05-93 R - Agreement with Prosper ISD for Shared Cost and Joint Use of Tennis Facility at Prosper High School TOWN OF PROSPER, TEXAS RESOLUTION NO. 05-93
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
TENNIS FACILITY TO BE LOCATED AT PROSPER HIGH SCHOOL.
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 tennis facility to be located at Prosper High
School.
SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 13th
day of December, 2005.
Charles Niswanger, Mayor
ATTEST TO:
S anae Jennings, o n Secretary
INTERGOVERNMENTAL JOINT USE AGREEMENT
s Intergove ental Joint Use Agreement ("Agreement") is made and entered into
this 1 9 day of ci U / , 200/,Voy 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 District owns real property within the corporate limits of the Town
containing 73.8±acres, more or less, a description of which is attached hereto as Exhibit"A" and
incorporated as if fully set forth herein("Property");
WHEREAS, the Property is home of Prosper High School, Prosper Middle School, and
their associated athletic and other associated facilities;
WHEREAS, the District is constructing an addition to Prosper High School on the
Property;
WHEREAS, the Parties recognize the public interest of developing a tennis facility in
conjunction with this addition to Prosper High School. An exhibit showing the Property and the
addition, including the lighted tennis facility subject to this Agreement, is attached hereto as
Exhibit "B" and incorporated as if fully set forth herein (said tennis facility hereinafter referred
to as"Facility").
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 Property and Facility, 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.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein,the parties hereto agree as follows:
Intergovernmental Joint Use Agreement(Facility) Page 1
436640-1
•
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 s t forth in 1(b) below will terminate on the (9 day of
July , 2060.
b. Renewal. The primary term of this Agreement may be extended by written
agreement by both Parties for -}e YI (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 $113,000.00 to assist in the construction of the
Facility, including funding for the installation of lights. Upon completion and
Town acceptance of the High School addition project, the District shall request in
writing payment of the $113,000.00. The Town shall provide the payment to the
District within thirty(30) days after receiving the written request.
ii) The Town will be responsible for payment of the electricity account necessary to
operate the lights at the Facility at all times.
B. Obligations of District.
i) The District shall construct the Facility, including a minimum of four (4)
individual courts along with the High School Addition project.
ii) The Facility shall be located at a location between the existing softball field and
Coleman Street, as depicted on attached Exhibit`B".
iii) The Facility shall include lighting to facilitate its use at night. The District shall
coordinate with the Town regarding the operating switching installed for the
lighting.prior to its installation.
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C. Joint Obligations of the Parties.
i) Town shall have the right to charge third parties a reasonable fee for participation
in the recreational activities at the Facility covered by this Agreement. District
shall be exempt from paying these fees.
ii) 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 Facility, with the exception of the lighting at the
Facility. Upon completion of construction, the Town shall be responsible for one
hundred percent (100%) of all costs and responsibilities associated with the
maintenance, repair and operation of the lighting at the Facility. The District and
Town may, as necessary, employ contractors or subcontractors to perform
maintenance and repair work and shall be responsible for such repair and
maintenance costs.
iii) The Town and District shall grant a right of mutual access to the Facility.
iv) Town shall be responsible for one hundred percent (100%) of all the electricity
use costs for the lighting at the Facility outlined herein for the term of this
Agreement.
3. District Use of Facility. During the term of this Agreement, District shall have exclusive
use of the Facility during school hours and for District sponsored events, including
practice and play by the Prosper High School Tennis Team. It is the intent of both Parties
that the Facility is to be used for play/practice by District, but that the Facility may also
be scheduled for use by the general public for public recreation, including use by youth
leagues and/or recreational leagues, so long as public use does not interfere with District
sponsored use or events.
4. Rules and Regulations. Town and District recognize that District has adopted certain
rules and regulations covering the use of the Facility and the conduct of persons at or on
such Facility, 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 Facility and the safety
of all users. District agrees that it will notify users of the Facility of the rules and
regulations promulgated by District relating to such Facility. Third party users that fail to
comply with the rules will be suspended from use of the Facility 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 Facility
i) Town and District shall use the Facility only for the purposes outlined in this
Agreement.
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436640-1
ii) Town and District are authorized to enter into an agreement with third party
vendors or concessionaires to service the events scheduled for the Facility.
iii) Town and District shall not use, or permit the use of, the Facility in any manner
that results in waste of the Facility or constitutes a nuisance. Nor shall Town and
District use, or permit the use of, the Facility for any illegal purpose.
iv) Town and District shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Facility, 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 Facility.
v) To the extent any alterations to the Facility identified in this Agreement,
subsequent to completion of construction of the Facility, 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.
vi) Any signs installed by Town and District on the Facility must conform to
applicable laws, deed restrictions on the Facility, and other applicable
• requirements.
B. Town's Access
If District changes the locks on the Facility, District must provide Town with a copy
of each separate key within one(1) business day.
C. 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 Facility or upon other
portions of any real property of which the Facility 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,
Intergovernmental Joint Use Agreement(Facility) Page 4
436640-1
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.
D. Compliance with the Law.
Parties will insure that all operations and vendor or concessionaire activities 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.
E. Maintenance and Surrender.
i) District shall, at all times, keep the Facility 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 Facility 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 Facility. Any costs for compliance
shall be shared by both Parties on a 50-50 basis.
5. 'Incidents.
All accidents to persons or damage to the Facilities 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 Facility 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
Intergovernmental Joint Use Agreement(Facility) Page 5
436640-1
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.
District shall maintain property damage insurance on the Facility.
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
Party's right to use the Facility 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.
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 DeG 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, I , 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
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436640-1
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.
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.
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436640-1
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.
TOWN OF PROSPER, TEXAS
By:
CHARLE NI ANG , ayor
Attest: Date: 7 /
N-211-hew Denfoi,
`s �tttIVWy1,i
,% . OF Pq ps��� PROSPER INDEPENDENT
.• •'� '•.��� SCHOOL DISTRICT
: 9•
% *
• BY z
rew W tkins, Superintendent
• •......•••'sue •. Date: '7 - l Y-4 6
,,/ EX S .
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436640-1
EXHIBIT A
STATE OF TEXAS )(
COUNTY OF COLLIN )(
WHEREAS, PROSPER INDEPENDENT SCHOOL DISTRICT, is the owner of a
73.81 acre tract of land, situated in the John R. Tunney Survey, Abstract No.
916, and the Collin County School Land Survey, Abstract No. 147, located in the
City of Prosper, Collin County, Texas, and being part of the tracts of land
conveyed to Prosper Independent School District as described in the following
deeds recorded in County Clerk File Number 97-0013953, Volume 2147, Page
922, Volume 876, Page 628, and Volume 605, Page 29, of the Real Property
Records of Collin County, Texas. Said 73.81 acre tract of land being more
particularly described by metes and bounds as follows:
Beginning at a 5/8 inch iron rod found with a plastic cap stamped "TNP" found
on the east right of way line of Business Highway No. 289, also know as North
Coleman Street (a variable width right of way) and being at the northwest corner,
of a tract of land conveyed to Lark Skelton Schott as described in deed recorded
in the County Clerk's File No. 94-0110030, of said Collin County, same corner
also being at the southwest corner of said Prosper I. S. D. tract;
Thence along the east right of way line of said Coleman Street, same being on
the west line of said Prosper I. S. D. tract, the following courses and distances:
North 01°01'57" East, a distance of 864.30 feet to a 1/2 inch iron rod found
for corner;
North 00°15'46" East, a distance of 140.16 feet to a nail set on pavement
for the southwest corner of a tract of land conveyed to DJPT-57 Ltd. as
described in deed recorded in the County Clerk's File No. 00-0131066, of
said Collin County;
Thence North 89°44'39" East, departing said east right of way line, along the
south line of said DJPT-57 tract, same being on the north line of said Prosper I.
S. D. tract, a distance of 1536.20 feet to a 1/2 inch iron rod found for corner;
Thence North 89°28'58" East, continuing along the north line of said Prosper I. S.
D. tract, a distance of 1081.57 feet to a 2 inch steel fence post found on the west
line of a tract of land conveyed to Effie Blase as described in deed recorded in
the County Clerk's File No. 99-0043348, of said Collin County;
Thence South 00°43'33" East, along the east line of said Prosper I. S. D. tract, a
distance 392.11 feet to a 1/2 inch iron rod found at a southwest corner of a tract
of land conveyed to Dan Christie as described in deed recorded in Volume 1019,
Page 520, of said Collin County;
Thence South 00°32'15" West, continuing along the east line of said Prosper I. S.
D. tract, a distance of 24.30 feet to a 3/4 inch iron pipe found for corner;
Thence South 00°12'40" East, continuing along the east line of said Prosper I. S.
D. tract, a distance of 576.99 feet to a 1 inch iron rod in concrete found at the
southwest comer of said Dan Christie tract, same being on the north line of Lot
31 Block A, Stone Creek Addition as shown on plat recorded in Cabinet J, Slide
774, of the Plat Records of Collin County, Texas;
Thence departing said Dan Christie Tract, along the common line of said Block
A, Stone Creek Addition, and said Prosper I. S. D. tract, the following courses
and distances:
South 89°34'27" West, a distance of 12.48 feet to a 5/8 inch iron rod with a
plastic cap stamped "TNP" found for corner;
South 00°28'39" East, a distance of 995.62 feet to a 3 inch steel fence
post found at the northeast corner of a tract of land conveyed to Bobby D.
Jones as described in deed recorded in Volume 2474, Page 432, of said -
Collin County;
Thence South 89°28'19" West, along the north line of said Bobby D. Jones tract,
same being on the south line of said Prosper I. S. D. tract, a distance of 300.47
feet to a chain link fence post found at the northeast corner of a tract of land
conveyed to Fred R. Wilson as described in deed recorded in Volume 818, Page
701, of said Collin County;
Thence South 89°28'47" West, along the north line of said Fred R. Wilson tract, a
distance of 282.86 feet to a 3 inch chain link fence post found at the southeast
corner of a tract of land conveyed to David T. Barnes as described in deed
recorded in County Clerk's File Number 01-0076368, of said Collin County;
Thence North 00°14'46" West, along the west line of said Prosper I. S. D. tract, a
distance of 386.34 feet to a 1/2 inch iron rod found on the north right of way line
of Seventh Street (a 60 feet right of way) same being at the southeast corner of
Lot 1 Block E, Valley View Addition, First Installment;
Thence North 00°07'32" West, along the east line of said Lot 1 Block E same
being on the west line of said Prosper I. S. D., a distance of 139.99 feet to a 1/2
inch iron rod found at the northeast corner of said Lot 1 Block E;
Thence North 01°00'22" West, continuing along the west line of said Prosper I. S.
D. tract, a distance of 139.36 feet to a 2 inch iron pipe found at the northeast
corner of Lot 2 Block E, of said Valley View Addition, First Installment, same
being at the southeast corner of Lot 3 Block E, of said Valley View Addition,
Second Installment as shown on plat recorded in Volume 1388, Page 102, of the
Plat Records of Collin County, Texas;
Thence North 00°52'51" West, continuing along the west line of said Prosper I. S.
D. tract, a distance of 120.20 feet to a 1/2 inch iron rod found (bent) on the south
right of way line of Eighth Street (a 50 feet right of way) same being at the
northeast corner of said Lot 3 Block E;
Thence North 00°08'39" East, continuing along the west line of said Prosper I. S.
D. tract, a distance of 120.20 feet to a 1/2 inch iron rod found at the northeast
corner of Lot 9 Block F, of said Valley View Addition, First Installment;
Thence along the north line of Block F, of said Valley View Addition, First
Installment, same being on the south line of said Prosper I. S. D. tract, the
following courses and distances:
Sough 89°56'02" West, a distance of 190.56 feet to a 1/2 inch iron rod
found for corner;
South 89°59'26" West, a distance of 89.78 feet to a 1/2 inch iron rod found
for corner;
South 89°57'32" West, a distance of 94.67 feet to a 1/2 inch iron rod found
for corner;
South 89°40'16" West, a distance of 95.46 feet to a 1/2 inch iron rod found
for corner;
North 89°52'31" West, a distance of 94.18 feet to a 1/2 inch iron rod found
for corner;
South 89°32'06" West, a distance of 189.60 feet to a 1/2 inch iron rod
found for corner;
South 89°54'45" West, a distance of 153.75 feet to a 1/2 inch iron rod
found on the west right of way line of Church Street (a 60 feet right of way)
same being at the northeast corner of a tract of land conveyed to Franklin
D. Wilson as described in deed recorded in Volume 2480, Page 438, of
said Collin County;
Thence South 89°39'05" West, along the north line of said Franklin D. Wilson
tract same being on the south line of said Prosper I. S. D. tract, a distance of
139.67 feet to a 1/2 inch iron rod found at the northeast corner of a tract of land
conveyed to Lark Skelton Schott as described in deed recorded in County Clerk's
File Number 94-0110030, of said Collin County;
Thence South 89°45'21" West, along the north line of said Lark Skelton Schott
tract same being on the south line of said Prosper I. S. D. tract, a distance of
999.90 feet to the Place of Beginning, and containing 73.81 acre of land, more or
less.
EXHIBIT B
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-0305
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INTERGOVERNMENTAL JOINT USE AGREEMENT
This Intergovernmental Joint Use Agreement ("Agreement") is made and entered into
this day of January, 2006, by 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 District owns real property within the corporate limits of the Town
containing 73.8± acres, more or less, a description of which is attached hereto as Exhibit "A" and
incorporated as if fully set forth herein("Property");
WHEREAS, the Property is home of Prosper High School, Prosper Middle School, and
their associated athletic and other associated facilities;
WHEREAS, the District is constructing an addition to Prosper High School on the
Property;
WHEREAS, the Parties recognize the public interest of developing a tennis facility in
conjunction with this addition to Prosper High School. An exhibit showing the Property and the
addition, including the lighted tennis facility subject to this Agreement, is attached hereto as
Exhibit "B" and incorporated as if fully set forth herein (said tennis facility hereinafter referred
to as "Facility").
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 trxpayers of each entity are best served
by the maximum utilization of the Property and Facility, t'iereby 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 .ontrol over the funds subject to this
Agreement to ensure that the public purpose is achie:
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.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein,the parties hereto agree as follows:
Intergovernmental Joint Use Agreement(Facility) Page 1
436640-1
1. Term.
a. Primary Term. The primary term of this Agreement shall be for twenty (20)
years, commencing on the Effective Date and, unless renewed according to the
terms set forth in 1(b) below will terminate on thday of January, 2026.
b. Renewal. The primary term of this Agreement may be extended by written
agreement by both Parties for five (5) 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 five (5) year period. Such notice must be
given sixty (60) days prior to the expiration of the primary term or any five (5)
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 $113,000.00 to assist in the construction of the
Facility, including funding for the installation of lights. Upon completion and
Town acceptance of the High School addition project, the District shall request in
writing payment of the $113,000.00. The Town shall provide the payment to the
District within thirty (30) days after receiving the written request.
ii) The Town will be responsible for payment of the electricity account necessary to
operate the lights at the Facility at all times.
B. Obligations of District.
i) The District shall construct the Facility, including a minimum of four (4)
individual courts along with the High School Addition project.
ii) The Facility shall be located at a location between the existing softball field and
Coleman Street, as depicted on attached Exhibit`B".
iii) The Facility shall include lighting to facilitate its use at night. The District shall
coordinate with the Town regarding the operating switching installed for the
lighting prier to its installation.
Intergovernmental Joint Use Agreement(Facility) Pngc 2
436640-1
C. Joint Obligations of the Parties.
i) Town shall have the right to charge third parties a reasonable fee for participation
in the recreational activities at the Facility covered by this Agreement. District
shall be exempt from paying these fees.
ii) 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 Facility, with the exception of the lighting at the
Facility. Upon completion of construction, the Town shall be responsible for one
hundred percent (100%) of all costs and responsibilities associated with the
maintenance, repair and operation of the lighting at the Facility. The District and
Town may, as necessary, employ contractors or subcontractors to perform
maintenance and repair work and shall be responsible for such repair and
maintenance costs.
iii) The Town and District shall grant a right of mutual access to the Facility.
iv) Town shall be responsible for one hundred percent (100%) of all the electricity
use costs for the lighting at the Facility outlined herein for the term of this
Agreement.
3. District Use of Facility. During the term of this Agreement, District shall have exclusive
use of the Facility during school hours and for District sponsored events, including
practice and play by the Prosper High School Tennis Team. It is the intent of both Parties
that the Facility is to be used for play/practice by District, but that the Facility may also
be scheduled for use by the general public for public recreation, including use by youth
leagues and/or recreational leagues, so long as public ase does not interfere with District
sponsored use or events.
4. Rules and Regulations. Town and District recognize that District has adopted certain
rules and regulations covering the use of the Facility and the conduct of persons at or on
such Facility, 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 Facility and the safety
of all users. District agrees that it will notify users of the Facility of the rules and
regulations promulgated by District relating to such Facility. Third party users that fail to
comply with the rules will be suspended from use r f'he Facility 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 Facility
i) Town and District shall use the Facility only for the purposes outlined in this
Agreement.
Intergovernmental Joint Use Agreement(Facility) Page 3
436640-1
ii) Town and District are authorized to enter into an agreement with third party
vendors or concessionaires to service the events scheduled for the Facility.
iii) Town and District shall not use, or permit the use of, the Facility in any manner
that results in waste of the Facility or constitutes a nuisance. Nor shall Town and
District use, or permit the use of, the Facility for any illegal purpose.
iv) Town and District shall comply with all governmental laws, ordinances and
regulations applicable to the use of the Facility, 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 Facility.
v) To the extent any alterations to the Facility identified in this Agreement,
subsequent to completion of construction of the Facility, are required by the
American Disability Act (ADA) or other applicable laws or regulations, District
shall be responsible for one hundred percent 00%) of the expense of the
alterations.
vi) Any signs installed by Town and District on the Facility must conform to
applicable laws, deed restrictions on the Facility, and other applicable
requirements.
B. Town's Access
If District changes the locks on the Facility, District must provide Town with a copy
of each separate key within one (1)business day.
C. 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 a pout the Facility or upon other
portions of any real property of which the Facility 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,
Intergovernmental Joint Use Agreement(Facility) Page 4
436640-1
Jr
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.
D. Compliance with the Law.
Parties will insure that all operations and vendor or concessionaire activities 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.
E. Maintenance and Surrender.
i) District shall, at all times, keep the Facility 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 Facility 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 Facility. Any costs for compliance
shall be shared by both Parties on a 50-50 basis.
5. Incidents.
All accidents to persons or damage to the Facilities 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 Facility covered by this Agreement, with limits of not less than one
million dollars ($1,000,000.00) dollars annual aggregate limit or f e 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
Intergovernmental Joint Use Agreement(Facility) Page 5
436 64e-1
X.
r
e
1 •
•
give the other Party evidence of such insurance coverage within thirty (30) days from
the execution date of this Agreement.
B. Property Insurance.
District shall maintain property damage insurance on the Facility.
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
Party's right to use the Facility 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.
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 December 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 December 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 Agreemeat shall be given when
actually delivered or when deposited in the United State 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
Intergovernmental Joint Use Agreement(Facility) Page 6
436640-i
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.
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.
Intergovernmental Joint Use Agreement(Facility) Page 7
436640-1
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 requiz;.i 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.
TOWN OF PROSPER, TEXAS
By.
HA I W GER, Mayor
Attest: Date:
Sh aF enning
Town •,ecretary
PROSPER INDEPENDENT
SCHOOL DISTRICT
BycrWatkins, uperintendent •
Date: -19-OC
Intergovernmental Joint Use Agreement(Facility) Page 8
436640-1
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EXHIBIT A
STATE OF TEXAS )(
COUNTY OF COLLIN )(
WHEREAS, PROSPER INDEPENDENT SCHOOL DISTRICT, is the owner of a
73.81 acre tract of land, situated in the John R. Tunney Survey, Abstract No.
916, and the Collin County School Land Survey, Abstract No. 147, located in the
City of Prosper, Collin County, Texas, and being part of the tracts of land
conveyed to Prosper Independent School District as described in the following
deeds recorded in County Clerk File Number 97-0013953, Volume 2147, Page
922, Volume 876, Page 628, and Volume 605, Page 29, of the Real Property
Records of Collin County, Texas. Said 73.81 acre tract of land being more
particularly described by metes and bounds as follows:
Beginning at a 5/8 inch iron rod found with a plastic cap stamped "TNP" found
on the east right of way line of Business Highway No. 289, also know as North
Coleman Street (a variable width right of way) and being at the northwest corner,
of a tract of land conveyed to Lark Skelton Schott as described in deed recorded
in the County Clerk's File No. 94-0110030, of said Collin County, same corner
also being at the southwest corner of said Prosper I. S. D. tract;
Thence along the east right of way line of said Coleman Street, same being on
the west line of said Prosper I. S. D. tract, the following courses and distances:
North 01°01'57" East, a distance of 864.30 feet to a 1/2 inch iron rod found
for corner;
North 00°15'46" East, a distance of 140.16 feet to a nail set on pavement
for the southwest corner of a tract of land conveyed to DJPT-57 Ltd. as
described in deed recorded in the County Clerk's File No. 00-0131066, of
said Collin County;
Thence North 89°44'39" East, departing said east right of way line, along the
south line of said DJPT-57 tract, same being on the north line of said Prosper I.
S. D. tract, a distance of 1536.20 feet to a 1/2 inch iron rod found for corner;
Thence North 89°28'58" East, continuing along the non'. line of said Prosper I. S.
D. tract, a distance of 1081.57 feet to a 2 inch steel fence post found on the west
line of a tract of land conveyed to Effie Blase as described in deed recorded in
the County Clerk's File No. 99-0043348, of said Collin County;
Thence South 00°43'33" East, along the east line of said Prosper I. S. D. tract, a
distance 392.11 feet to a 1/2 inch iron rod found at a southwest corner of a tract
of land conveyed to Dan Christie as described in deed recorded in Volume 1019,
Page 520, of said Collin County;
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Thence South 00°32'15" West, continuing along the east line of said Prosper I. S.
D. tract, a distance of 24.30 feet to a 3/4 inch iron pipe found for corner;
Thence South 00°12'40" East, continuing along the east line of said Prosper I. S.
D. tract, a distance of 576.99 feet to a 1 inch iron rod in concrete found at the
southwest corner of said Dan Christie tract, same being on the north line of Lot
31 Block A, Stone Creek Addition as shown on plat recorded in Cabinet J, Slide
774, of the Plat Records of Collin County, Texas;
Thence departing said Dan Christie Tract, along the common line of said Block
A, Stone Creek Addition, and said Prosper I. S. D. tract, the following courses
and distances:
South 89°34'27" West, a distance of 12.48 feet to a 5/8 inch iron rod with a
plastic cap stamped "TNP" found for corner;
South 00°28'39" East, a distance of 995.62 feet to = 3 inch steel fence
post found at the northeast corner of a tract of land conveyed to Bobby D.
Jones as described in deed recorded in Volume 2474, Page 432, of said -
Collin County;
Thence South 89°28'19" West, along the north line of said Bobby D. Jones tract,
same being on the south line of said Prosper I. S. D. tract, a distance of 300.47
feet to a chain link fence post found at the northeast corner of a tract of land
conveyed to Fred R. Wilson as described in deed recorded in Volume 818, Page
701, of said Collin County;
Thence South 89°28'47" West, along the north line of said Fred R. Wilson tract, a
distance of 282.86 feet to a 3 inch chain link fence post found at the southeast
corner of a tract of land conveyed to David T. Barnes as described in deed
recorded in County Clerk's File Number 01-0076368, of said Collars County;
Thence North 00°14'46" West, along the west line of said Prosper I. S. D. tract, a
distance of 386.34 feet to a 1/2 inch iron rod found on the north right of way line
of Seventh Street (a 60 feet right of way) same being at the southeast corner of
Lot 1 Block E, Valley View Addition, First Installment;
T1 -,nce North 00°07'32" West, along the east line of said ._ct 1 Block E same
bain.,4 on the west line of said Prosper I. S. D., a distance of 139.99 feet to a 1/2
inch iron rod found at the northeast corner of said Lot 1 Block E;
Thence North 01°00'22" West, continuing along the west line of said Prosper I. S.
D. tract, a distance of 139.36 feet to a 2 inch iron pipe found at the northeast
cornea; of Lot 2 Block E, of said Valley View Addition, First Installment, same
being at the southeast corner of Lot 3 Block E, of said Valley View Addition,
Second Installment as shown on plat recorded in Volume 1388, Page 102, of the
Plat Records of Collin County, Texas;
Thence North 00°52'51" West, continuing along the west line of said Prosper I. S.
D. tract, a distance of 120.20 feet to a 1/2 inch iron rod found (bent) on the south
right of way line of Eighth Street (a 50 feet right of way) same being at the
northeast corner of said Lot 3 Block E;
Thence North 00°08'39" East, continuing along the west line of said Prosper I. S.
D. tract, a distance of 120.20 feet to a 1/2 inch iron rod found at the northeast
corner of Lot 9 Block F, of said Valley View Addition, First Installment;
Thence along the north line of Block F, of said Valley View Addition, First
Installment, same being on the south line of said Prosper I. S. D. tract, the
following courses and distances:
South 89°56'02" West, a distance of 190.56 feet to a 1/2 inch iron rod
found for corner;
South 89°59'26" West, a distance of 89.78 feet to a 1/2 inch iron rod found
for corner;
South 89°57'32" West, a distance of 94.67 feet to a 1/2 inch iron rod found
for corner;
South 89°40'16" West, a distance of 95.46 feet to a 1/2 inch iron rod found
for corner;
North 89°52'31 ' West, a distance of 94.18 feet to a 1/2 inch iron rod found
for corner;
South 89°32'06" West, a distance of 189.60 feet to a 1/2 inch iron rod
found for corner;
South 89°54'45" West, a distance of 153.75 feet to a 1/2 inch iron rod
found on the west right of way line of Church Street (a 60 feet right of way)
same being at the northeast corner of a tract of 'and conveyed to Franklin
D. Wilson as described in deed recorded in !'olume 2480, Page 438, of
said Collin County;
Thence South 89°39'05" West, along the north line of said Franklin D. Wilson
tract same being on the south line of said Prosper I. S. D. tract, a distance of
139.67 feet to a 1/2 inch iron rod found at the northeast corner of a tract of land
conveyed to Lark Skelton Schott as described in deed recorded in County Clerk's
File Number 94-0110030, of said Collin County;
Thence South 89°45'21" West, along the north line of said Lark Skelton Schott
tract same being on the south line of said Prosper I. S. D. tract, a distance of
999.90 feet to the Place of Beginning, and containing 73.81 acre of land, more or
less.
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➢ z F 'IR F1. @ ADDITIONS AND RENOVATIONS
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ROSPER INDEPENDENT SCHOOL DIST RI,
Z !t tS PROSPER,TEXAS
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