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04-025 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. (R)04-25 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 INTERLOCAL FACILITIES JOINT USE AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS AND THE PROSPER INDEPENDENT SCHOOL DISTRICT. 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 interlocal facilities joint use agreement between the Town of Prosper, Texas, and the Prosper Independent School District, a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 23rd day of March, 2004. C arles Ni nger yor ATTEST TO: anae Jennin Town Sec tary INTERGOVERNMENTAL JOINT USE AND LEASE AGREEMENT This Intergovernmental Joint Use and Lease Agreement ("Agreement") is made and entered into this 24th day of March, 2004, 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 twenty (20) acres, more or less, a description of which is attached hereto as Exhibit "A"("Property"); WHEREAS, approximately one-half of the Property is home of Prosper Elementary School and its playground. The remaining one-half of the Property is primarily open space. The Parties recognize the public interest of developing this portion of the Property into multi-use recreational fields. A description of the open space portion of the Property subject to this Agreement is attached hereto as Exhibit"B" ("Park Use Property"). WHEREAS, the Town anticipates constructing multi-use recreational fields and other related improvements including parking lots, restrooms and food or concession areas. For purposes of this Agreement, any construction on the Park Use Property is referred to as the Facilities ("Facilities"); WHEREAS, Town is receiving a matching grant from Collin County for the construction of the Facilities; WHEREAS, Town and District recognize that the taxpayers of each entity are best served by the maximum utilization of the Property and Facilities,thereby minimizing the need for costly duplication of similar facilities; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein,the parties hereto agree as follows: 1. Obligations. A. Obligations of Town. i) Town shall construct the Facilities, such costs shall be paid as defined in Paragraph 4 of this Agreement ii) The Town shall be responsible for bringing all utilities to the Facilities as shown on the plan approved by both parties. JOINT USE AND LEASE AGREEMENT—Page 1 of 9 iii) Town will supply water for the Facilities at all times, as necessary to maintain the Facilities in an acceptable condition. Town may not limit the water provided to the Facilities unless the Town formally declares a water ration program for the entire Town and, as a result, the water to the Facilities may be limited only to the extent that Town residents and businesses are limited during the time period of water rationing. iv) Subject to Paragraph 2, below, Town will be responsible for scheduling the use of the Facilities on a year-round basis. Town will designate the Prosper Sports Association (PSA), or another alternate as approved by Town and District, as the entity charged with scheduling the use of the Facilities. Subject to Paragraph 1.C.i below, Town will also be responsible for providing access to, and collecting applicable fees from, third parties. Third parties shall submit scheduling requests to PSA, or designated alternate, including the times, dates, and requested location of such activities. B. Obligations of District. i) Pursuant to the terms identified in Paragraph 4 below, District is providing the Park Use Property and allowing Town to construct and operate the Facilities thereon. ii) District will not prohibit access to the Park Use Property of Town or Town's contractors, subcontractors or vendors, as long as Town is not in default of this Agreement. 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 Facilities which are covered by this Agreement. District shall be exempt from paying these fees. ii) 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 Facilities. 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 Park Use Property and Facilities. iv) Town shall be responsible for one hundred percent (100%) of all the utility use costs, including electric, water, and sewer costs, for the Facilities outlined herein for the term of this Agreement. JOINT USE AND LEASE AGREEMENT—Page 2 of 9 2. District Use of Facilities. During the term of this Agreement, District shall have exclusive use of the Facilities during school hours. District may schedule additional use of the Facilities as outlined in Paragraph 1(A)(iv) above. It is the intent of both parties that the Facilities are to be used by the general public for public recreation, including use by youth leagues and/or recreational leagues, but that the Facilities may be scheduled for U.I.L. play/practice by District, so long as adequate notice is provided. 3. Rules and Regulations. Town and District recognize that District has adopted certain rules and regulations covering the use of the Facilities and the conduct of persons at or on such Facilities, 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 Facilities and the safety of all users. District agrees that it will notify users of the Facilities of the rules and regulations promulgated by District relating to such Facilities. Third party users that fail to comply with the rules will be suspended from use of the Facilities 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. 4. Lease of Park Property. A. General Terms f i) The District does hereby demise and lease to Town, and Town does hereby lease from the District, the Park Use Property, for an "Initial Term" beginning March 24, 2004 ("Commencement Date") and ending March 24, 2024. District shall give Town possession of the Park Use Property at the beginning of the Lease term. ii) The Town acknowledges that a full and complete disclosure and inspection of the Park Use Property has been made. As a result of such inspection and disclosure, Town will take possession of and accept the Park Use Property in its "as is" condition. iii) If Town holds over and continues in possession of the Park Use Property after expiration of the term of this Agreement, Town will be deemed to be occupying the Park Use Property on the basis of a month to month tenancy subject to all of the terms and conditions of this Agreement, save and except the Minimum Rent which shall be $1.00 per month. iv) The Town will vacate the Park Use Property immediately upon the expiration of the Lease Term or the earlier termination of this Agreement. Town shall reimburse District and indemnify District against all damages incurred by District as a result of any delay by Town in vacating the Park Use Property. This provision shall not be construed as District's consent for Town to holdover or extend this Agreement. JOINT USE AND LEASE AGREEMENT—Page 3 of 9 B. Use of Park Use Property i) Town shall occupy the Park Use Property only for the purposes outlined in this Agreement. ii) Town is authorized to enter into an agreement with third party vendors or concessionaires to service the events scheduled for the Facilities. iii) Town shall not use, or permit the use of, the Park Use Property in any manner that results in waste of the Park Use Property or constitutes a nuisance. Nor shall Town use, or permit the use of,the Park Use Property for any illegal purpose. iv) Town shall comply with all governmental laws, ordinances and regulations applicable to the use of the Park Use Property, 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 Park Use Property. v) To the extent any alterations to the Facilities identified in this Agreement, subsequent to completion of construction of the Facilities, are required by the ADA or other applicable laws or regulations, Town shall be responsible for one hundred percent(100%) of the expense of the alterations. vi) Any signs installed by Town on the Park Use Property must conform to applicable laws, deed restrictions on the Park Use Property, and other applicable requirements. C. District's Access If Town changes the locks on the Facilities, Town must provide District with a copy of each separate key. During the final one hundred fifty (150) days of the Lease Term, District and District's agents may erect and maintain on or about the Park Use Property signs advertising the Park Use Property for lease or for sale. D. Liability i) 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, Town'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 Park Use Property or upon other portions of any building of which the Park Use JOINT USE AND LEASE AGREEMENT—Page 4 of 9 Property is a part, or from other sources or places; or (d) any act or omission of the Town. District 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 Town. District does not waive its right of sovereign immunity by entering into or performing the terms and conditions of this Agreement. ii) 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 proximately caused by the intentional misconduct or negligence of District, its employees, officers, or agents after the effective date of this Agreement. Town does not waive its right of sovereign immunity by entering into or performing the terms and conditions of this Agreement. E. 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 will not be responsible for the compliance of third parties with this provision. F. Maintenance and Surrender. i) Town shall, at all times, keep the Park Use Property and Facilities 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) Upon the expiration or termination of this Agreement, Town shall surrender the Park Use Property and the Facilities to District broom clean and in the same condition as originally constructed, except for ordinary wear and tear which Town is not otherwise obligated to remedy under any provision of this Agreement. iii) 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 Park Use Property and with the recorded covenants, conditions and restrictions, regardless of when they become effective, including, without limitation, all applicable Federal, State and local laws, regulations or ordinances pertaining to air and water quality, Hazardous Materials waste disposal, air emissions and other environmental matters, 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 Park Use Property. Any costs for compliance shall be shared by both parties on a 50-50 basis. JOINT USE AND LEASE AGREEMENT—Page 5 of 9 G. Damage to the Property. If the Facilities should be partially or totally destroyed by fire, tornado, or other casualty not the fault of District or any person with the express or implied consent of District, Town may choose whether or not to rebuild the Facilities. Town is responsible for rebuilding the Facilities or returning the Park Use Property to its original state within a reasonable time at its own cost. The lease shall not automatically terminate as a result of the destruction of the Facilities, however, in the event Town chooses to return the Park Use Property to its original state, the Parties may elect to terminate the Agreement. 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 Facilities 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 Facilities. 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 JOINT USE AND LEASE AGREEMENT—Page 6 of 9 f from the date of notice within which to cure the default; or i te default t is not suscveeptible of being cured within such thirty (30) day period, the defaulting party (10) days from the date of notice to commence cure of the default and loc defaull ntinu continuously aninvolved vigorously pursue the same to completion. If the non more ' event 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 Facilities until the default is cured. In the event of a monetary default or a non-monetary default which has not been cured within the tittle 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 nt pass uted ythe itsBarre on oard of Trustees dated March 8, 2004, authorizing the Superintendent behalf of the Prosper Independent School District, the Mayortto executeo a tthe passed by its Town Council dated March 23, 2004, authorizing 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 knot be modified d or terminateentire agreement of the d except ies with respect to the matters contained herein and may upon the provisions hereof or by the mutual written agreement of the parties hereto. JOINT USE AND LEASE AGREEMENT-Page 7 of 9 C. Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable 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. 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. 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 JOINT USE AND LEASE AGREEMENT—Page 8 of 9 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. TOWN OF PROSPER, TEXAS By: CHARLE SW ER, Mayor Attest: Date: 4 — )-DO Shanae Jenni s, Town Secre ry PROSPER INDEPENDENT SCHOOL DISTRICT B044.4 atkins, Superintendent Date: S•s l -o'/ JOINT USE AND LEASE AGREEMENT—Page 9 of 9 EXHIBIT A LEGAL DESCRIPTION- 19.571 ACRES BEING all that tract of land in the City of Prosper,Collin County,Texas,a part of the Collin County School Land Survey,Abstract No. 147, and being a part of that 20.000 acre tract of land conveyed to the Prosper Independent School District as recorded in Volume 1723,Page 868, Collin County Deed Records,and being further described as follows: BEGINNING at a 3/8 inch iron rod found at the northwest corner of said 20.000 acre tract of land,said point being the northeast corner of a 5.613 acre tract of land conveyed to the First Baptist Church,Prosper,Texas as recorded in Volume 1725,Page 830,Collin County Deed Records; THENCE along the north line of said 20.000 acre tract of land as follows: North 89 degrees 20 minutes 58 seconds East,268.33 feet to a one-half inch iron rod found for corner; South 89 degrees 46 minutes 29 seconds East, 72.73 feet to a 3/8 inch iron rod found for corner; North 89 degrees 24 minutes 41 seconds East,91.58 feet to a one-half inch iron rod found for corner; South 89 degrees 31 minutes 27 seconds East, 74.15 feet to a one-half inch iron rod found for corner, North 89 degrees 34 minutes 04 seconds East,74.92 feet to a one-half inch iron rod found for corner; North 89 degrees 34 minutes 45 seconds East, 294.82 feet to a one-half inch iron rod found for corner; North 89 degrees 35 minutes 43 seconds East, 180.28 feet to a 5/8 inch iron rod found for corner in the west line of Craig Street(a variable width right-of-way),said point being the northwest corner of a 0.45 acre tract of land conveyed to the City of Prosper as recorded in Document No.94-0033219,Collin County Deed Records; THENCE South 00 degrees 01 minutes 51 seconds East,640.67 feet along the west line of Craig Street to a 5/8 inch iron rod found at the southwest corner of said 0.45 acre tract of land, said point being in the west line of State Highway No. 289(a variable width right-of-way; THENCE South 05 degrees 36 minutes 01 seconds West, 175.87 feet along the west line of State Highway No. 289 to a 5/8 inch iron rod found at the southeast corner of said 20.000 acre tract of land,said point being the most easterly northeast corner of a 123.850 acre tract of land(described as Tract Seven)conveyed to 183 Land Corporation,Inc.as recorded in Document Number 97- 0005168,Collin County Deed Records; THENCE North 89 degrees 05 minutes 32 seconds West, 1049.94 feet along the north line of said 123.850 acre tract of land to a 3/8 inch iron rod found at the southwest corner of said 20.000 acre tract of land,said point being the southeast corner of said 5.613 acre tract of land; THENCE North 00 degrees 42 minutes 47 seconds East, 792.04 feet along the west line of said 20.000 acre tract of land and along the east line of said 5.613 acre tract of land to the POINT OF BEGINNING and containing 852,499 square feet or 19.571 acres of land. 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CQJJ Comm TEXAS F4-4• EXHIBIT B LEGAL DESCRIPTION—8.242 ACRES BEING all that tract of land in the City of Prosper, Collin County, Texas, a part of the Collin County School Land Survey, Abstract No. 147, and being a part of that 20.000 acre tract of land conveyed to the Prosper Independent School District as recorded in Volume 1723, Page 868, Collin County Deed Records,and being further described as follows: BEGINNING at a 3/8 inch iron rod found at the northwest corner of said 20.000 acre tract of land, said point being the northeast corner of a 5.613 acre tract of land conveyed to the First Baptist Church, Prosper, Texas as recorded in Volume 1725, Page 830, Collin County Deed Records; THENCE along the north line of said 20.000 acre tract of land as follows: North 89 degrees 20 minutes 58 seconds East, 268.33 feet to a one-half inch iron rod found for corner; South 89 degrees 46 minutes 29 seconds East, 72.73 feet to a 3/8 inch iron rod found for corner; North 89 degrees 24 minutes 41 seconds East, 91.58 feet to a one-half inch iron rod found for corner; South 89 degrees 31 minutes 27 seconds East, 17.46 feet to a`point for corner; THENCE South 00 degrees 42 minutes 47 seconds West, 802.72 feet to a point for corner in the south line of said 20.000 acre tract of land, said point being in the north line of a 123.850 acre tract of land(described as Tract Seven) conveyed to 183 Land Corporation, Inc. as recorded in Document Number 97-0005168, Collin County Deed Records; THENCE North 89 degrees 05 minutes 32 seconds West,450.00 feet along the north line of said 123.850 acre tract of land to a 3/8 inch iron rod found at the southwest corner of said 20.000 acre tract of land, said point being the southeast corner of said 5.613 acre tract of land; THENCE North 00 degrees 42 minutes 47 seconds East, 792.04 feet along the west line of said 20.000 acre tract of land and along the east line of said 5.613 acre tract of land to the POINT OF BEGINNING and containing 359,000 square feet or 8.242 acres of land. t ■ • � ___ �.A: .4� • "JAG! �']/Et may_ -_ - K a K a MN •---• ? ....'......\s\NN\t,. 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