
rata Share
Prosper Partners $616,000 $1,078,000 21.8%
Forest City $2,216,000 $3,878,000 78.2%
Totals: $2,832,000 $4,956,000 100%
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 6 of 26
026881.0100\597803.08
(B) Reimbursements shall be made to Developers as follows:
Tract Owner Water Costs
Reimbursement
Prosper Partners Tract Prosper Partners $1,078,000
Forest City Tract Forest City $3,878,000
Totals: $4,956,000
(C) Town's maximum financial contribution for Water Improvements
shall be Four Hundred Seventy-Eight Thousand and no/100 Dollars
($478,000.00) or fourteen and 45/100 percent (14.45%) of the Water
Improvement Costs, whichever is less ("Town's Maximum Financial
Contribution for Water Improvements"), which shall be reduced as
provided in Paragraph 5(c)(viii). The Parties acknowledge that the Town
may enter into a separate agreement with the Prosper Economic
Development Corporation for assistance with payment of Town's
Maximum Financial Contribution for Water Improvements and consent to
such agreement being entered. In the event the actual Water Improvement
Costs (as defined in Paragraph 3(d)) are less than the Estimated Water
Improvement Costs (as defined in Paragraph 3(d)), any unused portion of
Town's Maximum Financial Contribution for Water Improvements shall
be applied to Excess Sewer Improvement Costs (as defined in
Paragraph 4(d)), if any.
(ii) All Water Impact Fees collected for each Tract by the Town shall
be paid by the Town to the Developer of said Tract on a quarterly basis within
thirty (30) days following each March 31, June 30, September 30 and
December 31 until each Developer has received the full amount of Water Costs
Reimbursements, as it may be adjusted in accordance with this Agreement. Each
Developer acknowledges and agrees that the Water Impact Fees collected for any
Tract may be less than the Water Costs Reimbursement to which Developer is
entitled and Town does not guarantee the amount of Water Impact Fees that will
be collected and Town is only responsible to Developers for actual Water Impact
Fees collected, whether equal to or less than the Water Costs Reimbursement.
(iii) Once the Water Costs Reimbursement has been fully paid to a
Developer, the Water Impact Fees that may continue to be collected with respect
to such Developer's Tract shall be paid by Town to the other Developer. For
illustrative purposes only: if the Prosper Partners Tract develops prior to the
Forest City Tract and Prosper Partners has received all of its Water Costs
Reimbursement, but Water Impact Fees continue to be collected from the Prosper
Partner Tract, the Town will pay Water Impact Fees collected from the Prosper
Partner Tract to Forest City, and the amount of Water Cost Reimbursement owed
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 7 of 26
026881.0100\597803.08
for the Forest City Tract will be reduced dollar for dollar, to the extent not
previously fully reimbursed.
(iv) All Water Impact Fees collected by the Town related to service
from the Water Improvements, including fees collected with respect to service to
property other than the Property, shall be paid to Developer until all amounts due
to Developers hereunder have been paid in full. A depiction of the service area
for the Water Improvements for each Tract is attached hereto as Exhibit A-1 and
made a part hereof (collectively, the "Water Service Areas"). All impact fees for
water service collected in the Water Service Areas shall be applied by Town to
the Water Costs Reimbursement. The Water Service Areas may be expanded
from time to time and, upon such expansion, Exhibit A-1 shall be amended
accordingly.
(d) The estimated Water Improvement Costs for the Water Improvements are
Three Million Three Hundred Ten Thousand and No/100 Dollars ($3,310,000.00) not
including any third party costs for easement acquisitions or Easement Acquisition Fees
(the "Estimated Water Improvement Costs"), as such Estimated Water Improvement
Costs are more particularly described in Exhibit G, attached hereto and incorporated
herein for all purposes. Developers and Town each agree that it shall be responsible for
that portion of the Estimated Water Improvement Costs as set forth on Exhibit G. The
phrase "Water Improvement Costs" as used in this Agreement shall mean all actual costs
and expenses incurred by or on behalf of the Developers, solely and directly in
connection with the Water Improvements for: (i) engineering, designing, staking,
installing, construction management, constructing, testing and inspecting the Water
Improvements, (ii) materials and labor, and (iii) all permits, licenses and other fees and
charges of any governmental authorities actually incurred; provided, however, the Town
hereby agrees that it shall not charge or assess any of the Developers or their contractors
or agents for any inspections or permits relating to construction of the Water
Improvements. The Parties acknowledge and agree that any Water Improvement Costs
incurred by the Developers in excess of the Estimated Water Improvement Costs (such
excess Water Improvement Costs are hereinafter collectively referred to as the "Excess
Water Improvement Costs") shall be borne solely by all Developers and Town shall not
pay any Excess Water Improvement Costs, except as provided in Paragraph 4(c)(i)(C).
To the extent the Excess Water Improvement Costs paid by each Developer exceeds the
amount of Developer's Financial Contribution for Water Improvements listed in the Table
in Paragraph 3(c)(i)(A) said amount shall be increased dollar for dollar; then the amount
listed as Water Costs Reimbursement Amounts by Area in the Table in
Paragraph 3(c)(i)(A) shall be increased by multiplying 1.75 by the amount of Excess
Water Improvement Costs paid for an Area with the Total Water Costs Reimbursement
Amount in the Table in Paragraph 3(c)(i)(B) being increased by the same amount. Town
shall not reimburse Developers' cost for Easement Acquisition Fees or attorneys' fees and
such costs shall not be included in the Water Improvement Costs.
(e) Subject to the provisions of Paragraphs 2(c) and (d) hereof, and subject to
elements of force majeure (hereinafter defined), the Water Improvements shall be
completed by the Developers and accepted by the Town within twelve (12) months after
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 8 of 26
026881.0100\597803.08
commencement of construction of the Water Improvements. The phrase "force majeure"
as used herein shall mean acts of God, strikes, lockouts, material or labor shortages, civil
riots, floods, inclement weather, and any other cause not reasonably within the control of
any of the Developers and which by the exercise of due diligence the Developers,
individually and/or collectively, is/are unable, wholly or in part, to prevent or overcome.
4. Sewer Improvements. (a) Subject to the provisions of this Paragraph 4 and this
Agreement, the Property will be assessed sewer impact fees of rates then in effect pursuant to the
Impact Fee Ordinance as it presently exists or may be subsequently amended (the "Sewer Impact
Fees").
(b) Pursuant to the terms and provisions hereof and in the Water and Sewer
Improvement Construction Agreement, each Developer has agreed to construct and fund the
amount identified as such Developer's Financial Contribution for Sewer Improvements identified
in Paragraph 4(c)(i)(A) for the Sewer Improvement Costs (as defined in Paragraph 4(d) below)
relating to the construction of a regional sewer trunk line from the western portion of the Forest
City Tract east to the western boundary of the Prosper Partners Tract (the "Sewer
Improvements"); provided, however, the Parties agree that this Agreement and the Developers',
individual and collective obligations set forth herein are in no way contingent upon and/or
subject to the Water and Sewer Improvement Construction Agreement. The Parties agree that
this Agreement and the Water and Sewer Improvement Construction Agreement are separate and
distinct agreements, and this Agreement shall not be conditioned, contingent nor reliant on the
Water and Sewer Improvement Construction Agreement and/or any other agreement. The Town
shall fund the amount identified in Paragraph 4(c)(i)(C) towards the Sewer Improvement Costs.
The Sewer Improvements shall be constructed and installed in the locations generally depicted
on Exhibit D attached hereto and in accordance with engineering plans, specifications and
designs approved by the Town's engineer, which approval shall not be unreasonably withheld or
delayed. Unless otherwise specified herein or in a separate written agreement between the Town
and any of the Developers with respect to that portion of the Sewer Improvements on that portion
of the Property owned by such Developer, such portion of the Sewer Improvements shall be
completed and accepted by the Town prior to the Town's final acceptance of any final plat(s) for
any of the Tracts, or portion thereof, and shall be dedicated to the Town prior to or
contemporaneously with the filing of the first final plat in the Collin and/or Denton County Land
Records for any portion of the Property to be developed. Conveyance plats may be approved
and recorded at any time in accordance with the ordinances of Town, including, but not limited
to, the Town's Subdivision Regulations, and state law. Notwithstanding the foregoing, if (i) a
final plat has been approved but not yet released by Town for filing, (ii) construction of the
Sewer Improvements has commenced, and (iii) the applicant signs a waiver in the form attached
hereto as Exhibit F, the Town will issue building permits for at least two (2) model homes per
builder per Tract; however no certificates of occupancy will be issued for any structure
constructed under a building permit authorized by this sentence until the applicable portion of the
Sewer Improvements are finally accepted by the Town and a final plat approved by the Town
that contains the lot for which the certificate of occupancy is sought is filed in the Collin and/or
Denton County Land Records.
(c) Provided that (i) the Sewer Improvements are completed and accepted by the
Town, and (ii) any of the Developers provides evidence, in a form reasonably acceptable to the
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 9 of 26
026881.0100\597803.08
Town, that all Sewer Improvement Costs have been paid by such Developer, including, but not
limited to, Affidavits of Payment/Affidavits as to Debts and Liens, each applicable Developer
shall receive reimbursement of Sewer Impact Fees collected by the Town related to service from
the Sewer Improvements in the following amounts, subject to the provisions of this Agreement:
(i) a reimbursement of the Sewer Improvement Costs paid to each
Developer up to the following amounts ("Sewer Costs Reimbursement"), subject
to Paragraph 4(d):
(A) Calculations were determined as follows:
Owner Developer's
Financial
Contribution for
Sewer
Improvements
Sewer Costs
Reimbursement
Developer's Pro-
rata Share
Prosper Partners $400,000 $800,000 30.8%
Forest City $900,000 $1,800,000 69.2%
Totals: $1,300,000 $2,600,000
(B) Reimbursements shall be made to Developers as follows:
Tract Owner Sewer Costs
Reimbursement
Prosper Partners Tract Prosper Partners $800,000
Forest City Tract Forest City $1,800,000
Totals: $2,600,000
(C) Town's maximum financial contribution for Sewer
Improvements shall be Four Hundred Fifty Thousand and no/100 Dollars
($450,000.00) or twenty-five and 75/100 percent (25.75%) of the Sewer
Improvement Costs price, whichever is less ("Town's Maximum Financial
Contribution for Sewer Improvements"), which shall be reduced as provided in
Paragraph 5(c)(viii). The Parties acknowledge that the Town may enter into a
separate agreement with the Prosper Economic Development Corporation for
assistance with payment of Town's Maximum Financial Contribution for Water
Improvements and consent to such agreement being entered. In the event the
actual Sewer Improvement Costs (as defined in Paragraph 4(d)) are less than the
Estimated Sewer Improvement Costs (as defined in Paragraph 4(d)), any unused
portion of Town's Maximum Financial Contribution for Sewer Improvements
shall be applied to Excess Water Improvement Costs, if any.
(ii) All Sewer Impact Fees collected for each Tract by the Town shall
be paid by the Town to the Developer of said Tract on a quarterly basis within
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 10 of 26
026881.0100\597803.08
thirty (30) days following each March 31, June 30, September 30 and
December 31 until each Developer has received the full amount of Sewer Costs
Reimbursements, as it may be adjusted in accordance with this Agreement. Each
Developer acknowledges and agrees that the Sewer Impact Fees collected for any
Tract may be less than the Sewer Costs Reimbursement to which Developer is
entitled and Town does not guarantee the amount of Sewer Impact Fees that will
be collected and Town is only responsible to Developers for actual Sewer Impact
Fees collected from the Property, whether equal to or less than the Sewer Costs
Reimbursement.
(iii) Once the Sewer Costs Reimbursement has been fully paid to a
Developer, the Sewer Impact Fees that may continue to be collected shall be paid
by Town to the other Developer. For illustrative purposes only: if the Prosper
Partners Tract develops prior to the Forest City Tract and Prosper Partners has
received all of its Sewer Costs Reimbursement, but Sewer Impact Fees continue
to be collected from the Prosper Partner Tract, the Town will pay Sewer Impact
Fees collected from the Prosper Partner Tract to Forest City, and the amount of
Sewer Cost Reimbursement owed for the Forest City Tract will be reduced dollar
for dollar, to the extent not previously fully reimbursed.
(iv) All Sewer Impact Fees collected by the Town related to service
from the Sewer Improvements, including fees collected with respect to service to
property other than the Property, shall be paid to Developer until all amounts due
to Developers hereunder have been paid in full. A depiction of the service areas
for the Sewer Improvements for each Tract is attached hereto as Exhibit A-2 and
made a part hereof (collectively, the "Sewer Service Areas"). All impact fees for
sewer service collected in the Sewer Service Areas shall be applied by Town to
the Sewer Costs Reimbursement. The Sewer Service Areas may be expanded
from time to time and upon on such expansion, Exhibit A-2 shall be amended
accordingly.
(d) The estimated Sewer Improvement Costs for the Sewer Improvements are
One Million Seven Hundred Fifty Thousand and No/100 Dollars ($1,750,000.00) not
including any third party costs for easement acquisitions or Easement Acquisitions Fees
(the "Estimated Sewer Improvement Costs"), as such Estimated Sewer Improvement
Costs are more particularly described in Exhibit G, attached hereto and incorporated
herein for all purposes. Developer and Town each agree that it shall be responsible for
that portion of the Estimated Sewer Improvement Costs as set forth on Exhibit G. The
phrase "Sewer Improvement Costs" as used in this Agreement shall mean all actual costs
and expenses incurred by or on behalf of the Developers, solely and directly in
connection with the Sewer Improvements, for: (i) engineering, designing, staking,
installing, construction management, constructing, testing and inspecting the Sewer
Improvements, (ii) materials and labor, and (iii) all permits, licenses and other fees and
charges of any governmental authorities actually incurred; provided, however, the Town
hereby agrees that it shall not charge or assess any of the Developers or their contractors
or agents for any inspections or permits relating to construction of the Sewer
Improvements. The Parties acknowledge and agree that any Sewer Improvement Costs
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 11 of 26
026881.0100\597803.08
incurred by the Developers in excess of the Estimated Sewer Improvement Costs (such
excess Sewer Improvement Costs are hereinafter collectively referred to as the "Excess
Sewer Improvement Costs") shall be borne solely by all Developers and Town shall not
pay any Excess Sewer Improvement Costs, except as provided in Paragraph 3(c)(i)(C).
To the extent the Excess Sewer Improvement Costs paid by each Developer exceeds the
amount of Developer's Financial Contribution for Sewer Improvements listed in the
Table in Paragraph 4(c)(i)(A) said amount shall be increased dollar for dollar; then the
amount listed as Sewer Costs Reimbursement Amounts by Area in the Table in
Paragraph 4(c)(i)(A) shall be increased by multiplying 2.0 by the amount of Excess
Sewer Improvement Costs paid for an Area with the Total Sewer Costs Reimbursement
Amount in the Table in Paragraph 4(c)(i)(B) being increased by the same amount. Town
shall not reimburse Developers' costs for Easement Acquisition Fees or attorneys' fees
and such costs shall not be included in the Sewer Improvement Costs.
(e) Subject to the provision of Paragraphs 2(c) and (d) hereof, and subject to
elements of force majeure, the Sewer Improvements shall be completed by the
Developers and accepted by the Town within twelve (12) months after commencement of
construction of the Sewer Improvements.
5. Construction and Escrow. (a) Developers covenants and agrees to commence
construction of the Improvements on or before March 1, 2012. Developer shall be
deemed to have "commenced construction" on the date all of the following have occurred
(the "Construction Commencement Date"): (i) all Third Party Water and Sewer
Improvement Easements have been executed and delivered, or Developers are diligently
pursuing such execution and delivery; (ii) the engineering plans, specifications and
designs for the Improvements have been approved by Town's engineer, which approval
shall not be unreasonably withheld or delayed; and (iii) the initial preconstruction
meeting between Developer and Town's engineer has been held, or Developers have
notified Town they are available to meet. Upon request by a Developer, Town agrees to
provide Developers with a written notice acknowledging the Construction
Commencement Date or indicating any unsatisfied condition for Developers to be
deemed to have commenced construction.
(b) All construction and design documents and plans shall be provided to
Town within thirty (30) days of the Effective Date, and reviewed and approved, in
writing, by the Town prior to Developers seeking bids for construction. Developers shall
provide Town a reasonable amount of time to review the construction and design
documents and plans and provide written comments to Developers, however, final
approval thereof shall be within the Town's sole discretion. Developers shall use their
best efforts to receive proposals for the construction of the Water Improvements and the
Sewer Improvements from a minimum of three (3) qualified contractors and shall provide
copies of proposals received to Town within five (5) business days of receipt of same.
Developers shall provide Town a reasonable amount of time to review the proposals and
provide written comments to Developers. Developers may reject any proposal received
and may continue to seek additional proposals after having received proposals.
Developers shall: (i) execute a contract or contracts (each, a "Contract", and collectively,
the "Contracts") for the construction of the Water Improvements and the Sewer
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 12 of 26
026881.0100\597803.08
Improvements with the bidder or bidders providing the best value (whether one or more,
the "Contractor"), as reasonably determined by the Developers, which Contract or
Contracts shall require Contractors to commence construction within thirty (30) days of
the execution thereof; (ii) cause the Contractor to construct and complete the Water
Improvements and the Sewer Improvements in accordance with the Town-approved
engineering plans, specifications and designs; and (iii) obtain Town's acceptance of the
Water Improvements and Sewer Improvements. Developers shall not unreasonably delay
execution of a contract with the Contractor. Developers shall give the Town written
notice that a bid award has been announced on the same date of such announcement (the
"Bid Award Notice"). The Bid Award Notice shall be announced by Developers on or
before thirty (30) days after the later of (i) approval of all construction and design
documents and plans by the Town, or (ii) execution and delivery of all Third Party Water
and Sewer Improvements Easements and Third Party Temporary Construction
Easements. Each Developer represents and warrants that it will execute a Contract or
Contracts with the Contractor even if the contract price exceeds the Estimated Water
Improvements Costs or Estimated Sewer Improvement Costs, so long as the actual
contract price at the time of execution of the Contract or Contracts with the Contractor
does not exceed the Estimated Water Improvement Costs and Estimated Sewer
Improvement Costs by fifteen percent (15%) in the aggregate.
(c) Simultaneously with the execution of this Agreement, Town and each
Developer shall deposit with the Town as escrow agent ("Escrow Agent") ten percent
(10%) of their respective portion of the Estimated Water Improvement Costs and
Estimated Sewer Improvement Costs for such Party identified on Exhibit G. Within ten
(10) days of commencement of construction of the Water Improvements, Town and each
Developer shall deposit with Escrow Agent thirty-five percent (35%) of their respective
portion of the Estimated Water Improvement Costs identified on Exhibit G. Within
ninety (90) days after commencement of construction of the Water Improvements, Town
and each Developer shall deposit with Escrow Agent the remaining fifty-five percent
(55%) of their respective portion of the Estimated Water Improvement Costs for such
party identified on Exhibit G. Within ten (10) days of commencement of construction of
the Sewer Improvements, Town and each Developer shall deposit with Escrow Agent
thirty-five percent (35%) of their respective portion of the Estimated Sewer Improvement
Costs identified on Exhibit G. Within ninety (90) days after commencement of
construction of the Sewer Improvements, Town and each Developer shall deposit with
Escrow Agent the remaining fifty-five percent (55%) of their respective portion of the
Estimated Sewer Improvement Costs for such party identified on Exhibit G. All of the
foregoing shall be collectively referred to as the "Escrowed Costs." The Escrowed Costs
shall be held in escrow for the construction of the Water Improvements and the Sewer
Improvements in accordance with this Agreement and subject to the following
provisions:
(i) Each Developer acknowledges and agrees that the Escrowed Costs
deposited by such Developer may or may not satisfy all Water Improvement
Costs and Sewer Improvement Costs owed and each Developer hereby agrees to
tender its proportionate share (to be calculated based on the proportionate shares
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 13 of 26
026881.0100\597803.08
set forth in Paragraph 3(c)(i) and Paragraph 4(c)(i) above) of any Excess Water
Improvement Costs or Excess Sewer Improvement Costs.
(ii) Upon receipt from Developers, the Escrowed Costs received in
cash will be deposited by Escrow Agent in an interest bearing account and will be
released and paid to the Contractor as provided herein. The Escrowed Costs shall
be released as the Contractor submits to Developers or Designated Developer (as
defined below), in writing, requests for progress payments for the Water
Improvement Costs or the Sewer Improvement Costs, or portions thereof,
accompanied by invoices evidencing the amount being requested in accordance
with the executed Contract for construction, a conditional lien release for all
invoices being submitted and complete and full lien releases for the prior month's
invoice to the extend payment was made to the Contractor (the "Requested
Release"). The Contract executed between Developers and Contractor shall
provide that Contractor shall submit each Requested Release to Developers or
Designated Developer no more often than monthly, with all required invoices and
lien releases. Developers will then submit it to Town with a written statement
that Developers approve the Requested Release or a written objection to the
portions not approved. In lieu of written approvals or objections provided to
Town with Requested Releases being signed by all Developers, a written
designation signed by all Developers may be submitted to the Town setting forth
one (1) or more Developers authorized to submit Requested Releases and
accompanying statements on behalf of all Developers (whether one or more, the
"Designated Developer"), and such authorization shall remain in effect until a
Developer submits written notice to the Town that it is withdrawing such
authorization. Town shall review all Requested Releases within fifteen (15) days
after receipt thereof and, if not approved, notify Developers or Designated
Developer, as the case may be, in writing of Town's reasons for rejecting payment
of all or any portion of a Requested Release. All approved portions of a
Requested Release shall be paid by Town to the applicable Contractor within
thirty (30) days after receipt thereof. All payments shall be made directly to the
applicable Contractor unless Developers or Designated Developer, as the case
may be, has already paid same in which event Town shall reimburse Developers
or Designated Developer, as the case may be, in the amount of such approved
payments. Town shall not be obligated to make any payments or reimbursements
to Developers or Designated Developer until Town has (i) received all easements
necessary for perpetual operation and perpetual maintenance of the
Improvements, in a form acceptable to Town, naming Town as the grantee, and
(ii) such easements have been filed. Town shall not be obligated to make the final
payment under each Contract until permanent easements for the perpetual
operation and perpetual maintenance of the Improvements naming Town as
grantee have been recorded in the Real Property Records of Collin County, Texas.
(iii) If Town, in its sole discretion, completes the construction of the
Water Improvements or the Sewer Improvements as a result of Developers'
default of this Agreement, then the Town may use the remaining Escrowed Costs
(after payment of all Water Improvement Costs and the Sewer Improvement
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 14 of 26
026881.0100\597803.08
Costs incurred by the Developers) to pay the Water Improvement Costs and the
Sewer Improvement Costs incurred by the Town in completing the Water
Improvements and/or the Sewer Improvements. In that regard, the Town shall
complete the Water Improvements and the Sewer Improvements pursuant to the
Developers' plans and specifications approved by the Town therefor, and the
Town may, in its sole discretion, use the Contractor and Contracts executed by the
Developers in place for the Water Improvements and the Sewer Improvements.
Town shall have no obligation to incur Water Improvement Costs or Sewer
Improvements Costs in excess of the amounts actually escrowed by Developers.
Developers shall include in their Contracts for the construction of the Water
Improvements and the Sewer Improvements (i) a provision authorizing the
voluntary assumption, in Town's sole discretion, of said Contract by the Town or
its authorized designee, and (ii) a provision that limited Town's liability to
Contractor to Town's Maximum Financial Contribution for Water Improvements
and Town's Maximum Financial Contribution for Sewer Improvements.
(iv) If any Escrowed Costs and earned interest remain after Developers
and/or Town, as permitted, have completed the Water Improvements and the
Sewer Improvements and paid all of the Water Improvement Costs and the Sewer
Improvements Costs ("Remaining Escrow Funds"), the Remaining Escrow Funds
shall be released to the Developers, based on each Developer's pro rata share of
monetary contribution, within thirty (30) days following the date the Water
Improvements and the Sewer Improvements are finally accepted by the Town.
Notwithstanding anything to the contrary herein, the Town shall, under no
circumstance, be responsible for any part or portion of the Water Improvements
Costs and the Sewer Improvement Costs. Any amount of Water Costs
Reimbursement or Sewer Costs Reimbursement and Developer's Financial
Contribution for Water Improvements and Sewer Improvements, listed in the
Table in Paragraph 3(c)(i) and Paragraph 4(c)(i), respectively, shall be reduced by
the amount of Remaining Escrow Funds returned pursuant to this
Paragraph 5(c)(iv).
(v) Before the Town accepts the Water Improvements or the Sewer
Improvements, in addition to any other requirements for acceptance of the Water
Improvements and the Sewer Improvements by the Town in accordance with
Town ordinances, Developers shall tender evidence of payment, in a form(s)
reasonably acceptable to the Town, including but not limited to, Affidavits of
Payment/Affidavits as to Debts and Liens, evidencing that the Water
Improvements Costs, the Sewer Improvements Costs, Excess Water Improvement
Costs and Excess Sewer Improvement Costs, if any, incurred by the Developers
have been paid in full.
(vi) Nothing in this Agreement shall waive and/or discharge the
Developers from any and all construction requirements of the Town with respect
to the construction of the Water Improvements or the Sewer Improvements,
including, but not limited to, bonding, as enumerated in state law and the Town's
ordinances as of the Effective Date. In lieu of Developers providing payment or
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 15 of 26
026881.0100\597803.08
performance bonds, Developers may require Contractor to provide required bonds
in Developers' written construction contract with Contractor.
(vii) As required by applicable ordinances of Town and prior to Town's
final acceptance of the Water Improvements and Sewer Improvements,
Developers shall furnish, or cause to be furnished, to Town a maintenance bond in
the amount of ten percent (10%) of the contract price for construction of the
Improvements, with a reputable and solvent corporate surety, for the benefit of
Town, to indemnify Town against any repairs which may become necessary to
any part of the construction work performed in connection with the
Improvements, arising from defective workmanship and/or materials used therein,
for a period of two (2) years from the date of final acceptance of the
Improvements by Town.
(viii) As a fee for its services as Escrow Agent in this Paragraph 5, Town
shall receive an amount equal to seventy-five hundredths percent (0.75%) of:
(i) the Water Improvement Costs, and (ii) the Sewer Improvement Costs. Such
amount shall be paid by deducting such fee from Town's Maximum Financial
Contribution for Water Improvements and Town's Maximum Financial
Contribution for Sewer Improvements.
(ix) Town's Maximum Financial Contribution for Water Improvements
applicable to that portion of the Water Improvement Costs that consist of
construction management fees together with Town's Financial Contribution for
Sewer Improvements applicable to that portion of the Sewer Improvement Costs
that consist of construction management fees shall not exceed Fifty Thousand and
No/100 Dollars ($50,000.00) in the aggregate.
6. Default. (a) If any Developer fails to comply with any provision of this Agreement after
receiving fifteen (15) days written notice to comply from Town or, if such failure cannot be
cured with such fifteen (15) day period, such longer period as may be reasonably required
provided such Developer commences to cure such failure within such fifteen (15) day period and
thereafter diligently pursues such cure to completion, Town shall have the following remedies, in
addition to Town's other rights and remedies:
(i) to refuse to issue building permits and/or certificates of occupancy for the
Tract of the defaulting Developer until such default has been cured; and/or
(ii) if such failure is for the payment of money, to file an instrument in the
Land Records of the applicable county evidencing a lien on the Tract of the defaulting
Developer securing an amount equal to the amount of money owed; and/or
(iii) to refuse to accept any portion of any public improvements on the Tract of
the defaulting Developer and/or associated with the development of such Tract; and/or
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 16 of 26
026881.0100\597803.08
(iv) to refuse, without notice and/or any other action, to issue and/or apply the
reimbursement set forth in Paragraphs 3(c)(i) and 4(c)(i) as to the defaulting Developer;
and/or
(v) to construct and/or complete the Improvements and to recover any and all
costs and expenses associated with the construction and/or completion of same required
to be paid by Developers under this Agreement, plus any and all attorneys' fees and costs
associated therewith; and/or
(vi) to seek specific enforcement of this Agreement; or
(vii) as its sole remedy, if such failure is for an obligation in Paragraph 5(a) or
Paragraph 5(c), Town may terminate this Agreement upon written notice to Developers,
and thereafter, the Parties shall have no further obligation or liability hereunder.
(b) In the event Town fails to comply with the terms and conditions of this
Agreement, Developers may seek specific enforcement of this Agreement as its sole and
exclusive remedy.
7. Acknowledgements. Each Developer agrees and acknowledges that: (i) Town is
entering into this Agreement based on each Developer's representations and warranties with
regard to the water and sewer service needed to serve the Property; (ii) Town makes no
representations whatsoever with regard to the completion of the Improvements; (iii) all necessary
Improvements and associated Third Party Water and Sewer Improvement Easements and Third
Party Temporary Construction Easements have not been completed and/or secured so as to serve
the Property; and (iv) Town is not required to and will not release any building permits, except as
required pursuant to Paragraphs 3(b) and 4(b) above, and/or any certificates of occupancy
whatsoever until, among any other requirements, all necessary improvements, off and/or onsite,
are completed in accordance with Town's ordinances, rules, requirements and regulations.
8. Limitation of Liability. Notwithstanding anything to the contrary herein, the Parties
agree and acknowledge that Town shall not, under any circumstance, be required to tender,
and/or be liable to Developers for, any reimbursement of and/or payment of any monies with
regard to the matters set forth herein, save and except as specifically enumerated in this
Agreement.
9. Limitations of Agreement. The Parties hereto acknowledge that this Agreement is
limited to the Water Impact Fees and Sewer Impact Fees as described in the Impact Fee
Ordinance. Town ordinances covering property taxes, utility rates, permit fees, inspection fees,
development fees, park fees, tap fees, roadway impact fees, pro-rata fees and the like are not
affected by this Agreement. This Agreement does not waive, alter or limit any of the obligations
of Developers to Town under any other ordinance, whether now existing or in the future arising.
Further, this Agreement does not waive, alter or limit any of the obligations of Developers in
regards to construction, installation and dedication of water or sewer improvements required by
Town ordinances, other than the Improvements specifically required by this Agreement. The
Town's capital improvement plan, subdivision regulations and other ordinances, as the
aforementioned exist or may be amended, require, or may require, other water or sewer
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 17 of 26
026881.0100\597803.08
improvements located within the Property ("Additional Improvements") to be constructed by
Developers, which may or may not qualify under law or by separate agreement to be negotiated
for impact fee reimbursements or credits depending on other factors related to such Additional
Improvements, including, but not limited to, the timing of the projects and whether any impact
fee reimbursements remain pursuant to this Agreement.
10. Notices. Any notice provided or permitted to be given 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 facsimile or a hand–delivery service, Federal
Express or any courier service that provides a return receipt showing the date of actual delivery
of same to the addressee thereof. Notice given in accordance herewith shall be effective upon
receipt at the address of the addressee. As a courtesy, the Parties may email information to each
other, but emails shall not constitute a written notice required by this Paragraph. For purposes of
notice, the addresses of the Parties shall be as follows:
If to Town, addressed to it at:
Town of Prosper
ATTN: Town Manager
P. O. Box 307
121 West Broadway Street
Prosper, Texas 75078
Telephone: (972) 346-2640
Facsimile: (972) 347-2111
With a copy to:
McKamie Krueger, LLP
ATTN: Julie Fort
2007 N. Collins Blvd., Suite 500
Richardson, Texas 75080
Telephone: (214) 253-2600
Facsimile: (214) 253-2626
PB Draft 6/14/11
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 18 of 26
026881.0100\597803.08
If to Developers, addressed to each at:
Forest City:
Forest City Prosper Limited Partnership
1100 Terminal Tower
Cleveland, Ohio 44113-2203
Phone: (216) 621-6060
E-mails:
Prosper Partners:
Prosper Partners, L.P.
Attn: Craig Curry
10950 Research Road
Frisco, Texas 75034
Phone:
E-mails:
11. INDEMNIFICATION. (A) EACH DEVELOPER, INDIVIDUALLY AND ON BEHALF OF ITS
OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS,
ASSIGNEES, VENDORS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO RELEASE,
DEFEND, INDEMNIFY AND HOLD HARMLESS TOWN AND ITS TOWN COUNCIL MEMBERS,
OFFICERS, FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS,
PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND
COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEYS'
FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT,
GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF THE APPLICABLE
DEVELOPER(S), ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES,
AGENTS, OR ANY OTHER THIRD PARTIES FOR WHOM SUCH DEVELOPER(S) IS LEGALLY
RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO, THE CONSTRUCTION OF THE IMPROVEMENTS (HEREINAFTER "CLAIMS"). THIS
INDEMNIFICATION PROVISION AND THE USE OF THE TERM "CLAIMS" IS ALSO SPECIFICALLY
INTENDED TO APPLY TO, BUT NOT LIMITED TO, ANY AND ALL CLAIMS, WHETHER CIVIL OR
CRIMINAL, BROUGHT AGAINST TOWN BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED
TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED ON ANY
FEDERAL IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS, DAMAGES, ACTIONS AND
CAUSES OF ACTION OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, EXISTING OR
CLAIMED TO EXIST, RELATING TO OR ARISING OUT OF ANY EMPLOYMENT RELATIONSHIP
BETWEEN DEVELOPER, AND ITS EMPLOYEES AS A RESULT OF THAT EMPLOYEE'S EMPLOYMENT
AND/OR SEPARATION FROM EMPLOYMENT WITH THE DEVELOPER, INCLUDING BUT NOT
LIMITED TO, ANY DISCRIMINATION CLAIM BASED ON SEX, SEXUAL ORIENTATION OR
PREFERENCE, RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE OR DISABILITY UNDER
FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION, AND/OR ANY CLAIM FOR WRONGFUL
TERMINATION, BACK PAY, FUTURE WAGE LOSS, OVERTIME PAY, EMPLOYEE BENEFITS, INJURY
SUBJECT TO RELIEF UNDER THE WORKERS' COMPENSATION ACT OR WOULD BE SUBJECT TO
RELIEF UNDER ANY POLICY FOR WORKERS COMPENSATION INSURANCE, AND ANY OTHER
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 19 of 26
026881.0100\597803.08
CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE. DEVELOPERS ARE EXPRESSLY
REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS, AND TOWN IS REQUIRED TO
REASONABLY COOPERATE AND ASSIST DEVELOPERS IN PROVIDING SUCH DEFENSE.
(B) IN ITS REASONABLE DISCRETION, TOWN SHALL HAVE THE RIGHT TO APPROVE
OR SELECT DEFENSE COUNSEL TO BE RETAINED BY DEVELOPERS IN FULFILLING ITS
OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY TOWN, UNLESS SUCH RIGHT IS
EXPRESSLY WAIVED BY TOWN IN WRITING. TOWN RESERVES THE RIGHT TO PROVIDE A
PORTION OR ALL OF ITS OWN DEFENSE, AT ITS SOLE COST; HOWEVER, TOWN IS UNDER NO
OBLIGATION TO DO SO. ANY SUCH ACTION BY TOWN IS NOT TO BE CONSTRUED AS A WAIVER
OF DEVELOPERS' OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF DEVELOPERS'
OBLIGATION TO INDEMNIFY TOWN PURSUANT TO THIS AGREEMENT. DEVELOPERS SHALL
RETAIN TOWN-APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF TOWN'S
WRITTEN NOTICE THAT TOWN IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT. IF DEVELOPERS FAIL TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, TOWN
SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND DEVELOPERS
SHALL BE JOINTLY AND SEVERALLY LIABLE FOR ALL REASONABLE COSTS INCURRED BY TOWN.
(C) THIS PARAGRAPH 11 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
12. PARTIES' ACKNOWLEDGEMENT OF TOWN'S COMPLIANCE WITH FEDERAL AND STATE
CONSTITUTIONS, STATUTES AND CASE LAW AND FEDERAL, STATE AND LOCAL ORDINANCES,
RULES AND REGULATIONS/DEVELOPER'S WAIVER AND RELEASE OF CLAIMS FOR
OBLIGATIONS IMPOSED BY THIS AGREEMENT.
(A) EACH DEVELOPER ACKNOWLEDGES AND AGREES THAT:
(I) THE IMPROVEMENTS AND THE FEES TO BE IMPOSED BY TOWN
REGARDING THE PROPERTY, IN WHOLE OR IN PART, DO NOT CONSTITUTE
A:
(A) TAKING UNDER THE TEXAS OR UNITED STATES CONSTITUTION;
(B) VIOLATION OF THE TEXAS LOCAL GOVERNMENT CODE, AS IT
EXISTS OR MAY BE AMENDED;
(C) NUISANCE; AND/OR
(D) CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST TOWN
FOR A VIOLATION OF ANY FEDERAL AND/OR STATE
CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL,
STATE AND/OR LOCAL ORDINANCE, RULE AND/OR REGULATION.
(II) THE AMOUNT OF EACH DEVELOPER'S FINANCIAL OR INFRASTRUCTURE
CONTRIBUTION (AFTER RECEIVING ALL CONTRACTUAL OFFSETS,
CREDITS AND REIMBURSEMENTS, IF ANY) AGREED TO IN THIS
AGREEMENT IS ROUGHLY PROPORTIONAL TO THE DEMAND THAT SUCH
DEVELOPER'S DEVELOPMENT PLACES ON THE TOWN'S
INFRASTRUCTURE.
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 20 of 26
026881.0100\597803.08
(III) EACH DEVELOPER HEREBY AGREES THAT ANY PROPERTY WHICH IT
CONVEYS TO TOWN OR ACQUIRES FOR TOWN PURSUANT TO THIS
AGREEMENT IS ROUGHLY PROPORTIONAL TO THE BENEFIT RECEIVED BY
DEVELOPER FOR SUCH LAND, AND EACH DEVELOPER HEREBY WAIVES
ANY CLAIM THEREFOR THAT IT MAY HAVE. EACH DEVELOPER FURTHER
ACKNOWLEDGES AND AGREES THAT ALL PREREQUISITES TO SUCH A
DETERMINATION OF ROUGH PROPORTIONALITY HAVE BEEN MET, AND
THAT ANY VALUE RECEIVED BY TOWN RELATIVE TO SAID CONVEYANCE
ARE RELATED BOTH IN NATURE AND EXTENT TO THE IMPACT OF THE
DEVELOPMENT OF DEVELOPER'S TRACT ON TOWN'S INFRASTRUCTURE.
DEVELOPERS AND TOWN FURTHER AGREE TO WAIVE AND RELEASE ALL
CLAIMS ONE MAY HAVE AGAINST THE OTHER RELATED TO ANY AND ALL
ROUGH PROPORTIONALITY AND INDIVIDUAL DETERMINATION
REQUIREMENTS MANDATED BY THE UNITED STATES SUPREME COURT IN
DOLAN V. CITY OF TIGARD, 512 U.S. 374 (1994), AND ITS PROGENY, AS
WELL AS ANY OTHER REQUIREMENTS OF A NEXUS BETWEEN
DEVELOPMENT CONDITIONS AND THE PROJECTED IMPACT OF THE
PUBLIC INFRASTRUCTURE.
(IV) DEVELOPERS SHALL INDEMNIFY AND HOLD HARMLESS TOWN FROM ANY
CLAIMS AND SUITS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO
DEVELOPERS' RESPECTIVE PARTNERS, OFFICERS, DIRECTORS,
EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES,
VENDORS, GRANTEES, AND/OR TRUSTEES, BROUGHT PURSUANT TO THIS
PARAGRAPH 12.
(B) EACH DEVELOPER RELEASES TOWN FROM ANY AND ALL CLAIMS OR CAUSES OF
ACTION BASED ON EXCESSIVE OR ILLEGAL EXACTIONS RELATING TO EACH
DEVELOPER'S OBLIGATIONS CREATED IN THIS AGREEMENT.
(C) EACH DEVELOPER WAIVES ANY CLAIM FOR DAMAGES AND/OR REIMBURSEMENT
AGAINST TOWN FOR A VIOLATION OF ANY FEDERAL AND/OR STATE
CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL, STATE AND/OR
LOCAL ORDINANCE, RULE AND/OR REGULATION RELATING TO EACH
DEVELOPER'S OBLIGATIONS CREATED IN THIS AGREEMENT.
(D) THIS PARAGRAPH 12 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
13. Vested Rights/Chapter 245 Waiver. The Parties hereto shall be subject to all
ordinances of Town, whether now existing or in the future arising. This Agreement shall confer
no vested rights on the Property, or any portion thereof, unless specifically enumerated herein. In
addition, nothing contained in this Agreement shall constitute a "permit" as defined in Chapter
245, Texas Local Government Code, and nothing in this Agreement provides Town with fair
notice of any Developers' actual, anticipated or planned project(s). Each Developer
acknowledges and agrees on its own behalf that this Agreement is not required by Town for
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 21 of 26
026881.0100\597803.08
Developer to develop its Tract or any portion thereof. EACH DEVELOPER WAIVES ANY
STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT CODE UNDER
THIS AGREEMENT. THIS PARAGRAPH 13 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
14. Attorney's Fees. In any legal proceeding brought to enforce the terms of this
Agreement, including, but not limited to, a proceeding brought pursuant to Paragraphs 3, 4 11
and 12 above, 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.
15. 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 Developers and where relied upon
by the Parties in entering into this Agreement.
16. Developers' Warranties/Representations. All warranties, representations and
covenants made by Developers in this Agreement or in any certificate or other instrument
delivered by any Developer to Town under this Agreement shall be considered to have been
relied upon by Town and will survive the satisfaction of any obligations under this Agreement,
regardless of any investigation made by Town or on Town's behalf.
17. 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. Nothing contained in
this Agreement shall be deemed to supersede, modify, or amend the rights and responsibilities of
the parties pursuant to such Prior Agreements.
18. Venue. This Agreement shall be construed in accordance with the laws of the State of
Texas and shall be performable in Collin County, Texas.
19. Consideration. This Agreement is executed by the Parties hereto without coercion or
duress and for substantial consideration, the sufficiency of which is forever confessed.
20. 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.
21. 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.
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 22 of 26
026881.0100\597803.08
22. 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 hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
23. 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.
24. Sovereign Immunity. The Parties agree that Town has not waived its sovereign
immunity by entering into and performing ANY obligations under this Agreement.
25. 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.
26. Assignment/Binding Effect. This Agreement is assignable upon the following
conditions:
(a) the assignment of the Agreement must be evidenced by a recordable document
executed by the assignee and the assignor, wherein (i) the assignee expressly
acknowledges accepting the obligations created by this Agreement and (ii) the property
for which this Agreement is being assigned is described by metes and bounds, and, if a
final plat has been filed in the real property records of the applicable county or counties,
also using plat information;
(b) at the time of any assignment, the assigning Developer must give the assignee
written notice that any and all obligations, covenants and/or conditions contained in the
Agreement will be assumed solely and completely by the assignee; and
(c) the assigning Developer shall provide Town, in writing, with (i) the name,
address, phone number, fax number and the name of a contact person for the assignee and
(ii) a copy of the instrument of assignment.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their
respective officers, directors, partners, employees, representatives, agents, vendors, grantees
and/or trustees, heirs, executors, administrators, legal representatives, successors and assigns, as
authorized herein. Town shall be entitled to continue making all reimbursement payments to a
Developer until Town actually receives from said assigning Developer the information required
to be provided in writing to Town by Paragraph 26(c) above. Each Developer accepts liability to
its assignees for all payments for reimbursement made by Town to Developer following the
execution of an assignment by Developer and before receipt by Town of the information required
to be provided by Paragraph 26(c) above and DEVELOPERS HEREBY AGREE TO
INDEMNIFY AND HOLD HARMLESS TOWN FOR ANY SUCH CLAIMS BROUGHT
BY AN ASSIGNEE.
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 23 of 26
026881.0100\597803.08
27. Indemnification. The Parties agree that the indemnity provisions set forth in
Paragraphs 11, 12 and 26 herein are conspicuous, and the Parties have read and understood the
same.
28. Construction of Improvements. All construction of improvements required herein shall
be subject to and in compliance with all ordinances of Town, whether now existing, hereafter
amended or in the future arising. Evidence of any bonds required by Section 212.073 of the
Texas Local Government Code, or other applicable law, shall be provided by Developers to
Town. Nothing herein shall create an obligation of Town in excess of the percentages allowed
by Section 212.071-212.072 of the Texas Local Government Code.
29. Conveyances. All conveyances required herein shall be made in a form required by this
Agreement and/or acceptable to Town and free and clear of any and all encumbrances.
30. Waiver. Waiver by any Party of any breach of this Agreement, or the failure of any
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.
31. Reference to Developer. When referring to each "Developer" herein, this Agreement
shall refer to and be binding upon the Developer, and its officers, directors, partners, agents,
successors and assignees.
32. 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.
33. Exhibits. The following Exhibits are attached to this Agreement and incorporated herein
for all purposes:
Exhibit A Depiction/Diagram of Property
Exhibit A-1 Water Service Areas
Exhibit A-2 Sewer Service Areas
Exhibit B Legal Description Forest City Tract
Exhibit B-1 Depiction/Diagram of Forest City Tract
Exhibit C Legal Description of Prosper Partners Tract
Exhibit C-1 Depiction/Diagram of Prosper Partners Tract
Exhibit D Depiction/Diagram of Anticipated Water and Sewer Easement Location
Exhibit E-1 Form for Water Easements
Exhibit E-2 Form for Sewer Easements
Exhibit E-3 Form for Temporary Construction Easements for Water Easement
Exhibit E-4 Form for Temporary Construction Easements for Sewer Easement
Exhibit F Form of Waiver to Receive Model Home Building Permits Early
Exhibit G Estimated Water and Sewer Improvement Costs
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 24 of 26
026881.0100\597803.08
34. Developers' Condition Precedent. Town acknowledges and agrees that Developers'
obligations hereunder are conditioned upon the adoption by the Town of an ordinance approving
this Agreement and binding the Town to its obligations hereunder acceptable to Developers in
their reasonable discretion, and providing that neither the existing nor any future town council of
the Town may modify this Agreement without Developers' consent. Each Developer shall only
be severally liable for the respective obligations of such Developer hereunder.
35. Future Agreements. This Agreement shall not prohibit the Town from entering into
separate agreements with any Developer with respect to reimbursement of impact fees or any
other matter related to the development of any of the Tracts.
36. Town's Attorneys' Fees. Developers shall reimburse Town for its actual attorneys' fees
incurred in drafting and negotiating this Agreement in an amount not to exceed $4,000.
Developers shall make payments to Town within thirty (30) days of receiving written notice of
the amount of reimbursement owed for attorneys' fees. If requested by Developers, Town shall
provide copies of the attorney invoices that are redacted to remove any narrative that reflects
privileged information. To the extent the amount for all or a portion of the attorneys' fees is
known at the time of execution of this Agreement, Developers shall each pay Developer's Share
of such amount (subject to the foregoing limitation) to Town at the time of full execution hereof.
37. Termination. Upon reimbursement in full to each Developer for the Water
Improvement Costs and the Sewer Improvement Costs, this Agreement shall automatically
terminate and the parties shall have no further obligations hereunder, except those that expressly
survive the termination hereof.
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 25 of 26
026881.0100\597803.08
IN WITNESS WHEREOF, the Parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
TOWN:
TOWN OF PROSPER, TEXAS
By:
Mike Land, Town Manager
Date:
STATE OF TEXAS §
§
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared Mike Land
known to me to be one of the persons whose names are subscribed to the foregoing instrument;
he acknowledged to me he is the duly authorized representative for the TOWN OF PROSPER,
TEXAS, and he executed said instrument for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
___________________, 2011.
[ S E A L ] Notary Public in and for the State of Texas
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 26 of 26
026881.0100\597803.08
DEVELOPER:
FOREST CITY PROSPER LIMITED PARTNERSHIP,
a ____________ limited partnership
By: ,
a
General Partner
By: ,
Name:
Title:
Date:
STATE OF TEXAS §
§
COUNTY OF _____________ §
BEFORE ME, the undersigned authority, a Notary Public, on this day personally
appeared , known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and who acknowledged to me that he/she executed the
same for the purposes and consideration therein expressed and in the capacity therein stated on
behalf of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
________________________, 2011.
[ S E A L ] Notary Public in and for the State of Texas
WATER AND SEWER IMPROVEMENT
DEVELOPMENT AGREEMENT – Page 27 of 26
026881.0100\597803.08
DEVELOPER:
PROSPER PARTNERS, L.P.,
a Texas limited partnership
By: Prosper Partners GP, LLC,
a Texas limited liability company,
General Partner
By: ,
Craig Curry, Manager
Date:
STATE OF TEXAS §
§
COUNTY OF _____________ §
BEFORE ME, the undersigned authority, a Notary Public, on this day personally
appeared Craig Curry, known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and who acknowledged to me that he/she executed the same for the
purposes and consideration therein expressed and in the capacity therein stated on behalf of said
partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
________________________, 2011.
[ S E A L ] Notary Public in and for the State of Texas
EXHIBIT A, DEPICTION/DIAGRAM OF PROPERTY – Cover Page
026881.0100\597803.08
EXHIBIT A
DEPICTION/DIAGRAM OF PROPERTY
EXHIBIT A-1, WATER SERVICE AREAS – Cover Page
026881.0100\597803.08
EXHIBIT A-1
WATER SERVICE AREAS
EXHIBIT A-2, SEWER SERVICE AREAS – Cover Page
026881.0100\597803.08
EXHIBIT A-2
SEWER SERVICE AREAS
EXHIBIT B, LEGAL DESCRIPTION FOREST CITY TRACT – Page 1
026881.0100\597803.08
EXHIBIT B
LEGAL DESCRIPTION OF FOREST CITY TRACT
BEING A 490.522 ACRE TRACT OF LAND LOCATED IN THE C. SMITH SURVEY, ABSTRACT NO. 1681, J. BATES
SURVEY, ABSTRACT NO. 1620, H.P. SALING SURVEY, ABSTRACT NO. 1628, M.E.P. & P.R.R. SURVEY,
ABSTRACT NO. 1476, P. BARNES SURVEY, ABSTRACT NO. 79, A.B. JAMISON SURVEY, ABSTRACT NO. 672,
B.B. WALTON SURVEY, ABSTRACT NO. 1369, R. YATES SURVEY, ABSTRACT NO. 1538, AND T. BUTTON
SURVEY, ABSTRACT NO. 88, TOWN OF PROSPER, DENTON COUNTY, TEXAS AND ALSO BEING PART OF A
TRACT OF LAND DESCRIBED IN DEED TO FOREST CITY PROSPER, L.P. RECORDED IN COUNTY CLERK'S
FILE NO. 2007-144196, DEED RECORDS, DENTON COUNTY, TEXAS, BEING PART OF A TRACT OF LAND
DESCRIBED IN DEED TO MAHARD 2003 PARTNERSHIP, L.P., RECORDED IN COUNTY CLERK'S FILE NO. 2004-
0063827, DEED RECORDS, DENTON COUNTY, TEXAS, BEING PART OF A CALLED 38.37 ACRE TRACT OF
LAND DESCRIBED IN DEED TO MAHARD 2003 PARTNERSHIP, L.P., COUNTY CLERK'S FILE NO. 2004-0024458,
DEED RECORDS, DENTON COUNTY, TEXAS, BEING PART OF A TRACT OF LAND DESCRIBED AS TRACT 2-3
IN DEED TO MAHARD EGG FARM, INC., RECORDED IN VOLUME 540, PAGE 79, DEED RECORDS, DENTON
COUNTY, TEXAS, BEING A PART OF A TRACT OF LAND DESCRIBED AS TRACT 2-1 IN DEED TO MAHARD
EGG FARM, INC., RECORDED IN VOLUME 540, PAGE 79, DEED RECORDS, DENTON COUNTY, TEXAS, AND
BEING PART OF A TRACT OF LAND DESCRIBED IN DEED TO ERNEST MAHARD, RECORDED IN VOLUME
519, PAGE 612, DEED RECORDS, DENTON COUNTY, TEXAS, AND BEING ALL OF A TRACT OF LAND
DESCRIBED AS TRACT 2-4 IN DEED TO MAHARD EGG FARM, INC., RECORDED IN VOLUME 540, PAGE 79,
DEED RECORDS, DENTON COUNTY, TEXAS, AND BEING ALL OF A TRACT OF LAND DESCRIBED IN DEED
AS A CALLED 89.85 ACRE TRACT OF LAND TO MAHARD EGG FARM, INC., RECORDED IN VOLUME 1618,
PAGE 329, DENTON COUNTY, TEXAS, AND BEING ALL OF A CALLED 110 ACRE TRACT OF LAND
DESCRIBED IN DEED TO MAHARD EGG FARM, INC., RECORDED IN VOLUME 547, PAGE 394, DEED
RECORDS, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE COMMON LINE OF SAID FOREST CITY PROSPER, L.P. TRACT AND FIELDS
ROAD, FROM WHICH THE NORTHEAST CORNER OF SAID FOREST CITY PROSPER, L.P. TRACT BEARS
NORTH 00°06'17" WEST, A DISTANCE OF 526.40 FEET;
THENCE SOUTH 88°52'26" WEST, PASSING THROUGH THE LANDS OF SAID FOREST CITY PROSPER, L.P.
TRACT, A DISTANCE OF 3,638.36 FEET TO A POINT FOR CORNER IN THE WEST LINE OF SAID FOREST CITY
PROSPER, L.P., SAID POINT BEING THE EAST LINE OF GOOD HOPE ROAD;
THENCE NORTH 00°08'13" WEST, ALONG THE COMMON LINE OF SAID FOREST CITY PROSPER, L.P. TRACT
AND SAID GOOD HOPE ROAD, A DISTANCE OF 306.26 FEET TO A POINT FOR CORNER IN THE SOUTH LINE
OF A TRACT OF LAND DESCRIBED IN A DEED TO JUDY REEVES, RECORDING INFORMATION UNKOWN;
THENCE NORTH 89°14'55" EAST, ALONG THE COMMON LINE OF SAID FOREST CITY PROSPER, L.P. TRACT
AND SAID JUDY REEVES TRACT, A DISTANCT OF 940.90 FEET TO A POINT FOR CORNER;
THENCE NORTH 00°40'52" WEST, CONTINUING ALONG THE COMMON LINE OF SAID FOREST CITY
PROSPER, L.P. TRACT AND SAID JUDY REEVES TRACT, A DISTANCE OF 197.22 FEET TO A POINT FOR
CORNER;
THENCE NORTH 88°59'28" EAST, CONTINUING ALONG THE COMMON LINE OF SAID FOREST CITY
PROSPER, L.P. TRACT AND SAID JUDY REEVES TRACT, A DISTANCE OF 815.80 FEET TO A POINT FOR
CORNER;
THENCE NORTH 00°06'59" WEST, CONTINUING ALONG THE COMMON LINE OF SAID FOREST CITY
PROSPER, L.P. TRACT AND SAID JUDY REEVES TRACT, A DISTANCE OF 36.44 FEET TO A POINT AT THE
COMMON CORNER OF SAID FOREST CITY PROSPER, L.P. TRACT AND SAID JUDY REEVES TRACT, SAID
POINT ALSO BEING IN THE COMMON LINE OF SAID 110 ACRE MAHARD EGG FARM, INC. TRACT, AND FISH
TRAP ROAD;
EXHIBIT B, LEGAL DESCRIPTION FOREST CITY TRACT – Page 2
026881.0100\597803.08
THENCE SOUTH 89°04'04" WEST, ALONG THE COMMON LINE OF SAID 110 ACRE MAHARD EGG FARM, INC.
TRACT AND SAID FISH TRAP ROAD, A DISTANCE OF 1,776.99 FEET TO A POINT AT THE COMMON CORNER
OF SAID FOREST CITY PROSPER, L.P. TRACT AND SAID JUDY REEVES TRACT, SAID POINT ALSO BEING IN
THE COMMON LINE OF SAID 110 ACRE MAHARD EGG FARM, INC. TRACT AND SAID FISH TRAP ROAD AND
ALSO BEING IN THE WEST LINE OF SAID GOOD HOPE ROAD;
THENCE SOUTH 00°15'35" EAST, PASSING THROUGH THE LANDS OF SAID FOREST CITY PROSPER, L.P.
TRACT AND CONTINUING ALONG THE COMMON LINE OF SAID JUDY REEVES TRACT AND SAID GOOD
HOPE ROAD, A DISTANCE OF 538.13 TO A POINT FOR CORNER;
THENCE SOUTH 88°50'37" WEST, CONTINUING THROUGH THE LANDS OF SAID FOREST CITY PROSPER,
L.P. TRACT, A DISTANCE OF 428.61 FEET TO A POINT FOR CORNER;
THENCE NORTH 89°54'03" WEST, CONTINUING THROUGH THE LANDS OF SAID FOREST CITY PROSPER,
L.P. TRACT, A DISTANCE OF 411.64 FEET TO A POINT FOR CORNER;
THENCE SOUTH 61°27'09" WEST, CONTINUING THROUGH THE LANDS OF SAID FOREST CITY PROSPER,
L.P. TRACT AND PASSING THE COMMON LINE OF SAID FOREST CITY PROSPER, L.P. TRACT AND SAID
MAHARD 2003 PARTNERSHIP, L.P. TRACT, A DISTANCE OF 1,127.43 FEET TO A POINT FOR CORNER;
THENCE SOUTH 50°24'38" WEST, PASSING THROUGH THE LANDS OF SAID MAHARD 2003 PARTNERSHIP,
L.P. TRACT, A DISTANCE OF 657.71 FEET TO A POINT FOR CORNER;
THENCE SOUTH 43°29'13" WEST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 1,570.42 FEET TO A POINT IN THE COMMON LINE OF SAID
MAHARD 2003 PARTNERSHIP, L.P. TRACT AND A TRACT OF LAND DESCRIBED IN DEED TO JUDY GEE,
RECORDED IN VOLUME 3130, PAGE 794, DEED RECORDS, DENTON COUNTY, TEXAS;
THENCE NORTH 12°40'03" EAST, ALONG THE COMMON LINE OF SAID MAHARD 2003 PARTNERSHIP, L.P.
TRACT AND SAID JUDY GEE TRACT, A DISTANCE OF 2,296.64 FEET TO A POINT FOR CORNER IN SAID
MAHARD 2003 PARTNERSHIP, L.P. TRACT;
THENCE NORTH 20°39'09" WEST, PASSING THROUGH THE LANDS OF SAID MAHARD 2003 PARTNERSHIP,
L.P. TRACT, A DISTANCE OF 610.09 FEET TO A POINT FOR CORNER;
THENCE NORTH 44°41'39" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 560.13 FEET TO A POINT FOR CORNER;
THENCE NORTH 39°44'37" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 599.45 FEET TO A POINT FOR CORNER;
THENCE NORTH 50°59'18" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 794.13 FEET TO A POINT FOR CORNER;
THENCE NORTH 63°09'56" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 1,193.81 FEET TO A POINT FOR CORNER;
THENCE NORTH 53°17'05" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, A DISTANCE OF 542.92 FEET TO A POINT FOR CORNER;
THENCE NORTH 61°37'35" EAST, CONTINUING THROUGH THE LANDS OF SAID MAHARD 2003
PARTNERSHIP, L.P. TRACT, AND PASSING THE COMMON LINE OF SAID GOOD HOPE ROAD AND SAID 38.37
ACRE MAHARD 2003 PARTNERSHIP, L.P. TRACT, A DISTANCE OF 1,188.56 FEET TO A POINT FOR CORNER IN
SAID 38.37 ACRE MAHARD 2003 PARTNERSHIP, L.P. TRACT;
EXHIBIT B, LEGAL DESCRIPTION FOREST CITY TRACT – Page 3
026881.0100\597803.08
THENCE NORTH 67°04'42" EAST, CONTINUING THROUGH THE LANDS OF SAID 38.37 ACRE MAHARD 2003
PARTNERSHIP, L.P. TRACT, AND PASSING THE COMMON LINE OF SAID 38.37 MAHARD 2003 PARTNERSHIP,
L.P. TRACT AND SAID TRACT 2-3 MAHARD EGG FARM, INC. TRACT, A DISTANCE OF 1,283.50 FEET TO A
POINT FOR CORNER;
THENCE NORTH 76°42'22" EAST, PASSING THROUGH THE LANDS OF SAID TRACT 2-3 MAHARD EGG FARM,
INC. TRACT, AND PASSING THE COMMON LINE OF SAID TRACT 2-3 MAHARD EGG FARM, INC. TRACT AND
SAID TRACT 2-1 MAHARD EGG FARM, INC. TRACT, A DISTANCE OF 1,101.26 FEET TO A POINT FOR CORNER;
THENCE NORTH 82°05'01" EAST, CONTINUING THROUGH THE LANDS OF SAID TRACT 2-1 MAHARD EGG
FARM, INC. TRACT, A DISTANCE OF 411.37 FEET TO A POINT IN THE COMMON LINE OF SAID TRACT 2-1
MAHARD EGG FARM, INC. TRACT AND SAID FIELDS ROAD;
THENCE SOUTH 01°19'01" EAST, ALONG THE COMMON LINE OF SAID TRACT 2-1 MAHARD EGG FARM,
INC. TRACT AND SAID FIELDS ROAD, AND PASSING THE COMMON LINE OF SAID TRACT 2-1 MAHARD EGG
FARM, INC. TRACT AND SAID TRACT 2-4 MAHARD EGG FARM, INC. TRACT; A DISTANCE OF 941.28 FEET TO
A POINT AT THE COMMON EAST CORNER OF SAID TRACT 2-4 MAHARD EGG FARM, INC. TRACT AND SAID
89.85 ACRE MAHARD EGG FARM, INC. TRACT;
THENCE SOUTH 00°46'08" WEST, ALONG THE COMMON LINE OF SAID 89.85 ACRE MAHARD EGG FARM,
INC. TRACT AND SAID FIELDS ROAD, A DISTANCE OF 705.12 FEET TO A POINT AT THE COMMON CORNER
OF SAID 89.85 ACRE MAHARD EGG FARM, INC. TRACT AND SAID ERNEST MAHARD TRACT;
THENCE SOUTH 20°37'31" EAST, CONTINUING ALONG THE COMMON LINE OF SAID ERNEST MAHARD
TRACT AND CONTINUING ALONG THE CENTERLINE OF SAID FIELDS ROAD, A DISTANCE OF 96.22 FEET TO
A POINT FOR CORNER;
THENCE SOUTH 28°15'33" EAST, CONTINUING ALONG THE COMMON LINE OF SAID ERNEST MAHARD
TRACT AND CONTINUING ALONG THE CENTERLINE OF SAID FIELDS ROAD, A DISTANCE OF 189.49 FEET
TO A POINT IN THE COMMON LINE OF SAID 89.85 ACRE MAHARD EGG FARM, INC. TRACT AND SAID
FIELDS ROAD;
THENCE SOUTH 02°06'04" EAST, CONTINUING ALONG THE COMMON LINE OF SAID 89.85 ACRE MAHARD
EGG FARM, INC. TRACT AND SAID FIELDS ROAD, A DISTANCE OF 1,803.07 FEET TO A POINT AT THE
COMMON EAST CORNER OF SAID 89.85 ACRE MAHARD EGG FARM, INC. TRACT AND SAID FOREST CITY
PROSPER, L.P. TRACT, SAID POINT ALSO BEING IN THE CENTERLINE OF SAID FIELDS ROAD,
THENCE SOUTH 00°06'17" EAST, ALONG THE COMMON LINE OF SAID FOREST CITY PROSPER, L.P. TRAT
AND SAID FIELDS ROAD, A DISTANCE OF 526.40 FEET TO THE POINT OF BEGINNING AND CONTAINING
213,671,138 SQUARE FEET OR 490.522 ACRES OF LAND.
EXHIBIT B-1, DEPICTION/DIAGRAM OF FOREST CITY TRACT – Cover Page
026881.0100\597803.08
EXHIBIT B-1
DEPICTION/DIAGRAM OF FOREST CITY TRACT
EXHIBIT C, LEGAL DESCRIPTION OF PROSPER PARTNERS TRACT – Page 1
026881.0100\597803.08
EXHIBIT C
LEGAL DESCRIPTION OF PROSPER PARTNERS TRACT
477.818 ACRES
BEING of a tract of land out of the Collin County School Land Survey, Abstract No. 147 in the Town of Prosper,
Collin County, Texas, the E.B. Hawkins Survey, Abstract No. 581 and the L. Netherly Survey, Abstract No. 962, in
the Town of Prosper, Denton County, Texas, being all of the 342.119 acre tract of land referenced in deed to the
Rudman Partnership recorded in 2844, Page 42 of the Real Property Records of Denton County, Texas, being all of
the 342.119 acre tract of land described in deed to Rudman Resources, Inc. recorded in Volume 1042, Page 313 of
the Deed Records of Denton County, Texas, being part of the 15.634 acre tract of land referenced in deed to the
Rudman Partnership recorded in 2844, Page 42 of the Real Property Records of Denton County, Texas, being part of
the 15.634 acre tract of land referenced in deed to Rudman Resources, Inc. recorded in Volume 1042, Page 573 of
the Deed Records of Denton County, Texas, described in deed to D.L. Fair recorded in Volume 764, Page 824 of the
Deed Records of Denton County, Texas and being all of the121.281 acre tract of land described in deed to Legacy
Platinum Partners III, LP recorded in Collin County Clerk's File No. 20060407000459150 of the Land Records of
Collin County, Texas and being more particularly described as follows:
BEGINNING at a 1/2" iron rod found in the south line of Fishtrap Road (no ROW information found), said iron rod
being in the east line of a 162.72 acre tract of land described in deed to Florence Jackson recorded in Volume 1001,
Page 929 of the Deed Records of Denton County, Texas;
THENCE with the south line of said Fishtrap Road, the following courses and distances to wit:
North 89°03'34" East, a distance of 2371.26 feet to a 1/2" iron rod found for corner;
North 66°46'38" East, a distance of 1966.64 feet to a 1/2" iron rod found for corner;
THENCE leaving said south line, South 00°05'25" West, a distance of 1879.83 feet to a 1/2" iron rod found at the
northwest corner of a 121.281 acre tract of land described in deed to Legacy Platinum Partners, LP recorded in
Collin County Clerk's File No. 20060407000459150 of the Land Records of Collin County, Texas.
THENCE South 89°40'36" East departing the east line of said 349.119 acre Rudman Partnership tract a distance of
2071.54 feet to a 1" iron pipe found for corner in the west line of a tract of land described in a deed to The Buckle
Trust recorded in Clerk's File Number 97-0000310, Land Records, Collin County, Texas'
THENCE South 00°26'47" West with the west line of said The Buckle Trust tract a distance of 2560.24 feet to a
1/2" iron rod found for corner in the north right-of-way line of U.S. Highway 380 (variable width ROW);
THENCE with the existing north Right-of-Way line of said U.S. Highway 380 the following calls:
South 89°57'18" West a distance of 1899.04 feet to a 5/8" iron rod with red cap marked KHA set for
corner;
South 89°36'57" West a distance of 108.77 feet to 1/2" iron rod found;
South 89°04'32" West, a distance of 166.51 feet to a 5/8" iron rod set with a plastic cap stamped "KHA"
(hereinafter called 5/8" iron rod set) for corner;
South 88°36'54" West, a distance of 1886.64 feet to a 5/8" iron rod set in the east line of a 816 acre tract of
land described in deed to Bert Fields, Jr. recorded in Volume 523, Page 687 of the Deed Records of Denton
County, Texas;
THENCE with said east line, North 00°35'04" West, a distance of 323.24 feet to a 3" iron pipe found for corner;
THENCE with the north line of said 816 acre tract, South 89°30'27" West, a distance of 2184.05 feet to a 5/8" iron
rod found for the southeast corner of said 162.72 acre tract;
THENCE with the east line of said 162.72 acre tract, North 00°21'09" East, a distance of 3383.41 feet to the
POINT OF BEGINNING and containing 477.818 acres of land.
Bearing system based on monuments found referenced to the Texas State Plane Coordinate System, Zone 4202.
EXHIBIT C-1, DEPICTION/DIAGRAM OF PROSPER PARTNERS TRACT – Cover Page
026881.0100\597803.08
EXHIBIT C-1
DEPICTION/DIAGRAM OF PROSPER PARTNERS TRACT
EXHIBIT D, DEPICTION/DIAGRAM OF ANTICIPATED
WATER AND SEWER EASEMENT LOCATION – Cover Page
026881.0100\597803.08
EXHIBIT D
DEPICTION/DIAGRAM OF ANTICIPATED
WATER AND SEWER EASEMENT LOCATION
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 1
026881.0100\597803.08
EXHIBIT E-1
FORM FOR WATER EASEMENTS
"Notice of Confidentiality rights: If you are a Natural Person, you may remove or strike
any of the following information from this instrument before it is filed for record in the
Public Records: Your Social Security Number or your Drivers' License Number."
AFTER RECORDING, RETURN TO:
Town Secretary
Town of Prosper, Texas
407 E. First Street
P.O. Box 307
Prosper, Texas 75078
WATER EASEMENT – (X.XX ACRES)
(BENEFITING PROJECT)
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________ §
THAT, ____________________, a Texas _____________________, whether one or
more, hereinafter called "Grantor," for and in consideration of the sum of TEN & NO/100
DOLLARS ($10.00) and other good and valuable consideration to Grantor in hand paid by the
TOWN OF PROSPER, TEXAS, a Texas Home Rule Municipal Corporation, hereinafter called
"Grantee", the receipt and sufficiency of which are hereby acknowledge, does GRANT,
DEDICATE and CONVEY to the Grantee, the easement and right to construct, reconstruct,
operate, repair, maintain, re-build, replace, relocate, alter, remove and perpetually maintain water
facilities (the "Facilities"), together with all incidental improvements, and all necessary laterals
in, upon and across certain real property located in the Town of Prosper, _______ County,
Texas, as more particularly described and depicted in Exhibit "A" and Exhibit "B" respectively,
attached hereto and made a part hereof by reference as if fully set forth herein (the "Easement
Property"). As part of the grant here by made, it is agreed between the parties hereto that any
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 2
026881.0100\597803.08
stone, earth, gravel or caliche which may be excavated in the opening, construction or
maintenance of said easement may be removed from said premises by Grantee.
TO HAVE AND TO HOLD the Easement Property perpetually unto the Grantee, its
successors and assigns, together with the right and privilege at all times to enter the Easement
Property, or any part thereof, for the purpose of constructing, reconstructing, operating,
repairing, maintaining, re-building, replacing, altering, removing and perpetually maintaining the
Facilities, and all incidental improvements and for making connections therewith.
Grantor does hereby bind itself and its successors to WARRANT AND FOREVER
DEFEND all and singular the Easement Property unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise.
Grantee, it's successors and assigns, shall have the right to construct, reconstruct, and
perpetually maintain additional Facilities at all times in the future within the Easement Property.
If Grantee is unable to access the Easement Property due to physical barriers or conditions, then
the Grantee, it's successors and assigns, shall have, and are hereby granted, the right of ingress
and egress over that portion of the Grantor's adjacent within fifteen feet (15') of the Easement
Property as is reasonably necessary to and for the limited purpose of accessing the Easement
Property herein granted.
Grantee will at all times after doing any work in connection with the construction,
operation or repair of the Facilities, restore the surface of the Easement Property as close to the
condition in which it was found before such work was undertaken as is reasonably practicable,
except for trees, shrubs and structures within the Easement Property that were removed as a
result of such work.
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 3
026881.0100\597803.08
There are no liens, attachments, or other encumbrances which will affect the title or right
of the Grantor to convey this easement to the Grantee for the purposes as described herein. If
such condition does exist, a signature with acknowledgement shall be included and made a part
of this document conveying the rights and privileges contained herein.
The easement rights and privileges granted herein are exclusive, and Grantor covenants
that Grantor will not convey any other easement or conflicting rights within the area covered by
this grant.
This instrument shall be binding upon, and inure to the benefit of, Grantee and Grantor,
and their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes.
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this _______ day of ____________, 201___.
SIGNED my hand this _________ day of ____________, 201___.
GRANTOR:
,
a ________________________
By:
Name:
Title:
Address:
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 4
026881.0100\597803.08
ACKNOWLEDGEMENT
THE STATE OF TEXAS §
§
COUNTY OF _________ §
This instrument was acknowledge before me on the ______ day of _________,
201__ by _______________________ its ______________ of the ________________, a
____________________ corporation, on behalf of said corporation.
__________________________________
Notary Public in and for the State of Texas
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 5
026881.0100\597803.08
[Delete this page if no liens are on the property. Complete this page for each lienholder]
LIENHOLDER'S CONSENT TO PARTIAL RELEASE OF LIEN:
The undersigned, being the holder(s) of the lien against a portion of the Property and
Easement Property evidenced by:
Deed of Trust dated __________, recorded under Clerk's File No.
______________, from _________, to _________, Trustee, securing payment of
one certain promissory note of even date therewith in the principal amount of
$_______, payable to the order of _____________; said Note being additionally
secured by a Vendor's Lien of even date retained in Deed, executed by
______________ to ____________, recorded under ______________, and
subject to all of the terms and conditions and stipulations contained therein,
including but not limited to, any future indebtedness also secured by this lien,
hereby consents to the execution of the foregoing easement and agrees that in the event of a
foreclosure of the Property and/or Temporary Construction Easement or any portion thereof
and/or the underlying property or any portion thereof (or deed in lieu thereof), the conveyance
made by this easement will remain in full force and effect and shall not be extinguished by such
foreclosure (or deed in lieu thereof).
Bank, a
By:
Printed Name:
It's:
Address:
EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 6
026881.0100\597803.08
STATE OF TEXAS §
§
COUNTY OF __________ §
This instrument was acknowledged before me on the ___ day of ______ 201 __, by
_____________, the ________________ and duly authorized representative of
________________ Bank, a _______________, on behalf of said corporation.
___________________________________
Notary Public, State of Texas
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 1
026881.0100\597803.08
EXHIBIT E-2
FORM FOR SEWER EASEMENTS
"Notice of Confidentiality rights: If you are a Natural Person, you may remove or strike
any of the following information from this instrument before it is filed for record in the
Public Records: Your Social Security Number or your Drivers' License Number."
AFTER RECORDING, RETURN TO:
Town Secretary
Town of Prosper, Texas
407 E. First Street
P.O. Box 307
Prosper, Texas 75078
SEWER EASEMENT – (X.XX ACRES)
(BENEFITING PROJECT)
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________ §
THAT, ____________________, a Texas _____________________, whether one or
more, hereinafter called "Grantor," for and in consideration of the sum of TEN & NO/100
DOLLARS ($10.00) and other good and valuable consideration to Grantor in hand paid by the
TOWN OF PROSPER, TEXAS, a Texas Home Rule Municipal Corporation, hereinafter called
"Grantee", the receipt and sufficiency of which are hereby acknowledge, does GRANT,
DEDICATE and CONVEY to the Grantee, the easement and right to construct, reconstruct,
operate, repair, maintain, re-build, replace, relocate, alter, remove and perpetually maintain
sanitary sewer facilities (the "Facilities"), together with all incidental improvements, and all
necessary laterals in, upon and across certain real property located in the Town of Prosper,
_______ County, Texas, as more particularly described and depicted in Exhibit "A" and
Exhibit "B" respectively, attached hereto and made a part hereof by reference as if fully set forth
herein (the "Easement Property"). As part of the grant here by made, it is agreed between the
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 2
026881.0100\597803.08
parties hereto that any stone, earth, gravel or caliche which may be excavated in the opening,
construction or maintenance of said easement may be removed from said premises by Grantee.
TO HAVE AND TO HOLD the Easement Property perpetually unto the Grantee, its
successors and assigns, together with the right and privilege at all times to enter the Easement
Property, or any part thereof, for the purpose of constructing, reconstructing, operating,
repairing, maintaining, re-building, replacing, altering, removing and perpetually maintaining the
Facilities, and all incidental improvements and for making connections therewith.
Grantor does hereby bind itself and its successors to WARRANT AND FOREVER
DEFEND all and singular the Easement Property unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise.
Grantee, it's successors and assigns, shall have the right to construct, reconstruct, and
perpetually maintain additional Facilities at all times in the future within the Easement Property.
If Grantee is unable to access the Easement Property due to physical barriers or conditions, then
the Grantee, it's successors and assigns, shall have, and are hereby granted, the right of ingress
and egress over that portion of the Grantor's adjacent within fifteen feet (15') of the Easement
Property as is reasonably necessary to and for the limited purpose of accessing the Easement
Property herein granted.
Grantee will at all times after doing any work in connection with the construction,
operation or repair of the Facilities, restore the surface of the Easement Property as close to the
condition in which it was found before such work was undertaken as is reasonably practicable,
except for trees, shrubs and structures within the Easement Property that were removed as a
result of such work.
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 3
026881.0100\597803.08
There are no liens, attachments, or other encumbrances which will affect the title or right
of the Grantor to convey this easement to the Grantee for the purposes as described herein. If
such condition does exist, a signature with acknowledgement shall be included and made a part
of this document conveying the rights and privileges contained herein.
The easement rights and privileges granted herein are exclusive, and Grantor covenants
that Grantor will not convey any other easement or conflicting rights within the area covered by
this grant.
This instrument shall be binding upon, and inure to the benefit of, Grantee and Grantor,
and their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes.
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this _______ day of ____________, 201___.
SIGNED my hand this _________ day of ____________, 201___.
GRANTOR:
,
a _______________
By:
Name:
Title:
Address:
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 4
026881.0100\597803.08
ACKNOWLEDGEMENT
THE STATE OF TEXAS §
§
COUNTY OF _________ §
This instrument was acknowledge before me on the ______ day of _________,
201__ by _______________________ its ______________ of the ________________, a
____________________ corporation, on behalf of said corporation.
__________________________________
Notary Public in and for the State of Texas
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 5
026881.0100\597803.08
[Delete this page if no liens are on the property. Complete this page for each lienholder]
LIENHOLDER'S CONSENT TO PARTIAL RELEASE OF LIEN:
The undersigned, being the holder(s) of the lien against a portion of the Property and
Easement Property evidenced by:
Deed of Trust dated __________, recorded under Clerk's File No.
______________, from _________, to _________, Trustee, securing payment of
one certain promissory note of even date therewith in the principal amount of
$_______, payable to the order of _____________; said Note being additionally
secured by a Vendor's Lien of even date retained in Deed, executed by
______________ to ____________, recorded under ______________, and
subject to all of the terms and conditions and stipulations contained therein,
including but not limited to, any future indebtedness also secured by this lien,
hereby consents to the execution of the foregoing easement and agrees that in the event of a
foreclosure of the Property and/or Temporary Construction Easement or any portion thereof
and/or the underlying property or any portion thereof (or deed in lieu thereof), the conveyance
made by this easement will remain in full force and effect and shall not be extinguished by such
foreclosure (or deed in lieu thereof).
Bank, a
By:
Printed Name:
It's:
Address:
EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 6
026881.0100\597803.08
STATE OF TEXAS §
§
COUNTY OF __________ §
This instrument was acknowledged before me on the ___ day of ______ 201 __, by
_____________, the ________________ and duly authorized representative of
________________ Bank, a _______________, on behalf of said corporation.
___________________________________
Notary Public, State of Texas
EXHIBIT E-3, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR WATER EASEMENT – Page 1
026881.0100\597803.08
EXHIBIT E-3
FORM FOR TEMPORARY CONSTRUCTION EASEMENTS
FOR WATER EASEMENT
"Notice of Confidentiality rights: If you are a Natural Person, you may remove or strike
any of the following information from this instrument before it is filed for record in the
Public Records: Your Social Security Number or your Drivers' License Number."
AFTER RECORDING, RETURN TO:
Town Secretary
Town of Prosper, Texas
407 E. First Street
P.O. Box 307
Prosper, Texas 75078
TEMPORARY CONSTRUCTION AND GRADING EASEMENT
(Water Line Facilities)
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________ §
That ____________________, a Texas ____________________ ("Grantor"), whether
one or more, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration to Grantor in hand paid by the TOWN OF PROSPER,
TEXAS, a Texas municipal corporation ("Grantee") the receipt of which is hereby
acknowledged, has this day GRANTED and by these presents does GRANT, GIVE, and
CONVEY unto the said Grantee a temporary construction and grading easement, being
________ acres of land, more or less, in the ___________ Survey, Abstract No. _______, in the
Town of Prosper, __________ County, Texas, more particularly depicted and described in
Exhibits "A" and "B", respectively, attached hereto and incorporated herein for all purposes (the
"Easement Property"), which rights of ingress and egress for the construction of water line and
EXHIBIT E-3, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR WATER EASEMENT – Page 2
026881.0100\597803.08
related improvements, such temporary construction and grading easement terminating upon
completion and acceptance of said water line improvements by Grantee.
TO HAVE AND TO HOLD the Easement Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto the said Grantee, Grantee's
successors, and assigns until expiration of this easement by it's own terms.
Grantor does hereby bind Grantor, Grantor's heirs, executors, administrators and assigns,
to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said
Grantee, Grantee's successors and assigns, against every person whomsoever lawfully claiming
or attempting to claim the same or any part thereof, by, through or under Grantor, but not
otherwise.
There are no liens, attachments, or other encumbrances which will affect the title or right
of the Grantor to convey this easement to the Grantee for the purposes as described herein. If
such condition does exist, a signature with acknowledgement shall be included and made a part
of this document conveying the rights and privileges contained herein.
This instrument shall be binding upon, and inure to the benefit of, Grantee and Grantor,
and their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes.
EXHIBIT E-3, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR WATER EASEMENT – Page 3
026881.0100\597803.08
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this ________ day of __________, 201___.
[type grantors name],
a Texas __________________
By: _____________________________
[type name and title]
STATE OF TEXAS §
§
COUNTY OF __________ §
BEFORE ME, the undersigned authority, on this day personally appeared
____________________, known to me to be one of the persons whose names are subscribed to
the foregoing instrument; he/she acknowledged to me that he/she is the _______________ and
duly authorized representative of ________________, a Texas ___________________; and that
he/she executed said instrument for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of
_______________, 201___.
_____________________________________
Notary Public in and for the State of Texas
My Commission Expires: __________________
EXHIBIT E-3, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR WATER EASEMENT – Page 4
026881.0100\597803.08
[Delete this page if no liens are on the property. Complete this page for each lienholder]
LIENHOLDER'S CONSENT TO PARTIAL RELEASE OF LIEN:
The undersigned, being the holder(s) of the lien against a portion of the Property and
Easement Property evidenced by:
Deed of Trust dated __________, recorded under Clerk's File No.
______________, from _________, to _________, Trustee, securing payment of
one certain promissory note of even date therewith in the principal amount of
$_______, payable to the order of _____________; said Note being additionally
secured by a Vendor's Lien of even date retained in Deed, executed by
______________ to ____________, recorded under ______________, and
subject to all of the terms and conditions and stipulations contained therein,
including but not limited to, any future indebtedness also secured by this lien,
hereby consents to the execution of the foregoing easement and agrees that in the event of a
foreclosure of the Property and/or Temporary Construction Easement or any portion thereof
and/or the underlying property or any portion thereof (or deed in lieu thereof), the conveyance
made by this easement will remain in full force and effect and shall not be extinguished by such
foreclosure (or deed in lieu thereof).
Bank, a
By:
Printed Name:
It's:
Address:
STATE OF TEXAS §
§
COUNTY OF __________ §
This instrument was acknowledged before me on the ___ day of ______ 201 __, by
_____________, the ________________ and duly authorized representative of
________________ Bank, a _______________, on behalf of said corporation.
___________________________________
Notary Public, State of Texas
EXHIBIT E-4, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR SEWER EASEMENT – Page 1
026881.0100\597803.08
EXHIBIT E-4
FORM FOR TEMPORARY CONSTRUCTION EASEMENTS
FOR SEWER EASEMENT
"Notice of Confidentiality rights: If you are a Natural Person, you may remove or strike
any of the following information from this instrument before it is filed for record in the
Public Records: Your Social Security Number or your Drivers' License Number."
AFTER RECORDING, RETURN TO:
Town SecretaryTown of Prosper, Texas
407 E. First Street
P.O. Box 307
Prosper, Texas 75078
TEMPORARY CONSTRUCTION AND GRADING EASEMENT
(Sewer Line Facilities)
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________ §
That ____________________, a Texas ____________________ ("Grantor"), whether
one or more, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration to Grantor in hand paid by the TOWN OF PROSPER,
TEXAS, a Texas municipal corporation ("Grantee") the receipt of which is hereby
acknowledged, has this day GRANTED and by these presents does GRANT, GIVE, and
CONVEY unto the said Grantee a temporary construction and grading easement, being
________ acres of land, more or less, in the ___________ Survey, Abstract No. _______, in the
Town of Prosper, __________ County, Texas, more particularly depicted and described in
Exhibits "A" and "B", respectively, attached hereto and incorporated herein for all purposes (the
"Easement Property"), which rights of ingress and egress for the construction of sewer line and
related improvements, such temporary construction and grading easement terminating upon
completion and acceptance of said sewer line improvements by Grantee.
EXHIBIT E-4, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR SEWER EASEMENT – Page 2
026881.0100\597803.08
TO HAVE AND TO HOLD the Easement Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto the said Grantee, Grantee's
successors, and assigns until expiration of this easement by its own terms.
Grantor does hereby bind Grantor, Grantor's heirs, executors, administrators and assigns,
to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said
Grantee, Grantee's successors and assigns, against every person whomsoever lawfully claiming
or attempting to claim the same or any part thereof, by, through or under Grantor, but not
otherwise.
There are no liens, attachments, or other encumbrances which will affect the title or right
of the Grantor to convey this easement to the Grantee for the purposes as described herein. If
such condition does exist, a signature with acknowledgement shall be included and made a part
of this document conveying the rights and privileges contained herein.
This instrument shall be binding upon, and inure to the benefit of, Grantee and Grantor,
and their respective successors or assigns.
This instrument may be executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes.
EXECUTED on the dates appearing in the acknowledgements below, however, to be
effective on this ________ day of __________, 201___.
[type grantors name],
a Texas __________________
By: _____________________________
[type name and title]
EXHIBIT E-4, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR SEWER EASEMENT – Page 3
026881.0100\597803.08
STATE OF TEXAS §
§
COUNTY OF __________ §
BEFORE ME, the undersigned authority, on this day personally appeared
____________________, known to me to be one of the persons whose names are subscribed to
the foregoing instrument; he/she acknowledged to me that he/she is the _______________ and
duly authorized representative of ________________, a Texas ___________________; and that
he/she executed said instrument for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ________ day of
_______________, 201___.
_____________________________________
Notary Public in and for the State of Texas
My Commission Expires: __________________
EXHIBIT E-4, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR SEWER EASEMENT – Page 4
026881.0100\597803.08
[Delete this page if no liens are on the property. Complete this page for each lienholder]
LIENHOLDER'S CONSENT TO PARTIAL RELEASE OF LIEN:
The undersigned, being the holder(s) of the lien against a portion of the Property and
Easement Property evidenced by:
Deed of Trust dated __________, recorded under Clerk's File No.
______________, from _________, to _________, Trustee, securing payment of
one certain promissory note of even date therewith in the principal amount of
$_______, payable to the order of _____________; said Note being additionally
secured by a Vendor's Lien of even date retained in Deed, executed by
______________ to ____________, recorded under ______________, and
subject to all of the terms and conditions and stipulations contained therein,
including but not limited to, any future indebtedness also secured by this lien,
hereby consents to the execution of the foregoing easement and agrees that in the event of a
foreclosure of the Property and/or Temporary Construction Easement or any portion thereof
and/or the underlying property or any portion thereof (or deed in lieu thereof), the conveyance
made by this easement will remain in full force and effect and shall not be extinguished by such
foreclosure (or deed in lieu thereof).
Bank, a
By:
Printed Name:
It's:
Address:
EXHIBIT E-4, FORM FOR TEMPORARY CONSTRUCTION
EASEMENTS FOR SEWER EASEMENT – Page 5
026881.0100\597803.08
STATE OF TEXAS §
§
COUNTY OF __________ §
This instrument was acknowledged before me on the ___ day of ______ 201 __, by
_____________, the ________________ and duly authorized representative of
________________ Bank, a _______________, on behalf of said corporation.
___________________________________
Notary Public, State of Texas
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 1
026881.0100\597803.08
EXHIBIT F
FORM OF WAIVER TO RECEIVE
MODEL HOME BUILDING PERMITS EARLY
[DATE]
Mr. Mike Land
Town Manager
Town of Prosper
PO Box 307
121 West Broadway St.
Prosper, Texas 75078
Re: ___ Single Family [identify specific zoning category of lots] lots on _____±
acres, generally located on the _____ side of ______ Road, ____± feet north of
________ Road, Prosper, ____________ County, Texas, known as [insert
subdivision name], Phase ___ (collectively referred to herein as the
"Subdivision").
Dear Mr. Land:
I, _________________, the duly authorized representative of __________________
(referred to herein as the "Owner"), request that the Town of Prosper, Texas (the "Town") issue
a building permit to Owner for the above-referenced Subdivision, subject to the limitations set
forth herein and thereon(the "Building Permit"). Owner represents that it is the sole owner of the
Subdivision. A copy of the approved, but not yet released by Town for filing, plat for the
Subdivision is attached hereto and incorporated herein by reference for all purposes as Exhibit
"A."
This letter shall serve as the agreement between Owner and Town solely with regard to
the matters set forth herein (the "Letter Agreement"). The rights authorized by Town are limited
to those set forth herein and in the Building Permit.
Owner acknowledges that the issuance of the Building Permit(s) for single-family model
home(s) and its scope is the only work authorized to be performed ("Authorized Construction").
In consideration for Town's issuance of the Building Permit, Owner agrees and
acknowledges:
Owner or its authorized representative(s) are the only persons or entities allowed to
perform the Authorized Construction;
Owner has not complied with all necessary requirements to perform the Authorized
Construction;
Town is not required by law to issue the Building Permit at this time but has
contractually agreed to do so pursuant to that certain Development Agreement
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 2
026881.0100\597803.08
entered into by and between the Town and Owner, among others, effective
_________, 2011 regarding water and sewer improvements;
All offsite public improvements have not been completed and accepted by Town in
order for, among other things, the Subdivision to obtain final acceptance from the
Town (the "Offsite Improvements");
The necessary Offsite Improvements are included in the following adjacent
subdivisions, all of which will need to obtain final acceptance prior to the Subdivision
obtaining final acceptance from the Town:
[INSERT LIST OF ITEMS THAT REMAIN UNCOMPLETED
BUT WOULD NORMALLY BE REQUIRED TO BE COMPLETED BEFORE A
BUILDING PERMIT IS ISSUED]
Town makes no representations and/or warranties as to when, or if, the required
Offsite Improvements will be completed and accepted by Town;
Town is relying on Owner to provide the waiver, release and indemnification set forth
below in consideration of providing the Building Permit;
Town has recommended that Owner consult with an attorney regarding the
implications, consequences and/or potential damages associated with moving forward
with the development of the Subdivision; and
Owner must comply with all applicable ordinances of Town.
Notwithstanding the fact that the Offsite Improvements needed to serve the lot(s)
for which Building Permit(s) are being obtained hereunder or the Subdivision, have not
been, and may never be, completed and accepted by Town, Owner is requesting that Town
execute this Letter Agreement and issue the Building Permit, and Owner assumes any and
all liability, consequences, damages or otherwise which may result, in whole or in part,
from it continuing with the development of the Subdivision in accordance with the Building
Permit.
If Owner fails to comply with any ordinance, rule, regulation and/or requirement of Town
and/or if the necessary Offsite Improvements have not been completed and accepted by Town,
allowing the Owner to obtain final acceptance of the Subdivision by Town, Owner acknowledges
and agrees that:
The Building Permit shall be, without notice and/or any other action of Town,
immediately revoked, and any Authorized Construction and/or any other
construction and/or development of the Subdivision shall immediately cease; and
Town shall have the following remedies, in addition to Town's other rights and
remedies available at law or in equity: (i) to refuse to issue building permits for the
Subdivision; and/or (ii) to refuse to accept all or any portion of the improvements
constructed within the Subdivision; and/or (iii) to refuse to accept the Subdivision;
and/or (iv) refuse to issue a certificate of occupancy for structures constructed
pursuant to a Building Permit issued hereunder; and/or (v) to seek specific
enforcement of this Letter Agreement.
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 3
026881.0100\597803.08
IN CONSIDERATION OF TOWN PROVIDING THE BUILDING PERMIT, OWNER,
ITS OFFICERS, DIRECTORS, PARTNERS, CONTRACTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES,
AND/OR TRUSTEES, DOES/DO HEREBY AGREE TO RELEASE, DEFEND, INDEMNIFY
AND HOLD HARMLESS TOWN AND ITS TOWN COUNCIL MEMBERS, OFFICERS,
AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL DAMAGES,
INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF
USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE
ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEY'S FEES AND EXPENSES
INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT,
GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF TOWN
AND/OR ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES,
EMPLOYEES AND/OR ANY OTHER THIRD PARTIES FOR WHOM TOWN IS LEGALLY
RESPONSIBLE PRIOR TO THE EXECUTION OF THIS LETTER AGREEMENT AND/OR AS
A RESULT OF ACTIONS TAKEN AND/OR NOT TAKEN BY TOWN AND ITS TOWN
COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES AND/OR
ANY OTHER THIRD PARTIES FOR WHOM TOWN IS LEGALLY RESPONSIBLE IN
REGARD TO THE BUILDING PERMIT AND/OR THE AUTHORIZED CONSTRUCTION
(HEREINAFTER "CLAIMS"). OWNER, INDIVIDUALLY AND/OR COLLECTIVELY, IS
EXPRESSLY REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS. THIS
PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS LETTER AGREEMENT.
IN ITS REASONABLE DISCRETION, TOWN SHALL HAVE THE RIGHT TO
APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY OWNER IN
FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY TOWN,
UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY TOWN IN WRITING. TOWN
RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE, AT
ITS SOLE COST; HOWEVER, TOWN IS UNDER NO OBLIGATION TO DO SO. ANY SUCH
OBLIGATION BY TOWN IS NOT TO BE CONSTRUED AS A WAIVER OF OWNER'S
OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF OWNER'S OBLIGATION TO
INDEMNIFY TOWN PURSUANT TO THIS LETTER AGREEMENT. OWNER SHALL
RETAIN TOWN-APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS
OF TOWN'S WRITTEN NOTICE THAT TOWN IS INVOKING ITS RIGHT TO
INDEMNIFICATION UNDER THIS LETTER AGREEMENT. IF OWNER FAILS TO
RETAIN DEFENSE COUNSEL WITHIN SUCH TIME PERIOD, TOWN SHALL HAVE THE
RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND OWNER SHALL BE
LIABLE FOR ALL COSTS INCURRED BY TOWN. THIS PARAGRAPH SHALL SURVIVE
THE TERMINATION OF THIS LETTER AGREEMENT.
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 4
026881.0100\597803.08
NOTHING IN THIS LETTER AGREEMENT SHALL BE IMPLIED TO VEST ANY
RIGHTS IN OWNER. IN ADDITION, NOTHING CONTAINED IN THIS LETTER
AGREEMENT SHALL CONSTITUTE A "PERMIT" AS DEFINED IN CHAPTER 245,
TEXAS LOCAL GOVERNMENT CODE, AND NOTHING IN THIS AGREEMENT SHALL
BE CONSIDERED TO PROVIDE TOWN WITH FAIR NOTICE OF OWNER'S PROJECT.
OWNER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS
LOCAL GOVERNMENT CODE BASED UPON THIS LETTER AGREEMENT. THIS
PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS LETTER AGREEMENT.
In any legal proceeding brought to enforce the terms of this Letter Agreement, including,
but not limited to, a proceeding brought pursuant to the immediately preceding paragraphs, 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 amended.
The individuals executing this Letter Agreement on behalf of the respective parties below
represent to each other that all appropriate and necessary action has been taken to authorize the
individual who is executing this Letter Agreement to do so for and on behalf of the party for
which his or her signature appears, that there are not other parties or entities required to execute
this Letter Agreement in order for the same to be an authorized and binding agreement on the
party for whom the individual signing this Letter 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 thereof.
The parties agree that Town has not waived it sovereign immunity by entering into and
performing its obligations under this Letter Agreement.
This Letter Agreement is executed by the parties hereto without coercion or duress and
for substantial consideration, the sufficiency of which is forever confessed. Additionally, this
Letter Agreement is not assignable.
This Letter Agreement, including the Exhibit hereto labeled "A," is incorporated herein
for all purposes, constitutes the sole and only agreement of the parties hereto, and supersedes any
and all prior agreements or understandings, whether oral or written, between them regarding the
subject matter contained herein. This Letter Agreement may not be amended, supplemented,
and/or modified except by written agreement duly executed by the parties hereto.
This entire Letter Agreement is performable in Collin County, Texas and the venue for
any action related directly or indirectly, to this Letter Agreement or in any manner connected
therewith shall be Collin County, Texas, and this Letter Agreement shall be construed under the
laws of the State of Texas.
Each signatory represents this Letter Agreement has been read by the party for which this
Letter Agreement is executed and that such party has had the opportunity to confer with its
counsel.
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 5
026881.0100\597803.08
This Letter Agreement shall be deemed drafted equally by all parties hereto. The
language of all parts of this Letter 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.
Nothing in this Letter Agreement shall be construed to create any right in any third party
not a signatory to this Letter Agreement, and the parties do not intend to create any third party
beneficiaries by entering into this Letter Agreement.
Waiver by either party of any breach of this Letter Agreement, or the failure of either
party to enforce any of the provisions of this Letter Agreement, at any time, shall not in any way
affect, limit or waive such party's right thereafter to enforce and compel strict compliance.
This Letter Agreement may be executed in a number of identical counterparts, each of
which shall be deemed an original for all purposes.
Please call our office if you have questions or need additional information. Otherwise, if
Town agrees with the above, please sign in the space provided below.
Sincerely,
[insert name of entity requesting building permit].
a Texas limited partnership
By: [insert name of general partner if letter is from an LP]
a Texas limited liability company
Its: General Partner
By:
Name:
Title:
AGREED:
The Town of Prosper, Texas
By:
Mike Land, Town Manager
Date:
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 6
026881.0100\597803.08
STATE OF __________________:
COUNTY OF ________________:
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THE STATE OF
_______________________, ON THIS DAY PERSONALLY APPEARED
_____________________________________, KNOWN TO ME TO BE THE PERSON WHOSE NAME IS
SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE
EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE
CAPACITY THEREIN STATED.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS _____ DAY OF _____________________, 201__.
______________________________________________________
NOTARY PUBLIC IN AND FOR THE STATE OF ___________
My commission expires: _________________________________
STATE OF TEXAS:
COUNTY OF COLLIN:
BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THE STATE OF
TEXAS, ON THIS DAY PERSONALLY APPEARED________________________, KNOWN TO ME TO BE
THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND
ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND
CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS _____ DAY OF ______________________, 201__.
______________________________________________________
NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS
My commission expires: ______________________________
EXHIBIT "A" TO LETTER AGREEMENT FINAL PLAT, _____________________PHASE ___
EXHIBIT F, FORM OF WAIVER TO RECEIVE MODEL
HOME BUILDING PERMITS EARLY – Page 7
026881.0100\597803.08
AFTER RECORDING RETURN TO:
Town of Prosper, Texas
Engineering Services Department
PO Box 307
121 West Broadway St.
Prosper, Texas 75078
Attention: ____________________
EXHIBIT G, ESTIMATED WATER AND SEWER
IMPROVEMENT COSTS – Cover Page
026881.0100\597803.08
EXHIBIT G
ESTIMATED WATER AND SEWER IMPROVEMENT COSTS
PAGE 1
TOWN OF PROSPER, TEXAS ORDINANCE NO. 11-50
AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS,
AUTHORIZING THE TOWN MANAGER TO EXECUTE A
DEVELOPER PARTICIPATION AGREEMENT WITH FOREST
CITY PROSPER LIMITED PARTNERSHIP AND PROSPER
PARTNERS, L.P., TO CONSTRUCT WATER LINES, SEWER
LINES AND RELATED INFRASTRUCTURE; PROVIDING
REPEALING, SAVINGS AND SEVERABILITY CLAUSES;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Forest City Prosper Limited Partnership and Prosper Partners, L.P. (together
“Developer”) owns all of certain large tracts of undeveloped land in the Town of Prosper which
need infrastructure to be developed (“Project”); and
WHEREAS, it is prudent and in the public interest to construct the water and sewer
infrastructure in conjunction with the Project; and
WHEREAS, the Town and Developer find it to be to their mutual advantage to enter into
a Developer Participation Agreement (“Agreement”) regarding the construction of certain public
improvements related to the development of the Project on the property identified in the
Agreement; and
WHEREAS, Texas Local Government Code §212.071, as amended, authorizes
municipalities to participate in the developer’s costs of construction of public improvements such
as those provided for in the Agreement in an amount not greater than 30 percent of the total
contract price without compliance with Chapter 252 of the Texas Local Government Code, as
amended; and
WHEREAS, the Town Council has carefully reviewed and considered the proposed
Agreement; and
WHEREAS, the Town Council has determined that participating in the Agreement is in
the best interest of the citizens of Prosper.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1. Approval of Agreement and Agreed Payment. That the Town Manager is
hereby authorized to execute the Developer Participation Agreement (“Agreement”), attached
hereto as Exhibit “A”, with Forest City Prosper Limited Partnership and Prosper Partners, L.P.
In compliance with Texas Local Government Code §212.072(d), the Town’s maximum financial
contribution for the water infrastructure shall be the lower of $430,000.00 or 14.45% of the costs
authorized by the Agreement. The Town’s maximum financial contribution for the sewer
infrastructure shall be the lower of $450,000.00 or 25.75% of the costs authorized by the
Agreement.
SECTION 2. Statutory Safeguards and Inspections. In compliance with Texas Local
Government Code §212.074, the Agreement incorporates safeguards against undue loading of
PAGE 2
costs, collusion or fraud by requiring Developers to submit construction plans and contracts to
the Town for review, requiring Developers to seek multiple proposals and having contractor
requests for payments under the contract(s) be administered the Town. Further, the Developer’s
books and records related to the Project shall be available for inspection by the Town.
SECTION 3. Severability. 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 is 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 4. Savings/Repealing Clause. All provisions of any ordinance in conflict
with this Ordinance are hereby repealed to the extent they are in conflict; 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 ordinances shall remain in full force and effect.
SECTION 5. Effective Date. That this Ordinance shall take effect immediately from
and after its passage.
DULY PASSED AND APPROVED by the Town Council of the Town of Prosper,
Texas, on the 12th day of July, 2011.
___________________________________
Ray Smith
Mayor
ATTEST:
________________________________
Matthew Denton
Town Secretary
Page 1 of 2
To: Mayor and Town Council
From: Mike Land, Town Manager
Re: Town Council Meeting – Tuesday July 12, 2011
Date: July 7, 2011
Agenda Item:
Consider and act upon Ordinance No. 11-50 authorizing the Mayor to sign a Water and Sewer
Developer Participation Agreement between the Town of Prosper, Forest City Prosper Limited
Partnership and Prosper Partners, L.P., for a Developer Participation Agreement related to the
construction of certain water and sewer infrastructure.
Description of Agenda Item:
In summary the agreement accomplishes providing water west from Preston Rd. along Hwy 380
to just east of Gee Rd and gravity sewer from Doe Branch Creek west of Gee Rd. in an easterly
direction and south of Fishtrap to a point approximately ¼ mile east of Teel to the Prosper
Partners west property line. The water line will also extend north at the DNT connecting into a
line at First Street completing a loop for that service area.
The construction cost for these two projects combined is $5,060,000. Forest City and Prosper
Partners are paying $4,132,000 of the total and the Town’s total contribution at the time of
construction is $928,000. The source of funds for the Town’s contribution is water and sewer
impact fees combined with a $250,000 contribution from the Prosper EDC. The EDC payment
will be to the Town and discussed under a separate agenda item. Should the project cost come
in less than expected all parties contributions shall be reduced proportionally. Should the
projects costs come in higher than projected, the Town’s contribution is capped and the
agreement contemplates a 15% increase as being acceptable to Forest City and Prosper
Partners to continue on with the project. If the overage is above 15% the agreement can be
terminated.
The developers will upon approval of this agreement be paying the Town $4,000.00
representing the Town’s Attorney’s fees related to negotiating and drafting the agreement.
Additionally the Town will be collecting a fee for acting as the escrow agent equal to .75 percent
of the water and sewer construction cost. The fee will actually be a credit against the Town’s
maximum contribution, potentially lowering the Town’s contribution by up to $37,950.00
Forest City and Prosper Partners will be responsible for all cost associated with the acquisition
of any utility easements necessary for completion of these lines. These costs are not
reimbursable to the developers consistent with previous Town policy. Should they reach a point
in their negotiations with a landowner where an agreement cannot be reached to acquire an
easement they may request the Town to step in and have the Town use its power of eminent
domain to acquire the property.
Prosper is a place where everyone matters.
ADMINISTRATION
Page 2 of 2
These two lines are critical to the future commercial development along Hwy. 380. Construction
is scheduled to begin no later than March 1, 2012 and should be completed within six to nine
months. While both Forest City and Prosper Partners will be paying impact fees as their
particular projects develop over the years, the incentive for them to move forward now is for
them to receive a payback equivalent to 1.75 of the water impact fees and 2.0 of the sewer
impact fees paid into the defined services areas as shown in the exhibits.
Budget Impact:
The Town of Prosper’s financial contribution to these two projects totals $928,000. Of this total
$250,000 will be contributed by the Prosper Economic Development Corporation with the
balance being funded with the Town’s Water and Sewer Impact Fees. Over the life of the
agreement, the developers will receive reimbursements through impact fees generated in the
designated service areas totaling up to $7,556,000.00 depending on the final costs of the
projects.
Legal Obligations and Review:
Staff has worked with Julie Forte, the EDC’s attorney in the drafting and review of this
document.
Attached Documents:
1. Ordinance No. 11-50 authorizing the Mayor to sign a Water and Sewer Developer
Participation Agreement between the Town of Prosper, Forest City Prosper Limited
Partnership and Prosper Partners, L.P., for a Developer Participation Agreement related
to the construction of certain water and sewer infrastructure.
2. Water and Sewer Developer Participation Agreement between the Town of Prosper,
Forest City Prosper Limited Partnership and Prosper Partners, L.P., for a Developer
Participation Agreement related to the construction of certain water and sewer
infrastructure.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the ordinance authorizing the
Mayor to sign a Water and Sewer Developer Participation Agreement between the Town
of Prosper, Forest City Prosper Limited Partnership and Prosper Partners, L.P., for a
Developer Participation Agreement related to the construction of certain water and
sewer infrastructure.
Page 1 of 8
EXHIBIT B
LEGAL DESCRIPTION OF FOREST CITY TRACT
BEING a tract of land out of the M.E.P. & P.R.R. SURVEY, Abstract No. 1476, P. BARNES
SURVEY, Abstract No. 79, H.P. SALING SURVEY, Abstract No. 1628, L. SALING
SURVEY, Abstract No. 1675, J. BATES SURVEY, Abstract No. 1620, and the C. SMITH
SURVEY, Abstract No. 1681, in Denton County, Texas, being part of a tract of land described in
deed to Mahard Egg Farm, Inc. recorded in Volume 1936, Page 145 of the Deed Records of
Denton County Texas, and being all of the tracts of land described in deeds to Forest City
Prosper Limited Partnership, as recorded in Instrument No. 2008-9958 and Instrument No. 2007-
144196 of the Deed Records of Denton County, Texas (DRDCT) and being more particularly
described as follows:
BEGINNING at a PK Nail found at the approximate centerline intersection of Fish Trap Road
and Teel Parkway (Fields Road), at the northeast corner of a tract of land conveyed to Forest
City Prosper Limited Partnership according to the deed recorded in Instrument Number 2007-
144196 (DRDCT);
THENCE, S 0°00'44" E, along the approximate centerline of Teel Parkway (Fields Road), a
distance of 2327.49';
THENCE, S 89°25'36" W, a distance of 21.23';
THENCE, S 0°01'37" E, along the current west line of said Teel Parkway, a distance of 1399.75';
THENCE, along the north ROW line of US Highway 380, the following:
S 43°36'03" W, a distance of 86.08';
S 88°36'13" W, a distance of 3483.09';
S 88°58'49" W, a distance of 161.73';
S 88°35'41" W, a distance of 2184.27';
N 46°21'17" W, a distance of 111.89';
THENCE, N 0°07'08" W, along the approximate centerline of Gee Road, a distance of 1116.03';
THENCE, along the boundary of a tract of land conveyed to NW 380 & 423 LP, according to the
deed filed in Instrument No. 2007-148600 (DRDCT), the following:
S 89°00'13" W, a distance of 450.32';
S 89°55'33" W, a distance of 645.33';
N 12°39'45" E, a distance of 2150.58';
THENCE, N 89°52'52" E, a distance of 619.83' to a point in the approximate centerline of said
Gee Road;
Page 2 of 8
THENCE, N 0°07'08" W, along said approximate centerline, a distance of 658.63' to the
intersection of said Gee Road with Fish Trap Road;
THENCE, along the approximate centerline of said Fish Trap Road, the following;
S 85°58'24" E, a distance of 1146.80';
S 88°45'58" E, a distance of 290.95';
N 89°02'57" E, a distance of 900.84';
THENCE, S 0°15'35" E, a distance of 231.61';
THENCE, along a tract of land owned by Judy Reeves, the following:
N 89°14'55" E, a distance of 961.03';
N 0°16'13" W, a distance of 197.22';
N 88°58'23" E, a distance of 815.79';
N 0°02'49" W, a distance of 36.27' to a point in the approximate centerline of said Fish Trap
Road;
THENCE, N 89°03'17" E, along the approximate centerline of said Fish Trap Road, a distance of
1883.78' to the Place of Beginning and containing 24,415,501 square feet or 560.503 acres of
land.
SAVE AND EXCEPT THE FOLLOWING 3 TRACTS:
SAVE AND EXCEPT - LEGAL DESCRIPTION – TRACT 1
BEING a tract of land situated in the J. Bates Survey, Abstract No. 1620 and the C Smith
Survey, Abstract No. 1681, Denton County, Texas, and also being part of a called 100 acre tract
as conveyed to Mahard 203 partnership, L.P. and recorded in County Clerks No. 2004-0046719,
Denton County, Texas, and also being part of a called 24.722 acre tract as conveyed to Mahard
203 Partnership, L.P. and recorded in County Clerks No. 2004-0046718, Denton County, Texas,
and being more particularly described by metes and bounds as follows:
BEGINNING at a alum. monument found for corner at the south end of a corner clip of Fields
Road and State highway No. 380, said monument being in the north Right Of Way line of State
Highway No. 380;
THENCE S 88°36'04'' W following the north ROW line of said S.H. No. 380 a distance of
2359.75' to a capped 1/2 inch iron rod set for corner;
THENCE N 01°23'56'' W a distance of 1309.25' to a capped 1/2 inch iron rod set for corner;
THENCE S 75°48'26'' E a distance of 34.26' to a capped 1/2 inch iron rod set for corner;
THENCE S 39°49'48'' E a distance of 44.34' to a capped 1/2 inch iron rod set for corner;
THENCE S 61°58'34'' E a distance of 42.40' to a capped 1/2 inch iron rod set for corner;
Page 3 of 8
THENCE S 65°08'41'' E a distance of 29.94' to a capped 1/2 inch iron rod set for corner;
THENCE S 51°21'52'' E a distance of 20.55' to a capped 1/2 inch iron rod set for corner;
THENCE S 08°55'21'' E a distance of 38.22' to a capped 1/2 inch iron rod set for corner;
THENCE S 27°16'32'' E a distance of 18.32' to a capped 1/2 inch iron rod set for corner;
THENCE S 38°29'19'' E a distance of 25.14' to a capped 1/2 inch iron rod set for corner;
THENCE S 53°54'58'' E a distance of 25.98' to a capped 1/2 inch iron rod set for corner;
THENCE S 61°22'55'' E a distance of 39.67' to a capped 1/2 inch iron rod set for corner;
THENCE S 65°46'31'' E a distance of 40.90' to a capped 1/2 inch iron rod set for corner;
THENCE S 71°27'45'' E a distance of 38.03' to a capped 1/2 inch iron rod set for corner;
THENCE S 85°07'33'' E a distance of 20.74' to a capped 1/2 inch iron rod set for corner;
THENCE N 89°46'51'' E a distance of 64.46' to a capped 1/2 inch iron rod set for corner;
THENCE N 84°14'52'' E a distance of 66.71' to a capped 1/2 inch iron rod set for corner;
THENCE N 76°14'54'' E a distance of 113.15' to a capped 1/2 inch iron rod set for corner;
THENCE S 89°16'29'' E a distance of 113.26' to a capped 1/2 inch iron rod set for corner;
THENCE N 89°33'59'' E a distance of 32.60' to a capped 1/2 inch iron rod set for corner;
THENCE N 84°32'07'' E a distance of 57.26' to a capped 1/2 inch iron rod set for corner;
THENCE N 77°22'13'' E a distance of 68.85' to a capped 1/2 inch iron rod set for corner;
THENCE N 76°17'21'' E a distance of 21.86' to a capped 1/2 inch iron rod set for corner;
THENCE N 63°27'17'' E a distance of 17.12' to a capped 1/2 inch iron rod set for corner;
THENCE N 48°21'08'' E a distance of 32.92' to a capped 1/2 inch iron rod set for corner;
THENCE N 31°21'52'' E a distance of 38.44' to a capped 1/2 inch iron rod set for corner;
THENCE N 33°33'13'' E a distance of 24.58' to a capped 1/2 inch iron rod set for corner;
THENCE N 60°58'00'' E a distance of 17.80' to a capped 1/2 inch iron rod set for corner;
THENCE N 77°54'56'' E a distance of 10.61' to a capped 1/2 inch iron rod set for corner;
THENCE S 89°39'03'' E a distance of 40.51' to a capped 1/2 inch iron rod set for corner;
THENCE S 68°35'30'' E a distance of 20.96' to a capped 1/2 inch iron rod set for corner;
THENCE S 84°15'13'' E a distance of 34.50' to a capped 1/2 inch iron rod set for corner;
THENCE S 88°23'24'' E a distance of 45.13' to a capped 1/2 inch iron rod set for corner;
THENCE S 69°01'44'' E a distance of 122.73' to a capped 1/2 inch iron rod set for corner;
THENCE S 73°15'14'' E a distance of 25.19' to a capped 1/2 inch iron rod set for corner;
THENCE S 77°21'00'' E a distance of 34.93' to a capped 1/2 inch iron rod set for corner;
THENCE S 81°15'41'' E a distance of 35.73' to a capped 1/2 inch iron rod set for corner;
THENCE S 85°30'06'' E a distance of 31.46' to a capped 1/2 inch iron rod set for corner;
THENCE N 86°28'15'' E a distance of 20.04' to a capped 1/2 inch iron rod set for corner;
THENCE S 80°08'56'' E a distance of 42.04' to a capped 1/2 inch iron rod set for corner;
THENCE S 63°27'18'' E a distance of 20.98' to a capped 1/2 inch iron rod set for corner;
THENCE S 68°17'58'' E a distance of 31.37' to a capped 1/2 inch iron rod set for corner;
THENCE S 71°41'55'' E a distance of 37.72' to a capped 1/2 inch iron rod set for corner;
THENCE N 88°59'13'' E a distance of 27.91' to a capped 1/2 inch iron rod set for corner;
THENCE S 72°40'06'' E a distance of 57.37' to a capped 1/2 inch iron rod set for corner;
THENCE N 82°22'57'' E a distance of 31.65' to a capped 1/2 inch iron rod set for corner;
THENCE S 72°58'52'' E a distance of 44.69' to a capped 1/2 inch iron rod set for corner;
THENCE S 83°51'47'' E a distance of 36.91' to a capped 1/2 inch iron rod set for corner;
THENCE S 87°03'22'' E a distance of 33.63' to a capped 1/2 inch iron rod set for corner;
THENCE N 86°51'59'' E a distance of 36.11' to a capped 1/2 inch iron rod set for corner;
THENCE N 75°32'31'' E a distance of 23.72' to a capped 1/2 inch iron rod set for corner;
Page 4 of 8
THENCE S 89°30'08'' E a distance of 28.40' to a capped 1/2 inch iron rod set for corner;
THENCE S 81°41'48'' E a distance of 22.21' to a capped 1/2 inch iron rod set for corner;
THENCE S 85°30'15'' E a distance of 35.61' to a capped 1/2 inch iron rod set for corner;
THENCE S 88°19'59'' E a distance of 25.45' to a capped 1/2 inch iron rod set for corner;
THENCE S 82°33'32'' E a distance of 38.11' to a capped 1/2 inch iron rod set for corner;
THENCE S 73°55'42'' E a distance of 120.74' to a capped 1/2 inch iron rod set for corner;
THENCE S 74°26'48'' E a distance of 35.89' to a capped 1/2 inch iron rod set for corner;
THENCE S 57°56'25'' E a distance of 39.05' to a capped 1/2 inch iron rod set for corner;
THENCE S 38°10'53'' E a distance of 17.58' to a capped 1/2 inch iron rod set for corner;
THENCE S 19°20'20'' E a distance of 52.98' to a capped 1/2 inch iron rod set for corner;
THENCE S 44°27'28'' E a distance of 17.63' to a capped 1/2 inch iron rod set for corner;
THENCE S 83°39'55'' E a distance of 22.37' to a capped 1/2 inch iron rod set for corner;
THENCE N 83°53'07'' E a distance of 15.58' to a capped 1/2 inch iron rod set for corner;
THENCE S 61°03'13'' E a distance of 47.42' to a capped 1/2 inch iron rod set for corner;
THENCE S 66°22'16'' E a distance of 65.21' to a capped 1/2 inch iron rod set for corner;
THENCE S 80°38'57'' E a distance of 12.36' to a capped 1/2 inch iron rod set for corner;
THENCE N 69°59'11'' E a distance of 88.69' to a capped 1/2 inch iron rod set for corner;
THENCE N 60°28'09'' E a distance of 22.38' to a capped 1/2 inch iron rod set for corner;
THENCE N 37°11'10'' E a distance of 22.22' to a capped 1/2 inch iron rod set for corner;
THENCE N 30°59'09'' E a distance of 20.67' to a capped 1/2 inch iron rod set for corner;
THENCE N 32°45'10'' E a distance of 23.11' to a capped 1/2 inch iron rod set for corner;
THENCE N 26°27'17'' E a distance of 12.20' to a capped 1/2 inch iron rod set for corner;
THENCE N 21°00'57'' E a distance of 17.75' to a capped 1/2 inch iron rod set for corner;
THENCE N 66°44'08'' E a distance of 11.20' to a capped 1/2 inch iron rod set for corner in
Fields Road;
THENCE S 00°01'47'' E following Fields Road a distance of 897.26' to a wood ROW monument
found for corner at the north end of said corner clip;
THENCE S 43°35'54'' W following the said corner clip a distance of 86.08' to the POINT OF
BEGINNING and containing 2,613,600 square feet or 60.000 acres of land.
SAVE AND EXCEPT - LEGAL DESCRIPTION – TRACT 2
BEING A 38.364 ACRE TRACT OF LAND LOCATED IN THE J. BATES SURVEY,
ABSTRACT NO. 1620, AND BEING A PORTION OF A CALLED 283.420 ACRE TRACT
OF LAND DESCRIBED AS TRACT 1 TO OREST CITY PROSPER, LP. RECORDED IN
COUNTY CLERK'S FILE NO. 2007-00144196, DEED ECORDS, DENTON COUNTY,
TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A 1/2" IRON ROD WITH A YELLOW PLASTIC CAP STAMPED
"SPIARSENG" SET FOR CORNER AT THE SOUTHWEST CORNER OF SAID 283.420
ACRE TRACT AND SAID FOREST CITY POSPER, L.P. TRACT, SAID POINT ALSO
Page 5 of 8
BEING IN THE NORTH LINE OF U.S. HIGHWAY 380, A 160 FOOT WIDE PUBLIC
RIGHT-OF-WAY AT THE BEGINNING OF A CORNER CLIP;
THENCE NORTH 46°40'54" WEST, DEPARTING THE NORTH LINE OF SAID U.S.
HIGHWAY 380, A DISTANCE OF 83.04 FEET TO A 1/2" IRON ROD WITH A YELLOW
PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER AND BEING AT THE END
OF A CORNER CLIP IN THE EAST LINE O GOOD HOPE ROAD;
THENCE NORTH 00°25'36" WEST, CONTINUING ALONG SAID EAST LINE OF GOOD
HOPE ROAD, A DISTANCE OF 1105.55 FEET TO A 1/2” IRON ROD WITH A YELLOW
PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 14°07'39" EAST, A DISTANCE OF 83.38 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 36°25'04" EAST, A DISTANCE OF 122.80 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 63°00'29" EAST, A DISTANCE OF 62.17 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 38°14'06" EAST, A DISTANCE OF 51.46 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 70°02'15" EAST, A DISTANCE OF 172.36 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 48°06'34" EAST, A DISTANCE OF 45.28 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 28°00'20" EAST, A DISTANCE OF 40.16 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 66°02'53" EAST, A DISTANCE OF 18.53 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 89°51'15" EAST, A DISTANCE OF 15.62 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 70°26'37" EAST, A DISTANCE OF 24.93 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 82°07'33" EAST, A DISTANCE OF 15.81 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
Page 6 of 8
THENCE SOUTH 55°16'09" EAST, A DISTANCE OF 70.84 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 74°09'48" EAST, A DISTANCE OF 93.31 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 50°23'53" EAST, A DISTANCE OF 26.68 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE NORTH 77°36'11" EAST, A DISTANCE OF 263.50 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 42°38'11" EAST, A DISTANCE OF 20.94 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 70°03'00" EAST, A DISTANCE OF 125.09 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 28°51'42" EAST, A DISTANCE OF 81.03 FEET TO A 1/2" IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 67°37'03" EAST, A DISTANCE OF 70.47 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER;
THENCE SOUTH 86°09'18" EAST, A DISTANCE OF 30.78 FEET TO A 1/2” IRON ROD
WITH A YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER, SAID
CORNER ALSO BEING THE NORTHWEST CORNER OF A CALLED 15.034 ACRE
TRACT OF LAND DESCRIBED TO RICHARD J. & NATHAN P. BONTKE BY SPECIAL
WARRANTY DEED AS RECORDED IN COUNTY CLERK FILE 2007-144901, DEED
RECORDS, DENTON COUNTY, TEXAS;
THENCE SOUTH 01°23'56" EAST, CONTINUING ALONG THE WEST LINE OF SAID
15.034 ACRE TRACT, A DISTANCE OF 1321.07 FEET TO A 1/2" IRON ROD WITH A
YELLOW PLASTIC CAP STAMPED "SPIARSENG" SET FOR CORNER IN THE NORTH
LINE OF SAID U.S. HIGHWAY 380;
THENCE SOUTH 88°36'04" WEST, CONTINUING ALONG SAID NORTH LINE OF SAID
U.S. HIGHWAY 380, A DISTANCE OF 1123.34 FEET TO THE POINT OF BEGINNING
AND CONTAINING 1,671,125 SQUARE FEET OR 38.364 ACRES OF LAND, MORE OR
LESS.
Page 7 of 8
SAVE AND EXCEPT – LEGAL DESCRIPTION – TRACT 3
BEING a 5.545 acre tract of land out of the J. BATES SURVEY, Abstract No. 1620, in Denton
County, Texas, being part of a called 27.157 tract of land described in deed to Forest City
Prosper, L.P., recorded in Denton County Clerk’s File No. 2008-9958 of the Real Property
Records of Denton County, Texas, being part of called 283.420 acre tract of land described in
deed to Forest City Prosper, L.P., recorded in Denton County Clerk’s File No. 2007-144196 of
the Real Property Records of Denton County, Texas, and being more particularly described as
follows:
COMMENCING at a point in the corner clip of the north right-of-way line of U.S. Highway No.
380, and the east line of Good Hope Road (no dedication recordation found) and the southwest
corner of a tract of land described in deed to Richard J. Bontke and Nathan P. Bontke recorded in
Denton County Clerk’s File No. 2009-10359 of the Real Property Records of Denton County,
Texas;
THENCE North 00°25'36" West, with said east line of Good Hope Road and along a fence and
the west line of said Bontke tract, a distance of 1105.55 feet to a fence corner found in the south
line of said 283.420 acre tract and being the POINT OF BEGINNING;
THENCE North 00°25'36" West, with said west line of said 283.420 acre tract and along a fence,
a distance of 348.35 feet to a 5/8" iron rod set with a plastic cap stamped “KHA” (hereinafter
called 5/8” iron rod set) for corner in the east line of said Good Hope Road and the southwest
corner of said 27.157 acre tract:
THENCE North 00°08'28" West, with said west line of said 27.157 acre tract and the east line of
Good Hope Road and along a fence, a distance of 195.83 feet to a point for corner at the
beginning of a non-tangent curve to the right whose chord bears North 83°17’02” East, 44.95
feet;
THENCE leaving said Good Hope Road across said 27.157 acre tract and along a curve to the
right through a central angle of 03°50’40”, a radius of 670.00 feet and a arc length of 44.96 feet
to a point for corner at the beginning of a reverse curve to the left whose chord bears North
76°35’13” East, 458.59 feet;
THENCE across said 27.157 acre tract and along a curve to the left through a central angle of
17°14’18”, a radius of 1530.00 feet and a arc length of 460.32 feet to a point for corner at the
beginning of a curve to the left whose chord bears North 66°43’38” East, 224.31 feet;
THENCE across said 27.157 acre tract and along a curve to the left through a central angle of
02°28’53”, a radius of 5180.00 feet and a arc length of 224.33 feet to a point for corner;
Page 8 of 8
THENCE South 00°00'00" East, across said 27.157 acre tract, a distance of 444.60 feet to a point
for corner in the north line of said Bontke tract;
THENCE with said north line of said Bontke tract, the following courses and distances to wit;
THENCE South 77°36'11" West, a distance of 59.80 feet;
THENCE North 50°23'53" West, a distance of 26.68 feet;
THENCE North 74°09'48" West, a distance of 93.31 feet;
THENCE North 55°16'09" West, a distance of 70.84 feet;
THENCE North 82°07'33" West, a distance of 15.81 feet;
THENCE North 70°26'37" West, a distance of 24.93 feet;
THENCE North 89°51'15" West, a distance of 15.62 feet;
THENCE South 66°02'53" West, a distance of 18.53 feet;
THENCE South 28°00'20" West, a distance of 40.16 feet;
THENCE South 48°06'34" West, a distance of 45.28 feet;
THENCE South 70°02'15" West, a distance of 172.36 feet;
THENCE South 38°14'06" West, a distance of 51.46 feet;
THENCE South 63°00'29" West, a distance of 62.17 feet;
THENCE South 36°25'04" West, a distance of 122.80 feet;
THENCE South 14°07'39" West, a distance of 83.38 feet to the POINT OF
BEGINNING and containing 5.545 acres of land.
Bearing system based North Central Zone of the Texas State Plane Coordinate System. This
document, prepared under 22 TAC 663.21, does not reflect the results of an on the ground
survey, and is not to be used to convey or establish interests in real property except those rights
and interest supplied or established by the creation or reconfiguration of the boundary of the
political subdivision for which it was prepared.
P. BARNES SURVEY ABST. NO. 79M.E.P. & P.R.R. SURVEY ABST. NO. 1476M.E.P. & P.R.R. SURVEY ABST. NO. 1476M.E.P. & P.R.R. SURVEY ABST. NO. 1476L. NETHERLY SURVEY ABST. NO. 962C JACKSON SURVEY ABST. NO. 665C. SMITH SURVEY ABST. NO. 1681L. SALING SURVEY ABST. NO. 1675H.P. SALING SURVEY ABST. NO. 1628J. BATES SURVEY ABST. NO. 1620US HIGHWAY 380GEE ROADGOOD HOPE ROADTEEL PARKWAY (FIELDS ROAD)FISH TRAP ROADFISH TRAP ROAD
Alignment Description Unit Quantity Unit Price Total Cost
Fishtrap (West of Teel)
8" PVC Water (C900 DR14) LF 15 16.00$ 240.00$
24" PVC Water LF 1,754 70.00$ 122,780.00$
6" Gate Valves EA 1 650.00$ 650.00$
8" Gate Valves EA 2 800.00$ 1,600.00$
24" Butterfly Valves EA 1 6,400.00$ 6,400.00$
Fire Hydrants & Assembly EA 1 2,300.00$ 2,300.00$
Ductile Iron Fittings TONS 0.3 4,000.00$ 1,200.00$
Concrete Blocking LS 1 1,000.00$ 1,000.00$
Remove Existing 24" Plug EA 1 250.00$ 250.00$
Connect to Existing 24" Water EA 1 600.00$ 600.00$
Trench Safety LF 1,769 0.10$ 176.90$
Water Line Testing LF 1,769 0.50$ 884.50$
Total Fishtrap (West of Teel)138,081.40$
380 (DNT to Preston)
24" PVC Water LF 5,120 70.00$ 358,400.00$
12" PVC Water (C900 DR18) LF 50 25.00$ 1,250.00$
36" Steel Encasement by Bore (with 24" pipe)LF 300 470.00$ 141,000.00$
36" Steel Encasement by Open Cut (with 24"
pipe)LF 380 250.00$ 95,000.00$
Ductile Iron Fittings TONS 3.0 4,000.00$ 12,000.00$
Concrete Blocking LS 1 1,000.00$ 1,000.00$
24" Butterfly Valves EA 6 6,400.00$ 38,400.00$
12" Gate Valves EA 5 1,800.00$ 9,000.00$
6" Gate Valves EA 5 650.00$ 3,250.00$
Fire Hydrants & Assembly EA 5 2,300.00$ 11,500.00$
Pressure Reducing Valve & Vault EA 1 150,000.00$ 150,000.00$
Trench Safety LF 5,170 0.10$ 517.00$
Water Line Testing LF 5,170 0.50$ 2,585.00$
Total 380 (DNT to Preston)823,902.00$
Teel, US 380 (Teel to Preston), DNT, Fishtrap
July 7, 2011
Exhibit G - Estimated Water Improvement Costs
Exhibit G July 7, 2011 Page 1
Description Unit Quantity Unit Price Total Cost
Teel and 380 (to DNT)
8" PVC Water (C900 DR14) LF 60 16.00$ 960.00$
12" PVC Water (C900 DR18) LF 100 25.00$ 2,500.00$
16" PVC Water LF 20 46.00$ 920.00$
20" PVC Water LF 12,019 62.00$ 745,178.00$
24" PVC Water LF 3,713 70.00$ 259,910.00$
30" Steel Encasement by Bore (with 20" pipe)LF 170 435.00$ 73,950.00$
30" Steel Encasement by Open Cut (with 20"
pipe)LF 530 200.00$ 106,000.00$
6" Gate Valves EA 15 650.00$ 9,750.00$
8" Gate Valves EA 4 800.00$ 3,200.00$
12" Gate Valves EA 10 1,800.00$ 18,000.00$
16" Butterfly Valves EA 1 4,100.00$ 4,100.00$
20" Butterfly Valves EA 14 5,300.00$ 74,200.00$
24" Butterfly Valves EA 6 6,400.00$ 38,400.00$
Fire Hydrants & Assembly EA 15 2,300.00$ 34,500.00$
Ductile Iron Fittings TONS 15.2 4,000.00$ 60,800.00$
Concrete Blocking LS 1 15,200.00$ 15,200.00$
2" Air Release Valve EA 1 2,500.00$ 2,500.00$
Remove and Replace Existing Sign EA 2 15,000.00$ 30,000.00$
Remove and Replace Barb Wire Fence LS 1 1,000.00$ 1,000.00$
Remove and Replace Chain Link Fence LF 30 20.00$ 600.00$
Remove and Replace Ex. Concrete Pavement SY 384 35.00$ 13,440.00$
Trench Safety LF 16,612 0.10$ 1,661.20$
Water Line Testing LF 16,612 0.50$ 8,306.00$
Total Teel and 380 1,505,075.20$
Additional Fishtrap
12" PVC Water (C900 DR18) LF 1,000 25.00$ 25,000.00$
Ductile Iron Fittings TONS 1.0 4,000.00$ 4,000.00$
Concrete Blocking LS 1 1,000.00$ 1,000.00$
12" Gate Valves EA 3 1,800.00$ 5,400.00$
6" Gate Valves EA 2 650.00$ 1,300.00$
Fire Hydrants & Assembly EA 2 2,300.00$ 4,600.00$
Pressure Reducing Valve & Vault EA 1 150,000.00$ 150,000.00$
Trench Safety LF 1,000 0.10$ 100.00$
Water Line Testing LF 1,000 0.50$ 500.00$
Total Additional Fishtrap 191,900.00$
Exhibit G July 7, 2011 Page 2
Description Unit Quantity Unit Price Total Cost
DNT (380 to Batch Plant)
12" PVC Water (C900 DR18) LF 2,580 25.00$ 64,500.00$
Ductile Iron Fittings TONS 1.0 4,000.00$ 4,000.00$
Concrete Blocking LS 1 1,000.00$ 1,000.00$
12" Gate Valves EA 6 1,800.00$ 10,800.00$
6" Gate Valves EA 5 650.00$ 3,250.00$
Fire Hydrants & Assembly EA 5 2,300.00$ 11,500.00$
Trench Safety LF 2,580 0.10$ 258.00$
Water Line Testing LF 2,580 0.50$ 1,290.00$
Total 380 (DNT to Batch Plant)96,598.00$
2,755,556.60$
275,555.66$
275,555.66$
3,306,667.92$ OVERALL TOTAL FOR CIP WATER =
Design and Staking (10%) =
Contingency (10%) =
Total Construction =
Exhibit G July 7, 2011 Page 3
Description Unit Quantity Unit Price Total Cost
27'' ASTM F679 LF 3,024 90.00$ 272,123.10$
24'' ASTM F679 LF 10,865 72.00$ 782,280.00$
5' Manhole EA 34 5,700.00$ 193,800.00$
Meter Manhole EA 1 75,000.00$ 75,000.00$
36" Steel Encasement by Bore LF 30 900.00$ 27,000.00$
36" Steel Encasement LF 181 490.00$ 88,690.00$
33" Steel Encasement by Bore LF 30 825.00$ 24,750.00$
33" Steel Encasement LF 170 450.00$ 76,500.00$
Connect to Existing Manhole EA 1 1,000.00$ 1,000.00$
Erosion Control LF 14,300 1.00$ 14,299.59$
Safety and Testing LF 14,300 2.50$ 35,748.98$
Clearing and Grubbing AC 16.60 4,000.00$ 66,400.00$
1,657,591.67$
165,759.17$
165,759.17$
1,989,110.00$ OVERALL TOTAL FOR CIP SEWER =
Exhibit G - Estimated Sewer Improvement Costs
Oversize - To Legacy Drive (Sta 143+00)
July 7, 2011
Total Construction =
Design and Staking (10%) =
Contingency (10%) =
Exhibit G July 7, 2011 Page 4
Page 1 of 1
To: Mayor and Town Council
From: Mike Land, Town Manager
Re: Town Council Meeting – Tuesday July 12, 2011
Date: July 7, 2011
Agenda Item:
Consider and act on a resolution authorizing the Mayor to enter into an infrastructure
development agreement between the Town of Prosper and the Prosper Economic Development
Corporation.
Description of Agenda Item:
This agreement provides the mechanism for the Town to receive payment from the Prosper
Economic Development Corporation (PEDC) for its contribution for the construction of water and
sewer improvements as described in the Town’s Development Agreement with Forest City and
Prosper Partners. The PEDC’s contribution totals $250,000.00.
The payment schedule included in the agreement matches up with the payment schedule in the
Water and Sewer Improvement Development Agreement between the Town, Forest City and
Prosper Partners.
Budget Impact:
The funds received will be used for the construction of the water and sewer improvements.
Legal Obligations and Review:
The EDC’s attorney Julie Forte developed the agreement.
Attached Documents:
1. Resolution authorizing the Mayor to enter into a infrastructure development agreement
between the Town of Prosper and the Prosper Economic Development Corporation.
2. Infrastructure development agreement between the Town of Prosper and the Prosper
Economic Development Corporation.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the resolution authorizing the Mayor to
enter into an infrastructure development agreement between the Town of Prosper and the
Prosper Economic Development Corporation.
Prosper is a place where everyone matters.
ADMINISTRATION
INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City & Prosper Partners) Page 1 of 5
H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement
PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc
INFRASTRUCTURE DEVELOPMENT AGREEMENT
(Forest City and Prosper Partners)
STATE OF TEXAS §
COUNTY OF COLLIN §
This Infrastructure Development Agreement (this “Agreement”) is made and entered into
by and between the Town of Prosper, Texas (“Town”) and the Prosper Economic Development
Corporation (“PEDC”) (referred to as the “Parties” or individually a “Party”).
WHEREAS, Town has entered into a Developer Participation Agreement with Forest
City Prosper Limited Partnership and Prosper Partners, L.P., which is attached hereto as Exhibit
“A”, (“Developer Participation Agreement”) related to the construction of certain water and
sewer infrastructure; and
WHEREAS, PEDC desires to contribute to the Project (as defined herein) to help
expedite its completion and to promote economic development in the area; and
WHEREAS, the Parties have investigated and determined that it is in the best interest of
the public to share in the costs of the water and sewer infrastructure as set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, the Parties hereto agree as follows:
1. Description of Project/Management of the Project. The Project consists of the design
and construction of the water and sewer improvements identified in the Developer Participation
Agreement (the “Project”). Construction of the Project will begin by October 1, 2011, in
accordance with the plans and specifications prepared in accordance with the Developer
Participation Agreement. Town shall administer payments to the construction contractor for the
Project in accordance with the Developer Participation Agreement.
2. Project Construction Costs Paid by Parties. Pursuant to the Developer Participation
Agreement and in compliance with Texas Local Government Code §212.072(d), the Town’s
maximum financial contribution for the water infrastructure shall be the lower of Four Hundred
Seventy Eight Thousand Dollars and .00/l00 ($478,000.00) or 14.45% of the costs authorized by
the Developer Participation Agreement and the Town’s maximum financial contribution for the
sewer infrastructure shall be the lower of Four Hundred Fifty Thousand Dollars and .00/l00
($450,000.00) or 25.75% of the costs authorized by the Developer Participation Agreement.
PEDC agrees to pay Two Hundred Fifty Thousand Dollars and .00/l00 ($250,000.00) to Town
for Town to use in meeting these financial obligations under the Developer Participation
Agreement (“Contribution”).
3. Time of Payments by PEDC to Town. Simultaneously with the execution of this
INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City & Prosper Partners) Page 2 of 5
H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement
PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc
Agreement, PEDC shall pay Twenty Five Thousand Dollars and .00/l00 ($25,000.00) (being
10% of the Contribution) to Town. Within ten (10) days of Town notifying PEDC of the start of
construction of either the water or sewer infrastructure improvements, PEDC shall pay Eighty-
Seven Thousand, Five Hundred Dollars and .00/l00 ($87,500.00) (being 35% of the
Contribution) to Town. Within ninety (90) days of Town notifying PEDC of the start of
construction of either the water or sewer infrastructure improvements, PEDC shall pay One
Hundred Thirty Seven Thousand, Five Hundred Dollars and .00/l00 ($137,500.00) (being 35% of
the Contribution) to Town.
4. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally
by the Parties hereto. The language of all parts of this Agreement shall be construed as a whole
according to its fair meaning, and any presumption or principle that the language herein is to be
construed against any party shall not apply. Headings in this Agreement are for the convenience
of the Parties and are not intended to be used in construing this document.
5. Default. In the event of a breach of this Agreement by either Party, the other Party may
pursue any remedies available at law or in equity.
6. Term. This Agreement shall become effective on the latest date of execution by a Party,
and shall terminate upon: (a) PEDC tendering the entire Contribution to Town, or (b) if
applicable, termination of the Developer Participation Agreement if terminated prior to a
construction contract being executed due to final cost exceeding 15% of the anticipated cost as
allowed therein.
7. Immunity. Neither Party has waived its sovereign immunity by entering into and
performing its obligations under this Agreement.
8. Non-Transferable. Neither Party hereto shall transfer or assign any of its rights
hereunder to a third party.
9. Notices. Any notice required or permitted under this Agreement shall be given when
actually delivered as certified mail addressed as follows:
To PEDC: Executive Director
Prosper Economic Development Corporation
170 N. Preston Rd. Ste. 50
P.O. Box 1060
Prosper, Texas 75078
To Town: Town of Prosper
Attn: Town Manager
P.O. Box 307
Prosper, Texas 75078
INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City & Prosper Partners) Page 3 of 5
H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement
PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc
10. Cumulative Remedies. All rights and remedies of the Parties under this Agreement
shall be cumulative, and none shall exclude any other right or remedy provided by law, or by any
other provisions of the Agreement. All such rights and remedies may be exercised and enforced
concurrently and whenever, and as often, as occasion for their exercise arises.
11. Waiver of Breach. A waiver by either Party of a breach of the Agreement by the other
Party does not constitute a continuing waiver or a waiver of any subsequent breach of the
Agreement.
12. Parties Bound. The Agreement shall be binding upon, and inure to the benefit of, the
Parties to the Agreement and their respective heirs, executors, administrators, legal
representatives, successors, and assigns when permitted by this Agreement.
13. No Third 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.
14. 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.
15. Entire Agreement. This Agreement contains the entire agreement of the Parties with
respect to the matters contained herein and may not be modified, amended or terminated except
upon the provisions hereof or by the mutual written agreement of the Parties hereto. The subject
matter of this Agreement is for the construction of Broadway Street only and not any other
matters that may exist between the Parties past, present or future.
16. Venue. This Agreement shall be construed in accordance with the laws of the State of
Texas and shall be performable in Collin County, Texas.
17. Consideration. This Agreement is executed by the Parties hereto without coercion or
duress and for substantial consideration, the sufficiency of which is forever confessed.
18. Counterparts. This Agreement may be executed in a number of identical counterparts,
each of which shall be deemed an original for all purposes. A facsimile signature will also be
deemed to constitute an original if properly executed.
19. Authority to Execute. The individuals executing this Agreement on behalf of the
respective Parties below represent to each other and to others that all appropriate and necessary
action has been taken to authorize the individual who is executing this Agreement to do so for
and on behalf of the Party for which his or her signature appears, that there are no other parties or
entities required to execute this Agreement in order for the same to be an authorized and binding
agreement on the Party for whom the individual is signing this Agreement and that each
individual affixing his or her signature hereto is authorized to do so, and such authorization is
INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City & Prosper Partners) Page 4 of 5
H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement
PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc
valid and effective on the date hereof.
20. Force Majeure. Neither Town nor PEDC shall be required to perform any term,
condition, or covenant in the Agreement so long as performance is delayed or prevented by force
majeure, which shall mean acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riots, floods, and any other cause not reasonably within the control
of Town or PEDC and which by the exercise of due diligence Town or PEDC is unable, wholly
or in part, to prevent or overcome.
IN WITNESS WHEREOF, the Parties have executed this Agreement and caused this
Agreement to be effective on the latest date as reflected by the signatures below.
TOWN OF PROSPER, TEXAS
By:_________________________________
Ray Smith, Mayor
Date Executed:_______________________
Attest:
_________________________________
Amy Piukana
Town Secretary
PROSPER ECONOMIC DEVELOPMENT
CORPORATION
By:_________________________________
Mike Wadsworth, President
Date Executed:_______________________
Attest:
_________________________________
Beth Larsen
INFRASTRUCTURE DEVELOPMENT AGREEMENT (Forest City & Prosper Partners) Page 5 of 5
H:\Town Secretary\Packets & AgendasTown Council\Packets Town Council\2011 Agenda Packets\20110712\EDC agreement
PEDC\Town and PEDC agreement for EDC's contribution to costs070711.doc
EXHIBIT A
DEVELOPER PARTICIPATION AGREEMENT
Page 1 of 1
To: Mayor and Town Council
From: Mike Land, Town Manager
Re: Town Council Meeting – Tuesday July 12, 2011
Date: July 7, 2011
Agenda Item:
Consider and act on Resolution No. 11-50 authorizing the Town Manager to enter into a Tower
Site Lease Agreement with Dallas MTA, L.P., d/b/a Verizon Wireless.
Description of Agenda Item:
The agreement as presented will allow Verizon Wireless to erect wireless antennas on the Craig
St. Water Tower and construct in a designated location their ground mounted support
equipment. The Craig Street Water Tower site was designed to accommodate multiple wireless
providers. This will be the first contract for this site.
The contract is a five (5) year contract with two (2) five (5) year renewal opt ions. Rent is
$28,000 annually and with each renewal will increase by 15%. Once the contract is signed
Verizon will also be paying the Town $5,000 to cover the cost of developing the agreement and
legal review. In the future should they desire to add any additional antenna’s rent will be
adjusted accordingly.
Staff worked with Verizon engineers on the placement of the equipment and with some
comment approved the final plans for their improvements. They are to provide their final
exhibits prior to Tuesday night to attach to the contract.
Verizon will be going through the Town’s site plan and building permit approval process once
the contract is signed.
Budget Impact:
The total rent generated over the fifteen year term of this contract is $486,150.00. Annual rent
years 1-5 will be $28,000, years 6-10 will be $32,200 and years 11-15 will be $37,030.
Legal Obligations and Review:
The Town Attorney has been involved in the drafting and review of the Tower Lease Agreement.
Attached Documents:
1. Resolution authorizing the Town Manager to enter into a Tower Site Lease Agreement
with Dallas MTA, L.P., d/b/a Verizon Wireless.
2. Tower Site Lease Agreement between the Town of Prosper and Dallas MTA, L.P., d/b/a
Verizon Wireless.
Town Staff Recommendation:
Town staff recommends that the Town Council approve the resolution authorizing the Town
Manager to enter into a Tower Site Lease Agreement with Dallas MTA, L.P., d/b/a Verizon
Wireless.
Prosper is a place where everyone matters.
ADMINISTRATION
TOWN OF PROSPER, TEXAS RESOLUTION NO. 11-50
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 CONTRACT
AGREEMENT WITH DALLAS MTA, L.P., VERIZON WIRELESS FOR A
TOWER SITE LEASE AGREEMENT.
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
Tower Site Lease agreement with Dallas MTA, L.P., d/b/a Verizon Wireless, as hereto
attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 12th day of July, 2011.
_________________________
Ray Smith, Mayor
ATTEST TO:
_________________________
Amy Piukana
Town Secretary
Page 1 of 2
To: Mayor and Town Council
From: Wade Harden, Senior Parks and Recreation Planner
Cc: Mike Land, Town Manager
Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer
Re: Town Council Meeting – July 12, 2011
Date: July 8, 2011
Agenda Item:
Discuss and act upon amendments to the Comprehensive Parks Ordinance.
Description of Agenda Item:
As per direction from the Parks and Recreation Board (PARBd), Town staff has made revisions
to the Comprehensive Parks Ordinance. These items are primarily updates to more accurately
reflect the current Town administrative structure and are noted in red (see revised Ordinance
attached). Additional changes have been made by Town staff, which are noted in green. These
changes have been added by staff for clarification and as per direction from the Town Council
and the PARBd following the joint meeting on May 12, 2011.
The summary of the PARBd changes are as follows –
1. The addition of a definition for “tournament”.
2. The removal of language establishing the regularly scheduled PARBd meetings on the
third Thursday of each month. New language requiring the PARBd to set their annual
meeting schedule with one regularly scheduled meeting per month.
3. Multiple locations reference the Parks & Recreation Department. Department has been
replaced with “Division”.
4. Section 5. General Provisions E.3. states fishing shall be permitted only from the banks
of any creek, pond, lake or other body of water in any park. Language added to this
section to allow fishing on the water as permitted by the Parks & Recreation Director
and/or any other regulation and policy.
5. Section Athletic Fields/Facility 7.A. requires a Facilities Use Agreement at least fourteen
(14) days prior to starting play on any Prosper athletic field/facility. As proposed the “at
least fourteen (14) days” is removed from the Ordinance.
6. Section Athletic Fields/Facility 7.B.1. states it shall be unlawful to be on an athletic field
except for the purpose of participating in league or tournament play in a Town sponsored
or co-sponsored league… As proposed language is added to read “on a designated
game or practice athletic field except…” This will allow specific areas not designated as
such for pick-up games.
7. Section Athletic Fields/Facility 7.C addresses Prosper Sports Association. As proposed
this section is removed from the Ordinance.
Prosper is a place where everyone matters.
PARKS &
RECREATION
Page 2 of 2
The summary of the Council, PARBd and Town staff changes are as follows-
1. Additional language to keep the document consistent (ie. the addition of Parks and
Recreation to the word “Director”. (Staff)
2. Changes to 7.B. 2. & 3., being the requirement for posting signs on athletic fields that
are closed to play. (Council)
3. The creation of 7.C. regarding the recognition of Athletic Leagues by the Town of
Prosper. (Council & PARBd)
4. The creation of 7.D. the creation of the Prosper Sports Committee, with its powers and
duties.
5. Section 8.A.2. the addition of language specifically prohibiting all-terrain vehicles (ATV)
upon any indoor or outdoor facility. (Staff)
Budget Impact:
There are no budget implications associated with this item.
Legal Obligations and Review:
No legal review of this item is required.
Attached Documents:
1. Comprehensive Parks Ordinance Mark-up (with revisions noted)
2. Resolution
Parks and Recreation Board Recommendation (PARBd):
At the February 10, 2011 PARBd meeting, the Parks & Recreation Board approved the
amendment to the Comprehensive Parks Ordinance as presented with the changes discussed,
by a vote of 5-0.
Staff Recommendation:
Town Staff recommends the Town Council give direction to Town staff regarding the proposed
amendments to Comprehensive Parks Ordinance.
Comprehensive Parks Ordinance
Table of Contents
Section Title & Subsections Page
1 Definitions 1
2 Establishment of Parks & Recreation DepartmentDivision 2
3 Director of Parks & Recreation DepartmentDivision 3
4 Parks & Recreation Board 3
A – Establishment of Parks & Recreation Board 3
B – Number of Members 3
C – Term of Office 3
D - Vacancies 3
E – Chair/Vice Chair/Secretary/Quorum 3
F – Meetings 4
G – Removal from Office/Absences 4
H – Powers and Authority 5
5 General Provisions 6
A – Park Names 6
B – Park Hours 6
C – Community Center/Recreational Facility Hours 6
D – Swimming Pool 6
E – Swimming, Boating, and Fishing in Parks 7
F – Disrupting or Interfering with Supervised Play or Amusement Program
Conducted by Parks & Recreation DepartmentDivision; Expulsion from Park
7
G – Bicycle Riding in Parks and on Bike Trails 7
H – Overnight Camping 8
I – Fires 8
J – Unlawful to Damage Plants or Other Personal Property in Parks or on Other
Recreational Facilities
8
K – Unlawful to Possess or Break Glass or Glass Beverage Containers and Other
Dangerous Objects in Swimming Pools, Recreation Centers, and Other Park
Areas
8
L – Unlawful to Allow Animals in/on Athletic Fields/Facility or in
Concession/Restroom Areas
8
M – Request to Charge Admission to Prosper Owned or Controlled Facilities 8
N – Unlawful to Leave Child Under Age Seven (7) Unattended 8
O – Unlawful Sale of Goods, Food, Drinks, Confections, Merchandise or Services
within Park
8
P – Firearms, Fireworks, etc… 9
Q – Authority to Prescribe Additional Rules and Regulations 9
R – Liability of Prosper 9
S – Use of Park Property for Operating Radio Controlled Model Vehicles 9
T – Alcoholic Beverages; Illegal Narcotics 10
U – Indoor Facilities 10
V – Outdoor Areas and Facilities 10
6 Rental and Usage Fees 11
7 Athletic Fields/Facility 11
A – Facilities Use Agreement 11
B – Athletic Field Usage 11
C – Prosper Sports AssociationRecognition of Athletic Leagues 12
D – Prosper Sports Committee 12
8 Traffic 12
A – Use of Vehicles 12
B – Traffic Signs 12
9 Enforcement 12
A – Enforcement 13
B – Expulsion from Parks 13
1
1. Definitions
For the purpose of this Ordinance, the following terms, phrases, words and their derivation shall
have the meaning given below:
A. Aircraft – includes, but is not limited to, balloons, airplanes, para-planes, ultra-lights,
helicopters and gliders.
B. Athletic field/facility -- means a field or combination of fields designated by the Parks &
Recreation DepartmentDivision to facilitate games and/or practice activities.
C. Board – means the Prosper Parks & Recreation Board.
D. Closed Field – means a Playing Field or a Game Field owned or leased by Prosper that has
been closed for any use due to inclement weather or maintenance requirements by order of
the Director.
E. Community Park - means a park owned by Prosper that is typically between 30 to 100 acres
in size and that provides active and passive recreational activities for residents throughout
the community.
F. Game Field – means a field that has been designated by the Parks and Recreation Director
to be used only for the purpose of conducting league play or tournament play for Prosper
sponsored or Prosper co-sponsored league play athletic events, or Prosper authorized
practices.
G. Indoor Facilities – indoor facilities owned, leased or otherwise controlled by the Parks &
Recreation DepartmentDivision which includes, but is not limited to, recreation centers,
indoor swimming pools, tennis center clubhouse, golf course clubhouse, outdoor learning
center, senior citizens center, school gymnasium, museums and community centers that are
programmed for the purpose of conducting practices, meets and clinics for aquatic activities
at the competitive and recreational level or any such, use as deemed appropriate by the
Parks & Recreation departmentDivision.
H. League –means an association or group of teams recognized or sponsored by Prosper that
play one another.
I. Neighborhood Park – means a park owned by Prosper that is typically between 5 to 10
acres in size and that provides recreational opportunities primarily for residents in close
proximity to the park.
J. Outdoor Facilities – means outdoor facilities owned, leased or otherwise controlled by the
Parks & Recreation DepartmentDivision which includes, but is not limited to, lighted and
unlighted outdoor swimming pools, tennis courts, basketball courts, golf courses, athletic
fields, picnic areas, open air pavilions, and amphitheaters that are programmed for the
purpose of conducting practices, league play, tournaments, meets, camps and clinics for
competitive and recreational sports that include but are not limited to soccer, football,
baseball, softball, swimming, lacrosse, cricket and rugby or any such use as deemed
appropriate by the Parks & Recreation departmentDivision.
2
K. Park – is a park, reservation, playground, swimming pool, indoor facility, outdoor facility,
recreation center, field, athletic field, and any related facilities, or any other area in Prosper
owned, leased and/or used by Prosper, and devoted to active or passive recreation, including
all plated expressways, parkways, triangles and traffic circles maintained by Prosper, except
the parkway strips between curb and sidewalks along the several streets and highways of
Prosper.
L. Parks & Recreation DepartmentDivision or Parks & Recreation – means the Parks &
Recreation DepartmentDivision of the Development Services Department of Prosper.
M. Parks & Recreation Director or Director – means the Director of the Parks & Recreation
DepartmentDivision of Prosper and/or his/her authorized agent and/or representative.
N. Person – means any person, firm, partnership, corporation, association, company or
organization of any kind.
O. Playing Field – means any portion of a park that is either owned or leased by Prosper that
has been designated as an area which athletic league games are played, including, but not
limited to, fields for football, soccer, softball, baseball or any other sport activity sponsored or
co-sponsored by Prosper.
P. Prosper – means the Town of Prosper, Texas.
Q. Public Property – means any property held for public use by and department or branch of
an independent school district, community college district or municipal government within
Prosper or the Town government.
R. Special Event – means any event, activity or program that operates wholly or partially within
Prosper which may require the use of or assistance from the Parks & Recreation
DepartmentDivision, Police Department, Fire Department, or any other public service
department.
S. Supervised Play or Amusement Program - means any event, activity or program that may
be coordinated or controlled by the Parks & Recreation DepartmentDivision.
T. Tournament - A series of games that make up a single unit of competition, typically over one
or more days and are an invitational event.
TU. Town AdministratorManager – means the Town AdministratorManager of Prosper and/or
his/her authorized agent and/or representative.
UV. Town co-sponsored league play athletic event – means an athletic event, which is
authorized, organized or scheduled with the assistance of the Prosper Parks & Recreation
DepartmentDivision by a nonprofit organization.
VW. Town sponsored league athletic event – means an athletic event which is authorized,
organized or scheduled in whole or in part by Prosper.
WX. Vehicle – means every device in, or by which any person or property is or may be
transported or drawn upon a public highway, except devices moved only by human power or
used exclusively upon stationary rails or tracks.
Formatted: Indent: Left: 0", Hanging: 0.19"
Formatted: Font: Bold, Italic
3
2. Establishment of Parks & Recreation DepartmentDivision
There is hereby created for Prosper the DepartmentDivision of Parks & Recreation of the
Development Services Department.
3. Director of Parks & Recreation DepartmentDivision
The Town AdministratorManager shall appoint the Parks & Recreation Director to serve at
the pleasure of the Town AdministratorManager, and the Director shall have such duties and
responsibilities as may, from time to time, be delegated to him by the Town
AdministratorManager.
4. Parks & Recreation Board
A. Establishment of Parks & Recreation Board. There is hereby created and established
within Prosper a Parks & Recreation Board which shall be subject to the jurisdiction of the
Town Council of Prosper and shall constitute an advisory board to the Town Council.
B. Number of Members. The Parks & Recreation Board shall be composed of seven (7)
members appointed by the Town Council. Each member of the Parks & Recreation Board
shall be a resident of Prosper; provided, however, two (2) of the seven (7) members are not
required to be a resident of Prosper, but must:
1) Be an owner of a business located within Prosper’s town limits; or
2) Reside within Prosper’s extraterritorial jurisdiction. The members shall serve at the
pleasure of the Town Council and may be removed at the discretion of the Town
Council.
C. Term of Office. The term of office of each member shall be two (2) years; provided,
however, at the time of appointment of the initial members of the Parks & Recreation Board,
the Town Council shall draw by lot to determine four (4) members who shall serve a one (1)
year term and three (3) members who shall serve a two (2) year term. The following year, the
Town Council shall appoint four (4) persons to serve a two (2) year term each. No member
shall serve longer than two (2) consecutive two-year terms.
D. Vacancies. When vacancies occur on the Parks & Recreation Board, the Town Council shall
appoint, by majority vote, a replacement to serve the remainder of that term.
E. Chair/Vice Chair/Secretary/Quorum. The Parks & Recreation Board shall have a Chair,
Vice-Chair and Secretary whose terms shall be one (1) year. The Chair and Vice-Chair shall
be nominated by a majority vote of the Parks & Recreation Board and appointed by the Town
Council. The Secretary shall be appointed by a majority vote of the Parks & Recreation
Board. Four (4) members of the Parks & Recreation Board shall constitute a quorum for
transaction of business.
1) The Chairman shall preside over meetings and shall be entitled to vote upon each
issue.
4
2) The Vice-Chair shall assist the Chairman in directing the affairs of the Parks &
Recreation Board. In the absence of the Chair, the Vice-Chair shall assume all duties
of the Chair.
3) The Secretary shall keep the minutes of all meetings and in the Secretary’s absence,
the Chair shall designate another member to act as Secretary. The Secretary shall
submit a written report of all proceedings of the Parks & Recreation Board to the
Town Council no more than three (3) weeks following each meeting. The Secretary
shall read, once a year at the first regular meeting following the appointment of
officers, the Parks & Recreation Ordinance. The Secretary may accept the assistance
of Prosper personnel in taking and transcribing minutes, when available, but shall sign
same officially before presenting same to the Parks & Recreation Board for approval.
4) The Director of Parks & Recreation, if appointed, shall be an ex officio member of the
Parks & Recreation Board, with the responsibility to participate in discussions but
without the right to vote.
F. Meetings. The Parks & Recreation Board shall have its regular meeting on the third
Thursday of each month and at such other times as the Parks & Recreation Board, Town
Council, and/or the Parks & Recreation Director deem necessary and appropriate.
G. Removal From Office/Absences. The members shall serve at the pleasure of the Town
Council and may be removed at the discretion of the Town Council. In addition, any member
of the Parks & Recreation Board shall be removed for twice failing to attend a regularly
scheduled Parks & Recreation Board meeting without good cause during any one (1) year
during his/her term. For purposes of this attendance policy, a year shall begin on the date of
appointment to the Parks & Recreation Board. A member’s failure to attend a meeting may
be excused for good cause upon his/her application for excused absence to the Town
Council of Prosper and the approval by the Town Council by majority vote of the members
present and voting.
H. Powers and Authority. The Board shall have the following powers and perform the following
duties:
1) Provide advice and counsel to the Parks & Recreation Director and the Town
AdministratorManager, as requested, in matters relating to the Parks & Recreation
Department Division.
2) Assist in informing citizens of policies and functions of the Parks & Recreation
Department Division.
3) Assist in the promotion of park-related bond programs and to encourage donations of
land, equipment and resources in support of Parks & Recreation activities.
4) The Board shall act principally in an advisory capacity to the Prosper Town staff and
the Town Council in all matters pertaining to Parks & Recreation, shall acquaint itself
with and make a continuous study and review of the complete Parks & Recreation
services of Prosper; and shall advise with the staff and Town Council from time to
time as to the present and future maintenance, operation, planning, acquisition,
development, enlargement, and use policies of Prosper Park and Recreation
services.
5
5) The Board shall study and encourage the development of Parks & Recreation areas
and study and encourage the development of wholesome recreation for all residents
of Prosper.
6) The Board shall advise with the Parks & Recreation Director on problems of
development of areas, facilities, programs, and improved recreation services.
7) The Board shall recommend the adoption of standards on areas, facilities, programs
and financial support.
8) The members of the Board shall study and review the master planning guide for Parks
& Recreation and become familiar with such plan and its relation to existing and
proposed facilities and shall become aware of any revision or updating thereof.
9) The Board shall advise and recommend to the Parks & Recreation Director on the
development of long range capital improvement programs and, when in its opinion,
the need exists for additional park and recreational facilities, grounds, or premises, it
shall make appropriate recommendations to the Town Council. It shall also
recommend the acquisition of additional parks, park and recreational equipment, and
supplies.
10) The Board shall develop for Town Council review the rules and regulations as may be
prescribed by the Town Council for the conduct of its business.
11) The Board shall develop for Town Council review rules and regulations and policies
governing the use of park and recreational facilities.
12) The Board shall make any other recommendations to the Town Council regarding
park and recreation matters that it considers advisable.
13) The Board may solicit for the Town gifts, revenues, bequests, or endowments of
money or property as donations or grants from persons, firms or corporations, subject
to the guidance, approval, and acceptance by the Town Council.
14) The Board may, from time to time, recommend to the Town Council amendments or
changes to this Ordinance.
15) The Board, through its Chairman, shall make both an oral and written report annually
to the Town Council concerning its activities during the past year and its proposals for
the coming year.
16) The Board's authority shall not extend to the direction, supervision, employment, or
termination of employees of the Parks & Recreation DepartmentDivision. No
supervisory power of the Board is created.
17) The Board will review the proposed budget for the Parks & Recreation
DepartmentDivision and make any recommendations to the Town Council it deems
necessary. However, the Board is not authorized to add, delete or change in any way
the budget as prepared by the Parks & Recreation staff.
6
18) The Board shall not have the power to obligate Prosper for any funds or expenditures
or incur any debt on behalf of Prosper.
19) All powers and duties prescribed and delegated herein are delegated to the Board as
a unit and all action hereunder shall be of the Board acting as a whole. No action of
an individual member is authorized except through the Board or Town Council.
5. General Provisions
Prosper hereby adopts the following general provisions:
A. Park Names. It is appropriate to name or rename certain Prosper parks in honor and
recognition of several outstanding individuals who served the community well, and it is further
appropriate to name other Prosper parks with a geographical name. Park names should be
familiar to the majority of citizens, easy to recall, unique and lasting. Parks shall be named:
1) By outstanding and/or predominate physical characteristics of the land such as,
among other characteristics:
a) Streams, rivers, lakes and creeks;
b) Landmark significance;
c) Historic significance; and/or
d) Street name identity.
2) If a name is applied to park facilities such as recreational buildings, swimming pools,
sports fields or play structures, those shall be named either:
a) By identification with the park in which it lies;
b) In honor of an individual or group when total contributions of fifty percent
(50%) or more of the total cost of acquisition (excluding required park
dedication) and development of facilities are donated to Prosper; or
c) When considering the naming of a park or park facilities in honor of a person,
the person should have made a major contribution to Prosper and/or the Parks
& Recreation system, or the person should be known for some other
significant accomplishment.
B. Park Hours.
1) Hours of general neighborhood park use shall normally be from thirty (30) minutes
before sunrise to thirty (30) minutes after sunset. Hours of general community park or
game or playing field use shall normally be from thirty (30) minutes before sunrise to
10:00 PM. Parks shall be open for the public every day of the year during designated
hours, except for unusual and unforeseen emergencies. A variation in park hours may
be permitted by the Parks & Recreation Director.
2) It shall be unlawful for any person(s) to be or remain upon and/or in any park during a
period beginning at 10:00 PM and ending thirty (30) minutes before sunrise, except as
authorized by the Parks & Recreation Director. It is a defense to prosecution under
this subsection that the person was: (1) driving a vehicle on an interior park roadway
which provides direct access to the person’s home address; (2) attending a special
event, which was being conducted in a park during the hours of closure with written
permission of the Parks & Recreation Director; or (3) attending a special event during
different hours for a park specifically designated by a Prosper ordinance.
7
C. Community Center/Recreational Facility Hours. It shall be unlawful for any person, other
than Prosper authorized personnel and staff or those who have received written approval
from Parks Director, to enter upon the premises of any Prosper community center building
and/or recreational facility other than during the hours the facility is officially open.
D. Swimming Pool. It shall be unlawful for any person, other than Prosper authorized
personnel and staff or those who have received written approval from Parks Director, to enter
upon the premises of any Prosper swimming pool other than during the hours the facility is
officially open.
E. Swimming, boating and fishing in parks.
1) It shall be unlawful for any person to utilize any fountain, creek, pond, lake, stream or
any other body of water in any park in Prosper to, among other things, swim in, boat
in, wade in, or pollute any fountain, creek, pond, lake, stream or any other body of
water in any park in Prosper unless such activity(ies) is/are specifically authorized and
permitted by the Parks & Recreation Director and/or any other regulation and policy.
2) Electric or gas powered motorboats are unlawful on all water bodies except by
approval from the Parks & Recreation Director.
3) Fishing shall be permitted only from the banks of any creek, pond, lake or other body
of water in any park, unless specifically authorized and permitted by the Parks and
Recreation Director and/or any other regulation and policy. No trot lines, throw lines,
fish traps or nets shall be permitted. Fish may not be cleaned in any park. The Parks
& Recreation DepartmentDivision strongly encourages a “catch and release” policy to
maintain fish stock levels for the enjoyment of future park users.
4) This subsection shall not apply to any municipally owned or operated swimming pools
or boat rental operations.
F. Disrupting or interfering with supervised play or amusement program conducted by
Parks & Recreation DepartmentDivision; expulsion from park. It shall be unlawful for any
person or persons to do any of the following acts:
1) To willfully interfere with, disrupt or prevent the orderly conduct of any supervised play
or amusement program conducted by the Parks & Recreation DepartmentDivision in
any building, swimming pool, playground or park located in or on any public property
within Prosper.
2) To participate in any activity that will create a danger to the public or which may be
considered a public nuisance or to engage in physical violence.
3) To remain in any building, swimming pool, playground or park in or on any public
property within Prosper after being advised by the supervisor or center director of the
Parks & Recreation DepartmentDivision to leave such building, swimming pool,
playground or park located in or on any public property within Prosper.
8
4) To disturb in any manner any legitimate facility uses including, but not limited to,
picnics, meetings, classes, games, practices, meets, tournaments, exhibitions,
camps, special events or other such uses.
G. Bicycle riding & skating in parks and on bike trails. Bicycle riding and skating shall
include peddled and motorized bicycles of one, two, or more wheels, both push type or
motorized scooters, roller skates, in-line skates, in-shoe skates, skate boards, or any similar
vehicle or apparatus. Bicycle riding and skating shall be governed by safe riding/skating
practices and consideration for use of Parks by others. Where special parking provisions
have been made for bicycles, parking shall be limited to that area. Bicycle riding and skating
shall be prohibited in playgrounds, flowerbeds, pedestrian-only sidewalks, tennis courts,
athletic courts, picnic pavilions and/or any other areas designated by Prosper.
H. Overnight camping. Overnight camping shall be unlawful except by special permit issued by
the Parks & Recreation DepartmentDivision Director for designated Park areas. Each person
shall observe and obey all Park rules and regulations and restore their campsite area to its
original condition.
I. Fires. Fires shall be permitted only in enclosed fireplaces or grills provided for this purpose,
except with written permission of the Prosper Fire Chief, or his/her authorized agent and/or
representative, and the Parks & Recreation Director in designated Park areas. It shall be
unlawful to leave a Park area without extinguishing a fire. After use, coals shall be thoroughly
extinguished with water and cooled and disposed of in a trash receptacle. Privately owned
charcoal grills are not permitted on grass areas or on picnic tables located in Parks.
J. Unlawful to damage plants or other personal property in parks or on other recreational
facilities. It shall be unlawful to damage, cut, carve, mark, remove, transplant, break, pick, or
in any way injure, damage, or deface any plants, turf and/or other personal property within or
upon any Parks, parkways, greenbelts, or other recreational areas. It shall further be unlawful
to plant into the ground any type of plants in any Park, parkway, greenbelt, or other
recreational area or facility without prior approval of the Parks & Recreation Director.
K. Unlawful to possess or break glass or glass beverage containers and other dangerous
objects in swimming pools, recreation centers, and other park areas. It shall be unlawful
to possess on the premises of any swimming pool, recreational center, or any other Park
area any glass beverage containers. It shall also be unlawful to willfully break any glass
container in any swimming pool, recreation center, or any Park area.
L. Unlawful to allow animals in/on athletic fields/facility or in concession/restroom areas.
It shall be unlawful to allow animals, of any type, on any athletic field/facility or in
concession/restroom areas within any Park area, unless other directions are posted or upon
written approval of from the Parks and Recreation Director.
M. Request to charge admission to Prosper owned or controlled facilities. A person must
request to charge admission to parks. The Parks & Recreation DepartmentDivision may
approve requests on the part of individuals or groups utilizing Parks to:
1) Charge admission to Prosper owned or controlled facilities;
2) Control the movement of pedestrians in vehicles in or on the facilities included in the
request;
9
3) Sell tickets or otherwise make admission charges in amounts set by the then current
fees set forth in this Ordinance; or
4) Deny admission to persons who refuse to pay the approved admission charges, or
any combination of the above.
N. Unlawful to leave child under age seven (7) unattended. It shall be unlawful for a parent,
guardian, or other adult having care, custody and/or control of a child to abandon or in any
way leave unattended a child (under seven (7) years of age) in any Park or other recreational
facility, except for a supervised program or activity.
O. Unlawful sale of goods, food, drinks, confections, merchandise or services within
park. It shall be unlawful to offer any goods, food, drinks, confections, merchandise or
services for sale within Parks, parkways, or other recreational facilities, or on public streets
and rights-of-way within three-hundred (300) feet of the boundary of the same, except in
commercial areas where property zoned for retail and commercial building has a certificate of
occupancy for such business purposes or unless specifically authorized by the Parks &
Recreation Director.
P. Firearms, fireworks, etc.
1) It shall be unlawful for any person to carry a concealed handgun, as that term is
defined in Prosper Ordinance No. 93-12-01, as it currently exists or may be amended,
in a Park, except those persons who are duly licensed by the State of Texas to carry a
concealed handgun in accordance with the provisions of Chapter 411, Texas
Government Code, as it currently exists or may be amended.
2) It shall be unlawful for any person to carry or discharge firearms (unless permitted
under subsection (1) of this section), fireworks, air guns, bows and arrows, slingshots
or any device which would or could project any object which would or could create a
fire hazard or any hazard or danger to the public in a Park, except with joint written
approval of the Parks & Recreation Director and Prosper’s Fire Chief, or his/her
authorized agent and/or representative.
Q. Authority to prescribe additional rules and regulations. The Town Council shall have the
right, power and authority by resolution, ordinance or otherwise to prescribe additional
reasonable rules and regulations or appeal regulations for the maintenance and operation of
Parks.
R. Liability of Prosper. Prosper shall not be held liable or bound for any loss or damage
claimed by reason of a loss or damage to personal property taken or in any way by reason of
any personal injury or death of any person or animal entering a Park.
S. Use of Park property for operating radio controlled model vehicles.
1) It shall be unlawful for any person or persons to ascend, descend, operate, or launch
any aircraft, except in areas or at times specifically designated for this purpose or by
special permit issued by the Parks & Recreation Director.
2) It shall be unlawful for any person or persons to launch or operate model rockets or
un-tethered radio controlled model airplanes, except in areas or at times specifically
10
designated for this purpose or by special permit issued by the Parks & Recreation
Director.
3) The model aircraft user will be responsible for furnishing an annual list of members of
any club or chapter to the Parks & Recreation DepartmentDivision.
4) The model aircraft user will be responsible for following all Park rules and regulations,
all national association rules and regulations, and any amendments thereto. It shall
further be the responsibility of any club or chapter to adequately and fully inform all
members of said rules.
5) All persons flying remote controlled aircraft must restrict their use to the established
flight zone as established by the Parks & Recreation DepartmentDivision.
6) All model aircraft users shall furnish proof of liability insurance acceptable to Prosper
naming Prosper, its Council Members, officers, agents, representatives and
employees, as co-insured, with a minimum amount of $2,500,000.00 per occurrence.
7) Failure to abide by any provision of this section shall result in the immediate
termination of the privilege to use any Park for the flying of model aircraft.
8) It shall be unlawful for any person to launch or operate model rockets and/or model
vehicles, including, but not limited to, model gliders, model boats and/or model cars in
any Park in any manner that would or could endanger any other person or property.
Electric or wind powered model cars and boats are excluded from the above
prohibition.
T. Alcoholic beverages. The consumption or possession of alcoholic beverages, including but
not limited to, wine, beer, ale and mixed drinks is prohibited on all Park properties located
within Prosper, unless upon written approval from Parks Director.
U. Indoor facilities. It shall be unlawful for any person or persons to do any of the acts
specified below, except as otherwise provided, in all indoor facilities owned, leased, or
otherwise controlled by Prosper:
1) To enter any unauthorized portion of any facility, except with permission of the facility
supervisor.
2) To fraudulently use a swimming pool pass or recreation center identification card.
3) To violate Prosper Ordinance No. 95-04-11, as it currently exists or may be amended,
prohibiting the use of in-line skates, skates, skateboards, bicycles, motorized or non-
motorized vehicles and any other type of recreational or non-recreational product that
may destroy the surfaces of tennis courts or any other type of painted concrete or
laminate surfaces.
V. Outdoor areas and facilities. It shall be unlawful for any person or persons to do any of the
acts specified below, except as otherwise provided, in all outdoor areas and facilities owned,
leased, or otherwise controlled by Prosper:
11
1) To loiter within twenty-five (25) feet of a public restroom and for any person or
persons over the age of eight (8) years to use the restrooms and washrooms
designated for the opposite sex.
2) To hunt, trap, kill, remove, or release any animal, except with written approval of the
Parks & Recreation Director. Fishing shall be excluded.
3) To hit golf balls, except in areas specifically designated for this purpose.
4) To use loudspeakers, amplifiers, or microphones, except with written approval of the
Parks & Recreation Director.
5) To violate Prosper Ordinance No. 95-04-11, as it currently exists or may be amended,
prohibiting the use of in-line skates, skates, skateboards, bicycles, motorized or non-
motorized vehicles and any other type of recreational or non-recreational product that
may destroy the surfaces of tennis courts or any other type of painted concrete or
laminate surfaces.
6) To overnight camp, except by special permit issued by the Parks & Recreation
Director for designated park areas. All persons shall observe and obey all park rules
and regulations and restore their campsite area to its original condition.
6. Rental and Usage Fees
A. Fees. The Prosper Town Council shall hereby adopt fees for the rental and/or usage of Town
fields, facilities, and/or equipment. These fees are established in Prosper Fee Ordinance No:
02-33, as it exists or may be amended.
B. Purpose. This article is hereby adopted to serve as a guide for the comprehensive and
effective usage of indoor and outdoor athletic facilities owned, leased, scheduled, or
otherwise controlled by the Town.
C. Intent. It is the intent of this article to provide a basis for establishing the following objectives:
1) A method of communicating the available inventory of allocatable athletic facilities to
qualified requesters for usage of such facilities;
2) Disciplined method of communicating the forecasted and immediate facility needs
from users of facilities to the appropriate department within the Town administration;
3) The implementation of a system of facilities allocation producing results most
beneficial to the total Town; and
4) A program for continuously improving the utilization of existing facilities to the
betterment of the total Town.
D. Traffic Control. Traffic pattern, parking and no-parking zones and no-loitering areas, among
any other areas, may be designated in the vicinity of special civic, recreational and sporting
events for safety and crowd control by the Parks & Recreation Director in coordination with
Prosper’s police and fire departments.
12
7. Athletic Fields/Facility
Prosper hereby adopts the following rules and regulations regarding athletic fields/facility:
A. Facilities use agreement. Every person/association desiring to use any Prosper athletic
field/facility will be required to sign a Facilities Use Agreement, in the form provided by
Prosper, outlining, among other things, the duties and responsibilities of both the
person/association and Prosper. This agreement must be signed at least fourteen (14) days
prior to starting play on any Prosper athletic field/facility.
B. Athletic field usage.
1) It shall be unlawful to be on an designated athleticgame or practice athletic field prior
to receiving approval from the Town Parks and Recreation Division except for the
purpose of participating in league play or tournament play in a Town sponsored or co-
sponsored league athletic event being conducted in accordance with a duly executed
Facilities Use Agreement as set forth in subsection (a) above.
2) The Parks & Recreation Director is authorized to declare a closed field. Such fields
shall have a sign posted stating field closed “Closed Field—No Trespassing—Up to
$500.00 Maximum Fine for Each Violation”, and it shall be unlawful to violate this
section unless the purpose for going upon the field is to maintain said field. Those
found in violation of the ordinance are subject to a $500.00 maximum fine for each
violation.
3) The Parks & Recreation Director is authorized to designate game fields. Such fields
shall have a sign posted stating “Game Field—Restricted to Town Sponsored League
Play or Town Co-Sponsored Athletic Events Only—Up to $500.00 Maximum for Each
Violation”, field closed, outside of periods when the field is approved by the Parks
and Recreation Director for games and it shall be unlawful to violate this section
unless the purpose for participating in league play or tournament play in a Town
sponsored or co-sponsored league athletic event. Those found in violation of the
ordinance are subject to a $500.00 maximum fine for each violation.
C. Prosper Sports Association. There has been established the Prosper Sports Association
(PSA) which was created for the purpose of interpreting the needs and interest of youth
involved in community athletics and also serving as consultants to the Parks & Recreation
Department. The PSA, among other things, coordinates the various local athletic
organizations in connection with their use of Prosper Parks in accordance with the PSA’s By-
Laws, as they currently exist or may be amended.
C. Recognition of Athletic Leagues. The Town of Prosper reserves the right to formally
recognize and give preference to individual athletic leagues to serve the Town’s athletic
recreation needs. Leagues requesting formal recognition shall submit a formal request to the
Parks and Recreation Board for a recommendation to the Town Council. Approved leagues
will be recognized by the Town Council in the form of an adopted resolution. The Town
reserves the right to remove any league from its preferential status at any time without cause.
D. Prosper Sports Committee. There is hereby created and established within Prosper a
Prosper Sports Committee (PSC).
13
1) Purpose – The purpose of the Prosper Sports Committee is to interpret the needs
and interest of youth and adult in the community athletics as it specifically relates to
the scheduling of athletic fields.
The Prosper Sports Committee shall have no authority, either expressed or implied,
to commit Town resources or funds, use of any athletic fields, concession facilities,
or other Town property to any group or individuals.
2) Number of Members - The Prosper Sports Committee shall be comprised of
a maximum of one (1) Town Council member, one (1) Parks and Recreation Board
member, one (1) member of each athletic organization recognized by the Town
Council by resolution, and the Town Parks and Recreation Director. In the case
where the Committee is comprised of an even number of members one (1) additional
Parks and Recreation Board member will fill a seat until an odd number of members
is created by the recognition of an additional athletic organization by the Town
Council.
3) Term of Office – The term of each Prosper Sports Committee member shall be one
(1) year with no term limits.
4) Chair / Vice-Chair / Secretary –
a) Chair – The Parks and Recreation Board member shall serve as the Chair of
the Board. The Chair shall preside over meetings, call meetings, and vote on
matters brought before the Board.
b) The Vice-Chair shall be elected by the Board and shall assume to duties of
the Chair in the absence or in the inability of the Chair to act.
c) The Secretary, to be elected by the Board and shall keep the minutes of all
meetings.
5) Quorum – A quorum of the Committee will consist of over one-half (50%) of the total
members.
6) Meetings – The Prosper Sports Committee will meet at such times deemed
necessary by the Committee Chair.
7) Powers and Duties – It shall be the duty of the Prosper Sports Committee to make
determinations regarding disputes related to the scheduling of games and practices
on Town operated facilities. The powers of the Committee are limited to the
scheduling of games and practices, and shall not have authority over game and
practice field designations as defined in Section 1.
8. Traffic
Prosper hereby adopts the following general traffic provisions:
A. Use of vehicles.
14
1) It shall be unlawful for any person to drive any vehicle on park roads at a rate of
speed in excess of that which is reasonable and prudent under the conditions and
circumstances then prevailing, taking into account the conditions of the roadways and
other motor and pedestrian traffic therein, and in no event shall any person drive in or
through any park property at a rate of speed in excess of twenty (20) miles per hour
unless otherwise posted.
2) It shall be unlawful for any person to ride, use or operate any horse, motorcycle,
motor scooter, all-terrain vehicle (ATV), or any other vehicle in or upon any indoor or
outdoor facility, except on the designated roadway and, parking areas or equestrian
trail. Horses are permitted only on designated equestrian trails.
3) No vehicle may be parked overnight, except Prosper Town vehicles, other authorized
vehicles or with written approval of the Parks & Recreation Director. Vehicles in
violation may be towed at the owner’s expense.
B. Traffic Signs. It shall be unlawful for any person to fail to comply with the directions of any
sign. The existence of any sign purporting to direct or regulate vehicular or pedestrian traffic
shall be prima facie evidence that the same was posted by or at the direction of the Parks &
Recreation Director.
9. Enforcement
Prosper hereby adopts the following rules and regulations regarding the enforcement of this
Ordinance:
A. Enforcement.
1) The Parks & Recreation Director and/or the Prosper Police DepartmentDivision shall,
in connection with their duties, diligently enforce the provisions of this Ordinance, as it
exists or may be amended, or any other ordinances applicable to Parks & Recreation
usage, as it/they exist or may be amended.
2) The Parks & Recreation Director and/or the Police DepartmentDivision shall have the
authority to eject from areas or facilities any person or persons acting in violation of
this Ordinance, as it exists or may be amended, or any other ordinances applicable to
Parks & Recreation usage, as it/they exist or may be amended.
B. Expulsion from parks.
1) Any person charged with violating any rule or regulation of the Parks & Recreation
DepartmentDivision, this Ordinance, as it exists or may be amended, any other
ordinances applicable to Parks & Recreation usage, as it/they exist or may be
amended, and/or any other state, local or federal law, may be expelled from any Park,
provided a hearing is conducted before the Parks & Recreation Director, allowing the
person charged to be given the opportunity to present his/her response to such
charge(s). Upon a finding of grounds for expulsion, any person, who is expelled from
any Park by the Parks & Recreation Director and who thereafter comes onto any Park
property, shall be guilty of a misdemeanor and upon conviction shall be fined as
hereinafter provided. The expulsion shall be for a length of time as the Parks &
Recreation Director shall direct, but shall not exceed ninety (90) days.
15
2) The person expelled from a Park may appeal, in writing, the decision of the Parks &
Recreation Director to the Board provided the appeal is made within ten (10) days of
the decision of the Parks & Recreation Director. The Board shall hear the appeal at its
next regularly scheduled meeting, if reasonably possible. The Board's ruling shall be
final.
3) Any person may be immediately expelled from any Park should he/she violate any
rule or regulation of the Parks & Recreation DepartmentDivision, this Ordinance, as it
exists or may be amended, any other ordinances applicable to Parks & Recreation
usage, as it/they exist or may be amended, and/or any other state, local or federal
law, and such violation is deemed by the person charged with enforcing ordinances
and/or laws, in his/her reasonable discretion, to be an immediate threat to the health,
safety and/or welfare of any other person utilizing any Park and/or an immediate
threat to the integrity of any Park. Such person shall not be allowed to return to any
Park unless and until the threat(s), described in the previous sentence, have been
totally eliminated, as reasonably determined by the person charged with enforcing
ordinances and/or laws.