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07.26.2011 Town Council PacketPage 1 of 3 ] 1. Call to Order / Roll Call 2. Invocation, Pledge of Allegiance, and Pledge to the Texas Flag 3. Presentation of Certificates of appreciation to Bond and Charter Committee Members 4. Presentation by Sarah Felan regarding Clothe a Child Program 5. 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.) 6. Consent Agenda MINUTES a. Consider and act upon minutes from the following Council meetings (AP) • July 12, 2011 – Regular Town Council Meeting b. Consider and act upon the financial statements ending June 30, 2011. (MG) ORDINANCES, RESOLUTIONS, AND AGREEMENTS c. Consider and act upon Resolution No. 11-54, authorizing individuals named in the resolution to endorse checks and orders for the payment of money or otherwise withdraw or transfer funds on deposit with Independent Bank and exercise all of the powers listed in the resolution. (MG) d. Consider and act upon Ordinance No. 11-51, rezoning 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) e. Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the Town Council to the Development Services Department, pursuant to Chapter 4, Section 1.5(C)(7) and 1.6(B)(7) of the Town’s Zoning Ordinance, regarding action taken by the Planning & Zoning Commission on any site plan or preliminary site plan. (CC) AGENDA Regular Meeting of the Prosper Town Council Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, July 26, 2011 at 6:00 p.m. (Council Photos at EDC location at 5 p.m.) Page 2 of 3 f. Consider and act upon a proposal from Leathers & Associates for professional services for Windmill Playground. (WH) g. 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. (ML) 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 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 9.6± acres, located on the west side of Coit Road, 200± feet south of Frontier Parkway, from Single Family-15 (SF-15) to Planned Development-Single Family (PD-SF). (Z11-0009). (CC) 9. A public hearing to consider and act upon an amendment to the Town’s Thoroughfare Plan (Section 13 of the Town’s Comprehensive Plan) revising the alignment of F.M. 1385, Gee Road, and Fishtrap Road. (CA11-0001). (HW) 10. A public hearing to consider and act upon a request to rezone 39.4± acres, located on the north side of Fishtrap Road, 500± feet east of existing F.M. 1385, from Planned Development-51-Retail (PD-51- R) and Agricultural (A) to Planned Development-Retail (PD-R). (Z11-0007). (CC) DEPARTMENT ITEMS 11. Discussion by Catherine Nordon regarding a Community Garden 12. Consider and act on Ordinance No. 11-49 amending annual alarm fees to defray software and data entry costs as well as provide new billing options to include a fee through Utility Billing. (KM) 13. Consider and act upon Ordinance No. 11-52, an Ordinance amending the Comprehensive Parks Ordinance. (WH) 14. Adjourn Page 3 of 3 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) 569-1013. BRAILLE IS NOT AVAILABLE. Page 1 of 4 ] Prosper is a place where everyone matters. 1. Call to Order / Roll Call. Mayor Smith called the meeting to order at 6:01 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; Chris Copple, Planning & Zoning Manager; Wade Harden, Senior Parks and Recreation Planner; Matthew Garrett, Finance Director; and Frank Jaromin, Public Works Director 2. Invocation, Pledge of Allegiance, and Pledge to the Texas Flag. The invocation was given by Council Member Benefield. The pledge of allegiance and pledge to the Texas Flag was given. 3. Announcements of dates and times of upcoming community events. Town Manager Mike Land reminded Council that the Upper Trinity Board is having a breakfast for members on July 13, 2011 from 8:30 a.m. to 10:00 a.m. at the District Headquarters Campus in Lewisville. 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 Mayor Pro-Tem Dugger moved to approve Consent Item 4a, as presented. Motion seconded by Deputy Mayor Pro-Tem Miller. Motion approved by vote of 7-0. MINUTES Regular Meeting of the Prosper Town Council Town of Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, July 12, 2011 at 6:00 p.m. Page 2 of 4 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.) 4. Other Comments by the Public Resident Catherine Nordon filled out a citizen comment card and spoke to Council regarding the development of a community garden. 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) Planning and Zoning Manager Chris Copple briefed Council regarding the rezone request. The applicant is requesting to develop one hundred twenty- one (121) single family lots. Developer John Rose representing the applicant was present to answer any questions. After discussion regarding set-backs, side yards and lot sizes, Deputy Mayor Pro-Tem Miller moved to 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) and adopting the revised Exhibit C. Motion seconded by Mayor Pro-Tem Dugger. Motion approved by vote of 5-2, Council Member Vogelsang and Council Member Wilson voting against. 7. Consider and act upon the Fiscal Year 2011-2012 Budget Calendar. Finance Director Matthew Garrett briefed Council Members regarding the creation of a Budget Calendar that complies with the truth in taxation laws and open meetings requirements. Mr. Garrett explained that three dates have been proposed including a Budget Work Session on July 25, 2011, another Budget Work Session on August 8, 2011 and a Special Called Town Council Meeting on August 30, 2011. Council agreed and set the meeting dates for the 2011 Budget Calendar as proposed. 8. Consider and discuss the issuance of debt for the purpose of refunding existing debt of the Town, funding drainage improvements and Parks equipment. Finance Director and the Town’s Financial Advisor Jason Hughes briefed Council regarding refunding of the bond schedule, savings analysis and a schedule estimating new issuance costs. After discussion, Mayor Pro-Tem Dugger asked that the Town’s Financial Advisor research the bond refunding comparison of a 10 year bond verses a 7 year bond and the difference in savings. Council agreed to consider this item on the August 23, 2011 Town Council Meeting. Page 3 of 4 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. Town Manager Mike Land briefed Council regarding the participation agreements. Mr. Land explained that the agreement provides water west from Preston Road along Highway 380 to east of Gee Road and gravity sewer from Doe Branch Creek in an easterly direction just south of Fishtrap and east of Teel. The water line will extend north at the Dallas North Tollway connecting into a line at First Street to complete service for that area. After discussion regarding Impact Fees and EDC contributions, Deputy Mayor Pro-Tem Miller moved to approve Ordinance No. 11-50, authorizing the Town Manager to execute a Developer Participation agreement with Forest City Prosper Limited Partnership and Prosper Partners, L.P., with the Town’s maximum financial contribution for water infrastructure not exceed $478,000.00 or 14.45% of the costs authorized by the agreement and the Town’s maximum financial contribution for sewer Infrastructures not exceed $512,425.00 or 25.75% of the costs authorized by the agreement. Motion seconded by Council Member Wilson. Motion approved by vote of 7-0. 10. Consider and act upon the Town of Prosper and PEDC Agreement for Economic Development’s contribution to costs. Town Manager Mike Land briefed Council regarding an infrastructure development agreement between the Town of Prosper and the Prosper Economic Development Corporation for its contribution for the construction of water and sewer improvements. Council Member Wilson moved to approve authorizing the Mayor to enter into an infrastructure development agreement between the Town of Prosper and the Prosper Economic Development Corporation for a total contribution in the amount of $250,000.00. Motion seconded by Mayor Pro-Tem Dugger. Motion approved by vote of 7-0. 11. Consider and act on Resolution No. 11-50 authorizing an agreement for the Town Manager to enter into a Tower Site Lease Agreement with Dallas MTA, L.P., d/b/a Verizon Wireless. Town Manager Mike Land briefed Council regarding a proposed five year contract with two (2) five (5) year renewal options. Mr. Land noted that the lease payment proposed is $28,000 annually and with each renewal an increase will be made at 15% and that once the lease is signed, Verizon will pay the Town $5,000 to cover the cost of developing the agreement and legal fees. Mayor Pro-Tem Dugger moved to approve Resolution No. 11-50 authorizing an agreement for the Town Manager to enter into a Tower Site Lease Agreement with Dallas MTA, L.P., d/b/a Verizon Wireless, as presented. Motion seconded by Deputy Mayor Pro-Tem Miller. Motion approved by vote of 7-0. 12. Discuss and act upon amendments to the Comprehensive Parks Ordinance. Senior Parks and Recreation Planner Wade Harden briefed Council regarding the ordinance referencing the summary of the Parks and Recreation Board revisions. After discussion, Council Member Wilson made a motion to have staff prepare an ordinance as highlighted and present to Council for final consideration. Motion seconded by Council Member Dixon. Motion approved by vote of 7-0. Page 4 of 4 13. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting. Council asked that the Community Garden project be added to the agenda for discussion at a future meeting. Mayor Pro-Tem Dugger moved to adjourn into Executive Session at 7:48 p.m. Motion seconded by Deputy Mayor Pro-Tem Miller. Motion approved by vote of 7-0. 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. Deputy Mayor Pro-Tem Miller moved to reconvene into regular session at 8:06 p.m. Motion seconded by Council Member Wilson. Motion approved by vote of 7-0. There was no action taken as a result of Closed Session. 14. Adjournment - Mayor Pro-Tem Dugger moved to adjourn the meeting. Motion seconded by Deputy Mayor Pro-Tem Miller. Motion approved by vote of 7-0. The meeting adjourned at 8:07 p.m. _______________________ ___________________________________ Amy Piukana Ray Smith, Mayor Town Secretary 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 26, 2011 Date: July 21, 2011 Agenda Item: Consider and act upon a resolution authorizing individuals named in each resolution to endorse checks and orders for the payment of money or otherwise withdraw or transfer funds on deposit with Independent Bank and exercise all of the powers listed in the resolution. Description of Agenda Item: An update to our list of individuals authorized to endorse checks is required given changes to town staff. The resolution will authorize Town Manager Mike Land, Mayor Ray Smith and Town Secretary Amy Piukana as signers to Independent Bank accounts. Budget Impact: N/A Legal Obligations and Review: N/A Attached Documents: Resolution Section of Independent Forms to be signed listing rights bestowed Board/Committee Recommendation: N/A Town Staff Recommendation: Staff recommends that the Town Council approve the item as part of the consent agenda. Prosper is a place where everyone matters. Administration RESOLUTIONS The Corporation named on this resolution resolves that, (1)The Financial Institution is designated as a depository for the funds of the Corporation and to provide other financial accommodations indicated in this resolution. (21 This resolution shall continue to have effect until express written notice of its rescission or modification has been received and recorded by the Financial Institution.Any and all prior resolutions adopted by the Board of Directors of the Corporation and certified to the Financial Institution as governing the operation of this corporations account(sI,are in full force and effect,until the Financial Institution receives and acknowledges an express written notice of its revocation,modification or replacement.Any revocation,modification or replacement of a resolution must be accompanied by documentation,satisfactory to the Financial Institution,establishing the authority for the changes. (3)The signature of an Agent on this resolution is conclusive evidence of their authority to act on behalf of the Corporation.Any Agent,so long as they act in a representative capacity as an Agent of the Corporation,is authorized to make any and all other contracts,agreements,stipulations and orders which they may deem advisable for the effective xerise’of th ërsiáktd on page one,from time to time with the Financial Institution,subject to any restrictions on this resolution or otherwise agreed to in writing. (4)All transactions,if any,with respect to any deposits,withdrawals,rediscounts and borrowings by or on behalf of the Corporation with the Financial Institution prior to the adoption of this resolution are hereby ratified,approved and confirmed. (5)The Corporation agrees to the terms and conditions of any account agreement,properly opened by any Agent of the Corporation.The Corporation authorizes the Financial Institution,at any time,to charge the Corporation for all checks,drafts,or other orders,for the payment of money,that are drawn on the Financial Institution,so long as they contain the required number of signatures for this purpose. (6)The Corporation acknowledges and agrees that the Financial Institution may furnish at its discretion automated access devices to Agents of the Corporation to facilitate those powers authorized by this resolution or other resolutions in effect at the time of issuance.The term “automated access device”includes,but is not limited to,credit cards,automated teller machines (ATM(,and debit cards. (71 The Corporation acknowledges and agrees that the Financial Institution may rely on alternative signature and verification codes issued to or obtained from the Agent named on this resolution.The term “alternative signature and verification codes”includes,but is not limited to,facsimile signatures on file with the Financial Institution,personal identification numbers (PIN),and digital signatures.If a facsimile signature specimen has been provided on this resolution,(or that are filed separately by the Corporation with.the Financial Institution from time to time)the Financial Institution is authorized to treat the facsimile signature as the signature of the Agent(sl regardless of by whom or by what means the facsimile signature may have been affixed so long as it resembles the facsimile signature specimen on file.The Corporation authorizes each Agent to have custody of the Corporation’s private key used to create a digital signature and to request issuance of a certificate listing the corresponding public key.The Financial Institution shall have no responsibility or liability for unauthorized use of alternative signature and verification codes unless otherwise agreed in writing, Pennsylvania.The designation of an Agent does not create a power of attorney;therefore,Agents are not subject to the provisions of 20 Pa.C.S.A. Section 5601 et seq.(Chapter 56;Decedents,Estates and Fiduciaries Codel unless the agency was created by a separate power of attorney.Any provision that assigns Financial Institution rights to act on behalf of any person or entity is not subject to the provisions of 20 Pa.C.S.A.Section 5601 et seq.(Chapter 56;Decedents,Estates and Fiduciaries Code). FOR FINANCIAL INSTITUTION.USE ONLY ‘.. Acknowledged and received on ________________ (date)by ________ (initials)El This resolution is superseded by resolution dated _______________ Cam ments: ©1985,1997 Bankers Systems,Inc.,St.Cloud,MN Form CA-i 5/1/2003 (page 2 of 2) TOWN OF PROSPER, TEXAS RESOLUTION NO. 11-54 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER, THE MAYOR AND THE TOWN SECRETARY TO ENDORSE CHECKS AND ORDERS FOR THE PAYMENT OF MONEY OR OTHERWISE WITHDRAW OR TRANSFER FUNDS ON DEPOSIT WITH INDEPENDENT BANK AND EXERCISE ALL OF THE POWERS LISTED IN THE RESOLUTION. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town approved signatories for current and possible future Independent Bank accounts of the Town of Prosper, Texas, are hereby authorized to include the Town Manager, the Mayor and the Town Secretary. Presently the incumbents for each position herein authorized are Mike Land, Ray Smith and Amy Piukana respectively. SECTION 2: This Resolution shall take effect immediately upon its passage. DULY RESOLVED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, ON THIS THE 26th DAY OF JULY, 2011. ____________________________________ Ray Smith Mayor ATTEST: ____________________________________ Amy Piukana Town Secretary Page 1 of 1 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 26, 2011 Date: July 21, 2011 Agenda Item: Consider and act upon an ordinance rezoning 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). Description of Agenda Item: On July 12, 2011, the Town Council approved zoning case Z11-0008, by a vote of 5-2. Town staff has prepared an ordinance rezoning the property. Budget Impact: There are no significant budget implications associated with the approval of this zoning request. Legal Obligations and Review: Zoning Ordinance 05-20 requires that the Town Council hold a public hearing before approving a zoning request and adopting an ordinance rezoning property. A public hearing has been held and the Town Council approved the zoning case. The ordinance has been prepared. Review of the ordinance by the Town Attorney is not required. Attached Documents: 1. The ordinance rezoning the property is attached. Town Staff Recommendation: Town staff recommends the Town Council adopt the attached ordinance, rezoning 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). Prosper is a place where everyone matters. PLANNING 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. Page 1 of 1 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 26, 2011 Date: July 21, 2011 Agenda Item: Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the Town Council to the Development Services Department, pursuant to Chapter 4, Section 1.5(C)(7) and 1.6(B)(7) of the Town’s Zoning Ordinance, regarding action taken by the Planning & Zoning Commission on any site plan or preliminary site plan. Description of Agenda Item: Attached are the site plans and/or preliminary site plans acted on by the Planning & Zoning Commission at their July 19, 2011 meeting. Per the Town’s Zoning Ordinance, the Town Council has the ability to direct staff to submit a written notice of appeal on behalf of the Town Council to the Development Services Department for any site plan or preliminary site plan acted on by the Planning & Zoning Commission. Attached Documents: 1. Preliminary site plan for First Baptist Church of Prosper, on 8.5± acres, located on the west side of Church Street, 300± feet south of First Street (601 S. Church Street), approved by a vote of 4-0. 2. Site plan for First Baptist Church of Prosper Temporary Buildings, on 8.5± acres, located on the west side of Church Street, 300± feet south of First Street (601 S. Church Street), approved by a vote of 4-0. Town Staff Recommendation: Town staff recommends the Town Council take no action on this item. Prosper is a place where everyone matters. PLANNING 730' 731' 732' 733' 734' 735' 736' 737' 738' 739' 740' 741' 742' 743' 740' 741' 742' 743' 744' 745' 746' 746' 747' 748' 749' 750' 751' 728' 729' 730' 731' 732' 733' 734' 735' 736' 737' Future Facilities95,020 SF2 Stories1,100 Worship SeatsExisting15,177 SFFFE = 745.2Existing5,472 SFExisting1,800 SFFFE = 746.330° 54' 29"792.07'SW76° 40' 11"321.49'NW0° 45' 50"673.20'NW10889141063' - 9"189' - 0"40' - 0"ScreenedDumpster LocationLight PoleLight PolesLight PoleWaterValveWaterMeterApprox. Location6" Water LinePower Polew/ MeterGasMeterApprox. Location Gas LineFire Hydrant2" Water PipeApprox.Location 8"Sewer Line4" Sewer PipeSeptic TankApprox. LocationSanitary SewerApprox. LocationUndergroundPowerMeter BoxPower Polew/ MeterExistingParkingExistingFence LineExistingConcreteSports CourtApprox. Location 11/2 - 2" Water LinePROSPER ISD(JUDY RUCKERELEMENTARY SCHOOL)ZONED: SF-15MAHARDZONED: DOWNTOWNOFFICEBLUESTARZONED: PD-3-SFMAHARDZONED: SF-15BLUESTARZONED: PD-3-SFLandscape Setback15' - 0"7151589861440' - 0"121345151515297104699881415155365' - 0"8243' - 3"Detention Pond116' - 1"188' - 1"FIRST ST.Building Setback40' - 0"Building Setback40' - 0"Building Setback 40' - 0"Building Setback40' - 0"S CHURCH STLandscape Setback15' - 0"Landscape Setback5' - 0"15290' - 0" ±89° 39' 37" 179.90' N E 89° 56' 14"335.30'NELandscape Setback5' - 0"24' Fire Lane15Future Second Point ofAccess to First StreetTOWN OF PROSPER SITE PLAN NOTESAny Revision to this plan will require town approval and will require revisions to anycorresponding plans to avoid conflict between plans.1. Dumpsters and trash compactors shall be screened in accordance with the ComprehensiveZoning Ordinance.2. Open storage, where permitted shall be screened in accordance with the ComprehensiveZoning Ordinance.3. Outdoor lighting shall comply with the lighting and glare standards contained within theComprehensive Zoning Ordinance and Subdivision Regulation Ordinance.4. Landscaping shall conform to landscape plans approved by the town.5. All elevations shall comply with the standards contained within the Comprehensive ZoningOrdinance.6. Buildings of 5,000 square feet or greater shall be 100% fire sprinklered. Alternative fireprotection measures may be approved bythe Fire Department.7. Fire lanes shall be designed and constructed per town standards or as directed by the FireDepartment.8. Two points of access shall be maintained for the property at all times.9. Handicapped parking areas and building accessibility shall conform to the Americans withDisabilities Act (ADA) and with the requirements of the current, adopted Building Code.11. All signage is subject to Building Official approval.12. All fences and retaining walls shall be shown on the site plan and are subject to BuildingOfficial approval.13. All exterior building materials are subject to Building Official approval and shall conform tothe approved facade plan.14. Sidewalks of not less that six (6') feet in width along thoroughfares and five (5') in widthalong collectors and residential streets, and barrier free ramps at all curb crossings shall beprovided per Town standards.15. Approval of the site plan is not final until all engineering plans are approved by the TownEngineer.16. Site plan approval is required prior to grading release.17. All new electrical lines shall be installed and/or relocated underground.18. All mechanical equipment shall be screened from public view in accordance with theComprehensive Zoning Ordinance.SITE DATA SUMMARYColin Co. School Land #12 SurveyAbstract 147Block 7Tract 168Tract 172Zoning: Single FamilyProposed Use: House of WorshipLot Area: 8.491 acres (369864 SF)Building Area: 117,469 SFBuilding Height: 2 Stories, approx. 42'-0"Lot Coverage: 17.49%Floor Area Ratio: 31.76%Total Parking Required (1 space / 3 seats @ 1100 seats): 367Total Parking Provided: 378 SpacesHandicap Parking Required: 8 spaces including 1 Van AccessibleHandicap Parking Provided: 8 spaces including 2 Van AccessibleInterior Landscaping Provided: N/ASquare Footage of Impervious Surface: 254,916 SFOpen Space Required: 7%Open Space Provided: 22.7%E 1st StE 2nd StE 3rd StE Broadway StE 5th StE 5th StS Coleman StS Craig RdS Field StS Lane StS Parvin StS Church StN Coleman StS Main StE 6th StS Preston RdNNOTESOwner to Restripe Existing Fire Lane per striping reqirements:503.3 Marking. Approved striping or, when allowed by the code official, signs, or both, shall beprovided for fire apparatus access roads to identify such roads or prohibit the obstructionthereof. Signs and striping shall be maintained in a clean and legible condition at all times and isreplaced or repaired when necessary to provide adequate visibility.(1) Striping - Fire apparatus access roads shall be marked by painted lines of red traffic paintsix inches (6”) in width to show the boundaries of the lane. The words “NO PARKING FIRELANE” or "FIRE LANE NO PARKING” shall appear in four inch (4”) white letters at twenty-fivefoot (25’) intervals on the red border markings along both sides of the fire lanes. Where acurb is available, the stripping shall be on the vertical face of the curb.(2) Signs - Signs shall read “NO PARKING FIRE LANE” or "FIRE LANE NO PARKING” andshall be twelve inches (12”) wide and eighteen inches (18”) high. Signs shall be painted on awhite background with letters and borders in red, using not less than two inch (2”) lettering.Signs shall be permanently affixed to a stationary post and the bottom of the sign shall be sixfeet, six inches (6’-6”) above finished grade. Signs shall be spaced not more than fifty feet(50’) apart. Signs may be installed on permanent buildings or walls or as approved by the FireChief.ATTSXETEFOSABRDO14419REGISTEREDARCHITECTUCEE.WOYHH Architects, Inc.5910 North Central Expressway Suite 1200Dallas, Texas 75206972-404-1034fax 972-404-10367-14-2011601 S Church St.Prosper, TX 750787/14/2011 2:29:11 PMA1030714Future Site PlanTemporary BuildingsFirst Baptist Church of Prosper2011.07.14CheckerSCALE: 1" = 40'-0"1Future Site PlanN0'30'60'120'240'Copyright 2011Fire Lanes are a minimum of 24' wide w/ a 30' turning radius, and are striped perfollowing requirements: 730' 731' 732' 733' 734' 735' 736' 737' 738' 739' 740' 741' 742' 743' 727' 728' 729' 730' 731' 732' 733' 734' 735' 736' 737' 738' 739' 740' 741' 742' 743' 740' 741' 742' 743' 744' 745' 746' 746' 747' 748' 749' 750' 751' ExistingParkingExisting15,177 SFFFE = 745.2Existing5,472 SFExisting1,800 SFFFE = 746.33Two 24' x 64'Temporary ModularBuildingsExistingFence LineExistingConcreteSports CourtWaterValveWaterMeterApprox. Location6" Water LinePower Polew/ MeterGasMeterApprox. Location Gas LineFire Hydrant2" Water PipeApprox.Location 8"Sewer Line4" Sewer PipeSeptic TankApprox. LocationSanitary SewerApprox. LocationUndergroundPowerMeter BoxApprox. Location 11/2 - 2" Water Line10' - 0" ±0° 54' 29"792.07'SW0° 45' 50"673.20'NW89° 39' 37" 179.90' N E110' - 0"60' - 0"30' - 0"14' - 0"50' - 0"180' - 6"76° 37' 25"507.43'NWPower Polew/ Meter4' - 0"4' - 0"47' - 11"109' - 7"12615171088914973' - 8"81' - 1"45' - 11"49' - 5"65' - 2"67' - 4"PROSPER ISD(JUDY RUCKERELEMENTARY SCHOOL)ZONED: SF-15MAHARDZONED: DOWNTOWNOFFICEBLUESTARZONED: PD-3-SFExistingParkingMAHARDZONED: SF-15BLUESTARZONED: PD-3-SFBuilding Setback40' - 0"Building Setback40' - 0"Building Setback 40' - 0"FIRST ST.290' - 0" ±89° 56' 14"335.30'NEBuilding Setback40' - 0"S CHURCH STLight PoleLight PolesLight PoleOwner to Restripe24' Fire LaneDeck & ADA Compliant RampTOWN OF PROSPER SITE PLAN NOTESAny Revision to this plan will require town approval and will require revisions to anycorresponding plans to avoid conflict between plans.1. Dumpsters and trash compactors shall be screened in accordance with the ComprehensiveZoning Ordinance.2. Open storage, where permitted shall be screened in accordance with the ComprehensiveZoning Ordinance.3. Outdoor lighting shall comply with the lighting and glare standards contained within theComprehensive Zoning Ordinance and Subdivision Regulation Ordinance.4. Landscaping shall conform to landscape plans approved by the town.5. All elevations shall comply with the standards contained within the Comprehensive ZoningOrdinance.6. Buildings of 5,000 square feet or greater shall be 100% fire sprinklered. Alternative fireprotection measures may be approved bythe Fire Department.7. Fire lanes shall be designed and constructed per town standards or as directed by the FireDepartment.8. Two points of access shall be maintained for the property at all times.9. Handicapped parking areas and building accessibility shall conform to the Americans withDisabilities Act (ADA) and with the requirements of the current, adopted Building Code.11. All signage is subject to Building Official approval.12. All fences and retaining walls shall be shown on the site plan and are subject to BuildingOfficial approval.13. All exterior building materials are subject to Building Official approval and shall conform tothe approved facade plan.14. Sidewalks of not less that six (6') feet in width along thoroughfares and five (5') in widthalong collectors and residential streets, and barrier free ramps at all curb crossings shall beprovided per Town standards.15. Approval of the site plan is not final until all engineering plans are approved by the TownEngineer.16. Site plan approval is required prior to grading release.17. All new electrical lines shall be installed and/or relocated underground.18. All mechanical equipment shall be screened from public view in accordance with theComprehensive Zoning Ordinance.SITE DATA SUMMARYColin Co. School Land #12 SurveyAbstract 147Block 7Tract 168Tract 172Zoning: Single FamilyProposed Use: House of WorshipLot Area: 8.491 acres (369,864 SF)Existing Building Area: 17,182 SFTemporary Building Area: 25,251 SFTemporary Building Height: 12'-0" From Finish FloorLot Coverage: 5.48%Floor Area Ratio: 6.83%Total Parking Required: 1 space / 3 seatsTotal Parking Provided: 108 SpacesHandicap Parking Required: 5 spaces including 1 Van AccessibleHandicap Parking Provided: 2 spaces including 0 Van Accessible (Existing Condition)Interior Landscaping Provided: N/ASquare Footage of Impervious Surface: 92,606 SFOpen Space Required: 7%Open Space Provided: 68.49%E 1st StE 2nd StE 3rd StE Broadway StE 5th StE 5th StS Coleman StS Craig RdS Field StS Lane StS Parvin StS Church StN Coleman StS Main StE 6th StS Preston RdNNOTESOwner to Restripe Existing Fire Lane per striping reqirements:503.3 Marking. Approved striping or, when allowed by the code official, signs, or both, shall beprovided for fire apparatus access roads to identify such roads or prohibit the obstructionthereof. Signs and striping shall be maintained in a clean and legible condition at all times and isreplaced or repaired when necessary to provide adequate visibility.(1) Striping - Fire apparatus access roads shall be marked by painted lines of red traffic paintsix inches (6”) in width to show the boundaries of the lane. The words “NO PARKING FIRELANE” or "FIRE LANE NO PARKING” shall appear in four inch (4”) white letters at twenty-fivefoot (25’) intervals on the red border markings along both sides of the fire lanes. Where acurb is available, the stripping shall be on the vertical face of the curb.(2) Signs - Signs shall read “NO PARKING FIRE LANE” or "FIRE LANE NO PARKING” andshall be twelve inches (12”) wide and eighteen inches (18”) high. Signs shall be painted on awhite background with letters and borders in red, using not less than two inch (2”) lettering.Signs shall be permanently affixed to a stationary post and the bottom of the sign shall be sixfeet, six inches (6’-6”) above finished grade. Signs shall be spaced not more than fifty feet(50’) apart. Signs may be installed on permanent buildings or walls or as approved by the FireChief.ATTSXETEFOSABRDO14419REGISTEREDARCHITECTUCEE.WOYHH Architects, Inc.5910 North Central Expressway Suite 1200Dallas, Texas 75206972-404-1034fax 972-404-10367-14-2011601 S Church St.Prosper, TX 750787/14/2011 2:28:36 PMA1020714Site PlanTemporary BuildingsFirst Baptist Church of Prosper2011.07.14CheckerSCALE: 1" = 40'-0"1Site (Phase 1)0'30'60'120'240'NCopyright 2011 Page 1 of 1 To: Town Parks & Recreation Board From: Wade Harden, Sr. Parks & Rec. Planner Cc: Mike Land, Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – July 26, 2011 Date: July 21, 2011 Agenda Item: Consider and act upon a proposal from Leathers & Associates for professional services for Windmill Playground. Description of Agenda Item: Leather’s and Associates presented a proposal to the Town for design and construction services related to the Windmill Playground. The proposal outlines various phases which include design, design development, construction documents, an organization fee, and a construction consultation fee. The fee for all pre-construction services is $18,262 and the construction consultation fee is $13,440. These amounts do not include reimbursables which are noted as airfare, mileage, and housing. The playground construction cost, which includes the Leather’s and Associates proposal, is approximately $200,000. Budget Impact: The Prosper Community Board has committed to raising the funds to cover the construction of the playground, which includes the proposal submitted by Leather’s and Associates. Park improvement funds could be utilized if adequate funds are not raised to cover the costs of the proposal. The Park Improvement fund balance to date is $605,800. Legal Obligations and Review: Legal review of the proposal is not required. Attached Documents: • Leather’s and Associates Proposal Parks and Recreation Board Recommendation (PARBd): At the July 14, 2011 PARBd meeting, the Parks & Recreation Board approved the proposal as provided by Leather’s and Associates, by a vote of 5-0. Town Staff Recommendation: Town staff recommends the Town Council approve the Leather’s and Associates proposal as presented. PARKS & RECREATION Prosper is a place where everyone matters. LEATHERS5SSOCIATESwF-nC1Srr’iiiFYFtnirProsper,TXCreativePlayground#4310REVISEDPROPOSALDATE:6/9/11(Revised6/28/11)ProjectManager:KyleCundy/janeLewis—HolmanConstructionWeek:15—20May2012READTHISENTIREPROPOSALCAREFULLY.ITCONTAINSIMPORTANTINFORMATIONFORYOURPROJECT.Thisproposalconstitutesanestimateoftheremainingworkourofficewillprovideforyourprojectandtheassociatedfees.ThefeesdescribedinthisproposalassumethatweareprovidingstandardservicesbasedontheschematicprovidedafterDesignDay,assummarizedinbothSectionRofour‘PlaygroundPacket’andthisdocument.Thefeesoutlinedherewillvaryonlyifadditionalworkisrequestedorrequired.Examplesofworkthatwouldgenerateadditionalfeesincludedetailsaboveandbeyondthosenecessaryforustobuildtheproject,perspectivedrawings,amajorchangeinproject’sscope,orachangeofsite.TheconstructionphasewillnotchangeexceptbymutualagreementbetweenLeathers&Associatesandthecommunity.Certainconditionsmaybeencounteredduringconstructionthatsignificantlyaffectsconsultants’totalnumberofhours.Variablessuchasweatherandlowvolunteerturnoutareimpossibletoidentifyuntilthetimeofconstructionandmayaffectthetotalhour’snecessaryforconstructionconsultation.However,additionalfeeswillbechargedonlyifconstructioncontinuesbeyondthefinalscheduledday.Thefollowingpagescontainanoutlineoftheremainingserviceswearetoprovide.Ifyouhaveanyquestionsaboutthisproposal,pleasecontactusbyJunel24,2011.Otherwise,wewillassumetheproposalisacceptableandwillproceedwithyourproject.2.5SoL:FiFicr1rtIthiNY145CTThFr-77Si46461171433 ThefollowingisanoutlineoffeesforLeathers&Associates’professionalservices:DesignPhase(completed)ConstructionPhase$950(TheConstructionPhasefeeconfirmsyourconstructiondateandisdueuponacceptanceofyourproposaL)DesignDevelopment&ConstructionDocumentsPhaseDesignDevelopmentDetailedDrawings,MaterialsList&ProjectManagement$15,912ServicesOrganizationPhaseOrganizationPhaseFeeS1,400(traveltimeandexpensesnotincluded)TOTALFORPRE-CONSTRUCTIONSERVICES$18,262Allpre—constructionbillsareduethreeweeksfromdateofinvoice,andaresubjecttoa1.5%permonthsurchargeonanyoutstandingbalanceafterduedate(annualpercentagerateof18%).CONSTRUCTIONCONSULTATIONConstructionConsultants513,440(Includestraveltimetosite,butnotairfare,mileage,housingaccommodations)*housingaccommodationsaretypicallydonated.(ForPaymentofConsultants:PleasemakecheckpayabletoLeathers&Associatesandpresenttotheleadconsultantonthefinaldayofconstruction.)Allfeesaresubjecttochange;seeattachedforfurtherexplanationoffees.225SotflhtontrtIthacNY14E;50re,,77S6i-646•IO7277-14337 BASICSERVICESTheBasicServicesconsistofthefourphasesdescribedbelow.DESIGNPHASE(alreadycompleted)ArepresentativeofLeathers&Associatesshallconsultwiththecommitteetoascertaintherequirementsoftheprojectandonestablishingdesigngoalsandtheinitialscopeoftheproject.Thefirmshallprepareschematicdesignstudies,consistingofdrawingsandotherdocumentsillustratingthescaleandrelationshipofprojectcomponentsforapprovalbythecommittee.DESIGNDEVELOPMENT/CONSTRUCTIONDOCUMENTSPHASEDesignDevelopmentLeathers&Associatesshallreviewandconsultwiththecommitteeontheschematicdesignandshallincorporatethedesignfeedbackrequestedbythecommittee.Leathers&Associatesshallrefineandchangetheschematicdesigntoconformwiththecurrentsafetyandaccessibilityguidelines(ASTMF1487,CPSCPub.No.325,andADAAccessibilityGuidelinesforPlayAreas)andtofitsiteandutilityrequirements.Individualdetails,trafficflowandbudgetconstraintsshallbeconsidered.ConstructionDocumentsLeathers&Associatesshallpreparefromthedevelopeddesign,forapprovalbythecommittee,theworkingdrawingsandspecificationssettingforththerequirementsfortheconstructionoftheentireproject.Thesedocumentstypicallyconsistofplanviewdrawings,sitedrawingwithstakeoutandpostinformation,materialslistandspecifications.Leathers&Associatesshallassistthecommitteeinfilingtherequireddocumentsfortheapprovalofgovernmentalauthoritieshavingjurisdictionovertheproject.Itis,however,thecommittee’sresponsibilitytoidentifyanysuchrequirementsandauthoritiesandtofollowthroughwithanyrequiredfilings.Thecommunitywillbeassignedaprojectmanager,whowillserveasthecommunity’smaincontactfromshortlyafterDesignDaythroughtheconstructionoftheproject.Theprojectmanagerisavailablefrom8a.m.to5p.m.EasternTimeandcanbereachedbytelephone,emailorfax.Allprojectmanagementisincludedinthedesigndevelopmentandconstructiondocumentsphasefee.FinalMaterialsListPhaseAlongwithworkingdrawingsandspecificationssettingforththerequirementsfortheconstructionoftheentireproject,Leathers&AssociatesshallprovidethecommunitywithaFinalMaterialsList,enablingthecommunitytopurchaseorobtaindonationsforallmaterialsnecessaryforthecompletionoftheproject.Asupplierslistandspecificationsformaterialsarepartofthislist.ORGANIZATIONPHASELeathers&Associatesshallprovideorganizingandcoordinatingassistanceandsupportbyphonetothecommittee.ArepresentativeofLeathers&AssociatesshallalsoconductOrganizationDaymeetingswiththecommittee.25Southj1cr!StreetlEhctN14a50fl,.FRF77S644HFO7277-1433?rsao1estn CONSTRUCTIONPHASELeathers&Associatesshallprovideconstructionconsultantswhowillbepresentatthesiteduringconstruction.Theconsultantsshallworkwiththecommitteeduringconstructiontoprovideobservationofconstructionandinterpretationofdrawings.Theconstructionconsultantsshallfamiliarizethemselvesgenerallywiththeprogressandqualityoftheworkanddetermineingeneraliftheworkisproceedinginaccordancewiththeconstructiondrawings.Theconstructionconsultantsshallbetheinterpretersoftherequirementsoftheconstructiondocumentsandtheimpartialjudgesoftheperformancethereunderbythevolunteers.Theconstructionconsultantsshallhavetheauthoritytorejectworkthatdoesnotconformtotheconstructiondocuments.Whenever,intheirreasonableopinion,theyconsideritnecessaryoradvisabletoensuretheproperimplementationoftheintentoftheconstructiondocuments,theyshallhaveauthoritytorequirereplacementofanyworkatanystageofconstruction.Theconstructionconsultants’decisionsshallbefinalifconsistentwiththeintentoftheconstructiondocuments.Theconstructionconsultantsshallconductafinalinspectionuponsubstantialcompletionoftheworkandshallprepareapunchlistforthecommittee’susetoaccomplishfullcompletionoftheproject.Leathers&Associatesshallreceiveandreviewthepunchlistandshallissueacertificateofsubstantialcompletion.TRAVELFEESTravelchargesforOrganizationDayarenotincludedinthisproposalandwillbebilledseparately.Bothairfareandtravelbycarwillbebilledasacombinationofexpensesandtraveltime.Airfareormileagefeesforconstructionarenotincludedinthisproposalandwillbebilledseparately.Traveltimeisincluded.PAYMENTOFFEESAllbillsprecedingconstructionareduethreeweeksfromtheinvoicedate.Constructionconsultationfeesaredueonthefinaldayofconstruction.PaymentschedulePhaseApproximateDuedatesDesignphaseBeforeDesignDayDesigndevelopment/constructionThreeweeksafterreceivingdocumentsphasedocumentsOrganizationphaseBeforeOrganizationDayConstructionphaseLastdayofconstructionAllinvoicesaresubjecttoa1.5%permonthsurchargeonanyunpaidbalanceaftertheduedate(annualpercentagerateof18%).25Sothrtlthd.N’145OTIFfl8776-64%4rx6U??77-1433hei Page 1 of 2 To: Mayor and Town Council From: Mike Land, Town Manager Re: Town Council Meeting – Tuesday July 26, 2011 Date: July 21, 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 total cost of the projects combined is $5,300,000.00 with Forest City/Prosper Partners contributing $4,309,575 and the Town’s contribution being $990,425. 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 will be meeting on August 16th and consider increasing their contribution proportionally with the Town based on the additional cost associated with the extension of the sewer line to Legacy. 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 $990,424. 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 $7,911,150.00 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. 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 934.412 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 456.594 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 Paragraph 4(a) below) as prescribed in Town Ordinance No. 95-01, amended by Ordinance Nos. WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 2 of 26 026881.0100\597803.08 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 15.1 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 Improvement Easements and Third Party Temporary Construction Easements in a WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 3 of 26 026881.0100\597803.08 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. 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 4 of 26 026881.0100\597803.08 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 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 5 of 26 026881.0100\597803.08 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% 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 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 each Developer in an amount equal to such Developer’s Share until all amounts due to Developers hereunder have been paid in full, provided, in the event a Developer is paid in full prior to the other Developer, such other Developer shall receive all such Water Impact Fees until such Developer is 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 3(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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 8 of 26 026881.0100\597803.08 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 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 at 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 9 of 26 026881.0100\597803.08 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 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 $455,093 $910,186 30.8% Forest City $1,022,482 $2,044,964 69.2% Totals: $1,477,575 $2,955,150 (B) Reimbursements shall be made to Developers as follows: Tract Owner Sewer Costs Reimbursement Prosper Partners Tract Prosper Partners $910,186 Forest City Tract Forest City $2,044,964 Totals: $2,955,150 (C) Town's maximum financial contribution for Sewer Improvements shall be Five Hundred Twelve Thousand Four Hundred Twenty- Five and No/100 Dollars ($512,425.00) 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 10 of 26 026881.0100\597803.08 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 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 each Developer in an amount equal to such Developer’s Share until all amounts due to Developers hereunder have been paid in full, provided in the event a Developer is paid in full prior to the other Developer, such other Developer shall receive all such Sewer Impact Fees until such Developer is 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 such expansion, Exhibit A-2 shall be amended accordingly. (d) The estimated Sewer Improvement Costs for the Sewer Improvements are One Million Nine Hundred Ninety Thousand and No/100 Dollars ($1,990,000.00) not including any third party costs for easement acquisitions or Easement Acquisitions Fees (the "Estimated Sewer Improvement Costs"), as such Estimated Sewer Improvement WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 11 of 26 026881.0100\597803.08 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 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 4(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) (i) 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 12 of 26 026881.0100\597803.08 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 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. (ii) 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. If the aggregate Contract price does not exceed the aggregate of the Estimated Water Improvements Costs and the Estimated Sewer Improvement Costs by fifteen percent (15%) or more, any Developer (each, a "Defaulting Developer") who refuses to pay its Developer’s Share share of any Excess Water Improvement Costs or any Excess Sewer Improvement Costs or sign each Contract within three (3) business days after such Developer's receipt of the Bid Award Notice, one or more of the remaining Developers may escrow such portion of the Excess Water Improvement Costs and the Excess Sewer Improvement Costs with Escrow Agent within ten (10) business days after said notification and sign such Contract. Such Developer shall notify the Town of its escrow deposit of such portion of the Excess Water Improvement Costs and the Excess Sewer Improvement Costs for credit reimbursement purposes. The Developer making WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 13 of 26 026881.0100\597803.08 such escrow deposit of such portion of the Excess Water Improvement Costs and the Excess Sewer Improvement Costs for the Defaulting Developer shall receive an increase in its Water Costs Reimbursement or Sewer Costs Reimbursement, as applicable, equal to the amount of such amount deposited in escrow. If none of the Developers sign any Contract, then this Agreement shall automatically terminate. If a Developer refuses to sign any Contract when required to do so, then Developers and the Town acknowledge and agree that Escrow Agent shall return the Escrowed Water Costs and the Escrowed Sewer Costs to such Developer. Notwithstanding anything herein to the contrary, any Defaulting Developer who fails to contribute its proportionate share of Excess Water Costs or Excess Sewer Improvement Costs within ten (10) days after they are due as provided in Paragraph 5(c) below shall have its Water Costs Reimbursement or Sewer Costs Reimbursement reflected in the Table in Paragraph 3(c)(i)(A) and (B) or Paragraph 4(c)(i)(A) and (B), as applicable, reduced to lose the benefit of the multiplier and instead shall only receive credits equal to the amount of its actual Escrowed Costs (as defined in paragraph 5(c)), Further, such Defaulting Developer shall not be entitled to a reimbursement of Water Impact Fees or Sewer Impact Fees as provided in Section 3(c)(iii) or Section 4(c)(iii), as applicable, until all of the other Developers have been reimbursed pursuant to Paragraph 3(c)(i) or Paragraph 4(c)(i). (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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 14 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 15 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 Excess Water Improvements Costs and the Excess Sewer Improvement Costs, except as provided in Paragraph 3(c)(i)(C) and Paragraph 4(c)(i)(C). 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 16 of 26 026881.0100\597803.08 ordinances as of the Effective Date. In lieu of Developers providing payment or 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, subject to Paragraph 6(c) below, have the following remedies, in addition to Town's other rights and remedies above. (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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 17 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 until such time as the default or failure has been cured; 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, except that the Town shall be obligated to return to each Developer its share of remaining Escrowed Costs as of the date of such termination. (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. (c) Prior to exercising any of the remedies below, if the other Developer is not in default under this Agreement, Town shall notify the non-defaulting Developer of Town’s intent to exercise its remedies pursuant to this Paragraph 6(a), and upon receipt of such notice, the non- defaulting Developer may, but shall not be obligated to, cure such failure within fifteen (15) days from receipt of such notice from Town, or such longer period as may be reasonably required provided such non-defaulting Developer commences to cure such failure of the defaulting Developer within such fifteen (15) day period and thereafter diligently pursues such cure to completion. If a non-defaulting Developer elects to cure any default of the other Developer pursuant to this Paragraph 6(c) (other than a default under Paragraph 5(c)), the defaulting Developer shall pay to the non-defaulting Developer, within 30 days of receipt of an invoice from the non-defaulting Developer, all actual costs and expenses incurred by the non-defaulting Developer in curing such default (“Cure Costs”). If the defaulting Developer fails to pay all Cure Costs within 30 days of receipt of an invoice from the non-defaulting Developer, the non- defaulting Developer shall submit written notice thereof (a “Co-Developer Default Notice”) to both the Town and the defaulting Developer together with copies of such invoice and instructions for the Town to reimburse the non-defaulting Developer out of the defaulting Developer’s share of Water Cost Reimbursement and Sewer Cost Reimbursement. Unless the Town receives written notice of protest from the defaulting Developer (a “Dispute Notice”) within 10 days of the date of receipt of such Co-Developer Default Notice by the Town (the “Dispute Notice Deadline”), the Town shall deliver to the non-Defaulting Developer all Water Cost Reimbursement and Sewer Cost Reimbursement payable to the defaulting Developer from and after the Dispute Notice Deadline until such time as the non-Defaulting Developer has been reimbursed in full for the Cure Costs, and any such payments by the Town shall reduce the outstanding balance of the Water Cost Reimbursement and Sewer Cost Reimbursement payable to the defaulting Developer. If the Town receives a Dispute Notice from the defaulting Developer, the Town shall interplead all parties and deposit all Water Cost Reimbursement and WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 18 of 26 026881.0100\597803.08 Sewer Cost Reimbursement otherwise payable to the defaulting Developer after receipt of the Dispute Notice (up to the amount of the Cure Costs set forth in the Co-Developer Default Notice) with a court of competent jurisdiction, in which event the Town shall be entitled to recover all of its court costs and reasonable attorneys’ fees. Whichever Developer loses in such interpleader action shall be solely obligated to pay such costs and fees of the Town as well as the reasonable attorneys’ fees of the prevailing party. 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 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 19 of 26 026881.0100\597803.08 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 20 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 Attn: Robert F. Monchein Phone: (216) 621-6060 Fax: (216) 263-4809 Email: robertmonchein@forestcity.net With a copy to: Forest City Land Group, Inc. 6860 North Dallas Parkway, Suite 200 Plano, Texas 75024 Attn: David R. Blom Phone: (972) 265-7968 Fax: (972)265-7970 Email: davidblom@forestcity.net Forest City Enterprises, Inc. 50 Public Square, Suite 1360 Cleveland, Ohio 44113-2267 Attn: General Counsel Phone: 216-621-6060 Fax: 216-263-6206 Prosper Partners: Prosper Partners, L.P. Attn: Craig Curry 10950 Research Road Frisco, Texas 75034 Phone: (214) 387-3993 Fax: (214) 387-3913 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 21 of 26 026881.0100\597803.08 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 CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE. EACH DEVELOPER IS EXPRESSLY REQUIRED TO DEFEND TOWN AGAINST ALL SUCH CLAIMS ARISING UNDER SUCH DEVELOPER, 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 ANY DEVELOPER 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 EACH DEVELOPER’S OBLIGATION TO DEFEND TOWN OR AS A WAIVER OF EACH DEVELOPER’S OBLIGATION TO INDEMNIFY TOWN PURSUANT TO THIS AGREEMENT. ANY INDEMNIFYING DEVELOPER 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 ANY INDEMNIFYING DEVELOPER FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, TOWN SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND ANY AND ALL INDEMNIFYING DEVELOPERS SHALL BE 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. WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 22 of 26 026881.0100\597803.08 (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. (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, WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 23 of 26 026881.0100\597803.08 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 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 24 of 26 026881.0100\597803.08 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. 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, except as to Chapter 271, Subchapter I of the Local Government Code.. 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 25 of 26 026881.0100\597803.08 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 Town 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. 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 respective Developer, and its 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 26 of 26 026881.0100\597803.08 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 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 WATER AND SEWER IMPROVEMENT DEVELOPMENT AGREEMENT – Page 27 of 26 026881.0100\597803.08 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 28 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 29 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 30 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, and subject to all matters of record affecting the Easement Property as of the date hereof (the “Permitted Encumbrances”). 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 property 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, EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 3 026881.0100\597803.08 except for trees, shrubs and structures within the Easement Property that were removed as a result of such work. There are no liens, attachments, or other encumbrances other than the Permitted 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 with 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 EXHIBIT E-1, FORM OF WATER EASEMENTS – Page 5 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 6 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 7 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 parties EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 2 026881.0100\597803.08 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, and subject to all matters of record affecting the Easement Property as of the date hereof (the “Permitted Encumbrances”). 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 property 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, EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 3 026881.0100\597803.08 except for trees, shrubs and structures within the Easement Property that were removed as a result of such work. There are no liens, attachments, or other encumbrances other than the Permitted 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 with 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 EXHIBIT E-2, FORM OF SEWER EASEMENTS – Page 5 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 6 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 7 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, and subject to all matters of record affecting the Easement Property as of the date hereof (the “Permitted Encumbrances”). There are no liens, attachments, or other encumbrances other than the Permitted 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, and subject to all matters of record affecting the Easement Property as of the date hereof (the “Permitted Encumbrances”). There are no liens, attachments, or other encumbrances other than the Permitted 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, 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 part y 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 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 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 $478,000.00 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 $512,425.00 or 25.75% of the costs authorized by the Agreement. PAGE 2 SECTION 2. Statutory Safeguards and Inspections. In compliance with Texas Local Government Code §212.074, the Agreement incorporates safeguards against undue loading of 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 first reading on the 12th day of July and second reading on the 26th day of July, 2011. ___________________________________ Ray Smith Mayor ATTEST: ________________________________ Amy Piukana 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 26, 2011 Date: July 21, 2011 Agenda Item: A public hearing to consider and act upon a request to rezone 9.6± acres, located on the west side of Coit Road, 200± feet south of Frontier Parkway, from Single Family-15 (SF-15) to Planned Development-Single Family (PD-SF). (Z11-0009). Request to Table from Applicant: On Tuesday, July 19, 2011, the applicant met with representatives of the Highland Meadows HOA and Town staff to discuss the proposed zoning request. On July 21, 2011, Town staff received a request from the applicant to table the item and public hearing to the August 23, 2011 Town Council meeting to allow for additional time to review and address the comments received from the Highland Meadows HOA and the Planning & Zoning Commission. The applicant’s request to table the item is attached. Description of Agenda Item: The zoning and land use of the surrounding properties are as follows: Zoning Current Land Use Future Land Use Plan North Single Family-15 House of Worship Low Density Residential East Agricultural Single Family Residential Low Density Residential South Single Family-15 Single Family Residential Low Density Residential West Single Family-15 Single Family Residential Low Density Residential Requested Zoning – Z11-0009 is a request to rezone 9.6± acres, located on the west side of Coit Road, 200± feet south of Frontier Parkway, from Single Family-15 (SF-15) to Planned Prosper is a place where everyone matters. PLANNING Page 2 of 3 Development-Single Family (PD-SF). The requested Planned Development (PD) District allows for the development of up to nineteen (19) single family lots or a maximum density of 1.97 dwelling units per gross acre. The PD specifies a minimum lot size of 12,500 square feet. Town staff has compared the proposed PD standards to the Town’s SF-12.5 and SF-15 districts in the table below. Proposed PD SF-12.5 SF-15 Min. Lot Area 12,500 square feet 12,500 square feet 15,000 square feet Min. Lot Width 80 feet 80 feet 100 feet Min. Lot Depth 110 feet 135 feet 135 feet Min. Dwelling Area 2,300 square feet 1,800 square feet 1,800 square feet Front Yard Setback 30 feet 30 feet 35 feet Side Yard Setback 8 feet 8 feet 10 feet Rear Yard Setback 25 feet 25 feet 25 feet Maximum Height 40 feet 40 feet 40 feet Max. Lot Coverage 45% 45% 45% The PD requires the amenity center, common areas and landscape buffers to be owned and maintained by the HOA. The PD includes a concept plan (Exhibit D), showing 19 single family lots, a 25 foot landscape buffer along Coit Road, a detention pond, and an open space lot for an amenity center. The PD District shall conform to all sections of the Town’s Zoning Ordinance as it exists or may be amended, unless specifically addressed in the proposed development standards. Future Land Use Plan – Future Land Use Plan (FLUP) recommends Low Density Residential uses for the property. The requested Planned Development (PD) District allows for the development of nineteen (19) single family lots or a maximum density of 1.97 dwelling units per gross acre. The FLUP recommends a density not to exceed 2.0 dwelling units per acre in areas designated for Low Density Residential. The zoning request conforms to the FLUP. Conformance to the Thoroughfare Plan – The property is adjacent Coit Road, a future six 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 Coit Road. Schools – This property is located within the Prosper 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 – No 100 year floodplain exists on the property. Page 3 of 3 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 two public hearing notice reply forms, both in opposition to the request. Attached Documents: 1. Letter from the applicant requesting the Town Council to table the item and public hearing to the August 23, 2011 Town Council meeting. 2. Letter from the applicant appealing the Planning & Zoning Commission’s recommendation for denial to the Town Council. 3. Zoning Exhibits A, B, C, D, and E. 4. Zoning map of the surrounding area. 5. Public hearing notice reply forms. Planning & Zoning Commission Recommendation: At their July 5, 2011 meeting, the Planning & Zoning Commission recommended the Town Council deny a request to rezone 9.6± acres, located on the west side of Coit Road, 200± feet south of Frontier Parkway, from Single Family-15 (SF-15) to Planned Development-Single Family (PD-SF), by a vote of 4-2. The applicant has appealed the Planning & Zoning Commission’s recommendation to the Town Council. The Town Charter requires a majority vote of the Town Council present to overrule a recommendation that a proposed zoning change be denied. Town Staff Recommendation: Town staff recommends the Town Council table the item and public hearing to the August 23, 2011 Town Council meeting. 201 ½ E. Virginia Street, Suite 2 McKinney, Texas 75069 TEL 972.569.9193 FAX 972.569.9197 www.civilgroup.net July 7, 2011 Mr. Chris Copple, AICP Town of Prosper 407 E. First Street Prosper, Texas 75078 Re: Frontier Estates Planned Development Dear Mr. Copple: On Tuesday, July 5, 2011, the Planning and Zoning Commission for the Town of Prosper denied the Planned Development application for Frontier Estates (Z11- 0009). As a result, we are requesting an appeal to the Town Council on July 26, 2011. We will provide staff with the address labels and postage fee worksheet for the notifications on Friday, July 8th. Please contact me if you have any questions regarding our request. Sincerely, Civil Consulting Group, PLLC Trevor L. Castilla, P.E. Project Manager Town of Prosper Exhibit B Statement of Intent and Purpose Frontier Estates The purpose of this submittal is to request zoning for approximately 9 acres such that the development compliments the adjacent Planned Developments. The proposed single family subdivision includes minimum lot sizes of 12,500 square feet. The subdivision includes an on-site recreational amenity center owned and maintained by the HOA. The proposed density for the development is less than 2 lots per acre. The developer intends to allow only custom home builders within the subdivision, insuring the highest level of architectural control and home construction quality control. Town of Prosper Exhibit C Planned Development Standards Frontier Estates I. General Description The Proposed Planned Development District will provide for development of single family detached dwelling units on a minimum lot size of twelve thousand five hundred (12,500) square feet. Other uses, such as religious and educational facilities, parks, and open spaces may be provided for to maintain a balanced, orderly, convenient, and attractive residential area. II. Permitted Uses List of Permitted Uses: Uses followed by an “S” are permitted by Specific Use Permit. Uses followed by a “C” are permitted subject to conditional development standards. See Chapter 3, Section 1 of the Zoning Ordinance for the conditional development standards.  Accessory Building  Antenna and/or Antenna Support Structure, Non-Commercial C  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  Golf Course and/or Country Club  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 Recreated Center  Private Street Development C  Private Utility, Other Than Listed  Rehabilitation Care Facility C  School District Bus Yard C  School, Private or Parochial S  School, Public  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 III. Lot Dimensions and Regulations A. Size of Yards:  Minimum Front Yard – Thirty (30) feet (staggered per Ch. 4, Sec. 9 of the Zoning Ordinance)  Minimum Side Yard – Eight (8) feet; fifteen (15) feet on corner adjacent to side street  Minimum Rear Yard – Twenty five (25) feet B. Size of Lots:  Minimum Lot Area – Twelve thousand five hundred (12,500) square feet  Minimum Lot Width – Eighty (80) feet  Minimum Lot Depth – One hundred and ten (110) feet C. Minimum Dwelling Area: Two thousand and three hundred (2,300) square feet D. Maximum Height: Two and half (2 ½) stories, no greater than forty (40) feet E. Lot Coverage: Forty five (45) percent IV. Landscape and Screening A. Landscaping shall be provided per the Zoning Ordinance as it exists or may be amended. B. Landscape buffers, common area open space, and amenity center as depicted on Exhibit “D”, shall be common areas to be owned and maintained for landscaping, screening, and pedestrian access purposes by the HOA. C. Common areas reserved for detention ponds shall be owned and maintained by the HOA. V. Amenity Center A. The Developer for the Planned Development District shall provide for an amenity center which may include, but not be limited to a clubhouse, sport court, swimming pool, restrooms and dressing rooms, and landscaping to be owned, operated, and maintained by the HOA. VI. Architectural Control Committee A. The Developer for the Planned Development District shall set forth to create an Architectural Control Committee that shall review and approve or disapprove all building proposed and constructed within the Planned Development District. It is the duty of the Architectural Control Committee to restrain building styles and construction to common compatible colors and materials. Town of Prosper Exhibit E Schedule Frontier Estates It is anticipated that construction of the project will begin within 2 to 3 years after approval and signing of the zoning ordinance. During this time, plans and materials will be prepared for development and marketing of the property. Once started, construction of the public infrastructure will be completed within six months. 201 ½ E. Virginia Street, Suite 2 McKinney, Texas 75069 TEL 972.569.9193 FAX 972.569.9197 www.civilgroup.net July 21, 2011 Town Council Town of Prosper 407 E. First Street Prosper, Texas 75078 Re: Frontier Estates Planned Development Zoning Case Z11-0009 Dear Town Council: We respectfully request the item and public hearing for the above mentioned project be tabled to the August 23rd Town Council meeting. We are requesting additional time to review comments received from the Highland Meadows HOA and Town P&Z meeting. Please contact me if you have any questions regarding our request. Sincerely, Civil Consulting Group, PLLC Trevor L. Castilla, P.E. Project Manager Z11-0009 A SF-15 SF-E SFPD-1 E FRO NTIER PKWY N COIT RDCR 83FAIR OA KS LNBLUE FOREST DRFALCON RDTWIN LAKES DRCROSSWIND LNFOSTERMILL DRELMHURST CTSILVERLEAF CTPOST OAK CT FAIR OAKS LN FAIR OA KS L N 0 150 300 45075 Feet 1 inch = 300 feet Page 1 of 2 To: Mayor and Town Council From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Cc: Mike Land, Town Manager Chris Copple, AICP, Planning & Zoning Manager Re: Town Council Meeting – July 26, 2011 Date: July 21, 2011 Agenda Item: A public hearing to consider and act upon an amendment to the Town’s Thoroughfare Plan (Section 13 of the Town’s Comprehensive Plan) revising the alignment of F.M. 1385, Gee Road, and Fishtrap Road. (CA11-0001). History: The Planning & Zoning Commission held a public hearing at their June 7, 2011 meeting to consider the proposed amendment to the Thoroughfare Plan. Following the public hearing and after considerable discussion, the Commission, by a vote of 7-0, tabled the item to their July 5, 2011 meeting to allow time for Town staff to meet with affected property owners. Since the June 7, 2011 meeting, Town staff has met with several affected property owners to discuss alternative alignments. The Planning & Zoning Commission held a second public hearing to hear additional public input at their July 5, 2011 meeting, prior to acting on the proposed amendment to the Thoroughfare Plan. Description of Agenda Item: The purpose of the proposed amendment to the Town’s Thoroughfare Plan is to revise the alignment of F.M. 1385, Gee Road, and Fishtrap Road to provide a direct connection from F.M. 423 in Frisco to F.M. 1385 in Prosper. The attached Thoroughfare Plan amendment exhibit reflects Town staff’s recommended alignment, which aims to minimize the impact of any undisturbed and/or environmentally sensitive property. The North Central Texas Council of Government’s (NCTCOG) Regional Thoroughfare Plan considers this traffic corridor a Regionally Significant Arterial and has shown the direct connection from F.M. 423 to F.M. 1385 since the adoption of the Mobility 2010 Plan Update in 1993. This traffic corridor extends north from Interstate 635 in Farmers Branch through Carrollton, The Colony, Frisco, and Prosper, and currently terminates at F.M. 455 near Pilot Point. Town staff has attached an exhibit from the NCTCOG’s Mobility 2030 Transportation Plan, showing expected levels of congestion in 2030. Providing a direct connection from F.M. 423 to F.M. 1385 is important to improving regional mobility and reducing congestion as the region continues to grow. Budget Impact: There are no significant budget implications associated with the approval of the amendment to the Town’s Thoroughfare Plan. Prosper is a place where everyone matters. PLANNING Page 2 of 2 Legal Obligations and Review: Town staff has mailed public hearing notices to all affected property owners in the area. Town staff placed a public hearing notice in the newspaper as required per state law. Attached Documents: 1. A Thoroughfare Plan amendment exhibit showing the proposed alignment. 2. An aerial map showing the 100-year floodplain and proposed alignment. 3. The Town’s existing Thoroughfare Plan. 4. North Central Texas Council of Government’s Mobility 2030 Transportation Plan – Regionally Significant Arterials. 5. North Central Texas Council of Government’s Mobility 2030 Transportation Plan – System Performance Levels of Congestion. Planning & Zoning Commission Recommendation: At their July 5, 2011 meeting, the Planning & Zoning Commission recommended the Town Council approve the amendment to the Town’s Thoroughfare Plan (Section 13 of the Town’s Comprehensive Plan) revising the alignment of F.M. 1385, Gee Road, and Fishtrap Road as submitted, by a vote of 6-0, subject to: 1. Town staff looking to minimize the impact to the residents as much as possible. Town Staff Recommendation: Town staff recommends the Town Council approve the amendment to the Town’s Thoroughfare Plan (Section 13 of the Town’s Comprehensive Plan) revising the alignment of F.M. 1385, Gee Road, and Fishtrap Road as submitted. GEE RD GEE RDUS HIGHWAY 380 FM 423FM 1385FISH TRAP RD Legend Major Roads Minor Roads Proposed Roads Railroad Parcels Proposed Parcels Thoroughfare Plan Commercial Collector 3 Lane 4 Lane Divided 6 Lane Divided Dallas North Tollway Source: Town of Prosper, Planning Date: June 7, 2011 0 1,200 2,400600 Feet 1 inch = 1,200 feet Proposed Thoroughfare Plan AmendmentFM 423/Gee Road and FM 1385 S COLEMANPR OS PE R TR AI L PROSP ER TRAIL PROSPER TRAIL FIRST ST FIRST ST F IRST ST COIT RDCOIT RDPRESTON ROADPRESTON ROADU S H I G H W A Y 3 8 0 US HIGHWAY 3 80 US HIGHWAY 380LEGACY DRFISH T RA P ROAD FISH TRAP R O A D PARVIN RD PA RVIN RD HILLCRE ST RDLA CIMA BLVDCOLEMAN FRONTIER PKWY FRONTIER PKWY TEEL PKWYGEEFM 1385FM 1385CUSTER RDCUSTER RDN COLEMANTEEL PKWYDALLAS NORTH TOLLWAYLOVERS LANE Legend Major Roads Minor Roads Proposed Roads Railroad Parcels ^_ 0 1,500 3,000750 Feet O1 inch = 1,500 feet Source: Town of Prosper, PlanningDate: July 27, 2010 Prosper Thoroughfare PlanDISCLAIMER. The Town of Prosper has prepared this map or information for internal use only. It is made available under the Public Information Act. Any reliance on this map or information is AT YOUR OWN RISK. Prosper assumes no liability for any errors, omissions, or inaccuracies in the map or information regardless of the cause of such or for any decision made, action taken, or action not taken in reliance upon any maps or information provided herein. Prosper makes no warranty, representation, or guarantee of any kind regarding any maps or information provided herein or the sources of such maps or information and DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED AND IMPLIED, including the implied warranties of merchantability and fitness for a particular purpose. Thoroughfare Plan Commercial Collector 3 Lane 4 Lane Divided 6 Lane Divided Dallas North Tollway Page 1 of 2 To: Mayor and Town Council From: Kirk McFarlin, Chief of Police Cc: Mike Land, Town Manager Amy Piukana, Town Secretary Re: Town Council Meeting – July 26, 2011 Date: July 18, 2011 Agenda Item: Consider and act on a revised Alarm Ordinance for the Town of Prosper. Description of Agenda Item: This Ordinance will amend the present ordinance which will result in a fee increase for a residential alarm permit from $25.00 to $36.00 and a commercial alarm from $25.00 to $48.00. It also allows for billing for the permits to be done through the Utilities Billing System for ease of payment. The Alarm Permit Application will allow residents to opt out of the Utility Billing System for alarm permit payments and make one- time payments annually, if that is their preference. The fee increase was done to help defray the costs of the ICS software program that will track the alarm permits as well as the time it takes for entering, administering the permits on a daily basis, and mailing reminders for the citizens who have opted out of the Utility Billing System to make one-time annual payments. The cost increase also aligns us with surrounding jurisdictions on what they charge for alarm permits. McKinney charges $50.00 for residential and $100.00 for commercial. Frisco charges $35.00 and Allen charges $50.00. Budget Impact: The fees will generate a level of increased revenue to help offset the cost of administering the alarm permits and pay for the software that tracks the permits as well as the additional effort to include the alarm permits in the Utility Billing System. Legal Obligations and Review: The Ordinance was constructed by the Town’s Attorney. Police Department Page 2 of 2 Attached Documents: 2011 Alarm Permit Ordinance Alarm Permit Application Board, Committee and/or Staff Recommendation: Staff recommends passing the new Alarm Ordinance as written. List of some of the possible motions: I make the motion that the Alarm Ordinance be passed as written. I make the motion that we table this item until __________________________________. I make the motion that the Alarm Ordinance be passes with the following changes: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________. Name of Permit Holder/Responsible Person: Date of Application: Mailing Address (street, city, zip code): Day Phone Number: Evening Phone Number: Name of Resident: Alarm Site Address (street, city, zip code): Alarm Site Phone Number: Are there dogs on the premises? Are there weapons on the premises? Are there any Handicapped person(s) on premises? Yes No Yes No Yes No Monitored Audible Silent Carbon Monoxide Burglary Robbery Fire Panic Medical Glass Breakage Motion Detector Door Activation Automatic Reset Window Activation Other (explain): Police Notified by: Alarm Company Panel Other (specify): Alarm or Monitoring Company Name: Alarm Company Address (street, city, zip code) Alarm Company Telephone Number: Date Alarm Installed: Date Service Begins: Contact Person – Must have access to the premises and alarm with the Maximum response time of 30 minutes. List 3 or more Name: Day Phone: Evening Phone: Name: Day Phone: Evening Phone: Name: Day Phone: Evening Phone: Name: Day Phone: Evening Phone: Billing Information: Billing is provided through the Town of Prosper Utility Billing Department and will be included in your monthly statement from the Town. If you prefer to pay the fee yearly by check or cash, then please check and sign below:  I elect to opt out of automatic payment plan through my Town of Prosper Utility Bill: __________________________________________ Signature Prosper Police Department – Kirk McFarlin, Chief of Police P.O. Box 307 Prosper, TX 75078 Dispatch: (972) 347-2226 Fax: (972) 347-9002 Permit # ___________________ Residential Application for Alarm Permit Alarm Please select the type of alarm, the alarm type and all that applies to the alarm system Applicant Signature: Date: Office Use Only Application Received Date: Application Received Via: Approved Payment Type Mail Fax In Person Yes No Utility Billing Cash Check #_______ Date Issued: Date Expires: CAD Date Entered by: Verified By Alarm New Renewal Change Reissue Denied/Suspended Date: If denied or suspended, give reason: GENERAL INFORMATION FOR ALARM USERS The following are the major requirements for alarm users: PERMITS: A permit must be obtained within sixty (60) days of the installation of an alarm system to transmit or relay a signal intended to summon emergency services of the Town of Prosper. Permits must be obtained before an alarm system is activated. It is the responsibility of the permit holder to apply for renewal prior to the last day of the month in which the permit expires. PERMIT APPLICATIONS AND FEES ($36.00 for residential and $48.00 for commercial) SHOULD BE BROUGHT TO OR MAILED TO: Prosper Police Department Mail: P. O. Box 307, Prosper, TX 75078 Walk-in: Municipal Court 110 W. Broadway, Prosper, TX 75078 SERVICE FEES: The Alarm Ordinance allows the permit holder four (4) “free” false burglar alarms per alarm site during any twelve (12) month period. Service fees are as follows: Service Call Fee 0 – 4 False Burglar Alarms No Charge 5+ False Burglar Alarms $75.00 per Alarm All False Robbery Alarms $75.00 per Alarm 0 – 4 False Fire Alarm No Charge 5+ False Fire Alarm $75.00 per Alarm 0 – 4 False Emergency Medical Assist Alarms No Charge 5+ False Emergency Medial Assist Alarms $75.00 per Alarm RESPONSIBILITY OF PERMIT HOLDER The person in control of the local alarm shall comply with all requirements of operation and maintenance as outlined in the town ordinance. The permit holder is responsible for informing the town in writing of any change that alters the information listed on the permit application and the Town Ordinance covering alarm systems. VIOLATION: Any person who operates an alarm system in violation of this ordinance shall be deemed guilty of a misdemeanor and fined not in the excess of $500.00. Each day of violation shall constitute a separate and distinct offense. SUSPENSIONS: A permit may be suspended or renewal refused if an alarm system generates an excessive number of false alarms. Any false statement or misrepresentation of material fact made by an applicant for the purpose of obtaining an alarm permit or renewal while making a change thereto shall be sufficient cause for refusal to grant, or suspension of a permit. ALARM PERMIT ORDINANCE – Page 1 595037-1 TOWN OF PROSPER, TEXAS ORDINANCE NO. 11-49 AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS AMENDING ARTICLE 4.05 (ALARM SYSTEMS) OF CHAPTER 4 (BUSINESS REGULATIONS) OF THE PROSPER CODE OF ORDINANCES TO ADD PERMIT FEE PAYMENT OPTIONS AND AMEND FEES; AMENDING DEFINITIONS; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR SAVINGS, REPEALING AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (the “Town Council”) has investigated and determined that persons within the Town of Prosper, Texas (“Town”) may desire to provide payment for their alarm permit fee by alternative methods; and WHEREAS, the Town Council has investigated and determined that alternative payment methods will prove more efficient for Town staff in the performance of their duties; and WHEREAS, additionally, the Town Council has investigated and determined that amendment to the various definitions within the Ordinance will assist Town staff in their duty to carry out the provisions of the Ordinance; and WHEREAS, the Town Council has investigated and determined that it will be advantageous, beneficial and in the best interests of the residents of the Town to amend Article 4.05 (Alarm Permits) of Chapter 4 (Business Regulations) of the Code of Ordinances to provide for an alternative method of payment for the alarm permit fee and to amend fees and definitions. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF TOWN OF PROSPER, TEXAS: SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Amendment to Article 4.05 (Alarm Systems) of Chapter 4 (Business Regulations) of the Town of Prosper Code of Ordinances. Article 4.05 (Alarm Systems) of Chapter 4 (Business Regulations) of the Town of Prosper Code of Ordinances is hereby amended as set forth in Exhibit “A,” attached hereto and incorporated herein for all purposes. SECTION 3: Penalty. Any person, firm, corporation or entity violating this Ordinance, as it exists or may be amended, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not to exceed the sum of Five Hundred and 00/100 Dollars ($500.00). Each continuing day’s violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Prosper from filing suit to enjoin the ALARM PERMIT ORDINANCE – Page 2 595037-1 violation. Prosper retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 4: Savings / Repealing Clause. All provisions of any Ordinance in conflict with this Ordinance are hereby repealed, but such repeal shall not abate any pending prosecution for violation of the repealed Ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the Ordinance. Any remaining portions of said Ordinance shall remain in full force and effect. SECTION 5: 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 it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 6: Effective Date. This Ordinance shall become effective from and after its adoption and publication as required by the Town Charter and by law. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS on this 26th day of July, 2011. ___________________________________ Ray Smith, Mayor ATTESTED AND CORRECTLY RECORDED: ___________________________ Amy Piukana, Town Secretary Date of Publication:__________________ (The Prosper Press) ALARM PERMIT ORDINANCE – Page 3 595037-1 Exhibit “A” ARTICLE 4.05 ALARM SYSTEMS Sec. 4.05.001 Definitions The following definitions shall apply in the interpretation and enforcement of this Ordinance and shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Alarm Permit means a certificate, license, permit, registration, or other form of permission that authorizes a person to operate an alarm system. Alarm Site means a premises or location serviced by an alarm system. Alarm System means a device or system that transmits or relays a signal intended to summon emergency services of the Town, as illustrated by, but not limited to, local alarms. Alarm system does not include: (a) An alarm installed on a vehicle unless installed at a permanent site; (b) An alarm designed to alert only the inhabitants of a premises; nor (c) An alarm installed upon premises occupied by the Town. Business Burglar Alarm Notification is the notification intended to summon the police, which is initiated or triggered manually or by an alarm system designed to respond to a stimulus characteristic of an unauthorized intrusion into a place of business. Director means the Chief of Police or Fire Chief, or their respective authorized representatives. Emergency medical assistance alarm means an alarm system which summons emergency medical assistance. False Burglar Alarm Notification means a burglar alarm notification to the police and occurs when the responding police officer finds no evidence of unauthorized intrusion or attempted unauthorized intrusion. False Fire Alarm Notification means a fire alarm notification to the Fire Department after which the responding fire personnel finds no evidence of fire. False Robbery Alarm Notification means a robbery alarm notification to the police, and the responding police officer finds no evidence of a robbery. ALARM PERMIT ORDINANCE – Page 4 595037-1 False Emergency Medical Assistance Alarm Notification means an emergency medical assistance alarm notification to the communications center, when the responding public safety personnel find there is no evidence of need for medical assistance. Fire Alarm Notification means notification to summon the Fire Department initiated or triggered by smoke or fire or other stimulus characteristic of fire. Local Alarm means an alarm system that emits a signal at an alarm site that is audible or visible from the exterior of a structure and has as its primary purpose the summoning of aid from a Town department. Person means an individual, corporation, partnership, association, organization or similar entity. Residential Burglar Alarm Notification is the notification intended to summon the police, which is initiated or triggered manually or by an alarm system designed to respond to a stimulus characteristic of unauthorized intrusion into a residence. Robbery Alarm Notification is a notification by means of an alarm system designed to be purposely activated by a human who intended to summon the police when a robbery occurs. Town Manager means the Town Manager or his/her authorized representative and shall not be a police officer or a firefighter of the Town. Sec. 4.05.002 Permit and Fee Required: Application, Duration, Renewal, Transferability & False Statements. A. An annual, non-refundable fee of thirty-six dollars ($36.00) is required for each permit or renewal of a permit for a private residence. The permit is valid for a period of twelve (12) months from the date of issuance. An annual, non-refundable fee of forty-eight dollars ($48.00) is required for each permit or renewal of a permit for a place of business. B. This fee may be paid at the time an application for permit is submitted, or the person may elect on the application to have the fee paid out over the course of the year on their Town utility bill. A person shall make such election at the time they file an application for a permit, and such election shall continue in full force until person provides written notice to Town indicating otherwise. If a person elects to pay the fee on their Town utility bill, upon receipt of payment for such bill, the Town shall allocate payment in the following order: water, sewer, trash, alarm permit fee. In the event a person closes a Town utility account, any unpaid portion of the annual, non- refundable fee shall be included on the final utility bill. ALARM PERMIT ORDINANCE – Page 5 595037-1 B. A person commits an offense if he/she operates or causes to be operated an alarm system without first obtaining a permit from the Director. A separate permit application is required for each alarm site and each type of alarm system. C. Any person without an existing, valid permit for an alarm system on the effective date of this Ordinance must apply for a permit upon the earlier of: (a) sixty (60) days of installation of the system; or (b) sixty (60) days after the effective date of this Ordinance. D. Upon receipt of the required fee and completed application form, the Director shall issue a permit unless there is cause to believe the equipment responsible for initiating an alarm will not be maintained and operated in accordance with this Ordinance or the applicant will not comply with each provision of this Ordinance. The permit will be affixed in a location at the alarm site as proscribed by the Director or his/her authorized representative. E. Each permit application must contain the name, address and telephone number of the individual or alarm user representative who will be the permit holder and be responsible for the proper maintenance and operation of the alarm system and payment of fees or charges levied under this Ordinance. F. An alarm permit is non-transferable. However, the individual designated to respond to an alarm or relay an alarm may be changed. A permit holder shall inform the Director in writing of any changes that alter information listed on the permit application. No fee will be assessed for such changes. G. Any false statement or misrepresentation of a material fact made by an applicant or person for the purpose of obtaining an alarm permit or renewal, or while making a change thereto, shall be sufficient cause for refusal to grant or suspension of a permit. Sec. 4.05.003 Other Types of Alarms. A. A person shall not install or maintain an alarm system except for the purpose of eliciting responses to burglaries, robberies, fires or medical emergencies unless specifically authorized by the Director. B. If innovations in alarm systems or other types of alarm devices adversely affect emergency services of the Town, the Director may promulgate other rules and regulations in order to protect the Town’s emergency services. Sec. 4.05.004 Service Charges A. If, within the previous twelve (12) month period, five (5) false burglar alarm notifications are emitted from an alarm site, the Director shall assess the permit holder in control of that alarm site a fee for each subsequent false burglar alarm notification emitted from the site. The fee for a false burglar alarm under this subsection shall be seventy-five dollars ($75.00). ALARM PERMIT ORDINANCE – Page 6 595037-1 B. The Director shall assess a permit holder for each false robbery alarm notification emitted from the alarm site. The fee for each false robbery alarm shall be seventy-five dollars ($75.00). C. If, within the previous twelve (12) month period, two (2) false fire alarm notifications are emitted from an alarm site, the Director shall assess the permit holder in control of that alarm site a fee for each subsequent false fire alarm notification emitted from the site. The fee for a false fire alarm under this subsection shall be seventy-five dollars ($75.00). D. If, within the previous twelve (12) month period, two (2) false emergency medical assistance alarm notifications are emitted from an alarm site, the Director shall assess the permit holder in control of that alarm site a fee for each person subsequent emergency medical assistance alarm notification emitted from the site. The fee for a false emergency medical alarm under this subsection shall be one hundred dollars ($100.00). E. A permit holder shall pay a fee assessed under this section within thirty (30) days after receipt of notice that it has been assessed. F. The permit holder will be exempt from any fee charged for a false alarm notification which is later shown to have been, in the Director’s sole determination, justified or which was due to a natural or manmade catastrophe or other situation specifically exempted by the Director. Sec. 4.05.005 Reporting of Alarm Systems. A permit holder shall not report his/her alarm signals through a relaying intermediary that: (1) does not meet the requirements of this Ordinance and any rules and regulations promulgated by the Director; and (2) is not licensed by the Texas Board of Private Investigators and Private Security Agencies. Sec. 4.05.006 Proper Alarm System Operation and Maintenance. A. A permit holder shall: 1. Cause an adjustment to be made to the sensory mechanism of his/her alarm system in order to suppress false indications of force so that the alarm system will not be activated by impulses due to: a. Transient pressure changes in water pipes; b. Flashes of light; c. Wind noise caused by the rattling or vibrating of doors or windows; d. Vehicular noise adjacent to the installation; or e. Other forces unrelated to actual emergencies. ALARM PERMIT ORDINANCE – Page 7 595037-1 2. Maintain the premises containing an alarm system in a manner that insures proper operation of the alarm system. 3. Comply with current Underwriters Laboratories restrictions or guidelines with reference to his/her alarm system or alarm equipment. 4. Adjust the mechanism so that an alarm signal will sound for not longer than fifteen (15) minutes after being activated. 5. Provide personnel, who will, within thirty (30) minutes after being notified, reset the alarm system and provide access to the premises. This shall not prevent public safety personnel from forcibly entering the structure when they reasonably believe that an emergency exists inside. 6. If the permit holder, or designee, fails to respond to the scene within thirty (30) minutes to reset the alarm system and provide access to the premises, a fee of fifty dollars ($50.00), in addition to the actual expenses incurred in securing the premises, will be charged to the permit holder. Failure of the permit holder to pay the assessed fee will result in suspension of the permit. Sec. 4.05.007 Manual Reset Required. A person in control of a local alarm or an alarm system that causes an alarm notification to be sent directly to the Town shall adjust or cause the adjustment of the mechanism so that upon activation of the system, the system will transmit only one (1) alarm signal and will not transmit another alarm signal without first being manually reset. SECTION 8: Inspection. Upon reasonable notification, the Director may inspect an alarm site and alarm system of a permit holder. SECTION 9: Suspension of Permit, Offense to Operate and Termination of Response by the Town. A. The Director may suspend or refuse to renew an alarm system permit for failure to meet the standards set out in this Ordinance. B. The Director may suspend or refuse to renew an alarm permit if the Director determines, in his/her sole discretion, that the system in question has a history of unreliability, which unreliability shall be presumed upon the occurrence in a twelve (12) month period of: 1. Ten (10) false burglar alarms; 2. Five (5) false robbery alarms; 3. Ten (10) false fire alarms; or 4. Ten (10) false medical emergency assistance alarms. ALARM PERMIT ORDINANCE – Page 8 595037-1 C. A suspension may be lifted or permit renewed upon a sufficient showing that the conditions which caused the false alarms have been corrected, and if the Director determines that the alarm system is likely to be maintained and operated in a responsible manner in accordance with the provisions of this Ordinance. D. A person commits an offense if he/she operates an alarm system during a period of suspension or after the Director refuses to renew his/her permit. E. Responses from the Police and Fire Departments may be terminated to non-permitted sites after notification to the owner has been made by regular and certified mail, return receipt requested. F. Responses will not be terminated because of excessive false alarms to a site with a valid permit, if all fees are paid in full. SECTION 10: Appeal from Denial or Suspension or Suspension of a Permit. A. If the Director refuses to issue or renew a permit, or suspends a permit, the Director shall send to the applicant or permit holder by certified mail, return receipt requested, written notice of the Director’s action and a statement of the right to an appeal. The applicant or permit holder may appeal the decision of the Director to the Town Manager by filing with the Town Manager a written request for a hearing, setting forth the reasons for the appeal, within ten (10) days after the receipt of the notice from the Director. The filing of a request for an appeal hearing with the Town Manager stays an action of the Director in suspending a permit until the Town Manager makes a final decision. If a request for an appeal hearing is not made within the ten (10) day period, the action of the Director is final. B. The Town Manager shall serve as hearing officer at an appeal hearing and consider evidence offered by any interested person. The formal rules of evidence do not apply at an appeal hearing, and the hearing officer shall make his/her decision on the basis of a preponderance of the evidence presented at the hearing. The hearing officer must render a decision within thirty (30) days after the request for an appeal hearing is filed, or the appeal shall be deemed granted. The hearing officer shall affirm, reverse or modify the action of the Director, and his/her decision is final. SECTION 11: Indirect Alarm Reporting. A. A person who is engaged in the business of relaying alarm notifications to the Town shall: 1. Send notification of an alarm to the Town by a human operator; 2. Keep his/her business premises locked and secured at all times; ALARM PERMIT ORDINANCE – Page 9 595037-1 3. Allow an inspection of his/her business premises by the Director at any time; 4. Report alarms only over a special telephone number, or numbers, designated by the Director; 5. Send alarm notifications to the Town in a manner and form determined by the Director. B. A person commits an offense if he/she engages in the business of relaying alarm notification in the Town without complying fully with the items listed above. SECTION 12: Direct Alarm Reporting. It shall be unlawful for any person or business to operate or energize an alarm system or, alarm device, which activates an automatic dialing device, which sends a signal to the communications center, without the written approval of the Director. SECTION 13: Protection of Financial Institutions. A. A financial institution required by applicable law to have an alarm system may install, with permission of the Director, a signal line directly to the Police Department for the purpose of reporting burglaries and robberies. If such an installation is approved, all other requirements of this Ordinance must be met. The financial institution shall execute a letter of agreement with the Town permitting the installation of all necessary equipment on an indicator panel monitored in the communications division of the Police Department. The installation shall be accomplished at the institution’s expense. B. The financial institution, at its expense, shall make arrangements to provide service for the alarm system on a twenty-four (24) hour basis, seven (7) days a week. In no event shall the Town become liable for service charges for repairs and maintenance to the indicator panel monitor. C. The financial institution shall pay a monthly fee for each indicator. The fee for monitoring alarms for financial institutions shall be fifty dollars ($50.00) per month. The Director shall have the right, at reasonable times and upon oral notice, to inspect the alarm system at the alarm site and require necessary repairs or improvements. If the Director finds that the alarm system continually fails to operate or be operated to his/her satisfaction, he/she may terminate the privilege to have equipment and indicators in the communications center of the Police Department and require prompt removal of same at the expense of the financial institution. D. The financial institution may cancel its agreement with the Town at any time by giving the Town written notice through the Director; whereupon such institution, at its sole expense, shall have its equipment and indicators promptly removed from the monitor panel in the communications center. ALARM PERMIT ORDINANCE – Page 10 595037-1 E. The Director has the right to require any change, modernization or consolidation of alarm signaling equipment that he/she deems advisable. In no event shall the Town become liable for such changes. F. Instead of a direct line, a financial institution may choose to report burglaries and robberies by transmission through an alarm reporting service using a telephone number designated by the Director. SECTION 14: Intentional Activation Unlawful. From and after the effective date of this Ordinance, it shall be unlawful for any person to intentionally activate or cause to be activated any alarm without the existence of an emergency situation and with the intent of causing a response by the Town’s public safety personnel. SECTION 15: Violations of Ordinance/Penalty Provision. A. Any person who operates an alarm system in violation of this Ordinance shall be deemed guilty of a misdemeanor and fined not in excess of five hundred ($500.00). Each day of violation shall constitute a separate and distinct offense. B. A person commits an offense if he/she violates by commission or omission any provision of this Ordinance that imposes upon him a duty or responsibility. C. In addition to prohibiting or requiring certain conduct of individuals, it is the intent of this Ordinance to hold a corporation, partnership, association, or other business entity criminally responsible for acts or omissions performed by an agent acting on behalf of the corporation, partnership, association, or business entity and within the scope of the agent's employment. D. The penal provisions imposed under this Ordinance shall not preclude the Town from filing suit to enjoin the violation. The Town retains all legal rights and remedies available to it pursuant to local, state and federal law. Page 1 of 1 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 26, 2011 Date: July 21, 2011 Agenda Item: Consider and act upon Ordinance No. 11-52, amending Ordinance No. 05-87 adopting the amended Comprehensive Parks Ordinance. Description of Agenda Item: As per direction from the Parks and Recreation Board (PARBd) and Town Council, Town staff has made revisions to the Comprehensive Parks Ordinance and provided the revised document (see attached). 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. Amended Comprehensive Parks Ordinance 2. Comprehensive Parks Ordinance Mark-up (with revisions noted) 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 adopt the amendment to the Comprehensive Parks Ordinance as presented. Prosper is a place where everyone matters. PARKS & RECREATION 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. Comprehensive Parks Ordinance Table of Contents Section Title & Subsections Page 1 Definitions 1 2 Establishment of Parks & Recreation Division 2 3 Director of Parks & Recreation Division 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 4 5 General Provisions 6 A – Park Names 6 B – Park Hours 6 C – Community Center/Recreational Facility Hours 6 D – Swimming Pool 7 E – Swimming, Boating, and Fishing in Parks 7 F – Disrupting or Interfering with Supervised Play or Amusement Program Conducted by Parks & Recreation Division; 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 9 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 12 C – Recognition of Athletic Leagues 12 D – Prosper Sports Committee 12 8 Traffic 13 A – Use of Vehicles 13 B – Traffic Signs 13 9 Enforcement 13 A – Enforcement 14 B – Expulsion from Parks 14 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 Division 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. G. Indoor Facilities – indoor facilities owned, leased or otherwise controlled by the Parks & Recreation Division 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 Division. H. League –means an association or group of teams 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 Division 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 Division. 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 2 the parkway strips between curb and sidewalks along the several streets and highways of Prosper. L. Parks & Recreation Division or Parks & Recreation – means the Parks & Recreation Division of the Development Services Department of Prosper. M. Parks & Recreation Director or Director – means the Director of the Parks & Recreation Division 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 Division, 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 Division. 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. U. Town Manager – means the Town Manager of Prosper and/or his/her authorized agent and/or representative. V. Town co-sponsored league play athletic event – means an athletic event, which is authorized, organized or scheduled with the assistance of the Parks & Recreation Division by a nonprofit organization. W. Town sponsored league athletic event – means an athletic event which is authorized, organized or scheduled in whole or in part by Prosper. X. 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. 2. Establishment of Parks & Recreation Division There is hereby created for Prosper the Division of Parks & Recreation of the Development Services Department. 3 3. Director of Parks & Recreation Division The Town Manager shall appoint the Parks & Recreation Director to serve at the pleasure of the Town Manager, and the Director shall have such duties and responsibilities as may, from time to time, be delegated to him by the Town Manager. 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. 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 4 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 meet 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 Manager, as requested, in matters relating to the Parks & Recreation Division. 2) Assist in informing citizens of policies and functions of the Parks & Recreation 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) 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. 5 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 Division. No supervisory power of the Board is created. 17) The Board will review the proposed budget for the Parks & Recreation Division 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. 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. 6 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. 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. 7 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 Division 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 Division; 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 Division 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 Division to leave such building, swimming pool, playground or park located in or on any public property within Prosper. 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 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 8 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 Division 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 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 Division 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; 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. 9 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 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 Division. 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. 10 5) All persons flying remote controlled aircraft must restrict their use to the established flight zone as established by the Parks & Recreation Division. 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: 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. 11 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. 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 prior to starting play on any Prosper athletic field/facility. 12 B. Athletic field usage. 1) It shall be unlawful to be on a designated game or practice athletic field prior to receiving approval from the Town Parks and Recreation Division. 2) The Parks & Recreation Director is authorized to declare a closed field. Such fields shall have a sign posted stating field closed. 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 field closed, outside of periods when the field is approved by the Parks and Recreation Director for games. Those found in violation of the ordinance are subject to a $500.00 maximum fine for each violation. 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). 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, the Town Parks and Recreation Director, and one (1) member of each athletic organization recognized by the Town Council by resolution. 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 on the Committee until an odd number of members are created by the recognition of an additional athletic organization. 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. 13 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. 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 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. 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: 14 A. Enforcement. 1) The Parks & Recreation Director and/or the Prosper Police Division 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 Division 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 Division, 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. 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 Division, 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. EXHIBIT A Comprehensive Parks Ordinance Table of Contents Section Title & Subsections Page 1 Definitions 1 2 Establishment of Parks & Recreation Division 2 3 Director of Parks & Recreation Division 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 4 5 General Provisions 6 A – Park Names 6 B – Park Hours 6 C – Community Center/Recreational Facility Hours 6 D – Swimming Pool 7 E – Swimming, Boating, and Fishing in Parks 7 F – Disrupting or Interfering with Supervised Play or Amusement Program Conducted by Parks & Recreation Division; 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 9 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 12 C – Recognition of Athletic Leagues 12 D – Prosper Sports Committee 12 8 Traffic 13 A – Use of Vehicles 13 B – Traffic Signs 13 9 Enforcement 13 A – Enforcement 14 B – Expulsion from Parks 14 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 Division 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. G. Indoor Facilities – indoor facilities owned, leased or otherwise controlled by the Parks & Recreation Division 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 Division. H. League –means an association or group of teams 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 Division 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 Division. 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 2 the parkway strips between curb and sidewalks along the several streets and highways of Prosper. L. Parks & Recreation Division or Parks & Recreation – means the Parks & Recreation Division of the Development Services Department of Prosper. M. Parks & Recreation Director or Director – means the Director of the Parks & Recreation Division 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 Division, 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 Division. 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. U. Town Manager – means the Town Manager of Prosper and/or his/her authorized agent and/or representative. V. Town co-sponsored league play athletic event – means an athletic event, which is authorized, organized or scheduled with the assistance of the Parks & Recreation Division by a nonprofit organization. W. Town sponsored league athletic event – means an athletic event which is authorized, organized or scheduled in whole or in part by Prosper. X. 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. 2. Establishment of Parks & Recreation Division There is hereby created for Prosper the Division of Parks & Recreation of the Development Services Department. 3 3. Director of Parks & Recreation Division The Town Manager shall appoint the Parks & Recreation Director to serve at the pleasure of the Town Manager, and the Director shall have such duties and responsibilities as may, from time to time, be delegated to him by the Town Manager. 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. 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 4 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 meet 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 Manager, as requested, in matters relating to the Parks & Recreation Division. 2) Assist in informing citizens of policies and functions of the Parks & Recreation 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) 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. 5 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 Division. No supervisory power of the Board is created. 17) The Board will review the proposed budget for the Parks & Recreation Division 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. 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. 6 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. 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. 7 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 Division 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 Division; 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 Division 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 Division to leave such building, swimming pool, playground or park located in or on any public property within Prosper. 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 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 8 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 Division 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 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 Division 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; 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. 9 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 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 Division. 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. 10 5) All persons flying remote controlled aircraft must restrict their use to the established flight zone as established by the Parks & Recreation Division. 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: 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. 11 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. 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 prior to starting play on any Prosper athletic field/facility. 12 B. Athletic field usage. 1) It shall be unlawful to be on a designated game or practice athletic field prior to receiving approval from the Town Parks and Recreation Division. 2) The Parks & Recreation Director is authorized to declare a closed field. Such fields shall have a sign posted stating field closed. 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 field closed, outside of periods when the field is approved by the Parks and Recreation Director for games. Those found in violation of the ordinance are subject to a $500.00 maximum fine for each violation. 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). 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, the Town Parks and Recreation Director, and one (1) member of each athletic organization recognized by the Town Council by resolution. 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 on the Committee until an odd number of members are created by the recognition of an additional athletic organization. 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. 13 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. 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 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. 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: 14 A. Enforcement. 1) The Parks & Recreation Director and/or the Prosper Police Division 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 Division 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 Division, 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. 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 Division, 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.