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01.24.2012 Town Council PacketPage 1 of 3 ] 1. Call to Order / Roll Call 2. Invocation, Pledge of Allegiance, and Pledge to the Texas Flag 3. Announcements of dates and times of upcoming community events 4. Presentation of a proclamation declaring February 7-14, 2012, as Congenital Heart Disease Awareness Week. 5. Presentation of a certificate of appreciation to Mitchell Cordy for work completed at Boyer Park. (WH) 6. Presentation regarding future Water Conservation efforts for Town of Prosper. (ML) 7. Presentation regarding possible future Water Rate Structures for Phase 3 and Phase 4 Drought Water restrictions. (MG) 8. 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.) MINUTES, RESOLUTIONS AND OTHER ITEMS 8a. Consider and act upon minutes from the following Council meeting(s) (AP) • January 10, 2012 – Regular Town Council Meeting 8b. Consider and act upon an Encroachment on Easement Agreement within the limits of the Wilson Creek Sewer Interceptor Project, by and between Oncor Electric Delivery Company and the Town of Prosper. (MB) 8c. Consider and act upon Ordinance No. 12-03 rezoning 3.0± acres, located 750± feet east of Dallas Parkway and 650± feet south of First Street, from Agricultural (A) to Planned Development-Commercial (PD-C). (Z11-0012). (CC) 8d. Consider and act upon directing Town staff to initiate the process to amend Chapter 4, Section 4.2(F) of the Town’s Zoning Ordinance regarding the minimum size of enclosed parking spaces in residential zoning districts. (Z12-0002). (CC) AGENDA Regular Meeting of the Prosper Town Council Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, January 24, 2012 Work Session at 5:30 p.m. Council Meeting at 6:00 p.m. Page 2 of 3 8e. Consider and act upon Resolution No. 12-03 authorizing participation with TexPool/TexPool Prime and designating authorized representatives. (MG) 8f. Consider and act upon the December 2011 monthly financial statements. (MG) 9. 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.) 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 HEARINGS 10. A public hearing to consider and act upon a request to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development- Retail (PD-R). (Z11-0013). (CC) 11. A public hearing to consider and act upon Resolution No. 12-01 entering into an exclusive franchise agreement with IESI for Solid Waste and Recycling Services, authorizing the Town Manager to execute the same. (MG) DEPARTMENT RELATED ITEMS 12. Consider and act upon Ordinance No. 12-02, amending Section 4B of the Comprehensive Parks Ordinance. (WH) 13. Consider appointing a member to the Parks and Recreation Board position. (WH) 14. Consider and act upon the expenditure of Park Improvement Funds for the purchase and installation of a pavilion at Frontier Park. (WH) 15. Consider and act upon Ordinance No. 12-01, amending Section 104.9 (Approved Material and Equipment) of Exhibit “A” of Ordinance Nos. 09-037 and 09-038 (International Residential Code and International Building Code), regarding the construction and maintenance of fences. (WS) Page 3 of 3 16. 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: 16a. Section 551.071. Consultation with Town Attorney regarding Legal issues relating to the First Street/Coit Road Improvement projects. 16b. To reconvene in Regular Session and take any action necessary as a result of the Closed Session. 17. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting. 18. Adjourn CERTIFICATION I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the inside window at the Town Hall of the Town of Prosper, Texas, a place convenient and readily accessible to the general public at all times, and said notice was posted at least 72 hours before said meeting was convened. _________________________________ ________________ ____________________ Amy Piukana, TRMC 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 1 To: Mayor and Town Council From: Matthew B. Garrett, Finance Director CC: Mike Land, Town Manager Re: Town Council Meeting – January 24, 2012 Date: January 19, 2012 Agenda Item: Presentation regarding possible future Water Rate Structures for Phase 3 and Phase 4 Drought Water Restrictions. Description of Agenda Item: Chris Ekrut, with J. Stowe & Company, has assisted Prosper through multiple rate reviews under more normal conditions. Chirs has started running rate models under a few drought scenarios and he will give a broad overview regarding the financial implications to the system of Phase 3 and Phase 4 restrictions. He will give you several different perspectives on the drought, water consumption patterns, and rate strategies to reinforce the conservation efforts. Budget Impact: As this is not an action item, there is no direct effect on the budget. Consumption and rate design during a severe drought could dramatically change system revenues. Staff will continue to monitor projected to actual revenues. Legal Obligations and Review: N/A Attached Documents: N/A Board/Committee Recommendation: None as of yet. Staff anticipates a Finance Committee Meeting to review rate options more extensively in the near future to bring back a recommendation to Council. Town Staff Recommendation: Town staff recommends that the Town Council receive the presentation from Chris Ekrut, discuss the various options and give staff general direction. Prosper is a place where everyone matters. ADMINISTRATION Page 1 of 4 ] Prosper is a place where everyone matters. 1. Call to Order and Roll Call was given by Mayor Smith at 6:00 p.m. Council present included: Mayor Ray Smith, Mayor Pro-Tem Kenneth Dugger, Deputy Mayor Pro Tem Meigs Miller; Dave Benefield, Danny Wilson, Curry Vogelsang Jr. and Jason Dixon. Council Member(s) absent: None Staff present included: Mike Land, Town Manager; Amy Piukana, Town Secretary; Hulon Webb, Director of Development Services; Chris Copple, Planning Director; Wade Harden, Parks & Recreation Manager; Matthew Garrett, Finance Director. 2. Pastor Michael Gilton with St. Paul Church gave the Invocation. The Pledge of allegiance and the pledge to the Texas Flag were given. 3. Announcements of dates and times of upcoming community events – Development Director Hulon Webb announced a public meeting with Tiseo Paving regarding First and Coit Street will be held January 19, 2012 at Rogers Middle School at 6:30 p.m. Parks and Recreation Manager Wade Harden announced that the Trout Derby will be held January 21st at Frontier Park. Planning Director Chris Copple reminded everyone of the upcoming Comprehensive Plan Town Hall Meeting set for February 13, 2012 at Prosper High School beginning at 6:30 p.m. 4. 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.) MINUTES, RESOLUTIONS AND OTHER ITEMS 4a. Consider and act upon minutes from the following Council meeting(s) (AP) • December 13, 2011 – Regular Town Council Meeting 4b. Consider and act upon the November 2011 monthly financial statements. (MG) 4c. Consider and act upon 1) an award of bid to Vessells Construction 2) enter into a contract agreement with Vessells Construction regarding the construction services for the SH 289 Utility Relocations Project and 3) adopt Resolution No. 12-73 authorizing the Town Manager to execute the same. (MB) MINUTES Regular Meeting of the Prosper Town Council Town of Prosper Municipal Chambers 108 W. Broadway, Prosper, Texas Tuesday, January 10, 2012 at 6:00 p.m. Page 2 of 4 Mayor Pro Tem Dugger made a motion to approve Consent Agenda Items 4a, 4b, 4c, as presented. Motion seconded by Deputy Mayor Pro Tem Miller. Motion approved by vote of 7-0. 5. 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.) Other Comments by the Public – There was no one present that wished to speak. 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 HEARINGS 6. A public hearing to consider and act upon a request to rezone 3.0± acres, located 750± feet east of Dallas Parkway and 650± feet south of First Street, from Agricultural (A) to Planned Development-Commercial (PD-C). (Z11-0012). (CC) Planning Director Chris Copple briefed Council regarding the case. Mr. Copple noted that the applicant is requesting five different variances: Side and rear yard setbacks for open storage areas, open storage screening, paving materials in the open storage area, greenhouses, and perimeter landscaping. Property owner Eric Hover briefed Council regarding is intent to develop this site for his Avant-Garde Organics Business, which consists of wholesale distribution of Organic Home and Garden Products, online retail sales, and residential and commercial “Easy Garden” installation and service. Council Member Wilson made a motion to open the Public Hearing. Motion was seconded by Council Member Benefield. Motion approved by vote of 7-0. There was no one present to speak in support and/or opposition to the public hearing. Mayor Pro Tem Dugger made a motion to close the public hearing. Motion seconded by Council Member Wilson. Motion approved by vote of 7-0. After discussion, Deputy Mayor Pro Tem Miller made a motion to approve a request to rezone 3.0± acres, located 750± feet east of Dallas Parkway and 650± feet south of First Street, from Agricultural (A) to Planned Development-Commercial (PD-C). Motion seconded by Council Member Wilson. Motion approved by vote of 7-0. 7. A public hearing to consider and act upon a request to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development-Retail (PD-R). (Z11-0013). (CC) Planning Director Chris Copple briefed Council that the applicant has requested the public hearing be open and extended to the January 24, 2012 Town Council Meeting. Page 3 of 4 Deputy Mayor Pro Tem Miller made a motion to open the Public Hearing. Motion seconded by Council Member Vogelsang. Motion approved by vote of 7-0. There was no one present to speak in support and/or opposition of the public hearing. Mayor Pro Tem Dugger made a motion to extend the public hearing to the January 24, 2012 Town Council Meeting. Motion seconded by Council Member Benefield. Motion approved by vote of 7-0. Agenda Item 8 was pulled from Regular Agenda and moved to Executive Session. EXECUTIVE SESSION Mayor Pro Tem Dugger made a motion to move Agenda Item 8 to Executive Session at 6:28 p.m. and 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: 8. Section 551.072. To deliberate the purchase, exchange, lease, or value of real property regarding park land dedication and park improvement fee requirements for a portion of the Brookhollow Development. 10a. Section 551.071. Consultation with Town Attorney regarding Legal issues relating to the First Street/Coit Road Improvement projects. 10b. Section 551.087. To deliberate regarding Economic Development Incentive for properties located south of Fishtrap/First St., west of Coit Rd., east of FM 1385 and north of Highway 380. 10c. To reconvene in Regular Session and take any action necessary as a result of the Closed Session. Motion seconded by Deputy Mayor Pro Tem Miller. Motion approved by vote of 7-0. Council Member Wilson made a motion to reconvene into Regular Session at 7:05 p.m. Motion seconded by Council Member Vogelsang. Motion approved by vote of 7-0. No action was taken as a result of Executive Session. Council skipped to Agenda Item 9. DEPARTMENT ITEMS 9. Consider and act upon the expenditure of Park Improvement Funds for the purchase and installation of a pavilion at Frontier Park. Mayor Pro Tem Dugger made a motion to table this item to the January 24, 2012 Meeting. Motion seconded by Council Member Wilson. Motion approved by vote of 7-0. Page 4 of 4 Council skipped to Agenda Item 11. 11. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting. Mayor Smith asked staff to bring any proposed amendments recommended by the Parks & Recreation Board to Council. 12. Adjournment – Mayor Pro Tem Dugger made a motion to adjourn at 7:11 p.m. Motion seconded by Deputy Mayor Pro Tem Miller. Motion approved by vote of 7-0. 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, TRMC Town Secretary Date Notice Posted Date Notice 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. APPROVED: ___________________________________ Ray Smith, Mayor ATTEST: _______________________________ Amy M. Piukana, TRMC Town Secretary Page 1 of 1 Prosper is a place where everyone matters. To: Mayor and Town Council From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer CC: Mike Land, Town Manager Re: Town Council Meeting – January 24, 2012 Date: January 15, 2012 Agenda Item: Consider and act upon an Encroachment on Easement Agreement within the limits of the Wilson Creek Sewer Interceptor Project, by and between Oncor Electric Delivery Company and the Town of Prosper. Description of Agenda Item: The Town of Prosper is proposing to construct a twenty-four inch (24”) sewer line which encroaches into the Oncor Electric Delivery Company’s easement within the HRC Ranch, Ltd. property. In order to construct this improvement within the limits of the proposed easement, Oncor Electric Delivery Company and the Town of Prosper must enter into the attached agreement so that the Town of Prosper will have permission to construct, maintain, and operate the proposed twenty-four inch (24”) sewer line within the easement. Budget Impact: There are no funds required. Legal Obligations and Review: The Encroachment on Easement Agreement is a standard Oncor Electric Delivery Company document that has previously been reviewed and approved by the legal department. Attached Documents: The following documentation is being provided for review: • Encroachment on Easement Agreement Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council authorize the Town Manager to execute the Encroachment on Easement Agreement. ENGINEERING Agenda Item No. _ - Page 1 of 1 To: Mayor and Town Council From: Chris Copple, AICP, Planning Director Cc: Mike Land, Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – January 24, 2012 Date: January 19, 2012 Agenda Item: Consider and act upon an ordinance rezoning 3.0± acres, located 750± feet east of Dallas Parkway and 650± feet south of First Street, from Agricultural (A) to Planned Development-Commercial (PD- C). (Z11-0012). Description of Agenda Item: On January 10, 2012, the Town Council approved zoning case Z12-0012, by a vote of 7-0. 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 3.0± acres, located 750± feet east of Dallas Parkway and 650± feet south of First Street, from Agricultural (A) to Planned Development-Commercial (PD-C). Prosper is a place where everyone matters. PLANNING TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-03 AN ORDINANCE AMENDING PROSPER’S ZONING ORDINANCE NO. 05-20; REZONING A TRACT OF LAND CONSISTING OF 3.00 ACRES, MORE OR LESS, SITUATED IN THE COLLIN COUNTY SCHOOL LAND SURVEY, ABSTRACT NO. 147, IN THE TOWN OF PROSPER, COLLIN COUNTY, TEXAS, HERETOFORE ZONED AGRICULTURAL (A) IS HEREBY REZONED AND PLACED IN THE ZONING CLASSIFICATION OF PLANNED DEVELOPMENT-COMMERCIAL (PD-C); DESCRIBING THE TRACT TO BE REZONED; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVING AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (the “Town Council”) has investigated and determined that Zoning Ordinance No. 05-20 should be amended; and WHEREAS, the Town of Prosper, Texas (“Prosper”) has received a request from Prosper Business Park, LP (“Applicant”) to rezone 3.00 acres of land, more or less, situated in the Collin County School Land Survey, Abstract No. 147, in the Town of Prosper, Collin County, Texas; and WHEREAS, the Town Council has investigated into and determined that the facts contained in the request are true and correct; and WHEREAS, all legal notices required for rezoning have been given in the manner and form set forth by law, and public hearings have been held on the proposed rezoning and all other requirements of notice and completion of such zoning procedures have been fulfilled; and WHEREAS, the Town Council has further investigated into and determined that it will be advantageous and beneficial to Prosper and its inhabitants to rezone this property as set forth below. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE 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: Amendments to Zoning Ordinance No. 05-20. Zoning Ordinance No. 05-20 is amended as follows: The zoning designation of the below-described property containing 3.00 acres of land, more or less, situated in the Collin County School Land Survey, Abstract No. 147, in the Town of Prosper, Collin County, Texas, (the “Property”) and all streets, roads and alleyways contiguous and/or adjacent thereto is hereby rezoned as Planned Development-Commercial (PD-C). The property as a whole and the boundaries for each zoning classification are more particularly described in Exhibit “A” attached hereto and incorporated herein for all purposes as if set forth verbatim. The development plans, standards, and uses for the Property in this Planned Development District shall conform to, and comply with 1) the statement of intent and purpose, attached hereto as Exhibit “B”; 2) the planned development standards, attached hereto as Exhibit “C”; 3) the concept plan, attached hereto as Exhibit “D”; 4) and the development schedule, attached hereto as Exhibit “E”, which are incorporated herein for all purposes as if set forth verbatim. Except as amended by this Ordinance, the development of the Property within this Planned Development District must comply with the requirements of all ordinances, rules, and regulations of Prosper, as they currently exist or may be amended. Three original, official and identical copies of the zoning exhibit map are hereby adopted and shall be filed and maintained as follows: a. Two (2) copies shall be filed with the Town Secretary and retained as original records and shall not be changed in any matter. b. One (1) copy shall be filed with the Building Official and shall be maintained up-to-date by posting thereon all changes and subsequent amendments for observation, issuing building permits, certificates of compliance and occupancy and enforcing the Zoning Ordinance. Reproduction for information purposes may from time -to-time be made of the official zoning district map. Written notice of any amendment to this Planned Development District shall be sent to all property owners within two hundred feet (200’) of the specific area to be amended. SECTION 3: No Vested Interest/Repeal. No developer or property owner shall acquire any vested interest in this Ordinance or in any other specific regulations contained herein. Any portion of this Ordinance may be repealed by the Town Council in the manner provided for by law. SECTION 4: Unlawful Use of Premises. It shall be unlawful for any person, firm or corporation to make use of said premises in some manner other than as authorized by this Ordinance, and shall be unlawful for any person, firm or corporation to construct on said premises any building that is not in conformity with the permissible uses under this Zoning Ordinance. SECTION 5: Penalty. Any person, firm, corporation or business entity violating this Ordinance or any provision of Prosper’s Zoning Ordinance No. 05-20, or as amended, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined any sum not exceeding Two Thousand Dollars ($2,000.00). Each continuing day’s violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 6: 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 7: Savings/Repealing Clause. Prosper’s Zoning Ordinance No. 05-20 shall remain in full force and effect, save and except as amended by this or any other Ordinance. All provisions of any ordinance in conflict with this Ordinance are hereby repealed 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 appeal prevent a prosecution from being commenced for any violation if occurring prior to the repealing of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 8: Effective Date. This Ordinance shall become effective from and after its adoption and publications as required by law. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS ON THIS 24th DAY OF JANUARY, 2012. APPROVED AS TO FORM: ______________________________ Ray Smith, Mayor ATTESTED TO AND CORRECTLY RECORDED BY: ____________________________ Amy Piukana, Town Secretary DATE OF PUBLICATION: ____________________________, Prosper Press Exhibit “B” 450 Business Park Drive Prosper, TX 75078 Eric Hover, Owner/Representative Prosper Business Park, LP. Planned Development District Statement of Intent and Purpose Prosper Business Park intends to develop this site to suite the business of Avant-Garde Organics, which consists of wholesale distribution of Organic Home and Garden Products, online retail sales, and residential and commercial “Easy Garden” installation and service. Prosper Business Park also has 6000 square feet in which it leases to commercial tenants. Our intent is to develop the Open Storage area to contain the necessary components of the “Easy Garden” business, establish the final perimeter landscape plan for the property, and to put forth a site that will enhance the Town of Prosper. The emphasis on securing the Open Storage area and providing a visually pleasant appearance by use of landscaping and fencing. All open storage will be well screened from view both from Business Park Drive and neighboring properties. Exhibit "C" Prosper Business Park, LP PD - Commercial District 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 (No. 05-20 as it currently exists or may be amended) and the Town’s Subdivision Ordinance (No. 03-05 as it exists or may be amended) shall apply to the property. 1. COMMERCIAL DISTRICT - Prosper Business Park 1.1 REGULATIONS: A. Size of Yards: 1. Minimum Front Yard: Thirty (30) feet. 2. Minimum Side Yard: A. Five (5) feet for open storage/covered storage areas. B. Fifteen feet (15) for buildings. The minimum side yard setback may be eliminated for attached buildings on separate lots as shown on an approved site plan. C. Thirty (30) feet adjacent to Business Park Drive. D. Ten (10) side yard for west property line. 3. Minimum Rear Yard: A. Five (5) feet for open storage/covered storage areas. B. Fifteen feet (15) for buildings. The minimum side yard setback may be eliminated for attached buildings on separate lots as shown on an approved site plan. B. Size of Lots: 1. Minimum Size of Lot Area: Ten thousand (10,000) square feet. 2. Minimum Lot Width: One hundred (100) feet. 3. Minimum Lot Depth: One hundred (100) feet. C. Maximum Height: Two (2) stories, not greater than forty (40) feet. D. Lot Coverage: Fifty (50) percent. E. Floor Area Ratio: Maximum 0.5:1 1.2 PERMITTED USES: A. Compliance with State and Federal Law: No uses shall be allowed which are prohibited by State law or which operate in excess of State or Federal environment or pollution standards as determined by the U.S. Environmental Protection Agency, Texas Air Control Board, Texas State Department of Health, or the Texas Water Commission, as the case. B. Open Storage: Not more than twenty (20) percent of the lot or tract may be used for the open storage of products such as fertilizer and bagged products, materials such as but not limited to mulch, limited amounts of landscape stone, masonry mortar, trees, shrubs, annuals or fencing, or equipment such as lawn equipment or materials trailers/containers. Live goods such as fruit/citrus trees, vegetable plants, herbs and the like to be stored in hoop and poly or shade cloth greenhouses, all of which shall be screened from adjoining properties or streets. The screening will consist of nine (9) foot tall Architectural Metal fencing on the east, south, and west sides. The screening along the north side of the open storage area shall be integrated into the required screening along the shared property line with Lot 1 (430 Business Park Drive) within two years of ordinance adoption or a nine (9) foot tall Architectural metal fence shall be constructed along the north side of the open storage area. Landscaping to be installed outside the east fence with three (3) Crepe Myrtles, 3 caliper inch and minimum 5 feet in height along the east property line 15 foot landscape set back. Our current dumpster will be placed in the Open Storage Area behind the gate on the west drive and completely screened by the fence. C. High Risk or Hazardous Uses: 1. The uses listed in 1.2(D) below are permitted in the Commercial District, provided that such uses shall not disseminate dust, fumes, gas, noxious odor, smoke, glare, or other atmospheric influence beyond the boundaries of the property on which such use is located and which produces no noise exceeding the average intensity of noise of street traffic at that point and provided that such use does not create fire hazards on surrounding property. 2. "High risk or hazardous” uses are not permitted in the Commercial District. In this section, "high risk or hazardous” use means any use whose operation, in the opinion of the Fire Chief, involves a much higher than average risk to public health and safety. These uses include but are not limited to facilities where significant amounts of radiation, radioactive materials, highly toxic chemicals or substances, or highly combustible or explosive materials are present, used, produced, stored, or disposed of. D. Permitted Uses: The permitted uses on the subject property are those uses allowed under the Commercial District as outlined in the Town’s Zoning Ordinance No. 05-20, as it exists or may be amended with the following addition: · Temporary greenhouses as shown on Exhibit D. 1.3 Paving Materials permitted in open storage area: Gravel, crushed rock and / or four inch concrete shall be permitted paving material in the open storage area located behind all screening and gates. All additional fire lanes shall be constructed of concrete and shall meet the Town of Prosper’s paving standards. 1.4 Perimeter Landscaping: The plan set forth below will serve as our final perimeter landscape plan. A. East Property Line 1. North of North Circle Drive, adjacent to Architectural Metal Fence: Three (3) crepe myrtle’s, minimum 5 feet tall at time of planting, each being three (3) caliper inch, and spaced at a minimum of fifteen (15) feet apart from one another, and 3-5 gallon shrubs planted at a ratio of one shrub for every two feet. 2. Area Between North and South Circle Drive: Five (5) four (4) inch caliper Live Oak trees spaced a minimum of thirty (30) feet on center. 3. South of South Circle Drive: Three (3) four (4) inch caliper Live Oak trees spaced a minimum of thirty (30) feet on center. B. North Property Line: The north property line border contains utilities for town water line to the existing building. No perimeter landscaping is permitted in the utility easement. C. West Property Line: The existing building was constructed 10 foot from the west property line and contains utilities for septic and electric. No perimeter landscaping is permitted in the utility easement. D. South Property Line: Along the southwest property line is the drainage ditch that collects the run off from the concrete drive. Utilities for the existing building’s septic system run along this border as well. No perimeter landscaping is permitted in the utility easement. E. Landscaping: Additional landscaping, south of North Circle Drive, to be planted along the east landscape set back line before the completion of the construction of the future two lane commercial collector (Business Park Drive) or with future build out of the property, whichever comes first. Additional plantings to be at a ratio of one shrub for every two feet of frontage. Irrigation will be installed for the landscaped areas. All requirements for 5 gallon shrubs will be amended to 3-5 gallon shrubs, three (3) feet high at time of planting. Exhibit “E” 450 Business Park Drive Prosper, TX 75078 Eric Hover, Owner/Representative Prosper Business Park, LP. Planned Development District Development Schedule: It is anticipated that the development of the Open Storage will begin within one week after approval and issuance of any or all permits. As the demand grows for additional commercial tenant space we will develop the remaining buildings on the property. It is anticipated that this total build out will occur within the next 10 to 20 years. To: Mayor and Town Council From: Chris Copple, AICP, Planning Director Cc: Mike Land, Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – January 24, 2012 Date: January 19, 2012 Agenda Item: Consider and act upon directing Town staff to initiate the process to amend Chapter 4, Section 4.2(F) of the Town’s Zoning Ordinance regarding the minimum size of enclosed parking spaces in residential zoning districts. (Z12-0002). Description of Agenda Item: Per the Town’s Zoning Ordinance, Town staff is recommending the Town Council direct Town staff to initiate the process to amend Chapter 4, Section 4.2(F) of the Town’s Zoning Ordinance regarding the minimum size of enclosed parking spaces in residential zoning districts. Section 4.2(F) currently requires enclosed parking and stacking spaces in Single Family zoning districts to be a minimum of ten feet (10’) wide and twenty-two feet (22’) long. Town staff is proposing to draft an amendment to the Zoning Ordinance to require enclosed parking and stacking spaces in Single Family zoning districts to be a minimum of nine feet (9’) wide and twenty feet (20’) long. The public hearing to consider and act upon the ordinance amendment would be placed on the February 14th Town Council meeting agenda. Budget Impact: There are no significant budget implications associated with this request. Legal Obligations and Review: Chapter 1, Section 8 of the Zoning Ordinance grants the authority to initiate the process to amend the text in the Zoning Ordinance to the Town Council or the Planning & Zoning Commission. Attached Documents: N/A. Town Staff Recommendation: Town staff recommends the Town Council approve this item to direct Town staff to initiate the process to amend Chapter 4, Section 4.2(F) of the Town’s Zoning Ordinance regarding the minimum size of enclosed parking spaces in residential zoning districts. Prosper is a place where everyone matters. PLANNING Page 1 of 1 To: Mayor and Town Council From: Matthew B. Garrett, Finance Director CC: Mike Land, Town Manager Re: Town Council Meeting – January 24, 2012 Date: January 13, 2012 Agenda Item: Consider and act on a resolution authorizing participation in TexPool/TexPool Prime and designating authorized representatives. Description of Agenda Item: The Town currently only has one authorized employee on TexPool and TexPool Prime accounts. This resolution adds other authorized representatives and authorizes investments in TexPool and TexPool Prime as previously directed by Council. Budget Impact: Though the difference in yield is relatively small and the gap constantly widens and narrows, the ability to shift funds to TexPool Prime will result in higher average returns to the Town’s Investment Portfolio. Legal Obligations and Review: No legal review is required. Attached Documents: Resolution Participation Agreement Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council approve the resolution authorizing participation in TexPool/TexPool Prime and designating authorized representatives. Prosper is a place where everyone matters. Administration TEXPOOL ** **** **** * An Investment Service for Public Funds Resolution Authorizing Participation in the TexPool Investment Pools And Designating Authorized Representatives WhEREAS,Town of Prosper,Texas (“Participant”)is a local government or state agency of the State of Texas and is empowered to delegate to the public funds investment pools the authority to invest funds and to act as custodian of investments purchased with local investment funds; and WhEREAS,it is in the best interest of the Participant to invest local funds in investments that provide for the preservation and safety of principal, liquidity,and yield consistent with the Public Funds Investment Act;and WhEREAS,the Texas Local Government Investment Pools (“TexPool/TexPool Prime”),public funds investment pools,were created on behalf of entities whose investment objectives in order of priority are preservation and safety of principal,liquidity,and yield consistent with the Public Funds Investment Act. NOW THEREFORE,be it resolved as follows: A.That Participant shall enter into a Participation Agreement to establish an account in it’s name in TexPool/TexPool Prime,for the purpose of transmitting local funds for investment in TexPoollTexPool Prime. B.That the individuals,whose signatures appear in this Resolution,are authorized representatives of the Participant and are each hereby authorized to transmit funds for investment in TexPooL’TexPool Prime and are each further authorized to withdraw funds from time to time,to issue letters of instruction,and to take all other actions deemed necessary or appropriate for the investment of local funds. List of the authorized representatives of the Participant.These individuals will be issued P.I.N.numbers to transact business via the phone with a Participant Service Representative. 1.Name:Ron Butler Title:Comptroller Phone/Fax/Email:(P)972-346240 (F)972-346-9335 Email:ron_butIerprospertx.gov Signature: 2.Name:Matthew Garrett Title:Finance Director Phone/Fax/Email:(P)972-36qJal2-3469335 Email:matthewgarrettprospertx.gov Signature: 3.Name:Mike Land Title:Town Manager Phone/Fax/Email:(P)972-346-2640 (F)972-346-9335 Email:mike_landprospertxgov Signature: 4.Name:Amu Piukana Title:Town Secretary Phone/Fax/Email:(P)9-346-2640 (F)9 -346-9335 EmaiIamy_piukana©prospertx.gov Signature: ORIGINALS REQUIRED TEX -ENROLL 5.Name:Title: Phone/Fax/Email: _________________________________________ Signature: _________________________________________________ List the name of the Authorized Representative provided above that will have primary responsibility for performing transactions and receiving confirmations and monthly statements under the Participation Agreement. Name: _____________________________________________________ In addition and at the option of the Participant,one additional authorized representative can be designated to perform inquiry only of selected information.This limited representative cannot make deposits or withdrawals.If the Participant desires to designate a representative with inquiry rights only,complete the following information. 6.Name _________________________________________________ Title _________________________________ Phone/Fax/Email: C.That this resolution and its authorization shall continue in full force and effect until amended or revoked by the Participant,and until TexPoollTexPool Prime receives a copy of any such amendment or revocation. This resolution is hereby introduced and adopted by the Paiticipant at its regular/special meeting held on the Day of January24 ,20 12 NAME OF PARTICIPANT Town of Prosper BY:____________________________________________ Signature Ray Smith Printed Name Mayor -Town of Prosper Title ATTEST: _________________________________ Signature Printed Name Title OFFICIAL SEAL ORIGINALS REQUIRED TEX -ENROLL *********** An Investment Service for Public Funds TexPool Investment Pools Participation Agreement PREAMBLE This participation agreement (the “Agreement”)is made and entered into by and between the Comptroller of Public Accounts (the “Comptroller”),acting through the Texas Treasury Safekeeping Trust Company (the “Trust Company”), Trustee of the Texas Local Government Investment Pool (TexPool)and TexPool Prime,(collectively the “TexPool Investment Pools”),and Town of Prosper,Texas (the “Participant”). WhEREAS,the Interlocal Cooperation Act,TEX GOV’T CODE ANN,ch.791 and the Public Funds Investment Act,TEX.GOV’T CODE ANN.ch.2256 (the “Acts”)provide for the creation of a public funds investment pool to which any local government or state agency may delegate, by contract,the authority to hold legal title as custodian and to make investments purchased with local funds; WHEREAS,the Trust Company is a special purpose trust company authorized pursuant to TEX.GOV’T CODE ANN.§404.103 to receive,transfer and disburse money and securities belonging to state agencies and local political subdivisions of the state and for which the Comptroller is the sole officer,director and shareholder; WHEREAS,TexPool and TexPool Prime are public funds investment pools,which funds are invested in certain eligible investments as more fully described hereafter; WHEREAS,the Participant has determined that it is authorized to invest in a public funds investment pool created under the Acts and to enter into this Agreement; WHEREAS,the Participant acknowledges that the Trust Company is not responsible for independently verif’ing the Participant’s authority to invest under the Acts or to enter this Agreement; WhEREAS,the Participant acknowledges that the performance of TexPool Investment Pools is not guaranteed by the State of Texas,the Comptroller,or the Trust Company and that there is no secondary source of payment for the TexPool Investment Pools; and WHEREAS,in an effort to ensure the continued availability of an investment pooi as a vehicle for investment of local government funds and simultaneously provide for enhancement in services and potential decreases in management and administrative fees,Participant and Trust Company desire to provide in this Agreement that the Trust Company may obtain private professional investment management and related services. NOW THEREFORE,for and in consideration of the mutual promises,covenants and agreements herein contained,the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree with each other as follows: ORIGNALS REQUIRED Page 1 TEX -ENROLL ARTICLE I. DEFINITIONS “Account”shall mean any account or accounts,established by the Participant in TexPool Investment Pools in accordance with this Agreement and the Operating Procedures (as defined herein),which Account represents an undivided beneficial ownership in TexPool Investment Pools. “Authorized Investments”shall mean those investments which are authorized by the Investment Act (as herein defined)for investment of public funds. “Authorized Representative(s)of the Participant”shall mean any individual who is authorized to execute documents and take such other necessary actions under this Agreement as evidenced by the duly enacted Resolution of the Participant. “Authorized Representative(s)of the Trust Company”shall mean any employee of the Comptroller or Trust Company who is designated in writing by the Comptroller or the Trust Company’s Chief Executive Officer to act as the authorized Trust Company representative for purposes of this Agreement and shall include employees of any private entity performing the obligations of the Comptroller under this Agreement. “Board”shall mean the advisory board provided for in the Investment Act (as defined below). “Investment Act”shall mean the Public Funds Investment Act,TEX.GOV’T CODE ANN.ch.2256,as amended from time to time. “Investment Policy”shall mean the written TexPool Investment Pools Investment Policies,as amended from time to time,relating to the investment and management of funds in TexPool Investment Pools as established by the Trust Company consistent with the Investment Act. “Letter of Instruction”shall mean a written authorization and direction to the Trust Company signed by an Authorized Representative of the Participant. “Operating Procedures”shall mean the written procedures established by the Trust Company describing the management and operation of TexPool Investment Pools,and providing for the establishment of,deposits to and withdrawals from the Accounts,as amended from time to time. “Participant”shall mean any entity authorized by the Acts to participate in a public funds investment pool that has executed this Agreement pursuant to a Resolution. “Resolution”shall mean the resolution adopted by the governing body of a local governmental entity authorizing the entity’s participation in TexPool Investment Pools and designating persons to serve as Authorized Representatives of the Participant. ORIGiNALS REQUIRED Page 2 TEX -ENROLL ARTICLE II. GENERAL ADMINISTRATION Section 2.01.TexPool Investment Pools Defined. (a)TexPool Investment Pools are public funds investment pools created pursuant to the Acts. (b)Subject to Section 6.10,the Trust Company agrees to manage the Participant’s Account(s)in accordance with the Investment Act and the Investment Policy. Section 2.02.Board. (a)The Board is composed of members appointed pursuant to the requirements of the Investment Act. (b)The Board shall advise the Trust Company on the Investment Policy and on various other matters affecting TexPool Investment Pools,and shall approve fee increases. Section 2.03.General Administration. (a)The Trust Company shall establish and maintain the Investment Policy specifically identifying the Authorized Investments consistent with the Investment Act and the general policy and investment goals for TexPool Investment Pools. (b)The Trust Company shall establish and maintain the Operating Procedures,describing the management and operation of TexPool Investment Pools and providing for procedures to be followed for the establishment of, deposits to,and withdrawals from the Accounts and such other matters as are necessary to carry out the intent of this Agreement. (c)The Trust Company shall have the power to take any action necessary to carry out the purposes of this Agreement, subject to applicable law and the terms of this Agreement. Section 2.04.Ownership Interest.Each Participant shall own an undivided beneficial interest in the assets of TexPool Investment Pools in an amount proportional to the total amount of such Participant’s Accounts relative to the total amount of all Participants’ Accounts in TexPool Investment Pools,computed on a daily basis. Section 2.05.Independent Audit.TexPool Investment Pools are subject to annual review by an independent auditor consistent with Ch.2256,TEX GOV’T CODE ANN.In addition,reviews of TexPool Investment Pools may be conducted by the State Auditor’s Office and the Comptroller’s office. The Trust Company may obtain such legal, accounting, financial or other professional services as it deems necessary or appropriate to assist TexPool Investment Pools in meeting its goals and objectives. Section 2.06.Liability.Any liability of the Comptroller, the Comptroller’s office,the Trust Company, representatives or agents of the Trust Company,any Comptroller employee, Trust Company or any member of the Board for any loss, damage or claim,including losses from investments and transfers,to the Participant shall be limited to the full extent allowed by applicable laws.The Trust Company’s responsibilities hereunder are limited to the management and investment of TexPool Investment Pools and the providing of reports and information herein required. ORIGINALS REQUIRED Page 3 TEX -ENROLL ARTICLE III. PARTICIPATION REQUIREMENTS Section 3.01.The Participation Agreement.The Participant must execute this Agreement and provide a Resolution authorizing participation in TexPool Investment Pools and designating persons to serve as Authorized Representatives of the Participant and any other documents as are required under,and substantially in the form prescribed by,the Operating Procedures before depositing any funds into TexPool Investment Pools. Section 3.02.Operating Procedures (a)The Participant acknowledges receipt of a copy of the Operating Procedures.The Operating Procedures describe in detail the procedures required for the establishment of accounts,deposits to and withdrawals from TexPool Investment Pools,and related information. (b)The Operating Procedures may be modified by the Trust Company as appropriate to remain consistent with established banking practices and capabilities and when such modification is deemed necessary to improve the operation of TexPool Investment Pools. (c)The Participant hereby concurs with and agrees to abide by the Operating Procedures. ARTICLE IV. INVESTMENTS Section 4.01.Investments.All monies held in TexPool Investment Pools shall be invested and reinvested by the Trust Company or Authorized Representatives of the Trust Company only in Authorized Investments in accordance with the Agreement,the Investment Policy and the Investment Act.Participant hereby concurs with any such investment so made by the Trust Company.Available funds of TexPool Investment Pools that are uninvested may be held at the Trust Company’s account at the Federal Reserve Bank of Dallas,or any designated custodian account,or with a custodian selected by the Trust Company.All investment assets and collateral will be in the possession of the Trust Company and held in its book-entry safekeeping account at the Federal Reserve Bank,any designated custodian account,or with a custodian selected by the Trust Company. Section 4.02.Failed Investment Transaction.In the extraordinary event that a purchase of securities results in a failed settlement,any resulting uninvested funds shall remain in the Trust Company’s Federal Bank of Dallas account, any designated custodian account or with a custodian selected by the Trust Company.If an alternative investment can be secured after the failure of the trade to settle,TexPool Investment Pools will receive all the income earnings, including but not limited to,any compensation from the purchaser failing in the trade and the interest income from the alternative investment. Section 4.03.Investment Earnings and Losses Allocation.All interest earnings in TexPool Investment Pools will be valued daily and credited to the Participant’s Accounts monthly,on a pro rata allocation basis.All losses,if any, resulting from the investment of monies in TexPool shall also be allocated on a pro rata allocation basis.All earnings and losses will be allocated to the Participant’s Accounts in accordance with generally accepted accounting procedures. Section 4.04.Commingling of Accounts.Participant agrees that monies deposited in TexPool and TexPool Prime, may be commingled with all other monies held in TexPool and TexPool Prime,respectively for purposes of common investment and operational efficiency.However,each Participant will have separate Accounts on the books and records of TexPool Investment Pools,as further provided for in the Operating Procedures. ORIGiNALS REQUIRED Page 4 TEX -ENROLL ARTICLE V. FEES,EXPENSES AND REPORTS Section 5.01.Fees and Expenses.The Participant agrees to pay the amount set forth in the fee schedule.Participant agrees that all fees shall be directly and automatically assessed and charged against the Participant’s Accounts.The basic service fee shall be calculated as a reduction in the daily income earned,thus only the net income shall be credited to the Participant’s Account.Fees for special services shall be charged to each Participant’s account as they are incurred or performed.A schedule of fees shall be provided to the Participant annually.Each Participant will be notified thirty (30)days prior to the effective date of any change in the fee schedule. Section 5.02.Reports.A monthly statement will be mailed to the Participant within the first five (5)business days of the succeeding month.The monthly statement shall include a detailed listing of the balance in the Participant’s Accounts as of the date of the statement;all account activity,including deposits and withdrawals;the daily and monthly yield information;and any special fees and expenses charged.Additionally,copies of the Participant’s reports in physical or computer form will be maintained for a minimum of three prior fiscal years.All records shall be available for inspection at all reasonable hours of the business day and under reasonable conditions. Section 5.03.Confidentiality.The Trust Company and any private entity acting on behalf of the Trust Company for purposes of this Agreement will maintain the confidentiality of the Participant’s Accounts,subject to the Public Information Act,TEX GOV’T CODE ANN.ch.552,as amended. ARTICLE VI. MISCELLANEOUS Section 6.01.Notices.Any notices,Letters of Instructions or other information required or permitted to be given hereunder shall be submitted in writing and shall be deemed duly given when deposited in the U.S.mail postage prepaid or successfully transmitted via facsimile addressed to the parties as follows: To the Participant: Participant Name Town of Prosper,Texas Address P.0 Box 307 121 W.Broadway City,State,Zip Prosper,Texas 75078 Telephone 972-346-2640 Fax 942-346-9335 To Trust Company with respect to contractual matters or disputes under this Agreement: Texas Treasury Safekeeping Trust Company Attn:TexPool Investment Pools Rusk State Office Building 208 East 10th Street Austin,TX 78701 Telephone:(512)463-3716 FAX No.:(512)463-0823 ORIGiNALS REQUIRED Page 5 TEX -ENROLL To TexPool Investment Pools with respect to operational matters,including enrollment documents; changes to Authorized Representatives;Bank Information Sheets;initiation of deposits or withdrawals of funds;changes to addresses;audit confirmation requests; and account inquiry: TexPool Participant Services C/O Federated Investors Inc. 1001 Texas Ave.,Suite 1400 Houston,TX 77002 Telephone:1-866-839-7665 (1 -866-TEX-POOL) FAXNo.:1-866-839-3291 (1-866-TEX-FAX1) The Participant and the Trust Company agree to notify the other of any change affecting this information and agree that unless and until so notified,the other party shall be entitled to rely on the last information provided. Section 6.02.Taxpayer Identification Number.The Participant’s taxpayer identification number assigned by the Internal Revenue Service is:7?oooC c(,.The Participant hereby agrees to notify the Trust Company of any change affecting this Taxpayer Identification number and agrees that unless and until so notifies,the Trust Company shall be entitled to rely on same in providing any and all reports or other information necessary or required by the Federal tax laws as amended from time to time. Section 6.03.Severability.If any provision of this Agreement shall be held or deemed to be in fact illegal,inoperative or unenforceable,the same shall not affect any other provision or provisions herein contained or render the ame invalid,inoperative or unenforceable to any extent whatsoever. Section 6.04.Execution of Counterparts.This Agreement may be simultaneously executed in several separate counterparts,each of which shall be an original and all of which shall constitute but one and the same instrument. Section 6.05.Applicable Law.This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.Venue for any dispute under this Agreement shall be in Travis County,Texas. Section 6.06.Captions.The captions or headings in this Agreement are for convenience only and in no way defined, limit or describe the scope or intent of any provisions,articles or sections of this Agreement. Section 6.07.Amendments. (a)The Trust Company shall advise the Participant in writing of any amendments to this Agreement no less than 45 days prior to the effective date of such amendment.The Participant may ratify the proposed amendment of this Agreement by letter to the Trust Company.If the Participant elects not to ratify the amendment,the Participant may terminate this Agreement in accordance with Section 6.08. In the event the Participant fails to respond in writing to a notice of amendment prior to the effective date of such amendment,this Agreement shall be deemed amended. (b)The Trust Company may periodically revise the Operating Procedures from time to time as it deems necessary for the efficient operation of TexPool Investment Pools.The Participant will be bound by any amendment to the Operating Procedures with respect to any transaction occurring subsequent to the time such amendment takes effect,provided,however,that no such amendment shall affect the Participant’s right to cease to be a Participant. Section 6.08.Termination.This Agreement may be terminated by either party hereto,with or without cause,by tendering 30 days prior written notice in the manner set forth in Section 6.01 hereof. Section 6.09.Term.Unless terminated in accordance with Section 6.08,this Agreement shall be automatically renewed on each anniversary date hereof. ORIGINALS REQUIRED Page 6 TEX -ENROLL Section 6.10.Assignment.The Trust Company may enter into an agreement with a third party investment manager to perform its obligations and service under this Agreement,provided that such third party investment manager shall manage TexPool Investment Pools according to the Investment Act,Investment Policy and in a manner consistent with that directed by the Trust Company.The Trust Company also shall have the right to assign its rights and obligations under the Agreement to a third party investment manager if the Trust Company determines that such assignment is in the best interest of the State and Participants.In the event a successor pooi to TexPool or TexPool Prime is deemed by the Trust Company to be in the best interest of the State and the Participant,the Trust Company may take any action it deems necessary to assign its rights and benefits under any third party agreements and transfer the assets from TexPool Investment Pools to any successor pool. In Witness Whereof,the parties hereto have caused this Agreement to be executed as of the dates set forth below,and the Agreement shall be effective as of the latest such date. PARTICIPANT TEXAS TREASURY SAFEKEEPING TRUST COMPANY Comptroller of Public Accounts Signature ____________________________________ Signature _______________________________________ Printed Name Ray Smith Printed Name ________________________________ Title Mayor-Town of Prosper Title ____________________________________________ Date January24,2012 Date _________________________________ CERTIFICATE OF INCUMBENCY The preceding signatory is a duly appointed,acting,and qualified officer of the Participant,who,in the capacity set forth above is authorized to execute this Agreement. IN WITNESS WHEREOF,I have duly executed this certificate as of the day of_________________ 20 Signature _________________________________________ Printed Name ____________________________________ Title ___________________________________________________ OFFICIAL SEAL ORIGINALS REQUIRED Page 7 TEX -ENROLL To: Mayor and Town Council From: Chris Copple, AICP, Planning Director Cc: Mike Land, Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – January 24, 2012 Date: January 19, 2012 Agenda Item: A public hearing to consider and act upon a request to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development-Retail (PD-R). (Z11-0013). History: On January 10, 2012, the Town Council opened and continued the public hearing to the January 24, 2012 Town Council meeting. On April 26, 2005, the Town Council approved a site plan showing a mini-warehouse development on the property (site plan from 2005 is attached). In May 2005, the Town Council adopted a new Zoning Ordinance No. 05-20, which revised several development standards, including setbacks and landscape requirements, and changed the mini-warehouse use from permitted by right in the Commercial District, to permitted with a Specific Use Permit (SUP). Construction commenced in 2006 on the ten buildings along the perimeter of the property and construction stopped in 2010 without any buildings being complete or the construction of improvements being accepted by the Town. All site plans and building permits have since expired and the property has been foreclosed on. The existing ten incomplete buildings on the property are nonconforming structures at this time and mini-warehouse is not a permitted use unless a SUP is granted by the Town or the property is rezoned to a zoning district that allows for mini-warehouse. The applicant is proposing to rezone the property to a Planned Development-Retail District, which would allow for the mini-warehouse use. Description of Agenda Item: The zoning and land use of the surrounding properties are as follows: Zoning Current Land Use Future Land Use Plan North Planned Development-31- Single Family, Planned Development-46-Retail, and Commercial Single Family Residential (Saddle Creek), Minor Automobile Repair (Integrity Car Care), and Office Medium Density Residential and Neighborhood Retail Prosper is a place where everyone matters. PLANNING East Commercial Car Wash and Retail Neighborhood Retail South Single Family-10 Single Family Residential (Preston Lakes) Medium Density Residential West Single Family-10 Single Family Residential (Preston Lakes) Medium Density Residential Requested Zoning – Z11-0013 is a request to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development- Retail (PD-R). The Planned Development regulations are attached. The proposed PD-R District includes several development standards unique to the property due to nature of the existing buildings on the property and the proposed use. The standards that vary from straight Retail zoning are listed below: 1. Permitted Uses – In addition to uses permitted in the Retail District, the applicant is proposing to allow for Mini-warehouse with a Caretaker’s Residence by right. The Planned Development-Retail (PD-R) District eliminates the following uses typically permitted in the Retail District: • Antenna and/or Antenna Support Structure, Commercial • Antenna and/or Antenna Support Structure, Non-Commercial • Assisted Care or Living Facility with a Specific Use Permit • Athletic Stadium or Field, Private with a Specific Use Permit • Athletic Stadium or Field, Public • Auto Parts Sales, Inside • Automobile Paid Parking Lot/Garage • Automobile Repair, Minor • Bed and Breakfast Inn • Beer & Wine Package Sales • Bottling Works • Building Material and Hardware Sales, Major with a Specific Use Permit • Car Wash • Cemetery or Mausoleum with a Specific Use Permit • Civic/Convention Center • College, University, Trade, or Private Boarding School • Commercial Amusement Outdoor with Specific Use Permit • Convenience Store • Day Care Center, Adult • Equipment and Machinery Sales and Rental, Major • Farm, Ranch, Stable, Garden or Orchard • Farmer’s Market • Feed Store • Fraternal Organization, Lodge, Civic Club, Fraternity, or Sorority • Gas Pumps • Golf Course and/or Country Club • Gunsmith • Household Appliance Service and Repair • Laundromat • Mobile Food Vendor • Pet Day Care • Recycling Collection Point • Rehabilitation Care Institution with Specific Use Permit • Restaurant, Drive-In • School District Bus Yard • Sewage Treatment Plant • Small Engine Repair Shop • Stealth Antenna, Commercial • Telephone Exchange • Temporary Building • Trailer Rental with Specific Use Permit • Utility Distribution/Transmission Facility with Specific Use Permit • Water Treatment Plant with Specific Use Permit 2. Side and rear yard setbacks – The applicant is requesting to significantly reduce the building setbacks from the side and rear property lines to allow for the existing buildings to be conforming structures. Straight zoning would require a minimum 15 foot setback from non-residential districts and a 30 foot setback from residential districts. 3. Building Height – The PD-R District allows for a maximum building height of one story or 30 feet, except for the caretaker’s residence, which is two stories, no greater than 40 feet. Straight zoning would allow for a maximum building height of two stories, no greater than 40 feet for all buildings. 4. Exterior Building Materials – The PD-R District allows for all future buildings to be 100% clay fired brick, to match the existing buildings. Straight zoning does not allow for any single material to exceed 80% of an elevation area. 5. Perimeter screening and landscaping – Exhibit C describes unique planting and landscape setback requirements that vary depending on the property boundary. The applicant is proposing the 10 foot landscape setback adjacent to the western property line include shrubs and the walls of the existing buildings serve as the screening wall, in place of a separate masonry wall on the shared property line. The applicant is proposing to plant six foot tall eastern red cedars spaced on 20 foot centers along the southern property line, in place of typical large tree plantings and a masonry screening wall on the shared property line. The applicant is requesting to not be required to construct landscape islands at the terminus of parking aisles internal to the development and not be required to plant landscaping adjacent to non-residential districts. Straight zoning would require a minimum 6 foot masonry wall be constructed along the shared property line adjacent to residential uses, in addition to a 15 foot landscape buffer with large trees planted every 30 feet. Straight zoning would also require landscape islands with a large tree at the terminus of parking aisles and the planting of small trees and shrubs in the landscape setback adjacent to non-residential districts. Town staff recommends the Town Council review the proposed landscaping and screening standards to determine if the applicant’s proposed standards are adequate. Future Land Use Plan – The Future Land Use Plan (FLUP) recommends Neighborhood Retail uses for the property. The proposed Planned Development-Retail District allows for the development of retail, office and service uses. The zoning request conforms to the FLUP. Thoroughfare Plan – The property is adjacent to Prosper Trail, a four lane divided thoroughfare. The zoning exhibit complies with the Thoroughfare Plan. Water and Sanitary Sewer Services – Water and sewer service have been extended to the property. Access – Access to the property is provided from Prosper Trail. Adequate access is provided to the property. Schools – This property is located within the Prosper Independent School District (PISD). It is not anticipated that a school site will be needed on this property. Parks – It is not anticipated that this property will be needed for the development of a park. Environmental Considerations – There is no 100-year floodplain located on the property. Budget Impact: There are no significant budget implications associated with 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, with none in opposition to the request. Attached Documents: 1. Zoning Exhibits A, B, C, D, and E. 2. Expired site plan, approved by the Town Council on April 26, 2005. 3. Zoning map of surrounding area. 4. Public hearing notice reply forms. Planning & Zoning Commission Recommendation: At their January 3, 2012 meeting, the Planning & Zoning Commission recommended the Town Council approve to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development-Retail (PD-R), by a vote of 7-0, subject to: 1. Planting the required six foot tall eastern red cedars in a staggered pattern along the southern property line. 2. Limiting the mini-warehouse hours to no later than 8pm. The applicant has revised Exhibit C to meet both conditional items as recommended by the Planning & Zoning Commission. Town Staff Recommendation: Town staff recommends the Town Council approve a request to rezone 3.5± acres, located on the south side of Prosper Trail, 750± feet west of Preston Road, from Commercial (C) to Planned Development-Retail (PD-R). Exhibit “B” Preston 48 addition, Block A, Lot 6 (1140 E. Prosper Trail) Statement of Intent and Purpose This tract is located within an existing commercial development on the south side of Prosper Trail just west of Preston Road in Prosper, Texas. The tract is formally described as Lot 6, Block A of the Prosper 48 Addition and is approximately 3.5 acres in size. This specific development is a partially completed mini-warehouse development. It is generally located in the southwest corner of the aforementioned existing commercial development. It is situated on the north and east behind neighborhood type commercial uses, such as, a convenience store with fuel sales, automobile lube facility, strip retail buildings and along the south and west sides of Lot 6 there is a single-family residential neighborhood, the Preston Lakes Addition. In general the existing mini-warehouse buildings are separated by a 10-15 foot open space buffer from the rear lot lines of those lots within Preston Lakes immediately adjacent to Lot 6, more specifically Block B, Lots 14- 25 of the Preston Lakes Addition. Currently, this existing mini-warehouse development has never been completed and has never been in operation. The existing buildings are in disrepair, the additional interior 1-story buildings have not been constructed and the perimeter open space areas have not been completed and are not capturing storm water appropriately. Blue Star Land would like to purchase this defunct mini-warehouse development from the financial institution that currently owns it and retrofit this development into a functioning and reputable “use” that fulfills a need in the community provided it can successfully rezone Lot 6 to a Planned Development under the terms and conditions outlined within the PD. The purpose for this Planned Development is to define a new set of development parameters that will resolve both the zoning and development standard violations that exist today. These changes would allow Blue Star Land to purchase the property, bring the development up to standards, repair the existing building, complete the perimeter open space areas, construct the remaining/proposed 1- story interior buildings and change a defunct mini-warehouse development from a source of frustration and concern into a successful conforming use. Exhibit “C” Preston 48 Addition, Block A, Lot 6 December 28, 2011 Dowdey, Anderson & Associates -1- DAA No. 11031 Preston 48 addition, Block A, Lot 6 (1140 E. Prosper Trail) Planned Development Regulations 1.0 General Regulations: 1.1 Except as otherwise set forth in these Planned Development Regulations, the property shall develop under the Retail District (R) standard in the Town’s Zoning Ordinance No. 05-20 as it currently exists or may be amended. 1.2 Definitions used herein shall be the same as those found in the Zoning Ordinance for the Town of Prosper, Texas as it currently exist or may be amended. 2.0 Permitted Uses: 2.1 Proposed land uses followed with an “(S)” are permitted with a Specific Use Permit and uses followed by a “(C)” are permitted subject to the conditional development standards set forth in the Towns’ Zoning Ordinance. The allowable land uses within this Planned Development are as follows: 1. Accessory Building; 2. Administrative, Medical, or Professional Office; 3. Antique Shop and Used Furniture 4. Artisan’s Workshop; 5. Bank, Savings and Loan, or Credit Union; 6. Beauty Salon/Barber shop; 7. Building Material and Hardware Sales, Minor; 8. Business Service; 9. Commercial Amusement, indoor; 10. Community Center; 11. Dry Cleaning, Minor; 12. Day Care, Child, (C); 13. Furniture, Home Furnishing and Appliance Store; 14. Governmental Office; 15. Gymnastics/Dance Studio; 16. Homebuilder Marketing Center; 17. Health/Fitness Center; 18. Hospital; 19. House of Worship; 20. Insurance Office; 21. Locksmith / Security System Company; 22. Mini-warehouse with caretaker’s residence ( Public Access between 6 am-8pm) 23. Massage Therapy, Licensed; 24. Museum /Art Gallery; 25. Municipal Uses (operated by Prosper) 26. Nursery, Minor; 27. Park or Playground; 28. Print Shop, Minor; 29. Private Club (S); 30. Private Recreation Center; 31. Retails Stores and Shops; 32. Retail/Services Incidental Uses; 33. Restaurant or Cafeteria, (C); 34. School, Private or Parochial; 35. School, Public; 36. Theater, Neighborhood; 37. Veterinarian Clinic and/or Kennel, Indoor; Exhibit “C” Preston 48 Addition, Block A, Lot 6 December 28, 2011 Dowdey, Anderson & Associates -2- DAA No. 11031 3.0 Area Regulations: 3.1 Minimum Yard Requirements: a. Min. Front Yard Setback: Thirty (30) feet b. Min. Side Yard Setback: · Five (5) feet adjacent to non-residential districts. The minimum side yard setback may be reduced between retail buildings on separate lots as shown on an approved site plan. Building 10 shall have a one (1) foot set-back. · Ten (10) feet for a 1 story building adjacent to a residential district. c. Min. Rear Yard Setback: · Ten (10) feet to a residential district. 3.2 Minimum Lot Requirements: a. Minimum Lot Area: Ten Thousand (10,000) square feet. b. Minimum Lot Width: Forty (40) feet c. Minimum Lot Depth: One hundred (100) feet. 3.3 Maximum Building Height: a. Buildings , except for Building 1 as shown on Exhibit D, shall be a maximum of one (1) story or Thirty (30) feet in height. Building 1 on Exhibit D shall be a maximum of two (2) stories, no greater than forty (40) feet in height. 3.4 Maximum Lot Coverage: Fifty (50) percent for buildings and accessory structures. 3.5 Floor Area Ratio: Maximum 0.5:1. 4.0 Exterior Building Materials: The existing buildings are 100% masonry (clay fired brick) exclusive of windows and doors. Any future buildings shall be comprised of brick of similar color to provide a compatible and homogenous appearance with the existing masonry buildings. Exhibit “C” Preston 48 Addition, Block A, Lot 6 December 28, 2011 Dowdey, Anderson & Associates -3- DAA No. 11031 5.0 Screening Regulations: 5.1 Land Use Screening: a. A solid masonry wall on the west and south line of Lot 6, Block A of the Prosper 48 Addition is not required. b. Along the west line of Lot 6, for Lots 14-17 within the Preston Lakes Addition, the private wood fences shall be extended to the existing rear building wall and the existing 10 –foot buffer shall be landscaped with shrub and turf. c. Along the south line of Lot 6, for Lots 18-25 within the Preston Lakes Addition, the developer shall plant a minimum of 1-6-foot, eastern red cedar on staggered twenty foot centers along the south line of lot 6 to create a solid green screen and the remainder of the open space north of the green screen shall be turf or native grasses to provide a landscaped buffer between residential and non-residential uses. d. Landscape Islands – internal landscape islands and trees at the terminus of parking aisles internal to the mini-warehouse development are not required. e. Along the north and east line of Lot 6, for Preston 48 Addition Lots 1-5 the 5-foot landscape buffer shall remain as existing turf. Page 1 of 2 To: Mayor and Town Council From: Matthew B. Garrett, Finance Director CC: Mike Land, Town Manager Re: Town Council Meeting – January 24, 2012 Date: January 20, 2012 Agenda Item: A public hearing to consider and act upon Resolution No. 12-01 entering into an exclusive franchise agreement with IESI for Solid Waste and Recycling Services, authorizing the Town Manager to execute the same. Description of Agenda Item: Town staff has been working with IESI on terms for renewing solid waste services as the expiration of one agreement required revisiting contract language and service offerings. With the new agreement, IESI has agreed to increase its fees 5% across the board and hold that rate for three years. Solid waste rates have not been changed for Prosper residents since February 2009, and staff is pleased that we can once again offer some multi-year rate stability on this service. Several service options, such as two monthly bulk services and “green waste” programs will also be discussed for possible inclusion in the IESI agreement. Budget Impact: Unless the rates approved in this agreement are passed on through changing the Town’s fee to customers, the additional expense will create a gap in forecasted revenues and budgeted appropriations. In addition, the new agreement sets a franchise fee on service directly billed by IESI, which has gone uncaptured to date. This will be 5% and applies to any IESI direct-billed service, such as roll-off dumping and compactor customers. Legal Obligations and Review: Our Attorney improved on the coverage types and amounts, but IESI was unable to satisfy the recommendation to only allow an A rated carrier. IESI has insurance from an A- rated carrier and uses A- as its internal quality threshold. Attached Documents: Resolution Agreement Document Additional Service Options Prosper is a place where everyone matters. ADMINISTRATION Page 2 of 2 Board/Committee Recommendation: N/A Town Staff Recommendation: Town staff recommends that the Town Council open the public hearing to receive resident and customer comments on the matter. Town staff recommends that the Town Council “enter into an exclusive franchise agreement with IESI for Solid Waste and Recycling Services, authorizing the Town Manager to execute the same.” TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-01 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY ENTERING INTO AN EXCLUSIVE FRANCHISE AGREEMENT WITH IESI TX CORPORATION FOR THE COLLECTION, HAULING, RECYCLING AND DISPOSAL OF MUNICIPAL SOLID WASTE, CONSTRUCTION AND DEMOLITION WASTE AND RECYCLABLE MATERIALS IN THE TOWN OF PROSPER, TEXAS, AUTHORIZING THE TOWN MANAGER TO EXECUTE THE SAME. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town of Prosper, Texas, hereby grants an exclusive franchise agreement with IESI TX Corporation for the collection, hauling, recycling, and disposal of Municipal Solid Waste, Construction and Demolition Waste, and Recyclable Materials in the Town of Prosper, Texas. SECTION 2: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an exclusive franchise agreement with IESI TX Corporation as hereto attached. SECTION 3: This Resolution shall take effect on February 1, 2012 RESOLVED THIS THE 24th day of January, 2012 by vote of 7-0. _________________________ Ray Smith, Mayor ATTEST TO: _________________________ Amy Piukana, TRMC Town Secretary EXCLUSIVE FRANCHISE AGREEMENT FOR THE COLLECTION, HAULING, RECYCLING AND DISPOSAL OF MUNICIPAL SOLID WASTE, CONSTRUCTION AND DEMOLITION WASTE, AND RECYCLABLE MATERIALS IN THE TOWN OF PROSPER, TEXAS FEBRUARY 1, 2012 1 EXCLUSIVE FRANCHISE AGREEMENT FOR THE COLLECTION, HAULING, RECYCLING AND DISPOSAL OF MUNICIPAL SOLID WASTE, CONSTRUCTION AND DEMOLITION WASTE AND RECYCLABLE MATERIALS IN THE TOWN OF PROSPER, TEXAS STATE OF TEXAS COUNTY OF COLLIN THIS EXCLUSIVE FRANCHISE AGREEMENT (this "Agreement") is made and entered into as of February 1, 2012, by and between IESI TX Corporation, a Texas corporation (the "Service Provider"), and the Town of Prosper, Texas (the "Town"). WHEREAS, the Town, subject to the terms and conditions set forth herein and the ordinances and regulations of the Town, desires to grant to the Service Provider the exclusive franchise, license and privilege to collect, haul and recycle or dispose of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials (as such terms are defined herein) within the Town's corporate limits. NOW, THEREFORE, in consideration of the premises and the mutual promises, covenants and agreements set forth herein, the Service Provider and the Town hereby agree as follows: SECTION 1. DEFINED TERMS. The following terms, as used herein, will be defined as follows: Bulky Item - Any item not measuring in excess of either forty-eight (48) inches in length or fifty (50) pounds in weight, including, but not limited to, refrigerators, stoves, washing machines, water tanks, chairs, couches and other similar household items. Bundles - Items not measuring in excess of either forty-eight (48) inches in length or fifty (50) pounds in weight and which are securely fastened together, including, but not limited to, brush, newspapers and tree trimmings. Business Day - Any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in the Town. Commercial Cart Collect Unit – A small Commercial Unit that utilizes Poly-Carts for the collection of its Municipal Solid Waste and generates no more than three (3) cubic yards of Municipal Solid Waste per week. 2 Commercial Unit - Any non-manufacturing commercial facility that generates and accumulates Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials during, or as a result of, its business, including, but not limited to, restaurants, stores and warehouses. Construction and Demolition Waste - Solid Waste resulting from construction or demolition activities or that is directly or indirectly the by-product of such activities, including, but not limited to, cartons, concrete, excelsior, gypsum board, metal, paper, plastic, rubber and wood products. Construction and Demolition Waste does not include Hazardous Waste, Municipal Solid Waste, Recyclable Materials or Bulky Items. Container - Any receptacle, including, but not limited to, dumpsters, Roll-Offs and Poly-Carts, provided to the Town by the Service Provider and utilized by a Commercial, Industrial or Residential Unit for collecting Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials. Containers are designed to hold between thirty (30) gallons and forty (40) cubic yards of Solid Waste. Hazardous Waste - Waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency (EPA) under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, or so classified by any federal or State of Texas statute, rule, order or regulation. Handicapped Residential Unit - Any residential dwelling that is inhabited by persons, all of whom are physically handicapped to the extent that they are unable to place Municipal Solid Waste or Recyclable Materials at the curbside, and that generates and accumulates Municipal Solid Waste and Recyclable Materials. The identities of the members of a Handicapped Residential Unit shall be certified by the Town and agreed to by the Service Provider. Holidays - The following days: (1) New Year's Day (January 1st) (2) Memorial Day (3) Independence Day (July 4th) (4) Labor Day (5) Thanksgiving Day (6) Christmas Day (December 25th). Industrial Unit - Any manufacturing, mining or agricultural facility that generates and accumulates Municipal Solid Waste, Construction and Demolition Waste, or Recyclable Materials during, or as a result of, its operations. Landfill - Any facility or area of land receiving Municipal Solid Waste or Construction and Demolition Waste and operating under the regulation and authority of the Texas Commission on Environmental Quality ("TCEQ") within the State of Texas, or the appropriate governing agency for landfills located outside the State of Texas. 3 Multi-Family Residential Unit - Any residential dwelling that is designed for, and inhabited by, multiple family units and that generates and accumulates Municipal Solid Waste and Recyclable Materials. Municipal Solid Waste - Solid Waste resulting from or incidental to municipal, community, commercial, institutional or recreational activities, or manufacturing, mining, or agricultural operations. Municipal Solid Waste does not include Construction and Demolition Waste or Hazardous Waste. Recyclable Materials - (a) Newspapers, magazines, and catalogs, and other paper items such as mail, paper bags or other paper; (b) Glass bottles and jars (excluding mirrors, windows, ceramics and other glass products); (c) Metal cans composed of tin, steel or aluminum (excluding scrap metal); and (d) Plastic containers including all varieties of the types designated as #1, #2, #3, #4, #5 and #7. (e) Cardboard and boxboard (thin cardboard such as cereal boxes, shoe boxes and soda cartons). Recycling Container – A Container with sixty-five (65) gallons of capacity and provided by the Service Provider for the collection of Recyclable Materials. Residential Unit - Any residential dwelling that is either a Single-Family Residential Unit or a Multi-Family Residential Unit. Roll-Off - A Container with twenty (20) cubic yards to forty (40) cubic yards of capacity. Poly-Cart - A Container with ninety-five (95) gallons of capacity. Single-Family Residential Unit - Any residential dwelling that is designed for, and inhabited by, a single person or family unit and that generates and accumulates Municipal Solid Waste and Recyclable Materials. Solid Waste - As defined by the EPA under 40 C.F.R. § 261.2(a)(1), or by the State of Texas under the Solid Waste Disposal Act § 361.003(34) whether such waste is mixed with or constitutes Recyclable Materials. 4 White Good - Any item not measuring in excess of either three (3) cubic feet in size or fifty (50) pounds in weight and that is manufactured primarily from metal, including, but not limited to, a bath tub, heater, hot water heater, refrigerator, sink or washer and dryer. SECTION 2. EXCLUSIVE FRANCHISE GRANT. The Town hereby grants to the Service Provider, in accordance with the Town's ordinances and regulations governing the collection, hauling, recycling and disposal of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials, the exclusive franchise, license and privilege to collect, haul and recycle or dispose of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials over, upon, along and across the Town's present and future streets, alleys, bridges and public properties.; provided, however the exclusive franchise, granted herein does not apply to Construction and Demolition Waste removed in accordance with Section 7.D. hereof. In order to maintain the exclusive franchise in favor of the Service Provider contained herein, the Town agrees to take reasonable action against any company, customer or third party infringing upon the exclusive rights of the Service Provider. The Town hereby grants subrogation rights to the Service Provider who may take any and all appropriate legal action against any third party infringing on the Service Provider’s exclusive-franchise rights and the Service Provider shall be entitled to any and all actual and consequential damages. SECTION 3. OPERATIONS. A. Scope of Operations. It is expressly understood and agreed that the Service Provider will collect, haul and recycle or dispose of all Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials (as provided herein) (i) generated and accumulated by Commercial, Industrial and Residential Units, and (ii) placed within Containers by those Commercial, Industrial and Residential Units receiving the services of the Service Provider (or otherwise generated and accumulated in the manner herein provided by those Commercial Units, Industrial Units and Residential Units), all within the Town's corporate limits, including any territories annexed by the Town during the term of this Agreement (the "Services"). B. Nature of Operations. The Town hereby grants to the Service Provider, in accordance with the Town's ordinances and regulations governing the collection, hauling and recycling or disposal of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials, the title to all Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials collected, hauled and recycled or disposed of by the Service Provider over, upon, along and across the Town's present and future streets, alleys, bridges and public properties. All title to and liability for materials excluded from this Agreement shall remain with the generator of such materials. SECTION 4. SINGLE-FAMILY RESIDENTIAL UNIT COLLECTIONS. A. Single-Family Residential Units. The Service Provider will collect Municipal Solid Waste and Recyclable Materials from Single-Family Residential Units once per week; provided, that (i) such Municipal Solid Waste and Recyclable Materials are placed in Containers provided 5 by the Service Provider, and (ii) such Containers are placed within five (5) feet of the curbside or right of way adjacent to the Single-Family Residential Unit no later than 7:00 a.m. on the scheduled collection day. B. Excess or Misplaced Municipal Solid Waste. The Service Provider shall only be responsible for collecting, hauling and recycling or disposing of Municipal Solid Waste and Recyclable Materials placed inside the Containers provided by the Service Provider. Municipal Solid Waste and Recyclable Materials in excess of the Containers’ limits, or placed outside or adjacent to the Containers, will not be collected by the Service Provider. However, such excess or misplaced Municipal Solid Waste and Recyclable Materials may be collected on occasion and within reason due to Holidays or other extraordinary circumstances as determined by the Service Provider in its sole discretion. If the excess or misplaced Municipal Solid Waste and/or Recyclable Materials continues, the Town shall require the Single-Family Residential Unit to utilize an additional Container so that the excess or misplaced Municipal Solid Waste and/or Recyclable Materials will be regularly contained. The Service Provider shall be compensated for these additional Services as provided for in Section 10.A. hereto. C. Handicapped Residential Units. Notwithstanding anything to the contrary contained herein, the Service Provider agrees to assist Handicapped Residential Units with house-side collection of their Containers; provided, that the Service Provider receives prior written notice from the Handicapped Residential Unit of such special need. The Town shall be solely responsible for all other modifications and accommodations required by the Americans with Disabilities Act or any other applicable law or regulation in connection with the services provided hereunder to Single-Family Residential Units. SECTION 5. COMMERCIAL CART COLLECT UNIT COLLECTIONS A. Commercial Cart Collect Units. The Service Provider will collect Municipal Solid Waste and Recyclable Materials from Commercial Cart Collect Units once per week; provided, that (i) such Municipal Solid Waste and Recyclable Materials are placed in Containers provided by the Service Provider, and (ii) such Containers are placed within five (5) feet of the curbside or right of way adjacent to the Commercial Cart Collect Unit no later than 7:00 a.m. on the scheduled collection day. B. Excess or Misplaced Municipal Solid Waste. The Service Provider shall only be responsible for collecting, hauling and recycling or disposing of Municipal Solid Waste and Recyclable Materials placed inside the Containers provided by the Service Provider. Municipal Solid Waste and Recyclable Materials in excess of the Containers’ limits, or placed outside or adjacent to the Containers, will not be collected by the Service Provider. If the excess or misplaced Municipal Solid Waste and/or Recyclable Materials continues, the Town shall require the Commercial Cart Collect Unit to utilize an additional Container so that the excess or misplaced Municipal Solid Waste and/or Recyclable Materials will be regularly contained. The Service Provider shall be compensated for these additional Services as provided for in Section 10.B. hereto. Commercial Units generating Municipal Solid Waste in excess of three (3) cubic 6 yards per week will be required to utilize the Service Provider’s Commercial services contained in Section 6 hereof. SECTION 6. COMMERCIAL, INDUSTRIAL AND MULTI-FAMILY RESIDENTIAL UNIT COLLECTIONS. The Service Provider will collect Municipal Solid Waste and Recyclable Materials from Commercial, Industrial and Multi-Family Residential Units, as provided for in Section 10.C. hereof. The Service Provider shall only be responsible for collecting, hauling and recycling or disposing of Municipal Solid Waste and Recyclable Materials placed inside the Containers provided by the Service Provider. However, the Service Provider shall be obligated to offer and provide sufficient service to Commercial, Industrial and Multi-Family Residential Units, and to increase or decrease, as necessary, the frequency of collection and the size or number of Containers so that Commercial, Industrial or Multi-Family Units' Municipal Solid Waste and Recyclable Materials will be regularly contained. The Service Provider shall be compensated for these additional Services as provided for in Section 10.C. hereof. The parties acknowledge and agree that the Service Provider shall not be responsible for damage to any private pavement or accompanying sub-surface of any route reasonably necessary to perform the Services herein contracted and that the Commercial, Industrial or Multi-Family Residential Unit assumes all liabilities for damage to pavement or road surface. The Service Provider shall provide recycling services to the Commercial, Industrial and Multi-Family Residential Units that choose to participate in the Town’s recycling program and are located in downtown Prosper adjacent to residential collection routes. The Service Provider shall comply with the Town ordinance requiring enclosure doors to be shut at all times, such that the Service Provider’s representative providing the Services to any Commercial, Industrial or Multi-Family Residential Unit will shut enclosure doors prior to leaving any such property. SECTION 7. SPECIAL COLLECTIONS AND SERVICES. A. Municipal Locations. The Service Provider will provide, at no cost to the Town, Containers to collect Municipal Solid Waste at the following municipal locations within the Town once per week: Prosper Fire Station Prosper Police Department Public Works Town Hall Town of Prosper – Town Yard Town of Prosper Development Services Town of Prosper Water Supply Additionally, the Service Provider will provide, at no cost to the Town, a reasonable number of Containers to collect Municipal Solid Waste and Recyclable Materials from any future facilities owned and operated by the Town. 7 B. Clean-Up Events. In addition, the Service Provider will provide, at no cost to the Town, and aggregate maximum of ten (10) thirty-yard Roll-Offs to collect Municipal Solid Waste at the Town’s clean-up events; provided, that the Town gives the Service Provider reasonable prior written notice of the date of such special event. For any additional Roll-Offs requested by the Town for such events, the Service Provider shall charge the Town in accordance with Section 10.F. hereof. C. Roll-Off Services. The Service Provider shall be the exclusive provider of Roll-Off Containers within the Town. The Service Provider shall provide Roll-Off Service to any persons or entities located within the Town’s limits and requesting such service. Roll-Off Services shall be in accordance with the terms and conditions agreed to by the Service Provider and the requesting party; provided, that the Roll-Off Services does not conflict with any Town ordinance or policy. At a minimum, the Roll-Off Services provided by the Service Provider shall consist of: (i) the delivery and placement of the Roll-Off, (ii) the collection and hauling of the Roll-Off, and (iii) the disposal of the Solid Waste placed in the Roll-Off (the “Roll-Off Services”). The Service Provider shall be compensated for the Roll-Off Services in accordance with the rates listed in Section 10.F., hereof. D. Contractor Removal of Construction and Demolition Waste. Notwithstanding the above Section 7.C., it is understood and agreed that a construction contractor may haul and dispose of Construction and Demolition Waste from a construction or remodel job located within the Town’s corporate limits that it was hired to perform; provided, that the construction contractor uses its own equipment for the storage, hauling and disposal of such Construction and Demolition Waste. Nothing in this Section 7.D. shall allow a third party to hire or subcontract for Roll-Off Services in violation of Section 7.C. hereof. E. Town Educational Literature. Each calendar quarter the Service Provider will provide the Town with an electronic copy of educational literature that will include things such as holiday schedules, route or service changes, community events, general service tips/guidelines, recycling education, new programs, service updates, and any other pertinent information regarding the details of services provided to the Town. This educational literature will be given electronically to the Town for its dissemination to Town businesses and residents. The Service Provider shall not be responsible for any further distribution of such educational literature. SECTION 8. BULKY ITEMS AND BUNDLES. A. Pre-Arranged Collections. The Service Provider will collect Bulky Items and Bundles from Single-Family Residential Units on the fourth Saturday of each month; provided, that (i) the Single-Family Residential Units requiring such collections notify the Service Provider no later than 4:00 p.m. of the Friday prior to the scheduled collection day, and (ii) the Bulky Items or Bundles (A) are placed at the curbside no later than 7:00 a.m. on the scheduled collection day, (B) are reasonably contained, and (C) do not exceed two (2) cubic yards in total volume or have any individual item exceeding fifty (50) pounds in weight. The Service Provider shall only be responsible for collecting, hauling and recycling or disposing of Bulky Items and Bundles at the rate contained in Section 10.A. herein, from those Single-Family Residential Units that have 8 complied with Section 1 and this Section 8.A. In the event a Single-Family Residential Unit places Bulky Items and/or Bundles out for collection in excess of two (2) cubic yards in total volume on the regularly scheduled Bulky Item/Bundle collection day, the Service Provider shall collect such excess Bulky Items and Bundles for an additional charge in accordance with the rates contained in Section 10.E. hereof. Additionally, Single-Family Residential Units may schedule an additional collection(s) of Bulky Items and/or Bundles with the Service Provider on dates other than the regularly scheduled Bulky Item/Bundle collection day for an additional charge in accordance with the rates contained in Section 10.E. hereof. White Goods containing refrigerants will not be collected by the Service Provider unless such White Goods have been certified in writing by a professional technician to have had all such refrigerants removed. B. Negotiated Collections. It is understood and agreed that the service provided under Section 8.A. does not include the collection of Bulky Items and Bundles comprised of Construction and Demolition Waste, White Goods or any materials resulting from remodeling, general property clean-up or clearing of property for the preparation of construction. However, the Service Provider may negotiate an agreement on an individual basis with the owner or occupant of a Single-Family Residential Unit regarding the collection of such items by utilizing the Service Provider's Roll-Off Services. SECTION 9. TITLE TO EQUIPMENT. Notwithstanding anything to the contrary contained herein, it is expressly understood and agreed that all equipment, including, but not limited to, Containers, provided by the Service Provider in connection with the Services, shall at all times remain the property of the Service Provider. On an annual basis, the Service Provider will conduct a Container audit, of both Poly-Carts and Recycling Containers, and submit the results of such audit to the Town for review. SECTION 10. RATES AND FEES. Subject to adjustment, as provided in Section 11 hereof, the rates and fees to be charged and received by the Service Provider are as follows: A. Single-Family Residential Unit Services. For the Services provided to Single-Family Residential Units under Section 4.A. hereof, the Service Provider shall charge (i) $ 7.57 per month for each Single-Family Residential Unit utilizing one Poly-Cart, plus (ii) $ 2.49 per month for each Single-Family Residential Unit utilizing one Recycling Container, plus (iii) $ 4.20 per month for each additional Poly-Cart utilized by such Single-Family Residential Unit, plus (iv) $ 1.07 per month for each additional Recycling Container utilized by such Single-Family Unit. These rates apply to all Single-Family Residential Units that are located within the Town's corporate limits and billed by the Town for utility services. B. Commercial Cart Collect Unit Services. For the Services provided to Commercial Cart Collect Units under Section 5.A. hereof, the Service Provider shall charge the following (i) $ 16.67 per month for each Commercial Cart Collect Unit utilizing one Poly-Cart, plus (ii) $ 22.17 per month for each Commercial Cart Collect Unit utilizing two (2) Poly-Carts, plus (iii) $11.11 9 per month for each additional Poly-Cart in excess of two (2) Poly-Carts utilized by such Commercial Cart Collect Unit. These rates apply to all Commercial Cart Collect Units that are located within the Town's corporate limits. C. Commercial, Industrial and Multi-Family Residential Unit Municipal Solid Waste Services. For the Services provided to Commercial, Industrial and Multi-Family Residential Units under Section 6 hereof, the Service Provider shall charge per month for each Non- compacted Container utilized for the collection of Municipal Solid Waste the following rates: 2012 Non-Compacted Container Rates Container Size One Collection a Week Two Collection s a Week Three Collection s a Week Four Collection s a Week Five Collections a Week Six Collections a Week 3 Yards $ 60.67 $ 106.18 N/A N/A N/A N/A 4 Yards $ 72.35 $ 112.01 N/A N/A N/A N/A 6 Yards $ 89.84 $ 157.53 $ 225.05 $ 379.31 $ 474.14 $ 568.96 8 Yards $ 115.53 $ 192.54 $ 308.06 $ 505.74 $ 632.18 $ 758.62 10 Yards $ 144.41 $ 232.21 $ 389.70 $ 632.18 $ 790.23 $ 948.27 For any collection that the Service Provider is required to make in excess of the above weekly figures, the Service Provider shall charge the following additional rates per additional collection, per Container: Size of Container Each Additional Collection 3 Yards $ 30.00 4 Yards $ 35.00 6 Yards $ 40.00 8 Yards $ 45.00 10 Yards $ 50.00 For the Services provided to Commercial, Industrial and Multi-Family Residential Units under Section 6 hereof, the Service Provider shall charge per month for each compactor utilized for the collection of Municipal Solid Waste the following rates: 10 2012 Compactor Rates SIZE Rate/Pickup* 2 Yard $82.20 *Equates to 8 yd 1 x wk 4 Yard $119.40 *Equates to 8 yd 2 x wk 6 Yard $156.60 *Equates to 8 yd 3 x wk 8 Yard $193.80 *Equates to 8 yd 4 x wk 20 Yard $360.00 *Haul Rate includes 4 Tons - Each Additional = $33/ Ton 30 Yard $360.00 *Haul Rate includes 4 Tons - Each Additional = $33/ Ton 32 Yard $360.00 *Haul Rate includes 4 Tons - Each Additional = $33/ Ton 42 Yard $360.00 *Haul Rate includes 4 Tons - Each Additional = $33/ Ton The foregoing rates apply to all Commercial, Industrial and Multi-Family Residential Units that are located within the Town's corporate limits and billed by the Town for utility services. D. Commercial, Industrial and Multi-Family Residential Unit Recycling Services. For the recycling services provided to Commercial, Industrial and Multi-Family Residential Units under Sections 5 and 6 hereof, the Service Provider shall charge (i) $ 2.49 per month for each Commercial, Industrial or Multi-Family Residential Unit utilizing one Recycling Container, plus (ii) $ 1.07 per month for each additional Recycling Container utilized by such Commercial, Industrial or Multi-Family Residential Unit. Such rates shall only apply to such Commercial, Industrial, and Multi-Family Residential Units who have chosen to participate in the Town’s recycling program. E. Additional Bulky Item/Bundle Services. For the additional Bulky Item and/or Bundles Services provided to Single-Family Residential Units under Section 8.A. hereof the Service Provider shall charge the following fees: For each collection of excess Bulky Items and/or Bundles from a Single-Family Residential Unit on the Service Provider’s regularly scheduled Bulky Item/Bundle collection day the Service Provider shall charge $25.00 per cubic yard for each cubic yard of Bulky Items and/or Bundles collected in excess of two (2) cubic yards from such Single-Family Residential Unit. For each collection of excess Bulky Items and/or Bundles from a Single-Family Residential Unit not on the Service Provider’s regularly scheduled Bulky Item/Bundle collection day the Service Provider shall charge (i) $95.00, plus (ii) $100.00 per cubic yard for each cubic yard of Bulky Items and/or Bundles collected from such Single-Family Residential Unit. *The cubic yardage calculation will be based on an estimate provided by a supervisor employed by the Service Provider. 11 F. Roll-Off Services. Subject to adjustment by the Service Provider in its sole discretion, for the Services provided under Sections 7.C., 8.B. and 12 hereto, the Service Provider shall charge for each Roll-Off utilized the following fees: Delivery Fee $ 65.00 Rental Fee $ 3.00 per day Haul Fee $ 345.00 (includes up to 4 tons) Disposal Fee $ 33.00 per each additional ton in excess of 4 tons The Service Provider will enter into agreements with each Commercial, Industrial or Residential Unit on an individual basis regarding the Roll-Off Services to be provided. The Roll-Off Services will be billed directly to such Commercial, Industrial or Residential Unit and will be collected by the Service Provider. The Roll-Offs provided pursuant to this Section 10.E. must be located within the Town in accordance with Town ordinances and policies. SECTION 11. RATE ADJUSTMENT. A. CPI-U Adjustment. Beginning on February 1, 2015, and on each February 1 thereafter, the Service Provider shall have the right, in its sole discretion and upon giving sixty (60) days prior notice to the Town, to increase or decrease the rates set forth in Section 10 hereof (the "Initial Rates") in accordance with the CPI-U. As used herein, "CPI-U" shall mean the revised Consumer Price Index rate for all urban consumers (all items included) for the nearest available metropolitan area, based on the latest available figures from the Department of Labor's Bureau of Labor Statistics (the "Bureau"). The CPI-U used will be the CPI-U published by the Bureau during the month ninety (90) days preceding the adjustment under this Section 11.A. The amount of the increase or decrease under this Section 11.A. shall be equal to seventy-five percent (75%) of what the CPI-U has increased or decreased over the previous twelve (12) month period. B. Operating Cost Adjustment. In addition to the rate adjustments provided for in Section 11.A., at any time during the term of this Agreement, the Service Provider may petition the Town for additional rate and price adjustments at reasonable times on the basis of material or unusual changes in its cost of operations not otherwise the basis of any other rate adjustments herein. At the time of any such petition, the Service Provider shall provide the Town with documents and records in reasonable form and sufficient detail to reasonably establish the necessity of any requested rate adjustment. The Town shall not unreasonably withhold, condition or delay its consent to any requested rate increase. In the event the Town fails or refuses to consent to any such requested rate increase and the Service Provider can demonstrate that such rate increase is necessary to offset the Service Provider’s increased costs in connection with performing the services under this Agreement not otherwise offset by any previous rate adjustments hereunder, the Service Provider may, in its sole discretion, terminate this Agreement upon ninety (90) days written notice to the Town. C. Landfill Cost Adjustment. The parties acknowledge that the Municipal Solid Waste and Construction and Demolition Waste covered by this Agreement will be disposed of by the Service Provider at a Landfill(s) chosen by the Service Provider in its sole discretion (the "Initial 12 Landfill(s)"). In the event that the Service Provider is unable to use the Initial Landfill(s) due to reasons out of its control, the Service Provider (i) shall have the right, in its sole discretion, to dispose of the Municipal Solid Waste and Construction and Demolition Waste covered by this Agreement at another Landfill of its choosing, and (ii) shall have the right, upon giving prior notice to the Town, to increase the Initial Rates by an amount equal to the sum of (x) the amount, if any, that the disposal fees charged to the Service Provider at such other Landfill exceed those previously charged to the Service Provider at the Initial Landfill(s), and (y) the amount, if any, that the transportation costs incurred by the Service Provider in connection with transporting the Municipal Solid Waste and Construction and Demolition Waste to such other Landfill exceed those that would have been incurred by the Service Provider if such Municipal Solid Waste and Construction and Demolition Waste was transported to the Initial Landfill(s). D. Governmental Fees. The parties acknowledge that the rates herein include all applicable fees, taxes or similar assessments incurred under federal, state and local laws, rules and ordinances (excluding sales taxes and taxes imposed on income) (the “Fees”). The parties acknowledge and understand that the Fees may vary from time to time, and, in the event any of such Fees are increased or additional Fees are imposed subsequent to the effective date of this Agreement, the parties agree that the rates herein shall be immediately increased by the amount of any such increase in Fees or additional Fees. E. Fuel Adjustment. The Service Provider shall adjust all the rates herein bi-annually for any six-month period beginning on August 1 and February 1 (each, an “Adjustment Date”) in which the average price of diesel fuel during the six-month period immediately preceding such Adjustment Date (“Averaging Period”) exceeded $2.00 per gallon (the “Base Price”). The average price of diesel fuel will be determined by reference to the U.S. Energy Administration / Department of Energy (“Department of Energy”) published price for diesel fuel – gulf coast region. The following website (or any successor website) will be the source for such information: http://www.eia.gov/oog/info/wohdp/diesel_detail_report_combined.asp. The average price of diesel fuel for each Averaging Period (each, a “Bi-Annual Average Price”) shall be the average of the weekly fuel prices published for each week during such Averaging Period. The fuel cost adjustment for any six-month period following each applicable Adjustment Date (each, a “Fuel Cost Adjustment”) shall be calculated in accordance with the formulas below. In the event the Bi-Annual Average Price is greater than the Base Price, the Fuel Cost Adjustment shall be an upward adjustment to all rates herein. In the event the Bi-Annual Average Price is less than the Base Price, the Fuel Cost Adjustment shall be a downward adjustment to all rates herein. Each Fuel Cost Adjustment shall be effective for the six-month period immediately following the Averaging Period for which such Fuel Cost Adjustment was determined. FORMULA FOR SINGLE-FAMILY RESIDENTIAL UNITS (EXCLUDING ROLL-OFF/COMPACTORS) Hours/week X # of routes X 4.3 weeks/month X 4 gals/hour X (Bi-Annual Average Price – Base Price) Number of Single-Family Residential Units 13 Example: Assume that on February 1 the average price of diesel fuel for the Averaging Period beginning on August 1 and ending on January 31 was $3.65 per gallon (Bi-Annual Average Price) and that the Service Provider used one (1) route for the collection of 1200 Single-Family Residential Units and that it took an average of 24 hours of driving each week for the Service Provider to finish the route. 24 X 1 X 4.3 X 4 X (3.65 – 2.00) 1200 Fuel Cost Adjustment per Single-Family Residential Unit = $0.57 per month, for the six-month period beginning February 1 and ending on July 31. FORMULA FOR COMMERCIAL, INDUSTRIAL AND MULTI-FAMILY UNITS (EXCLUDING ROLL-OFF/COMPACTORS) Hours/week X # of routes X 4.3 week/month X 4 gals/hour X (Bi-Annual Average Price – Base Price) Number of Commercial, Industrial, and Multi-Family Residential Units Example: Assume that on February 1 the average price of diesel fuel for the Averaging Period beginning on August 1 and ending on January 31 was $3.65 per gallon (Bi-Annual Average Price) and that the Service Provider used one (1) route for the collection of 50 Commercial, Industrial and Multi-Family Residential Units and that it took an everage of 4 hours of driving each week for the Service Provider to finish the route. 4 X 1 X 4.3 X 4 X (3.65 – 2.00) 50 Fuel Cost Adjustment per Commercial, Industrial, and Single-Family Unit = $2.27 per month, for the six-month period beginning February 1 and ending on July 31. FORMULA FOR ROLL-OFFS AND COMPACTORS Hours/haul X 4 gals/hour X (Bi-Annual Average Price – Base Price) Example: Assume that on February 1 the average price of for diesel fuel for the Averaging Period beginning on August 1 and ending on January 31 was $3.65 per gallon (Bi-Annual Average Price) and that the Service Provider hauled one (1) Roll-Off and that it took 2 hours of driving for the Service Provider to do the haul. 2 X 4 X (3.65 - 2.00) Fuel Cost Adjustment per Roll-Off/Compactor = $13.20 per haul In the event that the Department of Energy stops reporting the average weekly price of diesel fuel during the term of this Agreement, then the Bi-Annual Average Price shall be the average weekly price of diesel fuel paid by the Service Provider for each week during such Averaging Period. 14 SECTION 12. EXCLUSIONS. Notwithstanding anything to the contrary contained herein, this Agreement shall not cover the collection, hauling, recycling or disposal of any Hazardous Waste, animal or human, dead animals, auto parts, used tires, concrete, dirt, gravel, rock or sand from any Container provided by the Service Provider located at any Commercial, Industrial or Residential Unit; provided, however, that the Service Provider and the owner or occupant of a Commercial, Industrial or Residential Unit may negotiate an agreement on an individual basis regarding the collection, hauling or disposal of Construction and Demolition Waste, auto parts, used tires, concrete, dirt, gravel, rock or sand by utilizing the Service Provider's Roll-Off Services. SECTION 13. TERM OF AGREEMENT. The term of this Agreement shall be for a period of five (5) years, commencing on February 1, 2012 and concluding on January 31, 2017. At the expiration of the term of this Agreement, the Agreement may be extended by the parties upon mutual written agreement. SECTION 14. ASSIGNMENT. This Agreement shall not be assignable or otherwise transferable by the Service Provider without the prior written consent of the Town; provided, however, that the Service Provider may assign this Agreement to any direct or indirect affiliate or subsidiary of the Service Provider or to any person or entity succeeding to all or substantially all of the Service Provider’s assets (whether by operation of law, merger, consolidation or otherwise) without the Town’s consent. SECTION 15. ENFORCEMENT. During the term of this Agreement and any extension thereof, the Town agrees to adopt and maintain ordinances and revise existing ordinances so as to enable the Service Provider to provide the Services set forth herein. The Town shall take any action reasonably necessary to prevent any other solid waste collection company from conducting business in violation of the exclusive franchise granted herein. If the Service Provider experiences recurring problems of damage or destruction to or theft of the Containers provided by the Service Provider pursuant to this Agreement, the Service Provider may, prior to replacing or repairing such Containers, require security deposits from the Commercial, Industrial or Residential Units utilizing such Containers. To the maximum extent allowed by applicable law, the Town also hereby grants to the Service Provider the right of ingress and egress from and upon the property of Commercial, Industrial and Residential Units for the purposes of rendering the Services contemplated hereby. SECTION 16. PROCESSING, BILLING AND FEES. A. Monthly Statement. On a monthly basis, the Service Provider agrees to bill the Town the rates and fees charged under Sections 10 and 11 hereto for all Commercial, Industrial and Residential Units possessing active utility accounts within the Town's corporate limits, as well as for all other Commercial, Industrial and Residential Units requiring the collection, hauling and 15 disposal of Municipal Solid Waste within the Town's corporate limits (the "Monthly Statement") on or before the last day of the month for which such Services were provided, commencing on February 29, 2012. Thereafter, the Town will remit to the Service Provider in arrears an amount equal to such Monthly Statement. Such remittance shall be made by the Town on or before the 20th day of each month commencing on March 20, 2012. Along with each monthly remittance, the Town shall provide the Service Provider with a report indicating the service type, size, location, and rate for Commercial Units and Industrial Units, as well as the number and rate of Residential Units which have been billed for that month. The Town shall be solely responsible for billing and collecting such rates and fees from all Commercial, Industrial and Residential Units possessing active utility accounts within the Town's corporate limits, as well as from all other Commercial, Industrial and Residential Units requiring the collection, hauling and disposal of Municipal Solid Waste within the Town's corporate limits. Nothing herein shall prohibit the Town from collecting sums in addition to those sums called for herein. B. Taxes. In addition to the amounts billed and collected by the Town under Section 16.A., the Town shall also be responsible for billing, collecting and remitting/paying any and all sales, use and service taxes assessed or payable in connection with the Services. The Service Provider shall be responsible for billing, collecting and remitting/paying any and all sales, use and service taxes assessed or payable in connection with the Roll-Off Services. C. Bad Debt; Unpaid Rates/Fees. The Town agrees that payments owing to the Service Provider pursuant to this Agreement shall be based solely on the Services rendered by the Service Provider. The Service Provider shall not be held responsible for the collection of "bad debt" billed by and owed to Town for the Services, nor shall the Service Provider be penalized for Services rendered that remain unpaid by any Commercial, Industrial Unit. D. Billings for Roll-Off Services. Notwithstanding the above, the Service Provider will bill and collect (i) the rates charged under Sections 10.C. and 10.F. from all Residential, Commercial and Industrial Units for services performed with respect to Roll-Off Services (the “Roll-Off Billing”), plus (ii) an amount equal to five percent (5%) of the Roll-Off Billing, plus (iii) any applicable sales, use and service taxes. F. Franchise Fee. On a calendar quarterly basis, the Service Provider shall remit to the Town an amount equal to five percent (5%) of the gross receipts collected by the Service Provider from the Roll-Off Billing for the immediately preceding quarter’s Roll-Off Billing (the “Roll-Off Franchise Fee”). The Roll-Off Franchise Fee shall be remitted to the Town in arrears on a calendar quarterly basis, beginning on or before the April 15, 2012. The initial remittance to the Town for the Franchise Fee shall only be for the months of February and March, 2012, such as to put the Service Provider on schedule to remit such Franchise Fee going forward on a calendar quarterly basis. SECTION 17. SPILLAGE. It is understood and agreed that the Service Provider shall not be required to clean up, collect or dispose of any loose or spilled Municipal Solid Waste, Construction and Demolition Waste, or 16 Recyclable Materials not caused by the Service Provider's rendering of the Services, or be required to collect and dispose of any excess Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials placed outside of the Containers by any Commercial, Industrial or Residential Unit. The Service Provider may report the location of such conditions to the Town so that the Town can issue proper notice to the owner or occupant of the Commercial, Industrial or Residential Unit instructing the owner or occupant to properly contain such Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials. Should excess Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials continue to be placed outside of the Containers, the Town shall require the Commercial, Industrial or Residential Unit to increase the frequency of collection of such Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials, or require the Commercial, Industrial or Residential Unit to utilize a Container with sufficient capacity so that the excess Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials will be regularly contained. The Service Provider shall be compensated for these additional Services as provided for in Section 10 hereof, and shall be entitled to receive an extra collection charge for each additional Container requiring an extra collection. SECTION 18. NON-COLLECTION NOTICE AND FOLLOW-UP. A. Notice from the Service Provider. It is specifically understood and agreed that where the owner or occupant of a Commercial, Industrial or Residential Unit fails to timely place a Container as directed in Sections 4 through 6 hereof, or is otherwise in violation of the Town's ordinances and regulations, the Service Provider's reasonable rules adopted hereunder or the provisions of this Agreement relating to the nature, volume or weight of Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials to be removed, the Service Provider may refrain from collecting all or a portion of such Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials and will notify the Town within eight (8) hours thereafter of the reason for such non-collection. The Service Provider will also provide written notice to the Commercial, Industrial or Residential Unit of the reason for such non-collection, unless such non-collection is the result of the Commercial, Industrial or Residential Unit's failure to timely place the Containers, Bulky Items or Bundles out for collection. Such written notice shall be attached to the Container or the uncollected Municipal Solid Waste, shall indicate the nature of the violation and shall indicate the correction required in order that such Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials may be collected. B. Notice from a Commercial, Industrial or Residential Unit. When the Service Provider is notified by an owner or occupant of a Commercial, Industrial or Residential Unit that Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials has not been removed from such Commercial, Industrial or Residential Unit and where no notice of non-collection or a change in collection schedule has been received by the Town from the Service Provider, or the Service Provider has failed to collect Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials from the Commercial, Industrial or Residential Unit without cause, as supported by notice as described herein, then the Service Provider will use all reasonable efforts to collect such Municipal Solid Waste, Construction and Demolition Waste or Recyclable Materials on the day the missed collection is brought to the Service Provider’s 17 attention provided, however, that if the Service Provider fails to make such collection on the same day that the Service Provider was notified of such missed, then the Service Provider shall make such collection no later than 12:00 p.m. on the following Business Day, and there shall be no charge to the Service Provider for any such original non-collection or late collection so long as the Service Provider makes such collection within such time. SECTION 19. HOURS OF SERVICE. For all the Services provided hereunder, the Service Provider's hours of service shall be between 7:00 a.m. to 7:00 p.m., Monday through Friday and 7:00 a.m. to 2:00 p.m. on Saturday. The Service Provider will not be required to provide service on weekends or Holidays except during natural disasters or emergencies, and may, at its sole discretion, observe Holidays during the term of this Agreement; provided, however, that the Service Provider shall provide such services on the immediately following business day. SECTION 20. CUSTOMER SERVICE. The Service Provider shall field all inquiries and complaints from Commercial, Industrial and Residential Units relating to the collection, hauling, recycling and disposal of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials. The Service Provider shall give prompt and courteous attention to any inquiries and complaints and shall make reasonable efforts to resolve such inquiries and complaints. The Service Provider shall be responsible at all time for maintaining a log of complaints and shall, at the Town’s request, provide copies of all complaints indicating the date and nature of complaints and the manner and timing of resolutions. SECTION 21. COMPLIANCE WITH APPLICABLE LAWS. The Service Provider shall comply with all applicable federal and state laws regarding the collection, hauling, recycling and disposal of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials, including existing and future laws that may be enacted, as well as any regulations reasonably passed by the Town that are not in derogation of this Agreement. Nothing in this Agreement shall be construed in any manner to abridge the Town's right to pass or enforce necessary police and health regulations for the reasonable protection of its inhabitants. The Town shall have the right to make reasonable inspections of the Service Provider in order to insure compliance with this Section 21. SECTION 22. VEHICLES AND EQUIPMENT. Vehicles used by the Service Provider for the collection, hauling, recycling and disposal of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials shall be protected at all times while in transit to prevent the blowing or scattering of Municipal Solid Waste, Construction and Demolition Waste and Recyclable Materials onto the Town's public streets, or properties adjacent thereto, and such vehicles shall be clearly marked with the Service 18 Provider's name in letters and numbers not less than two (2) inches in height. All collection vehicles used by the Service Provider shall be washed and deodorized once per week. SECTION 23. DUE CARE. The Service Provider shall exercise due care and caution in providing the Services so that the Town's public and private property, including streets and parking areas, will be protected and preserved. SECTION 24. PERSONNEL AND PERFORMANCE STANDARDS. The Service Provider shall not deny employment to any person on the basis of race, creed or religion, and will insure that all federal and state laws pertaining to salaries, wages and operating requirements are met or exceeded. The Service Provider, its agents, servants and employees shall perform the Services in a courteous, competent and professional manner. During the term of this Agreement and any extension thereof, the Service Provider shall be responsible for the actions of its agents, servants and employees while such agents, servants and employees are acting within the scope of their employment or agency. SECTION 25. INSURANCE COVERAGE. Pursuant to this Agreement, the Service Provider shall carry the following types of insurance in an amount equal to or exceeding the limits specified below: Coverage Limits of Liability (1) Worker’s Compensation Statutory (2) Employer's Liability $500,000 (3) Bodily Injury Liability (except automobile) $1,000,000 per occurrence; $2,000,000 in the aggregate (4) Property Damage Liability (except automobile) $1,000,000 per occurrence; $2,000,000 in the aggregate (5) Automobile Bodily Injury Liability $1,000,000 per person; $1,000,000 per occurrence (6) Automobile Property Damage Liability $1,000,000 per occurrence (7) Excess Umbrella Liability $5,000,000 per occurrence (8) Professional Liability Policies Directors and Officers $10,000,000 in the aggregate 19 Employment Practices $10,000,000 in the aggregate Fiduciary $5,000,000 in the aggregate To the extent permitted by law, any or all of the insurance coverage required by this Section 25 may be provided under a plan(s) of self-insurance, including coverage provided by the Service Provider's parent corporation. Prior to the beginning of the Services under this Agreement, or prior to any extension or renewal thereof, the Service Provider shall furnish the Town with a certificate of insurance verifying the insurance coverage required by this Section 25. All insurance and certificate(s) of insurance shall contain the following provisions: 1. Name the Town, its officers, agents, representatives, and employees as additional insureds as to all applicable coverage with the exception of workers compensation insurance. 2. Provide for at least thirty (30) days prior written notice to the Town for cancellation, non-renewal, or material change of the insurance. 3. Provide for a waiver of subrogation against the Town for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. Insurance Company Qualification: All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least “A-” by AM Best or other equivalent rating service. SECTION 26. INDEMNITY. To the extent covered by applicable insurance, the Service Provider assumes all risks of loss or injury to property or persons caused by its performance of the Services. The Service Provider agrees to indemnify and hold harmless the Town and its agents, directors, employees, officers and servants from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, liabilities, losses or expenses (including, but not limited to, reasonable attorneys' fees) caused by a willful or negligent act or omission of the Service Provider, its officers and employees. However, the Service Provider shall not be liable for any legal proceedings, claims, demands, damages, costs, expenses and attorneys' fees caused by a willful or negligent act or omission of the Town, its agents, directors, employees, officers and servants. SECTION 27. SAVINGS PROVISION. In the event that any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, this Agreement shall, to the extent reasonably possible, remain in force as to the balance of its terms and provisions as if such invalid term or provision were not a part hereof. 20 SECTION 28. TERMINATION. Any failure by either party or its successors and assigns to observe the terms and conditions of this Agreement shall, if continuing or persisting without remedy for more than thirty (30) days after the receipt of due written notice from the other party, constitute grounds for forfeiture and immediate termination of all the defaulting party's rights under this Agreement, and all such rights shall become null and void. SECTION 29. FORCE MAJEURE. The performance of this Agreement may be suspended and the obligations hereunder excused in the event and during the period that such performance is prevented by a cause or causes beyond reasonable control of such party. The performance of this Agreement will be suspended and the obligations hereunder excused only until the condition preventing performance is remedied. Such conditions shall include, but not be limited to, acts of God, acts of war, accident, explosion, fire, flood, riot, sabotage, acts of terrorists, unusually severe weather, lack of adequate fuel, or judicial or governmental laws or regulations. SECTION 30. GOVERNING LAW. This Agreement shall be governed in all respects, including as to validity, interpretation and effect, by the internal laws of the State of Texas, without giving effect to the conflict of laws rules thereof. The parties hereby irrevocably submit to the jurisdiction of the courts of the State of Texas and the Federal courts of the United States located in the State of Texas, solely in respect of the interpretation and enforcement of the provisions of this Agreement, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may be enforced in or by said courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Texas State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of any such dispute and agree that mailing of process or other papers in connection with any such action or proceeding to the addresses of the parties listed below, or in such other manner as may be permitted by law, shall be valid and sufficient service thereof. SECTION 31. ATTORNEYS’ FEES. The prevailing party in any dispute between the parties arising out of the interpretation, application or enforcement of any provision hereof shall be entitled to recover all of its reasonable attorneys’ fees and costs whether suit be filed or not, including without limitation costs and attorneys’ fees related to or arising out of any trial or appellate proceedings. 21 SECTION 32. ACCEPTANCE. PASSED AND APPROVED BY THE TOWN OF PROSPER COUNCIL MEETING AT A TIME AND PLACE IN COMPLETE CONFORMITY WITH THE OPEN MEETING LAWS OF THE STATE OF TEXAS AND ALL OTHER APPLICABLE LAWS THIS _____ DAY OF ____________________, 2012. IESI TX CORPORATION TOWN OF PROSPER 2138 Country Ln. 121 West Broadway McKinney, Texas 75069 Prosper, TX 75078 By: By: Name: John Gustafson, Vice President Name: Title: ATTEST: By: Name: Title: Service Category Bulky Item Pickup Greenwaste/Compost Pickup Ewaste Collection Household Hazardous Waste Freguency 2 x Month Weekly 2 x Month 1 X Month During Annual Cleanup Events Per Home Cost Per Event Estimate Town of Prosper Additional Solid Waste and Recycling Services Options January-12 Service Pricing Comments $0.90 Same format as current monthly service $1.04 Collect bundled brush, leaves and grass clippings contained in biodegradable bags $0.55 $0.30 Free IESI will provide collection container at annual cleanup events Acceptable Items include: Old Computers,TV's,and Mise Electronics $0.20 $7,318.00 IESI will hire a licenced HHW firm to provide 2 men and appropriate containment devices for all materials collected during chosen events Acceptable Items Include: Paint, Batteries, Aerosols, coatings, ink pesticides, solvents, etc ... Page 1 of 2 Prosper is a place where everyone matters. 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 – January 24, 2012 Date: January 24, 2012 Agenda Item: Consider and act upon Ordinance No. 12-02, amending Section 4B of the Comprehensive Parks Ordinance. Description of Agenda Item: As per direction from the Town Council, Town staff requested the Parks & Recreation Board (PARBd) make a recommendation to the Town Council concerning the Towns Comprehensive Parks Ordinance, specifically to Section 4 B. The PARBd made a recommendation to amend the Ordinance as follows (revisions added noted in red / removed noted in blue with strikethrough) – 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. A minimum of five (5) Each members 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; 2) reside within the Prosper Independent School District; or 3) 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. PARKS & RECREATION Page 2 of 2 Budget Impact: None. Legal Obligations and Review: Legal review of this item is not required. Attached Documents: • Draft Ordinance & Adoption Language Parks and Recreation Board Recommendation (PARBd): At the January 18, 2012 PARBd meeting, the Parks & Recreation Board motioned to amend the Town’s Comprehensive Parks Ordinance to read as follows: B. Number of Members. The Parks & Recreation Board shall be composed of seven (7) members appointed by the Town Council. A minimum of five (5) members of the Parks & Recreation Board shall be a resident of Prosper; 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; 2) reside within the Prosper Independent School District; or 3) 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. The motion was approved by a vote of 5-0. Town Staff Recommendation: Town staff recommends the Town Council approve the PARBd recommendation amending the Town’s Comprehensive Parks Ordinance. TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-02 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS; AMENDING ORDINANCE NO. 11-65 (COMPREHENSIVE PARKS ORDINANCE); PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (“Town Council”) has investigated and determined that Ordinance No. 11-65 of the Town of Prosper, Texas (“Prosper”) should be amended; and WHEREAS, the Town Council found and determined that it will be advantageous, beneficial and in the best interest of the citizens of Prosper to amend Ordinance No. 11-65 as set forth below. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: Findings. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Amendment to Ordinance No. 11-65. Ordinance No. 11-65 Section 4 B. is hereby amended to read as follows: B. Number of Members. The Parks & Recreation Board shall be composed of seven (7) members appointed by the Town Council. A minimum of five (5) members of the Parks & Recreation Board shall be a resident of Prosper; 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; 2) reside within the Prosper Independent School District; or 3) 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. SECTION 3: 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 portion of conflicting ordinances shall remain in full force and effect. SECTION 4: Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason, held to be unconstitutional or invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. 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. SECTION 5: Penalty Provision. Any person, firm, corporation or business entity violating this Ordinance 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 DOLLARS ($500.00), unless the violation relates to fire safety, zoning or public health and sanitation, including dumping and refuse, in which the fine shall not exceed the sum of TWO THOUSAND DOLLARS ($2,000.00). Each continuing day's violation under this Ordinance shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Prosper from filing suit to enjoin the violation. Prosper retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 6: Effective Date. This Ordinance shall become effective on January 24, 2012. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS ON THIS 24th DAY OF January, 2012. APPROVED AS TO FORM: _____________________________________ Ray Smith, Mayor ATTESTED TO AND CORRECTLY RECORDED BY: ____________________________ Amy Piukana, TRMC Town Secretary Page 1 of 2 Prosper is a place where everyone matters. 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 – January 24, 2012 Date: January 18, 2012 Agenda Item: Consider and act upon the expenditure of Park Improvement Funds for the purchase and installation of a pavilion at Frontier Park. Description of Agenda Item: At the December 13, 2011 Town Council Meeting, the Council approved a professional services agreement with Jacobs Engineering for the layout and grading plan for the Frontier Park Improvements. These improvements include a pavilion structure, amphitheater area, Windmill Playground, and a splashground. Town staff has received quotes from multiple manufacturers of pavilion structures for the construction of the pavilion at Frontier Park. The 45’ x 78’ pavilion will accommodate family reunions, tailgating, birthday parties, and small concerts/performances with a stage area that will protrude outside of the pavilion. As part of the site grading, an amphitheater area will be created adjacent to the outside stage. The architecture of the pavilion will complement the existing restroom/concession structures at the baseball and soccer complexes with its main entry columns being finished with stone and decorative lighting. The main entry is also planned to be located on a direct axis with the Prosper Independent School District’s future football stadium entry at depicted on the attached Master Plan for Frontier Park. In order to promote the pavilions prominence in relation to surrounding structures it will be elevated slightly by the use of grading. The quotes received were from approved vendors on various buy boards and include the design and construction of the pavilion as a turn-key project. Buy boards are a conglomerate of services and items that have already gone through competitive bid procurement and received award by the cooperative. Buy boards are commonly utilized by ISD’s, municipalities, county and state governments as an alternative to contracting out the design of a project and then competitively bidding out the construction based on the specific design. In order to meet the schedule for completion of the pavilion and availability of the structure on the buy boards, staff is recommending approval of funding to procure the pavilion through the buy board process. Of the three (3) quotes secured through the buy board process, American Parks Company provided the best value at a cost of $223,462 installed with conduit for electrical connections. PARKS & RECREATION Page 2 of 2 Staff is recommending a 7% contingency in the amount of $15,642 to ensure efficiency when dealing with varying quantities and unforeseen items during construction. As part of the Parks & Recreation Board (PARBd) recommendation, the Board recommended inclusion of restroom facilities to service the events and users of the immediate area including Windmill Playground. Staff is in the process of soliciting quotes for a restroom facility structure to complement the pavilion utilizing the buy board process. Preliminary estimates have the cost of the structure at $70,000. An additional $30,000 is anticipated for design and construction of utilities (water, sanitary sewer and lift station, electrical) to serve the facility. No additional contingency is recommended. Budget Impact: The Park Improvement Fund balance is $517,734. Current projects approved by the PARBd pending Town Council action include Preston Lakes Park Soil Remediation ($100,000) and the splashground ($110,000). Staff recommends that the $239,104 for the pavilion and $100,000 for the restroom be funded from the Park Improvement Fund. Legal Obligations and Review: Legal review of this item is not required. Attached Documents: • Master Plan for Frontier Park • Design of Pavilion • Pavilion Quotes • Preliminary Floorplan Design of Restroom • Standard Form of Agreement for American Parks Parks and Recreation Board Recommendation (PARBd): At the October 13, 2011 PARBd meeting, the Parks & Recreation Board motioned to approve $215,000 of 2011 Bond Funds and to include costs for a restroom facility within the structure. The motion was approved by a vote of 5-0. Town Staff Recommendation: Town staff recommends the Town Council approve the expenditure of Park Improvement Fees in an amount not to exceed $239,104 for the purchase and installation of a pavilion at Frontier Park and $100,000 for the purchase and installation of a restroom facility. Motion Options: Option 1 for pavilion and restroom: I make a motion to approve the expenditure of Park Improvement Fees in an amount not to exceed $239,104 for the purchase and installation of a pavilion at Frontier Park and not to exceed $100,000 for the purchase and installation of a restroom facility. Option 2 for pavilion and no restroom: I make a motion to approve the expenditure of Park Improvement Fees in an amount not to exceed $239,104 for the purchase and installation of a pavilion at Frontier Park without a restroom facility. 18240 North Bank Road Roseburg, OR 97470 P: (541)496-3541 F:Date Quote #(541)496-0803service@romtec.com 01/16/12 41201026TXMAS QUOTATION - CONTRACT # TXMAS-5-56030 FRONTIER PARK PAVILION Company:Town of Prosper Contact:Wade Harden Address:409 E First Street Prosper, TX 75078 United States Phone:(972) 346-3502 Fax: Email:wade_harden@prospertx.gov TERMS:Materials payment due net 35-day from date of shipment per facility. The construction payments will be billed per progress payment schedule. Model #Quantity Description Unit Price Extended Price 1 $156,212.73 $156,212.73 Custom Pavilion (see Design Criteria For Package Details) SUBTOTAL $156,212.73 TXMAS DISCOUNT: Available only to qualified Texas State & Local Entities.-$12,984.95 Design Services SIN# 361-30 - Includes up to two revisions in response to comments. Should additional revisions need to be made, an additional quantity of Design Services will be charged at the same rate.$1,850.00 Shipping and handling from Roseburg, OR to:Prosper TX $18,288.75 SUBTOTAL$163,366.53 TXSMART BUY ADMINISTRATIVE FEE $2,487.75 TOTAL $165,854.28Construction Cost Estimate Only This is not a bid from Romtec for construction. This is an estimate for what we believe it may cost to completely install the building in your state and local area. Our estimate assumes a prevailing wage job, which is semi-truck accessible, with utilities within 10 feet of foundation. Includes connection to utilities and plumbing and electrical rough in. Estimates also include excavation and pouring the footing, foundation and slab. Plus, the construction and trim out of the complete building with all fixtures and features. Removal of excavated materials, permits, rock excavation, demolition, sidewalks and other site construction are not included.$120,000.00 Removal of excavated materials, permits, rock excavation, demolition, sidewalks and other site construction are not included. ONE COMPLETE SET OF SEALED CONSTRUCTION DRAWINGS ON 11"X17" FORMAT, INCLUDING FOOTING & FOUNDATION DETAILS, IS INCLUDED WITH BUILDING PURCHASE. Any additional sealing or change in plan set size will result in an additional charge and is not included in the building price. * All prices listed above are F.O.B. Roseburg, OR, freight prepaid and added. Delivery will be in accordance with a mutually agreed upon timeline as stated in the Romtec notice to proceed document * Unless otherwise agreed to, the owner of the project is expected to provide "builder's risk" Insurance coverage on this project. Romtec makes no provision for such costs in this quote. * This quote is effective for 90 days from above date; thereafter all prices are subject to change without notice. * Delivery will be in accordance with a mutually agreed upon timeline as stated in the Romtec notice to proceed document PAGE 1 OF Quote Date 8/30/2011 Quote # 2011-1018 Town of Prosper 409 E. First St Prosper, TX 75078 QUOTE VALID FOR 30 DAYS 10661 Shady Trail Dallas, TX 75220 Terms See Below Rep BES Project Fontier Park Ph:972 484-0600 Fax:972 484-0333 Accepted by: www.childsplayinc.net Total Subtotal Sales Tax (0.0%) Item Description Qty Price Total Amer icana Steel Structure 1 117,022.00 117,022.00T 50' deep X 78' long w/10' eave, Tubular Steel Frame w/std. Anti-Graffiti Powder Coat Finish, 24" W Aluminum Structural Roof Panels, Extruded Aluminum Ridge Cap and Extruded Aluminum Gutter/Fascia, Scuppers Included, 5'x20' Attached Entry Way on TWO sides of unit with Douglas Fir Gables, (see drawing) Double Columns on both Sides, two Gable End Douglas Fir Structure to Match Entrance Section Includes lighting on each entry column 90 MPH wind load 20# Live Load Site Work Rock for all columns, between columns and entry ways 1 35,369.00 35,369.00 Concrete 80' x 52' concrete slab with 18 - 4' x 18" piers; perimeter beam 12"x12"; #3 rebar 15" OC 1 24,000.00 24,000.00T Installation Professional Turn-Key Installation of Americana Shelter 1 49,274.00 49,274.00 Freight Charge Freight 1 2,700.00 2,700.00T $228,365.00 $228,365.00 $0.00 QUOTE NO. DATE BILL TO:SHIP TO: Comments or Special Instructions: Shipping in 8-12 weeks. Price quoted for material cost and installation. Price Excludes: sitework, underground line location, permits & impact fees. Customer is responsible for any taxes that may apply. Site must be clear, level and accessible at time of installation. If rock, concrete or any obstacle is found during installation, additional charges may apply. Specific insurance requirements may require additional fees. If order is cancelled a 25% restocking fee be assessed. QTY ITEM #UNIT PRICE APPLICABLE DISCOUNT LINE TOTAL 1.00 CUSTOM 129,390.00$ 12,939.00$ 116,451.00$ 1.00 ENGINEERING 900.00 90.00$ 810.00 1.00 BRICK & MORTAR 31,490.00 3,149.00$ 28,341.00 1.00 FOOTERS 12,000.00 1,200.00$ 10,800.00 Footing Specification 1.00 INSTALLATION 59,450.00 17,450.00$ 42,000.00 1.00 CONCRETE PAD 20,160.00 20,160.00 34,828.00$ SUBTOTAL 218,562.00$ FREIGHT 4,900.00$ SALES TAX - TOTAL 223,462.00$ Frontier Parkway and Dylan Drive February 18, 2012 Frontier Park C11912-3404 January 19, 2012 Chuck Wellenberger P.O. Box 489 Fax: 972-347-6441 PREPARED BY www.AmericanParksCompany.com 972-346-3502 Phone: 800-381-4491 Prosper, Texas 75078 EXPIRATION DATE 6:12 Roof Pitch, 10' Eave Height, (12) Prosper, TX 75078 Laminated Chalet Ends, 4:12 Roof Pitch and TOTAL DISCOUNT 80'x42' Concrete Pad Superior Z-Coat Powder Coat Finish Sealed Engineering (Per Model, Per Size) APC Professional Installation and Specified Rock, to Match Frontier Park Town of Prosper Custom Dual Column Design, SYP 2"x6" T&G with Custom Dormer and Decorative 40'x78' Steel Frame Gable Chalet End Shelter DESCRIPTION Wade Harden (12) Footers to Match Engineered Old Denver Buff Mortar, Specified Brick, Gauge Meridian Standing Seam Metal Roof, Roof Decking, (Fascia, Nailers, & Hdwr), 26 Texas (Drawings, Calculations, Footings) QUOTE "Building Better Parks for Kids of All Ages" THANK YOU FOR YOUR BUSINESS! Approval and acceptance of this proposal may be executed by signing below and faxing or emailing back to the contact information listed above. Unless prior arrangements are approved, payment is due in full upon receipt of invoice. Company: Date: Authorized Purchaser: Title: SECTION SF STANDARD FORM OF AGREEMENT SF-1 STANDARD FORM OF AGREEMENT STATE OF TEXAS § § COUNTY OF § THIS AGREEMENT (“Contract”), made and entered into this 24th day of January, 2012, by and between the TOWN OF PROSPER, Texas hereinafter termed OWNER, a Texas Municipal Corporation, of the County of Collin and State of Texas, and American Parks Company, of the Town of Prosper, County of Collin, and State of Texas hereinafter termed Contractor. WITNESSETH: That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the OWNER, and under the conditions expressed in the bond bearing even date herewith, the said CONTRACTOR hereby agrees with the said OWNER to commence and complete the construction of certain improvements generally described as follows: --- FRONTIER PARK PAVILION & ASSOCIATED IMPROVEMENTS --- Providing materials and construction of pavilion a pavilion structure complete and in placed. This included, but is not limited to the required piers, footers, concrete slab, electrical conduit, truss members, standing seam roof, and masonry work. All extra work in connection therewith, under the terms as stated in the General Conditions of the Agreement and at his (or their) own proper cost and expenses to furnish all the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the said construction, in accordance with the conditions and prices stated in the Proposal attached hereto, and in accordance with the Advertisement for Proposals, General and Special Conditions of Agreement, Plans and other drawings and printed or written explanatory matter thereof, and the Specifications and addenda therefore, as prepared by the Town of Prosper, herein entitled the DESIGNER, each of which has been identified by the CONTRACTOR and the ENGINEER, together with the CONTRACTOR'S written Proposal, and the Performance and Payment Bonds hereto attached; all of which are made a part hereof and collectively evidence and constitute the entire contract (hereinafter collectively called the "Contract Documents" or the "Contract"). The CONTRACTOR hereby agrees to commence work within ten (10) days after the date written notice to do so shall have been given to him, and to substantially complete the same within 75 calendar days after the written notice to commence work, subject to such extensions of time as are provided by the General and Special Conditions. The OWNER agrees to pay the CONTRACTOR in current funds the price or prices shown in the Proposal, which forms a part of this contract, such payments to be subject to the General and Special Conditions of the contract. IN WITNESS WHEREOF, the parties to these presents have executed this Agreement in the year and day first above written. TOWN OF PROSPER, TEXAS ____ ___________ Party of the First Part Party of the Second Part (OWNER) (CONTRACTOR) By: By: ______________ ATTEST: ATTEST: ________________________ To: Mayor and Town Council From: Wayne K. Snell Jr., CBO, Building Official Cc: Chris Copple, AICP, Planning Director Re: Town Council Meeting – January 24, 2012 Date: January 18, 2012 Agenda Item: Consider and act upon Ordinance No. 12-01, amending Section 104.9 (Approved Material and Equipment) of Exhibit “A” of Ordinance Nos. 09-037 and 09-038 (International Residential Code and International Building Code), regarding the construction and maintenance of fences. Description of Agenda Item: The purpose of the ordinance amendment is to provide for practical safeguarding of life, health and property from hazards that may arise from the improper construction or maintenance of fences by: • Restricting fence installation within drainage easements • Requiring protective treatment/coating on fence materials, including chainlink and wood. • Requiring a gate for access. • Providing wood fence installation standards, including: o Vertical posts shall be minimum sixteen gauge galvanized steel, set in concrete footing. o All pickets shall be a minimum ½ inch thickness. o Wood material shall be insect resistant, such as cedar or pressure treated yellow pine. Spruce is not a permitted wood material. o The back side of the fence (exposed posts and rails) shall be oriented away from the street. o All materials are to be securely fastened to ensure an ongoing attractive appearance and safe condition. • Prohibiting fence materials such as: o Barbed wire o Plywood o Fiberglass o Corrugated steel panels o Razor wire Town staff provided the ordinance to the Prosper Developers Council (PDC) for their review. The PDC has submitted a letter supporting the ordinance. Budget Impact: There are no significant budget implications associated with the approval of this ordinance. Prosper is a place where everyone matters. BUILDING INSPECTIONS Legal Obligations and Review: The Town Attorney has reviewed the ordinance. Attached Documents: 1. Ordinance No. 12-01 amending Section 104.9 (Approved Material and Equipment) of Exhibit “A” of Ordinance Nos. 09-037 and 09-038. 2. Prosper Developers Council letter of support. Town Staff Recommendation: Town staff recommends the Town Council adopt Ordinance 12-01, amending section 104.9 (Approved Material and Equipment) of Exhibit ‘A’ of Ordinance Nos. 09-037 and 09-038 (International Residential Code and International Building Code). Page 1 AMENDMENT TO THE 2006 INTERNATIONAL RESIDENTIAL AND BUILDING CODE 601699.1 TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-01 AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, AMENDING SECTION 104.9 (APPROVED MATERIAL AND EQUIPMENT) OF EXHIBIT “A” OF ORDINANCE NOS. 09-037 AND 09-038; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (“Town Council”) has investigated and determined that continued regulation of the construction, erection, enlargement, alteration and maintenance of all fences with the boundaries of the Town of Prosper, Texas (“Prosper”) in order to allow for privacy and security, maintain the neig hborhood appearance and enhance the general welfare of the community, and provide for practical safeguarding of life, health and property from hazards that may arise from the improper construction or maintenance of fences; and WHEREAS, the Town Council has investigated and determined that it would be advantageous and beneficial to the citizens of Prosper to amend Section 104.9 (Approved Materials and Equipment) of Exhibit “A” to Ordinance Nos. 09-037 and 09-038 to provide for additional privacy and security, maintain neighborhood appearance and enhance the general welfare of the community. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE 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: Amending Section 104.9 (Approved Materials and Equipment) of Exhibit “A,” of Ordinance Nos. 09-037 and 09-038. Section 104.9 (Approved Materials and Equipment) of Exhibit “A,” of Ordinance Nos. 09-037 and 09-038 is hereby amended as follows: “… Section 104.9 Approved materials and equipment. Section 104.9 Materials, equipment and devices approved by the Building Official shall be constructed and installed in accordance with such approval. I. Fences in all zoning districts shall meet the following requirements: 1. A fence permit must be obtained from the Building Inspection Division prior to installation. It shall be unlawful for any person to install or cause to be installed, or to permit any person to install a fence, or to make any alterations, additions or changes to a fence, without first having procured a permit to do so from the Building Official. Notwithstanding the foregoing, a permit shall not be required for Page 2 AMENDMENT TO THE 2006 INTERNATIONAL RESIDENTIAL AND BUILDING CODE 601699.1 alterations, additions or changes if repairs do not exceed sixteen (16) linear feet of the area of the fence over a twelve month period. 2. No fence shall be constructed within any drainage easement in the corporate limits of the Town unless the Town Engineer shall have first determined and advised the Building Official, in writing, that he believes such fence shall, in all probability, not interfere with or impair the natural flow of water across the drainage easement. 3. Fences around tennis courts may exceed eight (8) feet in height, but shall not exceed fifteen (15) feet. 4. Fence arms shall not be constructed. 5. Chainlink fences in residential districts shall have the finished edge of the material on the top of the fence. Chainlink fences shall be vinyl coated, unless used in conjunction with athletic fields on property owned by an Independent School District or Town of Prosper. 6. Gate required. Every fenced enclosure constructed under the provisions of this article shall have at least one gate in its perimeter a minimum of three (3) feet in width. 7. Wooden Fence Standards: All wooden fences must meet the following standards: a. All vertical posts shall be galvanize steel minimum of sixteen (16) gauge thickness and spaced at a maximum of eight (8) feet on center, set in a concrete footing. b. All pickets shall be a minimum ½ inch thickness c. Wood material shall be an insect resistant wood such as cedar or pressure treated yellow pine. Spruce is not a permitted wood material. d. The fence shall have its back side (the side with exposed posts or rails) oriented away from view from the adjacent street or right of way. e. All materials shall be securely fastened, vertical boards to horizontal stringers, stringers to vertical posts, top rail, to ensure an ongoing attractive appearance and safe condition, free from rot, rust, vandalism, and other sources of decay. f. The bottom of the fence shall be designed to prevent ground to wood contact. This can be achieved through the use of a concrete strip poured between the fence supports or by raising the pickets to provide a minimum of three inches (3”) between the bottom of the pickets and the ground. A two inch by six inch (2” x 6”) kick board may be used to cover the gap Page 3 AMENDMENT TO THE 2006 INTERNATIONAL RESIDENTIAL AND BUILDING CODE 601699.1 between bottom of pickets and ground. This kick board may have ground contact. 8. Protective treatment: All wood material shall be stained, pressure treated, painted, or adequately sealed to prevent decay. All exterior surfaces of fences shall be maintained in good condition. Peeling, flaking and chipped paint shall be eliminated and surfaces repainted. All metal surfaces subject to rust or corrosion shall be coated to inhibit such rust and corrosion and all surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removed from exterior surfaces. Surfaces designed for stabilization by oxidation are exempt from this requirement. 9. Fences may not contain and/or be: a. Continuous electrical current, although single-strand wired designed to conduct electricity through an approved low-voltage regulator shall be allowed along the fence’s interior base line; b. Constructed to contain barbed wire; c. Plywood; d. Fiberglass or fiberglass panels; e. Corrugated steel or sheet iron; f. Razor wire; and/or 10. Fences on parcels being used for agricultural purposed may contain barbed wire or other agricultural fences approved by the Building Official or his/her designee. II. Fences located in the required front yard of a lot in a residential zoning district shall have a minimum of fifty (50) percent through vision. SECTION 3: 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 portion of conflicting ordinances shall remain in full force and effect. SECTION 4: Penalty Provision. Any person, firm, corporation or business entity violating this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined a sum not exceeding Two Thousand Dollars ($2,000.00) if the violation relates to the public health, sanitation or dumping of refuse, otherwise the fine shall be a sum not exceeding Page 4 AMENDMENT TO THE 2006 INTERNATIONAL RESIDENTIAL AND BUILDING CODE 601699.1 Five Hundred Dollars ($500.00). The Town retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 5: Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason, held to be unconstitutional or invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. 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. SECTION 6: Effective Date. This Ordinance shall become effective immediately upon its passage and publication as required by law. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, on this _____ day of ________________, 2012. _____________________________________ Ray Smith, MAYOR ATTESTED AND CORRECTLY RECORDED: _____________________________ Amy Piukana, TOWN SECRETARY Date(s) of Publication: __________________________________________________, The Prosper Press