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10.09.2012 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. Recognition of past Board & Commission members. 5. 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.) 5. Consider and act upon minutes from the following Council meeting(s) (AP) September 25, 2012 – Regular Town Council Meeting 5b. Consider and act upon Ordinance No. 12-33, amending Ordinance No. 12-32, to correct the caption and Exhibit “D”; providing for savings, repealing and severability clauses; and providing for an effective date hereof. (AP) 5c. Consider and act upon Change Order #1 to Tiseo Paving Co., for the First Street (Craig Street to Coit Road) and Coit Road (US 380 to First Street) Improvements Project. (MB) 5d. Consider and act upon additional expenditures of Park Improvement Funds for the improvements to Preston Lakes Park. (MB) 5e. Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Frisco Tollway Partners, LTD, related to the construction of median and turn lane improvements to serve the southwest corner of Preston Road and Frontier Parkway and 2) Resolution No. 12 - 72 authorizing the Town Manager to execute the same. (MB) 5f. Consider and act upon 1) an Escrow Agreement between the Town of Prosper and H&R Partners, LP, related to the construction of turn lane improvements to serve the east side of Preston Road at Pasewark Drive and 2) Resolution No. 12-73 authorizing the Town Manager to execute the same. (MB) 5g. Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Saddle Creek Investments, LTD, related to the construction of median and turn lane improvements to serve the northwest corner of Preston Road and Prosper Trail and 2) Resoluti on No. 12-74 authorizing the Town Manager to execute the same. (MB) AGENDA Regular Meeting of the Prosper Town Council 108 W. Broadway Prosper, TX 75078 Tuesday, October 9, 2012 Meeting begins at 6:00 p.m. Prosper is a place where everyone matters. Page 2 of 3 5h. Consider and act upon the reappointment of David Moore as Municipal Judge and adopting Resolution No. 12-76 authorizing the Town Manager to execute the same. (LD) 6. CITIZEN’S COMMENT (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.) DEPARTMENT ITEMS: 7. Consider and act upon Ordinance No. 12-34 establishing the levy of a hotel occupancy tax. (MG) 8. Consider and act upon an interlocal agreement with Prosper Independent School District for fuel purchasing and dispensing services. (MG) 9. Appointment to the Board of Adjustment – one regular term and one Alternate Member. 10. EXECUTIVE SESSION Recess into Closed Session in compliance with Section 551.001 et. seq. Texas Government Code, as authorized by the Texas Open Meetings Act deliberate regarding; 10a. Section 551.087. To deliberate regarding Economic Development Negotiations regarding property located north of Highway 380, east of Teel Parkway, south of W. First Street and west of Dallas North Tollway. To reconvene in Regular Session and take any action necessary as a result of the Closed Session. 11. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting. 12. Adjourn. Page 3 of 3 CERTIFICATION I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the inside window at the Town Hall of the Town of Prosper, Texas, a place convenient and readily accessible to the general public at all times, and said notice was posted at least 72 hours before said meeting was convened. _________________________________ ________________ ____________________ Lyle Dresher Interim Town Manager 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) 569-1011. BRAILLE IS NOT AVAILABLE. Page 1 of 5 ] 1. Call to Order / Roll Call. Council Members present: Mayor Ray Smith, Mayor Pro Tem Meigs Miller, Deputy Mayor Pro Tem Kenneth Dugger, Council Member Jason Dixon, Council Member Danny Wilson and Council Member Curry Vogelsang. Absent: None Staff Members present: Lyle Dresher, Interim Town Manager; Amy Piukana, Town Secretary; Matthew Garrett, Finance Director; Hulon Webb, Development Director; and Chris Copple, Planning Director. 2. Pastor Doug Kriz with Grace Christian led the Invocation. The Pledge of Allegiance, and Pledge to the Texas Flag were given. 3. Announcements of dates and times of upcoming community events. Deputy Mayor Pro Tem Dugger announced the following: o National Night Out 2012 - Tuesday Oct. 2nd, 6pm-9pm o Home Coming Parade - Wednesday, October 3rd o Home Coming Game - Friday October 5th o Cory Ausenbaugh Memorial 5k (starts 8:30am) and Fun Run (starts at 8am) at Frontier Park – October 13, 2012 o Mooyah Burgers – tonight’s proceeds support the Prosper Swim Team o Little League Football - games at Eagle Stadium 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.) Deputy Mayor Pro Tem Dugger made a motion to pull Consent Item (4d.) off the consent agenda. Motion seconded by Mayor Pro Tem Miller. Motion approved by vote of 6-0. 4a. Consider and act upon minutes from the following Council meeting(s) (AP) September 11, 2012 – Regular Town Council Meeting 4b. Consider and act upon the August 31, 2012 monthly financial statements. (MG) Minutes Regular Meeting of the Prosper Town Council Prosper Municipal Chambers 108 W. Broadway Prosper, TX 75078 Tuesday, September 25, 2012 Council Meeting 6:00 p.m. Page 2 of 5 4c. Consider and act upon 1) an interlocal agreement between the Town of Prosper and the City of Frisco regarding the provision of Geographic Information Systems (GIS) Services to the Town and 2) Res 12-68, authorizing the Town Manager to execute the same. (CC) 4e. Consider and act upon 1) an award of bid to Cardinal Contractors, Inc., 2) enter into a contract agreement with Cardinal Contractors, Inc., regarding the construction services agreement for the Custer Pump Station Improvements Project and 2) adopt Resolution No.12-64, authorizing the Town Manager to execute the same. (MB) Mayor Pro Tem Miller made a motion to approve Consent Items 4a, 4b, 4c, and 4e, as presented. Motion seconded by Deputy Mayor Pro Tem Dugger. Motion approved by vote of 6-0. Council Member Wilson recused himself from this item due to a possible conflict of interest. 4d. Consider and act upon Ordinance No. 12-26 rezoning 4.3± acres, located on the southeast corner of Hays Road and Highpoint Drive, from Agricultural (A) to Planned Development- Office (PD-O). (Z12-0005) (CC) Deputy Mayor Pro Tem Dugger made a motion to approve Consent Item 4d. Motion seconded by Mayor Pro Tem Miller. Motion approved by vote of 5-0. Council Member Wilson returned to the meeting. 5. CITIZEN’S COMMENT (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 – Resident Cindy Stark spoke regarding her concerns of the Frisco Library charging Prosper residents a $50 fee to use the Library in Frisco. Ms. Stark urged Council to assist residents with more Library Services and reach out to the City of Frisco to discuss alternatives in regards to fees being charged to non residents living in Prosper with limited Library resources. Resident Irwin “CAP” Parry spoke regarding his concern with the Library fee City of Frisco is charging Prosper residents for Library usage. Mr. Parry urged Council to provide citizens better Library resources in Prosper. 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.) Page 3 of 5 DEPARTMENT ITEMS: 6. Consider and act upon all matters incident and related to the issuance and sale of the Town of Prosper, Texas General Obligation Bonds, Taxable Series 2012, including the adoption of Ordinance No. 12-31, authorizing the issuance of such Bonds, approving an Official Statement, a Bond Purchase Agreement, a Paying Agent/Registrar Agreement and an engagement letter of Bond Counsel. Jason Hughes with First Southwest was present to answer any questions. Deputy Mayor Pro Tem Dugger made a motion to approve all matters incident and related to the issuance and sale of the Town of Prosper, Texas General Obligation Bonds, Taxable Series 2012, including the adoption of Ordinance No. 12-31, authorizing the issuance of such Bonds, approving an Official Statement, a Bond Purchase Agreement, a Paying Agent/Registrar Agreement and an engagement letter of Bond Counsel. Motion seconded by Council Member Wilson. Motion approved by vote of 6-0. 7. Consider and act upon certifying the September 15, 2012 Election Results. Town Secretary Amy Piukana briefed Council regarding this item. Ms. Piukana presented the Mayor with the final tabulation results from Denton County Elections. The Total number of votes received at the election was 543. The results of the tabulation were: Early Voting Election Day Total Percentage David Vestal 16 20 36 6.63% Dr. Phyllis Hoffschwelle 19 17 36 6.63% Michael Korbuly 112 92 204 37.57% Kelly Cooper 148 119 267 49.17% Resident Jack Dixon spoke regarding this item stating that the majority vote in his opinion would be the candidate receiving the highest percentage of votes. Mr. Dixon asked Council to consider saving costs of runoffs by amending the charter to declare the candidate receiving the highest votes wins instead of a majority vote in which a candidate must receive more than 50% of the votes. Mayor Pro Tem Miller made a motion to accept and certify the Denton County results of the September 15, 2012 election, as presented. Motion seconded by Deputy Mayor Pro Tem Dugger. Motion approved by vote of 6-0. 8. Consider and act upon Ordinance No. 12-32, canvassing the September 15, 2012 Election and Calling the Runoff Election for October 20, 2012 to elect a Council Member for Place 1, unexpired term. Town Secretary Amy Piukana briefed Council regarding this item. Ms. Piukana explained that the Town Charter requires a majority vote of more than 50% of the total votes cast to win a Council Seat. No candidate received a majority vote of more than 50%, therefore; Council must canvass the election results and order a runoff election for the two candidates receiving the highest number of votes. The candidates with the two highest number of votes were Kelly Cooper 267 total votes (49.17%) and Michael Korbuly 204 of the total votes (37.57%). Deputy Mayor Pro Tem Dugger made a motion to approve Ordinance No. 12-32, canvassing the September 15, 2012 Election and Calling the Runoff Election for October 20, 2012 to elect a Council Member for Place 1, unexpired term. Motion seconded by Council member Dixon. Motion approved by vote of 6-0. 9. Consider and act upon Ordinance No. 12-27, increasing and modifying Water and Wastewater fees and rate structures. Finance Director Matthew Garrett briefed Council regarding this item. Mr. Garrett explained that Chris Ekrut, with J. Stowe & Company, conducted a rate study and Page 4 of 5 recommended a change to the volumetric rate structure lowering the maximum of the lowest tier from 15,000 gallons to 10,000 gallons. He noted that for an average consumer who uses 13,000 gallons of water per month, the total bill would increase $5.58. After discussion, Deputy Mayor Pro Tem Dugger made a motion to approve Ordinance No. 12-27, increasing and modifying Water and Wastewater fees and rate structures. Motion seconded by Council Member Wilson. Motion approved by vote of 6-0. 10. Consider and act upon Ordinance No. 12-28, adopting the Fiscal Year 2012-2013 Annual Budget for the fiscal year beginning October 1, 2012 and ending September 30, 2013, and approving certain amendments to the Fiscal Year 2011-2012 Annual Budget. Interim Town Manager Lyle Dresher and Finance Director Matthew Garrett briefed Council regarding this item. After discussion, Mayor Pro Tem Miller made a motion to approve Ordinance No. 12-28, adopting the Fiscal Year 2012-2013 Annual Budget for the fiscal year beginning October 1, 2012 and ending September 30, 2013, and approving certain amendments to the Fiscal Year 2011-2012 Annual Budget with the amendment to Section 9 to strike the wording “and, to transfer appropriations from designated appropriations to any individual department or activity.” Motion seconded by Deputy Mayo r Pro Tem Dugger. Motion approved by vote of 6-0. 11. Consider and act upon Ordinance No. 12-29, adopting the Town of Prosper 2012 Property Tax Rate. Interim Town Manager Lyle Dresher briefed Council regarding this item. Deputy Mayor Pro Tem Dugger made a motion to approve the property tax rate be increased by the adoption of a tax rate of fifty-two (.52) cents per $100 assessed valuation, which is effectively a 32 percent increase in the tax rate. Motion seconded by Mayor Pro Tem Miller. Motion approved by vote of 6-0. 12. Consider and act upon Ordinance No. 12-30, to ratify the property tax revenue increase reflected in the Fiscal Year 2012-13 Adopted Budget as required under Section 102.007(c) of the Local Government Code. Interim Town Manager Lyle Dresher briefed Council regarding this item. Council Member Vogelsang made a motion to approve Ordinance No. 12-30, to ratify the property tax revenue increase reflected in the Fiscal Year 2012-13 Adopted Budget. Motion seconded by Council Member Wilson. Motion approved by vote of 6-0. 13. Possibly direct Town Staff to schedule topic(s) for discussion at a future meeting. Council Member Wilson asked staff to obtain information regarding frequent power outages at the Willowridge Subdivision. Deputy Mayor Pro Tem Dugger asked staff to provide an update on traffic accidents and speed limit at Custer Road and the possibility of a traffic signal at Prosper Trail and Custer Road. Deputy Mayor Pro Tem Dugger asked that staff prepare an update with information regarding the Grain Tower demolition and more updates on First Street and Coit Road. Council Member Vogelsang asked for more information regarding Library fees and area cities and a IT study be done to compare server storage verses cloud storage of data. Council Member Wilson asked for an update on Stage 2 Water Conservation efforts. 14. Adjourn- Deputy Mayor Pro Tem Dugger made a motion to adjourn the meeting at 6:57 p.m. Motion seconded by Council Member Wilson. Motion approved by vote of 6-0. The meeting adjourned at 6:57 p.m. Page 5 of 5 APPROVED: ___________________________________ Ray Smith, Mayor ATTEST: _______________________________ Amy M. Piukana, TRMC Town Secretary Page 1 of 1 To: Mayor and Town Council From: Amy Piukana, Town Secretary CC: Lyle Dresher, Interim Town Manager Re: Town Council Meeting – October 9, 2012 Date: October 1, 2012 Agenda Item: Consider and act upon adopting Ordinance 12-33, to amend the caption to read 2012 and amend Exhibit “D” to read voting day location will be at Reynolds Middle School, Prosper Community Library. Description of Agenda Item: This Ordinance is an amendment to the caption of the Election Order Ordinance to read the year “2012” and to amend Exhibit “D” noting Election Day voting will be held at Reynolds Middle School, Prosper Community Library. Attached Documents: Ordinance No. 12-33 Town Staff Recommendation: Town staff recommends Town Council approve Ordinance No. 12-33 amending the caption date and Exhibit “D”, Election Day voting location to be at Prosper Community Library. Prosper is a place where everyone matters. ADMINISTRATION 1 Amendment to Ordinance No. 12-32 616176 TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-33 AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, AMENDING ORDINANCE NO. 12-32 TO CORRECT THE CAPTION AND EXHIBIT “D”; PROVIDING FOR SAVINGS, REPEALING AND SEVERABILITY CLAUSES; AND PROVIDING FOR AN EFFECTIVE DATE HEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (“Town Council”) previously adopted Ordinance No. 12-32 ordering a runoff Election for October 20, 2012 for the purpose of electing one (1) Town Council Member to fill the vacancy in Place 1; and WHEREAS, there were two (2) clerical errors in Ordinance No. 12-32; and WHEREAS, the Town Council seeks to amend Ordinance No. 12-32 to correct these clerical errors. NOW, THEREFORE, BE IT RESOLVED 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: Ordinance No. 12-32 Caption Amended. The Caption to Ordinance No. 12-32 is amended as follows: “AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, CANVASSING THE ELECTION RETURNS OF THE SPECIAL ELECTION OF SEPTEMBER 15, 2012, TO FILL THE VACANCY IN PLACE 1 ON THE TOWN COUNCIL; ORDERING A RUNOFF ELECTION FOR OCTOBER 20, 2012; PROVIDING FOR SAVINGS, REPEALING AND SEVERABILITY CLAUSES; AND PROVIDING FOR AN EFFECTIVE DATE HEREOF.” SECTION 3: Amendment to Exhibit “D” to Ordinance No. 12-32. Exhibit “D” to Ordinance No. 12-32 is amended as follows: “… Location Address Town Community Library Reynolds Middle School 700 N. Coleman Road Prosper …” 2 Amendment to Ordinance No. 12-32 616176 SECTION 4: Savings/Repealing Clause. All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 5: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby declares that is would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 6: Effective Date. This Ordinance shall be effective immediately upon its passage. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, on this 9th day of October, 2012. ________________________________ Ray Smith, Mayor ATTESTED TO AND CORRECTLY RECORDED BY: _________________________ Amy Piukana, Town Secretary Page 1 of 2 To: Mayor and Town Council From: Michael Bulla, CIP Project Manager CC: Lyle Dresher, Interim Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – October 9, 2012 Date: October 2, 2012 Agenda Item: Consider and act upon Change Order #1 to Tiseo Paving Co., for the First Street (Craig Street to Coit Road) and Coit Road (US 380 to First Street) Improvements. Description of Agenda Item: On November 08, 2011, Town Council awarded a construction services contract for the First Street Improvements (Preston Road to Coit Road) and Coit Road Improvements (First Street to US 380) to Tiseo Paving Inc. in the amount of $7,649,978.00. The contract included the construction of a four-lane divided roadway with concrete curb, underground drainage, and 6,000 LF of sanitary sewer. Turn lanes and median openings, as well as conduits necessary for irrigation and median lighting, were also included. This request provides an additional $350,974.83 for six changes to the original construction contract. • $27,119.83: On August 14, 2012, Town Council approved an escrow agreement with First Texas Homes for the construction of the Hidden Lakes street approach and decel lane to La Cima Phase 7. This change order allocates $27,119.83 for the paving and drainage improvements associated with the La Cima 7 agreement. • $26,860.00: Samples taken of the soils within the project were found to require slightly more hydrated lime than originally estimated. This change order provides $26,860.00 for an additional 170 tons of lime to meet the design criteria for the subgrade. • $86,290.00: At two locations, the proposed grades have exposed the Town’s existing 20” water line. This change order will allocate $86,290.00 to lower 400 LF south of the Coit Road and First Street intersection and 300 LF east of Hidden Lakes on First Street • $203,830.00: On December 13, 2011, Town Council approved a professional services contract with Freese & Nichols to design a second 30” water line out of the Custer Road Pump Station to the corner of Prosper Trail and Coit Road. This change order facilitates the construction of the necessary 30” water line under Coit Road and 24” water line under First Street prior to paving. The cost of these improvements is $203,830.00. • $6,875.00: The connection of the sanitary sewer installed within First Street to the Wilson Creek Sewer Interceptor is nearly complete. This change order provides $6,875.00 to connect the new line to the old La Cima force main. Prosper is a place where everyone matters. ENGINEERING Page 2 of 2 Budget Impact: The original construction contract in the amount of $7,649,978.00 was funded from the 2008 CO Bonds with the 2007 Collin County Transportation Bonds reimbursing $2,659,575.00 of the actual construction and design costs. Of the $350,974.83 Change Order #1, $27,119.83 is funded through an escrow received from La Cima 7, $113,150.00 for lime and water line lowerings will be funded from the 2008 CO Bonds, the $203,830.00 for new water lines will be funded by future 2013 CO Bonds and the $6,875.00 will come from the Sewer Impact Fee Fund. Legal Obligations and Review: No legal review of this request by the Town’s attorney is required. Attached Documents: 1. Change Order #1 2. Project Map Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council approve Change Order #1 to Tiseo Paving Co., for the First Street (Craig Street to Coit Road) and Coit Road (US 380 to First Street) Improvements Project. Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost P4 Embankment (Density Control)31306 CY 210 31516 2.00$ 420.00$ P6 Lime Treated Subgrade (8")4943 SY 675 5618 2.00$ 1,350.00$ P8 Lime (Est. 55#/SY - 8", 41#/SY - 6")2439 TON 9 2448 158.00$ 1,453.60$ P13 Reinforced Concrete Paving (8")100201 SY 557 100758 25.15$ 14,008.55$ P15 Concrete Curb (6" Monolithic)49388 LF 25 49413 2.50$ 62.50$ P31 Median Nose Pavers 829 SY 59 888 67.10$ 3,958.90$ P33 Relocate Ex. Fire Hydrant Units 18 EA 1 19 1,800.00$ 1,800.00$ 23,053.55$ Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost D1 21" RCP 6349 LF 8 6357 37.08$ 296.64$ D6 48" RCP 109 LF 19 128 110.25$ 2,094.75$ D17 Storm Manhole - TxDOT Ty MH-M (6'x4')1 EA 1 2 3,685.00$ 3,685.00$ D21 10' Recessed Curb Inlet 25 EA 1 26 2,475.00$ 2,475.00$ D27 6' Type Y Inlet (Form Line Finish)1 EA -1 0 6,130.00$ (6,130.00)$ D37 Trench Excavation Protection for Storm Sewer 11700 LF 27 11727 0.25$ 6.75$ 2,428.14$ Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost T8 Relf Pav. Marker (Cl B, Ty II-C-R)1311 EA 22 1333 3.62$ 79.64$ T12 Refl. Pavement Marking (8")(White)(Solid)(Type I)7475 LF 225 7700 1.50$ 337.50$ T25 PVC Sch. 40 Conduit (2")(Illumination Conduit)4465 LF 175 4640 4.12$ 721.00$ T28 Type "A" Ground Box (Illumination)70 EA 1 71 500.00$ 500.00$ 1,638.14$ Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost P8 Lime (Est. 55#/SY - 8", 41#/SY - 6")2448 TON 170 2618 158.00$ 26,860.00$ 26,860.00$ Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost W1 Install 30" and 24" Water at Coit and First*0 LS 1 1 203,830.00$ 203,830.00$ W2 Lower existing 20" water line on Coit Road*0 LS 1 1 41,765.00$ 41,765.00$ W3 Lower existing 20" water line on First Street*0 LS 1 1 44,525.00$ 44,525.00$ *Itemized detail attached 290,120.00$ Project Add/Drop New Cost Total Quantity Unit Quantity Quantity Per Unit Item Cost FM15 Connect new Force Main to Existing 0 LS 1 1 $ 6,875.00 6,875.00$ 6,875.00$ 350,974.83$ Storm Drainage Change Order 1 Earthwork & Paving Item #Item Description FIRST STREET / COIT ROAD IMPROVEMENTS First Street - Craig Street to East of Coit Road Coit Road - US Highway 380 to North of First Street Item DescriptionItem # Earthwork & Paving Item # Traffic Control, Illumination & Irrigation Item #Item Description Change Order Total Item Description Force Main Relocation Item # Item Description Upper Plane Water and Relocations Item #Item Description Page 1 of 1 To: Mayor and Town Council From: Michael Bulla, CIP Project Manager CC: Lyle Dresher, Interim Town Manager Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer Re: Town Council Meeting – October 9, 2012 Date: October 4, 2012 Agenda Item: Consider and act upon additional expenditure of Park Improvement Funds for the improvements to Preston Lakes Park. Description of Agenda Item: On June 26, 2012, Town Council authorized the remediation of the Preston Lakes Park. The contractor was tasked with the removal and disposal of debris buried three to four feet under the surface of the park for an amount not to exceed $47,000. As presented to Council on August 28, 2012, an exorbitant amount of concrete was unearthed from the Preston Lakes Park area. To date, more than 80 trailer loads of concrete have been removed, well beyond the estimates generated during the underground survey. This request for Council’s consideration is to approve an additional $10,500 to cover the removal of concrete and importing of dirt to return the area to the proper elevation. Budget Impact: The additional expense will be funded by Park Improvement Fund. Legal Obligations and Review: No legal review of this request by the Town’s attorney is required. Attached Documents: 1. None Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council approve the additional expenditure of Park Improvement Funds for the improvements to Preston Lakes Park in the amount of $10,500. Prosper is a place where everyone matters. ENGINEERING Page 1 of 1 To: Mayor and Town Council From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer CC: Lyle Dresher, Interim Town Manager Re: Town Council Meeting – October 9, 2012 Date: October 3, 2012 Agenda Item: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Frisco Tollway Partners, LTD, related to the construction of median and turn lane improvements to serve the southwest corner of Preston Road and Frontier Parkway and 2) Resolution No. 12-72 authorizing the Town Manager to execute the same. Description of Agenda Item: In conjunction with TxDOT’s construction of SH 289 (Preston Road), Frisco Tollway Partners LTD., requested staff make the necessary modifications to include the construction of a median opening and north bound left turn lane to the parcel located on the southwest corner of Frontier Parkway and Preston Road. The attached agreement between the Town of Prosper and First Texas Homes, Inc., obligates the developer to deposit with the Town the estimated $54,943.00 towards the construction of the improvements within 15 days after receiving written notice from the Town. Budget Impact: N/A Legal Obligations and Review: Escrow Agreement prepared by the Town Attorney Attached Documents: The following documentation is being provided for review: 1. Escrow Agreement 2. Resolution Town Staff Recommendation: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Frisco Tollway Partners, LTD, related to the construction of median and turn lane improvements to serve the southwest corner of Preston Road and Frontier Parkway and 2) Resolution No. 12-72 authorizing the Town Manager to execute the same. ENGINEERING Prosper is a place where everyone matters. TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-72 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN ESCROW AGREEMENT FOR CONSTRUCTION OF MEDIAN AND TURN LANE IMPROVEMENTS TO SERVE THE SOUTHWEST CORNER OF PRESTON ROAD AND FRONTIER PARKWAY BETWEEN FRISCO TOLLWAY PARTNERS LTD., AND THE TOWN OF PROSPER. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an Escrow Agreement for construction of median and turn lane improvements to serve the southwest corner of Preston Road and Frontier Parkway between Frisco Tollway Partners LTD., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 9th day of October, 2012. _________________________ Ray Smith, Mayor ATTEST TO: _________________________ Amy Piukana Town Secretary ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 1 August 18, 2011 ESCROW/REIMBURSEMENT AGREEMENT BY AND BETWEEN THE TOWN OF PROSPER, TEXAS AND FRISCO TOLLWAY PARTNERS LTD (Preston Road Median Openings) THIS ESCROW/REIMBURSEMENT AGREEMENT (the “Agreement”) is entered into by and between the TOWN OF PROSPER, TEXAS, a municipal corporation (“Prosper”), and Frisco Tollway Partners LTD (“Owner”). WHEREAS, Prosper has received estimates from the Texas Department of Transportation (“TxDOT”) for the construction of certain improvements to Preston Road (SH 289) (“Preston Road”), including without limitation, the location and construction of median openings along Preston Road (the “Project”); and WHEREAS, Owner owns 14.84 acres, more or less, situated in the Spencer Rice Survey, Abstract No. A0787, Collin County, Texas and adjacent to Preston Road (the “Property”); and WHEREAS, Owner has, in conjunction with the construction of the Project and based on the direct benefit to the Property, requested the construction of a median opening and one or more attached left turn bay(s) on Preston Road at the location hereinafter described (hereinafter defined as the “Property Median Opening”); and WHEREAS, TxDOT has agreed to construct, as part of its reconstruction of Preston Road (SH 289), the Property Median Opening at the location hereinafter set forth provided Owner pays for the construction costs of same; and WHEREAS, as a condition of TxDOT’s construction of the Property Median Opening made the subject of this Agreement, TxDOT requires that Prosper tender the construction costs therefore; and WHEREAS, in consideration for the construction of the Property Median Opening at the location desired by Owner, Prosper requires Owner to place the median opening construction costs in escrow as hereinafter set forth; and WHEREAS, Prosper has investigated and determined that it would be advantageous and beneficial to Prosper and its citizens to participate in the construction of the Project as provided herein. NOW, THEREFORE, in consideration of the covenants and conditions contained in this Agreement, Prosper and Frisco Tollway Partners LTD agree as follows: 1. Description of Project. The Project consists of the construction of certain improvements to Preston Road, including without limitation, the location and construction of median openings along Preston Road, as more particularly depicted on Exhibit “A”, attached hereto and incorporated herein for all purposes. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 2 August 18, 2011 2. Land Subject to Agreement. The land that is the subject of this Agreement is 14.84 acres of land, more or less, situated in the Spencer Rice Survey, Abstract No. A0787, Town of Prosper, Collin County, Texas, and more particularly described in Exhibit “B”, attached hereto and incorporated herein for all purposes (the “Property”). Owner represents it is the sole owner of the Property. 3. Location of Median Openings. In exchange for the payment of the construction costs, TxDOT has agreed to design and construct the median openings: (a) at the locations shown on Exhibit “A”; and (b) in accordance with TxDOT design and construction standards (the “Median Openings”). The median opening located immediately adjacent to a portion of the Property is depicted on Exhibit “A” (the “Property Median Opening”), however, the exact location of the Property Median Opening is subject to change, as solely determined by TxDOT. If the ultimate location(s) of the Median Openings is/are changed, in whole or in part as described herein, resulting in the complete removal of the Property Median Opening from the Project, Prosper will return the Escrow Funds (hereinafter defined), exclusive of interest earned, if any, to the Owner within thirty (30) days of TxDOT’s final decision with regard to the complete removal of the Property Median Opening from the Project. 4. Completion of Construction of Median Openings. Owner acknowledges and agrees that Prosper cannot control the completion of the construction, including without limitation, the timeline therefore, of the Property Median Opening, and, as such, Owner agrees that Prosper shall in no way be liable for any damages, if any, which may be sustained by the Owner and/or Property, resulting, in whole or in part, directly or indirectly, from TxDOT’s failure to complete the construction of the Property Median Opening by any certain date and/or as set forth in this Agreement. 5. Construction of Project. TxDOT will construct the Project and has provided Prosper with its estimate of the costs to construct the Property Median Opening, which amount is anticipated to be Fifty-Four Thousand Nine Hundred Forty-Three and No/100 Dollars ($54,943) (the “Property Median Opening Estimated Construction Costs”). The phrase “construction costs” as used herein shall mean the actual construction costs, TxDOT engineering and contingency fee, surveying costs, landscape design, geotechnical materials testing and inspection fees associated with the Project. The phrase “cost overruns” as used herein shall mean costs, which may be incurred by TxDOT in the construction of the Project and which are over and above the Property Median Opening Estimated Construction Costs. 6. Owner’s Payment of the Property Median Opening Estimated Construction Costs. Within fifteen (60) days of its execution of this Agreement, Owner will pay into an escrow account, at the location solely determined by Prosper, funds equal to the Property Median Opening Estimated Construction Costs (the “Escrow Funds”). The Escrow Funds will be available to Prosper to pay to TxDOT for the construction costs associated with the Property Median Opening, and Prosper shall, in its sole discretion, be entitled to use, at any time, all or a portion of the Escrow Funds in connection with the construction of the Property Median ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 3 August 18, 2011 Opening. Prosper shall further be entitled to, as its sole property, any and all interest earned on the Escrow Funds, and Owner hereby waives and relinquishes any and all rights or claim to interest earned, if any, on the Escrow Funds. In addition, if any amount of the Escrow Funds remains in the account after TxDOT has issued a final letter of acceptance for the construction of Preston Road, including but not limited to, the Property Median Opening, and paid all of the construction costs associated with the Property Median Opening, as solely determined by Prosper, (“Remaining Escrow Funds”), Owner shall be entitled to, as its sole property, the Remaining Escrow Funds. Prosper may, in its sole discretion, utilize the interest earned on the Escrow Funds, if any, for any purpose. Further, Owner shall, within thirty (30) days of receiving written notice from Prosper, tender to Prosper any and all construction cost overruns, approved in writing by Frisco Tollway Partners, associated with the construction of the Property Median Opening. Notwithstanding anything to the contrary herein, Prosper and Owner agree that Prosper shall, under no circumstance, be responsible for any part or portion of the construction costs associated, directly or indirectly, with the Property Median Opening. Should TxDOT fail to commence the reconstruction of Preston Road within three (3) years of TxDOT letting the subject construction contract, Owner shall be entitled to all or any remaining portion of the Escrow Funds, not otherwise expended on the Property Median Opening and exclusive of interest, within thirty (30) days of Prosper receiving a written request for the same. 7. Disclaimer/Waiver of Damages/Liability. Owner acknowledges and agrees that Prosper is not providing any guarantee, representation and/or warranty, and Prosper hereby disclaims any guarantee, representation and/or warranty, of any work performed by TxDOT, its agents, employees, representatives, contractors, subcontractors and/or designees, in connection with the construction of the Property Median Opening, in whole or in part. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, HEREBY RELEASES PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST, AND WAIVES ANY AND ALL RIGHTS TO, ANY AND ALL CLAIMS AND/OR DEMANDS FOR DAMAGES (PERSONAL OR PROPERTY), INJURY (INCLUDING DEATH), OR OTHERWISE, IT/THEY MAY HAVE WITH REGARD TO THE CONSTRUCTION AND/OR COMPLETION OF THE PROPERTY MEDIAN OPENING AND/OR OR ANY OTHER ACT AND/OR OMISSION RELATING, DIRECTLY OR INDIRECTLY, TO THE PROPERTY MEDIAN OPENING, IN WHOLE OR IN PART, AS PROVIDED IN THIS AGREEMENT. 8. INDEMNIFICATION. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO FULLY DEFEND, INDEMNIFY, AND HOLD HARMLESS, PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 4 August 18, 2011 GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF TXDOT AND/OR OWNER, THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FOR WHOM OWNER IS LEGALLY RESPONSBILE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT AND/OR ARISING OUT OF THE CONSTRUCTION OF THE PROPERTY MEDIAN OPENING PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE PROSPER (HEREINAFTER “CLAIMS).IN ITS SOLE DISCRETION, PROSPER SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY OWNER IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY PROSPER, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY PROSPER IN WRITING. PROSPER RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, PROSPER IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY PROSPER IS NOT TO BE CONSTRUED AS A WAIVER OF OWNER’S OBLIGATION TO DEFEND PROSPER OR AS A WAIVER OF OWNER’S OBLIGATION TO INDEMNIFY PROSPER PURSUANT TO THIS AGREEMENT. OWNER SHALL RETAIN PROSPER- APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF PROSPER’S WRITTEN NOTICE THAT PROSPER IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF OWNER FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, PROSPER SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND OWNER SHALL BE LIABLE FOR ALL COSTS INCURRED BY PROSPER. THE RIGHTS AND OBLIGATIONS CREATED BY THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 9. Limitations of Agreement. The parties hereto acknowledge this Agreement is limited to the Property Median Opening only. Prosper Ordinances covering property taxes, utility rates and fees, park dedication, perimeter streets, pro rata fees, any and all impact fees and the like are not affected by this Agreement. Further, this Agreement does not waive or limit any of the obligations of Owner to Prosper under any other ordinance whether now existing or in the future arising. 10. Default. In the event Owner fails to comply with any of the provisions of this Agreement, Prosper shall have the following remedies in addition to Prosper’s other rights and remedies, at law or in equity: a. to refuse to issue building permits in relation to the Property; and/or b. to file this instrument in the Land Records of Collin County as a lien and/or encumbrance against Owner and/or the Property; and/or c. to immediately, without further notice to Owner, cease any and all design and/or construction of the Property Median Opening; and/or d. to seek specific performance. In the event of Prosper’s default under this Agreement, Owner will be entitled to seek specific performance and/or any other remedy available to them at law or in equity. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 5 August 18, 2011 13. Continuity. This Agreement shall be a covenant running with the land and shall be binding upon Owner, its officers, directors, agents, representatives, employees, heirs, representatives, legatees, successors, assigns, grantees and/or trustees. In addition, the parties shall cause this Agreement to be filed in the Land Records of Collin County. 14. Miscellaneous. a. Notice . Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Prosper, to: Mike Land Town Manager Town of Prosper PO BOX 307 Prosper, Texas 75078 If to Owner, to: _________________ _________________ _________________ b. Assignment. This Agreement is not assignable without the prior written consent of Prosper. c. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, as allowed. d. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. e. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 6 August 18, 2011 f. Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. g. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. h. Authority to Execute. The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. i. Savings/Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. j. Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. k. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. l. Sovereign Immunity. The parties agree that Prosper has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. m. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third party beneficiaries by entering into this Agreement. n. Vested Rights/Chapter 245 Waiver. The signatories hereto shall be subject to all ordinances of Prosper, whether now existing or in the future arising. This Agreement shall confer no vested rights on the Property unless specifically enumerated herein. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 7 August 18, 2011 In addition, nothing contained in this Agreement shall constitute a “permit” as defined in Chapter 245, Texas Local Government Code and nothing in this Agreement provides Prosper with fair notice of any project of the Owner. OWNER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. o. Attorneys’ Fees. In any legal proceeding brought to enforce the terms of this Agreement, including but not limited to, a proceeding brought pursuant to ¶10 above, the prevailing party may recover its reasonable and necessary attorneys’ fees from the non- prevailing party as permitted by Section 271.159 of the Texas Local Government Code, as it exists or may be amended. p. Incorporation of Recitals. The representations, covenants and recitations set forth in the foregoing recitals of this Agreement are true and correct and are hereby incorporated into the body of this Agreement and adopted as findings of Prosper and the Owner and/or its authorized representatives. q. Owner’s Warranties/Representations. All warranties, representations and covenants made by Owner in this Agreement or in any certificate or other instrument delivered by Owner to Prosper under this Agreement shall be considered to have been relied upon by Prosper and will survive the satisfaction of any fees and/or payments made under this Agreement, regardless of any investigation made by Prosper or on Prosper’s behalf. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest date as reflected by the signatures below. TOWN OF PROSPER, TEXAS By: __________________________ Name: _______________________ Title: ________________________ Date: ________________________ [OWNER] By: __________________________ Name: ________________________ Title: _________________________ Date:__________________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 8 August 18, 2011 STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for the Town of Prosper, Texas, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State of Texas My Commission Expires:___________________ STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for _________________, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State if Texas My Commission Expires:___________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 9 August 18, 2011 EXHIBIT “A” (Description of Project/Depiction of Property Median Opening) ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 10 December 1. 2010 EXHIBIT “B” (Description of Property) ITEM No.Description Code Description Quantity Unit Price Unit Amount 110 2001 EXCAVATION (ROADWAY)1000.00 $4.50 CY $4,500 132 2006 EMBANKMENT 1000.00 $7.00 CY $7,000 360 2001 CONC PVMT (CRCP)(8")625.00 $40.00 SY $25,000 260 2051 LIME (COM OR QK)(SLURRY)20.00 $139.00 TON $2,780 340 2011 D-GR HMA (TYP-B) PG64-22 94.00 $55.00 TON $5,170 260 LIME TRT (2ND MIX EXIST MATL)625.00 $2.00 SY $1,250 $45,700 $2,285 $6,958 $54,943 SH289 LTL - Station 540+41 ESTIMATED CONSTRUCTION TOTAL 5% CONTINGENCY ADDITIONAL 14.5% DIRECT COSTS TO STATE TOTAL Page 1 of 1 To: Mayor and Town Council From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer CC: Lyle Dresher, Interim Town Manager Re: Town Council Meeting – October 09, 2012 Date: October 03, 2012 Agenda Item: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and H&R Partners. LP., related to the construction of turn lane improvements to serve the east side of Preston Road at Pasewark Drive and 2) Resolution 12-73 authorizing the Town Manager to execute the same. Description of Agenda Item: In conjunction with TxDOT’s construction of SH 289 (Preston Road), H&R Partners, LP., requested staff make the necessary modifications to include the construction of a south bound left turn lane to the parcel located on the east side of Preston Road at Pasewark Drive.. The attached agreement between the Town of Prosper and H&R Partners, LP., obligates the owner to deposit with the Town the estimated $44,303.00 towards the construction of the improvements within 15 days after receiving written notice from the Town. Budget Impact: N/A Legal Obligations and Review: Escrow Agreement prepared by the Town Attorney Attached Documents: The following documentation is being provided for review: 1. Escrow Agreement 2. Resolution Town Staff Recommendation: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and H&R Partners. LP., related to the construction of turn lane improvements to serve the east side of Preston Road at Pasewark Drive and 2) Resolution 12-73 authorizing the Town Manager to execute the same. ENGINEERING Prosper is a place where everyone matters. TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-73 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN ESCROW AGREEMENT FOR CONSTRUCTION OF TURN LANE IMPROVEMENTS TO SERVE THE EAST SIDE OF PRESTON ROAD AT PASEWARK DRIVE BETWEEN H&R PARTNERS, LP., AND THE TOWN OF PROSPER. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an Escrow Agreement for construction of turn lane improvements to serve the east side of Preston Road at Pasewark Drive between H&R Partners, LP., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 9th day of October, 2012. _________________________ Ray Smith, Mayor ATTEST TO: _________________________ Amy Piukana Town Secretary ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 1 December 1. 2010 ESCROW/REIMBURSEMENT AGREEMENT BY AND BETWEEN THE TOWN OF PROSPER, TEXAS AND H&R PARTNERS LP (Preston Left Turn Lane) THIS ESCROW/REIMBURSEMENT AGREEMENT (the “Agreement”) is entered into by and between the TOWN OF PROSPER, TEXAS, a municipal corporation (“Prosper”), and H&R Partners LP (“Owner”). WHEREAS, Prosper has received estimates from the Texas Department of Transportation (“TxDOT”) for the construction of certain improvements to Preston Road (SH 289) (“Preston Road”), including without limitation, the location and construction of median openings along Preston Road (the “Project”); and WHEREAS, Owner owns 5.032 acres, more or less, situated in the J.R. Turney Survey, Abstract No. 916, Collin County, Texas, described in 20071227001707200 and adjacent to Preston Road (the “Property”); and WHEREAS, Owner has, in conjunction with the construction of the Project and based on the direct benefit to the Property, requested the construction of a left turn lane on Preston Road at the location hereinafter described (hereinafter defined as the “Property Left Turn Lane”); and WHEREAS, TxDOT has agreed to construct, as part of its reconstruction of Preston Road (SH 289), the Property Left Turn Lane at the location hereinafter set forth provided Owner pays for the construction costs of same; and WHEREAS, as a condition of TxDOT’s construction of the Property Left Turn Lane made the subject of this Agreement, TxDOT requires that Prosper tender the construction costs therefore; and WHEREAS, in consideration for the construction of the Property Left Turn Lane at the location desired by Owner, Prosper requires Owner to place the left turn lane construction costs in escrow as hereinafter set forth; and WHEREAS, Prosper has investigated and determined that it would be advantageous and beneficial to Prosper and its citizens to participate in the construction of the Project as provided herein. NOW, THEREFORE, in consideration of the covenants and conditions contained in this Agreement, Prosper and H&R Partners L.P. agree as follows: 1. Description of Project. The Project consists of the construction of certain improvements to Preston Road, including without limitation, the location and construction of left turn lane along Preston Road, as more particularly depicted on Exhibit “A”, attached hereto and incorporated herein for all purposes. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 2 December 1. 2010 2. Land Subject to Agreement. The land that is the subject of this Agreement is Property more particularly described in Exhibit “B”, attached hereto and incorporated herein for all purposes (the “Property”). Owners represent they are the sole owners of the Property. 3. Location of Left Turn Lane. In exchange for the payment of the construction costs, TxDOT has agreed to design and construct the median openings: (a) at the locations shown on Exhibit “A”; and (b) in accordance with TxDOT design and construction standards (the “Left Turn Lane”). The left turn lane immediately adjacent to a portion of the Property is depicted on Exhibit “A” (the “Property Left Turn Lane”), however, the exact location of the Property Left Turn Lane is subject to change, as solely determined by TxDOT. If the ultimate location(s) of the Left Turn Lane is/are changed, in whole or in part as described herein, resulting in the complete removal of the Property Left Turn Lane from the Project, Prosper will return the Escrow Funds (hereinafter defined), exclusive of interest earned, if any, to the Owner within thirty (30) days of TxDOT’s final decision with regard to the complete removal of the Property Left Turn Lane from the Project. 4. Completion of Construction of Left Turn Lane. Owner acknowledges and agrees that Prosper cannot control the completion of the construction, including without limitation, the timeline therefore, of the Property Left Turn Lane, and, as such, Owner agrees that Prosper shall in no way be liable for any damages, if any, which may be sustained by the Owner and/or Property, resulting, in whole or in part, directly or indirectly, from TxDOT’s failure to complete the construction of the Property Left Turn Lane by any certain date and/or as set forth in this Agreement. 5. Construction of Project. TxDOT will construct the Project and has provided Prosper with its estimate of the costs to construct the Property Left Turn Lane, which amount is anticipated to be Forty-Four Thousand Three Hundred Three and No/100 Dollars ($44,303) (the “Property Left Turn Lane Estimated Construction Costs”). The phrase “construction costs” as used herein shall mean the actual construction costs, TxDOT engineering and contingency fee, surveying costs, landscape design, geotechnical materials testing and inspection fees associated with the Project. The phrase “cost overruns” as used herein shall mean costs, which may be incurred by TxDOT in the construction of the Project and which are over and above the Property Left Turn Lane Estimated Construction Costs. 6. Owner’s Payment of the Property Left Turn Lane Estimated Construction Costs. Within thirty (45) days of the contract letting by TxDOT, Owner will pay into an escrow account, at the location solely determined by Prosper, funds equal to the Property Left Turn Lane Estimated Construction Costs (the “Escrow Funds”). The Escrow Funds will be utilized by Prosper to pay for the construction costs associated with the Property Left Turn Lane. Prosper shall be entitled to, as its sole property, any and all interest earned on the Escrow Funds, and Owner hereby waives and relinquishes any and all rights or claim to interest earned, if any, on the Escrow Funds. In addition, if any amount of the Escrow Funds remains in the account after TxDOT has issued a final letter of acceptance for the construction of Preston Road, including but ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 3 December 1. 2010 not limited to, the Property Left Turn Lane, and paid all of the construction costs associated with the Property Left Turn Lane, as solely determined by Prosper, (“Remaining Escrow Funds”), Owner shall be entitled to, as its sole property, the Remaining Escrow Funds. Prosper may, in its sole discretion, utilize the interest earned on the Escrow Funds, if any, for any purpose. Further, Owner shall, within thirty (30) days of receiving written notice from Prosper, tender to Prosper any and all construction cost overruns associated with the construction of the Property Left Turn Lane. Notwithstanding anything to the contrary herein, Prosper and Owner agree that Prosper shall, under no circumstance, be responsible for any part or portion of the construction costs associated, directly or indirectly, with the Property Left Turn Lane. Should TxDOT fail to commence the reconstruction of Preston Road within three (3) years of TxDOT letting the subject construction contract, Owner shall be entitled to all or any remaining portion of the Escrow Funds, not otherwise expended on the Property Left Turn Lane and exclusive of interest, within thirty (30) days of Prosper receiving a written request for the same. 7. Disclaimer/Waiver of Damages/Liability. Owner acknowledges and agrees that Prosper is not providing any guarantee, representation and/or warranty, and Prosper hereby disclaims any guarantee, representation and/or warranty, of any work performed by TxDOT, its agents, employees, representatives, contractors, subcontractors and/or designees, in connection with the construction of the Property Left Turn Lane, in whole or in part. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, HEREBY RELEASES PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST, AND WAIVES ANY AND ALL RIGHTS TO, ANY AND ALL CLAIMS AND/OR DEMANDS FOR DAMAGES (PERSONAL OR PROPERTY), INJURY (INCLUDING DEATH), OR OTHERWISE, IT/THEY MAY HAVE WITH REGARD TO THE CONSTRUCTION AND/OR COMPLETION OF THE PROPERTY LEFT TURN LANE AND/OR OR ANY OTHER ACT AND/OR OMISSION RELATING, DIRECTLY OR INDIRECTLY, TO THE PROPERTY LEFT TURN LANE, IN WHOLE OR IN PART, AS PROVIDED IN THIS AGREEMENT. 8. INDEMNIFICATION. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO FULLY DEFEND, INDEMNIFY, AND HOLD HARMLESS, PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF TXDOT AND/OR OWNER, THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FOR WHOM OWNER IS LEGALLY RESPONSBILE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT AND/OR ARISING OUT OF THE CONSTRUCTION OF THE PROPERTY LEFT TURN LANE PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 4 December 1. 2010 LIABILITY OF THE PROSPER (HEREINAFTER “CLAIMS).IN ITS SOLE DISCRETION, PROSPER SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY OWNER IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY PROSPER, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY PROSPER IN WRITING. PROSPER RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, PROSPER IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY PROSPER IS NOT TO BE CONSTRUED AS A WAIVER OF OWNER’S OBLIGATION TO DEFEND PROSPER OR AS A WAIVER OF OWNER’S OBLIGATION TO INDEMNIFY PROSPER PURSUANT TO THIS AGREEMENT. OWNER SHALL RETAIN PROSPER- APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF PROSPER’S WRITTEN NOTICE THAT PROSPER IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF OWNER FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, PROSPER SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND OWNER SHALL BE LIABLE FOR ALL COSTS INCURRED BY PROSPER. THE RIGHTS AND OBLIGATIONS CREATED BY THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 9. Limitations of Agreement. The parties hereto acknowledge this Agreement is limited to the Property Left Turn Lane only. Prosper Ordinances covering property taxes, utility rates and fees, park dedication, perimeter streets, pro rata fees, any and all impact fees and the like are not affected by this Agreement. Further, this Agreement does not waive or limit any of the obligations of Owner to Prosper under any other ordinance whether now existing or in the future arising. 10. Default. In the event Owner fails to comply with any of the provisions of this Agreement, Prosper shall have the following remedies in addition to Prosper’s other rights and remedies, at law or in equity: a. to refuse to issue building permits in relation to the Property; and/or b. to file this instrument in the Land Records of Collin County as a lien and/or encumbrance against Owner and/or the Property; and/or c. to immediately, without further notice to Owner, cease any and all design and/or construction of the Property Median Opening; and/or d. to seek specific performance. In the event of Prosper’s default under this Agreement, Owner will be entitled to seek specific performance and/or any other remedy available to them at law or in equity. 13. Continuity. This Agreement shall be a covenant running with the land and shall be binding upon Owner, its officers, directors, agents, representatives, employees, heirs, representatives, legatees, successors, assigns, grantees and/or trustees. In addition, the parties shall cause this Agreement to be filed in the Land Records of Collin County. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 5 December 1. 2010 14. Miscellaneous. a. Notice . Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Prosper, to: Mike Land Town Manager Town of Prosper PO BOX 307 Prosper, Texas 75078 If to Owner, to: H&R Partners LP 1222 N. St. Charles Ave. Pilot Point, TX. 76258-2727 b. Assignment. This Agreement is not assignable without the prior written consent of Prosper. c. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, as allowed. d. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. e. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. f. Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. g. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 6 December 1. 2010 h. Authority to Execute. The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. i. Savings/Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. j. Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. k. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. l. Sovereign Immunity. The parties agree that Prosper has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. m. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third party beneficiaries by entering into this Agreement. n. Vested Rights/Chapter 245 Waiver. The signatories hereto shall be subject to all ordinances of Prosper, whether now existing or in the future arising. This Agreement shall confer no vested rights on the Property unless specifically enumerated herein. In addition, nothing contained in this Agreement shall constitute a “permit” as defined in Chapter 245, Texas Local Government Code and nothing in this Agreement provides Prosper with fair notice of any project of the Owner. OWNER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. o. Attorneys’ Fees. In any legal proceeding brought to enforce the terms of this Agreement, including but not limited to, a proceeding brought pursuant to ¶10 above, the ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 7 December 1. 2010 prevailing party may recover its reasonable and necessary attorneys’ fees from the non- prevailing party as permitted by Section 271.159 of the Texas Local Government Code, as it exists or may be amended. p. Incorporation of Recitals. The representations, covenants and recitations set forth in the foregoing recitals of this Agreement are true and correct and are hereby incorporated into the body of this Agreement and adopted as findings of Prosper and the Owner and/or its authorized representatives. q. Owner’s Warranties/Representations. All warranties, representations and covenants made by Owner in this Agreement or in any certificate or other instrument delivered by Owner to Prosper under this Agreement shall be considered to have been relied upon by Prosper and will survive the satisfaction of any fees and/or payments made under this Agreement, regardless of any investigation made by Prosper or on Prosper’s behalf. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest date as reflected by the signatures below. TOWN OF PROSPER, TEXAS By: __________________________ Name: _______________________ Title: ________________________ Date: ________________________ [OWNERS] By: __________________________ Name: ________________________ Title: _________________________ Date:__________________________ By: __________________________ Name: ________________________ Title: _________________________ Date:__________________________ By: __________________________ Name: ________________________ Title: _________________________ Date:__________________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 8 December 1. 2010 STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for the City of Prosper, Texas, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State of Texas My Commission Expires:___________________ STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for _________________, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State if Texas My Commission Expires:___________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 9 December 1. 2010 EXHIBIT “A” (Description of Project/Depiction of Property Left Turn Lane) ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--HRpartners) - Page 10 December 1. 2010 EXHIBIT “B” (Description of Property) ITEM No.Description Code Description Quantity Unit Price Unit Amount 110 2001 EXCAVATION (ROADWAY)500.00 $4.50 CY $2,250.00 132 2006 EMBANKMENT 250.00 $7.00 CY $1,750.00 360 2001 CONC PVMT (CRCP)(8")603.00 $40.00 SY $24,120.00 260 2051 LIME (COM OR QK)(SLURRY)11.00 $139.00 TON $1,529.00 340 2011 D-GR HMA (TYP-B) PG64-22 109.00 $55.00 TON $5,995.00 260 LIME TRT (2ND MIX EXIST MATL)603.00 $2.00 SY $1,206.00 $36,850 $1,843 $5,610 $44,303 SH289 LTL - Station 606+65 ESTIMATED CONSTRUCTION TOTAL 5% CONTINGENCY ADDITIONAL 14.5% DIRECT COSTS TO STATE TOTAL Page 1 of 1 To: Mayor and Town Council From: Hulon T. Webb, Jr., P.E., Director of Development Services/Town Engineer CC: Lyle Dresher, Interim Town Manager Re: Town Council Meeting – October 09, 2012 Date: October 03, 2012 Agenda Item: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Saddle Creek Investments, LTD, related to the construction of median and turn lane improvements to serve the northwest corner of Preston Road and Prosper Trail and 2) Resolution 12-74 authorizing the Town Manager to execute the same. Description of Agenda Item: In conjunction with TxDOT’s construction of SH 289 (Preston Road), Saddle Creek Investments, LTD., requested staff make the necessary modifications to include the construction of a median opening and north bound left turn lane to the parcel located on the northwest corner of Preston Road and Prosper Trail. The attached agreement between the Town of Prosper and Saddle Creek Investments, LTD., obligates the developer to deposit with the Town the estimated $56,206.00 towards the construction of the improvements within 15 days after receiving written notice from the Town. Budget Impact: N/A Legal Obligations and Review: Escrow Agreement prepared by the Town Attorney Attached Documents: The following documentation is being provided for review: 1. Escrow Agreement 2. Resolution Town Staff Recommendation: Consider and act upon 1) an Escrow Agreement between the Town of Prosper and Saddle Creek Investments, LTD, related to the construction of median and turn lane improvements to serve the northwest corner of Preston Road and Prosper Trail and 2) Resolution 12-74 authorizing the Town Manager to execute the same. ENGINEERING Prosper is a place where everyone matters. TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-74 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN ESCROW AGREEMENT FOR CONSTRUCTION OF MEDIAN AND TURN LANE IMPROVEMENTS TO SERVE THE NORTHWEST CORNER OF PRESTON ROAD AND PROSPER TRAIL BETWEEN SADDLE CREEK INVESTMENTS LTD., AND THE TOWN OF PROSPER. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, an Escrow Agreement for construction of median and turn lane improvements to serve the northwest corner of Preston Road and Prosper Trail between Saddle Creek Investments LTD., and the Town of Prosper, as hereto attached. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 9th day of October, 2012. _________________________ Ray Smith, Mayor ATTEST TO: _________________________ Amy Piukana Town Secretary ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 1 December 1. 2010 ESCROW/REIMBURSEMENT AGREEMENT BY AND BETWEEN THE TOWN OF PROSPER, TEXAS AND SADDLE CREEK INVESTMENTS LTD (Preston Road Median Openings) THIS ESCROW/REIMBURSEMENT AGREEMENT (the “Agreement”) is entered into by and between the TOWN OF PROSPER, TEXAS, a municipal corporation (“Prosper”), and Saddle Creek Investments LTD (“Owner”). WHEREAS, Prosper has received estimates from the Texas Department of Transportation (“TxDOT”) for the construction of certain improvements to Preston Road (SH 289) (“Preston Road”), including without limitation, the location and construction of median openings along Preston Road (the “Project”); and WHEREAS, Owner owns Block A, Lot 2 - 13.709 acres, more or less, situated in the Spencer Rice Survey, Abstract No. 787, Collin County, Texas, described in 20090805010001980 and adjacent to Preston Road (the “Property”); and WHEREAS, Owner has, in conjunction with the construction of the Project and based on the direct benefit to the Property, requested the construction of a median opening and one or more attached left turn bay(s) on Preston Road at the location hereinafter described (hereinafter defined as the “Property Median Opening”); and WHEREAS, TxDOT has agreed to construct, as part of its reconstruction of Preston Road (SH 289), the Property Median Opening at the location hereinafter set forth provided Owner pays for the construction costs of same; and WHEREAS, as a condition of TxDOT’s construction of the Property Median Opening made the subject of this Agreement, TxDOT requires that Prosper tender the construction costs therefore; and WHEREAS, in consideration for the construction of the Property Median Opening at the location desired by Owner, Prosper requires Owner to place the median opening construction costs in escrow as hereinafter set forth; and WHEREAS, Prosper has investigated and determined that it would be advantageous and beneficial to Prosper and its citizens to participate in the construction of the Project as provided herein. NOW, THEREFORE, in consideration of the covenants and conditions contained in this Agreement, Prosper and Saddle Creek Investments LTD agree as follows: 1. Description of Project. The Project consists of the construction of certain improvements to Preston Road, including without limitation, the location and construction of ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 2 December 1. 2010 median openings along Preston Road, as more particularly depicted on Exhibit “A”, attached hereto and incorporated herein for all purposes. 2. Land Subject to Agreement. The land that is the subject of this Agreement is 13.709 acres of land, more or less, situated in the Spencer Rice Survey, Abstract No. 787, City of Prosper, Collin County, Texas, and more particularly described in Exhibit “B”, attached hereto and incorporated herein for all purposes (the “Property”). Owners represent they are the sole owners of the Property. 3. Location of Median Openings. In exchange for the payment of the construction costs, TxDOT has agreed to design and construct the median openings: (a) at the locations shown on Exhibit “A”; and (b) in accordance with TxDOT design and construction standards (the “Median Openings”). The median opening located immediately adjacent to a portion of the Property is depicted on Exhibit “A” (the “Property Median Opening”), however, the exact location of the Property Median Opening is subject to change, as solely determined by TxDOT. If the ultimate location(s) of the Median Openings is/are changed, in whole or in part as described herein, resulting in the complete removal of the Property Median Opening from the Project, Prosper will return the Escrow Funds (hereinafter defined), exclusive of interest earned, if any, to the Owner within thirty (30) days of TxDOT’s final decision with regard to the complete removal of the Property Median Opening from the Project. 4. Completion of Construction of Median Openings. Owner acknowledges and agrees that Prosper cannot control the completion of the construction, including without limitation, the timeline therefore, of the Property Median Opening, and, as such, Owner agrees that Prosper shall in no way be liable for any damages, if any, which may be sustained by the Owner and/or Property, resulting, in whole or in part, directly or indirectly, from TxDOT’s failure to complete the construction of the Property Median Opening by any certain date and/or as set forth in this Agreement. 5. Construction of Project. TxDOT will construct the Project and has provided Prosper with its estimate of the costs to construct the Property Median Opening, which amount is anticipated to be Fifty-Six Thousand Two Hundred Six and No/100 Dollars ($56,206) (the “Property Median Opening Estimated Construction Costs”). The phrase “construction costs” as used herein shall mean the actual construction costs, TxDOT engineering and contingency fee, surveying costs, landscape design, geotechnical materials testing and inspection fees associated with the Project. The phrase “cost overruns” as used herein shall mean costs, which may be incurred by TxDOT in the construction of the Project and which are over and above the Property Median Opening Estimated Construction Costs. 6. Owner’s Payment of the Property Median Opening Estimated Construction Costs. Within thirty (60) days of the contract letting by TxDOT, Owner will pay into an escrow account, at the location solely determined by Prosper, funds equal to the Property Median Opening Estimated Construction Costs (the “Escrow Funds”). The Escrow Funds will be utilized by Prosper to pay for the construction costs associated with the Property Median ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 3 December 1. 2010 Opening. Prosper shall be entitled to, as its sole property, any and all interest earned on the Escrow Funds, and Owner hereby waives and relinquishes any and all rights or claim to interest earned, if any, on the Escrow Funds. In addition, if any amount of the Escrow Funds remains in the account after TxDOT has issued a final letter of acceptance for the construction of Preston Road, including but not limited to, the Property Median Opening, and paid all of the construction costs associated with the Property Median Opening, as solely determined by Prosper, (“Remaining Escrow Funds”), Owner shall be entitled to, as its sole property, the Remaining Escrow Funds. Prosper may, in its sole discretion, utilize the interest earned on the Escrow Funds, if any, for any purpose. Further, Owner shall, within thirty (30) days of receiving written notice from Prosper, tender to Prosper any and all construction cost overruns associated with the construction of the Property Median Opening. Notwithstanding anything to the contrary herein, Prosper and Owner agree that Prosper shall, under no circumstance, be responsible for any part or portion of the construction costs associated, directly or indirectly, with the Property Median Opening. Should TxDOT fail to commence the reconstruction of Preston Road within three (3) years of TxDOT letting the subject construction contract, Owner shall be entitled to all or any remaining portion of the Escrow Funds, not otherwise expended on the Property Median Opening and exclusive of interest, within thirty (30) days of Prosper receiving a written request for the same. 7. Disclaimer/Waiver of Damages/Liability. Owner acknowledges and agrees that Prosper is not providing any guarantee, representation and/or warranty, and Prosper hereby disclaims any guarantee, representation and/or warranty, of any work performed by TxDOT, its agents, employees, representatives, contractors, subcontractors and/or designees, in connection with the construction of the Property Median Opening, in whole or in part. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, HEREBY RELEASES PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST, AND WAIVES ANY AND ALL RIGHTS TO, ANY AND ALL CLAIMS AND/OR DEMANDS FOR DAMAGES (PERSONAL OR PROPERTY), INJURY (INCLUDING DEATH), OR OTHERWISE, IT/THEY MAY HAVE WITH REGARD TO THE CONSTRUCTION AND/OR COMPLETION OF THE PROPERTY MEDIAN OPENING AND/OR OR ANY OTHER ACT AND/OR OMISSION RELATING, DIRECTLY OR INDIRECTLY, TO THE PROPERTY MEDIAN OPENING, IN WHOLE OR IN PART, AS PROVIDED IN THIS AGREEMENT. 8. INDEMNIFICATION. OWNER, ITS OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES, HEIRS, REPRESENTATIVES, LEGATEES, SUCCESSORS, ASSIGNS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO FULLY DEFEND, INDEMNIFY, AND HOLD HARMLESS, PROSPER, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES, FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF TXDOT AND/OR ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 4 December 1. 2010 OWNER, THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FOR WHOM OWNER IS LEGALLY RESPONSBILE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT AND/OR ARISING OUT OF THE CONSTRUCTION OF THE PROPERTY MEDIAN OPENING PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE PROSPER (HEREINAFTER “CLAIMS).IN ITS SOLE DISCRETION, PROSPER SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY OWNER IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY PROSPER, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY PROSPER IN WRITING. PROSPER RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, PROSPER IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY PROSPER IS NOT TO BE CONSTRUED AS A WAIVER OF OWNER’S OBLIGATION TO DEFEND PROSPER OR AS A WAIVER OF OWNER’S OBLIGATION TO INDEMNIFY PROSPER PURSUANT TO THIS AGREEMENT. OWNER SHALL RETAIN PROSPER- APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF PROSPER’S WRITTEN NOTICE THAT PROSPER IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF OWNER FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, PROSPER SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND OWNER SHALL BE LIABLE FOR ALL COSTS INCURRED BY PROSPER. THE RIGHTS AND OBLIGATIONS CREATED BY THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 9. Limitations of Agreement. The parties hereto acknowledge this Agreement is limited to the Property Median Opening only. Prosper Ordinances covering property taxes, utility rates and fees, park dedication, perimeter streets, pro rata fees, any and all impact fees and the like are not affected by this Agreement. Further, this Agreement does not waive or limit any of the obligations of Owner to Prosper under any other ordinance whether now existing or in the future arising. 10. Default. In the event Owner fails to comply with any of the provisions of this Agreement, Prosper shall have the following remedies in addition to Prosper’s other rights and remedies, at law or in equity: a. to refuse to issue building permits in relation to the Property; and/or b. to file this instrument in the Land Records of Collin County as a lien and/or encumbrance against Owner and/or the Property; and/or c. to immediately, without further notice to Owner, cease any and all design and/or construction of the Property Median Opening; and/or d. to seek specific performance. In the event of Prosper’s default under this Agreement, Owner will be entitled to seek specific performance and/or any other remedy available to them at law or in equity. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 5 December 1. 2010 13. Continuity. This Agreement shall be a covenant running with the land and shall be binding upon Owner, its officers, directors, agents, representatives, employees, heirs, representatives, legatees, successors, assigns, grantees and/or trustees. In addition, the parties shall cause this Agreement to be filed in the Land Records of Collin County. 14. Miscellaneous. a. Notice . Any notice required to be sent under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or certified with return receipt requested, or by delivering the same in person to such party via a hand-delivery service, Federal Express or any courier service that provides a return receipt showing the date of actual delivery of same to the addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall be as follows: If to Prosper, to: Mike Land Town Manager Town of Prosper PO BOX 307 Prosper, Texas 75078 If to Owner, to: _________________ _________________ _________________ b. Assignment. This Agreement is not assignable without the prior written consent of Prosper. c. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, as allowed. d. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the parties hereto. e. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. f. Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 6 December 1. 2010 g. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. h. Authority to Execute. The individuals executing this Agreement on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. i. Savings/Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. j. Representations. Each signatory represents this Agreement has been read by the party for which this Agreement is executed and that such party has had an opportunity to confer with its counsel. k. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Agreement are for the convenience of the parties and are not intended to be used in construing this document. l. Sovereign Immunity. The parties agree that Prosper has not waived its sovereign immunity by entering into and performing its obligations under this Agreement. m. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the parties do not intend to create any third party beneficiaries by entering into this Agreement. n. Vested Rights/Chapter 245 Waiver. The signatories hereto shall be subject to all ordinances of Prosper, whether now existing or in the future arising. This Agreement shall confer no vested rights on the Property unless specifically enumerated herein. In addition, nothing contained in this Agreement shall constitute a “permit” as defined in Chapter 245, Texas Local Government Code and nothing in this Agreement provides Prosper with fair notice of any project of the Owner. OWNER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 7 December 1. 2010 245 OF THE TEXAS LOCAL GOVERNMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. o. Attorneys’ Fees. In any legal proceeding brought to enforce the terms of this Agreement, including but not limited to, a proceeding brought pursuant to ¶10 above, the prevailing party may recover its reasonable and necessary attorneys’ fees from the non- prevailing party as permitted by Section 271.159 of the Texas Local Government Code, as it exists or may be amended. p. Incorporation of Recitals. The representations, covenants and recitations set forth in the foregoing recitals of this Agreement are true and correct and are hereby incorporated into the body of this Agreement and adopted as findings of Prosper and the Owner and/or its authorized representatives. q. Owner’s Warranties/Representations. All warranties, representations and covenants made by Owner in this Agreement or in any certificate or other instrument delivered by Owner to Prosper under this Agreement shall be considered to have been relied upon by Prosper and will survive the satisfaction of any fees and/or payments made under this Agreement, regardless of any investigation made by Prosper or on Prosper’s behalf. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest date as reflected by the signatures below. TOWN OF PROSPER, TEXAS By: __________________________ Name: _______________________ Title: ________________________ Date: ________________________ [OWNERS] By: __________________________ Name: ________________________ Title: _________________________ Date:__________________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 8 December 1. 2010 STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for the City of Prosper, Texas, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State of Texas My Commission Expires:___________________ STATE OF TEXAS * * COUNTY OF COLLIN * BEFORE ME, the undersigned authority, on this day personally appeared _________________________, known to me to be one of the persons whose names are subscribed to the foregoing instrument; he/she acknowledged to me he/she is the duly authorized representative for _________________, and he/she executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of ____________________ 2011. _______________________________________ Notary Public in and for the State if Texas My Commission Expires:___________________ ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 9 December 1. 2010 EXHIBIT “A” (Description of Project/Depiction of Property Median Opening) ESCROW/REIMBURSEMENT AGREEMENT (Preston Road Median Openings--_______) - Page 10 December 1. 2010 EXHIBIT “B” (Description of Property) ITEM No.Description Code Description Quantity Unit Price Unit Amount 110 2001 EXCAVATION (ROADWAY)1000.00 $4.50 CY $4,500.00 132 2006 EMBANKMENT 1000.00 $7.00 CY $7,000.00 360 2001 CONC PVMT (CRCP)(8")650.00 $40.00 SY $26,000.00 260 2051 LIME (COM OR QK)(SLURRY)20.00 $139.00 TON $2,780.00 340 2011 D-GR HMA (TYP-B) PG64-22 94.00 $55.00 TON $5,170.00 260 LIME TRT (2ND MIX EXIST MATL)650.00 $2.00 SY $1,300.00 $46,750 $2,338 $7,118 $56,205 SH289 LTL - Station 575+50 ESTIMATED CONSTRUCTION TOTAL 5% CONTINGENCY ADDITIONAL 14.5% DIRECT COSTS TO STATE TOTAL Page 1 of 2 To: Mayor and Town Council From: Amy Piukana, Town Secretary Cc: Lyle Dresher, Interim Town Manager Re: Prosper Town Council Meeting – October 9, 2012 Date: October 2, 2012 Agenda Item: Consider and act upon a resolution reappointing the Municipal Judge. Description of Agenda Item: Article IV, Section 4.03 of the Town Charter requires the Town Council to appoint by the affirmative vote of a majority of the full membership of the Town Council such Municipal Judges of the Municipal Court as may be necessary. The Municipal Judge(s) of the Municipal Court(s) shall be appointed to a term of two (2) years and may be appointed to additional consecutive terms upon completion of his/her/their term(s) of office. The appointment of the Municipal Judge(s) may be terminated at any time by the affirmative vote of a majority of the full membership of the Town Council. The Municipal Judge(s) shall receive compensation as may be determined by the Town Council. Judge David Moore has been the Municipal Court Judge for the Town of Prosper for 9 years. He brings over 12 years of exemplary experience and public service to the communities in Collin County including Melissa, Prosper, Anna, Lowry Crossing, St. Joseph and visiting Westminster on behalf of State Receivership. Judge Moore is a 27 year Collin County resident. Judge Moore is a member of the TMCA (Texas Municipal Courts Association). Judge Moore has listened to over 5,000 cases in the Prosper Municipal Court, only two of these cases have been contested. One of the contested cases was an ordinance violation where the defendant was found guilty by a jury; the second was a bench trial for possession of alcohol by a minor. The defendant was also found guilty in this case. Judge Moore has saved the Town money on legal fees by having so many uncontested cases in our court. Judge Moore’s continuing education and required education classes are paid for by Melissa at no expense to the Town. Judge Moore is always willing to meet Town police officers to sign warrants and affidavits and conduct juvenile magistrates and warrant round ups at any time he is needed without charging the Town for these added duties. The Town’s Municipal Court has never had a complaint filed against it. Budget Impact: Administration Page 2 of 2 Judge Moore’s compensation is $375 per session, the annual amount of $9,000 which has not increased. Legal Obligations and Review: As noted above, the Town Charter requires the Town Council to appoint by the affirmative vote of a majority of the full membership of the Town Council a Municipal Judge of the Municipal Court for a term of two (2) years. Attached Documents: None Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council approve Resolution No. 12-76 reappointing Judge Moore as the Town’s Municipal Judge. TOWN OF PROSPER, TEXAS RESOLUTION NO. 12-76 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A SERVICE AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS AND EVEREST FINANCIAL GROUP. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1: The Mayor of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, appointment of Judge David Moore as the Municipal Court Judge for a two year appointment as required by the Town Charter. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 9th Day of October, 2012. _________________________________ Ray Smith, Mayor ATTEST TO: _________________________________ Amy M. Piukana, TRMC Town Secretary Page 1 of 1 To: Mayor and Town Council From: Matthew B. Garrett, Finance Director CC: Lyle Dresher, Interim Town Manager Re: Town Council Meeting – October 9, 2012 Date: October 4, 2012 Agenda Item: Consider and act upon an Ordinance 12-34 establishing the levy of a hotel occupancy tax. Description of Agenda Item: Once the Town begins to attract hotels and other affected lodging, this ordinance will allow the Town to collect a hotel occupancy tax rate of seven (7) percent. Under the Tax Code, every event, program, or facility funded with hotel occupancy tax revenues must be likely to do two things: 1) directly promote tourism; and 2) directly promote the convention and hotel industry. Also, expenditures of the hotel occupancy tax must clearly fit into one of nine statutorily provided categories for expenditure of local hotel occupancy tax revenues. It is important to note that Texas law also provides that the hotel occupancy tax may not be used for general revenue purposes or general governmental operations of a municipality. It also may not be used to pay for governmental expenses that are not directly related to increasing tourism and hotel and convention activity Budget Impact: With no immediate expectations of a hotel in Town, this item does not have a budget impact. Legal Obligations and Review: Rebecca Brewer authored the reviewed the Ordinance as attached. Attached Documents: Ordinance 12-34 Board, Committee and/or Staff Recommendation: Town staff recommends that the Town Council adopt Ordinance 12-34 establishing the levy of a hotel occupancy tax. Prosper is a place where everyone matters. Administration Hotel/Motel Occupancy Tax Ordinance Page 1 615907.1 TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-34 AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, ESTABLISHING THE LEVY OF A HOTEL OCCUPANCY TAX PURSUANT TO §351.001, et seq., TEXAS TAX CODE; 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 THEREOF. WHEREAS, the Town Council of the Town of Prosper, Texas (“Town Council”) is of the opinion that it is in the best interest of the citizens to expend public funds to: (1) advertise the Town of Prosper, Texas (“Prosper”); (2) encourage tourism; and (3) promote Prosper in general; and WHEREAS, the Town Council finds that a large portion of the public facilities are necessarily supplied for the use of transient public in the form of display, entertainment, convention, historical and art facilities; and WHEREAS, the burden of financing the facilities and programs should be spread to the extent possible among the persons for whom the facilities are being provided and held and receive the benefits of same from time to time; and WHEREAS, §351.003 of the Texas Tax Code allows for the levy of tax not to exceed seven percent (7%) of the price paid for a room; and WHEREAS, the Town Council has investigated and determined that it would be advantageous and beneficial to Prosper and its inhabitants to establish the hotel occupancy tax authorized by the Texas Tax Code. 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: Definitions. Town Manager shall mean the Town Manager of Prosper or his/her designated representative. Consideration shall mean the cost of the room in such hotel only if the room is one ordinarily used for sleeping and shall not include the cost of any food served or personal services rendered to the occupant of such room not related to the cleaning and readying of such room for occupancy. Hotel/Motel Occupancy Tax Ordinance Page 2 615907.1 Hotel shall mean a building or buildings in which the public may, for consideration, obtain sleeping accommodations. The term shall include hotels, motels, tourist homes, houses or courts, lodging houses, inns, rooming houses or other buildings where rooms are furnished for a consideration, but “hotel” shall not be defined so as to include hospitals, sanitariums or nursing homes. Hotel Occupancy Tax shall mean the tax imposed by this Ordinance. Reporting period shall mean either the monthly or quarterly reporting period that applies to a person as determined by §156.151, Texas Tax Code, as it exists or may be amended. Occupancy shall mean the use or possession, or the right to the use or possession, of any room in a hotel if the room is one ordinarily used for sleeping and if the occupant’s use, possession or right to use or possession extends for a period of less than thirty (30) days. Occupant shall mean anyone who, for consideration, uses, possesses or has a right to use or possess any room in a hotel if the room is one ordinarily used for sleeping. Permanent resident shall mean any occupant who has or shall have the right of occupancy of any room or rooms or sleeping space or facility in a hotel for at least thirty (30) consecutive days during the current calendar year or preceding year. Person shall mean any individual, company, corporation or association owning, operating, managing or controlling any hotel. SECTION 3: Levy of Tax, Rate; Exemptions. There is hereby levied a tax upon the cost of occupancy of any room or space furnished by any hotel where such cost of occupancy is at the rate of TWO DOLLARS ($2.00) or more per day, such tax to be equal to seven percent (7%) of the consideration paid by the occupant of such room, space or facility to such hotel, exclusive of other occupancy taxes imposed by other governmental agencies. Exemptions to the levy of the hotel occupancy tax imposed herein shall be the same as those prescribed by §351.006, Texas Tax Code, as it exists or may be amended. SECTION 4: Extraterritorial Jurisdiction. Any hotel occupancy tax provided herein shall be imposed in the Prosper extraterritorial jurisdiction, provided, however, that the levy such taxed shall not result in a combined rate of state, county or municipal hotel occupancy taxes in the extraterritorial jurisdiction which exceeds fifteen percent (15%) of the price paid for a room in a hotel. SECTION 5: Disposition of Revenue. The revenue derived from the hotel occupancy tax will only be used for the purposes authorized by '351.001, et seq., Texas Tax Code, as it exists or may be amended, as the Town Council may direct and authorize. Hotel/Motel Occupancy Tax Ordinance Page 3 615907.1 SECTION 6: Collection. Every person owning, operating, managing or controlling any hotel shall collect the hotel occupancy tax imposed by this Ordinance for Prosper. SECTION 7: Reports. On the last day of the month that follows each reporting period, every person required to collect the tax imposed by of this Ordinance shall file a report with the Town Manager showing the consideration paid for all room occupancies in the preceding reporting period, the amount of the tax collected on such occupancies and any other information as the Town Manager or his or her designated representative may reasonably require. Such person shall pay the hotel occupancy tax due on such occupancies at the time of filing such report. SECTION 8: Rules and Regulations. The Town Manager shall have the power to make such rules and regulations as are necessary to effectively collect the hotel occupancy tax levied by this Ordinance and shall upon reasonable notice have access to books and records necessary to enable him/her to determine the correctness of any report filed as required by this Ordinance and the amount of taxes due under the provisions of this Ordinance. All powers granted to Prosper by Chapter 351, Texas Tax Code, as it exists or may be amended, are hereby adopted by this Ordinance. SECTION 9: Penalty Provision. If any person, firm, corporation or entity shall fail to collect the hotel occupancy tax imposed by this Ordinance, or shall fail to file a report as required herein, or shall fail to pay to the Town Manager the tax imposed by this Ordinance when said report for payment is due, or shall file a false report, then such person, firm, corporation or entity shall be deemed guilty of a misdemeanor and upon conviction be punished a fine of not less than FIFTY DOLLARS ($50.00) nor more than FIVE HUNDRED DOLLARS ($500.00) per offense. In addition, such person, firm, corporation or entity who fails to remit the hotel occupancy tax imposed by this Ordinance within the time required shall be subject to the collection procedures and penalties authorized by Chapter 351 and other relevant provisions of the Texas Tax Code, as it exists or may be amended. Furthermore, delinquent hotel occupancy taxes shall also draw interest at the rate of ten percent (10%) per annum beginning sixty (60) days from the date due. SECTION 10: Savings/Repealing Clause. All provisions of any ordinance in conflict with this Ordinance are hereby repealed to the extent they are in conflict; but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinances shall remain in full force and effect. SECTION 11: Severability. Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Prosper hereby declares that is would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the Hotel/Motel Occupancy Tax Ordinance Page 4 615907.1 fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. SECTION 12: Effective Date. This Ordinance shall become effective upon its adoption and publication, as required by Prosper’s Town Charter and by law. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, on this the ____ day of ___________________, 2012. ________________________________________ Ray Smith, Mayor ATTESTED TO AND CORRECTLY RECORDED BY: ________________________________ Amy Piukana, Town Secretary APPROVED AS TO FORM: ______________________________________ Abernathy, Roeder, Body & Joplin, P.C. Rebecca H. Brewer, Town Attorneys DATE(s) OF PUBLICATION: ___________________________, IN THE DALLAS MORNING NEWS (COLLIN COUNTY EDITION)