12-10 - O TOWN OF PROSPER, TEXAS ORDINANCE NO. 12-10
AN ORDINANCE OF THE TOWN OF PROSPER, TEXAS, ANNEXING
TERRITORY WITHIN THE BOUNDARIES OF THE DENTON COUNTY
FRESHWATER SUPPLY DISTRICT #10 FOR THE LIMITED PURPOSE
OF IMPOSING SALES AND USE TAX ON TERRITORY; PROVIDING
FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES;
PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND
PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF.
WHEREAS, the Town of Prosper, Texas ("Prosper"), Denton County Fresh
Water Supply District #10 ("District"), 166 Bryan Road Partners, L.P. ("Developer"), and
Bryan Road Retail Partners ("Landowner") previously entered into that certain
agreement for the release of a portion of property in Prosper's extraterritorial
jurisdiction, effective December 14, 2011 ("Release Agreement"); and
WHEREAS, as a condition of the Release Agreement, the District agreed to
enter into three (3) separate strategic partnership agreements with Prosper pursuant to
Section 43.0751, Texas Local Government Code, as amended, authorizing limited
purpose annexation for the limited purpose of imposing sales and use tax on territory
within the boundaries of the District; and
WHEREAS, the Town Council of Prosper ("Town Council") previously
investigated and determined that it was in the best interest of Prosper to adopt and
execute the strategic partnership agreement attached hereto as Exhibit "A," and
incorporated herein for all purposes ("Strategic Partnership Aqreement for Tract No. 3"),
and
WHEREAS, the governing body of the District, prior to the Town's adoption and
execution, adopted the Strategic Partnership Agreement for Tract No. 3 at a duly called
meeting on February 16, 2012 and executed the same on March 15, 2012; and
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WHEREAS, the Town Council finds that all requisites relative to consideration
and adoption of this Ordinance have been complied with pursuant to Chapter 43.0751,
Texas Local Government Code, as amended; and
WHEREAS, notice of two (2) public hearings concerning the limited purpose
annexation of the territory described in Exhibit "A," was published in a newspaper of
general circulation in the Town and in the area to be annexed; and
WHEREAS, a copy of the Strategic Partnership Agreement for Tract No. 3 has
been on file in the office of the Town Secretary and made available to the public; and
WHEREAS, the two (2) public hearings were held during Town Council meetings
on February 28, 2012 and March 13, 2012, and concluded after providing an
opportunity for all persons present to be heard with respect to the limited purpose
annexation associated with the Strategic Partnership Agreement for Tract No. 3; and
WHEREAS, the Town Council finds that all legal notices, hearings, procedures
and publishing requirements for annexation have been performed and completed in the
manner and form set forth by law.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: Findinqs Incorporated. The findings set forth above are
incorporated into the body of this Ordinance as if fully set forth herein.
SECTION 2: Property Annexed for Limited Purposes. The Property described
as follows is hereby annexed to Prosper, to-wit:
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BEING a tract of land out of the Jose Gonzales Survey, Abstract No. 447,
Denton County, Texas containing 1.669 acres of land, more or less; said
tract is more particularly described in Exhibit "A" attached hereto and
incorporated herein for all purposes.
The present boundary limits of Prosper are amended to include the Property described
in Exhibit "A" for limited purposes. The Property is within the extraterritorial jurisdiction
and adjacent to the town limits of the Town of Prosper, Texas in Denton County, Texas.
The Property is annexed into the Town for the limited purpose of imposing sales and
use tax.
SECTION 3: Riqhts and Privileqes. From and after the passage of this
Ordinance, the Property shall be a part of Prosper for the sole, limited purpose set forth
herein.
SECTION 4: Official Map and Boundaries Amended. The official map and
boundaries of Prosper are hereby amended to include the Property as part of Prosper
for the limited purposes described herein. A certified copy of this Ordinance shall be
filed in the County Clerk's Office of Denton County.
SECTION 5: Penaltv Provision. Any person, firm, corporation or business entity
violating this Ordinance, as it exists or may be amended, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined a sum not exceeding Five
Hundred Dollars ($500.00). Each continuing day's violation under this Ordinance shall
constitute a separate offense. The penal provisions imposed under this Ordinance shall
not preclude Prosper from filing suit to enjoin the violation. Prosper retains all legal
rights and remedies available to it pursuant to local, state and federal law.
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SECTION 6: 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 7: Severabilitv. Should any section, subsection, sentence, clause or
phrase of this Ordinance, be declared unconstitutional or invalid by a court of competent
jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance
shall remain in full force and effect. Prosper hereby declares that it would have passed
this Ordinance, and each section, subsection, clause or phrase thereof irrespective of
the fact that any one or more sections, subsections, sentences, clauses, and phrases
be declared unconstitutional or invalid.
SECTION 8: Effective Date. This Ordinance shall become effective from and
after its adoption and publication as required by the Town Charter and by law.
PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS on this 27th day of March, 2012.
Ray Smith Mayor
ATTESTED TO AND
CORRECTLY RECORDED BY: APPROVED AS TO FORM:
A y Piu 66, Town Secretary Abernathy, R6eder, Bold & Joplin, P.C.
Courtney A. Kuykendall, Town Attorney
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DATE(S) OF PUBLICATION: ' ' Prosper
Press
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EXHIBIT "A"
(Strategic Partnership Agreement for Tract No. 3)
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STRATEGIC PARTNERSHIP AGREEMENT BETWEEN THE TOWN OF PROSPER,
TEXAS, AND DENTON COUNTY FRESH WATER SUPPLY DISTRICT NO. 10 FOR
TRACT NO. 3
THE STATE OF TEXAS §
COUNTY OF DENTON §
This STRATEGIC PARTNERSHIP AGREEMENT (this "Agreement") is entered into
as of the Effective Date between the TOWN OF PROSPER, TEXAS, a home-rule municipality
situated in Collin County and Denton County, Texas, acting through its governing body, the
Town Council of the Town of Prosper, Texas (the "Town"), and DENTON COUNTY FRESH
WATER SUPPLY DISTRICT NO. 10 (the "District"), a conservation and reclamation district
and political subdivision of the State of Texas created pursuant to Article XVI, Section 59 of the
Texas Constitution, and operating under Chapters 49, 51, and, for certain purposes, 53 of the
Texas Water Code, as amended.
RECITALS
1. Texas Local Government Code, §43.0751 (the "Act") authorizes the Town and certain
conservation and reclamation districts to negotiate and enter into a strategic partnership
agreement by mutual consent;
2. This Agreement provides for the limited purpose annexation of a tract of land in the District,
situated wholly within Denton County, Texas, as more specifically described in Exhibit "A"
("Tract Three"), attached hereto and incorporated herein for all purposes, by the Town for
certain purposes including, but not limited to, the imposition of a sales and use tax within the
Tract Three;
3. As required by the Act, the Town held public hearings on February 28, 2012 and March 13,
2012 at 6:00 p.m. at the Prosper Municipal Chambers, 108 W. Broadway, Prosper, Texas, and
the District held public hearings on February 9, 2012, and February 16, 2012 at 6:00 p.m. at
Savannah Clubhouse, 701 Savannah Boulevard, Savannah, Texas, at which members of the
public were given the opportunity to present testimony or evidence regarding the proposed
Agreement, and the Town and the District made copies of the proposed Agreement available,
and gave notice of the hearings prior to the public hearings in accordance with the terms of the
Act;
4. The District has, by formal action, after public hearing approved this strategic partnership
agreement on February 16, 2012, in open session at a meeting held in accordance with the Open
Meetings Act;
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5. The Town will, by formal action, after public hearings approved this strategic partnership
agreement on March 27, 2012, in open session at a meeting held in accordance with the Open
Meetings Act;
6. The Town and the District wish to enter into a strategic partnership agreement to provide the
terms under which services will be provided by the District to the Tract Three and under which
the District will continue to exist for an extended period of time with respect to the Tract Three
after the Tract Three of land within the District is annexed for limited purposes; and
7. Pursuant to Section 43.0751(c) of the Local Government Code, this Agreement shall become
effective on the date of adoption of this Agreement by the Town and the District (the "Effective
Date"). Upon adoption, this Agreement shall be filed by the District in the real property records
of Denton County, Texas.
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions contained herein, and other good and valuable consideration, the Town and District
agree as follows:
THE PARTIES AGREE AS FOLLOWS:
ARTICLE ONE
FINDINGS
The Town and the District find and declare:
1.1 The Act authorizes the Town and the District to enter into this Agreement to define the
terms under which services, if any, will be provided to the Town and the District and under
which the District will continue to exist after Tract Three is annexed for limited purposes
pursuant to this Agreement; and
1.2 This Agreement does not require the District to provide revenue to the Town solely for
the purpose of an agreement with the Town to forgo annexation of the District; and
1.3 This Agreement provides benefits to the Town and the District, including revenue,
services, or regulations which are reasonable and equitable with regard to the benefits provided
to the other Party; and
1.4 All the terms contained in this Agreement are lawful and appropriate to provide for the
provision of municipal services; and
1.5 The Town and the District negotiated this Agreement by mutual consent; the terms of
the Agreement are not a result of the Town's Annexation Plan or any arbitration between the
Town and the District.
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ARTICLE TWO
DEFINITIONS
Unless the context requires otherwise, and in addition to the terms defined above, the following
terms used in this Agreement will have the meanings set out below:
2.1 "Act" means Texas Local Government Code, §43.0751 and any amendments thereto.
2.2 "Additional Tracts" means any property within the District's boundaries that is not
located within the extraterritorial jurisdiction of a municipality other than the Town designated
for commercial use, other than the Tract Three.
2.3 "Agreement" means this strategic partnership agreement between the Town and the
District.
2.4 "Board" means the Board of Directors of the District.
2.5 "Commercial Taxvaver" means a person, entity, business, or corporation who
provides receipts from the sale and use at retail of taxable items to the Comptroller.
2.6 "Comptroller" means the Comptroller of Public Accounts of the State of Texas.
2.7 "District" means Denton County Fresh Water Supply District No. 10, a conservation
and reclamation district created and operating under Chapters 49, 51, and, for certain purposes,
53 of the Texas Water Code, located wholly within Denton County, Texas.
2.8 "ETJ" means the extraterritorial jurisdiction of the Town.
2.9 "Government Code" means the Texas Government Code and any amendments thereto.
2.10 "Implementation Date" means the date the limited-purpose annexation ordinance is
passed by Town Council pursuant to Section 3.1.
2.11 "Local Government Code" means the Texas Local Government Code and any
amendments thereto.
2.12 "Party or "Parties" means a party or the parties to this Agreement, being the Town
and the District.
2.13 "Sales and Use Tax" means the sales and use tax authorized to be imposed in the Tract
Three by the Act and Tax Code Chapter 321.
2.14 "Tax Code" means the Texas Tax Code and any amendments thereto.
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2.15 "Town" means the Town of Prosper, Texas, a general law municipality situated in
Collin County and Denton County, Texas.
2.16 "Town Charter" means the Charter of the Town and any amendments thereto.
2.17 "Town Code" means the Code of Ordinances of the Town and any amendments
thereto.
2.18 "Town Council" means the Town Council of the Town or any successor governing
body.
2.19 "Town Manager" means the Town Manager of the Town or his or her designee.
2.20 "Tract Three" means the tract of land situated wholly in Denton County, Texas,
described in Exhibit"A" attached hereto and incorporated herein for all purposes.
ARTICLE THREE
LIMITED-PURPOSE ANNEXATION
3.1 Generally. In accordance with the terms of that Agreement for the Reduction of the
Extraterritorial Jurisdiction of the Town of Prosper, dated December 13, 2011, the Town shall
annex Tract Three for limited purposes.
3.2 Limited Purpose Annexation of Additional Tracts. In the event the location of
proposed commercial development within the District is changed or additional property
designated for commercial development is added, the Town Council may annex the Additional
Tracts for the limited purpose of collecting Sales and Use Tax revenues within the Additional
Tracts pursuant to the Act subject to the execution of an agreement between the Town and the
District substantially similar in form to this Agreement.
3.3 Property Taxes and District Liability for Debts of the Town. During the Term (as
defined in Section 9.2) of this Agreement: (i) neither the District nor any owners of taxable
property within the District is liable for any present or future debts of the Town, and (ii) current
and future ad valorem taxes levied by the Town will not be levied on taxable property within the
District, except as provided for in Article VII.
3.4 Powers and Functions Retained by the District. This Agreement does not limit in any
manner the rights, powers, functions, and authority of the District.
3.5 Extraterritorial Jurisdiction. This Agreement shall not affect or otherwise change any
Town limits or extraterritorial jurisdiction of the Town except as specifically set forth herein.
This Agreement shall not inure to the benefit of any party not a signatory to this Agreement, save
and except assignees or successors in interests as provided herein. The Town may regulate those
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portions of the District land located within the Town's ETJ in the same manner in which it may
regulate other areas within the extraterritorial jurisdiction of the Town, subject to any other
agreements between the Town and the District.
ARTICLE FOUR
VOTING RIGHTS IN THE DISTRICTS
4.1 Generally. Upon annexation of Tract Three for limited purposes by the Town, any
qualified voters within Tract Three may vote in Town elections, pursuant to Local Government
Code §43.130. Voting rights are subject to all state and federal laws and regulations.
4.2 Notice. The Town will comply with all the notice requirements as set forth in §43.130 of
the Local Government Code, as it now exists or hereafter amended.
ARTICLE FIVE
SALES AND USE TAX
5.1 Imposition of the Town's Sales and Use Tax. Pursuant to Subsection (k) of the Act, the
Town shall impose a Sales and Use Tax within Tract Three upon the limited-purpose annexation
of Tract Three. The Sales and Use Tax shall be imposed on the receipts from the sale and use at
retail of taxable items at the rate of two percent (2%) or the rate specified under future
amendments to Chapter 321 of the Tax Code. The Sales and Use Tax shall take effect on the date
described in Tax Code §321.102.
5.2 Payment of Sales and Use Tax. Within thirty (30) days from the establishment of a
District utility service account for a Commercial Taxpayer in the Tract Three, the District shall
inspect the building for which service is requested and provide written notice of the name of(a)
the Commercial Taxpayer requesting utility service, and (b) each Commercial Taxpayer
operating a commercial business at such building. Each month thereafter, the District shall
inspect Tract Three and provide a written report to the Town updating such information in order
to maintain a current listing of all Commercial Taxpayers operating within Tract Three. Based
upon the names reported by the Town, the Comptroller shall create a sales tax area report for the
Town. The area sales tax report shall identify the aggregate total amount of local sales tax
revenue the group of or individual Commercial Taxpayers in the Tract Three contributed to the
Town's total allocation for each month. Subject to the terms and conditions of this Agreement,
the Town and District agree to share equally the 1% Sales and Use Tax revenues remaining
subsequent to payment of the other 1% Sales and Use Tax revenues to the Prosper Economic
Development Corporation and Town property tax relief as required by state law (the "District's
Portion") that are reported on the monthly area sales tax report provided by the Comptroller and
received by the Town from the Comptroller after the date of the limited-purpose annexation of
Tract Three. The Town shall deliver the District's Portion of the Sales and Use Tax revenues to
the District within thirty (30) days of the Town's receipt of the sales report from the Comptroller.
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Government Code Chapter 2251 shall govern and provide the penalty if the Town fails to deliver
the District's portion in a timely manner. For the purposes of determining the applicable overdue
date under Chapter 2251, the Town is deemed to have received an invoice from the District on
the date the Town receives the sales tax report from the Comptroller without further action from
the District. In the event the Comptroller ceases to provide a monthly area sales report, then the
Parties agree to jointly develop another method of reporting Sales and Use Tax revenues to the
Town.
The Town shall deliver to the District a condensed version of each monthly area sales tax report
provided by the Comptroller, containing only the contents of the sales tax report relating to retail
sales and retailers in the Tract Three within thirty (30) days of the Town's receipt of the sales tax
report.
5.3 Notification of Comptroller. The Town shall send notice of this Agreement and the
limited-purpose annexation of the Tract Three to the Comptroller within three (3) days of the
Implementation Date in the manner provided by Tax Code §321.102. The Town shall send to the
District a copy of any notice from the Comptroller delaying the effectiveness of the Sales and
Use Tax in Tract Three.
5.4 District Use of Sales and Use Tax Revenue. The District shall use the Sales and Use
Tax revenue provided in Section 5.2 only for purposes for which the District is lawfully
authorized to use its ad valorem tax revenues or other revenues.
5.5 District Audit Rights. The District may audit the Sales and Use Tax collections by the
Town solely to determine whether the Sales and Use Tax revenue payments provided by Section
5.2 have been made to the District in accordance with this Agreement. Any audit shall be made
at the District's sole cost and expense and may be performed at any time during the Town's
regular business hours by an auditor hired by the District on thirty (30) days written notice to the
Town. For the purpose of any audits, the Town shall maintain and make available to the District
or its representatives all books, records, documents and other evidence of accounting procedures
or practices in whatever form sufficiently maintained to reflect the collection of all Sales and Use
Tax revenues that are subject to this Agreement.
5.6 Town Audit Rights. The District is required by law to prepare an annual audit within
one hundred twenty (120) days after the close of the District's fiscal year. The District shall
provide a copy of its annual audit to the Town within thirty (30) days after the audit is
completed. The Town may audit the District's expenditures made with the Sales and Use Tax
revenue paid under Section 5.2, solely to determine whether the expenditures have been made by
the District in accordance with Section 5.4. Any audit shall be made at the Town's sole cost and
expense and may be performed at any time during regular business hours by the Town's internal
auditors or an independent auditing firm on thirty (30) days written notice to the District. For the
purpose of any audits, the District shall maintain and make available to the Town or its
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representatives all books, records, documents and other evidence of accounting procedures or
practices in whatever form maintained sufficient to reflect the expenditure of all Sales and Use
Tax revenues that are subject to this Agreement.
ARTICLE SIX
SERVICES PROVIDED BY THE DISTRICT AND THE TOWN
6.1 Water, Sewer, and Drainage Services. Subject to the applicable terms and provisions
of that certain Merged, Amended and Restated Agreement Related to Water and Sanitary Sewer
Service dated October 1, 2007 between Mustang Special Utility District ("Mustang SUD") and
the District (the "Water and Sewer Agreement"), that certain Upper Trinity Regional Water
District Regional Treated Water System Participating Customer Contract dated August 29, 2001,
as amended and that certain Upper Trinity Regional Water District Northeast Regional Water
Reclamation System Participating Customer Contract dated August 29, 2001, as amended, each
between the Upper Trinity Regional Water District ("Upper Trinity") and the District
(collectively, "Upper Trinitv Contracts"), reimbursement agreements between the developers
or owners of the Tract Three and the District, and Sections 49.215(d) and 13.248, Texas Water
Code, the District shall acquire, construct, own, operate and maintain a water, wastewater, and
drainage system in the District and Tract Three. The Town is under no obligation to provide
water, sewer or drainage services to Tract Three.
6.2 Operation and Maintenance. Subject to Section 6.1 above, the District agrees to operate
and maintain water, wastewater, and drainage service in Tract Three at the same level as the
District has operated and maintained them before the Implementation Date. The Town may
periodically inspect the District's water, wastewater, and drainage facilities.
ARTICLE SEVEN
FULL-PURPOSE ANNEXATION
7.1 No Full-Purpose Annexation. Town agrees that it will not annex all or part of the
District or commence any action to annex all or part of the District for full purposes during the
Term (as defined in Section 9.2).
7.2 Full Purpose Annexation of the Tract Three. The Town and District acknowledge and
agree that a full purpose annexation contemplates, among other things, the annexing authority
solely collecting ad valorem taxes in exchange for the landowner receiving municipal services
("Municipal Services") as required under §43.056, Texas Local Government, as amended.
However, §43.0751 (f)(5), Texas Local Government Code, authorizes the Town and District to
agree to a full purpose annexation on terms and conditions acceptable to the Town and the
District. Upon expiration of the Term of this Agreement, to the extent permitted by Section
43.0751(f)(5) or any other applicable provision of the Local Government Code, the Town and
District may enter into a full purpose annexation agreement with regards to Tract Three ("Full
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Purpose Annexation Agreement"). As such, and at a minimum, the parties acknowledge and
agree that should a Full Purpose Annexation Agreement be desired by the parties, the District
and Town anticipate that the Town may not be providing some, or possibly all, of the Municipal
Services to Tract Three. Should the Town desire not to provide all or a portion of the Municipal
Services to Tract Three, the Parties acknowledge and agree that one of the required provisions of
the Full Purpose Annexation Agreement will provide that the Town shall assess only such ad
valorem taxes on Tract Three which are commensurate with the costs associated with the
Municipal Services provided by the Town to Tract Three. Municipal Services shall include, but
not be limited to, administration, police, fire, dispatch, fire marshal, streets, library, parks,
municipal court, inspections, code enforcement, planning, engineering, and an interest and
sinking fund. The parties further acknowledge and agree that any Full Purpose Annexation
Agreement shall include a provision to the effect that the District shall continue to have and
exercise all functions, powers, and authority otherwise vested in the District, including without
limitation the right to issue bonds, notes or other obligations, to provide services and facilities to
and to impose ad valorem taxes on or other fees and charges to the property located within Tract
Three. The Town expressly acknowledges and agrees that neither the terms of this Agreement
nor the Full Purpose Annexation Agreement shall subject the District to any consents, approvals,
conditions or requirements of the Town with respect to the design and construction of facilities,
the annexation of land by the District; the issuance and sale of bonds, notes or other obligations
by the District, or the assessment of ad valorem taxes or fees or charges for services by the
District. If a Full Purpose Annexation Agreement is executed between the Parties, the Town shall
have no further obligation to pay to the District the District portion of the Sales and Use Tax
revenues collected from Tract Three.
7.3 Exercise of Full Purpose Annexation Option at Termination of Agreement. On or
before the expiration of Term of this Agreement, the Town Manager shall evaluate whether the
Town should negotiate a new strategic partnership agreement with the District, negotiate and
execute a Full Purpose Annexation Agreement as provided in Section 7.2 above or allow this
Agreement to expire. The Town Manager shall make a recommendation to the Town Council
regarding the negotiation of a new strategic partnership agreement, the negotiation and execution
of a Full Purpose Annexation Agreement, or the expiration of this Agreement. If the Town
Manager recommends that the Town negotiate a new strategic partnership agreement, or
negotiate and execute a Full Purpose Annexation Agreement, and the Town Council approves
the recommendation, the Town shall begin proceedings to enter into a new strategic partnership
agreement, or negotiate and execute a Full Purpose Annexation Agreement at the end of the
Term of this Agreement as applicable. If the Town Manager recommends that the Town allow
this Agreement to terminate upon the expiration of the initial fifteen (15) years, and the Town
Council agrees, or if the Town Council rejects the Town Manager's recommendation to negotiate
a new strategic partnership agreement, or to negotiate and execute a Full Purpose Annexation
Agreement, the Town may begin proceedings to annex the District for full purposes or disannex
Tract Three for limited purposes if authorized under the applicable provision of the Local
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Government Code. If the Town decides to annex the District for full purposes or disannex Tract
Three and has the authority to do so, the Town may institute proceedings to accomplish such full
purpose annexation or disannexation to be effective upon the termination of this Agreement and
according to the applicable provisions of the Local Government Code and state law.
ARTICLE EIGHT
MATERIAL BREACH,NOTICE AND REMEDIES
8.1 Material Breach of Agreement. It is the intention of the Parties to this Agreement that
the District and the Town be regulated in accordance with the terms of this Agreement. A
material breach of this Agreement by the District includes, without limitation, any one or more
of the following:
(A) Failure of the District to act in good faith in the annexation of Tract Three by the
Town for limited purposes as authorized by this Agreement; or
A material breach of this Agreement by the Town includes, without limitation, any one or
more of the following:
(A) Any attempt by the Town to annex the District for full purposes during the Term
of this Agreement; or
(B) Failure of the Town to pay to the District the District's share of the Sales and Use
Tax, as provided in Article V.
If a Party to this Agreement believes that another Party has, by act or omission,
committed a material breach of this Agreement, the provisions of this Article shall govern the
remedies for breach of this Agreement.
8.2 Notice of District's Default. The Town shall notify the District in writing of an alleged
failure by the District to comply with a provision of this Agreement, describing the alleged
failure with reasonable particularity. The District shall, within thirty (30) days after receipt of the
notice or a longer period of time as the Town may specify in the notice, either cure the alleged
failure or, in a written response to the Town, either present facts and arguments in refutation or
excuse of the alleged failure or state that the alleged failure will be cured and set forth the
method and time schedule for accomplishing the cure.
The Town shall determine (i) whether a failure to comply with a provision has occurred;
(ii) whether the failure is excusable; and (iii) whether the failure has been cured or will be cured
by the District. The District shall make available to the Town, if requested, any records,
documents or other information necessary to make the determination.
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If the Town determines that a failure to comply with a provision has occurred and that the
failure is not excusable and has not been or will not be cured by the District in a manner and in
accordance with a schedule reasonably satisfactory to the Town, then the Town may exercise the
applicable remedy under Section 8.4(A).
8.3 Notice of Town's Default. The District shall notify the Town Manager in writing
specifying any alleged failure by the Town to comply with a provision of this Agreement,
describing the alleged failure with reasonable particularity. The Town shall, within thirty (30)
days after receipt of the notice or the longer period of time as the District may specify in the
notice, either cure the alleged failure or, in a written response to the District, either present facts
and arguments in refutation or excuse of the alleged failure or state that the alleged failure will
be cured and set forth the method and time schedule for accomplishing the cure.
The District shall determine (i) whether a failure to comply with a provision has
occurred; (ii) whether the failure is excusable; and (iii) whether the failure has been cured or will
be cured by the Town. The Town shall make available to the District, if requested, any records,
documents or other information necessary to make the determination.
If the District determines that a failure to comply with a provision has occurred and that
the failure is not excusable and has not been or will not be cured by the Town in a manner and in
accordance with a schedule reasonably satisfactory to the District, then the District may exercise
the applicable remedy under Section 8.4(B).
8.4 Remedies.
(A) If the Town determines that the District has committed a material breach of this
Agreement, the Town may file suit in a court of competent jurisdiction in Collin
County, Texas, and seek any relief available at law or in equity, including, but not
limited to, an action under the Uniform Declaratory Judgment Act and
termination of this Agreement in addition to the monetary awards as may be
appropriate.
(B) If the District determines that the Town has committed a material breach of this
Agreement, the District may file suit in a court of competent jurisdiction in Collin
County, Texas, and seek any relief available at law or in equity, including, but not
limited to, an action under the Uniform Declaratory Judgment Act and
termination of this Agreement in addition to the monetary awards as may be
appropriate.
ARTICLE NINE
BINDING AGREEMENT, TERM, AND AMENDMENT
9.1 Beneficiaries. This Agreement binds and inures to the benefit of the Parties, their
successors and assigns.
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The District shall record this Agreement with the County Clerk in Official Records of
Denton County, Texas. This Agreement binds each owner and each future owner of land
included within the District's boundaries in accordance with Subsection (c) of the Act.
9.2 Term. This Agreement commences and binds the Parties on the Effective Date and
continues for fifteen years afterward ("Term"), and may be extended thereafter at the sole
discretion of the Town for up to two (2) consecutive terms of fifteen (15) years upon written
notice from the Town to the District at least one hundred eighty (180) days before the expiration
of the Term or any extended term of this Agreement. Any rights or privileges of the Parties and
their successors or assigns under this Agreement will terminate upon the expiration or
termination of this Agreement.
9.3 Amendment. The Parties by mutual written consent may amend the terms of this
Agreement at any time. Any amendment to this Agreement shall be recorded within seven (7)
days of the execution of the amendment with Denton County.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
10.1 Notice. Any formal notices or other communications ("Notice") required to be given by
one Party to another by this Agreement shall be given in writing addressed to the Party to be
notified at the address set forth below for the Party, (i) by delivering the Notice in person (ii) by
depositing the Notice in the United States Mail, certified or registered, return receipt requested,
postage prepaid, addressed to the Party to be notified, (iii) by depositing the Notice with Federal
Express or another nationally recognized courier service guaranteeing next day delivery,
addressed to the Party to be notified, or (iv) by sending the Notice by telefax with confirming
copy sent by mail. Notice deposited in the United States mail in the manner herein above
described shall be deemed effective from and after the date of such deposit. Notice given in any
other manner shall be effective only if and when received by the Party to be notified. For the
purposes of Notice, the addresses of the Parties, until changed as provided below, shall be as
follows:
Town: Town of Prosper
P. O. Box 307
Prosper, Texas 75078
Attention: Town Administrator
Telephone: (972) 347-2304
Facsimile: (972) 247-2111
Strategic Partnership Agreement No.3 Page 11
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District: Denton County Fresh Water Supply District No. 10
c/o Crawford and Jordan, LLP
3100 McKinnon Street, Suite 950
Dallas, Texas 75201
Telephone: (214) 981-9090
Facsimile:
The Parties may from time to time change their respective addresses, and each may
specify as its address any other address within the United States of America by giving at least
five days written notice to the other Party. If any date or any period provided in this Agreement
ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the notice
shall be extended to the first business day following the Saturday, Sunday or legal holiday.
10.2 Time. Time is of the essence in all things pertaining to the performance of this
Agreement.
10.3 Waiver. Any failure by a Party to insist upon strict performance by the other Party of
any material provision of this Agreement shall not be deemed a waiver thereof or of any other
provision hereof, and the Party shall have the right at any time thereafter to insist upon strict
performance of any and all of the provisions of this Agreement.
10.4 Reservation of Rights. To the extent not inconsistent with this Agreement, each Party
reserves all rights, privileges, and immunities under applicable laws.
10.5 Further Documents. The Parties agree that at any time after execution of this
Agreement, they will, upon request of the other Party, execute and deliver the further documents
and do the further acts and things as the other Party may reasonably request in order to effectuate
the terms of this Agreement.
10.6 Incorporation of Exhibits and Other Documents by Reference. All Exhibits and
other documents attached to or referred to in this Agreement are incorporated into this
Agreement by reference for the purposes set forth in this Agreement.
10.7 Effect of State and Federal Laws. Notwithstanding any other provision of this
Agreement, the District shall comply with all applicable statutes or regulations of the United
States, the State of Texas, and Town Ordinances and Town Charter provisions implementing
such statutes or regulations.
10.8 Authority for Execution. The Town certifies and represents that the execution of this
Agreement is duly authorized and adopted in conformity with the Town Charter and Town
Ordinances. The District certifies and represents that the execution of this Agreement is duly
authorized and adopted by the Board.
Strategic Partnership Agreement No.3 Page 12
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10.9 Semi-Annual Review. At least semi-annually, the District shall review and confirm, and
will notify the Town Planning and Development Department in a form prescribed by the
Department, of the accuracy of the list of resale permit holders as provided by the State
Comptroller's Office.
10.10 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.
10.11 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.
10.12 Assignment/Binding Effect. This Agreement is assignable, in whole or in part, upon the
following conditions, all of which must be satisfied before any such assignment shall be valid
and enforceable:
(A) the assignment of the Agreement must be evidenced by a recordable document
(the "Assignment"), the form of which must be approved in writing by the Parties, such
approval not to be unreasonably withheld;
(B) the Assignment must expressly contain, among other reasonable requirements
and/or conditions of the Parties, an acknowledgment and agreement that all obligations,
covenants and/or conditions contained in the Agreement will be assumed solely and
completely by the assignee, and the contact name, address, phone number, fax number
and electronic mail address of the assignee;
(C) Assignor will file any approved, executed Assignment in the Land Records of
Denton County, Texas; and
(D) Assignor shall provide the other Party with a file-marked copy of the
Assignment within ten (10) days of filing the same.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective officers, directors, partners, employees, representatives, agents, vendors, grantees,
and/or trustees, heirs, executors, administrators, legal representatives, successors and assigns, as
authorized herein.
10.13 State or Federal Laws, Rules, Orders or Regulations. This Agreement is subject to all
applicable Federal and State laws and any applicable permits, ordinances, rules, orders and
regulations of any local, state or federal governmental authority having or asserting jurisdiction,
but nothing contained herein shall be construed as a waiver of any right to question or contest
any such law, ordinance, order, rule or regulation in any forum having jurisdiction.
10.14 Savings/Severability. The parties hereto specifically agree that in case any one or more
of the sections, subsections, provisions, clauses or words of this Agreement or the application of
Strategic Partnership Agreement No.3 Page 13
606903
such sections, subsections, provisions, clauses or words to any situation or circumstance should
be, or should be held to be, for any reason, invalid or unconstitutional, under the laws or
constitutions of the State or the United States of America, or in contravention of any such laws or
constitutions, such invalidity, unconstitutionality or contravention shall not affect any other
sections, subsections, provisions, clauses or words of this Agreement or the application of such
sections, subsections, provisions, clauses or words to any other situation or circumstance, and it
is intended that this Agreement shall be severable and shall be construed and applied as if any
such invalid or unconstitutional section, subsection, provision, clause or word had not been
included herein, and the rights and obligations of the parties hereto shall be construed and remain
in force accordingly.
10.15 Venue. All amounts due for the breach of this Agreement shall be paid and be due in
Collin County, Texas, which is the County in which the principal administrative offices of the
Town are located. It is specifically agreed among the parties to this Agreement that Collin
County, Texas is the place of performance of this Agreement; and in the event that any legal
proceeding is brought to enforce this Agreement or any provision hereof, the same shall be
brought and venue shall lie in Collin County, Texas.
10.16 Sovereign Immunity. By entering into and executing this Agreement, the Town and the
District in no way waive or surrender their sovereign immunity.
10.17 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.
[SIGNATURE PAGE TO FOLLOW]
[REMAINDER OF THIS PAGE BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement in multiple copies, each of
which shall be an original, as of the date countersigned by the Town Manager of the Town of
Prosper.
The Town of Prosper,Texasz
By: /
Name: Mile Land
Title: Town Manager
Address: 113 W. Broadway
P. O. Box 307
Prosper, Texas 75078
Fax: (972) 347-2111
Date:
Denton County Fresh Water Supply District No. 10
Name: Robert Tague
Title: President
Address: c/o Crawford and Jordan, LLP
19 Briar Hollow Lane, Suite 245
Houston, Texas 77027
Fax: (713) 621-3,909,
Date: ► `°, 1�-'
Strategic Partnership Agreement No.3 Page 15
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STATE OF TEXAS §
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared Mike Land,
known to me to be one of the persons whose names are subscribed to the foregoing instrument;
he acknowledged to me he is the duly authorized representative for the Town of Prosper, Texas,
and he executed said instrument for the purposes and consideration therein expressed and in the
capacity therein stated.
IVEN UNDER MY HAND AND SEAL OF OFFICE, this cWl day of
. 2012.
Notary Public,fin/and for the State of Texas
My Commission Expires: //G�/-3
AMY MELINDA PIUKANA
STATE OF TEXAS MY r, MMIS510N EXPIRES
§ r � January 8,2013
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared Robert
Tague, known to me to be one of the persons whose names are subscribed to the foregoing
instrument; he acknowledged to me he is the duly authorized representative for Denton County
Fresh Water Supply District No. 10, and he executed said instrument for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 'V day of
52012.
Notary-Public in`-afid for the State of Texas
,,o,��• r,�,,�
LISA fiL00Mf1ElD
Notary Public,State of Texas ; , f'r
My commission Expires My Commission Expires:
June 27, 2015 v
Strategic Partnership Agreement No..... .,,,._
3 Page 16
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EXHIBIT "A"
Legal Description of Tract Three
BEING a tract of land situated in the Jose Gonzales Survey, Abstract No. 447, in Denton County,
Texas, and being all of Tract 2B of the Replat of Tracts 2A & 2B of SAVANNAH PHASE 3, an
addition to Denton County, Texas, according to the replat thereof recorded in Cabinet Y, Page
336, of the Real Property Records of Denton County, Texas, and being more particularly
described as follows:
BEGINNING at a 5/8-inch iron rod with cap marked "PETITT-RPLS 4087" found in the north
right-of-way line of U.S. Highway No. 380 (a variable width right-of-way) and the west line of
Farm-to-Market Road No.1385 (a 110 foot right-of-way at this point), said point being the
southeast corner of said Tract 213;
THENCE North 88 degrees 31 minutes 26 seconds West, along the north right-of-way line of
U.S. Highway No,' 380 and the south boundary of said Tract 213, a distance ot248.50 feet to a
5/8-inch iron rod with cap marked "PETITT- 4087 found for the southwest corner of said Tract
2B and the most southerly southeast corner of Tract 2A of said addition;
THENCE North 01 degrees 28 minutes 34 seconds East, departing said north line of U.S.
Highway No. 380 and along the common boundary between said Tracts 2A and 2B, a distance of
280.00 feet to a 5/8-inch iron rod with cap marked "PETITT - RPLS 4087" found for the
northwest corner of said Tract 2B and an interior ell corner of said Tract 2A;
THENCE South 88 degrees 31 minutes 26 seconds East, continuing along the common boundary
between said Tracts 2A and 2B, a distance of270.87 feet to a 5/8-inch iron rod with cap marked
"PETITT-RPLS 4087" found for the northeast corner of Tract 2B and the most easterly southeast
corner of Tract 2A, same being on the west right-of-way line of Farm—to-Market Road No. 1385;
THENCE South 06 degrees 02 minutes 38 seconds West, along the east line of said Tract 213 and
the west right-of-way line of Farm-to-Market Road No. 1385, a distance ot280.89 feet to the
POINT OF BEGINNING and containing 1.669 acres of land, more or less.
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