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05-94 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 05-94 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 THE PROSPER INDEPENDENT SCHOOL DISTRICT REGARDING THE SHARED COST AND JOINT USE OF A PLAYGROUND FACILITY TO BE LOCATED AT FOLSOM PARK. 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 the Prosper Independent School District regarding the shared cost and joint use of a playground facility to be located at Folsom park. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 13th day of December, 2005. arles Niswanger, Ma ATTEST TO: S anae Jennings, own Secreta INTERGOVERNMENTAL JOINT USE AGREEMENT This Intergove} ental Joint Use Agreement ("Agreement") is made and entered into this 19 day of J i,I I y , 200i,liDy and between the Town of Prosper, Texas, a municipal corporation organized under the laws of the State of Texas ("Town"), with the authorization of its governing body, and the Prosper Independent School District, a political subdivision of the State of Texas ("District"), with the authorization of its governing body (collectively referred to as the "Parties"). WHEREAS, the Town owns real property within the corporate limits of the Town containing 11.0± acres, more or less, described as Lakes of La Cima, Phase Three, Block 36, Tract 1 X as shown on the attached Exhibit"A" ("Park Property"); WHEREAS, the Property is adjacent to Folsom Elementary School, on 10.0± acres, more or less, described as Lakes of La Cima, Phase Three, Block 36, Tract 2X as shown on the attached Exhibit"A"which is incorporated as if fully set forth herein("School"); WHEREAS, the District has determined that an additional playground facility ("Playground") is needed for use by the students at the School; WHEREAS, the District has determined that space for the Playground is not available on the School property; WHEREAS, the Town has determined that space for the Playground is available on the Park Property; WHEREAS, the Parties recognize the public interest of developing a Playground on the Park Property, adjacent to the School. An exhibit showing the Playground on the Park Property subject to this Agreement is attached hereto as Exhibit"B". WHEREAS, the District has determined that participation in this Agreement is necessary in the conduct of its schools; WHEREAS, Town and District recognize that the taxpayers of each entity are best served by the maximum utilization of the Park Property and Playground, thereby minimizing the need for costly duplication of similar facilities; WHEREAS, the Parties have determined their participation in this Agreement serves a public purpose; WHEREAS, the Parties will retain public control over the funds subject to this Agreement to ensure that the public purpose is achieved; WHEREAS, the Parties have determined that they will receive a return benefit for their participation in this Agreement; and WHEREAS,the Parties are authorized by law to enter into this Agreement. Intergovernmental Joint Use Agreement(Playground) Page 1 436639-1 • NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. Term. a. Primary Term. The primary term of this Agreement shall be for fifty-five (55) years, commencing on the Effective Date and, unless renewed according to the terms set, forth in 1(b) below will terminate on the I day of uY , 2060. b. Renewal. The primary term of this Agreement may be extended by written agreement by both Parties for •�-24.1 ( 10) year periods upon the same terms and conditions as set forth herein or as amended. In order for the primary term to be extended for a renewal term, District must notify Town, in writing, of its desire to extend the Agreement for an additional one (1) year period. Such notice must be given sixty (60) days prior to the expiration of the primary term or any one (1) year extension thereof. District will, after Town gives such notice, have thirty (30) days in which to notify Town of its agreement to extend the term of the Agreement. If District fails to notify Town in writing, of its agreement to extend any given term of the Agreement, the Agreement will expire as provided for herein. 2. Obligations. A. Obligations of Town. i) Town shall give the District $30,000.00 to assist in the construction of the Playground. Upon completion of the Playground, the District shall request, in writing, payment of the $30,000.00. The Town shall provide the payment to the District within thirty (30) days after receiving the written request. ii) Town shall permit the construction of the Playground on the Park Property. At such time as the Town proceeds with full development plans for the Park Property, those plans shall reflect the Playground location. B. Obligations of District. i) The District shall construct the Playground. The total installed cost of such Playground, including the Town's $30,000.00 payment, shall be equal to or greater than $60,000.00. The District shall have final approval of the plans for the Playground, other than the location of the Playground under 1.B.ii. below. ii) The Playground shall be located on the Park Property near the School, as depicted on attached Exhibit `B". The final location of the Playground shall be approved by both Town and District staff. Intergovernmental Joint Use Agreement(Playground) Page 2 436639-1 C. Joint Obligations of the Parties. i) Upon completion of construction, the District shall be responsible for one hundred percent (100%) of all costs and responsibilities associated with the maintenance, repair and operation of the Playground. The District may, as necessary, employ contractors or subcontractors to perform maintenance and repair work and shall be responsible for such repair and maintenance costs. ii) The Town and District shall grant a right of mutual access to the Playground. 3. District Use of Playground. During the term of this Agreement, District shall have exclusive use of the Playground during school hours and for District sponsored events. Outside of school hours and District sponsored events, the Playground shall be open to use by the general public for public recreation. 4. Rules and Regulations. Town and District recognize that District has adopted certain rules and regulations covering the use of the Playground and the conduct of persons at or on such Playground, which rules may be amended from time to time at District's sole discretion, in order to ensure the continued and uninterrupted operation of the Playground and the safety of all users. District agrees that it will notify Playground users of the rules and regulations promulgated by District relating to such Playground. Third party users that fail to comply with the rules will be suspended from use of the Playground until District and Town receive written assurances the rules will be followed in the future, and both Parties mutually agree that the suspension from use will be lifted. Additionally, Town may adopt and enforce ordinances in conjunction with District's rules and regulations. A. Use of Playground i) Town and District shall use the Playground only for the purposes outlined in this Agreement. ii) Town and District shall not use, or permit the use of, the Playground in any manner that results in waste of the Playground or constitutes a nuisance. Nor shall Town and District use, or permit the use of, the Playground for any illegal purpose. iii) Town and District shall comply with all governmental laws, ordinances and regulations applicable to the use of the Playground, and shall comply with all governmental orders and directives for the correction, prevention and abatement of nuisances and other activities in or upon, or connected with the Playground. iv) To the extent any alterations to the Playground identified in this Agreement, subsequent to completion of construction of the Playground, are required by the American Disability Act (ADA) or other applicable laws or regulations, District shall be responsible for one hundred percent (100%) of the expense of the alterations. Intergovernmental Joint Use Agreement(Playground) Page 3 436639-1 v) Any signs installed by Town and District on the Playground must conform to applicable laws, deed restrictions on the Playground, and other applicable requirements. B. Liability i) Town shall not be liable for any damage or injury to the persons, business (or any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of District, District's employees, invitees or licensees, whether the damage or injury is caused by or results from: (a) fire, steam, electricity, water, gas or wind; (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; (c) conditions arising on or about the Playground or upon other portions of any real property of which the Playground is a part, or from other sources or places; or (d) any act or omission of the District. Town shall not be liable for any damage or injury even though the cause of or the means of repairing the damage or injury are not accessible to District. Town does not waive its right of sovereign immunity by entering into or performing the terms and conditions of this Agreement. ii) District shall not be liable for any damage or injury to the persons, business (or any loss of income), goods, inventory, furnishings, fixtures, equipment, merchandise or other property of Town proximately caused by the intentional misconduct or negligence of Town, its employees, officers, or agents after the effective date of this Agreement. District does not waive its right of sovereign immunity by entering into or performing the terms and conditions of this Agreement. C. Compliance with the Law. Parties will insure that all activities at the Playground will comply with applicable federal, state and local laws. District and Town will not be responsible for the compliance of third parties with this provision. D. Maintenance and Surrender. i) District shall, at all times, keep the Playground in good order, condition and repair, ordinary wear and tear excepted, including, but not limited to, maintenance and repairs as provided in this Agreement. ii) Town, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of Federal, State, county and municipal authorities pertaining to Town's use of the Playground and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all zoning and other land use matters, and with any direction of any public officer or officers, pursuant to law, which impose any duty upon Town with respect to the use or occupancy of the Playground. Any costs for compliance shall be shared by both Parties on a 50-50 basis. Intergovernmental Joint Use Agreement(Playground) Page 4 436639-1 5. Incidents. All accidents to persons or damage to the Playground shall be reported by the party receiving the report of the accident or damage to the other party verbally within twenty- four (24) hours, verbal notice may include leaving a voice mail message at the contact numbers identified in paragraph 9 below, and in writing within three (3) business days from the date of such accident or damage. 6. Insurance. A. Liability Insurance. Each Party hereto shall maintain during the term of this Agreement a general liability insurance policy covering damages arising out of personal or bodily injury or death and damage to property, including the loss thereof, occurring on or in any way related to the use of the Playground covered by this Agreement, with limits of not less than one million dollars ($1,000,000.00) dollars annual aggregate limit or five hundred thousand ($500,000.00) dollars single limit per occurrence annual aggregate. Such insurance policy shall provide that the insurer shall give not less than thirty (30) days prior written notice of the cancellation thereof to the other Party. Each Party shall give the other Party evidence of such insurance coverage within thirty (30) days from the execution date of this Agreement. B. Property Insurance. Town shall maintain property damage insurance on the Park Property. 7. Default. Failure of a Party to abide by any of the terms and conditions of this Agreement shall constitute an Event of Default. In the event of a non-monetary default, the non-defaulting Party shall notify the defaulting Party of such event of default in writing. If the non- monetary event of default does not involve the safety of person or property, in the sole determination of the non-defaulting Party, the defaulting Party shall have thirty (30) days from the date of notice within which to cure the default; or if the default is not susceptible of being cured within such thirty (30) day period, the defaulting Party shall have ten(10) days from the date of notice to commence cure of the default and shall continuously and vigorously pursue the same to completion. If the non-monetary event of default involves the safety of person or property, in the sole discretion of the non-defaulting Party, the defaulting Party shall have twenty-four (24) hours within which to cure such default, failing which the non-defaulting Party shall have the right to suspend the defaulting Parry's right to use the Playground until the default is cured. In the event of a monetary default or a non-monetary default which has not been cured within the time set forth above, the non-defaulting Party shall have the right to immediately terminate this Agreement. Intergovernmental Joint Use Agreement(Playground) Page 5 436639-1 8. District Board and Town Council Approval. This Agreement is entered into by District pursuant to a resolution passed by its Board of Trustees dated Dec:, 19 , 2005, authorizing the Superintendent to execute the same on behalf of the Prosper Independent School District, and by Town pursuant to a resolution passed by its Town Council dated Dec 13 , 2005, authorizing the Mayor to execute the same on behalf of the Town of Prosper. 9. Miscellaneous Provisions. A. Notices. Any notice required or permitted under this Agreement shall be given when actually delivered or when deposited in the United States mail as certified mail addressed as follows: To District: Prosper Independent School District Superintendent P. O. Box 100 Prosper, Texas 75078 Telephone: 972-346-3316 Facsimile: 972-346-9247 To Town: Town of Prosper Town Administrator P.O. Box 307 Prosper, Texas 75078 Telephone: 972-346-2640 Facsimile: 972-347-2304 B. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the matters contained herein and may not be modified or terminated except upon the provisions hereof or by the mutual written agreement of the Parties hereto. C. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and exclusive venue shall be in Collin County, Texas. D. Consideration. This Agreement is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. E. Sovereign Immunity. Nothing in this Agreement shall be deemed a waiver of the governmental, sovereign, or official immunity afforded by law to either the Town or District, nor shall this Agreement be deemed to alter the limitation of liability for recreational uses in Chapter 75 of the Civil Practice and Remedies Code, as it exists or may be amended. F. Non-Transferable. Neither party hereto shall sublet, transfer or assign any of its rights hereunder to a third party. Intergovernmental Joint Use Agreement(Playground) Page 6 436639-1 G. Cumulative Remedies. All rights and remedies of Town and District under this Article shall be cumulative, and none shall exclude any other right or remedy provided by law, or by any other provisions of the Agreement. All such rights and remedies may be exercised and enforced concurrently and whenever, and as often, as occasion for their exercise arises. H. Waiver of Breach. A waiver by either Town or District of a breach of the Agreement by the other party does not constitute a continuing waiver or a waiver of any subsequent breach of the Agreement. I. Parties Bound. The Agreement shall be binding upon, and inure to the benefit of, the Parties to the Agreement and their respective heirs, executors, administrators, legal representatives, successors, and assigns when permitted by this Agreement. J. Legal Construction. In case any one or more of the provisions contained in the Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement, and the Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been included in the Agreement. K. Equal by all Parties. The Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of the 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. L. Amendment. No amendment, modification, or alteration of the terms of the Agreement shall be binding unless it is in writing, dated subsequent to the date of the Agreement, and duly executed by the parties to the Agreement. M. Force Majeure. Neither Town nor District shall be required to perform any term, condition, or covenant in the Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, strikes, lockouts, material or labor restrictions by any governmental authority, civil riots, floods, and any other cause not reasonably within the control of Town or District and which by the exercise of due diligence Town or District is unable, wholly or in part, to prevent or overcome. N. 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. Intergovernmental Joint Use Agreement(Playground) Page 7 436639-1 • TOWN OF PROSPER, TEXAS By: _ CHARLE NG , Mayor Attest: Date: "7 I,f d //.4�� �����►i _ • . _ µ� , Doi .n Town Secretary 0111111//0 •O OF P //' PROSPER INDEPENDENT 0•.. •..• .,� SCHOO ISTRICT • 4 • � S * By: • Dre Wat ins, S perintendent • f ••••• .M.N•••••. •` Date: 7 L/ CC ��®e® TEXAS 10`eo®� Intergovernmental Joint Use Agreement(Playground) Page 8 436639-I EXHIBIT A CURVE TABLE FTi i43LIllLr t"•,,I=11 mono i I i ' . i i ` ` 1 one.'. , OIRST+EMETITMEMPOT2t'i12.1 a Ao » IL AN ....atPc...L•As .. 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IIIIy 8 s 8 ryFW� . oa ,.Mt '01mr:Y �v \ • / 8 'ab:p/', 8 I" i i Y 1 $I $ 41 ryJc■2 tar I p. Lm J9 '> IG996 AL II I ss 50'R TEMPORARY 6„. I 1 W/•¢ 11 IO.WB AC a STREET FSNT. - I 2I l )HALT i0 DEOICADON + 1 '-1 i, / �____-/.-'1 a ,('y TO DIE TORN OF PROSPER II t( 1� ad 2d 1,4,..$ . /.\ WA at LOT MAW 1 I �,°° ! Was $ 1 I F(',FND 'Nk / --_-__� I 1Pi f `T'••+euTTEs oq5 i TYPICAL BUILDING LINE DETAIL BL-DRIAINAc LDING UHE A!, _ °I{ 11 •I IE`Ta, s4a a'OYW N.T.S.IIII DE- E EASFYENT _ non LnoYEarNvrs AssoannaN a I I ,ea,S.E �,r _ 'fl4• 110 RESIDENTIAL FMAME.ACES AND UTRITT EASEMENT 4 '1° --� - % m 15� _i___ D ��41 .Y , at �61.213 DACRESTS ��ET) 9AE.PUBLIC SIDEWMI(EASEMENT • +� Jax, -, sew-mc -.-srE_ -_---_ _____^a,�_.�_"s16„� DE-UTILITY EASEMENT 0�«50 T'9•00' °'�-- --------_ --------------. O.R.D.C.i.-DEED RECORDS.OfllTa.COUNtt,1EN.A5 Tw122.4t ---- -- w,Tr sass 5- '�° P.R.D.C.T.-PLAT RECORDS,DENTON COUNTY,TEXAS Un9.4Y £i � °3.Pwarc a*,"" ^� A�.�"cgpF' FINAL PLAT DOD/-DOCUMENT NUMBER L1,�569L1'01•E a100' 9 1)d iP.AEfvET. �P d'p 5+( dP RE-RW RDO FOUND - ------------------ a„ LAKES OF LA GMA IPF.PON PIPE FOUND ______ ____________. Aa ADS.PD.«J ri F s p PHASE THREE AN ADDITION TO THE TORN S PROSPER -DENOTES STREET NAME CHANGE ---- y( HARRISON JAMISON SURVEY ABSTRACT NO 400 •-I/24 IRON ROD FOUND W/YELLOW PLASTIC CAP RERAN.OF N i GOWN COUNTY.TEXAS d nANPEp'OW(UNLESS NOlEO) MU'TANO-MORAY PL1110.110 L •=I/Y RON Pao SET W/YE{Law PLASM DAP Gr.Na w-aD]B)SJ NOTES: JUNE 2004 SCALE: 1'>;100' STAMPED'OW s.P4doYW 14.e.a5' .E -WARM UNE EASEMENT 1.Selling a portion of Nle addition by _ melee and bounds is a violation al OWNER 5_ MNF-WALL MAINTENANCE EASEMENT _____ ____ Town Ordinance and State low one la PDC MO PROSPER.LTD. ` subject to lines and withholding al < VAN-NSiBiurv,ACCESS k MAINTENANCE EASEMENT --_-- REMAINDER OF utilities and bDAEln9 permits. 5225 VILLAGE CREEK DRIVE, SUITE 300 -2--DENOTES DIRECTION HOUSE FACES 5-XD]9)STD'E,D •,N.100 Yr.Flouddl aln exist*on this (9]2)931-953) PL.WO,TEXAS )509] :-RESTRICTS DRIVEWAY LOCATION c.GF.No.a site. S FOR)o'FROM u BOULEVARD 3.All lots developed to PO-2-SF-2A ENGINEER `O 4.Lot I ,_:\DOwDEY,,w '4.Lots 1-11,Bieck 73 shall require a e' �C` DBLSON&ASSOCIATES,INC.IN °i REVISED:)-)op4 sidewalk. Sidewalk 10 be constructed by Sm1RalledlMRtd.• �AT�>a eM)b4N 5 borne builder. I OF 2 00-059 Insert Exhibit B here Playground layout& design