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05-82 - R TOWN OF PROSPER, TEXAS RESOLUTION NO.05-82 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS AND WILBOW-PROSPER ONE DEVELOPMENT CORPORATION REGARDING THE DEVELOPMENT OF THE COLLINSBROOK, PHASE 1 SUBDIVISION. 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, an Agreement between the Town of Prosper, Texas, and Wilbow- Prosper One Development Corporation regarding the development of the Collinsbrook, Phase 1 subdivision. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 8th day of November, 2005. arles Niswang , ayor ATTEST TO: anae Jennings, T Secretary r f • iiìiiiiiiiiiiiiiiiiiii 20060201000134650 2/01005 After RecordingRetumTo: 2rotizoo6 as:ta:50 art AG 1/21 Town Administrator Town of Prosper P.0.Box 307 Prosper,Texas 75078 DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF PROSPER,TEXAS AND WILBOW-PROSPER ONE DEVELOPMENT CORPORATION (Collinsbrook Development) at4This Development Agreement (the "Agreement") is made and entered into as of this „day of January, 2006, by and between the Town of Prosper, Texas (the "Town") and Wilbow-Prosper One Development Corporation, a Texas corporation ("Wilbow"), on the terms and conditions hereinafter set forth. WHEREAS, Wilbow owns approximately 39.311 acres, more or less, situated in the William H. Thompson Survey, Abstract No. 895, Collin County, Texas, including other improvements located thereon, whether existing now or in the future, (hereinafter described as the"Collinsbrook Phase 1 Property");and WHEREAS, Wilbow owns an additional 12.9556 acres, more or less, located within the Collinsbrook PD-18-SF-2, Town Ordinance No. 04-110 (the "PD Ordinance"), situated in the William H. Thompson Survey, Abstract 895, Collin County, Texas, and recognized as the possible future phase(s) of the Collinsbrook Phase 1 Property, (hereinafter described as the "Future Phase Property"); and WHEREAS, Wilbow represents that it may purchase additional acreage located within the PD Ordinance, recognized as the additional possible future phase(s) of the Collinsbrook Phase 1 Property (hereinafter described as the "Future PD Property"). The Collinsbrook Phase 1 Property, the Future Phase Property and the Future PD Property shall be collectively referred to herein as the"Property"; and WHEREAS, Wilbow desires to develop the Property as a single-family residential subdivision in accordance with the PD Ordinance, the Town's Comprehensive Zoning Ordinance No. 05-20 (the "Zoning Ordinance"), the Town's Subdivision Regulation Ordinance No. 03-05 (the "Subdivision Regulations") and any other applicable Town ordinance, rule, requirement and/or regulation,as they currently exist,may be amended or in the future arising; and WHEREAS, Wilbow desires to fulfill its obligations to pay water and thoroughfare impact fees as prescribed in Town Ordinance No. 95-01, amended by Town Ordinance Nos. 96- 17, 01-24, 02-19, and 02-57, as they exist or may be hereafter amended (individually and collectively the"Impact Fee Ordinance"); and WHEREAS, Wilbow desires to fulfill its obligations to pay park improvement and dedication fees as prescribed in the Subdivision Regulations;and WILBOW-PROSPER ONE DEVELOPMENT CORP,DEVELOPMENT AGREEMENT(COLLINSBROOK)—Page I of 20 WHEREAS, the parties agree that Wilbow may fulfill its obligation to pay impact fees for water, sewer and thoroughfares, and park improvement and dedication fees in the manner set forth below. NOW, THEREFORE, in consideration of the mutual benefits and premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the Town and Wilbow agree as follows: 1. Land Subject to Agreement. The land that is, or may become, the subject of this Agreement is: a. 39.311 acres, more or less, situated in the William H. Thompson Survey, Abstract No. 895, Collin County, Texas, including other improvements located thereon,whether existing now or in the future, as more particularly described in Exhibit "A", attached hereto and incorporated herein for all purposes(the"Collinsbrook Phase 1 Property"); b. 12.9556 acres, more or less, owned by Wilbow, Iocated within the PD Ordinance, situated in the William H. Thompson Survey, Abstract 895, Collin County, Texas, and recognized as the possible future phase(s) of the Collinsbrook Phase 1 Property, as more particularly described in Exhibit "B", attached hereto and incorporated herein for all purposes (the "Future Phase Property"); and c. additional acreage located within the PD Ordinance and recognized as the additional possible future phase(s) of the Collinsbrook Phase 1 Property (the"Future PD Property"). The Collinsbrook Phase 1 Property, the Future Phase Property and the Future PD Property shall be collectively referred to herein as the"Property". 2. Development. Wilbow agrees that the Property will be developed in accordance with the Zoning Ordinance, the Subdivision Regulations, the PD Ordinance and any other applicable Town ordinance, rule, requirement and/or regulation, as they currently exist, may be amended or in the future arising; provided however, in the event of any discrepancy between the terms of this Agreement and the ordinances described in this paragraph and elsewhere in this Agreement, notwithstanding anything contained to the contrary herein, the terms of this Agreement will prevail and control. 3. Capital Water Improvements. The Collinsbrook Phase 1 Property will be assessed at the rate of One Thousand, Six Hundred, Fifty-Two and No/100 Dollars per lot ($1,652.00/lot), for a total of One Hundred, Fifty Thousand, Three Hundred, Thirty-Two and No/100 Dollars ($150,332.00), for water impact fees in accordance with the Impact Fee Ordinance (the "Collinsbrook Phase 1 Property Water Impact Fees"). The remainder of the Property will be assessed water impact fees in accordance with the Impact Fee Ordinance existing at the time building permits are issued, respectively, for said remaining portions of the Property. COLLINSBROOK DEVELOPMENT AGREEMENT—Page 2 of 20 • During construction of the Collinsbrook Phase 1 Property utility improvements, Wilbow shall, at it sole cost and expense, construct portions of the Town's waterline system. More specifically, Wilbow will, at its sole cost and expense, connect to the existing Whispering Farms twelve inch (12") water line at the stubout currently located at the southwest corner of Whispering Farms Phase II and extending said 12" water line south, within the Coit Road right of way or street easement, adjacent to the phase of the Collinsbrook Phase 1 Property being developed (the "Whispering Farms water line extension"). In addition, Wilbow will, at it sole cost and expense, connect to the La Cima twelve inch (12") water line at First Street and extending said 12" water line east within the First Street right of way or street easement to the southeast corner of the Collinsbrook Phase 1 Property (the"La Cima water line extension"). The Whispering Farms water line extension and the La Cima water line extension shall be collectively referred to herein as the "Waterline Improvements"). The Waterline Improvements shall be installed in accordance with the utility plans, attached hereto as Exhibit "C" and incorporated herein for all purposes (the "Utility Plan"), and the written requirements of the Town's Engineer. The Waterline Improvements shall be completed prior to the Town's final acceptance of the Collinsbrook Phase 1 Property public improvements. Subject to Wilbow fulfilling all of its obligations in this Agreement, the Collinsbrook Phase 1 Property will receive credit for the Collinsbrook Phase 1 Property Water Impact Fees. Wilbow represents that the estimated Waterline Improvements construction costs are Three Hundred, Eighteen Thousand, Nine Hundred, Forty-Two and No/100 Dollars ($318,942.00), as more particularly described in Exhibit "D", attached hereto and incorporated herein for all purposes(the"Estimated Waterline Improvements Construction Costs"). The phrase"Waterline hnprovements construction costs" as used in this Agreement shall mean the actual cost of the engineering design, staking, installation, testing and inspection of the Waterline Improvements. Notwithstanding anything to the contrary herein, the parties agree that Wilbow will only be entitled to the water impact fee credits and/or Reimbursement described herein in an amount equal to the actual Waterline Improvements construction costs which have been incurred by Wilbow and approved in writing by the Town's Engineer (the "Actual Waterline Improvements Construction Costs"). The Actual Waterline Improvements Construction Costs submitted to the Town Engineer for written approval must be accompanied by documentation, in a form acceptable to the Town, evidencing payments made by Wilbow to the various contractors, including but not limited to,Affidavits of Payment. The parties recognize that according to the Impact Fee Ordinance, the Estimated Waterline Improvements Construction Costs may exceed the Collinsbrook Phase 1 Property Water Impact Fees. Should the Actual Waterline Improvements Construction Costs exceed the Collinsbrook Phase 1 Property Water Impact Fees, Wilbow may request, in writing, the Town to reimburse it for the amount of the Actual Waterline Improvements Construction Costs which exceed the Collinsbrook Phase 1 Property Water Impact Fees (the "Reimbursement"). The Town shall tender the Reimbursement to Wilbow from the next available Town funds. In no case shall the Reimbursement be made later than ten (10) months following the Town's final acceptance of all of the Waterline Improvements. Prior to the Town's final acceptance of all of the Waterline Improvements, Wilbow shall provide the Town with a final accounting, in the forms set forth in the preceding paragraph, of the Actual Waterline Improvements Construction Costs. WILDOW-PROSPER ONE DEVELOPMENT CORP.DEVELOPMENT AGREEMENT(COLLINSBROOK)—Page 3 of 20 I 4. Sewer Improvements. The Collinsbrook Phase 1 Property will be assessed at the rate of One Thousand,Four Hundred,Twenty-Six and No/100 Dollars per lot($1,426.00/lot),for a total of One Hundred, Twenty-Nine Thousand, Seven Hundred, Sixty-Six and No/100 Dollars ($129,766.00), for sewer impact fees in accordance with the Impact Fee Ordinance (the "Collinsbrook Phase 1 Property Sewer Impact Fees"). The remainder of the Property will be assessed sewer impact fees in accordance with the Impact Fee Ordinance existing at the time building permits are issued,respectively, for said remaining portions of the Property. During construction of the Collinsbrook Phase 1 Property utility improvements, Wilbow shall, at it sole cost and expense, construct a lift station to sewer the Property(the"Lift Station"). The Lift Station shall be constructed and installed in accordance with engineering and equipment plans, specifications and design approved in writing by the Town's Engineer. The Lift Station shall be completed prior to the Town's final acceptance of the Collinsbrook Phase 1 Property and shall be dedicated to the Town contemporaneously with the filing of the Collinsbrook Phase 1 Property final plat in the Collin County Land Records. 5. Thoroughfare Improvements. The Collinsbrook Phase 1 Property will be assessed at the rate of One Thousand, Four Hundred, Ninety-Eight and No/100 Dollars per lot ($1,498.00/lot), for a total of One Hundred, Thirty-Six Thousand, Three Hundred Eighteen and No/100 Dollars ($136,318.00), for thoroughfare impact fees in accordance with the Impact Fee Ordinance ("Collinsbrook Phase 1 Property Thoroughfare Impact Fees"). The remainder of the Property will be assessed thoroughfare impact fees in accordance with the Impact Fee Ordinance existing at the time building permits are issued, respectively, for said remaining portions of the Property. During construction of the Collinsbrook Phase 1 Property improvements, Wilbow shall, at its sole cost and expense, improve First Street, beginning at the intersection of Coit Road and First Street and extending to the eastern most boundary of the Collinsbrook Phase 1 Property, from a gravel road to a twenty-eight foot (28') thoroughfare in accordance with the Collin County overlayment standards(chip and seal), as approved in writing by the Town Engineer(the "First Street Connection"). The First Street Connection shall be completed and accepted by the Town along with the Collinsbrook Phase 1 Property public improvements. Additionally, Wilbow shall pay Collinsbrook Phase 1 Property Thoroughfare Impact Fees within forty five (45) days from the Town's final acceptance of the Collinsbrook Phase 1 Property public improvements. Subject to Wilbow fulfilling all of its obligations in this Agreement, Wilbow will not have any further construction obligations, in connection with the Collinsbrook Phase 1 Property,for improvements to Coit Road. 6. Parkland Dedication. Contemporaneously with the filing of the Collinsbrook Phase 1 Property final plat in the Collin County Land Records, Wilbow shall, at its sole cost and expense, convey fee simple title to Lot IA, Block A, as shown on the Collinsbrook Phase 1 Property fmat plat, dated September 7, 2005 and approved by the Town on September 13,2005, (the "Creek Park"). Upon conveyance of the Creek Park as provided herein, the Town will take responsibility for the perpetual maintenance of the Creek Park and any Town-approved attached improvements installed and/or constructed in accordance with ¶7 below. Additionally, upon Wilbow's conveyance of the Creek Park as provided in this paragraph, Wilbow shall satisfy the COLLINSBROOK DEVELOPMENT AGREEMENT—Page 4 of 20 • parkland dedication requirements set forth in the Subdivision Regulations for the Collinsbrook Phase 1 Property and the Future Phase Property. 7. Hike and Bike Trail. Wilbow shall, at it sole cost and expense, construct, along the Coit Road frontage of the Future Phase Property and within the Creek Park, a Hike and Bike Trail, including but not limited to, a trailhead feature within the Creek Park as determined by Wilbow's landscape architect and approved by the Town (the "Trail"). The Trail shall be constructed of concrete or other material as directed by the Town of Prosper Parks Board and in accordance with any and all other requirements, ordinances and/or regulations of the Town, as they exist, may be amended or in the future arising, and must be completed and accepted by the Town within six (6) months following the Town's final acceptance of the Collinsbrook Phase 1 Property. At creek crossings or in wetland areas, as solely determined by the Town, the Trail may be constructed of an all-weather deck material. The Trail shall be eight feet(8')wide, with the provision that when the Trail passes between two (2) trees desirable for preservation, the Trail width may be reduced to six feet(6') should the spacing between the trees dictate,as solely determined by the Town, such reduction in width. Furthermore, the Trail's alignment shall be allowed to meander as necessary to preserve existing trees. The Trail location shall be determined by Wilbow's landscape architect and approved by the Town, but shall generally extend from north to south across the Creek Park, connecting at two (2) points to public right of way dedicated to the Town within the Collinsbrook Phase 1 Property. 8. Park Improvements. The Collinsbrook Phase 1 Property shall be assessed at the rate of One Thousand and No/100 Dollars per lot ($1,000.00/lot), for a total of Ninety-One Thousand and No/100 Dollars ($91,000.00), for park improvement fees in accordance with the Subdivision Regulations (the "Collinsbrook Phase 1 Property Park Improvement Fees"). The remainder of the Property will be assessed park improvement fees in accordance with the Subdivision Regulations, or other related ordinance regulating park improvement fees and/or parkland dedication, existing at the time of development, respectively, for said remaining portions of the Property. Wilbow represents that the estimated Trail construction costs will be equal to or greater than the Collinsbrook Phase 1 Property Park Improvement Fees, as more particularly described in Exhibit "E", attached hereto and incorporated herein for all purposes (the "Estimated Trail Construction Costs"). The phrase "Trail construction costs" as used in this Agreement shall mean the actual cost of the Trail, trailhead feature, irrigation, and other improvements within the Creek Park related to the Trail. Notwithstanding anything to the contrary herein, the parties agree that Wilbow will only be entitled to the park improvement fee credit described herein in an amount equal to the actual Trail construction costs of the Trail which have been incurred by Wilbow and approved in writing by the Town's Engineer (the "Actual Trail Construction Costs"), The Actual Trail Construction Costs submitted to the Town Engineer for written approval must be accompanied by documentation, in a form acceptable to the Town, evidencing payments made by Wilbow to the various contractors, including but not limited to, Affidavits of Payment. The parties recognize that according to the Subdivision Regulations, the Estimated Trail Construction Costs may exceed the Collinsbrook Phase 1 Property Park Improvement Fees. Should the Actual Trail Construction Costs exceed the Collinsbrook Phase 1 Property Park COLLANSBROOK DEVELOPMENT AGREEMENT—Page 5 of 20 • Improvement Fees ("Park Improvement Fees Credit"), Wilbow may request, in writing, the Town to apply the Park Improvement Fees Credit toward the park improvement fees owed on the Future Phase Property, which may or may not equal the then total amount of park improvement fees owed on the Future Phase Property, as provided in the Subdivision Regulations. Notwithstanding anything to the contrary herein, Wilbow shall be required to tender, among other requirements, any and all park improvement fees owed on the Future Phase Property, less the Town-authorized Park Improvement Fees Credit, at the time of development. Wilbow shall complete construction of the Trail within six (6) months following the Town's final acceptance of the Collinsbrook Phase 1 Property public improvements. The Town will not charge Wilbow for water meter and/or connection fees for irrigation meters installed by Wilbow to irrigate,exclusively, the landscape improvements within the Trail. The Town will be responsible for all water charges for irrigation meters used exclusively for the landscape improvements within the Trail from the time that those improvements are accepted by the Town. Upon completion of the Trail and final acceptance by the Town of said improvements, the Town will take responsibility for the perpetual maintenance of the Trail and the Creek Park improvements. Prior to the Town's final acceptance of the Trail, Wilbow shall provide the Town with a final accounting, in the forms set forth in this 18, of the Actual Trail Construction Costs. 9. Future Parkland Dedication. Should Wilbow, at Wilbow's sole discretion, acquire and plat additional portions of the Future Phase Property or Future PD Property, notwithstanding any other parkland dedication and/or payment of park improvement fees required herein, Wilbow shall, at its sole cost and expense, dedicate, by Special Warranty Deed and/or final plat, future parkland and parkland improvements for the extension of the Trail throughout the Property, said dedications to be consistent with the Collinsbrook Phase 1 Property concept plan, dated October 28, 2004 (the "Concept Plan"). Also, if Wilbow acquires and plats additional portions of the Future Phase Property or Future PD Property that include the soil conservation lake, as depicted on the Concept Plan, the subject final plat will convey fee simple title to the surface area of the lake to the Town as parkland (the "Lake Dedication"). The Lake Dedication will be in addition to any other requirements of the Town in effect at the time of the subject platting of the additional portion(s) of the Property, but said Lake Dedication shall be credited against the parkland dedication requirement in place at the time of platting. 10. Sidewalks. Interior sidewalks fronting private lots within the Property and all handicap ramps within right of way located in the Property shall be concrete, four feet (4')wide and constructed by the builder. The perimeter sidewalk along Coit Road and First Street shall be concrete, five feet (5') wide and constructed by Wilbow and may be located outside of the right of way and in the adjoining common area (the "perimeter sidewalk"). Additionally, the perimeter sidewalk may have a meandering alignment and provide connections to the builder walks and the Trail,as applicable. 11. Platting and Building Permits. Upon completion and acceptance of all of the Collinsbrook Phase 1 Property's public improvements, as required by the Town approved construction plans, including without limitation, water, sewer, storm water and paving improvements, the Town shall, subject to the other conditions set forth herein, release the COLLINSBROOK DEVELOPMENT AGREEMENT—Page 6 of 20 I, Collinsbrook Phase 1 Property final plat for filing with Collin County,which may be prior to the installation of the franchise utilities and any required fmal erosion control improvements. The franchise utilities shall include, without limitation, electric, gas, telephone and cable (if applicable), and the final erosion control improvements shall only include erosion control improvements in the same location as the above mentioned franchise utility improvements. Before the Collinsbrook Phase 1 Property final plat is released by the Town for filing, Wilbow shall be required to provide to the Town evidence, in a form reasonably acceptable to the Town: (i) of plans and contracts with the utility providers for permanent connection to the electric and gas utilities servicing the Collinsbrook Phase 1 Property; (ii) of Wilbow's payment to said providers for their respective improvements located on the Collinsbrook Phase 1 Property, and (iii) that Wilbow has requested in writing the installation of the phone and cable improvements (if applicable) ("franchise evidence"). Subject to Wilbow satisfying all of the requirements for the Town's release of the Collinsbrook Phase 1 Property final plat as provided herein,the Town shall also issue building permits for the platted lots located within the Collinsbrook Phase 1 Property; provided, however, no certificates of occupancy will be applied for by Wilbow or issued by the Town with respect to improvements on such lots prior to Wilbow providing the franchise evidence described herein. All remaining franchise and final erosion control improvements shall be completed within ninety (90) days from the filing of the Collinsbrook Phase 1 Property fmal plat in the Collin County Land Records. The Town's release of additional final plats for the Property,or portions thereof,shall be subject to the same requirements set forth in this paragraph for the Collinsbrook Phase 1 Property. 12. Limitations. The parties hereto acknowledge this Agreement is limited to water, sewer and thoroughfare impact fees and park dedication and park improvement fees only. Town ordinances covering other fees, including, but not limited to, other impact fees, property taxes, utility rates and any other fees are not affected by this Agreement. 13. Default. In the event Wilbow fails to comply with any of the provisions of this Agreement, the Town shall have the following remedies in addition to the Town's other rights and remedies,at law or in equity: a. to refuse to issue building permits in relation to the Property, or any portion thereof; and/or b. to file this instrument in the Land Records of Collin County as a lien and/or encumbrance against Wilbow and/or the Property, or any portion thereof; and/or c. to cease, without notice and/or any other action, providing the Reimbursement and/or other credits described in this Agreement, if any; and/or d. to construct and/or complete the public improvements described herein and to recover any and all costs and expenses associated with the construction and/or completion of the same, including but not limited to, any and all attorneys' fees and costs associated therewith;and/or COLLINSBROOK DEVELOPMENT AGREEMENT—Page 7 of 20 e. to seek specific performance. Unless otherwise provided herein, in the event of the Town's default under this Agreement, Wilbow will be entitled to seek specific performance and/or any other remedy available to it at law or in equity. 14.. Notice. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States Mail, addressed to the party to be notified, postage pre-paid and registered or verified 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 factual 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: Town: Town of Prosper Attn: Town Administrator P.O. Box 307 Prosper,Texas 75078 Wilbow: Wilbow-Prosper One Development Corporation Attn: Chas Fitzgerald 4131 North Central Expressway, Suite 1140 Lockbox 13 Dallas,Texas 75204 15. PARTIES' ACKNOWLEDGMENT OF TOWN'S COMPLIANCE WITH FEDERAL AND STATE CONSTITUTIONS, STATUTES AND CASE LAW AND FEDERAL, STATE AND LOCAL ORDINANCES,RULES AND REGULATIONS/DEVELOPER'S WAIVER AND RELEASE OF CLAIMS. A. THE PARTIES ACKNOWLEDGE AND AGREE THAT: 1. THE PUBLIC IMPROVEMENTS TO BE CONSTRUCTED AND/OR PAID FOR BY WILBOW AND/OR THE FEES TO BE IMPOSED BY THE TOWN REGARDING THE PROPERTY, OR ANY PORTION THEREOF, DO NOT CONSTITUTE A: (a) TAKING UNDER THE TEXAS OR UNITED STATES CONSTITUTION; (b) VIOLATION OF THE TEXAS WATER CODE, AS IT EXISTS OR MAY BE AMENDED; (e) NUISANCE; AND/OR (d) CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST THE TOWN FOR A VIOLATION OF ANY FEDERAL AND/OR STATE CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL, STATE AND/OR LOCAL ORDINANCE, RULE AND/OR REGULATION. COLLINSBROOK DEVELOPMENT AGREEMENT-Page 8 of 20 , ( 2. THE AMOUNT OF WILBOW'S FINANCIAL OR INFRASTRUCTURE CONTRIBUTION (AFTER RECEIVING ALL CONTRACTUAL OFFSETS, CREDITS AND REIMBURSEMENTS, IF ANY) AGREED TO IN THIS AGREEMENT IS ROUGHLY PROPORTIONAL TO THE DEMAND THAT WILBOW'S DEVELOPMENT PLACES ON THE ROADWAY, WATER AND/OR SANITARY SEWER SYSTEM OF THE TOWN. • 3. WILBOW SHALL INDEMNIFY AND HOLD HARMLESS THE TOWN FROM ANY CLAIMS AND SUITS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO WILBOW'S PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES, AND/OR TRUSTEES, BROUGHT PURSUANT TO THIS PARAGRAPH. B. WILBOW RELEASES THE TOWN FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED ON EXCESSIVE OR ILLEGAL EXACTIONS. C. WILBOW WAIVES ANY CLAIM FOR DAMAGES AND/OR REIMBURSEMENT AGAINST THE TOWN FOR A VIOLATION OF ANY FEDERAL AND/OR STATE CONSTITUTION, STATUTE AND/OR CASE LAW AND/OR FEDERAL, STATE AND/OR LOCAL ORDINANCE,RULE AND/OR REGULATION. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 16. Vested Rights/Chapter 245 Waiver. Nothing in this Agreement shall be implied to vest any rights in the parties. In addition,nothing contained in this Agreement shall constitute a "permit" as defined in Chapter 245, Texas Local Government Code. WILBOW WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS LOCAL GOVERNMENT. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 17. Attorney's Fees. In any legal proceeding brought to enforce the teens of this Agreement, including but not limited to a proceeding brought pursuant to ¶13 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,effective on September 1,2005 or as it may subsequently be amended. 18. INDEMNIFICATION. WILBOW, ITS OFFICERS, DIRECTORS, PARTNERS, CONTRACTORS,EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS,ASSIGNEES,VENDORS, GRANTEES AND/OR TRUSTEES, DOES HEREBY AGREE TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE TOWN AND ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, INJURIES(INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF WILBOW, ITS OFFICERS, DIRECTORS, PARTNERS CONTRACTORS, EMPLOYEES, COLLINSBROOK DEVELOPMENT AGREEMENT—Page 9 of 20 REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS, GRANTEES, TRUSTEES, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FOR WHOM WILBOW IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS AGREEMENT AND/OR THE DEVELOPMENT AND/OR SUBDIVISION OF THE PROPERTY, OR ANY PORTION THEREOF, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE TOWN (HEREINAFTER "CLAIMS"). WILBOW IS EXPRESSLY REQUIRED TO DEFEND THE TOWN AGAINST ALL SUCH CLAIMS. IN ITS SOLE DISCRETION, THE TOWN SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY WILBOW IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY THE TOWN, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY THE TOWN IN WRITING. THE TOWN RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER,THE TOWN IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY THE TOWN IS NOT TO BE CONSTRUED AS A WAIVER OF WILBOW'S OBLIGATION TO DEFEND THE TOWN OR AS A WAIVER OF WILBOW'S OBLIGATION TO INDEMNIFY THE TOWN PURSUANT TO THIS AGREEMENT. WILBOW SHALL RETAIN TOWN-APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF THE TOWN'S WRITTEN NOTICE THAT TOWN IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS AGREEMENT. IF WILBOW FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD,THE TOWN SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND WILBOW SHALL BE LIABLE FOR ALL COSTS INCURRED BY THE TOWN. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 19. Miscellaneous. a. Assignment. This Agreement is assignable upon the following conditions: 1. the assignment of the Agreement must be evidenced by a recordable document. The recordable document referred to in this paragraph is subject to the approval of the Town; 2. at the time of any assignment, Wilbow must give the assignee written notice that any and all obligations, covenants and/or conditions contained in the Agreement will be assumed solely and completely by the assignee. The notice provided pursuant to this paragraph is subject to the approval of the Town; 3. Wilbow will file any approved,executed assignment in the Land Records of Collin County,Texas; and 4. Wilbow shall provide the Town with the name,address,phone number,fax number and the name of a contact person for the assignee. COLLINSBROOK DEVELOPMENT AGREEAIENT—Page I0 of 20 b. Compliance with Ordinances. Except as provided for in this Agreement, the parties agree that Wilbow shall be subject to all ordinances of the Town as they exist or may be amended. c. Construction. Any and all construction contemplated herein shall be in accordance with all applicable federal,state and local requirements, codes, • ordinances and/or regulations, as they individually and collectively exist, may be amended or in the future arising. d. Conveyances. All conveyances described herein shall be in a form acceptable to the Town and free and clear of any and all liens and encumbrances. e. 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 mutual written agreement of the parties hereto. f. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Collin County, Texas. Venue shall lie exclusively in Collin County,Texas. g. Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. h. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. i. 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. j. 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. k. 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 COLLINSBROOK DEVELOPMENT AGREEMENT—Page I I of 20 l ( 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. 1 1. 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. in. Sovereign Immunity. The parties agree that the Town has not waived its sovereign immunity by entering into and performing its respective obligations under this Agreement. n. 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 o. Incorporation of Recitals. The Recitals above are incorporated herein as if repeated verbatim. p. Covenant Running with Land. This Agreement shall be a covenant running with the land. This space intentionally left blank COLLINSBROOK DEVELOPMENT AGREEMENT—Page 12 of 20 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: Charles iswan , Mayor ATTEST: hanae Jenning own Secret WILBOW-PROSPER ONE DEVELOPMENT CORPORATION a Texas corporation By: Cl rles Fitzgera •esident ATFACHEMENTS: Exhibit A—Collinsbrook Phase 1 Property Exhibit B—Future Phase Property Exhibit C—Utility Plan Exhibit D—Estimated Waterline Improvements Construction Costs Exhibit E—Estimated Trail Construction Costs COLLINSBROOK DEVELOPMENT AGREEMENT—Page 13 of 20 STATE OF TEXAS * * COUNTY OF COLLIN BEFORE ME, the undersigned authority, on this day personally appeared Charles Niswanger, Mayor of the Town of Prosper, Texas, known to me to be the person whose name is subscribed to the foregoing instrument; and he acknowledged to me that he is the duly authorized representative for the TOWN OF PROSPER, TEXAS, and that he executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE thiscMday of Uj 006. shame D.Jennlnps (es Mycomet" Etp El October 30,2007 otary Public in and the State o exas My Commi5sion E res: ,thber" 9- STATE OF TEXAS * * COUNTY OF DALLAS BEFORE ME, the undersigned authority, on this day personally appeared Charles Fitzgerald, President of Wilbow-Prosper One Development Corporation, a Texas corporation, known to me to be the persons whose name is subscribed to the foregoing instrument; and he acknowledged to me he executed said instrument on behalf of Wilbow-Prosper One Development Corporation,as its President, for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this f day of Stalawar 2006. MARGAREf A.CADY NOTARY PUglIC u-Yk-ak.. �� 1 f%` STATE OF TEXAS ' <. �y h1Y COMM.EXP.05-30-2008 i Notary Public in and for the State of Texas My Commission Expires: Os 3u • otv2 COLLINSBROOK DEVELOPMENT AGREEMENT—Page 14 of 20 • Exhibit "A" Legal Description of Collinsbrook Phase 1 Property BEING a part of the William H. Thomason Survey, Abstract No. 895, a part of that 80.344 acre tract of land conveyed to Swisher Partners, L.P. as recorded in Volume 5468, Page 6173, Collin County Deed Records, and being all of that called 39.307 acre tract of land conveyed to Wilbow-Prosper One Development Corporation as recorded in Volume 5846, Page 2754, Collin County Deed Records, and being further described as follows: COMMENCING at a five-eighths inch iron rod found at the Southwest corner of said William H. Thomason Survey, said point being the junction center of County Road No. 80, County Road No. 79, County Road No. 74 and County Road No. 78, said point also being the southwest corner of said 80.344 acre tract, said point also being the southeast corner of a tract of land conveyed to Sexton Farms Ltd. as recorded in Volume 4673, Page 778, Collin County Deed Records, said point also being the northeast corner of a tract of land conveyed to Mustang-Midway Plano, Ltd. as recorded in County Clerk's File Number 96-0038753, Collin County Deed Records, said point also being the northwest corner of a tract of land conveyed to W. H. Rasor III as recorded in County Clerks File Number 97-0088102, Collin County Deed Records; THENCE North 00 degrees 01 minutes 30 seconds East, 1051.87 feet along the west line of said 80.344 acre tract, along the east line of said Sexton tract and along the centerline of County Road No. 80 to a P.K. nail set for corner in the west line of said called 39.307 acre tract and the POINT OF BEGINNING of this tract of land; THENCE North 00 degrees 01 minutes 30 seconds East, 253.35 feet along the east line of said Sexton tract and along the centerline of County Road No. 80 to a one-half inch iron rod found at the northwest corner of said 80.344 acre tract,said point being the northwest corner of said called 39.307 acre tract,said point also being the southwest corner of a tract of land (Tract Three) conveyed to Mary Ann Barlow Vowen as recorded in Volume 2172,Page 526,Collin County Deed Records; THENCE South 89 degrees 58 minutes 00 seconds East,2284.53 feet along the north line of said 80.344 acre tract and along the south line of said Tract Three to a point at the northeast corner of said called 39.307 acre tract,said point being being the northwest corner of a tract of land conveyed to TDI Prosper 24, Ltd. as recorded in Volume 5543, Page 2597, Collin County Deed Records, said point also being in the approximate centerline of a creek; THENCE along the east line of said called 39.307 acre tract, along the west line of said TDI tract and generally along the approximate centerline of a creek as follows: South 45 degrees 13 minutes 08 seconds West, 105.14 feet to a point for corner; South 49 degrees 58 minutes 14 seconds West, 156.27 feet to a point for corner; South 39 degrees 31 minutes 44 seconds West,62.10 feet to a point for corner; North 71 degrees 57 minutes 15 seconds West, 114.79 feet to a point for corner; South 22 degrees 32 minutes 54 seconds West,55.79 feet to a point for corner; South 22 degrees 38 minutes 28 seconds East,90.43 feet to a point for corner; South 47 degrees 26 minutes 03 seconds West,71.88 feet to a point for corner; South 59 degrees 20 minutes 58 seconds West,75.45 feet to a point for corner; South 43 degrees 32 minutes 53 seconds East,41.05 feet to a point for corner; South 13 degrees 25 minutes 13 seconds East,39.45 feet to a point for corner; COLLINSBROOK DEVELOPMENT AGREEMENT—Page 15 o f 20 South 07 degrees 13 minutes 37 seconds West, 107.47 feet to a point for corner; South 14 degrees 18 minutes 48 seconds East,77.74 feet to a point for corner; South 52 degrees 13 minutes 58 seconds East,95.12 feet to a point for corner; South 16 degrees 47 minutes 29 seconds East,42.69 feet to a point for corner; South 31 degrees 42 minutes 36 seconds West,31.79 feet to a point for corner; South 69 degrees 52 minutes 51 seconds West, 84.25 feet to a point for corner; South 39 degrees 23 minutes 53 seconds West,33.38 feet to a point for corner; South IS degrees 38 minutes 32 seconds West,80.55 feet to a point for corner; South 01 degrees 13 minutes 45 seconds East,41.20 feet to a point for corner; South 50 degrees 38 minutes 08 seconds West,43.39 feet to a point for corner; South 78 degrees 00 minutes 18 seconds West,34.52 feet to a point for corner; South 89 degrees 08 minutes 38 seconds West,40.60 feet to a point for corner; South 84 degrees 19 minutes 35 seconds West,37.90 feet to a point for corner; South 34 degrees 35 minutes 40 seconds West,42.00 feet to a point for corner; South 29 degrees 25 minutes 15 seconds East,48.00 feet to a point for corner; South 33 degrees 00 minutes 57 seconds East,31.52 feet to a point for corner; South 44 degrees 53 minutes 23 seconds East,52.59 feet to a point for corner; South 13 degrees 20 minutes 11 seconds East, 16.71 feet to a point for corner; South 04 degrees 10 minutes 07 seconds East,9.02 feet to a point for corner; South 21 degrees 36 minutes 51 seconds West,7.72 feet to a point for corner; South 55 degrees 11 minutes 53 seconds West,35.56 feet to a point for corner; South 63 degrees 56 minutes 03 seconds West, 14.03 feet to a point for corner; South 49 degrees 59 minutes 32 seconds West,68.56 feet to a point for corner; South 39 degrees 38 minutes 10 seconds West,61.51 feet to a point for corner; South 17 degrees 43 minutes 33 seconds West, 27.64 feet to a one-half inch iron rod set at the southeast corner of said called 39.307 acre tract, said point being the southwest corner of said TDI tract, said point being in the south line of said 80.344 acre tract, said point also being in the centerline of County Road No.79; THENCE North 89 degrees 36 minutes 34 seconds West, 763.11 feet along the south line of said 80.344 acre tract and along the centerline of County Road No. 79 to a one-half inch iron rod set at the southwest corner of said called 39.307 acre tract; THENCE along the west line of said called 39.307 acre tract as follows: North,479.81 feet to a one-half inch iron rod set for corner; Northwesterly, 142.94 feet along a curve to the left having a central angle of 45 degrees 00 minutes 00 seconds, a radius of 182.00 feet, a tangent of 75.39 feet, and whose chord bears North 22 degrees 30 minutes 00 seconds West, 139.30 feet to a one-half inch iron rod set for corner; North 45 degrees 00 minutes 00 seconds West,559.50 feet to a one-half inch iron rod set for corner; Northwesterly, 142.94 feet along a curve to the left having a central angle of 45 degrees 00 minutes 00 seconds, a radius of 182.00 feet, a tangent of 75.39 feet, and whose chord bears North 67 degrees 30 minutes 00 seconds West, 139.30 feet to a one-half inch iron rod set for corner; West, 257.47 feet to the POINT OF BEGINNING and containing 1,712,397 square feet or 39.311 acres of laud. COLLINSBROOKDEVELOPMENT AGREEMENT-Page 16 of 20 Exhibit"B" Legal Description of Future Phase Property BEING all that tract of land in Collin County,Texas,a part of the WILLIAM H.THOMASON SURVEY ABSTRACT NO. 895, and being a part of that 24.190 acre tract of land conveyed to Chuck Green on October 22, 1999, as recorded in Volume 4527, Page 2008,Collin County Deed Records, and being further described as follows: BEGINNING at a one-half inch iron rod found at southwest corner of said 24.190 acre tract of land,said point being in the east line of a 140.542 acre tract of land conveyed to Sexton Farms, Ltd.,as recorded in Volume 4673, Page 778,Collin County Deed Records, said point being also being the Northwest corner of a 24.029 acre tract of land conveyed to Elizabeth Barlow Collins Dauteiman as recorded in Volume 2172,Page 526, Collin County Deed Records; THENCE North 00 degrees 54 minutes 12 seconds West,340.79 feet along the west line of said 24.19 acre tract and along the east line of said 140.542 acre tract to one-half inch iron rod set for corner; THENCE North 70 degrees 43 minutes 09 seconds East, 204.80 feet to a point for corner In the centerline of a meandering creek; THENCE along the meanders of said creek centerline the following general courses and distances: South 61 degrees 33 minutes 15 seconds East, 56.21 feet to a point for corner; South 25 degrees 37 minutes 59 seconds East, 119.49 feet to a point for corner; South 73 degrees 30 minutes 31 seconds East, 57.28 feet to a point for corner: North 38 degrees 53 minutes 49 seconds East, 92.32 feet to a point for corner; North 49 degrees 57 minutes 47 seconds East, 57.41 feet to a point for corner; North 32 degrees 52 minutes 35 seconds East,62.18 feet to a point for corner; North 80 degrees 04 minutes 06 seconds East, 144.15 feet to a point for corner; North 68 degrees 46 minutes 24 seconds East, 85.50 feet to a point for corner; North 87 degrees 40 minutes 00 seconds East, 111.84 feet to a point for corner; North 57 degrees 10 minutes 39 seconds East,337.31 feet to a point for corner; North 59 degrees 09 minutes 12 seconds East, 124.75 feet to a point for corner; North 81 degrees 01 minutes 23 seconds East, 69.61 feet to a point for corner; South 75 degrees 19 minutes 43 seconds East, 53.28 feet to a point for corner; THENCE South 06 degrees 03 minutes 57 seconds East, 577.27 feet to a one-half inch iron rod set for corner in the south line of said 24.190 acre tract, said point being in the north line of said 24.029 acre tract; THENCE South 83 degrees 56 minutes 36 seconds West, 1395.43 feet along the south line of said 24.190 acre tract and along the north line of said 24.029 acre tract to the POINT OF BEGINNING and containing 564,346 square feet of 12.9556 acres of land. COLLMISBROOK DEVELOPMENT AGREEMENT—Page 17 of 20 - '� x Y� of t '`-w rj c r .f��r FFxS���@ sy 'f v ,tom. t _ 3! ' f '� 1 ! yx,, 1 _,v A > 6 S'Y 3h ^.i`74ei Y'3✓1 f �' S ~? si .,,( w may. r +' d- @ 'g aft -5'-', .--v x • m d y ..: t o • r 'r`s "'"` y, :. . 8,; r r gas,),Y r e , s , -;-"' d J *t+ 1',• ra. ea a��`x r:,,,e A3- _ ; %., �*. r'oa . .r ! t _,i .� �' d/J/VI; Y o f a� xT� .v) �'` � . g 3� -tjy yo+f s r.� ,, f f-�s . 'y4 T S' 1 .1'� ",, z,3i n `� �' s £ w. :t .! am C il.i k. .� it-�tr `, '5-...-` .a a `?P4' y.f1' -x'. � �` Fly ' [ �� F �,g r a .. +r 1 . ram F c ,j�,. 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Lr.7'3 't• 11 .t�'� ,�'� - ` ,sue ' "+• a" 3i §'4.5'=� ♦a' r r 74-Exe�,07 z w�- Y s- `, : y ¢Y- 7...� s t f,r r }k. t f. t w r o '•x jam, t glo c_ i3 } K 3t• f,„� r+ 't"' td - i `s.,* r' j t s -t w y Yf. h'2 •2' � rryy - '. °'--^ m �` :_.'. r n . S _.-^�— Wit.._ __..y1_.....-4_ __' _.___ .. ..v�� EXHIBIT C 12" WATERLINE ��� Jones & Boyd, Inc. 500 250 0 500 ::: .:-..: 17090 Dallas Parkway,• Suite 200 1 inch = 500 It. " `)98t"puyih, A Dallas,Texas 75248 ace, Tel;972 248 7616 slAe,- Fax:972-248.1414 Exhibit "D" Estimated Waterline Improvements Construction Costs Off-Site Water(East First Street Adjacent to Property) $43,602 Off-Site Water(From West Property Lint to Coit Road) $43,593 Off-Site Water(First Street From Coit Road to La Cima Connection) $97,077 Off-Site Water(Colt Road to Whispering Farms Connection) $104,805 Engineering Design $5,000 Surveying&Staking $4,000 Contingency $20,865 Total Off-Site Water Improvements $318,942 COLLINSI3ROOK DE VELOPMENT AGREEMENT—Page 19 of 20 i Exhibit "E" Estimated Trail Construction Costs Description Qty Unit Unit Cost Total Grading improvements for trail construction 50 HR $125.00 $6,250.00 Up-limb canopy&clear underbrush(2 crews) 7 DAY $2,350.00 $16,450.00 Install mulch under canopy 2 DAY $500.00 $1,000.00 8 Foot wide Hike&Bike Trail, Concrete 1410 LF $24.00 $33,840.00 8 Foot wide Hike&Bike Trail,All-weather decking 270 LF $75.00 $20,250.00 Retaining walls and gabion armoring for trail system 960 SF $7.25 $6,960.00 Re-seed disturbed areas 1 LS $1,000.00 $1,000.00 Irrigation improvements at Trail Head(allowance) 1 EA $1,750.00 $1,750.00 Landscape Improvements at Trail Head(allowance) 1 EA $3,550.00 $3,550.00 Total Park area improvements $91,050.00 1 I COLLINSEROOK DEVELOPMENT AGREEMENT-Page 20 of 20