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10.26.21 Town Council Regular Meeting Packet
Page 1 of 3 ] Prosper is a place where everyone matters. Notice Regarding Public Participation Welcome to the Prosper Town Council. Individuals may attend the meeting in person, or access the meeting via videoconference, or telephone conference call. Join the Zoom Meeting by clicking on the following link:https://us02web.zoom.us/j/87047432329 To join the meeting by phone, dial (346) 248-7799 Enter Meeting ID: 870 4746 2329 Addressing the Town Council: Those wishing to address the Town Council must complete the Public Comment Request Form located on the Town website or in Council Chambers. If you are attending in person, please submit this form to the Town Secretary prior to the meeting. When called upon, please come to the podium and state your name and address for the record. If you are attending online/virtually, please submit this form to the Town Secretary prior to 5:00 p.m. on the day of the meeting. Please ensure your full name appears on the screen and you are unmuted so the meeting moderator can recognize you and allow you to speak. The Chat feature is not monitored during the meeting. The Town assumes no responsibility for technical issues that are beyond our control. If you encounter any problems joining or participating in the meeting, please call our help line at 972-569-1191 for assistance. Call to Order/ Roll Call. Invocation, Pledge of Allegiance and Pledge to the Texas Flag. Announcements of recent and upcoming events. Presentations. 1. Recognize the Prosper Police Department for receiving the Law Enforcement Recognition Program re-designation by the Texas Police Chiefs Association (TPCA). (DK) CONSENT AGENDA: Items placed on the Consent Agenda are considered routine in nature and non-controversial. The Consent Agenda can be acted upon in one motion. Items may be removed from the Consent Agenda by the request of Council Members or staff. Agenda Prosper Town Council Meeting Council Chambers Prosper Town Hall 250 W. First Street, Prosper, Texas Tuesday, October 26, 2021 5:45 PM Page 1 Page 2 of 3 2. Consider and act upon the minutes from the October 12, 2021, Town Council meeting. (MLS) 3. Consider and act upon a resolution accepting and approving the 2021 Tax Roll. (BP) 4. Consider and act upon approving the purchase of virtual service cluster storage expansion, from Centre Technologies, through a Texas Department of Information Resources (DIR) Purchasing Contract; and authorizing the Town Manager to execute all related documents for the same. (LJ) 5. Consider and act upon approving the purchase of 15 SCBA’s and 32 air cylinders from Municipal Emergency Services through the Texas Local Government Purchasing Cooperative. (SB) 6. Consider and act upon authorizing the Town Manager to execute an agreement between Flex Financial, a division of Stryker Sales, LLC, a sole source provider, and the Town of Prosper, for a lease program to replace Stryker medical equipment. (SB) 7. Consider and act upon authorizing the Town Manager to execute a Professional Services Agreement between LJA Engineering, Inc., and the Town of Prosper, Texas, related to the design of the Coleman Street Median Landscaping (Victory-Preston) project and the Prosper Trail (DNT – 700’ East) Median Landscaping project. (HW) CITIZEN COMMENTS The public is invited to address the Council on any topic. However, the Council is unable to discuss or take action on any topic not listed on this agenda. Please complete a “Public Comment Request Form” and present it to the Town Secretary prior to the meeting. REGULAR AGENDA: If you wish to address the Council, please fill out a “Public Comment Request Form” and present it to the Town Secretary, preferably before the meeting begins. Pursuant to Section 551.007 of the Texas Government Code, individuals wishing to address the Council for items listed as public hearings will be recognized when the public hearing is opened. For individuals wishing to speak on a non-public hearing item, they may either address the Council during the Citizen Comments portion of the meeting or when the item is considered by the Town Council. Items for Individual Consideration: 8. Consider all matters incidental and related to the issuance and sale of the Town of Prosper, Texas General Obligation Ref unding Bonds, Series 2021, including the adoption of an ordinance authorizing the issuance of the bonds, establishing parameters for the sale and issuance of such bonds, and delegating certain matters to the Town Manager to act on its behalf in selling the bonds; and authorize the Mayor to execute the attached engagement letter. (BP) 9. Conduct a public hearing, and consider and act upon a request to rezone 163.2± acres, from Planned Development-90 (PD-90) to Planned Development (PD), to facilitate the development of a single family residential subdivision with private social club, located on the north side of First Street, east of Coit Road. (Z20-0021). (AG) Possibly direct Town staff to schedule topic(s) for discussion at a future meeting. 10. Receive an update on the newly established Designated Developer program. (RZ) Page 2 Page 3 of 3 EXECUTIVE SESSION: Recess into Closed Session in compliance with Section 551.001 et seq. Texas Government Code, as authorized by the Texas Open Meetings Act, to deliberate regarding: Reconvene in Regular Session and take any action necessary as a result of the Closed Session. Section 551.087 – To discuss and consider economic development incentives. Section 551.072 – To discuss and consider purchase, exchange, lease or value of real property for municipal purposes and all matters incident and related thereto. Section 551.074 – To discuss and consider personnel matters and all matters incident and related thereto. Adjourn. CERTIFICATION I, the undersigned authority, do hereby certify that this Notice of Meeting was posted at Prosper Town Hall, located at 250 W. First Street, Prosper, Texas 75078, a place convenient and readily accessible to the general public at all times, and said Notice was posted by 5:00 p.m., on Friday, October 22, 2021, and remained so posted at least 72 hours before said meeting was convened. ________________________________ _________________________ Michelle Lewis Sirianni, Town Secretary Date Notice Removed Pursuant to Section 551.071 of the Texas Government Code, the Town Council reserves the right to consult in closed session with its attorney and to receive legal advice regarding any item listed on this agenda. NOTICE Pursuant to Town of Prosper Ordinance No. 13-63, all speakers other than Town of Prosper staff are limited to three (3) minutes per person, per item, which may be extended for an additional two (2) minutes with approval of a majority vote of the Town Council. NOTICE OF ASSISTANCE AT PUBLIC MEETINGS: The Prosper Town Council meetings are wheelchair accessible. For special services or assistance, please contact the Town Secretary’s Office at (972) 569 - 1011 at least 48 hours prior to the meeting time. Page 3 Page 1 of 6 ] Prosper is a place where everyone matters. Call to Order/ Roll Call. The meeting was called to order at 5:46 p.m. Council Members Present: Mayor Ray Smith Deputy Mayor Pro-Tem Craig Andres Councilmember Marcus E. Ray Councilmember Jeff Hodges Councilmember Charles Cotten Councilmember Amy Bartley Council Members Absent: Mayor Pro-Tem Meigs Miller Staff Members Present: Harlan Jefferson, Town Manager Terry Welch, Town Attorney Robyn Battle, Executive Director of Community Services Michelle Lewis Sirianni, Town Secretary Todd Rice, Communications Manager Rebecca Zook, Executive Director of Development and Infrastructure Services Hulon Webb, Engineering Services Director Khara Dodds, Development Services Director Alex Glushko, Planning Manager Leigh Johnson, IT Director Betty Pamplin, Finance Director Paul Naughton, Senior Park Planner Stuart Blasingame, Fire Chief Doug Kowalski, Police Chief Invocation, Pledge of Allegiance and Pledge to the Texas Flag. Mike Martin, Public Safety Chaplin, led the invocation. The Pledge of Allegiance and the Pledge to the Texas Flag were recited. Announcements of recent and upcoming events. The Council would like to thank everyone who has shown support for the Raymond family following the loss of our Parks & Recreation Director, Dudley Raymond. Dudley was a good friend, a dedicated professional, and an exceptional person who devoted his life to serving his family and his community. We ask that you continue to lift up Dudley’s family with your prayers and support. Residents are invited to “Light Our Town Red” in support of Fire Prevention Month. MINUTES Prosper Town Council Meeting Council Chambers Prosper Town Hall 250 W. First Street, Prosper, Texas Tuesday, October 12, 2021 5:45 PM Page 4 Item 2. Page 2 of 6 The Town of Prosper and local community groups are showing support for our Fire Department through the month of October. Residents are encourag ed to add red light bulbs to your front porch light and/or landscape lighting to show your support. The Development Services Department will host virtual public meetings regarding proposed design guidelines for the Dallas North Tollway Corridor on October 28 and November 8. More information will be available on the Town website and Facebook page in the coming weeks. Early Voting for the November 2 Constitutional Amendment Election begins on October 18 and runs through October 29. Prosper Voters who live in Collin County may vote at Town Hall for early voting and election day. Denton County voters may vote at Prosper Fire Station 2 during early voting and on election day. Please check the Town’s Facebook page, or the Collin County or Denton County Elections websites for more information. The Prosper Arbor Day Celebration will take place on Saturday, November 6, from 9-10 a.m. at Prosper Town Hall. Participants are asked to gather on the north side of the parking lot. The celebration will include tree plantings with assistance from Prosper Girl Scout Troop 8415, Girls Scout Troop 1325, and Boy Scout Troop 365. Parks and Recreation staff will provide instruction and guidance on proper tree planting techniques to the group. The annual event celebrates Prosper's dedication to community forestry and recognizes important role of trees in enhancing the quality of life in Prosper. The Town Council recognized the mayor’s years of dedication and service on his birthday. Town Council and staff sang happy birthday to Mayor Smith. Presentations. 1. Recognize outgoing Board and Commission members. (MLS) Mayor Smith read and presented a Proclamation to Chris Long, Planning and Zoning Commission and Rebekah Land, Parks and Recreation Board. 2. Presentation of a Proclamation to members of the Prosper IT Department recognizing October 2021, as national Cybersecurity Month. (MLS) Mayor Smith read and presented a Proclamation to Leigh Johnson, IT Director. CONSENT AGENDA: Items placed on the Consent Agenda are considered routine in nature and non- controversial. The Consent Agenda can be acted upon in one motion. Items may be removed from the Consent Agenda by the request of Council Members or staff. 3. Consider and act upon the minutes from the September 28, 2021, Town Council meeting. (MLS) 4. Consider and act upon approving Amendment No. 1 to the Cityworks License and Maintenance Agreement between Azteca Systems, LLC., a sole source provider, and the Town of Prosper, Texas; and authorizing the Town Manager to execute documents for the same. (LJ) 5. Consider and act upon approving Change Order No. 2 for Bid No. 2021-30-B to Tiseo Paving Co., related to construction services for the Fishtrap Road Page 5 Item 2. Page 3 of 6 Segment 4 Construction and Segment 1-4 Landscaping Architecture project; and authorizing the Town Manager to execute Change Order Number 02 for same. (HW) 6. Consider and act upon authorizing the Town Manager to execute a Professional Services Agreement between Sciens, LLC and the Town of Prosper, Texas, related to Phase III ERP System Selection Consultant for Finance, Utility Billing, Municipal Court, and Human Resources. (BP) 7. Consider and act upon authorizing the Town Manager to execute an Interlocal Agreement between Collin County and the Town of Prosper, Texas accepting a grant award from the 2018 Collin County Parks and Open Spaces Project Assistance Fund for the Pecan Grove Park Trail project. (PN) 8. Receive the August Financial Report. (BP) 9. Consider and act upon authorizing the Town Manager to execute a Professional Services Agreement between Lee Engineering, LLC, and the Town of Prosper, Texas, related to providing on-call traffic engineering services. (HW) 10. Consider and act upon an Ordinance No. 2021-58 for a Specific Use Permit (SUP) for a Nursery, Major (Calloway’s), in Gates of Prosper, on 3.2± acres, located on the north side of Richland Boulevard, west of Preston Road. The property is zoned Planned Development-67 (PD-67). (S21-0001) (AG) 11. Consider and act upon authorizing the Town Manager to execute a Development Agreement between 289 (Preston) & 380, L.P., and the Town of Prosper, Texas, related to the Calloway’s Nursery in the Gates of Prosper development. (AG) 12. Consider and act upon an Ordinance No. 2021-59 amending the Future Land Use Plan from Old Town Single Family to Old Town Office, generally located on the southeast corner of Coleman Street and Seventh Street. (CA21-0002). (AG) 13. Consider and act upon an Ordinance No. 2021-60 rezoning 0.7± acres from Single Family-15 (SF-15) to Planned Development-Downtown Office (PD-DTO), to allow for the conversion of the existing structure into an office, located on the southeast corner of Coleman Street and Seventh Street. (Z21-0005). (AG) 14. Consider and act upon authorizing the Town Manager to execute a Development Agreement between Jeff and Cara Sorensen, and the Town of Prosper, Texas, related to 104 E. Seventh Street. (AG) 15. Consider and act upon whether to direct staff to submit a written notice of appeal on behalf of the Town Council to the Development Services Department, pursuant to Chapter 4, Section 1.5(C)(7) and 1.6(B)(7) of the Town’s Zoning Ordinance, regarding action taken by the Planning & Zoning Commission on any Site Plan or Preliminary Site Plan, including Salad and Go and Whispering Farms Equestrian Center. (AG) Deputy Mayor Pro-Tem Andres made a motion to approve consent agenda items 3 thru 15. Councilmember Cotten seconded that motion and the motion was unanimously approved. Page 6 Item 2. Page 4 of 6 CITIZEN COMMENTS: No comments were made. Items for Individual Consideration: 16. Consider and act upon a Resolution No. 2021-61 expressing official intent to reimburse costs of projects approved by town voters in the November 3, 2020, Bond Election. (BP) Ms. Pamplin stated the proposed reimbursement resolution allows the Town to pay for projects from the 2022 General Obligation Bond issuance, which includes costs associated with street design and construction projects, parks and recreational facilities, and the design of Fire Station #4. The total amount to be issued has been set to not exceed $34 million. Councilmember Hodges made a motion to approve a resolution expressing official intent to reimburse costs of projects approved by town voters in the November 3, 2020, Bond Election. Deputy Mayor Pro-Tem Andres seconded that motion and the motion was unanimously approved. 17. Consider and act upon a Resolution No. 2021-62 expressing official intent to reimburse costs of fiscal year 2021-2022 Capital Improvement Program (CIP) projects. (BP) Ms. Pamplin stated the proposed reimbursement resolution allows the town to pay for projects 2022 Certificates of Obligation issuance, which includes costs associated with the construction of street improvements, water/wastewater improvements, and drainage improvements. The total amount to be issued has been set to not exceed $16 million. Councilmember Ray made a motion to approve a resolution expressing official intent to reimburse costs of fiscal year 2021-2022 Capital Improvement Program (CIP) projects. Councilmember Bartley seconded that motion and the motion was unanimously approved. 18. Consider and act upon an Ordinance No. 2021-57 amending Ordinance No. 2021- 55 (FY 2021-2022 Annual Budget and Capital Improvement Program) to provide funding increased expenditures in the General Fund, Park Improvement Fund, Water Impact Fee Fund, and Wastewater Impact Fee Fund. (BP) Ms. Pamplin stated the proposed budget amendment ordinance amends the fund balances for the purchase of the Quint fire engine and ambulance from the General Fund, the grant revenue for the Pecan Grove Park project from the Park Improvement Fund, and the design of water lines and a wastewater line along the Dallas North Tollway (DNT) from the Water Impact Fee and Wastewater Impact Fee Fund. Staff recommends approval. Councilmember Hodges made a motion to approve an ordinance amending Ordinance No. 2021-55 (FY 2021-2022 Annual Budget and Capital Improvement Program) to provide funding increased expenditures in the General Fund, Park Improvement Fund, Page 7 Item 2. Page 5 of 6 Water Impact Fee Fund, and Wastewater Impact Fee Fund. Councilmember Ray seconded that motion and the motion was unanimously approved. 19. Consider and act upon approving the purchase of one Quint fire engine from Siddons Martin Emergency Group, LLC, through the Texas Local Government Purchasing Cooperative; and authorizing the Town Manager to execute documents for the same. (SB) Chief Blasingame stated this purchase is an approved addition to the fleet and will be for Fire Station #3. Due to the 12 to 15 months build time of the apparatus, staff is requesting approval to ensure the engine is completed by the opening of Fire Station #3. Councilmember Ray made a motion to approve the purchase of one Quint fire engine from Siddons Martin Emergency Group, LLC, through the Texas Local Government Purchasing Cooperative; and authorizing the Town Manager to execute documents for the same. Councilmember Hodges seconded that motion and the motion was unanimously approved. 20. Consider and act upon approving the purchase of one ambulance from Southern Emergency & Rescue Vehicle Sales, LLC, through the Texas Local Government Purchasing Cooperative; and authorizing the Town Manager to execute related documents for the same. (SB) Chief Blasingame stated this purchase is an approved addition to the fleet and will be for Fire Station #3. Due to the 12 to 15 months build time, staff is requesting approval to ensure the ambulance is completed by the opening of Fire Station #3. Deputy Mayor Pro-Tem Andres made a motion to approve the purchase of one ambulance from Southern Emergency & Rescue Vehicle Sales, LLC, through the Texas Local Government Purchasing Cooperative; and authorizing the Town Manager to execute related documents for the same. Councilmember Cotton seconded that motion and the motion was unanimously approved. Possibly direct Town staff to schedule topic(s) for discussion at a future meeting. 21. Receive an update on COVID-19 operational changes. Ms. Battle reviewed current operational changes for Town employees, programs, events, and activities, which have been based on current CDC guidance along with comparative cities, ISD’s, and hospitalization rates. Staff is recommending to continue limiting in-person meetings, continue teleworking at Directors’ discretion, and to evaluate returning to in-person trainings and employee events. Staff is seeking feedback and direction from the Town Council on the Christmas Festival, HOA Presidents meetings, the Board and Commission reception, citizen academies, the State of the Community, and Town Hall balcony receptions. Ms. Battle stated they are currently planning to move forward with in-person and virtual options where viable but will adjust as necessary if conditions should change. The Town Council discussed and agreed to move forward with returning to in-person and continuing virtual options where feasible to give residents the choice to be in- person or attend virtually. Page 8 Item 2. Page 6 of 6 EXECUTIVE SESSION: Recess into Closed Session in compliance with Section 551.001 et seq. Texas Government Code, as authorized by the Texas Open Meetings Act, to deliberate regarding: Section 551.087 – To discuss and consider economic development incentives. Section 551.072 – To discuss and consider purchase, exchange, lease or value of real property for municipal purposes and all matters incident and related thereto. Section 551.074 – To discuss and consider personnel matters and all matters incident and related thereto. Section 551.074 - To discuss appointments to the Board of Adjustment/Construction Board of Appeals, Parks & Recreation Board, Library Board, Prosper Economic Development Corporation Board, and Planning & Zoning Commission. The Town Council recessed into Executive Session at 6:25 p.m. Reconvene in Regular Session and take any action necessary as a result of the Closed Session. The Town Council reconvened the Regular Session at 6:57 p.m. Councilmember Cotten made a motion to reappoint Chris Kern to the Planning and Zoning Commission. Deputy Mayor Pro-Tem Andres seconded that motion and the motion was unanimously approved. Adjourn. The meeting was adjourned at 6:58 p.m. These minutes approved on the 26th day of October 2021. APPROVED: Ray Smith, Mayor ATTEST: Michelle Lewis Sirianni, Town Secretary Page 9 Item 2. Page 1 of 1 To: Mayor and Town Council From: Betty Pamplin, Finance Director Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – October 26, 2021 Agenda Item: Consider and act upon a resolution accepting and approving the 2021 Tax Roll. (BP) Description of Agenda Item: The Texas Property Tax Code, Section 26.09 (e) requires the Town Council to approve the Appraised Roll with tax amounts entered by the Assessor. The Collin County Tax Assessor Collector provided the attached 2021 Tax Roll Summary with a total levy of $29,997,475.51. Although the enclosed document is titled “Collin County,” this refers to the Tax Assessor Collector, who performs tax collection for Prosper properties in both Collin and Denton Counties. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has approved the attached resolution as to form and legality. Council approval of this resolution is required by the Texas Property Tax Code, Section 26.09 (e). Attached Documents: 1. Resolution 2. 2021 Tax Roll Summary Town Staff Recommendation: Town staff recommends that the Town Council approve the resolution accepting and approving the 2021 Tax Roll as provided by the Assessor. Proposed Motion: I move to approve the resolution accepting and approving the 2021 Tax Roll. Prosper is a place where everyone matters. FINANCE Page 10 Item 3. TOWN OF PROSPER, TEXAS RESOLUTION NO. 2021-XX A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, ACCEPTING AND APPROVING THE 2021 TAX ROLL; RESOLVING OTHER MATTERS RELATING TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 26.09(e) of the Texas Property Tax Code requires the Town Council to approve the Tax Roll; and WHEREAS, the Town received notification from the Collin County Tax Assessor Collector as to the Tax Roll jurisdiction summary as of October 1, 2021, and WHEREAS, a summary statement of said 2021 Tax Roll is attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THAT: SECTION 1 All matters stated in the preamble of this Resolution are true and correct and are hereby incorporated into the body of this Resolution as if copied in their entirety. SECTION 2 The Town Council of the Town of Prosper, Texas, does hereby accept and approve the 2021 Tax Roll as submitted by the Collin County Tax Assessor Collector. SECTION 3 The attached Exhibit A constitutes the official Town of Prosper 2021 Tax Roll, containing a tax levy of $29,997,475.51. SECTION 4 This Resolution is effective on the date of passage by the Town Council. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, ON THIS 26TH DAY OF OCTOBER, 2021. ___________________________________ Ray Smith, Mayor ATTEST: ____________________________________ Michelle Lewis Sirianni, Town Secretary APPROVED AS TO FORM AND LEGALITY: ____________________________________ Terrence S. Welch, Town Attorney Page 11 Item 3. Page 12 Item 3. Page 13 Item 3. Page 14 Item 3. Page 1 of 2 To: Mayor and Town Council From: Leigh Johnson, Director of Information Technology Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – October 26, 2021 Agenda Item: Consider and act upon approving the purchase of virtual service cluster storage expansion, from Centre Technologies, through a Texas Department of Information Resources (DIR) Purchasing Contract; and authorizing the Town Manager to execute all related documents for the same. Description of Agenda Item: Due to increasing storage demands for the line-of-business applications and systems running on the Town’s virtual server cluster, it is necessary to add storage nodes to accommodate that growth. This purchase is for hardware that will provide additional expanded storage in a redundant array, and for the installation and configuration of that hardware. The Technology Subcommittee was advised of and reviewed this proposed purchase in July of 2021. Local governments are authorized by the Interlocal Cooperation Act, V.T.C.A. Government Code, Chapter 791, to enter into joint contracts and agreements for the performance of governmental functions and services, including administrative functions normally associated with the operation of government (such as purchasing necessary materials and equipment). The Town of Prosper entered into an interlocal agreement with the Texas Comptroller of Public Accounts Cooperative Purchasing Program (formerly, Texas Building and Procurement Commission) on March 14, 2006. Participation in the program allows our local government to purchase goods and services through the cooperative contract, DIR contracts included, while satisfying all competitive bidding requirements. Budget Impact: The cost of the purchase is $67,466.60 and will be funded from 410-6125-10-05 (Capital Expense – I.T.) Prosper is a place where everyone matters. INFORMATION TECHNOLOGY Page 15 Item 4. Page 2 of 2 Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has approved the Statement of Work and all related documents as to form and legality. Attached Documents: 1. Centre Technologies quote 2. Centre Technologies Statement of Work 3. Master Services Agreement Town Staff Recommendation: Town staff recommends approving the purchase of virtual service cluster storage expansion, from Centre Technologies, through a Texas Department of Information Resources (DIR) Purchasing Contract; and authorizing the Town Manager to execute all related documents for the same. Proposed Motion: I move to approve the purchase of virtual service cluster storage expansion, from Centre Technologies, through a Texas Department of Information Resources (DIR) Purchasing Contract; and authorizing the Town Manager to execute all related documents for the same. Page 16 Item 4. Town of Prosper - Nutanix Add-on (Final for Purchase) Quote # 048700 Version 1 P R E P A R E D F O R : Town of Prosper Leigh Johnson leigh_johnson@prospertx.gov B U S I N E S S T E C H N O L O G Y S O L U T I O N S F O R : Page 17 Item 4. 16801 Greenspoint Park Drive Suite 200 Houston, TX 77060 www.centretechnologies.com (281) 506-2480 Town of ProsperCentre Technologies Prepared by:Prepared for:Quote Information: Quote #: 048700 Version: 1 Delivery Date: 10/18/2021 Expiration Date: 10/29/2021 Town of Prosper - Nutanix Add-on (Final for Purchase) Bryan Bender on behalf of Rick Essex (214) 550-3574 bbender@centretechnologies.com Leigh Johnson Ship To: P.O. Box 307 Prosper, TX 75078 (972) 569-1150 leigh_johnson@prospertx.gov Town of Prosper - Nutanix Add-on Dell DIR-TSO-3763 Centre Services DIR-TSO-4144 Description Qty Price Ext. Price Products Dell EMC XC740xdENT for AHV 210-ANLO Nutanix OS for AHV 1.0 619-AMMZ Chassis with Up to 12 x 3.5 Hard Drives for 2CPU Configuration 321-BCPU Nutanix OS Pro Edition, Custom 817-BBOV Custom Discount, Cost Relief 817-BBQZ ProSupport for Software, Webscale Software, 3 Years 816-0537 Nutanix 3 Year SW Maintenance, Custom 817-BBPS XC740xd ENT 12 350-BBMN Nutanix XC740XD-12, Custom 817-BBOS XC Standard order 379-BCUR PowerEdge R740/R740XD Motherboard 329-BEIK Intel Xeon Silver 4210R 2.4G, 10C/20T, 9.6GT/s, 13.75M Cache, Turbo, HT (100W) DDR4-2400 338- BVKD Intel Xeon Silver 4210R 2.4G, 10C/20T, 9.6GT/s, 13.75M Cache, Turbo, HT (100W) DDR4-2400 338- BVKD Additional Processor Selected 379-BDCO Intel Xeon Silv 4210R CPU Nutanix Custom 817-BBWU Intel Xeon Silv 4210R CPU Nutanix Custom 817-BBWU Standard 1U Heatsink 412-AAIQ Standard 1U Heatsink 412-AAIQ No Trusted Platform Module 461-AADZ 3200MT/s RDIMMs 370-AEVR Performance Optimized 370-AAIP No RAID 780-BCDI HBA330 Controller Adapter, Low Profile 405-AANK BOSS controller card + with 2 M.2 Sticks 480GB (RAID 1),FH 403-BCHJ 32GB microSDHC/SDXC Card 385-BBKH IDSDM and Combo Card Reader 385-BBLE Riser Config 6, 5 x8, 3 x16 slots 330-BBLG Intel X710 Dual Port 10GbE SFP+ & i350 Dual Port 1GbE, rNDC 555-BCKO Dual, Hot-plug, Redundant Power Supply (1+1), 1100W 450-ADWM 6 Standard Fans for R740/740XD 384-BBPY ReadyRails Sliding Rails With Cable Management Arm 770-BBBR Bezel,Standard,2U,14G,XC740XD 325-BDGB Dell EMC XC740xdENT for AHV 2 $30,487.80 $60,975.60 Page: 2 of 4 Town of Prosper - Nutanix Add-on (Final for Purchase) for Town of Prosper Quote # 048700 V1 Page 18 Item 4. 16801 Greenspoint Park Drive Suite 200 Houston, TX 77060 www.centretechnologies.com (281) 506-2480 Description Qty Price Ext. Price Products Performance BIOS Settings 384-BBBL Legacy BIOS Boot Mode with MBR Partition 634-BIQG iDRAC9,Enterprise 385-BBKT iDRAC Group Manager, Disabled 379-BCQY iDRAC,Legacy Password 379-BCSG Dell EMC XC740xdENT Shipping 340-BZGD PowerEdge R740 Shipping Material 340-CORZ US Order 332-1286 No Systems Documentation, No OpenManage DVD Kit 631-AACK Quick Sync 2 (At-the-box mgmt) 350-BBJU PowerEdge R740 CE, CCC, BIS Marking 389-DSWP Dell Hardware Limited Warranty 1 Year 816-0486 ProSupport:Next Business Day Onsite Service After Problem Diagnosis, 1 Year 816-0490 ProSupport:Next Business Day Onsite Service After Problem Diagnosis, 2 Years Extended 816-0491 ProSupport:7x24 HW/SW Tech Support and Assistance, 3 Years 816-0501 Dell Limited Hardware Warranty Extended Year(s) 975-3461 ProDeploy Dell Storage XC Series Appliance - Deployment Verification 809-6895 ProDeploy Dell Storage XC Series Appliance - Deployment 821-5821 (16) 16GB RDIMM, 3200MT/s, Dual Rank 370-AEVQ (16) Nutanix Custom 16GB DIMM 817-BBOT (2) 1.92TB SSD SATA Mix Use 6Gbps 512 2.5in Hot-plug AG Drive,3.5in HYB CARR, 3 DWPD, 400- AZVG (2) Nutanix, 1.92TB SSD Custom 817-BBRC (10) 2TB 7.2K RPM NLSAS 12Gbps 512n 3.5in Hard Drive 400-ASHS (10) Nutanix, 2TB 7.2K Custom 817-BBQL (2) Jumper Cord - C13/C14, 0.6M, 250V, 13A (North American, Guam, North Marianas, Philippines, Samoa) 492-BBDH (2) Nutanix License, Custom0 634-BPJG (7) Nutanix License, Custom1 634-BPJH (4) Nutanix License, Custom2 634-BPJI (7) Nutanix License, Custom3 634-BPJJ (2) Nutanix Maintenance, Custom0 634-BPJL (5) Nutanix Maintenance, Custom1 634-BPJM (4) Nutanix Maintenance, Custom2 634-BPJN (1) Nutanix Maintenance, Custom3 634-BPJO Cables 1 $2,000.00 $2,000.00 Subtotal:$62,975.60 Description Qty Price Ext. Price Services Dedicated consultant specializing in datacenter modernization and upgrades for servers, networking, virtualization, hybrid and cloud infrastructure, including delivery of strategy, design, deployment, maintenance, verification, documentation, and post-deployment support. See “Scope of Work” documentation for complete details and service inclusions. Installation & Configuration 1 $4,491.00 $4,491.00 Subtotal:$4,491.00 Page: 3 of 4 Town of Prosper - Nutanix Add-on (Final for Purchase) for Town of Prosper Quote # 048700 V1 Page 19 Item 4. 16801 Greenspoint Park Drive Suite 200 Houston, TX 77060 www.centretechnologies.com (281) 506-2480 Description Amount Quote Summary Products $62,975.60 Services $4,491.00 Total:$67,466.60 This Quote together with the Master Service Agreement and any Service Attachment, amendment, or schedule, all of which are incorporated herein by reference (collectively, the “Agreement”) is between Centre Technologies, Inc. a Texas company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and the customer found on the signature block at the end of this Quote (sometimes referred to as “you,” “your,” OR “Client”). This Agreement is effective as of the date Client has signed below (the “Effective Date.”). Both Provider and Customer are sometimes referred to individually as a “Party”, or together as the “Parties”. Any capitalized terms in this Quote not directly defined are referred to in the applicable “Agreement” on the last page of this Quote. If there is a conflict between this Quote, the Master Services Agreement and any Service Attachment, amendment, or schedule, this Quote will control. Client hereby acknowledges that all of the Agreements and Quotes contained herein are subject to the applicable taxes (e.g., international, federal, state and local), shipping, handling and other associated fees. The Uniform Commercial Code, as adopted by the Texas Business and Commerce Code, shall apply where appropriate. Provider reserves the right to cancel or amend orders arising from pricing or other errors contained in the attached Quote and will notify the Client. This Order and its accompanying Agreements supersede all prior negotiations, discussions, proposals, communications, or previous Orders or Agreements between the parties. By signing below, the parties acknowledge, represent, and warrant that they have read and agree to the terms and conditions of the Agreement, including all related agreements, schedules, Service Attachments, and/or amendments identified at the end of this Quote. The parties hereby represent that electronic signatures to this Quote shall be relied upon and serves to bind them to the obligations stated herein. Each party hereby warrants and represents that he/she/it has the express authority to execute this Agreement(s). Signature: Name:Harlan Jefferson Title:Town Manager Date: E-Signature Confirmation for Town of Prosper Page: 4 of 4 Town of Prosper - Nutanix Add-on (Final for Purchase) for Town of Prosper Quote # 048700 V1 Page 20 Item 4. S T A TE M E N T OF W ORK Town of Prosper - Nutanix Addon May 11, 2021 P R E SE N TE D T O Town of Prosper Page 21 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 2 | 10 Initials Contact Information Customer Contact Leigh Johnson 972-569-1150 Leigh_johnson@prospertx.gov Centre Account Manager Rick Essex 972-333-0934 ressex@centretechnologies.com Centre Services Contact Jamey Rush 214-593-6864 jrush@centretechnologies.com Project Overview This Statement of Work is between Centre Technologies, Inc. a Texas company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and the customer found on the applicable Quote (sometimes referred to as “you,” “your,” OR “customer”) and, together with the Quote and Master Services Agreement forms the Agreement between the parties the terms to which the parties agree to be bound. Town of Prosper is adding two nodes to the existing Nutanix cluster at City Hall to expand the cluster for storage resources. During the phases of this project Centre will work with the customer to meet project timelines and goals. Upon completion of this project, the customer and Centre will meet to discuss recommendations and next steps. Solution Description Town of Prosper has engaged Centre Technologies to add two Dell XC740xd nodes to the existing City Hall Nutanix cluster. The two nodes will be networked in the same configuration as the existing nodes. Project Management Centre Technologies will assign a project manager for the duration of the project to work closely with an assigned customer representative to ensure proper project coordination and planning. These activities will include: Page 22 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 3 | 10 Initials •Project kickoff meeting to define project resources and delivery timeline •Documentation of scheduled project activities •Project Status meetings and documented updates as needed •Coordination of schedules to ensure successful implementation •Project closure documentation to formalize end of project Key Assumptions The key assumptions for this project are: •All work to be performed at customer premises shall occur during normally scheduled working hours (8:00 a.m. to 6:00 p.m. local time, Monday through Friday), except holidays, & unless otherwise agreed to in advance. •All tasks will be performed over a consecutive timeframe unless otherwise agreed to by all parties. •Additional charges apply if the technician must return to site for any reason outside of the technician’s control. o All equipment is not onsite. o Location/area is not ready for install. o Site contact is not available when technician arrives, and technician is turned away. •Customer will have licensing for any software that will be used •Installation will be performed during normal business hours •Customer has power available for all devices •There are sufficient network ports available to perform the installation •There is sufficient rack space available to perform the installation •Existing Nutanix cluster is in a healthy state •Customer has necessary cabling infrastructure in place •Network is in good health and issues will not hinder the application of the changes Project Scope Events and Tasks This section contains the scope of the events and tasks associated with the completion of the project . These are organized into phases. Any dates are subject to change depending on schedules and progress. Kickoff Phase Project Kickoff - (Quantity 1) •Review project goals •Confirm technical goals & requirements Page 23 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 4 | 10 Initials •Confirm customer access to systems •Receive credentials and network information •Schedule project start Implementation Phase Nutanix Node Installation - (Quantity 1) •-Mount Nutanix equipment in rack •-Cable data connections to top of rack switches •-Cable out of band hardware management port •-Cable power connections to power distribution units Configure switching for node addition - (Quantity 1) •-Apply networking configuration to attached switch ports per design •-Verify setup with LACP failback and verify LACP configuration within nodes once setup Node Addition - (Quantity 1) •-Expand cluster from existing cluster •-Apply hypervisor license keys to existing cluster •-Implement Nutanix Supported Hypervisor •-Install hypervisor software and Nutanix controller VM •-Apply hypervisor patches, as needed •-Setup node LACP configuration, as needed Implementation Validation - (Quantity 1) •-Execute Nutanix Cluster Check •-Execute Nutanix Diagnostic Test •-Verify Nutanix alerts received by Customer •-Verify Nutanix Pulse (call home) Support Phase Post Project Support (hours) - (Quantity 1) •Dedicated expert level support to ensure that any post project issues are resolved as quickly as possible Knowledge Transfer Phase Documentation & Knowledge Transfer - (Quantity 1) •Complete project documentation •Knowledge transfer with client Closeout Phase Project Closeout - (Quantity 1) •Confirm that customer has monitoring and backups in place for the new/upgraded solutions •Review results with Customer •Provide project documentation Locations in Scope This section contains a list of the physical locations where services are to be performed by Centre. Town of Prosper: P.O. Box 307, Prosper TX 75078 Page 24 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 5 | 10 Initials Out of Scope Services This section contains a list of specific tasks or services that are outside the project scope or standard service offerings provided by Centre. •Remediation of existing issues, not listed as a task, within the environment •Configuration of any prerequisite tasks •Implementation, configuration, or migration of additional features or services not listed as a task •Troubleshooting applications or application connectivity/performance While Centre has done its best to list all excluded task or service offerings, projects or service engagements vary widely and the above list may not be exhaustive. Some tasks or services listed above are simply unavailable. Any item selected from the above list shall require a change request and billing on a time and materials basis. The Customer is responsible for inquiries about service exclusions. Prerequisites & Customer Responsibilities Customer responsibilities & prerequisites for this project are: •Provide individual workspace with phone and network access that provides access to systems that are required to perform the assigned job functions •Provide access to documentation or personnel who have knowledge of the environment •Coordinate all physical access to facilities as necessary (security badges, parking, etc.) •Have valid and appropriate product licenses and product support agreements •Assign project sponsor as the single point of contact for issue resolution and activity scheduling •Assume responsibility for all network connectivity, performance, and configuration issues •Ensure adequate and effective backup and restore processes exist and are operational Change Control Changes to this SOW shall be initiated by providing a filled-out copy of the Change Request Form in Appendix A to the other Party. Changes include but are not limited to requests for changes in project plans , scope, specifications, schedule, designs, requirements, service deliverables, or any other aspect of the SOW. The Parties shall review any change requests and advise if the request(s) will be accepted in -whole or in-part and if so, the associated costs and project impacts if any. Fully executed copies of approved changes shall be added as an amendment. The Customer point of contact and the Centre project manager shall receive the request from the other Party. The customer point of contact or Centre representative shall respond in writing to either accept or reject the request within three (3) business days of receipt unless a shorter response is requested. Changes are not authorized unless both Parties agree. Page 25 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 6 | 10 Initials Scheduling All work to be performed at Customer premises shall occur during normally scheduled working hours (8:00 a.m. to 6:00 p.m. local time, Monday through Friday), except holidays, & unless otherwise agreed to in advance. All tasks will be performed over a consecutive timeframe unless otherwise agreed to by all parties The work is subject to a mutually agreeable delivery schedule. Centre shall provide mutually agreeable timelines for Centre responsibilities and the Customer shall provide information used to develop the project. If the Customer causes mutually agreed upon deadlines to be missed, or fails to provide information which delays the project, then the Customer shall be responsible for additional expenses incurred related to the project task. Additional expenses and/or fees caused by delays by either Party shall be treated as a change to the scope and costs quoted for this SOW and shall be handled as specified in the Change Control section of this SOW. Delays caused by fault of Centre alone shall under no circumstance cause additional expenses to be borne by the Customer. The Customer understands that delays that are due to factors beyond Centre’s reasonable control shall also not cause additional expenses and/or fees to be borne by either Party, however, these types of delays may cause a temporary unavailability of resources due to schedule conflicts. These delays include but are not limited to: A.acts of any governmental body, war, insurrection, sabotage, embargo, “Acts of God” (i.e. fire, flood, earthquake, tornado, etc.), strike or other labor disturbance, interruption of or delay in transportation, failure of third party software or inability to obtain raw materials, supplies or power used in equipment needed for provision of the SOW; B.those resulting from Customer’s or third-party hardware, software, or services; and C.actions or inactions of Customer or third parties, Customer’s employees, agents, contractors , vendors, or anyone gaining access to Customer’s network by means of Customer’s passwords or equipment. Centre reserves the right to rotate resources assigned from time to time and shall provide reasonable notice to Customer prior to this transition. Centre shall have the departing resource and the incoming resource both on-site for a reasonable period to ensure a smooth transition of services. Engagement reschedules made after the project kick off shall incur a 10% rescheduling fee. Exceptions may be made to the normally scheduled hours to allow for activities that impact the Customer’s business/Customers and/or Customer’s landlords and/or other affected tenants in buildings. Those exceptions must be represented here. In the absence of these exceptions, time and expenses shall be applied to all non-standard hours. Cancellation Fees For all cancellations made within 2 weeks before the scheduled engagement, Centre shall charge the Customer for any cancelled travel expenses (hotel/airfare). In addition to such travel expenses, Customer shall pay for service fees as follows: Page 26 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 7 | 10 Initials A.Cancellation between 5 and 3 days before project start date: 1 full day of consultant time (minimum of $1,950) B.Cancellation between 3 and 1 days before project start date: 3 full days of consultant time (minimum of $5,850) C.Cancellation 1 day before project start date: 4 full days of consultant time (minimum of $7,800) Completion Criteria Centre shall have fulfilled its obligations under this Statement of Work when Centre completes the tasks listed under the Services Performed and Key Deliverables sections or the Customer terminates the project. Early termination may not relieve Customer of certain financial obligations. Non-Solicitation Customer agrees not to seek, offer, or solicit offers of employment from Centre employees, without the expressed written consent of Centre. The above limitation shall be effective for the Term of this Statement of Work and for a period of one (1) year following the termination of this Statement of Work or any extension hereto. Project Deliverables Centre Technologies has completed its responsibilities to this Statement of Work when the following deliverables are complete: •Installation Documentation - Customer will receive an overview of the installation including what changed in the environment. Network information will be provided in the documentation. Page 27 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 8 | 10 Initials Project Pricing Fixed Fee Pricing Description Total Professional Services $4,491.00 TOTAL $4,491.00 Project framework time estimate From the project start date the estimated time to completion is: 3 business days Payment Terms Payment Schedule The following payment schedule will be executed for the fees associated with this project. For time and materials pricing, these amounts are estimated and will be billed as actuals. Service Fees Amount Upon execution of Statement of Work $2,245.50 Upon completion of Project $2,245.50 TOTAL FEES TO TOWN OF PROSPER $4,491.00 Page 28 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 9 | 10 Initials Terms and Conditions The following Terms and Conditions apply to this project: •Material costs are not included in this fee and may be billed separately if applicable/incurred during the project. •Expenses are not included in this fee and may be billed separately if applicable/incurred during the project. •Pricing is valid for (30) days Centre Technologies requires advanced notice for scheduling of resources. Quotes and Ordering. PURCHASE ORDERS SUBMITTED TO CENTRE SHALL BE BINDING ON CUSTOMER UPON WRITTEN ACCEPTANCE BY CENTRE. QUOTATIONS PROVIDED BY CENTRE TO CUSTOMER SHALL BE BINDING ON CUSTOMER UPON CUSTOMER’S WRITTEN ACCEPTANCE RECEIVED BY CENTRE WITHIN THE TIME DESCRIBED IN THE QUOTATION. ANY FEES QUOTED MAY BE REVISED TO INCLUDE TAXES, HANDLING AND OTHER FEES. SUCH FEES ARE ESTIMATED UNTIL FINAL PROCESSING AND MAY VARY TO INCLUDE ANY PRICING ERRORS. Invoices. CENTRE SHALL INVOICE CUSTOMER ALL FEES, INCLUDING STATE SALES TAXES AS PROVIDED IN THE APPLICABLE MSA. PROJECT CONSULTING SERVICES ARE INVOICED WHEN THE CUSTOMER HAS ACCEPTED THE WORK AND THE TICKET IS CLOSED. ALL FEES ARE DUE WITHIN THIRTY (30) DAYS FROM THE DATE OF CENTRE INVOICE. MONTHLY RECURRING BLOCK OF HOURS ARE INVOICED (30) DAYS IN ADVANCE. AN ACH DEBIT PAYMENT METHOD C AN BE SETUP FOR THE PAYMENT OF RECURRING MONTHLY INVOICES. CUSTOMER SHALL PAY ALL BANK CHARGES, TAXES, DUTIES, LEVIES AND OTHER COSTS AND COMMISSIONS ASSOCIATED WITH ANY BANK WIRE TRANSFER OR OTHER MEANS OF PAYMENT. Warranties and Limitations. CENTRE WARRANTS THAT ITS SERVICES SHALL BE PERFORMED BY QUALIFIED PERSONNEL IN A MANNER CONSISTENT WITH GOOD PRACTICE IN THE INFORMATION TECHNOLOGY SERVICES INDUSTRY. IF CENTRE BREACHES THIS WARRANTY, IT SHALL SUPPLY SERVICES TO CORRECT OR REPLACE THE WORK AT NO CHARGE. THE REMEDY SET FORTH IN THIS SECTION IS CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. CENTRE MAKES NO OTHER WARRANTIES ON THE SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Interest. ANY OVERDUE AND UNPAID PORTION OF THE FEES SHALL BEAR INTEREST, AS SPECIFIED IN THE MSA. CENTRE MAY SUSPEND LICENSES AND PERFORMANCE OF ORDERS FOR WHICH CENTRE IS INSECURE OR WHICH PAYMENT IS OVERDUE UNTIL THE OVERDUE AMOUNTS ARE EITHER PAID IN F ULL OR AN ALTERNATIVE ARRANGEMENT ACCEPTABLE TO CENTRE IS MADE. CUSTOMER SHALL REIMBURSE CENTRE FOR REASONABLE ATTORNEYS' FEES AND ANY OTHER COSTS ASSOCIATED WITH COLLECTING DELINQUENT PAYMENTS. IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS STATEMENT OF WORK TO BE EXECUTED BY THEIR DULY AUTHORIZED REPRESENTATIVES WITH THE INTENT TO BE LEGALLY BOUND AS OF THE EFFECTIVE DATE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED. Signature of Acceptance Acceptance of Statement of Work – Centre Technologies, Inc. and Town of Prosper For Centre Technologies, Inc. For Town of Prosper Signature Signature Printed Name Printed Name Title Title Effective Date Effective Date Harlan Jefferson Town Manager Page 29 Item 4. Town of Prosper Town of Prosper - Nutanix Addon C O N F I D E N T I A L May 11, 2021 Page 10 | 10 Initials Appendix A: Change Request Form General Information Date Company Name Town of Prosper Project Name Town of Prosper - Nutanix Addon Change Name Change Number Change Type Change Request Description Evaluation Scope Additional Prerequisites Schedule Changes Cost Approval Acceptance of Statement of Work (Change Request) – Centre Technologies, Inc. and Town of Prosper For Centre Technologies, Inc. For Town of Prosper Signature Signature Printed Name Printed Name Title Title Date Date Page 30 Item 4. MSA V1.27 REVISED 9/13/2021 Page 1 of 10 centretechnologies.com MASTER SERVICES AGREEMENT (MSA) M S A V 1 . 2 7 R E V I S E D 9 /13 / 2 0 2 1 This Master Services Agreement (“MSA”) is between Centre Technologies, Inc. a Texas corporation (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and the Customer found on the applicable Quote (sometimes referred to as “you,” “your,” OR “Customer”). Collectively, these two entities are “the Parties”. The MSA, together with the Quote and relevant Service Attachments, forms the Agreement between the Parties. WHEREAS, Customer desires to engage Centre Technologies to perform Services and/or purchase or license certain Products as de fined herein; and WHEREAS, the Parties shall recognize their respective roles and responsibilities for technical, administrative an d physical requirements to protect the confidentiality, integrity and availability of the data in accordance with all relevant laws, regulations and industry standards. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the Parties have agreed to do as follows: 1. DEFINITIONS Anniversary – The first day of the Renewal period. Data Protection Agreement (“DPA”) - This data processing agreement (DPA) is a legally binding document to be entered into between Centre and the Customer in writing or in electronic form. The DPA regulates the particularities of data processing related to the creation, receipt, maintenance, transmission, and/or storage of data between the Parties in accordance with relevant state, federal, and/or international laws and regulations. Project Services - apply to the delivery of information technology Services, support, consulting and functions as further described in a SOW that may be proposed and approved by the Parties. Quote – is the document, delivered electronically, to the Customer containing the Term and specifics of the proposal of Product(s), Services, Project Services, and/or Supplemental Services. In the event that specific Services, Project Services, and/or Supplemental Services have a different term Renewal - the evergreen and automatic extension of any initial Term specified on a Quote for subsequent twelve (12) month terms following the expiration of the initial Term. Unless one Party provides written notice to the other Party of its intent to terminate at least sixty (60) days prior to the expiration of the initial Term or of the then current Renewal Term. Services – the services, other than Supplemental Services and/or Project Services, to be delivered by Provider and the fees for those Services, and the specific terms applicable to those Services are described in the Quote or in one or more Service Attachments referencing this Agreement. Service Attachments (“SA”) - a document containing the terms for one or more Services. Statement of Work (“SOW”) – is a separate document that contains the description and work requirements for the scope of work to be performed. Supplemental Services - are limited, additional services and equipment you may need on a “one-off” or emergency basis that are not included within the scope of the Services described in a Quote or the applicable Service Attachments. Term – the length of time associated with particular Services, Project Services, and/or Supplemental Services. In the event that the Term differs between the Quote and this Agreement, the Quote shall control. In the event that the Quote is silent as to the Term, this Agreement governs. 2. STATE MENT OF SERVICES Except for Supplemental Services or Project Services and unless otherwise agreed in writing, the services we will deliver to you are limited to those Services specifically identified in the Quote, a SOW and/or described in the Service Attachments. In the event of any conflict between the terms of a Service Attachment and this Agreement, the terms in the Service Attachment control. In the event of any conflict between the terms of a Quote and any Service Attachment or this Agreement, the terms of the Quote control. You will incur additional Service Fees for Supplemental Services. We will notify you of any such additional Service Fees and will obtain your approval prior to providing them. However, we have no obligation to determine the need for or to provide any Supplemental Services. All Supplemental Services are provided on an “as-is” basis and include no warranties of any kind, whether express or implied. In addition, if we determine that any additional services you request would be inappropriate for treatment as Supplemental Services under this paragraph, we may deliver to you a proposed Service Attachment for Project Services or a Proposal prior to providing Supplemental Services. Project Services specified in an approved SOW shall be incorporated herein by reference. In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the Parties shall prepare and sign an amended or new SOW (or change order), which likewise shall be attached hereto and incorporated herein by reference. Provider may decline to perform any services requested by the Customer that are in violation of any applicable law or that are not typically associated with the Services provided by Provider. Improvements to Services You hereby assign to us any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users relating to any proposed improvements of or modifications to the Services. 3. FEES FOR SERVICES AND PAY MENT TERMS Service Fees Fees for Services are set forth in Quote or Statement of Work. Unless otherwise indicated in writing, all Services will be performed on a time-and- materials basis at Provider’s then-current rates. All fee increases and fees for ad hoc services must be approved in writing by Customer. All fees assume that Customer equipment is under manufacturer warranty or maintenance contract. Customer will be billed monthly based on the current number of active workstations, servers and network devices under management. A device will Page 31 Item 4. MSA V1.27 REVISED 9/13/2021 Page 2 of 10 centretechnologies.com be considered active and under management if the device has been in contact with the provider’s management console(s) at any time in the prior 60 days. Any device that has not contacted the provider’s management console in the prior 60 days will be considered inactive and will be automatically removed from provider’s management console. Once removed from the console, billing will cease for that device. Adjustments to Service Fees Except as may be specified in a Quote, we may adjust the Service Fees charged under this Agreement as follows: • End-User or Network Growth. During the term of a Service, if the number of users or devices in your environment or the Service or Equipment types or quantities to be covered within the scope of the Quote exceeds the numbers, types or quantities previously ordered, we may apply a pro rata adjustment to the total Service Fees based on our then-current fee rates. You shall pay all Service Fees owed as they become due following any such adjustment. Similarly, during the term of a Service, if the number of users or devices in your environment or the Service or Equipment types or quantities to be covered within the scope of the Service is less than the numbers, types or quantities previously ordered, upon request, we will apply a pro rata adjustment to the total Service Fees based on our then-current fee rates. Customer shall not be able to decrease the number, types or quantities below 90% of the initial amounts ordered in the Quote on an annual basis. You shall pay all Service Fees owed as they become due following any such adjustment. Dormant PCs - Customers have the ability to put active PCs into a dormant state. Dormant PCs are machines that are still within their useful lifecycle but are considered dormant because they will not be needed by an active user for an extended period of time (i.e. more than 60 days). Customer agrees to notify Centre of machines that should be flagged as dormant by emailing help@centretechnolgies.com with the names of the relevant PCs. Any PC that is in a dormant state will automatically be reactivated once it is powered back on. Dormant PCs will be excluded from management activities, and billing, until they are reactivated. Decommissioned PCs - Decommissioned PCs are machines that need to be permanently removed from the customer environment. Examples would be machines that have been lost/stolen, damaged beyond repair or have failed. This also includes machines that are past their useful life. Any decommissioned PCs will automatically drop out of billing 60 days after last contact unless notification is provided by the customer to help@centretechnologies.com prior to that date. You may opt out of certain services in the Centre Assist Secure Managed Services package if desired but opting out of baseline services will not alter the quoted fee structure. "User" means Customer's employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Provider upon Customer's request). Users do not include any customers of Customer or other third parties. “Device” means any equipment included in the Services, whether owned by Customer or provided by Provider for Customer’s use, including, but not limited to computers, printers, servers, routers, and mobile or handheld microcomputers as well as the software necessary to operate such equipment. • Surcharges. At any time after the parties sign a Quote, we may adjust our rates and charges or impose additional rates and charges to recover amounts required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs. You shall pay all Service Fees owed as they become due following any such adjustment. • Service Fee Rate Increases. Thirty days before the Renewal of each Term, Provider shall give Customer a notice in writing of a change in the amount of Fee for Service to be effective for the succeeding twelve months commencing on the Anniversary date. The Fee for Service shall be increased each year by a percentage equal to fifty (80) percent of the percentage change in the Consumer Price Index for All Urban Consumers (“CPI-U”) published by U.S. Department of Labor Bureau of Labor Statistics (“BLS”), and as reported on the BLS website. Comparisons shall be made using the index entitled, “U.S. City Average/All Items and Major Group Figures for all Urban Consumers (1982-84 = 100),” or the nearest comparable data on changes in the cost of living, if such index is no longer published. The change shall be determined by comparison of the figure for the previous June 1, with that of June 1 of the current year. In the event that the CPI-U index decreases, the rate shall remain the same rate for the previous Term. • Third Party Services. Provider may audit Customer regarding any third-party services. Provider may increase any fees or termination costs that are passed to the Provider for those third-party services Customer used or purchased. Customer agrees that upon cancellation or termination, Customer shall pay all remaining third- party service fees and any additional third-party termination fees. • Off-Boarding. Customer’s cancellation, termination, or transition of the Services to Customer’s control (“Off-Boarding”) may trigger a billable project. Any Off-Boarding projects will be subject to a separate Order or Project Service Attachment or Statement of Work, which will be billed at Provider’s then current rates. • Customer Delay. If we are unable to commence delivery of the Services on the Service Start Date (defined below) because of any failure on your part including but not limited the failure to provide access to your resources in a timely manner), you nonetheless will begin to incur Service Fees, which you shall pay in accordance with this Service Attachment and the Master Services Agreement, beginning on the Service Start Date. Pass-Through Expenses Customer shall pay Provider’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, or other similar expenses, which may be incurred by Provider in performing Services. Any such “Pass-Through Expenses” will be billed at cost and invoiced monthly. Payment Terms You shall pay the full amount reflected on any invoice as owed to us on the first (1st) day of each month. Billing for partial months of Services (“Proration”) is not allowed and shall be based on a full calendar month. Without waiving any of its other remedies, Provider reserves the right to suspend services if payment is not received within thirty (30) days following your receipt of that invoice. You shall pay a late charge of one and one half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all invoiced amounts not paid within thirty (30) days following your receipt of that invoice (the “Payment Deadline”). If you dispute in good faith all or any portion of the amount owed to us, or if you otherwise require any adjustment to an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the dispute prior to the Payment Deadline, you nevertheless shall pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, we shall apply a credit equal to such amount on against any Service Fees owed for the following month. Special rates may apply for services requested outside of normal business hours (8 am to 6pm, Monday through Friday) or on holidays. Special rates are charged at our then prevailing rates, with one hour minimum. Holiday hour rates are two (2) times normal hourly rates, with a one (1) hour minimum. Suspension of Service If you fail to pay all amounts owed under this Agreement when due, then upon at least ten (10) business days prior written notice, and in addition to any other remedies available to us, we may suspend Services and withhold Confidential Information (defined below) under this Agreement until full payment is made. Following any suspension of service under this provision, and after you make Page 32 Item 4. MSA V1.27 REVISED 9/13/2021 Page 3 of 10 centretechnologies.com full payment to us, we shall restore the Services after validating that all components to be monitored and/or managed under any applicable Quote or Service Attachment comply with our level of security, updates and best practices. You shall pay a “Reactivation Fee” for such restoration equal to $250.00. Our right to suspend Services under this section is in addition to our right to terminate this Agreement. Taxes All charges and fees owed under this Agreement are exclusive of any applicable sales, use, excise or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services, you shall pay the taxes directly to the taxing authority or shall reimburse us for their payment. 4. TERM, RENEWAL, AND TERMINATION Term This Agreement commences on the Service Start Date, and it will remain in effect through an initial term of twelve (12) months (“Initial Term”) or until either party renews or terminates as permitted below. In the event that Services provide for different terms, the term and conditions in the Quote will control only for those specific Services. If the Quote specifies no Initial Term with respect to any or all Services, then we will deliver those Services on a month-to-month basis. We will continue to do so until one party provides written notice to the other party of its intent to terminate those Services, in which case we will cease delivering those Services at the end of the calendar month in which such written notice is received by the other party. Renewal Renewal shall have the same meaning as set forth in Section 1 – Definitions. CUSTOMER MAY CANCEL AN AUTOMATIC RENEWAL BY CONTACTING PROVIDER AT: https://centretechnologies.com/termnotice Termination Early Termination by Customer with Cause Customer may terminate this Agreement for cause following thirty (30) days’ advance, written notice delivered to Provider upon the occurrence of any of the following: a. We fail to fulfill in any material respect of our obligations under this Agreement and/or fail to cure such failure within thirty (30) days following our receipt of your written notice. b. We terminate or suspend our business operations (unless succeeded by a permitted assignee under this agreement). Early Termination by Customer Without Cause Customer may terminate this Agreement for any reason or no reason upon at least sixty (60) days advance, written notice given to the other party before the end of the Term. However, termination of this Agreement will not, by itself, result in the termination of any Quote or Service Attachments, and this Agreement will remain in effect notwithstanding any notice of termination unless and until all Quotes and/or Service Attachments are terminated or expire according to their terms. If an Initial Term is specified in the Quote, and if you have satisfied all of your obligations under this Agreement, then no sooner than ninety (90) days following the Service Start Date, you may terminate this Agreement without cause during the Initial Term upon sixty (60) days’ advance, written notice, provided that you pay us a termination fee equal to one hundred percent (100%) of the recurring, Monthly Service Fees remaining to be paid from the effective termination date through the end of the Initial Term, based on the prices identified on the Quote then in effect. Termination by Provider We may elect to terminate this Service Attachment upon thirty (30) days’ advance, written notice, with or without cause. Provider has the right to terminate this Service Attachment for less than thirty (30) days for illegal Customer conduct. Provider may suspend the Services upon ten (10) days if Customer violates third-parties’ end user license agreement(s) regarding provided software. Provider may suspend the Services upon fifteen (15) days if Customer’s action or inaction hinder Provider from providing the contracted Services. Effect of Termination Upon Termination or Off-Boarding, Customer shall have thirty (30) days to make payment in full of: (i) the Fees under this Agreement, and/or (ii) any Project Services Attachment or Statement of Work for Off-Boarding. Termination of Services, Project Services, and/or Supplemental Services for any reason by either party immediately nullifies all access to our services and Customer agrees to return any Provider Supplied Hardware within ten (10) days to Centre. As part of any Off-Boarding process, Centre shall, at Customer’s expense, transfer or transition to another provider, a true and exact encrypted copy of the Customer’s data. After thirty (30) days following termination of this Agreement by either party for any reason, and after confirming that Provider has either provided Customer with the Customer Data or that Customer does not want the Customer Data, Provider shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data on its systems or otherwise in its possession or under its control. Provider may audit Customer regarding any third-party services. Provider may increase any Fees for Off-boarding that are passed to the Provider for those third-party services Customer used or purchased while using the Services, Project Services, and/or Supplemental Services. Customer agrees that upon Termination and/or Off-Boarding, Customer shall pay all remaining third-party service fees and any additional third-party termination fees associated with the Quote. 5. INDEPENDENT CONTRACTOR Unless otherwise agreed, we will perform all Services solely as an independent contractor and not as an employee, agent or representative of Customer. 6. INTELLECTUAL PROPERTY RIGHTS Provider Works Unless specifically identified in a separate Statement of Work, any writing or work of authorship, regardless of medium, created or developed by Provider or Customer in the course of performance under this Agreement and related to existing works owned by Provider is a “Provider Work,” is not to be deemed a “work made for hire,” and is and will remain the sole, exclusive property of Provider. To the extent any Provider Work for any reason is determined not to be owned by Provider, Customer hereby irrevocably assigns and conveys to Provider all of its copyright in such Provider Work. Customer further hereby irrevocably assigns to Provider all of its patent, copyright, trade secret, know- how and other proprietary and associated rights in any Provider Work. Virtual Machine Configurations All Customer virtual machine data shall belong to Customer. However, Customer agrees that all virtual machines and configurations of Customer’s network shall belong to Provider as Provider’s Intellectual Property, and Provider will not transfer to Customer any virtual machines or information regarding configurations. Customer also agrees to keep information regarding Provider’s virtual machines and configurations confidential. License to Provider Works Provider hereby grants Customer a limited, non-exclusive, revocable, royalty- free license to use any Provider Works for Customer’s internal business purposes only during the term of this MSA. License Restrictions You shall not: Page 33 Item 4. MSA V1.27 REVISED 9/13/2021 Page 4 of 10 centretechnologies.com • Modify, copy or create derivative works based on the software, hardware, goods, and/or the related Services, Supplemental Services, and Project Services; • Use the Services, Supplemental Services, or Project Services to build a product or service using similar ideas, features, functions or graphics of the Service; and/or • Copy any ideas, features, functions or graphics of the Service. Additional license restrictions may be set forth in the Service Attachments. 7. PROVIDER -SUPPLIED HARDWARE “Provider-Supplied Hardware” means any hardware and/or goods, including but not limited to computer, networking or telephony equipment racking, or associated hardware or other equipment (if any) that we install on your premises or that we ship to your location to facilitate the delivery of Services. This provision does not apply when a Provider sells to Customer, procures on Customer’s behalf, and/or that Customer otherwise holds title to or leases from another party through Provider. Provider is and will remain the sole owner of any Provider-Supplied Hardware, which is provided on a rental or temporary basis only. Our agreement transfers to you no Provider-Supplied Hardware ownership rights of any kind. We retain sole discretion to determine the appropriate Provider-Supplied Hardware and associated software and/or technology, if any, to be used at your location, provided that our determination does not materially impair the availability or delivery of services under this Agreement. We also retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Provider-Supplied Hardware. You shall take reasonable care of the Provider-Supplied Hardware and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all Provider-Supplied Hardware, for all damage to or loss of the Provider-Supplied Hardware used at your location caused by you or your representatives. You are responsible for providing the necessary power, secure and adequate network connection and appropriate environment to support the Provider- Supplied Hardware. You shall not remove any sign, label or other marking on the Provider-Supplied Hardware identifying Provider as the owner of the Provider-Supplied Hardware. You do not acquire and will not acquire any rights of ownership in the Provider-Supplied Hardware by virtue of this Agreement, and you do not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Provider-Supplied Hardware. On termination of any Agreement pursuant to which we deliver Provider- Supplied Hardware, you shall allow Provider and its employees and contractors reasonable access to your premises to remove the Provider- Supplied Hardware. Alternatively, upon our request, you shall return the Provider-Supplied Hardware to us via the carrier of our choice, for which we will pay all applicable packing shipping charges. 8. PROVIDER -SUPPLIED SOFTWARE “Software” means all and any software installed on the Provider-Supplied Hardware or provided by us to for installation on your computer equipment to facilitate the delivery of the related Services, Supplemental Services, and/or Project Services. This Agreement does not transfer any right, title, or interest in the Software to you. Your use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to you upon request. We represent and warrant that we have all necessary rights to install and use that Software. You shall not, and shall not permit any third party, to: • Distribute or allow others to distribute copies of the Software or any part thereof to any third party, • Tamper with, remove, reproduce, modify or copy the Software or any part thereof, • Provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, and/or • Reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law. 9. THIRD PARTY PRODUCTS RESOLD BY PROVIDER Provider will provide, install and support third-party products resold by Provider listed on the Quote (“Third-Party Products”). Customer designates Provider as its agent to provide the Service to Customer, and to enter into any third-party relationship to provide the Third-Party Products to Customer. Use of Third-Party Products is subject to the applicable terms of use of the third- party provider, which Customer acknowledges and agrees that its responsibility is to understand the terms and comply with their use. Customer agrees to be bound by any applicable third-party provider agreements regarding terms or use or end user licensing, and Customer understands that any applicable agreement regarding terms of use or end user licensing is subject to change by any third-party provider without notice. To the extent that Third-Party Products apply, Customer agrees to the terms and conditions for the specific Services, Project Services, and/or Supplemental Services, which are located at: • https://aws.amazon.com/agreement (“AWS Service Schedule”); and/or • https://www.microsoft.com/licensing/docs/customeragreement (“Microsoft Azure Service Schedule”). Service Schedule for Third-Party Products shall be deemed a part of and shall be incorporated by reference into this Agreement. Provider will install remote access and remote monitoring and management software on Customer’s Devices possibly other equipment at Customer’s office. Customer grants permission to Provider to install any remote access or remote monitoring and management software deemed necessary by Provider. 10. SECURITY INTEREST Provider retains a purchase money security interest in all Equipment sold by Provider to Customer, and in the proceeds of any resale of such Products, until the purchase price and any other charges due Provider have been paid in full. Customer agrees to cooperate, to the extent necessary, and authorizes Provider to file UCC-1 filing statements and/or further security agreements as Provider may deem necessary to provide this protection to Provider. In the event of default hereunder, Provider reserves the entirety of its rights and remedies in and to the repossession and/or sequestration of the Products, as well as any and all other remedies allowed at law, including under the Texas Business and Commerce Code, or in equity to collect amounts due and owing hereunder. 11. CONFIDENTIALITY AND DISCLOSURE Confidential Information During the course of performance under this Agreement, either party may be exposed to or may acquire the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third party. Confidential Information includes but is not limited to the following: confidential and proprietary business information including, but not limited to, Provider’s unpublished prices for Services, audit and security reports, server/network configuration designs, firewall and other hardware configurations, passwords, all business plans, technical information or data, product ideas, methodologies, inventions, proprietary information and business matters or affairs (including, but not limited to, information relating to disclosures, processes, systems, methods, formulas, patents, patent applications, machinery, materials, research activities and plans, business Page 34 Item 4. MSA V1.27 REVISED 9/13/2021 Page 5 of 10 centretechnologies.com proposals, production cost data, contracts, forms, information concerning competitive strengths and weaknesses, intellectual property, trade secrets, promotional methods, customer preferences, customer account information, business plans and strategies, procedures, sales and pricing information, advertising information, product samples and designs, financial information, employee information , as well as information of a confidential or proprietary nature such as personally identifiable or protected health information received from customers, suppliers, contractors, licensors, joint ventures, employees and other collaborators), and computer programs, software and documents relating to any of the foregoing, regardless of the form or medium contained or stored in (including electronic or digital form), as well as multiple versions and copies of each. The aforementioned items’ meanings shall be construed as set forth in the Texas Uniform Trade Secrets Act (TUTSA). Such Confidential Information shall include, for purposes of this Agreement, any such information not generally known by the trade or public, even though such information has been disclosed to one or more third Parties pursuant to licensing or distribution agreements or other agreements or collaborations entered into by either Party. Non-Confidential Information Notwithstanding the preceding provision, Confidential Information does not include: • Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; • Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; • Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and • Information that must be disclosed pursuant to court order or by law. Disclosure Notwithstanding the preceding provisions, Provider may publicly refer to Customer, orally and in writing, as a Customer of Provider. Any other reference to Customer by Provider may be made only pursuant to a written agreement between the parties. 12. CUSTOMER COVENANTS AND OBLIGATIONS Assistance Customer shall provide in a timely and professional manner, and at no cost to Provider, assistance, cooperation, complete and accurate information and data, equipment, access to applicable computer and telecommunications facilities, networks, firewalls, servers, programs, files, documentation, passwords, a suitable work environment, and other resources requested by Provider to enable it to perform the Services (collectively, “Assistance”). Provider shall not be liable for any deficiency in performing the Services if such deficiency results from Customer’s failure to provide full Assistance as required hereunder. Assistance includes, but is not limited to, designating a project manager or contact person to interface with Provider during the course of Services. Cooperation and Shared Responsibility Customer shall cooperate and have shared responsibility with Centre as reasonably necessary for the delivery of Products and performance of Services. These shared responsibilities include, but are not limited to the following: (i) providing Centre with access to all facilities, electricity, hardware, software, work space, and office support (e.g., telephone, internet access, etc.); (ii) ensuring that the premises are safe and commercially appropriate (e.g., free of any hazardous materials, installation of necessary power and climate control facilities); (iii) ensuring that Customer has obtained connection to and all necessary permissions or consents from any public or private network to which the Products are connected and any necessary permissions from government authorities and holders of real property rights; (iv) providing Centre with designated points of contact; (v) providing the minimum privileged account access level and password necessary to enable access to the Products; (vi) notifying Centre promptly of any changes made to such numbers or passwords; and (vii) promptly disabling privileged account access when no longer needed. In regards to Customer’s on premises computer, networking and storage hardware and/or software, and subject to Customer’s decision not to implement reasonable Centre written recommendations for adequate security controls, the Customer shall be responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up its data and files in accordance with good computing practices. All items to be provided by Customer are at Customer's expense. Software Licensing Unless specifically otherwise agreed to in an applicable Quote, Customer represents and warrants that Customer has title to or has a license or the right to use or modify the Software and has a license or right to permit Provider to use, access or modify any software that Customer has requested Provider to use, access or modify as part of the Services. It is the Customer’s responsibility to independently ensure that all software in use by Customer is properly licensed, and Customer agrees to maintain records of applicable licenses. Provider will not promote the use of, or knowingly support software which is not properly licensed by Customer. Assistance with software audits or licensing compliance matters are billable at Provider’s then current hourly rates. Unsupported Software Provider shall not be responsible or liable to Customer for any consequences from the use of software no longer under manufacturer product support or no longer supported by the software publisher (“Unsupported Software”). THEREFORE, CUSTOMER AGREES TO HOLD HARMLESS PROVIDER FROM ANY LOSS, INJURY OR DAMAGE TO CUSTOMER OR ANY HARDWARE, SOFTWARE, AND/OR COMPUTER DATA OF CUSTOMER CAUSED BY ANY USE OF UNSUPPORTED SOFTWARE. Provider Access Customer shall supply Provider necessary access to its personnel, appropriate documentation and records and facilities in order for Provider to timely perform the Services. Broadband Internet access must be provided. Provider must be provided with remote access (via VPN or other reasonable remote access) to covered equipment. Appropriate cabling to all covered computers and devices must be provided. Appropriate air conditioning and ventilation for all covered computers and devices must be provided, in order to maintain temperature and air quality as specified by the applicable hardware manufacturers. Power surge protection must be provided for all covered computers and devices. Provider must be provided with convenient and timely access to the Equipment covered under this Agreement, adequate working space and facilities within a reasonable distance of the equipment, and access to and use of all information, internal resources, and facilities determined necessary to service the equipment. Customer may be required to conduct preliminary diagnostic steps or provide additional information related to a support request, prior to a technician being dispatched to Customer's facility. Customer must agree to assign one employee to be liaison or contact person to Provider in order to make communications between both parties effective. Third-Party Obligations Customer is responsible for any third-party vendor or service provider charges and to ensure Provider arranges for disconnection or termination. Customer is responsible for payment of charges related to the disconnection or termination of any related services with your current carrier(s) or service provider(s). Provider is not responsible for any act or omissions for third-party providers. Provider does not warrant beyond any warranty of any third-party services. In the event that a claim arises from any act or omission of a third- party provider, you agree that your sole remedy will be against that third- party. Page 35 Item 4. MSA V1.27 REVISED 9/13/2021 Page 6 of 10 centretechnologies.com Appropriate Safeguards, Obligations, and Malicious Events It is Customer’s sole responsibility to implement appropriate physical, administrative, and technical safeguards that are not identified in the Quote. Wireless data traffic in the environment must be securely encrypted. Provider is not responsible for the security of your network and circuits from third parties, or for any damages that may result from any unauthorized access to your network. You have an affirmative obligation to protect your network environment, and to train your employees for spam, malware, virus protection, and prevention from criminal acts of third parties. Provider is not responsible for criminal acts of third parties, including but not limited to hackers, phishers, crypto-locker, and any network environment subject to ransom. You agree to pay ransom or hold harmless provider for any activity affecting network security on your environment. If network security is included within the Services to be provided by Provider, Provider agrees to use commercially reasonable efforts to protect Customer’s network from malicious attack by computer viruses, computer worms and/or computer hackers (collectively, “malicious activities”). However, Customer understands that no security system can guaranty complete protection against malicious activities as such attacks often involve the intentional action by third parties to invade and injure computer systems. THEREFORE, CUSTOMER AGREES TO HOLD HARMLESS PROVIDER FROM ANY LOSS, INJURY OR DAMAGE TO CUSTOMER OR ANY HARDWARE, SOFTWARE, AND/OR COMPUTER DATA OF CUSTOMER CAUSED BY SUCH MALICIOUS ACTIVITIES. Emergency Recovery and Restoration Services In the event of a cyberattack, including but not limited to a ransomware, Centre will provide a high-level assessment and a no-cost estimate to the Customer for any Product and/or Services, Project Service(s) and/or Supplemental Service(s) related to the recovery and restoration of Customer’s infrastructure. Any and all costs associated with the recovery and/or restoration of the Customer’s infrastructure are the responsibility of the Customer. Theft of Service Customer shall notify us immediately, in writing, by electronic mail or by calling the Provider customer support line, if Customer becomes aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges to billed to you. Customer will be liable for all use of the Service using Equipment stolen from you and any and all stolen Service or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any Equipment. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of your internal/corporate procedures. Provider will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your service. THEREFORE, CUSTOMER AGREES TO HOLD HARMLESS PROVIDER FROM ANY LOSS, INJURY OR DAMAGE TO CUSTOMER OR ANY THEFT OF SERVICE AND OR CUSTOMER CAUSE BY SUCH THEFT OF SERVICE. Customer Equipment Customer Equipment must be maintained under manufactures warranty or maintenance contract or is in working order. Provider is not responsible for Customer equipment that is not maintained under manufacturer’s warranty or maintenance contract or that is otherwise out of order. All fees, warranties, and liabilities against Provider assumes equipment is under manufactures warranty or maintenance contracts or is in working order. Provider in its reasonable opinion and supported by manufacturer information, may designate certain equipment as obsolete or defective, and therefore exclude it from coverage under this Agreement. Independent Backup Unless specifically otherwise agreed to in an applicable Quote, Customer must maintain an independent backup of all files that are sent to either the cloud or a data backup service. An “Independent Backup” means out-of-band or not tied to the network. A backup solution must be in place, with backup copies stored off-site. Unless specifically otherwise agreed to in an applicable Quote, it is the Customer’s responsibility to verify that backups are made regularly, as well as the integrity of the backups. Provider shall not be held liable in the event of data loss, backup software failure, backup selection, backup hardware failure, backup media failure, or backup system failure unless Provider was tasked to perform the backups. Customer will be solely responsible for all lost data if it has not maintained an adequate Independent Backup. Third-Party Criminal Activity Provider is not responsible for criminal acts of third parties, including but not limited to intrusions or unauthorized access of any kind, hackers, phishers, crypto-locker, and any network environment subject to ransom. Any costs or fees to rebuild or service machines are provided and sold separately by Provider. Viruses Anti-virus solution must be in place, updated, with valid update subscription. Provider is not responsible for any harm that may be cause by Customer’s access to third party application programming interfaces or the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, Trojan horses, worms, viruses and similar mechanisms. Any costs or fees to rebuild or service machines are provided and sold separately by Provider. Customer Data Security & Privacy In addition to its other confidentiality obligations under an applicable Service Attachment, Provider shall not use, edit or disclose to any party other than Customer any Customer Data (defined below), except as otherwise requested by Customer, or required by court order or applicable law. For purposes of this provision, all data stored on the virtualized machines assigned to Customer, including locally stored personal data of individual employees, will be considered Customer Data by Provider. As between Provider and Customer, all Customer Data is owned exclusively by Customer. Customer Data constitutes Confidential Information subject to the terms of the MSA. Provider may access Customer's User accounts, including Customer Data, solely to respond to service or technical problems or otherwise at Customer's request. Safety and Security Recommendations Provider may make recommendations regarding safety and security related to Customer’s network and practices. If Customer fails to adopt or implement the recommended protocols, Customer is responsible for any and all damages related to regulatory, security, privacy, or data protection, including but not limited to fines, data breach notification, malware or ransomware costs, restoration, forensic investigation, restoring backups, or any other costs or damages related to Customer’s refusal to implement the recommended protocols. 13. DATA PROTECTION AND PRIVACY Data Protection The Parties agree that any electronic data or personal information submitted by Customer to Provider as a part of the Services, Supplemental Services, and/or Project Services (“Data”) remains the property of Customer and/or its end user or other third party. The Parties agree that both will comply with all applicable United States data privacy and security laws that the Services are subject to and as stated herein. The Parties will develop and implement a risk-based security program that includes appropriate administrative, physical and technical safeguards to protect Data, defined below, that are no less rigorous than accepted industry practices and will ensure that all such safeguards, including the manner in which Data is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable data protection and data security laws and Page 36 Item 4. MSA V1.27 REVISED 9/13/2021 Page 7 of 10 centretechnologies.com regulations, as well as the terms and conditions of this Agreement, each Service Attachment and the DPA. The terms set forth in this DATA PROTECTION AND PRIVACY section supersede any and all provisions or agreements relating to data security and/or offshore activities, whether written or oral, regardless of where they might be contained. Unless otherwise stated, the terms herein apply to data security and/or offshore activities maintained and managed by Provider. Provider will implement and maintain throughout the term of this Agreement minimum security requirements materially as set forth in the SOC 2 Report for Provider. Customer and Provider must comply with all laws and regulations applicable to its use of the Services, Project Service(s) and/or Supplemental Service(s) including laws related to biometric data, confidentiality of communications, and data protection requirements. Customer is responsible for determining whether the Services, Project Service(s) and/or Supplemental Service(s) are appropriate for storage and processing of information subject to any specific law or regulation and for using the Services, Project Service(s) and/or Supplemental Service(s) in a manner consistent with Customer’s legal and regulatory obligations. Customer is responsible for responding to any request from a third-party regarding Customer’s use of a Service, Project Service(s) and/or Supplemental Service(s). Provider does not determine whether Customer’s data includes information subject to any specific law or regulation. All security incidents are subject to the relevant law or regulations applicable to its use for the Services listed below. Data Processing Agreement To the extent applicable, (i) the Parties are required to comply with the California Consumer Protection Act (“CCPA”), Gramm Leach Bliley Act (“GLBA”), Health Insurance Portability and Accountability Act (“HIPAA”), similar federal or state data privacy and/or data protection regulation (“Laws”), and (ii) Customer must enter into an applicable agreement with Provider in the form of a data processing agreement (the “Data Processing Agreement” or “DPA”). For clarity, “Laws” will include any rules, regulations, codes, orders, decrees, and rulings thereunder of any federal, state, regional, county, city, municipal or local government of the United States or any department, agency, bureau or other administrative or regulatory body obtaining authority from any of the foregoing that relate to privacy, data protection or data transfer issues, including all implementing laws, ordinances, regulations, or guidelines including, without limitation the Financial Modernization Act (Gramm-Leach-Bliley Act) of 2000, as amended; the Identity Theft Red Flag Rules under the Fair and Accurate Credit Transactions Act of 2003; the Privacy Act of 1974, as amended; the Privacy Protection Act of 1980, as amended; the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as amended; the Health Information Technology for Economic and Clinical Health (HITECH) Act; the California Consumer Privacy Act of 2018, the California Privacy Rights Act and all applicable state privacy, security, data protection and destruction, and data breach notification statutes and regulations, including without limitation, the National Institute of Standards and Technology (NIST) Special Publication 800-53B Control Baselines for Information Systems and Organizations and the Centre for Internet Security (CIS) Controls for WISP Guidance. 14. PROVIDER REPRESENTATIONS AND SERVICE WARRANTY Provider Representations Provider monitors the availability and performance of its internal firewall and network security. This process involves monitoring for intrusion attempts and potential security breaches. In an attempt to minimize a possible compromise of security, the Services and applications exposed to the Internet on Provider's servers are periodically updated with available critical security hotfixes and critical security patches. As appropriate, Provider proactively evaluates, investigates and reports security-related incidents to the appropriate authorities. Provider also monitors and proactively manages the anti-virus protection of its servers and applications using industry-recognized anti-virus software systems. Service Warranty We warrant that the Services will be performed in a professional and workmanlike manner and as described in an applicable Service Attachment. All Services will be deemed to be accepted unless Customer notifies Provider in writing within ten (10) working days after performance that the Services did not conform to this warranty. Provider promptly will correct any non- conformities and will notify Customer in writing that the non-conformities have been corrected. 15. DISCLAIMER OF WARRANTY PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT PROVIDER WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICE WILL BE COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY. PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. PROVIDER SHALL HAVE NO OBLIGATION WITH RESPECT TO A WARRANTY CLAIM (i) IF NOTIFIED OF SUCH A CLAIM AFTER THE WARRANTY PERIOD OR (ii) IF THE CLAIM IS THE RESULT OF THIRD-PARTY HARDWARE OR SOFTWARE FAILURES, OR THE ACTIONS OF CUSTOMER OR A THIRD PARTY. FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF PROVIDER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND PROVIDER WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION. TO THE EXTENT NOT PROHIBITED BY LAW, CUSTOMER ACKNOWLEDGES THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS BY THE PROVIDER OR ANY THIRD- PARTY VENDORS’ INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THAT THOSE THIRD-PARTY VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE SERVICES. PROVIDER MAY LINK TO OR OFFER THIRD-PARTY SERVICES FOR RESALE. ANY PURCHASE, ENABLING, OR ENGAGEMENT OF THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO IMPLEMENTATION, CUSTOMIZATION, CONSULTING SERVICES, E-MAIL, WEB HOSTING, SERVER HOSTING, PHONE SERVICE, AND ANY EXCHANGE OF DATA BETWEEN YOU AND ANY THIRD- PARTY SERVICE, IS SOLELY BETWEEN YOU AND THE APPLICABLE THIRD- PARTY SERVICE PROVIDER AND IS SUBJECT TO THE TERMS AND CONDITIONS OF SUCH THIRD-PARTY PROVIDER. PROVIVDER DOES NOT WARRANT THIRD- PARTY SERVICES AND IS NOT RESPONSIBLE OR LIABLE FOR SUCH SERVICES OR ANY LOSSES OR ISSUES THAT RESULT AS YOUR USE OF SUCH SERVICES. IF YOU PURCHASE, ENABLE OR ENGAGE ANY THIRD-PARTY SERVICE FOR USE IN CONNECTION WITH THE SERVICES, YOU ACKNOWLEDGE THAT COMPANY MAY ALLOW PROVIDERS OF THOSE THIRD-PARTY SERVICES TO ACCESS YOUR DATA USED IN CONNECTION WITH THE SERVICES AS REQUIRED FOR THE INTEROPERATION OF SUCH THIRD-PARTY SERVICES WITH THE SERVICES. YOU REPRESENT AND WARRANT THAT YOUR USE OF ANY THIRD-PARTY SERVICE SIGNIFIES YOUR INDEPENDENT CONSENT TO THE ACCESS AND USE OF YOUR DATA BY THE THIRD-PARTY SERVICE PROVIDER, AND THAT SUCH CONSENT, USE, AND ACCESS IS OUTSIDE OF PROVIDERS’S CONTROL. COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DISCLOSURE, MODIFICATION OR DELETION OF DATA RESULTING FROM ANY SUCH ACCESS BY THIRD-PARTY SERVICE PROVIDERS. Compliance with Laws The Parties shall comply with all relevant laws applicable to Customer or in Customer’s industry. Page 37 Item 4. MSA V1.27 REVISED 9/13/2021 Page 8 of 10 centretechnologies.com 16. NON -COMPETITION AND NON -SOLICITATION You shall not solicit any Provider employee with whom you have had direct contact in connection with the Services for employment with you or with any other person during the Term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, you shall not be precluded from (a) hiring an employee of Provider who independently approaches you, or (b) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. You acknowledge that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach. Therefore, in the event of a violation of this provision, in addition to any other right Provider may have at law or in equity, you shall make a one-time payment to Provider in the amount of fifty percent (50%) of the affected employee's base salary for one year, which accurately reflects the reasonable value of the employees’ time and costs. We agree that such amount is not intended as a penalty and is reasonably calculated based upon the projected costs the injured party would incur to identify, recruit, hire and train suitable replacements for such personnel. 17. DISPUTE RESOLUTION Arbitration Procedures Each of us shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement within sixty (60) days of the date any such dispute arises. Failing such amicable settlement, any such dispute, including claim related to the existence, validity, interpretation, performance, termination or breach of this Agreement, is to be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”), https://www.adr.org. The arbitration will be conducted in English and will have one (1) arbitrator. The Arbitrator will not have the authority to award punitive damages to either party. Each of us will bear our own expenses, but we shall share equally the expenses of the Arbitration Tribunal and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Harris County, Texas, or at another location upon which we may agree. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for your failure to pay for Services may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties. Period for Bringing Claim No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim. Continued Service Unless Provider is bringing an action for your failure to make payments for Services not otherwise in dispute, we will continue to provide Services under this Agreement, and you shall continue to make payments to us, in accordance with this Agreement, during the period in which the parties seek resolution of the dispute. Attorneys’ Fees In the event that there is any dispute, difference, or claim related to this Agreement that is resolved either through arbitration or through litigation, if Provider is prevailing party in such dispute we will be entitled to an award of reasonable attorneys’ fees incurred while defending or prosecuting such dispute, difference, or claim. 18. INDEMNIFICATION By Customer Customer shall defend, indemnify, and hold harmless Provider against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that: • Provider’s use, access or modifications of any software that you have requested that we use, access or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right; • Any claim related to software licensing and software licensing compliance; and/or • Any claim related to non-compliance with Section 12, herein, in which Customer’s use of the Services violates any law or standard. You further shall pay any judgments or settlements based on any such claims. By Provider Subject to the limitation of liability set forth in the section titled LIMITATION OF LIABILITY, Provider agrees to indemnify and hold harmless Customer from and against all loss, liability, and Provider’s grossly negligent act, error, or omissions. 19. LIMITATION OF LIABILITY EXCEPT AS MAY BE DESCRIBED IN AN APPLICABLE SERVICE DESCRIPTION OR IN A SERVICE AGREEMENT FOR PROJECT SERVICES, PROVIDER’ LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER AND WILL NOT EXCEED THE GREATER OF (1) THE PROCEEDS OF ANY PROVIDER’S PROFESSIONAL LIABILITY INSURANCE MAINTAINED BY PROVIDER UNDER ITS APPLICABLE INSURANCE POLICIES, OR (2) THE AMOUNTS PAID BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT AND ALL SERVICE DESCRIPTIONS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, PROVIDER IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A DECLARATORY JUDGMENT ACTION. IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, LOSS FROM INTERRUPTION OF BUSINESS, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, THE SERVICES NOT MEETING YOUR REQUIREMENTS OR EXPECTATIONS, OMISSIONS, TRANSLATIONS AND SYSTEM WORDINGS, FUNCTIONALITY OF FILTERS, MIGRATION ISSUES, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, HARDWARE FAILURES, UNAVAILABILITY OF BACKUPS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, SECURITY BREACH, OR THIRD-PARTY SEVICE FAILURES, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE. PROVIDER WILL NOT BE LIABLE FOR ANY KIND OF AUTHORIZED ACCESS OR ANY HARM THAT MAY BE CAUSED BY YOUR ACCESS TO THIRD PARTY APPLICATION PROGRAMMING INTERFACES OR THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE OR SIMILAR OCCURRENCES, INCLUDING WITHOUT LIMITATION, DISABLING DEVICES, DROP DEAD DEVICES, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS. YOU AGREE THAT THE TOTAL LIABILITY OF PROVIDER AND YOUR SOLE REMEDY FOR ANY CLAIMS REGARDING THE SERVICES UNDER THIS AGREEMENT, INCLUDING ANY SCHEDULE, OR OTHERWISE IS LIMITED TO PROCEEDS IN SECTION APPLICABLE INSURANCE COVERAGE. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT FOR THE CONSIDERATION GIVEN BY CUSTOMER BUT FOR THE LIMITATIONS OF LIABILITY AND DAMAGES CONTAINED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE RIGHT TO RECEIVE THE SERVICES IN EXCHANGE FOR THE LIMITATIONS IN THIS AGREEMENT AND THE OTHER CONSIDERATION GIVEN BY CUSTOMER FOR THE SERVICES CONSTITUTES A BARGAIN THAT IS FAIR AND REASONABLE. Page 38 Item 4. MSA V1.27 REVISED 9/13/2021 Page 9 of 10 centretechnologies.com 20. INSURANCE Customer Obligations: Customer shall maintain a minimum of One Million Dollars (US $1,000,000) in insurance coverage through its respective carriers. Such insurance must include, at a minimum, commercial general liability, workers compensation coverage, and first party cyber liability. Provider Obligations: Provider agrees to maintain during the Term, professional liability insurance including errors and omissions with aggregate limits of at least One Million Dollars (US $1,000,000). Customer’s insurance shall be primary over Provider’s insurance. Customer agrees to waive and to require its insurers to waive any rights of subrogation or recovery they may have against Provider, its agents, officers, directors and employees. 21. GENERAL Notices Except as otherwise provided under this Agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the applicable Quote. The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section. Force Majeure We will not be liable for any failure of performance of the Services due to causes beyond our reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies (including pandemics), civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over Provider or the Services provided hereunder (the “Affected Performance”). Any party whose performance is so affected shall give written notice to the other party describing the Affected Performance. The parties promptly shall confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such condition. If the delay caused by the force majeure event lasts for a period of more than thirty (30) days, the parties shall attempt to negotiate an equitable modification to the Agreement pertaining to the Affected Performance. If the parties are unable to agree upon an equitable modification, then either party may serve thirty (30) days’ written notice of termination on the other party with respect only to the portion of the Agreement relating to the Affected Performance. Customer shall pay Provider for that portion of the Affected Performance that was completed or that was in the process of being completed through the effective termination date of the Affected Performance. Waiver No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof. Assignment Neither party may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of the other party. However, either party may assign or otherwise transfer its rights, interests and obligations under this Agreement without your consent in the event of a change in control of 50% or more of the equity of Provider, the sale of substantially all the assets of Provider, or the restructuring or reorganization of Provider or its affiliate entities. If Customer transfer its rights, interests and obligations under this Agreement with Provider consent in the event of a change in control of 50% or more of the equity of Customer, the sale of substantially all the assets of Customer, or the restructuring or reorganization of Customer or its affiliate entities, this Agreement shall transfer to the new party in control of Customer, including all benefits and liabilities. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Services, and no such third-party contract is to be interpreted as an assignment of this Agreement. However, we will use commercially reasonable efforts to ensure that any and all such third parties abide by all of the terms of this Agreement, and, except as otherwise agreed, we will remain solely responsible for the fulfillment of all of our obligations under this Agreement. This Agreement is binding upon the Parties, their successors and permitted assigns. Marketing Customer hereby grants Provider the right to reference Customer’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new Customers, so as to identify Customer as a customer of Provider for marketing purposes and for Provider’s benefit. Such information is not considered Confidential Information subject to non- disclosure. Notifications and Alerts Customer hereby grants Provider the right to utilize Customer information to send alerts, notifications, news, and general correspondence to Customer to provide the Services. Survival Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this Agreement. Amendment Provider may, from time to time, in its sole discretion, and for any reason, amend the Quote, the Master Services Agreement and any Service Attachments posted on our web page. However, the Master Services Agreement and Service Attachments in effect as of the date that you sign the Quote are the agreements that will govern our relationship until this Agreement expires or one of us terminates it. This Agreement may be modified or amended only by a writing signed by both parties. Governing Law This Agreement is to be governed by and construed in accordance with the laws of the State of Texas. Severability If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision. Third-Party Beneficiaries This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein is to be construed to give any person or entity, other than the Parties hereto and their respective successors and permitted assigns, any legal or equitable rights hereunder. Counterparts; Electronic Signatures This agreement may be executed in separate counterparts, each of which will be deemed an original but, all of which together, will constitute one and the same instrument. The parties agree that this Agreement may be executed by providing an electronic signature of this Agreement under the terms of the Electronic Signatures Act, 15 U.S.C. § 7001 et. seq., or the Texas Uniform Electronic Signatures Act, Tex. Bus. & Com. Code §322 et seq. and may not be denied legal effect solely because it is in electronic form or permits the completion of the business transaction referenced herein electronically instead of in person. Electronic signatures will be treated as acceptance of the Agreement. An executed copy of this Agreement will be retained by Provider in electronic record form and can be reproduced for Customer upon request. Page 39 Item 4. MSA V1.27 REVISED 9/13/2021 Page 10 of 10 centretechnologies.com Entire Agreement This Master Services Agreement, the Quote, the Service Attachments, and any other attachments thereto (collectively, the “Agreement”) set forth our entire understanding with respect to the subject matter hereof and are binding upon both parties, their successors, and their permitted assigns, in accordance with the terms of the Agreement. There are no understandings, representations or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party. The remainder of this page is intentionally left blank. Page 40 Item 4. Page 1 of 2 To: Mayor and Town Council From: Stuart Blasingame, Fire Chief Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – October 26, 2021 Agenda Item: Consider and act upon approving the purchase of 15 SCBA’s and 32 air cylinders from Municipal Emergency Services through the Texas Local Government Purchasing Cooperative. Description of Agenda Item: This purchase will replace 15 self-contained breathing apparatus (SCBA) and 32 air cylinders that are at the end of their life cycle. This will be purchased through the Texas Local Government Purchasing Cooperative (Buyboard). The cost for the SCBA’s is $112,978.25 and the cost of the air-cylinders is $37,200.00, for a total expenditure of $150,178.25. Local governments are authorized by the Interlocal Cooperation Act, V.T.C.A. Government Code, Chapter 791, to enter into joint contracts and agreements for the performance of governmental functions and services, including administrative functions normally associated with the operation of government (such as purchasing necessary materials and equipment). The Town of Prosper entered into an interlocal participation agreement in June 2005, providing the Town’s participation in the Texas Local Government Purchasing Cooperative. Participation in the cooperative purchasing program allows our local government to purchase goods and services from the cooperative’s online purchasing system, BuyBoard, while satisfying all competitive bidding requirements. Budget Impact: This was an approved FY 2021-2022 budget item. However, additional funding of $6,483.25 was required after final quotes were obtained and will be funded from the same account. This item will be funded from account No. 100-5630-30-01. Attached Documents: 1. Quote for SCBA’s Air-Pak X3 2. Quote for SCBA Air-cylinders, 45 MIN, 4500 Prosper is a place where everyone matters. FIRE DEPARTMENT Page 41 Item 5. Page 2 of 2 Town Staff Recommendation: Staff recommends approving the purchase of 15 SCBA’s and 32 air cylinders from Municipal Emergency Services through the Texas Local Government Purchasing Cooperative. Proposed Motion: I move to approve the purchase of 15 SCBA’s and 32 air cylinders from Municipal Emergency Services through the Texas Local Government Purchasing Cooperative. Page 42 Item 5. Quote Date 09/28/2021 Quote #QT1511093 Bill To Town of Prosper P.O. BOX 307 PROSPER TX 75078 United States Ship To Chris Hall PROSPER FIRE DEPARTMENT 1500 East 1st Street Prosper TX 75078 United States Expires 11/05/2021 Sales Rep Cousins, Grant PO # Shipping Method FedEx Ground MES - Texas 600 Century Plaza Dr. Suite C-160 Houston, TX 77073 Item X8814025301A03 8005197 201088-03 201051-01 8006951 Alt. Item #Units Description Air-Pak X3 Pro SCBA (2018 Edition) with CGA Cylinder Connection, 4.5, Standard Harness with Parachute Buckles, Standard Belt with No Escape Rope, E-Z Flo Regulator with Quick Connect Hose (Rectus fittings), Universal EBSS Accessory Hose, No Airline Connection, Spare Harness Kit, SEMS II Pro, No Case, Packaged 1 SCBA Per Box (Black) Scott Connect Monitor Software - includes 10 downloads SEMS II, USB GATEWAY REPEATER ASSY Monitor for X3 PRO QTY 15 1 1 1 1 Unit Sales Pri... 7,305.00 0.00 1,763.15 1,640.10 0.00 Amount 109,575.00 0.00 1,763.15 1,640.10 0.00 Subtotal Shipping Cost (FedEx Ground) Total 112,978.25 0.00 $112,978.25 Chris Hall 469-422-3698 Buyboard Contract: 603-20 QT1511093 This Quotation is subject to any applicable sales tax and shipping & handling charges that may apply. Tax and shipping charges are considered estimated and will be recalculated at the time of shipment to ensure they take into account the most current local tax information. All returns must be processed within 30 days of receipt and require a return authorization number and are subject to a restocking fee. Custom orders are not returnable. Effective tax rate will be applicable at the time of invoice. Page 43 Item 5. Quote Date 09/28/2021 Quote #QT1511239 Bill To Town of Prosper P.O. BOX 307 PROSPER TX 75078 United States Ship To ATTN: ACCOUNTS PAYABLE PROSPER FIRE DEPARTMENT 1500 East 1st Street Prosper TX 75078 United States Expires 11/01/2021 Sales Rep Cousins, Grant PO # Shipping Method FedEx Ground MES - Texas 600 Century Plaza Dr. Suite C-160 Houston, TX 77073 Item 804722-01 Alt. Item #Units Description CYL&VLV ASSY,CARB,45MIN,4500 QTY 32 Unit Sales Pri... 1,162.50 Amount 37,200.00 Subtotal Shipping Cost (FedEx Ground) Total 37,200.00 0.00 $37,200.00 Chris Hall 469-422-3698 Buyboard Contract: 603-20 QT1511239 This Quotation is subject to any applicable sales tax and shipping & handling charges that may apply. Tax and shipping charges are considered estimated and will be recalculated at the time of shipment to ensure they take into account the most current local tax information. All returns must be processed within 30 days of receipt and require a return authorization number and are subject to a restocking fee. Custom orders are not returnable. Effective tax rate will be applicable at the time of invoice. Page 44 Item 5. Page 1 of 2 To: Mayor and Town Council From: Stuart Blasingame, Fire Chief Through: Harlan Jefferson, Town Manager Re: Town Council Meeting – October 26, 2021 Agenda Item: Consider and act upon authorizing the Town Manager to execute an agreement between Flex Financial, a division of Stryker Sales, LLC, a sole source provider, and the Town of Prosper, for a lease program to replace Stryker medical equipment. Description of Agenda Item: The fire department has chosen Stryker Medical Devices based on the performance, quality, and features of their products. This agreement is for a 7-year lease that replaces all of the fire department current Stryker medical devices (Lifepak 15 Cardiac Monitors/Defibrillators, Stretchers, LUCAS Chest Compression Devices, Stair Chairs) with new devices. The manufacturer has a 7-year recommended usable/maintainable life span on these products. This proposal removes all older equipment already on a replacement schedule, and immediately replaces with new versions of each that would be in service for a period of 7-years. All maintenance, repairs and replacements during that 7-years are included in the recurring contractual price. This purchase falls within the definition of a procurement that is available from only one source (Chapter 252 of the Local Government Code) and is exempt from competitive bidding requirements. Stryker sales, LLC is the manufacturer and sole source provider of all products and repair/replacement parts. Budget Impact: This was an approved item with the adoption of the FY 2021-2022 budget. The annual lease payment will be $66,394.56. This item will be funded from account No.100-5440-30-01. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has reviewed the contract as to form and legality. Attached Documents: 1. Stryker Lease Agreement Prosper is a place where everyone matters. FIRE DEPARTMENT Page 45 Item 6. Page 2 of 2 2. 2021 Power-PRO XT Sole Source Letter 3. 2021 Power-Load Sole Source Letter 4. 2021 Emergency Care Parts and Service Letter 5. 2021 Stair-PRO Sole Source Letter 6. 2021 Treatment Sole Source Letter Town Staff Recommendation: Town staff recommends authorizing the Town Manager to execute an agreement between Flex Financial, a division of Stryker Sales, LLC, a sole source provider, and the Town of Prosper, for a lease program to replace Stryker medical equipment. Proposed Motion: I move to authorize the Town Manager to execute an agreement between Flex Financial, a division of Stryker Sales, LLC., a sole source provider, and the Town of Prosper, for a lease program to replace Stryker medical equipment. Page 46 Item 6. Flex Financial, a division of Stryker Sales, LLC 1901 Romence Road Parkway Portage, MI 49002 t: 1-888-308-3146 f: 877-204-1332 www.stryker.com Date: October 7, 2021 RE: Reference no: 0110131990 Town of Prosper PO BOX 307 PROSPER, Texas 75078 Thank you for choosing Stryker for your equipment needs. Enclosed please find the documents necessary to enter into the arrangement. Once all of the documents are completed, properly executed and returned to us, we will issue an order for the equipment. PLEASE COMPLETE ALL ENCLOSED DOCUMENTS TO EXPEDITE THE SHIPMENT OF YOUR ORDER. Short Form Lease Agreement Exhibit A - Detail of Equipment Insurance Authorization and Verification State and Local Government Rider Addendum **Conditions of Approval: Insurance Authorization and Verification,State and Local Government Rider ,Valid Tax Exemption Certificate PLEASE PROVIDE THE FOLLOWING WITH THE COMPLETED DOCUMENTS: Federal tax ID number:____________________________ AP address:_______________________________ Purchase order number:____________________________ Contact name:_______________________________ Phone number:____________________________ Email address:_______________________________ Please fax completed documents to (877) 204-1332. Return original documents to 1901 Romence Road Parkway Portage, MI 49002 (using Fed-Ex Shipping ID# 612-309469) Your personal documentation specialist is Curtis Orr and can be reached at 269-389-1437 or by email curtis.orr@stryker.com for any questions regarding these documents. The proposal evidenced by these documents is valid through the last business day of October, 2021 Sincerely, Flex Financial, a division of Stryker Sales, LLC Notice: To help the government fight the funding of terrorism and money laundering activities, U.S. Federal law requires financial institutions to obtain, verify and record information that identifies each person (individuals or businesses) who opens an account. What this means for you: When you open an account or add any additional service, we will ask you for your name, address, federal employer identification number and other information that will allow us to identify you. We may also ask to see other identifying documents. For your records, the federal employer identification number for Flex Financial, a Division of Stryker Sales, LLC is 38-2902424. Agreement #: 0110131990 PO BOX 307, PROSPER TX 7507875-6000642 AP@prospertx.gov Accounts Payable 972-569-1017 Page 47 Item 6. Owner ("we" or "us") : Flex Financial, a division of Stryker Sales, LLC 1901 Romence Road Parkway Portage, MI 49002 Customer name and address ("You" and "Your"): Town of Prosper PO BOX 307 PROSPER, Texas 75078 Equipment location:1140 S TEEL PKWY, PROSPER, Texas 75078-1785 Supplier: Stryker Sales, LLC, 3800 E. Centre Avenue, Portage, MI 49002 Equipment description: (see attached Exhibit A which is a part of this Agreement.) Payment information # of lease payments Payment frequency Lease payment 7 Annual $66,394.56 (First payment due 30 days after Agreement is commenced), (plus applicable sales/use taxes - see "Taxes" section below) Terms of Agreement in months: 73 Equipment purchase option: $1 Buyout Option Equipment purchase option shall be FMV unless another option is stated above. Security First period Other Total payment deposit payment enclosed $0.00 + $0.00 + $ 0.00 = $ 0.00 1. Lease: You ("Customer") agree to lease from us ("Owner") the equipment (including software and/or software license fees ("Software"), if any, "Equipment") listed aboveand on any attached schedule in accordance with the terms of this Agreement (this "Agreement"). This Agreement starts on the day the Equipment is delivered to you ("Commencement Date") and continues for the number of months described above (the "Term"). The Lease Payments ("Payments") shall be payable beginning on the Commencement Date or any later date we designate and thereafter until all fully paid. Your obligations under this Agreement ("Obligations") are absolute, unconditional, and are not subject to cancellation, defense, recoupment, reduction, setoff or counterclaim. If a Payment is not made when due, you will pay us a late charge of 5% for each Payment or $10.00, whichever is greater. We may charge you a fee of $55.00 for any check that is returned. You authorize us to adjust the Payments at any time if taxes included in the Payments differ from our estimate. You agree that the Payments were calculated by us based, in part, on an interest rate equivalent as quoted on the Intercontinental Exchange website, at https://www.theice.com/marketdata/reports/ 180, under the USD Rates 1100 Series, that would have a repayment term equivalent to the Term (or an interpolated rate if a like-term is not available) as reasonably determined by us and in the event the Term of this Agreement starts more than 30 days after we send this Agreement to you, we may adjust the Payments once to compensate us, in good faith, for any increase in such rate. You shall be deemed to have accepted the Equipment for lease hereunder upon the date that is ten (10) days after it is shipped to you by the Supplier and, at our request, you shall confirm for us such acceptance. No acceptance of any item of Equipment may be revoked by you. 2. Title and laws: Unless you have a $1.00 purchase option, we own the Equipment and you have the right to use the Equipment during the Term, provided you comply withthe terms of this Agreement. If you have a $1.00 purchase option or this Agreement is deemed to be a security agreement, you grant us a security interest in the Equipment and all proceeds therefrom, and authorize us to file financing statements on your behalf. You agree not to permit any lien, claim or encumbrance to be placed upon the Equipment. You shall comply with all applicable laws, rules and regulations and manufacturer's specifications and instructions concerning the operation, ownership, use and/or possession of the Equipment. 3. Equipment use, maintenance and warranties: Any assignee (as defined below) is leasing the Equipment to you "AS-IS" AND MAKES NO WARRANTIES,EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. You must, at your cost, keep the Equipment in good working condition. If Payments include maintenance and/or service costs, you agree that (i) no Assignee is responsible to provide the maintenance or service, (ii) you will make all maintenance and service related claims to the persons providing the maintenance, service or warranty, and (iii) any maintenance, warranty or service claims will not impact your Obligations. The Equipment cannot be moved from the location above without our prior written consent.STRYKER SALES, LLC (INCLUDING FLEX FINANCIAL, A DIVISION OF STRYKER SALES, LLC) MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE REGARDING ANY EQUIPMENT. This Agreement will not impair any express warrantees or indemnifications or other obligations of Stryker Corporation or any of its subsidiaries to you regarding the Equipment and we hereby assign all of our rights in any Equipment warrantees to you. 4. Assignment: You agree not to transfer, sell, sublease, assign, pledge or encumber the Equipment or any rights under this Agreement without our prior written consent, which consent shall not be unreasonably withheld, and if you do, even with our consent, you will still be fully responsible for all your Obligations. You shall provide us with at least 45 days' prior written notice of any change to your principal place of business, organization or incorporation. You agree that we may, without notice to you, sell, assign, or transfer ("Transfer") this Agreement to a third party (each, an "Assignee"), and each Assignee will have our Transferred rights, but none of our obligations, and such rights will not be subject to any claims, recoupment, defenses, or setoffs that you may have against us or any supplier even though an Assignee may continue to bill and collect all of your Obligations in the name of "Flex Financial, a division of Stryker Sales, LLC". 5. Risk of loss, insurance and reimbursement: Effective upon delivery to you and continuing until the Equipment is returned to us in accordance with the terms of this Agreement, you shall bear all risk of Equipment loss or damage. If any such loss or damage occurs you still must satisfy all of your Obligations. You will (i) keep the Equipment insured against all risks of loss or damage for an amount equal to its replacement cost, (ii) list us as the insurance sole loss payee and (iii) give us written proof of the insurance. If you do not provide such insurance, we have the right, without obligation, to obtain such insurance and add an insurance fee (which may include a profit) to the amount due from you. You will obtain and maintain comprehensive public liability insurance naming us as an additional insured with coverages and amounts acceptable to us. To the extent not expressly prohibited by applicable law, you will reimburse and defend us, including each Assignee for and against any losses, injuries, damages, liabilities, expenses, claims or legal proceedings asserted against or incurred by us, including any Assignee, relating to the Equipment and which relate to or arise out of your act or omission or the act or omission of your agents or employees or others (excluding us) with access to the Equipment. The terms of this paragraph will continue after the termination, cancellation or expiration of this Agreement. 6. Taxes: You agree to pay when due, either directly or as reimbursement to us, all taxes (i.e., sales, use and personal property) and charges in connection with ownership and use of the Equipment. We may charge you a processing fee for administering property tax filings. To the extent not expressly prohibited by applicable law, you will indemnify us on an after-tax basis, on demand, against the loss or unavailability of any of our anticipated equipment ownership tax benefits caused by your act or omission. 7. Default remedies: You are in default under this Agreement if: a) you fail to pay a Payment or any other amount when due; or b) you breach any other obligation under this Agreement or any other agreement with us; or c) your principal owner or any guarantor of this Agreement dies; d) you or any guarantor dissolves, ceases to do business as a going concern, becomes insolvent, bankrupt, merges, or is sold; or e) You or any guarantor fails to pay any other material obligation owed to us or any of our affiliates. Upon default, we may: a) declare the entire balance of unpaid Payments for the full Term immediately due and payable; b) sue you for and receive the total amount due plus the Equipment's anticipated end-of-Term fair market value ("FMV") or fixed price purchase option (the "Residual") with future Payments and Residual discounted to the date of default at the lesser of (i) a per annum interest rate equivalent to that of a U.S. Treasury constant maturity obligation (as reported by the U.S. Treasury Department) that would have a repayment term equal to the remaining Term, all as reasonably determined by us; or (ii) 3% per annum, but only to the extent permitted by law; c) charge you interest on all monies due at the rate of 18% per year from the date of default until Short Form Lease Agreement No. 0110131990 Agreement #0110131990 Page 48 Item 6. paid; and/or d) require you to immediately return the Equipment to us or we may peaceably repossess it. Upon default, you will also pay all expenses including but not limited to reasonable attorneys fees, legal costs, cost of storage and shipping incurred by us in the enforcement and attempted enforcement of any remedies under this Agreement. Any return or repossession will not be considered an Agreement termination or cancellation. If the Equipment is returned or repossessed we may sell or re-rent the Equipment at terms we determine, at one or more public or private sales, with or without notice to you, and apply the net proceeds (after deducting any related expenses) to your obligations. You remain liable for any deficiency with any excess being retained by us. 8. End of term: You will give us at least 90 days but not more than 180 days written notice (to our address above) before the initial Term (or any renewal term) expiration of your intention to purchase or return the Equipment, whereupon you may: a) purchase all, but not less than all, of the Equipment as indicated above or b) return all of the Equipment in good working condition at your cost how, when and where we direct. Any FMV purchase option amount will be determined by us based on the Equipment's in place value. If you don't notify us, or if you don't a) purchase or b) return the Equipment as provided herein, this Agreement will automatically renew at the same Payment amount for consecutive 60-day periods. If any Software license ("License") included hereunder passes title to you, such title shall automatically, and without further action, hereby vest in us, and you hereby agree to relinquish any subsequent Software title, purchase or use right claim. If, in connection with our Software rights, licensor's consent is required, you will assist us in obtaining such consent. If the $1.00 Buyout is selected above, the first three sentences of this section 8 shall be void and upon expiration of the Term, you shall pay all amounts owed by you hereunder but unpaid as of such date plus $1.00 (and any applicable taxes). Any purchase of the Equipment by you pursuant to a purchase option or $1.00 Buyout shall be "AS IS, WHERE IS" without representation or warranty of any kind from us. 9. Miscellaneous: You acknowledge we have given you the Equipment supplier's name. We hereby notify you that you may have rights under the supplier's contract and may contact the supplier for a description of these rights. This Agreement shall be governed and construed in accordance with the laws of Michigan. You agree (i) to waive any and all rights and remedies granted to you under Uniform Commercial Code Sections 2A-508 through 2A-522, and (ii) that the Equipment will only be used for business purposes and not for personal, family or household use. This Agreement may be executed in counterparts and any facsimile, photographic or other electronic transmission and/or electronic signing of this Agreement by you and when manually countersigned by us or attached to our original signature counterpart and/or in our possession shall constitute the sole original chattel paper as defined in the UCC for all purposes and will be admissible as legal evidence thereof. No security interest in this Agreement can be perfected by possession of any counterpart other than the counterpart bearing our original signature. You agree not to raise as a defense to the enforcement of this Agreement or any related documents hereto the fact that such documents were executed by electronic means. We may inspect the Equipment during the Term. No failure to act shall be deemed a waiver of any rights hereunder. If you fail to pay (within thirty days of invoice date) any freight, sales tax or other amounts related to the Equipment which are not financed hereunder and are billed directly by us to you, such amounts shall be added to the Payments set forth above (plus interest or additional charges thereon) and you authorize us to adjust such Payments accordingly. If you are required to report the components of your payment obligations hereunder to certain state and/or federal agencies or public health coverage programs such as Medicare, Medicaid, SCHIP or others, and such amounts are not adequately disclosed in any attachment hereto, then Stryker Sales, LLC will, upon your written request, provide you with a detailed outline of the components of your payments which may include equipment, software, service and other related components. You acknowledge that you have not received any tax or accounting advice from us. You agree that you shall upon request from us, promptly provide to us a copy of your most recent annual financial statements and any of your other financial information (including interim financial statements) that we may request. You authorize us to share such information with our affiliates, subsidiaries and Assignees. This Agreement, any schedules hereto, any attachments to this Agreement or any schedules and any express warrantees made by Stryker Sales, LLC constitute the entire agreement between the parties hereto regarding the Equipment and its use and possession and supersede all prior agreements and discussions regarding the Equipment and any prior course of conduct. You waive all rights to any indirect, punitive, special or consequential damages in connection with the Equipment or this Agreement. There are no agreements, oral or written, between the parties which are contrary to the terms of this Agreement and such other documents. YOU AGREE THAT THIS IS A NON-CANCELLABLE AGREEMENT AND WAIVE TRIAL BY JURY. I CERTIFY THAT I AM AUTHORIZED TO SIGN THIS AGREEMENT FOR CUSTOMER Customer signature Signature: Date: Print name: Title: Accepted by Flex Financial, a division of Stryker Sales, LLC Signature:Date: Print name: Title: Short Form Lease Agreement No. 0110131990 Agreement #0110131990 Town Manager Harlan Jefferson Page 49 Item 6. Exhibit A to Short Form Lease Agreement Number 0110131990 Description of equipment Customer name: Town of Prosper Delivery address: 1140 S TEEL PKWY, PROSPER, Texas 75078-1785 Part I - Equipment/Service Coverage (if applicable) Model number Equipment description Quantity 99577-001957 LP15,EN,SPO2CO,3L/12L,EX,NIBP,CO2,TR,VR,BT,V4 5 41577-000288 LP15 ACCRY SHIPKIT,AHA,S 5 11141-000115 BASE- REDI-CHARGE BATTERY CHARGER 5 11140-000015 POWER CORD-MLD,DOM, STR RCPT 5 11140-000052 ADAPTER- REDI-CHARGE BATTERY CHARGER-LP15 5 21330-001176 BATTERY PACK-LI-ION 20 21300-008159 NIBP - TUBING, 6FT, BAYONET, UDI 5 11160-000011 NIBP CUFF-REUSEABLE,INFANT, BAYONET 5 11160-000013 NIBP CUFF-REUSEABLE,CHILD, BAYONET 5 11160-000015 NIBP CUFF-REUSEABLE,ADULT, BAYONET 12 11160-000017 NIBP CUFF-REUSEABLE,LARGE ADULT, BAYONET 12 11160-000019 NIBP CUFF- REUSEABLE,X-LARGE ADULT, BAYONET 7 11171-000082 RC-4, EMS, RAINBOW, PATIENT CABLE, 4FT, REF 4481 7 11171-000049 RAINBOW DCI ADT REUSABLESENSOR, REF 2696,ROHS 9 11171-000050 RAINBOW DCIP PED REUSABLE SENSOR, REF 2697,ROHS 7 11577-000002 KIT - CARRY BAG, MAIN BAG 9 11220-000028 TOP POUCH 9 11260-000039 KIT - CARRY BAG, REAR POUCH, 3RD EDITION 9 11577-000001 KIT - CARRY BAG, SHOULDER STRAP 2 99576-000063 LUCAS 3, 3.1, IN SHIPPING BOX, EN 4 11576-000060 LUCAS BATTERY CHARGER,MAINS PLUG,US-CAN-JA 4 11576-000071 LUCAS POWER SUPPLY WITHCORD,REDEL,CANADA,US 4 11576-000080 BATTERY,LUCAS,DARK GRAY 4 21576-000075 STRAP, STABILIZATION, 4-PACK, LUCAS 1 11576-000090 PLATE,BACK,ANTI SLIP,3PACK,SLIM BACK PLATE,LUCAS 2 11576-000047 LUCAS SUCTION CUP DISPOSABLE 12-PACK 1 11576-000094 CASE, CARRYING, HARD SHELL, LUCAS, STRYKER 1 11576-000088 PLATE, BACK, SLIM, LUCAS 1 6506000000 POWER PRO AMBULANCE COT 3 6252000000 STAIR PRO - MODEL 6252 4 99512-001263 LPCR2,WIFI,B,EN-US,DE,A, 1,ROS,MODET,ROS,FLX,CPR120,A104:0,P30:2,200J,300J, 360J,50J,75J,90J,ALRT,US 12 11250-000162 KIT, SHIPPING, TRAINER,LPCR2, ENGLISH 1 TR-15V1V2-LP15 TR-SYK LP15V1/V2 TO LP15 2 TR-LP15V4-LP15 TR-SYK LP15V4 TO LP15 3 TR-LP12M-LP15 TR-SYK LP 12M TO LP15 2 TIM-LUC2-LUC3 TR-SYK LUCAS 2 TO LUC 3.1 4 TR-SPCOT-PPXT TR-SYK PCOT TO PPXT 3 TR-LPCRP-LPCR2 TR-SYK LP CR PLUS TO CR2 4 Total equipment:$286,667.46 Service coverage: Model number Service coverage description Quantity Years 11600-000030 CODE-STAT 11 DATA REVIEWSEAT LICENSE 1 1.0 78000172 CODE-STAT Maint Subscrip 3 yrs 1 1.0 78000171 LIFENET Asset 6 7.0 78000008 LP15 On Site Prevent w batt 6 6.0 78000020 LUC On Site Prevent w batt 4 6.0 Agreement #: 0110131990 Page 50 Item 6. 71061PT PREVENT - Power Cot 3 5.0 73071CT PROTECT - Stair Chair 4 6.0 78000008 LP15 On Site Prevent w batt 1 7.0 Total service coverage: $120,014.36 Total Amount:$406,681.82 Customer signature Signature: Date: Print name: Title: Accepted by Flex Financial, a division of Stryker Sales, LLC Signature: Date: Print name: Title: Agreement #: 0110131990 Town Manager Harlan Jefferson Page 51 Item 6. Insurance Authorization and Verification Date: October 7, 2021 Short Form Lease Agreement Number 0110131990 To:Town of Prosper ("Customer") 1140 S TEEL PKWY PROSPER , Texas 75078-1785 From:Flex Financial, a division of Stryker Sales, LLC ("Creditor") 1901 Romence Road Parkway Portage, MI 49002 TO THE CUSTOMER: In connection with one or more financing arrangements, Creditor may require proof in the form of this document, executed by both Customer* and Customer's agent, that Customer's insurable interest in the financed property (the "Property") meets the requirements as follows, with coverage including, but not limited to, fire, extended coverage, vandalism, and theft: Creditor, and its successors and assigns shall be covered as both ADDITIONAL INSURED and LENDER'S LOSS PAYEE with regard to all equipment financed or acquired for use by policy holder through or from Creditor. Customer must carry GENERAL LIABILITY (and/or, for vehicles, Automobile Liability) in the amount of no less than $1,000,000.00 (one million dollars). Customer must carry PROPERTY Insurance (or, for vehicles, Physical Damage Insurance) in an amount no less than the 'Insurable Value' $286,667.46 with deductibles no more than $10,000.00. *PLEASE PROVIDE THE INSURANCE AGENTS INFORMATION REQUESTED BELOW & SIGN WHERE INDICATED By signing, Customer authorizes the Agent named below: 1) to complete and return this form as indicated; and 2) to endorse the policy and subsequent renewals to reflect the required coverage as outlined above. Insurance agency: Agent name: Address: Phone/fax: Email address: Town of Prosper Signature: Date: Print name: Title: *Customer: Creditor will fax the executed form to your insurance agency for endorsement. In Lieu of agent endorsement, Customer's agency may submit insurance cer tificates demonstrating compliance with all requirements. If fully executed form (or Customer-executed form plus certificates) is not provided within 15 days, we have the right but not the obligation to obtain such insurance at your expense. Should you have any questions please contact Curtis Orr at 269-389-1437. TO THE AGENT: In lieu of providing a certificate, please execute this form in the space below and promptly fax it to Creditor at 877-204-1332 . This fully endorsed form shall serve as proof that Customer's insurance meets the above requirements. Agent hereby verifies that the above requirements have been met in regard to the Property listed below. Agent signature Signature:Date: Print name: Title: Carrier name: Carrier policy number : Policy expiration date: Insurable value: $286,667.46 ATTACHED: PROPERTY DESCRIPTION FOR Short Form Lease Agreement Number 0110131990 See Exhibit A to Short Form Lease Agreement Number 0110131990 TOGETHER WITH ALL REPLACEMENTS, PARTS, REPAIRS, ADDITIONS, ACCESSIONS AND ACCESSORIES INCORPORATED THEREIN OR AFFIXED OR ATTACHED THERETO AND ANY AND ALL PROCEEDS OF THE FOREGOING, INCLUDING, WITHOUT LIMITATION, INSURANCE RECOVERIES. Agreement #: 0110131990 Town Manager Harlan Jefferson Texas Municipal League tmladmin@tml.org 1821 Rutherford Lane, Ste. 400, Austin, Texas 78754 Rodney Peters 800-537-6655 / Fax:512-491-2311 Page 52 Item 6. State and Local Government Customer Rider This State and Local Government Customer Rider (the "Rider") is an addition to and hereby made a part of Short Form Lease Agreement Number 0110131990 (the "Agreement") between Flex Financial, a division of Stryker Sales, LLC ("Owner") and Town of Prosper ("Customer") to be executed simultaneously herewith and to which this Rider is attached. Capitalized terms used but not defined in this Rider shall have the respective meanings provided in the Agreement. Owner and Customer agree as follows: 1. Customer represents and warrants to Owner that as of the date of, and throughout the Term of, the Agreement: (a) Customer is a political subdivision of the state or commonwealth in which it is located and is organized and existing under the constitution and laws of such state or commonwealth; (b) Customer has complied, and will comply, fully with all applicable laws, rules, ordinances, and regulations governing open meetings, public bidding and appropriations required in connection with the Agreement, the performance of its obligations under the Agreement and the acquisition and use of the Equipment; (c) The person(s) signing the Agreement and any other documents required to be delivered in connection with the Agreement (collectively, the "Documents") have the authority to do so, are acting with the full authorization of Customer's governing body, and hold the offices indicated below their signatures, each of which are genuine; (d) The Documents are and will remain valid, legal and binding agreements, and are and will remain enforceable against Customer in accordance with their terms; and (e) The Equipment is essential to the immediate performance of a governmental or proprietary function by Customer within the scope of its authority and will be used during the Term of the Agreement only by Customer and only to perform such function. Customer further represents and warrants to Owner that, as of the date each item of Equipment becomes subject to the Agreement and any applicable schedule, it has funds available to pay all Agreement payments payable thereunder until the end of Customer's then current fiscal year, and, in this regard and upon Owner's request, Customer shall deliver in a form acceptable to Owner a resolution enacted by Customer's governing body, authorizing the appropriation of funds for the payment of Customer's obligations under the Agreement during Customer's then current fiscal year. 2. To the extent permitted by applicable law, Customer agrees to take all necessary and timely action during the Agreement Term to obtain and maintain funds appropriations sufficient to satisfy its payment obligations under the Agreement (the "Obligations"), including, without limitation, providing for the Obligations in each budget submitted to obtain applicable appropriations, causing approval of such budget, and exhausting all available reviews and appeals if an appropriation sufficient to satisfy the Obligations is not made. 3. Notwithstanding anything to the contrary provided in the Agreement, if Customer does not appropriate funds sufficient to make all payments due during any fiscal year under the Agreement and Customer does not otherwise have funds available to lawfully pay the Agreement payments (a "Non-Appropriation Event"), and provided Customer is not in default of any of Customer's obligations under such Agreement as of the effective date of such termination, Customer may terminate such Agreement effective as of the end of Customer's last funded fiscal year ("Termination Date ") without liability for future monthly charges or the early termination charge under such Agreement, if any, by giving at least 60 days' prior written notice of termination ("Termination Notice") to Owner. 4. If Customer terminates the Agreement prior to the expiration of the end of the Agreement's initial (primary) term, or any extension or renewal thereof, as permitted under Section 3 above, Customer shall (i) on or before the Termination Date, at its expense, pack and insure the related Equipment and send it freight prepaid to a location designated by Owner in the contiguous 48 states of the United States and all Equipment upon its return to Owner shall be in the same condition and appearance as when delivered to Customer, excepting only reasonable wear and tear from proper use and all such Equipment shall be eligible for manufacturer's maintenance, (ii) provide in the Termination Notice a certification of a responsible official that a Non-Appropriation Event has occurred, (iii) deliver to Owner, upon request by Owner, an opinion of Customer's counsel (addressed to Owner) verifying that the Non-Appropriation Event as set forth in the Termination Notice has occurred, and (iv) pay Owner all sums payable to Owner under the Agreement up to and including the Termination Date. 5. Any provisions in this Rider that are in conflict with any applicable statute, law or rule shall be deemed omitted, modified or altered to the extent required to conform thereto, but the remaining provisions hereof shall remain enforceable as written. Customer signature Signature: Date: Print name: Title: Accepted by Flex Financial, a division of Stryker Sales, LLC Signature: Date: Print name: Title: Agreement #: 0110131990 Harlan Jefferson Town Manager Page 53 Item 6. ADDENDUM TO SHORT FORM LEASE AGREEMENT NO. 0110131990 BETWEEN FLEX FINANCIAL, A DIVISION OF STRYKER SALES, LLC AND TOWN OF PROSPER This Addendum is hereby made a part of the agreement described above (the "Agreement"). In the event of a conflict between the provisions of this Addendum and the provisions of the Agreement, the provisions of this Addendum shall control. The parties hereby agree as follows: 1. A new Section 10 is hereby added to the Agreement which shall read as follows: "10. Upgrade of Equipment. We will provide you with the opportunity to upgrade your Equipment within the same product class and with like technology, upon our offering such upgraded Equipment for general sale, under terms and conditions as mutually agreed upon at the time of upgrade, including the interest rate applicable to the upgrade transaction, amount financed, payment, term and tax rates. In the event you elect to upgrade your Equipment as herein provided, you shall give us 30 days' prior written notice. Any Equipment upgrade is subject to the credit approval at that time and subject to the execution of mutually acceptable documentation; it being agreed to and understood that this option will not change your obligations under the Agreement, unless and until new mutually acceptable documentation is executed." Customer signature Signature: Date: Print name: Title: Accepted by Flex Financial, a division of Stryker Sales, LLC Signature: Date: Print name: Title: Harlan Jefferson Town Manager Page 54 Item 6. Emergency Care 3800 E. Centre Avenue, Portage, MI 49002 USA | P +1 269 329 2100 | Toll-free +1 800 327 0770 | stryker.com Zac Jordan Sr. Manager – Brand Marketing Stryker Re: 2021 Power-PRO™ Cot sole source information To whom it may concern, Stryker certifies that we are the sole manufacturer of Stryker’s Power -PRO XT Cot (Model 6506). This correspondence is to inform you of the characteristics of the Power-PRO Cot . These characteristics can be broken down into two primary categories: qualifications and ease of use. Qualifications: • IPX6: The system is tested to withstand powerful water jets. • IEC 60601 -1 and IEC 60601-1-2: The Power-PRO XT Cot conforms to industry standards for mechanical and electrical safety for medical electrical devices, as well as electromagnetic compatibility and immunity. • BS EN-1789:2007, clause 4.5.9 when used with Power-LOAD Cot Fastener and X-Restraints: This is a European dynamic crash test which subjects a 50th percentile dummy to nominal 10g deceleration for a minimum of 50ms. Following the test there shall be no sharp edges. • Meets SAE J3027 dynamic crash test safety standards when used with Power-LOAD/Performance-LOAD Cot Fastener and X-Restraints. Ease of use: • The cot has a weight capacity of 700 lb. • When unloading with the manual release handle, the cot utilizes hydraulic dampening. Thus, the cot will not abruptly jar the operator or patient. • The battery is placed at the foot end of the stretcher. • The cot legs power-retract in 3.5 seconds which speeds load time. • The cot provides a load height of 36” and is operator adjustable to match the deck height of individual ambulances. • The foot -end of the cot provides lifting bars and operator controls at two different heights, thus providing optimal ergonomics to most operator heights. • The foot end of the cot contains a large battery indicator light which displays amber or green which indicates battery level. A warning is given by a flashing amber light, providing the operator the time to change the battery before full depletion of power. • The Model 6506 has 6” x 2” sealed casters and bearings. • The cot features a foot end mounted hourly usage meter. This tool can be used to determine the timing of preventative maintenance checks. • The cot features powder-coating of the aluminum frame (including the patient handling surfaces) and sealed caster bearings, thus reducing aluminum oxidation throughout the cot. • The cot is power washable. Please contact your Sales Representative for further information. Stryker or its affiliated entities own, use, or have applied for the following trademarks or service marks: Performance-LOAD , Power -LOAD , Power-PRO, Stryker. All other trademarks are trademarks of their respective owners or holders. The absence of a product, feature, or service name, or logo from this list does not constitute a waiver of Stryker’s trademark or other intellectual property rights concerning that name or logo. M0000001063 REV AA Copyright © 2021 Stryker Page 55 Item 6. Emergency Care 3800 E. Centre Avenue, Portage, MI 49002 USA | P +1 269 329 2100 | Toll-free +1 800 327 0770 | stryker.com Zac Jordan Sr. Manager – Brand Marketing Stryker Re: 2021 Power-LOAD® Cot Fastener sole source information To whom it may concern, Stryker certifies that we are the sole manufacturer of Stryker’s Power -LOAD Cot Fastener (Model 6390). This correspondence is to inform you of the characteristics of the Power-LOAD Cot Fastener. These characteristics can be broken down into two primary categories: qualifications and ease of use. Stryker ’s Power -LOAD (Model 6390) Cot Fastener is mounted within the patient compartment and is intended to aid in the loading/unloading of patients. Stryker’s Power -LOAD is the only powered cot fastening system that meets the following: Qualifications: • IPX6: The system is tested to withstand powerful water jets. • IEC 60601 -1 and IEC 60601-1-2: The Power-LOAD Cot Fastener conforms to industry standards for mechanical and electrical safety for medical electrical devices, as well as electromagnetic compatibility and immunity. • BS EN-1789:2007, clause 4.5.9 when used with Power-PRO Cot and X-Restraints: This is a European dynamic crash test which subjects a 50th percentile dummy to nominal 10g deceleration for a minimum of 50ms. Following the test there shall be no sharp edges. • SAE J3027 compliant when used with Stryker’s Power-PRO Cot and X-Restraints Ease of use: • Provides a linear guide for loading and unloading the cot. • Allows for remote actuation from Power-PRO foot end controls. • Engages to the cot during loading and unloading, providing a means of lifting and lowering. • Safe working load of 870 lb and capable of lifting patients weighing up to 700 lb. • Mount s inside the patient compartment to prevent environmental exposure and corrosion. • Power washable. • Capable of inductively charging Stryker’s SMRT Battery. Please contact your Sales Representative for further information. Stryker or its affiliated entities own, use, or have applied for the following trademarks or service marks: Power -LOAD, Power-PRO, SMRT, Stryker. All other trademarks are trademarks of their respective owners or holders. The absence of a product, feature, or service name, or logo from this list does not constitute a waiver of Stryker’s trademark or other intellectual property rights concerning that name or logo. M0000001062 REV AA Copyright © 2021 Stryker Page 56 Item 6. ProCare® Services 3800 E. Centre Ave. Portage MI 49002 USA 1-800-STRYKER stryker.com Stryker’s Medical division certifies that it is the original equipment manufacturer (OEM) or sole source distributor of parts for Stryker’s Emergency Care products. All parts are manufactured at Stryker or by an outside supplier specifically for Stryker. Stryker employs its own field service team (known as ProCare Services) to service its products. Stryker only uses OEM parts for repairs and has exclusive use of certain proprietary tools for diagnostics and repairs. Stryker Emergency Care products that require the use of such proprietary tools include, but are not limited to: • Power-LOAD fastener • Power-PRO cot •Stair-PRO • LUCAS 3 chest compression system • LIFEPAK 15 monitor/defibrillator • LIFEPAK 20e monitor/defibrillator • LIFEPAK 1000 defibrillator • LIFEPAK CR Plus / LIFEPAK CR2 defibrillator Tooling is calibrated, documented and controlled by Stryker’s home offices in Portage, MI, USA and Redmond, WA, USA. Calibration records and training records are available upon request. Service repairs are documented and reviewed by Stryker’s quality team. To help ensure Stryker's commitment to quality, Stryker tracks and trends its service to help ensure the highest level of product performance for its customers. Preventive maintenance (PM) and service history documentation is available upon request. Please contact your local Stryker representative with questions. Stryker Corporation or its divisions or other corporate affiliated entities own, use or have applied for the following tradem arks or service marks: CR Plus, LIFEPAK, LUCAS, Power-LOAD, Power-PRO, ProCare, Stryker. All other trademarks are trademarks of their respective owners or holder. Copyright © 2018 Stryker Mkt Lit-1630 03 JUL 2018 Rev D To: Whom it may concern Subject: Emergency Care Parts and Service Date: June 3, 2021 Page 57 Item 6. Emergency Care 3800 E. Centre Avenue, Portage, MI 49002 USA | P +1 269 329 2100 | Toll-free +1 800 327 0770 | stryker.com Zac Jordan Sr. Manager – Brand Marketing Stryker Re: 2021 Stair -PRO® Stair Chair sole source and bid spec information To whom it may concern, Stryker certifies that we are the sole manufacturer of Stryker’s Stair-PRO (Model 6252) Stair Chair. This correspondence is to inform you of the characteristics of the Stair-PRO (Model 6252). Standard features: • High visibility powder-coated yellow frame • Color -coded controls • Extendable foot end lift handles • Locking rear lift handles • Molded hand grips • Lightweight, rugged aluminum construction • Oversized rear wheels with sealed bearings • Folds to compact storage size • Power washable • Grease-free maintenance Ease of use: • Innovative Stair-TREAD system • Extendable upper control handle • 4-inch (10 cm) front caster wheels Patented exclusivity: • Patent Number: 6648343 • Patent Abstract: The present invention is directed to a stair chair. The stair chair includes a seat assembly mounted to a main frame and configured to pivot about a first pivot axis. A rail assembly having two laterally spaced brackets provided at a lower end of the rail assembly is included. A back wheel is rotatably supported on each bracket for rotation about a common axis of rotation. At least two mounts are provided at a lower end of the main frame, each of which is configured to pivotally connect one of the brackets to the main frame for movement about a second pivot axis. The rail assembly and seat assembly are configured to pivot about their respective pivot axes independent of movement of one another. Please contact your Sales Representative for further information. Stryker or its affiliated entities own, use, or have applied for the following trademarks or service marks: Stair-PRO, Stair-TREAD, Stryker. All other trademarks are trademarks of their respective owners or holders. The absence of a product, feature, or service name, or logo from this list does not constitute a waiver of Stryker’s trademark or other intellectual property rights concerning that name or logo. M0000001065 REV AA Copyright © 2021 Stryker Page 58 Item 6. Emergency Care 11811 Willows Road NE, Redmond , WA 98052 USA | P +1 425 867 4000 | Toll-free +1 800 442 1142 | stryker.com Stryker is the sole-source provider in the Hospital (hospitals and hospital -owned facilities), Emergency Response Services and Emergency Response Training (paramedics, professional and volunteer fire) markets in t he U.S. and Canada for the following products: •New LIFEPAK® 15 monitor/defibrillators •New LIFEPAK 20e defibrillator/monitors •New LIFEPAK CR2 automated external defibrillators •New LIFEPAK 1000 automated external defibrillators •New LUCAS® chest compression system •TrueCPR® coaching devices •CODE-STAT™ data review software and serviceStryker is the sole-source provider in all markets for the following products and services: •RELITM (Refurbished Equipment from the Lifesaving Innovators) devices •LIFENET® system and related software •Factory-authorized inspection and repair services which include repair parts, upgrades, inspections and repairs •HealthEMS® Software •HomeSolutions.net® Software •ACLS (non -clinical) LIFEPAK defibrillator/monitors •Heart Safe SolutionSM Government Campus Solution •MultiTech 4G and Titan III gateways Stryker is also the sole-source distributor of the following products for EMS customers in the U.S. and Canadian markets: •McGRATH™ MAC EMS video laryngoscope Stryker does not authorize any third parties to sell these products or services in the markets listed above. We will not fulfill orders placed by non-authorized businesses seeking to resell our products or services. If you have questions, please feel free to contact your local Stryker customer service representative at 800.442.1142. Sincerely, Matt Van Der Wende, Senior Director, Americas Sales Copyright © 2021 Stryker GDR 3321967_N Stryker or its affiliated entities own, use, or have applied for the following trademarks or services marks: LIFEPAK, LUCAS, TrueCPR, CODE-STAT, RELI, LIFENET, HealthEMS, HomeSolutions.net, Heart Safe Solution, Stryker. All other trademarks are trademarks of their respective owners or holders. The absence of a product, feature, or service name, or logo from this list does not constitute a waiver of Stryker’s trademark or other intellectual property rights concerning that name or logo. July 2021 Page 59 Item 6. Page 1 of 2 To: Mayor and Town Council From: Hulon T. Webb, Jr., Director of Engineering Services Through: Harlan Jefferson, Town Manager Rebecca Zook, Executive Director of Development and Infrastructure Services Re: Town Council Meeting – October 26, 2021 Agenda Item: Consider and act upon authorizing the Town Manager to execute a Professional Services Agreement between LJA Engineering, Inc., and the Town of Prosper, Texas, related to the design of the Coleman Street Median Landscaping (Victory-Preston) project and the Prosper Trail (DNT – 700’ East) Median Landscaping project. Description of Agenda Item: The services associated with this agreement are for the design of the median landscape and irrigation improvements to Coleman Street and Prosper Trail. The design limits on Coleman Street begin with the first full median east of Victory Way and end at Preston Road, totaling approximately 2,600 linear feet. The design limits on Prosper Trail are the remaining +/-700 feet of median east of the Dallas North Tollway. The design of the Prosper Trail median improvements will also include the installation of an underground continuous empty electrical conduit for use in running power to future median street lighting. The design of the Coleman Street median improvements will not include the installation of an underground continuous empty electrical conduit for use in running power to future median street lighting due to an existing Roadway Impact Fee Reimbursement Agreement between First Texas Homes and the Town. In that agreement, First Texas Homes is to construct the southern two lanes of Coleman Street from Victory Way to Preston Road, and with that construction, First Texas Homes installed the underground continuous empty electrical conduit in the median. At the December 8, 2020, Town Council meeting, the Town Council approved a list of qualified Park design firms, which included services of median landscaping design. LJA Engineering, Inc, is included on the list. Town staff had a previous positive experience with LJA Engineering, Inc., during the design of the Coleman Street Median Landscaping (Victory - Talon) project that was awarded for construction at the September 28, 2021, Town Council meeting. Prosper is a place where everyone matters. ENGINEERING SERVICES Page 60 Item 7. Page 2 of 2 Budget Impact: The cost for the designs is $40,777, and a total of $50,000 is budgeted. $25,000 is budgeted in Account No. 660-6610-50-00-2148-PK and $25,000 is budgeted in Account No. 660-6610-50-00- 2149-PK. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P., has approved the standard Professional Services Agreement as to form and legality. Attached Documents: 1. Professional Service Agreement 2. Location Map Town Staff Recommendation: Town staff recommends that the Town Council authorize the Town Manager to execute a Professional Services Agreement between LJA Engineering, Inc., and the Town of Prosper, Texas, related to the design of the Coleman Street Median Landscaping (Victory-Preston) project and the Prosper Trail (DNT – 700’ East) Median Landscaping project. Proposed Motion: I move to authorize the Town Manager to execute a Professional Services Agreement between LJA Engineering, Inc., and the Town of Prosper, Texas, related to the design of the Coleman Street Median Landscaping (Victory-Preston) project and the Prosper Trail (DNT – 700’ East) Median Landscaping project. Page 61 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 1 OF 11 PROFESSIONAL ENGINEERING SERVICES AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS, AND LJA ENGINEERING, INC. FOR THE COLEMAN STREET MEDIAN LANDSCAPING (VICTORY – PRESTON) PROJECT (2148 PK) & THE PROSPER TRAIL MEDIAN LANDSCAPING (DNT – 700’ EAST) PROJECT (2149 PK) This Agreement for Professional Engineering Services, hereinafter called “Agreement,” is entered into by the Town of Prosper, Texas, a municipal corporation, duly authorized to act by the Town Council of said Town, hereinafter called “Town,” and LJA Engineering, Inc., a company authorized to do business in Texas, acting through a duly authorized officer, hereinafter called “Consultant,” relative to Consultant providing professional engineering services to Town. Town and Consultant when mentioned collectively shall be referred to as the “Parties.” W I T N E S S E T H: WHEREAS, Town desires to obtain professional engineering services in connection with the Coleman Street Median Landscaping (Victory – Preston) Project (2148 PK) & the Prosper Trail Median Landscaping (DNT – 700’ East) Project (2149 PK) hereinafter called “Project”; For the mutual promises and benefits herein described, Town and Consultant agree as follows: 1. Term of Agreement. This Agreement shall become effective on the date of its execution by both Parties, and shall continue in effect thereafter until terminated as provided herein. 2. Services to be Performed by Consultant. The Parties agree that Consultant shall perform such services as are set forth and described in Exhibit A - Scope of Services and incorporated herein as if written word for word. All services provided by Consultant hereunder shall be performed in accordance with the degree of care and skill ordinarily exercised under similar circumstances by competent members of their profession. In case of conflict in the language of Exhibit A and this Agreement, this Agreement shall govern and control. Deviations from the Scope of Services or other provisions of this Agreement may only be made by written agreement signed by all Parties to this Agreement. 3. Prompt Performance by Consultant. Consultant shall perform all duties and services and make all decisions called for hereunder promptly and without unreasonable delay as is necessary to cause Consultant’s services hereunder to be timely and properly performed. Notwithstanding the foregoing, Consultant agrees to use diligent efforts to perform the services described herein and further defined in any specific task orders, in a manner consistent with these task orders; however, the Town understands and agrees that Consultant is retained to perform a professional service and such services must be bound, first and foremost, by the principles of sound professional judgment and reasonable diligence. 4. Compensation of Consultant. Town agrees to pay to Consultant for satisfactory completion of all services included in this Agreement a total fee of Forty Thousand, seven hundred and seventy-seven ($40,777)for the Project as set forth and described in Exhibit B - Compensation Schedule and incorporated herein as if written word for word. Lump sum fees shall be billed monthly based on the percentage of completion. Hourly not to exceed fees shall be billed monthly based on hours of work that have been completed. Direct Costs for expenses such as mileage, copies, scans, sub-consultants, and similar costs are included in fees and shall be billed as completed. Consultant agrees to submit statements to Town for professional services no more than once per month. These statements will be based upon Consultant's actual services performed and reimbursable expenses incurred, if any, and Town shall endeavor to make prompt payments. Each statement submitted by Consultant to Town shall Page 62 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 2 OF 11 be reasonably itemized to show the amount of work performed during that period. If Town fails to pay Consultant within sixty (60) calendar days of the receipt of Consultant's invoice, Consultant may, after giving ten (10) days written notice to Town, suspend professional services until paid. Nothing contained in this Agreement shall require Town to pay for any work that is unsatisfactory as reasonably determined by Town or which is not submitted in compliance with the terms of this Agreement. The Scope of Services shall be strictly limited. Town shall not be required to pay any amount in excess of the original proposed amount unless Town shall have approved in writing in advance (prior to the performance of additional work) the payment of additional amounts. 5. Town’s Obligations. Town agrees that it will (i) designate a specific person as Town’s representative, (ii) provide Consultant with any previous studies, reports, data, budget constraints, special Town requirements, or other pertinent information known to Town, when necessitated by a project, (iii) when needed, assist Consultant in obtaining access to properties necessary for performance of Consultant’s work for Town, (iv) make prompt payments in response to Consultant’s statements and (v) respond in a timely fashion to requests from Consultant. Consultant is entitled to rely upon and use, without independent verification and without liability, all information and services provided by Town or Town’s representatives. 6. Ownership and Reuse of Documents. Upon completion of Consultant’s services and receipt of payment in full therefore, Consultant agrees to provide Town with copies of all materials and documents prepared or assembled by Consultant under this Agreement and that Town may use them without Consultant's permission for any purpose relating to the Project. Any reuse of the documents not relating to the Project shall be at Town's risk. Consultant may retain in its files copies of all reports, drawings, specifications and all other pertinent information for the work it performs for Town. 7. Town Objection to Personnel. If at any time after entering into this Agreement, Town has any reasonable objection to any of Engineer’s personnel, or any personnel, professionals and/or consultants retained by Engineer, Engineer shall promptly propose substitutes to whom Town has no reasonable objection, and Engineer’s compensation shall be equitably adjusted to reflect any difference in Engineer’s costs occasioned by such substitution. 8. Insurance. Consultant shall, at its own expense, purchase, maintain and keep in force throughout the duration of this Agreement applicable insurance policies as described in Exhibit C - Insurance Requirements and incorporated herein as if written word for word. Consultant shall submit to Town proof of such insurance prior to commencing any work for Town. 9. Indemnification. CONSULTANT DOES HEREBY COVENANT AND AGREE TO RELEASE, INDEMNIFY AND HOLD HARMLESS TOWN AND ITS OFFICIALS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES AND INVITEES FROM AND AGAINST LIABILITY, CLAIMS, SUITS, DEMANDS AND/OR CAUSES OF ACTION, (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY’S FEES AND COSTS OF LITIGATION), WHICH MAY ARISE BY REASON OF DEATH OR INJURY TO PROPERTY OR PERSONS BUT ONLY TO THE EXTENT OCCASIONED BY THE NEGLIGENT ACT, ERROR OR OMISSION OF CONSULTANT, ITS OFFICIALS, OFFICERS, AGENTS, EMPLOYEES, INVITEES OR OTHER PERSONS FOR WHOM CONSULTANT IS LEGALLY LIABLE WITH REGARD TO THE PERFORMANCE OF THIS AGREEMENT. IN THE EVENT THAT TOWN AND CONSULTANT ARE CONCURRENTLY NEGLIGENT, THE PARTIES AGREE THAT ALL LIABILITY SHALL BE CALCULATED ON A COMPARATIVE BASIS OF FAULT AND Page 63 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 3 OF 11 RESPONSIBILITY AND THAT NEITHER PARTY SHALL BE REQUIRED TO DEFEND OR INDEMNIFY THE OTHER PARTY FOR THAT PARTY’S NEGLIGENT OR INTENTIONAL ACTS, ERRORS OR OMISSIONS. 10. Notices. Any notices to be given hereunder by either Party to the other may be affected either by personal delivery, in writing, or by registered or certified mail to the following addresses: LJA Engineering, Inc. James S. Wiegert, Senior Vice President 6060 N. Central Expressway, #400 Dallas, Texas 75206 jwiegert@lja.com Town of Prosper Harlan Jefferson, Town Manager PO Box 307 Prosper, TX 75078 hjefferson@prospertx.gov 11. Termination. The obligation to provide further services under this Agreement may be terminated by either Party in writing upon thirty (30) calendar days notice. In the event of termination by Town, Consultant shall be entitled to payment for services rendered through receipt of the termination notice. 12. Sole Parties and Entire Agreement. This Agreement shall not create any rights or benefits to anyone except Town and Consultant, and contains the entire agreement between the Parties. Oral modifications to this Agreement shall have no force or effect. 13. Assignment and Delegation. Neither Town nor Consultant may assign its rights or delegate its duties without the written consent of the other Party. This Agreement is binding on Town and Consultant to the extent permitted by law. Nothing herein is to be construed as creating any personal liability on the part of any Town officer, employee or agent. 14. Texas Law to Apply; Successors; Construction. This Agreement shall be construed under and in accordance with the laws of the State of Texas. It shall be binding upon, and inure to the benefit of, the Parties hereto and their representatives, successors and assigns. Should any provisions in this Agreement later be held invalid, illegal or unenforceable, they shall be deemed void, and this Agreement shall be construed as if such provision had never been contained herein. 15. Conflict of Interest. Consultant agrees that it is aware of the prohibited interest requirement of the Town Charter, which is repeated in Exhibit D - Conflict of Interest Affidavit and incorporated herein as if written word for word, and will abide by the same. Further, a lawful representative of Consultant shall execute the Affidavit included in the exhibit. Consultant understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. Consultant agrees that it is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of Consultant shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit E - Conflict of Interest Questionnaire and incorporated herein as if written word for word. 16. Venue. The Parties herein agree that this Agreement shall be enforceable in Prosper, Texas, and if legal action is necessary to enforce it, exclusive venue shall lie in Collin County, Texas. 17. Mediation. In the event of any disagreement or conflict concerning the interpretation of this Agreement, and such disagreement cannot be resolved by the signatories hereto, the signatories agree to submit such disagreement to non-binding mediation. Page 64 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 4 OF 11 18. Prevailing Party. In the event a Party initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney’s fees (including its reasonable costs and attorney’s fees on any appeal). 19. “Anti-Israel Boycott” Provision. In accordance with Chapter 2270, Texas Government Code, a Texas governmental entity may not enter into a contract with a company for the provision of goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. Chapter 2270 does not apply to a (1) a company that is a sole proprietorship; (2) a company that has fewer than ten (10) full-time employees; or (3) a contract that has a value of less than One Hundred Thousand Dollars ($100,000.00). Unless the company is not subject to Chapter 2270 for the reasons stated herein, the signatory executing this Agreement on behalf of the company verifies by its signature to this Agreement that the company does not boycott Israel and will not boycott Israel during the term of this Agreement. 20. Signatories. Town warrants and represents that the individual executing this Agreement on behalf of Town has full authority to execute this Agreement and bind Town to the same. Consultant warrants and represents that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind Consultant to same. IN WITNESS WHEREOF, the Parties, having read and understood this Agreement, have executed such in duplicate copies, each of which shall have full dignity and force as an original, on the _______ day of _______________________, 20____. LJA ENGINEERING, INC. By: Signature James S. Wiegert Printed Name Senior Vice President Title Date TOWN OF PROSPER, TEXAS By: Signature Harlan Jefferson Printed Name Town Manager Title Date 10/18/2021 Page 65 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 5 OF 11 EXHIBIT A SCOPE OF SERVICES PROFESSIONAL ENGINEERING SERVICES AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS, AND LJA ENGINEERING, INC. FOR THE COLEMAN STREET MEDIAN LANDSCAPING (VICTORY – PRESTON) PROJECT (2148 PK) & THE PROSPER TRAIL MEDIAN LANDSCAPING (DNT – 700’ EAST) PROJECT (2149 PK) I. PROJECT DESCRIPTION The Landscape Architect’s area of work shall consist of median landscape improvements to Coleman Street beginning with the first full median east of Victory Way, continuing east to Preston and on Prosper Trail, the first +/- 700’ of remaining median east of the D.N.T. LJA has not been made aware of a construction budget. LJA will operate under the following assumptions: The Town will provide CAD of the roadway to be used as a base (base construction based on aerials and as built measurements is not included) No median expansion is planned, and Sleeves are only existing on Coleman. No existing sleeves on Prosper Trail. Streetlights will be by others in the future. Water and power are nearby. Town to provide exact locations. (no solar irrigation controllers) The landscape, hardscape, and irrigation improvements are to mimic the Gee Road plans that the Town provided. LJA will hire an Electrical Engineer to provide drawings for powering the irrigation controller(s). LJA’s irrigation consult will show the tap and meter per Town provided drawings. II. TASK SUMMARY Task 310 – Schematic Design LJA will visit the site to verify and inventory existing conditions, taking note of relationships to adjacent properties, existing vehicular circulations, and any potential site visibility issues. LJA will prepare an SD Set noting endcap planter and semi-circular planter locations for approval. Visibility Triangles will be overlaid for reference. Irrigation tap and controller locations will be noted for approval. A cost estimate will be provided. Task 325 – Construction Documents Based on the approved Schematic Design Documents, LJA shall prepare for approval Construction Documents for components consisting of: Enhanced concrete median nosings. Concrete mowstrip to delineate the planter locations. Detailed layout and specifications for all grasses, groundcovers shrubs and trees showing species, locations, sizes and quantities. Page 66 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 6 OF 11 Detailed layout and specifications for the landscape irrigation system. Detailed layout and specifications for the electrical routing for the irrigation controller. Task 340 – Bidding Services During the bidding process LJA shall: LJA assumes actual bidding to be done by the Town (advertising, drawing delivery, etc.) Respond to bidder inquiries and RFI’s Evaluate the bids as requested Assist in preparing addenda as appropriate to interpret, clarify, or expand the bidding documents if necessary. Consult with the Client concerning the acceptability of substitute materials and equipment proposed by Contractors when substitution prior to award to contracts is allowed by the bidding documents. Task 345 – Construction Administration During construction, the Landscape Architect shall perform the following construction implementation services: Review shop drawings and submittals as requested. The Landscape Architect shall make the six (6) trips to the site to observe contractor progress and plan compliance during construction, one (1) trip to generate a punch list, and one (1) trip to ensure punch list completion. The Landscape Architect shall prepare written report of his findings and report any discrepancies or problems to the Client and Owner. III. DELIVERABLES Task 310 – Schematic Design One (1) PDF copy of each sheet of the SD drawings One (1) EXCEL file of the Cost Estimate Task 325 – Construction Documents One (1) PDF copy of each sheet of the CD drawings One (1)) EXCEL file of the Updated Cost Estimate Task 340 – Bidding Services One (1) PDF copy of each sheet of the Approved CD drawings Addenda as required in PDF format One (1) EXCEL file of the bid tab as requested Task 345 – Construction Administration One (1) PDF Field Report after each site visit. Plan revisions as required in PDF format Task 347 - Record Drawings One (1) PDF copy of each sheet of the record drawings One (1) DWG of the record drawings base map Page 67 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 7 OF 11 EXHIBIT B COMPENSATION SCHEDULE PROFESSIONAL ENGINEERING SERVICES AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS, AND LJA ENGINEERING, INC. FOR THE COLEMAN STREET MEDIAN LANDSCAPING (VICTORY – PRESTON) PROJECT (2148 PK) & THE PROSPER TRAIL MEDIAN LANDSCAPING (DNT – 700’ EAST) PROJECT (2149 PK) I. COMPENSATION SCHEDULE Task Completion Schedule Compensation Schedule Notice-to-Proceed October 2021 Task 310 – Schematic Design November 2021 $5,475 Task 325 – Construction Documents February 2022 $23,250 Task 340 – Bidding Services March 2022 $2,400 Task 345 – Construction Administration March-May 2022 $7,732 Task 347 – Record Drawings June 2022 $1,070 Total Compensation $39,927 II. COMPENSATION SUMMARY Basic Services (Lump Sum) Amount Task 310 – Schematic Design $5,475 Task 325 – Construction Documents $23,250 Task 340 – Bidding Services $2,400 Task 345 – Construction Administration $7,732 Task 347 – Record Drawings $1,070 Total Basic Services: $39,927 Direct Expenses Amount Mileage $550 Plotting $300 Total Direct Expenses: $850 Page 68 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 8 OF 11 EXHIBIT C INSURANCE REQUIREMENTS Service provider shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the vendor, his agents, representatives, employees or subcontractors. The cost of such insurance shall be borne by the service provider. A certificate of insurance meeting all requirements and provisions outlined herein shall be provided to the Town prior to any services being performed or rendered. Renewal certificates shall also be supplied upon expiration. A. MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. ISO Form Number GL 00 01 (or similar form) covering Commercial General Liability. “Occurrence” form only, “claims made” forms are unacceptable, except for professional liability. 2. Workers Compensation insurance as required by the Labor Code of the State of Texas, including Employers’ Liability Insurance. 3. Automobile Liability as required by the State of Texas, covering all owned, hired, or non-owned vehicles. Automobile Liability is only required if vehicle(s) will be used under this contract. 4. Professional Liability, also known as Errors and Omissions coverage. B. MINIMUM LIMITS OF INSURANCE Service Provider shall maintain throughout contract limits not less than: 1. Commercial General Liability: $500,000 per occurrence /$1,000,000 in the aggregate for third party bodily injury, personal injury and property damage. Policy will include coverage for: a. Premises / Operations b. Broad Form Contractual Liability c. Products and Completed Operations d. Personal Injury e. Broad Form Property Damage 2. Workers Compensation and Employer’s Liability: Workers Compensation limits as required by the Labor Code of the State of Texas and Statutory Employer’s Liability minimum limits of $100,000 each accident, $300,000 Disease- Policy Limit, and $100,000 Disease- Each Employee. 3. Automobile Liability: $500,000 Combined Single Limit. Limits can only be reduced if approved by the Town. Automobile liability shall apply to all owned, hired, and non-owned autos. 4. Professional Liability aka Errors and Omissions: $500,000 per occurrence and in the aggregate. C. DEDUCTIBLES AND SELF-INSURED RETENTIONS Any deductible or self-insured retentions in excess of $10,000 must be declared to and approved by the Town. Page 69 Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 9 OF 11 D. OTHER INSURANCE PROVISIONS The policies are to contain, or be endorsed to contain the following provisions: 1. General Liability and Automobile Liability Coverages a. The Town, its officers, officials, employees, boards and commissions and volunteers are to be added as “Additional Insured’s” relative to liability arising out of activities performed by or on behalf of the provider, products and completed operations of the provider, premises owned, occupied or used by the provider. The coverage shall contain no special limitations on the scope of protection afforded to the Town, its officers, officials, employees or volunteers. b. The provider’s insurance coverage shall be primary insurance in respects to the Town, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the Town, its officers, officials, employees or volunteers shall be in excess of the provider’s insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Town, its officers, officials, employees, boards and commissions or volunteers. d. The provider’s insurance shall apply separately to each insured against whom the claim is made or suit is brought, except to the insured’s limits of liability. 2. Workers Compensation and Employer’s Liability Coverage: The insurer shall agree to waive all rights of subrogation against the Town, its officers, officials, employees and volunteers for losses arising from work performed by the provider for the Town. 3. All Coverages: Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled or non-renewed by either party, reduced in coverage or in limits except after 30 days written notice to the Town for all occurrences, except 10 days written notice to the Town for non-payment. 4. Professional Liability and / or Errors and Omissions: “Claims made” policy is acceptable coverage, which must be maintained during the course of the project, and up to two (2) years after completion and acceptance of the project by the Town. E. ACCEPTABILITY OF INSURERS The Town prefers that Insurance be placed with insurers with an A.M. Best’s rating of no less than A- VI, or better. F. VERIFICATION OF COVERAGE Service Provider shall provide the Town with certificates of insurance indicating the coverages required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. Certificates of insurance similar to the ACORD Form are acceptable. Town will not accept Memorandums of Insurance or Binders as proof of insurance. The Town reserves the right to require complete, certified copies of all required insurance policies at any time. Certificate holder to be listed as follows: Town of Prosper P.O. Box 307 Prosper, TX 75078 Page 70 Item 7. Page 71Item 7. PROFESSIONAL ENGINEERING SERVICES AGREEMENT VERSION 10/20 PAGE 11 OF 11 EXHIBIT E CONFLICT OF INTEREST QUESTIONNAIRE N/A Page 72 Item 7. LOCATION MAP Coleman Street & Prosper Trail Landscape Improvements Preston Road Prosper HS Coleman Street Victory Way Prosper Trail DNT Page 73Item 7. Page 1 of 2 To: Mayor and Town Council From: Betty Pamplin, Finance Director Through: Harlan Jefferson, Town Manager Re: Tow n Council Meeting – October 26, 2021 Agenda Item: Consider all matters incidental and related to the issuance and sale of the Town of Prosper, Texas General Obligation Refunding Bonds, Series 2021, including the adoption of an ordinance authorizing the issuance of the bonds, establishing parameters for the sale and issuance of such bonds, and delegating certain matters to the Town Manager to act on its behalf in selling the bonds; and authorize the Mayor to execute the attached engagement letter. (BP) Description of Agenda Item: The Town has the ability to refinance two outstanding obligations, the Series 2012 Certificates of Obligation and the Series 2012 General Obligation Bonds, on a tax-exempt basis. Both issues are callable on February 15, 2022 and carry interest rates ranging from 3.00-3.25%. It’s currently estimated that the issues could be refinanced at a sub-2% interest rate. It is recommended that the refunding be sold via a parameter ordinance, as the past couple of bond issues have been sold. The attached ordinance would authorize the issuance of the Bonds and delegate to the Town Manager the final pricing within 90 days that meets the following conditions: for an amount not to exceed $3,700,000 at a maximum interest rate of 2.20% with a final maturity of February 15, 2032 the refunding must produce debt service savings of at least 3% measured on a present value basis as a percentage of the principal amount of the refunded bonds Prior to last year, the Town has historically sold debt through a competitive sale on the Tuesday morning of a Town Council meeting and then completed the sale with Town Council approval that evening. Approval of this ordinance has the following advantages to obtain the lowest interest rate for the Town’s General Obligation Refunding Bonds sale: Flexibility to sell on a day based on the best market conditions instead of only a Town Council Tuesday Prosper is a place where everyone matters. FINANCE DEPARTMENT Page 74 Item 8. Page 2 of 2 Allows for immediate award to the lowest bidder It is anticipated that private placement sale will occur the first couple of weeks in November. Budget Impact: The fiscal year 2021-2022 adopted budget includes $2M to be paid towards the refunding, and the debt service payments for the Bonds will be funded from the Debt Service Fund. Legal Obligations and Review: Terrence Welch of Brown & Hofmeister, L.L.P. and Dan Culver of McCall, Parkhurst and Horton, the Town’s bond counsel, have reviewed the resolution as to form and legality. Attached Documents: 1. Ordinance authorizing the issuance and sale of the Town of Prosper, Texas General Obligation Refunding Bonds, Series 2021. 2. Bond Counsel Engagement Letter Town Staff Recommendation: Town staff recommends adoption of an ordinance authorizing the issuance and sale of the Town of Prosper, Texas General Obligation Refunding Bonds, Series 2021 and approving all matters incidental thereto; and authorize the Mayor to execute the attached engagement letter. Proposed Motion: I move to adopt an ordinance authorizing the issuance and sale of the Town of Prosper, Texas General Obligation Refunding Bonds, Series 2021 and approving all matters incidental thereto; and authorize the Mayor to execute the attached engagement letter. Page 75 Item 8. ORDINANCE NO. _______ of the TOWN OF PROSPER, TEXAS AUTHORIZING THE ISSUANCE OF TOWN OF PROSPER, TEXAS GENERAL OBLIGATION REFUNDING BONDS SERIES 2021 Page 76 Item 8. Table of Contents Section 1. Recitals, Amount, Purpose and Designation of the Bonds ........................2 Section 2. Definitions ............................................................2 Section 3. Delegation to Pricing Officer..............................................2 Section 4. Characteristics of the Bonds ...............................................4 Section 5. Form of Bonds .........................................................8 Section 6. Tax Levy.............................................................15 Section 7. Perfection of Security Interest ............................................16 Section 8. Defeasance of Bonds....................................................16 Section 9. Damaged, Mutilated, Lost, Stolen, or Destroyed Bonds ........................17 Section 10. Custody, Approval, and Registration of Bonds; Bond Counsel's Opinion, CUSIP Numbers and Contingent Insurance Provision, if Obtained .........................18 Section 11. Covenants Regarding Tax Exemption of Interest on the Bonds ..................19 Section 12. Sale of Bonds; Official Statement.........................................21 Section 13. Further Procedures; Engagement of Bond Counsel; Appropriation ...............22 Section 14. Compliance with Rule 15c2-12 ..........................................22 Section 15. Method of Amendment .................................................26 Section 16. Redemption of Refunded Obligations .....................................27 Section 17. Governing Law .......................................................28 Section 18. Severability ..........................................................28 Section 19. Events of Default .....................................................28 Section 20. Remedies for Default ..................................................29 Section 21. Remedies Not Exclusive ................................................29 Section 22. Effective Date ........................................................29 i Page 77 Item 8. ORDINANCE NO. _________ AUTHORIZING THE ISSUANCE OF TOWN OF PROSPER, TEXAS GENERAL OBLIGATION REFUNDING BONDS; APPOINTING A PRICING OFFICER AND DELEGATING TO THE PRICING OFFICER THE AUTHORITY TO APPROVE ON BEHALF OF THE TOWN THE SELECTION OF BONDS TO BE REFUNDED, THE SALE OF THE BONDS, THE TERMS OF THE BONDS AND THE OFFERING DOCUMENTS FOR THE BONDS; ESTABLISHING CERTAIN PARAMETERS FOR THE APPROVAL OF SUCH MATTERS BY THE PRICING OFFICER; APPROVING THE USE OF AN ESCROW AGREEMENT AND A PAYING AGENT/REGISTRAR AGREEMENT; ENGAGING BOND COUNSEL; LEVYING AN ANNUAL AD VALOREM TAX FOR THE PAYMENT OF THE BONDS; AND ENACTING OTHER PROVISIONS RELATING TO THE SUBJECT THE STATE OF TEXAS § COLLIN AND DENTON COUNTIES § TOWN OF PROSPER § WHEREAS, Town of Prosper, Texas (the "Issuer") has previously issued, and there are presently outstanding, the obligations of the Issuer styled "Town of Prosper, Texas General Obligation Bonds, Series 2021," which are currently outstanding in the principal amount of $2,590,000, and "Town of Prosper Combination Tax and Revenue Certificates of Obligation, Series 2012," which are currently outstanding in the principal amount of $3,480,000 (collectively, the "Eligible Refunded Obligations"); and WHEREAS, the Issuer now desires to refund all or part of the Eligible Refunded Obligations, and those Eligible Refunded Obligations designated by the Pricing Officer in the Pricing Certificate, each as defined below, to be refunded are herein referred to as the "Refunded Obligations"; and WHEREAS, Chapter 1207, Texas Government Code ("Chapter 1207"), authorizes the Issuer to issue refunding bonds and to deposit the proceeds from the sale thereof, and any other available funds or resources, directly with a place of payment (paying agent) for the Refunded Obligations, and such deposit, if made before such payment dates, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Obligations; and WHEREAS, the Town Council of the Issuer hereby finds and determines that it is a public purpose and in the best interests of the Issuer to refund the Refunded Obligations in order to achieve a present value debt service savings, with such savings, among other information and terms to be included in a pricing certificate (the "Pricing Certificate") to be executed by the Pricing Officer (hereinafter designated), all in accordance with the provisions of Section 1207.007, Texas Government Code, as amended; and WHEREAS, all the Refunded Obligations mature or are subject to redemption prior to maturity within 20 years of the date of the bonds hereinafter authorized; and Page 78 Item 8. WHEREAS, the Bonds hereinafter authorized to be issued and are to be issued, sold and delivered pursuant to the general laws of the State of Texas, including Chapter 1207; and WHEREAS, it is officially found, determined and declared that the meeting at which this Ordinance has been adopted was open to the public, and public notice of the date, hour, place and subject of said meeting, including this Ordinance, was given, all as required by the applicable provisions of Tex. Gov't Code Ann. ch. 551; NOW, THEREFORE BE IT ORDAINED BY THE TOWN OF PROSPER: Section 1. RECITALS, AMOUNT, PURPOSE AND DESIGNATION OF THE BONDS. (a) The recitals set forth in the preamble hereof are incorporated herein and shall have the same force and effect as if set forth in this Section. (b) The bonds of the Issuer are hereby authorized to be issued and delivered in the maximum aggregate principal amount hereinafter set forth for the public purpose of providing funds to refund the Refunded Obligations and to pay the costs incurred in connection with the issuance of the Bonds. (c) Each bond issued pursuant to this Ordinance shall be designated (unless otherwise provided in the Pricing Certificate): "TOWN OF PROSPER, TEXAS GENERAL OBLIGATION REFUNDING BOND, SERIES 2021," and initially there shall be issued, sold, and delivered hereunder fully registered Bonds, without interest coupons, payable to the respective registered owners thereof (with the initial bonds being made payable to the initial purchaser as described in Section 12 hereof), or to the registered assignee or assignees of said bonds or any portion or portions thereof (in each case, the "Registered Owner"). The Bonds shall be in the respective denominations and principal amounts, shall be numbered, shall mature and be payable on the date or dates in each of the years and in the principal amounts or amounts due at maturity, as applicable, and shall bear interest to their respective dates of maturity or redemption, if applicable, prior to maturity at the rates per annum, as set forth in the Pricing Certificate. Section 2. DEFINITIONS. Unless otherwise expressly provided or unless the context clearly requires otherwise in this Ordinance, the following term shall have the meanings specified below: "Bonds" means and includes the Bonds initially issued and delivered pursuant to this Ordinance and all substitute Bonds exchanged therefor, as well as all other substitute bonds and replacement bonds issued pursuant hereto, and the term "Bond" shall mean any of the Bonds. Section 3. DELEGATION TO PRICING OFFICER. (a) As authorized by Section 1207.007, Texas Government Code, as amended, the Town Manager is hereby authorized to act on behalf of the Issuer in selling and delivering the Bonds (in carrying out such authorization, the Town Manager shall be hereinafter referred to as, and shall for all purposes be, the "Pricing Officer" of the Town with respect to the sale of the Bonds) in one or more series, determining which of the Eligible 2 Page 79 Item 8. Refunded Obligations shall be refunded and carrying out the other procedures specified in this Ordinance, including, determining the date of the Bonds, any additional or different designation or title by which the Bonds shall be known, the price at which the Bonds will be sold, the years in which the Bonds will mature, the principal amount to mature in each of such years, the rate of interest to be borne by each such maturity, the interest payment and record dates, the price and terms, if any, upon and at which the Bonds shall be subject to redemption prior to maturity at the option of the Issuer, as well as any mandatory sinking fund redemption provisions, whether the Bonds shall be issued on a tax-exempt basis or on a taxable basis, whether the Bonds shall be designated as "qualified tax-exempt obligations" as defined in section 265(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), limiting the types of securities and obligations that may be used as Defeasance Securities, modifying the Issuer's undertaking pursuant to Rule 15c2-12 as set forth in Section 14 hereof, and establishing all other matters relating to the issuance, sale, and delivery of the Bonds and the refunding of the Refunded Obligations, including without limitation establishing the redemption date for and effecting the redemption of the Refunded Obligations and obtaining bond insurance if bond insurance is deemed beneficial to the Issuer to achieve the objectives of the refunding, all of which shall be specified in a certificate of the Pricing Officer (the "Pricing Certificate"); provided that: (i) the aggregate original principal amount of the Bonds issued hereunder shall not exceed $3,700,000; (ii) no Bond shall mature after February 15, 2032; (iii) the true interest cost for the Bonds shall not exceed 2.20%; and (iv) the refunding achieved by the Bonds sold in accordance with this Ordinance must produce debt service savings of at least 3.00% measured on a present value basis as a percentage of the principal amount of the Refunded Obligations refunded with the Bonds, with such savings to be net of any Issuer contribution to the refunding and net of the costs of issuance. (b) In establishing the aggregate principal amount of the Bonds, the Pricing Officer shall establish an amount not exceeding the amount authorized in Subsection (a) above, which shall be sufficient in amount to provide for the purposes for which the Bonds are authorized and to pay costs of issuing the Bonds. The delegation made hereby shall expire if not exercised by the Pricing Officer on or prior to the date that is six months after the adoption of this Ordinance. The Bonds shall be sold at such price, with and subject to such terms as set forth in the Pricing Certificate. (c) The Bonds may be issued as Current Interest Bonds or Capital Appreciation Bonds, or a combination thereof, as set forth in the Pricing Certificate. The Bonds may be sold by public offering (either through a negotiated or competitive offering) or by private placement. If the Bonds are sold by private placement, the Pricing Certificate shall so state, and the Pricing Certificate may make changes to this Ordinance to effect such private placement, including the provisions hereof that pertain to the book-entry-only procedures (including eliminating the book-entry-only system 3 Page 80 Item 8. of registrations, payment and transfers) and to the provisions of Section 14 hereof relating to the Rule 15c2-12 undertaking (including eliminating or replacing such undertaking with an agreement to provide alternative disclosure information). In addition, if the Bonds are sold in more than one series, and one of such series is an issue with respect to which the interest on the Bonds of such series is not exempt from federal income taxation, the Pricing Certificate shall so state and may make changes to this Ordinance to effect such taxable issuance, including, specifically providing that the covenants of Section 11 hereof shall not be applicable to such series. (d) In the event any of the Bonds are issued as Capital Appreciation Bonds, the Pricing Certificate shall have attached thereto a schedule which sets forth the rounded original principal amounts at the issuance date for the Capital Appreciation Bonds and the Compounded Amounts thereof (per $5,000 payment at maturity), including the initial premium, if any, as of each date and commencing on the date set forth in such schedule. (e) It is hereby found and determined that the refunding of the Refunded Obligations is advisable and necessary in order to restructure the debt service requirements of the Issuer, and that the debt service requirements on the Bonds will be less than those on the Refunded Obligations, resulting in a reduction in the amount of principal and interest which otherwise would be payable. The Refunded Obligations are subject to redemption, at the option of the Issuer, and the Pricing Officer is hereby authorized to cause all of the Refunded Obligations to be called for redemption on the respective date or dates consistent with the savings analysis set forth in Section 3(a)(iv) hereof, and the proper notices of such redemption to be given, and in each case at a redemption price of par, plus accrued interest to the date fixed for redemption. In furtherance of authority granted by Section 1207.007(b), Texas Government Code, the Pricing Officer is further authorized to enter into and execute on behalf of the Issuer with the escrow agent named therein, an escrow agreement, in substantially the form presented to the Town Council at the meeting at which this Ordinance was adopted and as shall be approved by the Pricing Officer, which escrow agreement will provide for the payment in full of the Refunded Obligations (the "Escrow Agreement"). In addition, the Pricing Officer is authorized to purchase such securities with proceeds of the Bonds, including, without limitation, to execute such subscriptions for the purchase of the United States Treasury Securities State and Local Government Series or other United States Treasury or United States Agency securities that may be purchased in the open market, and to transfer and deposit such cash from available funds, as may be necessary or appropriate for the escrow fund described in the Escrow Agreement. (f) In satisfaction of Section 1201.022(a)(3)(B), Texas Government Code, the Town Council hereby determines that the delegation of the authority to the Pricing Officer to approve the final terms of the Bonds set forth in this Ordinance is, and the decisions made by the Pricing Officer pursuant to such delegated authority and incorporated into the Pricing Certificate will be, in the Issuer's best interests, and the Pricing Officer is hereby authorized to make and include in the Pricing Certificate a finding to that effect. Section 4. CHARACTERISTICS OF THE BONDS. (a) Registration, Transfer, Conversion and Exchange. The Issuer shall keep or cause to be kept at the principal corporate trust office of the 4 Page 81 Item 8. bank named in the Pricing Certificate as the paying agent/registrar for the Bonds (the "Paying Agent/Registrar") books or records for the registration of the transfer, conversion and exchange of the Bonds (the "Registration Books"), and the Issuer hereby appoints the Paying Agent/Registrar as its registrar and transfer agent to keep such books or records and make such registrations of transfers, conversions and exchanges under such reasonable regulations as the Issuer and Paying Agent/Registrar may prescribe; and the Paying Agent/Registrar shall make such registrations, transfers, conversions and exchanges as herein provided within three days of presentation in due and proper form. The Paying Agent/Registrar shall obtain and record in the Registration Books the address of the registered owner of each Bond to which payments with respect to the Bonds shall be mailed, as herein provided; but it shall be the duty of each registered owner to notify the Paying Agent/Registrar in writing of the address to which payments shall be mailed, and such interest payments shall not be mailed unless such notice has been given. The Issuer shall have the right to inspect the Registration Books during regular business hours of the Paying Agent/Registrar, but otherwise the Paying Agent/Registrar shall keep the Registration Books confidential and, unless otherwise required by law, shall not permit their inspection by any other entity. The Issuer shall pay the Paying Agent/Registrar's standard or customary fees and charges for making such registration, transfer, conversion, exchange and delivery of a substitute Bond or Bonds. Registration of assignments, transfers, conversions and exchanges of Bonds shall be made in the manner provided and with the effect stated in the FORM OF BOND set forth in this Ordinance. Each substitute Bond shall bear a letter and/or number to distinguish it from each other Bond. (b) Authentication. Except as provided in Section 4(e) hereof, an authorized representative of the Paying Agent/Registrar shall, before the delivery of any such Bond, date and manually sign said Bond, and no such Bond shall be deemed to be issued or outstanding unless such Bond is so ex- ecuted. The Paying Agent/Registrar promptly shall cancel all paid Bonds and Bonds surrendered for conversion and exchange. No additional ordinances, orders or resolutions need be passed or adopted by the governing body of the Issuer or any other body or person so as to accomplish the foregoing conversion and exchange of any Bond or portion thereof, and the Paying Agent/Registrar shall provide for the printing, execution and delivery of the substitute Bonds in the manner prescribed herein. Pursuant to Subchapter D, Chapter 1201, Texas Government Code, the duty of conversion and exchange of Bonds as aforesaid is hereby imposed upon the Paying Agent/Registrar, and, upon the execution of said Bond, the converted and exchanged Bond shall be valid, incontestable, and enforceable in the same manner and with the same effect as the Bonds which initially were issued and delivered pursuant to this Ordinance, approved by the Attorney General, and registered by the Comptroller of Public Accounts. (c) Payment of Bonds and Interest. The Issuer hereby further appoints the Paying Agent/Registrar to act as the paying agent for paying the principal of and interest on the Bonds, all as provided in this Ordinance. The Paying Agent/Registrar shall keep proper records of all payments made by the Issuer and the Paying Agent/Registrar with respect to the Bonds, and of all conversions and exchanges of Bonds, and all replacements of Bonds, as provided in this Ordinance. However, in the event of a nonpayment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have 5 Page 82 Item 8. been received from the Issuer. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States mail, first-class postage prepaid, to the address of each registered owner appearing on the Registration Books at the close of business on the last business day next preceding the date of mailing of such notice. (d) Substitute Paying Agent/Registrar. The Issuer covenants with the registered owners of the Bonds that at all times while the Bonds are outstanding the Issuer will provide a competent and legally qualified bank, trust company, financial institution or other agency to act as and perform the services of Paying Agent/Registrar for the Bonds under this Ordinance, and that the Paying Agent/Registrar will be one entity. The Issuer reserves the right to, and may, at its option, change the Paying Agent/Registrar upon not less than 50 days written notice to the Paying Agent/Registrar, to be effective not later than 45 days prior to the next principal or interest payment date after such notice. In the event that the entity at any time acting as Paying Agent/Registrar (or its successor by merger, acquisition, or other method) should resign or otherwise cease to act as such, the Issuer covenants that promptly it will appoint a competent and legally qualified bank, trust company, financial institution, or other agency to act as Paying Agent/Registrar under this Ordinance. Upon any change in the Paying Agent/Registrar, the previous Paying Agent/Registrar promptly shall transfer and deliver the Registration Books (or a copy thereof), along with all other pertinent books and records relating to the Bonds, to the new Paying Agent/Registrar designated and appointed by the Issuer. Upon any change in the Paying Agent/Registrar, the Issuer promptly will cause a written notice thereof to be sent by the new Paying Agent/Registrar to each registered owner of the Bonds, by United States mail, first-class postage prepaid, which notice also shall give the address of the new Paying Agent/Registrar. By accepting the position and performing as such, each Paying Agent/Registrar shall be deemed to have agreed to the provisions of this Ordinance, and a certified copy of this Ordinance shall be delivered to each Paying Agent/Registrar. (e) General Characteristics of the Bonds. The Bonds (i) shall be issued in fully registered form, without interest coupons, with the principal of and interest on such Bonds to be payable only to the Registered Owners thereof, (ii) may be redeemed prior to their scheduled maturities (notice of which shall be given to the Paying Agent/Registrar by the Issuer at least 35 days prior to any such redemption date), (iii) may be transferred and assigned, (iv) may be converted and exchanged for other Bonds, (v) shall have the characteristics, (vi) shall be signed, sealed, executed and authenticated, (vii) the principal of and interest on the Bonds shall be payable, and (viii) shall be administered and the Paying Agent/Registrar and the Issuer shall have certain duties and responsibilities with respect to the Bonds, all as provided, and in the manner and to the effect as required or indicated, in the FORM OF BOND set forth in this Ordinance. The Bonds initially issued and delivered pursuant to this Ordinance is not required to be, and shall not be, authenticated by the Paying Agent/Registrar, but on each substitute Bond issued in conversion of and exchange for any Bond or Bonds issued under this Ordinance the Paying Agent/Registrar shall execute the Paying Agent/registrar's Authentication Certificate, in the FORM OF BOND set forth in this Ordinance. 6 Page 83 Item 8. (f) Book-Entry Only System. The Bonds issued in exchange for the Bonds initially issued to the purchaser specified herein shall be initially issued in the form of a separate single fully registered Bond for each of the maturities thereof. Upon initial issuance, the ownership of each such Bond shall be registered in the name of Cede & Co., as nominee of The Depository Trust Company of New York ("DTC"), and except as provided in subsection (g) hereof, all of the outstanding Bonds shall be registered in the name of Cede & Co., as nominee of DTC. With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the Issuer and the Paying Agent/Registrar shall have no responsibility or obligation to any securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created ("DTC Participant") to hold securities to facilitate the clearance and settlement of securities transactions among DTC Participants or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the Issuer and the Paying Agent/Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than a registered owner of Bonds, as shown on the Registration Books, of any notice with respect to the Bonds, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of Bonds, as shown in the Registration Books of any amount with respect to principal of or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the contrary, the Issuer and the Paying Agent/Registrar shall be entitled to treat and consider the person in whose name each Bond is registered in the Registration Books as the absolute owner of such Bond for the purpose of payment of principal and interest with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Paying Agent/Registrar shall pay all principal of and interest on the Bonds only to or upon the order of the registered owners, as shown in the Registration Books as provided in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to payment of principal of and interest on the Bonds to the extent of the sum or sums so paid. No person other than a registered owner, as shown in the Registration Books, shall receive a Bond certificate evidencing the obligation of the Issuer to make payments of principal and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent/Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to interest checks being mailed to the registered owner at the close of business on the Record date, the words "Cede & Co." in this Ordinance shall refer to such new nominee of DTC. (g) Successor Securities Depository; Transfers Outside Book-Entry Only System. In the event that the Issuer determines that DTC is incapable of discharging its responsibilities described herein and in the representation letter of the Issuer to DTC or that it is in the best interest of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the Issuer shall (i) appoint a successor securities depository, qualified to act as such under Section 17A of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC Participants of the appointment of such successor securities depository and transfer one or more separate Bonds to such successor securities depository or (ii) notify DTC and DTC Participants of the availability through DTC of 7 Page 84 Item 8. Bonds and transfer one or more separate Bonds to DTC Participants having Bonds credited to their DTC accounts. In such event, the Bonds shall no longer be restricted to being registered in the Registration Books in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names registered owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Ordinance. (h) Payments to Cede & Co. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the representation letter of the Issuer to DTC. (i) Cancellation of Initial Bonds. On the closing date, one initial Bond representing the entire principal amount of the Current Interest Bonds and one initial Bond representing the entire maturity amount of the Capital Appreciation Bonds, payable in stated installments to the order of the initial purchaser of the Bonds or its designee, executed by manual or facsimile signature of the Mayor and City Secretary, approved by the Attorney General of Texas, and registered and manually signed by the Comptroller of Public Accounts of the State of Texas, will be delivered to such purchaser or its designee. Upon payment for the initial Bonds, the Paying Agent/Registrar shall cancel the initial Bond or Bonds and deliver to The Depository Trust Company ("DTC") on behalf of such purchaser one registered definitive Bond for each year of maturity of the Bonds, in the aggregate principal amount of all of the Bonds for such maturity, registered in the name of Cede & Co., as nominee of DTC. To the extent that the Paying Agent/Registrar is eligible to participate in DTC's FAST System, pursuant to an agreement between the Paying Agent/Registrar and DTC, the Paying Agent/Registrar shall hold the definitive Bonds in safekeeping for DTC. (j) Conditional Notice of Redemption. With respect to any optional redemption of the Bonds, unless certain prerequisites to such redemption required by this Ordinance have been met and moneys sufficient to pay the principal of and premium, if any, and interest on the Bonds to be redeemed shall have been received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such notice shall state that said redemption may, at the option of the Issuer, be conditional upon the satisfaction of such prerequisites and receipt of such moneys by the Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon any prerequisite set forth in such notice of redemption. If a conditional notice of redemption is given and such prerequisites to the redemption and sufficient moneys are not received, such notice shall be of no force and effect, the Issuer shall not redeem such Bonds and the Paying Agent/Registrar shall give notice, in the manner in which the notice of redemption was given, to the effect that the Bonds have not been redeemed. Section 5. FORM OF BONDS. The form of the Bonds, including the form of Paying Agent/Registrar's Authentication Certificate, the form of Assignment and the form of Registration Certificate of the Comptroller of Public Accounts of the State of Texas to be attached to the Bonds initially issued and delivered pursuant to this Ordinance, shall be, respectively, substantially as 8 Page 85 Item 8. follows, with such appropriate variations, omissions or insertions as are permitted or required by this Ordinance, and with the Bonds to be completed with information set forth in the Pricing Certificate. The Form of Bond shall be completed with information set forth in the Pricing Certificate and shall be attached to the Pricing Certificate as an exhibit thereto. (a) [Form of Bond] NO. R- UNITED STATES OF AMERICA STATE OF TEXAS TOWN OF PROSPER, TEXAS GENERAL OBLIGATION REFUNDING BOND SERIES 2021 PRINCIPAL AMOUNT $ INTEREST RATE DATE OF INITIAL DELIVERY OF BONDS MATURITY DATE CUSIP NO. ____% ___________, 2021 ____________ ____________ REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS ON THE MATURITY DATE specified above, the Town of Prosper, in Collin and Denton Counties, Texas (the "Issuer"), being a political subdivision and municipal corporation of the State of Texas, hereby promises to pay to the Registered Owner specified above, or registered assigns (hereinafter called the "Registered Owner"), on the Maturity Date specified above, the Principal Amount specified above. The Issuer promises to pay interest on the unpaid principal amount hereof (calculated on the basis of a 360-day year of twelve 30-day months) from _____________ at the Interest Rate per annum specified above. Interest is payable on _________ and semiannually on each __________ and __________ thereafter to the Maturity Date specified above, or the date of redemption prior to maturity; except, if this Bond is required to be authenticated and the date of its authentication is later than the first Record Date (hereinafter defined), such principal amount shall bear interest from the interest payment date next preceding the date of authentication, unless such date of authentication is after any Record Date but on or before the next following interest payment date, in which case such principal amount shall bear interest from such next following interest payment date; provided, however, that if on the date of authentication hereof the interest on the Bond or Bonds, if any, for which this Bond is being exchanged is due but has not been paid, then this Bond shall bear interest from the date to which such interest has been paid in full. THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of the United States of America, without exchange or collection charges. The principal of this Bond shall be paid to the registered owner hereof upon presentation and surrender of this Bond at maturity, or 9 Page 86 Item 8. upon the date fixed for its redemption prior to maturity, at the principal corporate trust office of __________________, in _________, __________, which is the "Paying Agent/Registrar" for this Bond. The payment of interest on this Bond shall be made by the Paying Agent/Registrar to the registered owner hereof on each interest payment date by check or draft, dated as of such interest payment date, drawn by the Paying Agent/Registrar on, and payable solely from, funds of the Issuer required by the ordinance authorizing the issuance of this Bond (the "Bond Ordinance") to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter provided; and such check or draft shall be sent by the Paying Agent/Registrar by United States mail, first-class postage prepaid, on each such interest payment date, to the registered owner hereof, at its address as it appeared on the fifteenth day of the month preceding each such date (the "Record Date") on the Registration Books kept by the Paying Agent/Registrar, as hereinafter described. In addition, interest may be paid by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. In the event of a non-payment of interest on a scheduled payment date, and for 30 days thereafter, a new record date for such interest payment (a "Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the Issuer. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five business days prior to the Special Record Date by United States mail, first-class postage prepaid, to the address of each owner of a Bond appearing on the Registration Books at the close of business on the last business day next preceding the date of mailing of such notice. ANY ACCRUED INTEREST due at maturity or upon the redemption of this Bond prior to maturity as provided herein shall be paid to the registered owner upon presentation and surrender of this Bond for payment or redemption at the designated corporate trust office of the Paying Agent/Registrar. The Issuer covenants with the registered owner of this Bond that on or before each principal payment date and interest payment date for this Bond it will make available to the Paying Agent/Registrar, from the "Interest and Sinking Fund" created by the Bond Ordinance, the amounts required to provide for the payment, in immediately available funds, of all principal of and interest on the Bonds, when due. IF THE DATE for any payment of the principal of or interest on this Bond shall be a Saturday, Sunday, a legal holiday or a day on which banking institutions in the city where the principal corporate trust office of the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day that is not such a Saturday, Sunday, legal holiday or day on which banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. THIS BOND is one of a series of Bonds dated __________, authorized in accordance with the Constitution and laws of the State of Texas in the principal amount of $_____________ for the purpose of providing funds to refund a portion of the Issuer's outstanding obligations. 10 Page 87 Item 8. ON ___________, or on any date thereafter, the Bonds of this series that mature on or after ________________ may be redeemed prior to their scheduled maturities, at the option of the Issuer, with funds derived from any available and lawful source, as a whole, or in part, and, if in part, the particular Bonds, or portions thereof, to be redeemed shall be selected and designated by the Issuer (provided that a portion of a Bond may be redeemed only in an integral multiple of $5,000), at a redemption price equal to the principal amount to be redeemed plus accrued interest to the date fixed for redemption. AT LEAST 30 days prior to the date fixed for any redemption of Bonds or portions thereof prior to maturity a written notice of such redemption shall be sent by the Paying Agent/Registrar by United States mail, first-class postage prepaid, at least 30 days prior to the date fixed for any such redemption, to the registered owner of each Bond to be redeemed at its address as it appeared on the 45th day prior to such redemption date; provided, however, that the failure of the registered owner to receive such notice, or any defect therein or in the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings for the redemption of any Bond. By the date fixed for any such redemption due provision shall be made with the Paying Agent/Registrar for the payment of the required redemption price for the Bonds or portions thereof that are to be so redeemed. If such written notice of redemption is sent and if due provision for such payment is made, all as provided above, the Bonds or portions thereof that are to be so redeemed thereby automatically shall be treated as redeemed prior to their scheduled maturities, and they shall not bear interest after the date fixed for redemption, and they shall not be regarded as being outstanding except for the right of the registered owner to receive the redemption price from the Paying Agent/Registrar out of the funds provided for such payment. If a portion of any Bond shall be redeemed, a substitute Bond or Bonds having the same maturity date, bearing interest at the same rate, in any denomination or denominations in any integral multiple of $5,000, at the written request of the registered owner, and in aggregate principal amount equal to the unredeemed portion thereof, will be issued to the registered owner upon the surrender thereof for cancellation, at the expense of the Issuer, all as provided in the Bond Ordinance. ALL BONDS OF THIS SERIES are issuable solely as fully registered bonds, without interest coupons, in the denomination of any integral multiple of $5,000. As provided in the Bond Ordinance, this Bond may, at the request of the registered owner or the assignee or assignees hereof, be assigned, transferred, converted into and exchanged for a like aggregate principal amount of fully registered Bonds, without interest coupons, payable to the appropriate registered owner, assignee or assignees, as the case may be, having the same denomination or denominations in any integral multiple of $5,000 as requested in writing by the appropriate registered owner, assignee or assignees, as the case may be, upon surrender of this Bond to the Paying Agent/Registrar for cancellation, all in accordance with the form and procedures set forth in the Bond Ordinance. Among other requirements for such assignment and transfer, this Bond must be presented and surrendered to the Paying Agent/Registrar, together with proper instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying Agent/Registrar, evidencing assignment of this Bond or any portion or portions hereof in any integral multiple of $5,000 to the assignee or assignees in whose name or names this Bond or any such portion or portions hereof is or are to be registered. The form of Assignment printed or endorsed on this Bond may be executed by the 11 Page 88 Item 8. registered owner to evidence the assignment hereof, but such method is not exclusive, and other instruments of assignment satisfactory to the Paying Agent/Registrar may be used to evidence the assignment of this Bond or any portion or portions hereof from time to time by the registered owner. The Paying Agent/Registrar's reasonable standard or customary fees and charges for assigning, transferring, converting and exchanging any Bond or portion thereof will be paid by the Issuer. In any circumstance, any taxes or governmental charges required to be paid with respect thereto shall be paid by the one requesting such assignment, transfer, conversion or exchange, as a condition precedent to the exercise of such privilege. The Paying Agent/Registrar shall not be required to make any such transfer, conversion, or exchange (i) during the period commencing with the close of business on any Record Date and ending with the opening of business on the next following principal or interest payment date, or (ii) with respect to any Bond or any portion thereof called for redemption prior to maturity, within 45 days prior to its redemption date. IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the Issuer, resigns, or otherwise ceases to act as such, the Issuer has covenanted in the Bond Ordinance that it promptly will appoint a competent and legally qualified substitute therefor, and cause written notice thereof to be mailed to the registered owners of the Bonds. IT IS HEREBY certified, recited and covenanted that this Bond has been duly and validly authorized, issued and delivered; that all acts, conditions and things required or proper to be performed, exist and be done precedent to or in the authorization, issuance and delivery of this Bond have been performed, existed and been done in accordance with law; and that annual ad valorem taxes sufficient to provide for the payment of the interest on and principal of this Bond, as such interest comes due and such principal matures, have been levied and ordered to be levied against all taxable property in said Issuer, and have been pledged for such payment, within the limit prescribed by law, all as provided in the Bond Ordinance. THE ISSUER HAS RESERVED THE RIGHT to amend the Bond Ordinance as provided therein, and under some (but not all) circumstances amendments thereto must be approved by the registered owners of a majority in aggregate principal amount of the outstanding Bonds. BY BECOMING the registered owner of this Bond, the registered owner thereby acknowledges all of the terms and provisions of the Bond Ordinance, agrees to be bound by such terms and provisions, acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes and records of the governing body of the Issuer, and agrees that the terms and provisions of this Bond and the Bond Ordinance constitute a contract between each registered owner hereof and the Issuer. IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed with the manual or facsimile signature of the Mayor of the Issuer (or in the absence of the Mayor, by the Mayor Pro- tem) and countersigned with the manual or facsimile signature of the Town Secretary of the Issuer, and has caused the official seal of the Issuer to be duly impressed, or placed in facsimile, on this Bond. (signature)(signature) Town Secretary Mayor (SEAL) 12 Page 89 Item 8. (b) [Form of Paying Agent/Registrar's Authentication Certificate] PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE (To be executed if this Bond is not accompanied by an executed Registration Certificate of the Comptroller of Public Accounts of the State of Texas) It is hereby certified that this Bond has been issued under the provisions of the Bond Ordinance described in the text of this Bond; and that this Bond has been issued in conversion or replacement of, or in exchange for, a Bond, Bonds, or a portion of a Bond or Bonds of a series that originally was approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts of the State of Texas. Dated: __________________. _______________________________ _______, ________ Paying Agent/Registrar By:______________________________ Authorized Representative (c) [Form of Assignment] ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or Taxpayer Identification Number of Transferee: Please print or typewrite name and address, including zip code of Transferee: the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to register the transfer of the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: __________________. Signature Guaranteed: 13 Page 90 Item 8. NOTICE: Signature(s) must be guaranteed by an eligible guarantor institution participating in a securities transfer association recognized signature guarantee program. NOTICE: The signature above must correspond with the name of the registered owner as it appears upon the front of this Bond in every particular, without alteration or enlargement or any change whatsoever. (d) [Form of Registration Certificate of the Comptroller of Public Accounts] COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. ___________ I hereby certify that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and that this Bond has been registered by the Comptroller of Public Accounts of the State of Texas. Witness my signature and seal this __________________. __________________________________________ Comptroller of Public Accounts of the State of Texas (COMPTROLLER'S SEAL) (e) [Initial Bond Insertions] (i) The initial Bond shall be in the form set forth is paragraph (a) of this Section, except that: A. immediately under the name of the Bond, the headings "Interest Rate" and "Maturity Date" shall both be completed with the words "As shown below" and "CUSIP No. _____" shall be deleted. B. the first paragraph shall be deleted and the following will be inserted: "THE TOWN OF PROSPER, TEXAS, in Collin and Denton Counties, Texas (the "Issuer"), being a political subdivision and municipal corporation of the State of Texas, hereby promises to pay to the Registered Owner specified above, or registered assigns (hereinafter called the 14 Page 91 Item 8. "Registered Owner"), on _____________ in each of the years, in the principal installments and bearing interest at the per annum rates set forth in the following schedule: Years Principal Amounts Interest Rates Years Principal Amounts Interest Rates The Issuer promises to pay interest on the unpaid principal amount hereof (calculated on the basis of a 360-day year of twelve 30-day months) from ____________ at the respective Interest Rate per annum specified above. Interest is payable on ____________, and semiannually on each ____________ and ____________ thereafter to the date of payment of the principal installment specified above, or the date of redemption prior to maturity; except, that if this Bond is required to be authenticated and the date of its authentication is later than the first Record Date (hereinafter defined), such Principal Amount shall bear interest from the interest payment date next preceding the date of authentication, unless such date of authentication is after any Record Date but on or before the next following interest payment date, in which case such principal amount shall bear interest from such next following interest payment date; provided, however, that if on the date of authentication hereof the interest on the Bond or Bonds, if any, for which this Bond is being exchanged is due but has not been paid, then this Bond shall bear interest from the date to which such interest has been paid in full." C. The Initial Bond shall be numbered "T-1." Section 6. TAX LEVY. A special "Interest and Sinking Fund" is hereby created and shall be established and maintained by the Issuer at an official depository bank of said Issuer. Said Interest and Sinking Fund shall be kept separate and apart from all other funds and accounts of said Issuer, and shall be used only for paying the interest on and principal of said Bonds. All amounts received from the sale of the Bonds as accrued interest shall be deposited upon receipt to the Interest and Sinking Fund, and all ad valorem taxes levied and collected for and on account of said Bonds shall be deposited, as collected, to the credit of said Interest and Sinking Fund. During each year while any of said Bonds are outstanding and unpaid, the governing body of said Issuer shall compute and ascertain a rate and amount of ad valorem tax that will be sufficient to raise and produce the money required to pay the interest on said Bonds as such interest comes due, and to provide and maintain a sinking fund adequate to pay the principal of said Bonds as such principal matures (but never less than 2% of the original amount of said Bonds as a sinking fund each year); and said tax shall be based on the latest approved tax rolls of said Issuer, with full allowances being made for tax delinquencies and the cost of tax collection. Said rate and amount of ad valorem tax is hereby 15 Page 92 Item 8. levied, and is hereby ordered to be levied, against all taxable property in said Issuer, for each year while any of said Bonds are outstanding and unpaid, and said tax shall be assessed and collected each such year and deposited to the credit of the aforesaid Interest and Sinking Fund. Said ad valorem taxes sufficient to provide for the payment of the interest on and principal of said Bonds, as such interest comes due and such principal matures, are hereby pledged for such payment, within the limit prescribed by law. If lawfully available moneys of the Issuer are actually on deposit in the Interest and Sinking Fund in advance of the time when ad valorem taxes are scheduled to be levied for any year, then the amount of taxes that otherwise would have been required to be levied pursuant to this Section may be reduced to the extent and by the amount of the lawfully available funds then on deposit in the Interest and Sinking Fund. Section 7. PERFECTION OF SECURITY INTEREST. Chapter 1208, Texas Government Code, applies to the issuance of the Bonds and the pledge of the taxes granted by the Issuer under this Section, and is therefore valid, effective, and perfected. Should Texas law be amended at any time while the Bonds are outstanding and unpaid, the result of such amendment being that the pledge of the taxes granted by the Issuer under this Section is to be subject to the filing requirements of Chapter 9, Business & Commerce Code, in order to preserve to the registered owners of the Bonds a security interest in said pledge, the Issuer agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, Business & Commerce Code and enable a filing of a security interest in said pledge to occur. Section 8. DEFEASANCE OF BONDS. (a) Any Bond and the interest thereon shall be deemed to be paid, retired, and no longer outstanding (a "Defeased Bond") within the meaning of this Ordinance, except to the extent provided in subsection (d) of this Section, when payment of the principal of such Bond, plus interest thereon to the due date (whether such due date be by reason of maturity or otherwise) either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for on or before such due date by irrevocably depositing with or making available to the Paying Agent/Registrar in accordance with an escrow agreement or other instrument (the "Future Escrow Agreement") for such payment (1) lawful money of the United States of America sufficient to make such payment or (2) Defeasance Securities that mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money to provide for such payment, and when proper arrangements have been made by the Issuer with the Paying Agent/Registrar for the payment of its services until all Defeased Bonds shall have become due and payable. At such time as a Bond shall be deemed to be a Defeased Bond hereunder, as aforesaid, such Bond and the interest thereon shall no longer be secured by, payable from, or entitled to the benefits of, the ad valorem taxes herein levied and pledged as provided in this Ordinance, and such principal and interest shall be payable solely from such money or Defeasance Securities, and thereafter the Issuer will have no further responsibility with respect to amounts available to the Paying Agent/Registrar (or other financial institution permitted by applicable law) for the payment of such Defeased Bonds, including any insufficiency therein caused by the failure of the Paying Agent/Registrar (or other financial institution permitted by applicable law) to receive payment when due on the Defeasance Securities. Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any determination not to redeem Defeased Bonds that is made in conjunction with the payment 16 Page 93 Item 8. arrangements specified in subsection 8(a)(i) or (ii) shall not be irrevocable, provided that: (1) in the proceedings providing for such payment arrangements, the Issuer expressly reserves the right to call the Defeased Bonds for redemption; (2) gives notice of the reservation of that right to the owners of the Defeased Bonds immediately following the making of the payment arrangements; and (3) directs that notice of the reservation be included in any redemption notices that it authorizes. (b) Any moneys so deposited with the Paying Agent/Registrar may at the written direction of the Issuer also be invested in Defeasance Securities, maturing in the amounts and times as herein- before set forth, and all income from such Defeasance Securities received by the Paying Agent/Registrar that is not required for the payment of the Bonds and interest thereon, with respect to which such money has been so deposited, shall be turned over to the Issuer, or deposited as directed in writing by the Issuer. Any Future Escrow Agreement pursuant to which the money and/or Defeasance Securities are held for the payment of Defeased Bonds may contain provisions permitting the investment or reinvestment of such moneys in Defeasance Securities or the substitution of other Defeasance Securities upon the satisfaction of the requirements specified in subsection 8(a)(i) or (ii). All income from such Defeasance Securities received by the Paying Agent/Registrar which is not required for the payment of the Defeased Bonds, with respect to which such money has been so deposited, shall be remitted to the Issuer or deposited as directed in writing by the Issuer. (c) The term "Defeasance Securities" means any securities and obligations now or hereafter authorized by State law that are eligible to refund, retire or otherwise discharge obligations such as the Bonds. (d) Until all Defeased Bonds shall have become due and payable, the Paying Agent/Registrar shall perform the services of Paying Agent/Registrar for such Defeased Bonds the same as if they had not been defeased, and the Issuer shall make proper arrangements to provide and pay for such services as required by this Ordinance. (e) In the event that the Issuer elects to defease less than all of the principal amount of Bonds of a maturity, the Paying Agent/Registrar shall select, or cause to be selected, such amount of Bonds by such random method as it deems fair and appropriate. Section 9. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS. (a) Replacement Bonds. In the event any outstanding Bond is damaged, mutilated, lost, stolen, or destroyed, the Paying Agent/Registrar shall cause to be printed, executed, and delivered, a new bond of the same principal amount, maturity, and interest rate, as the damaged, mutilated, lost, stolen, or destroyed Bond, in replacement for such Bond in the manner hereinafter provided. (b) Application for Replacement Bonds. Application for replacement of damaged, mutilated, lost, stolen, or destroyed Bonds shall be made by the registered owner thereof to the Paying Agent/Registrar. In every case of loss, theft, or destruction of a Bond, the registered owner applying for a replacement bond shall furnish to the Issuer and to the Paying Agent/Registrar such security or indemnity as may be required by them to save each of them harmless from any loss or 17 Page 94 Item 8. damage with respect thereto. Also, in every case of loss, theft, or destruction of a Bond, the registered owner shall furnish to the Issuer and to the Paying Agent/Registrar evidence to their satisfaction of the loss, theft, or destruction of such Bond. In every case of damage or mutilation of a Bond, the registered owner shall surrender to the Paying Agent/Registrar for cancellation the Bond so damaged or mutilated. (c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in the event any such Bond shall have matured, and no default has occurred which is then continuing in the payment of the principal of or interest on the Bond, the Issuer may authorize the payment of the same (without surrender thereof except in the case of a damaged or mutilated Bond) instead of issuing a replacement Bond, provided security or indemnity is furnished as above provided in this Section. (d) Charge for Issuing Replacement Bonds. Prior to the issuance of any replacement bond, the Paying Agent/Registrar shall charge the registered owner of such Bond with all legal, printing, and other expenses in connection therewith. Every replacement bond issued pursuant to the provisions of this Section by virtue of the fact that any Bond is lost, stolen, or destroyed shall constitute a contractual obligation of the Issuer whether or not the lost, stolen, or destroyed Bond shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Ordinance equally and proportionately with any and all other Bonds duly issued under this Ordinance. (e) Authority for Issuing Replacement Bonds. In accordance with Subchapter B, Chapter 1206, Texas Government Code, this Section shall constitute authority for the issuance of any such replacement bond without necessity of further action by the governing body of the Issuer or any other body or person, and the duty of the replacement of such bonds is hereby authorized and imposed upon the Paying Agent/Registrar, and the Paying Agent/Registrar shall authenticate and deliver such Bonds in the form and manner and with the effect, as provided in Section 4(b) of this Ordinance for Bonds issued in conversion and exchange for other Bonds. Section 10. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND COUNSEL'S OPINION, CUSIP NUMBERS AND CONTINGENT INSURANCE PROVISION, IF OBTAINED. The Mayor of the Issuer is hereby authorized to have control of the Bonds initially issued and delivered hereunder and all necessary records and proceedings pertaining to the Bonds pending their delivery and their investigation, examination, and approval by the Attorney General of the State of Texas, and their registration by the Comptroller of Public Accounts of the State of Texas. Upon registration of the Bonds said Comptroller of Public Accounts (or a deputy designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration Certificate attached to such Bonds, and the seal of said Comptroller shall be impressed, or placed in facsimile, on such Certificate. The approving legal opinion of the Issuer's Bond Counsel and the assigned CUSIP numbers may, at the option of the Issuer, be printed on the Bonds issued and delivered under this Ordinance, but neither shall have any legal effect, and shall be solely for the convenience and information of the registered owners of the Bonds. If bond insurance is obtained, the Bonds may bear an appropriate legend as provided by the insurer. 18 Page 95 Item 8. Section 11. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE BONDS. Subject to the determination of the Pricing Officer, as set forth in the Pricing Certificate as to the treatment of the Bonds as taxable or tax-exempt obligations pursuant to the Code, the Issuer makes the following covenants with respect to the Bonds, in the event that the Bonds are issued as obligations the interest on which is exempt from federal income taxation. (a) Covenants. The Issuer covenants to take any action necessary to assure, or refrain from any action which would adversely affect, the treatment of the Bonds as obligations described in section 103 of the Code, the interest on which is not includable in the "gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the Issuer covenants as follows: (1) to take any action to assure that no more than 10 percent of the proceeds of the Bonds or the projects financed therewith (less amounts deposited to a reserve fund, if any) are used for any "private business use," as defined in section 141(b)(6) of the Code or, if more than 10 percent of the proceeds or the projects financed therewith are so used, such amounts, whether or not received by the Issuer, with respect to such private business use, do not, under the terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or provide for the payment of more than 10 percent of the debt service on the Bonds, in contravention of section 141(b)(2) of the Code; (2) to take any action to assure that in the event that the "private business use" described in subsection (1) hereof exceeds 5 percent of the proceeds of the Bonds or the projects financed therewith (less amounts deposited into a reserve fund, if any) then the amount in excess of 5 percent is used for a "private business use" which is "related" and not "disproportionate," within the meaning of section 141(b)(3) of the Code, to the governmental use; (3) to take any action to assure that no amount which is greater than the lesser of $5,000,000, or 5 percent of the proceeds of the Bonds (less amounts deposited into a reserve fund, if any) is directly or indirectly used to finance loans to persons, other than state or local governmental units, in contravention of section 141(c) of the Code; (4) to refrain from taking any action which would otherwise result in the Bonds being treated as "private activity bonds" within the meaning of section 141(b) of the Code; (5) to refrain from taking any action that would result in the Bonds being "federally guaranteed" within the meaning of section 149(b) of the Code; (6) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly, to acquire or to replace funds which were used, directly or indirectly, to acquire investment property (as defined in section 148(b)(2) of the Code) which produces a materially higher yield over the term of the Bonds, other than investment property acquired with -- 19 Page 96 Item 8. (A) proceeds of the Bonds invested for a reasonable temporary period of 3 years or less or, in the case of a refunding bond, for a period of 90 days or less until such proceeds are needed for the purpose for which the bonds are issued, (B) amounts invested in a bona fide debt service fund, within the meaning of section l.148-1(b) of the Treasury Regulations, and (C) amounts deposited in any reasonably required reserve or replacement fund to the extent such amounts do not exceed 10 percent of the proceeds of the Bonds; (7) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as proceeds of the Bonds, as may be necessary, so that the Bonds do not otherwise contravene the requirements of section 148 of the Code (relating to arbitrage); (8) to refrain from using the proceeds of the Bonds or proceeds of any prior bonds to pay debt service on another issue more than 90 days after the date of issue of the Bonds in contravention of the requirements of section 149(d) of the Code (relating to advance refundings); and (9) to pay to the United States of America at least once during each five-year period (beginning on the date of delivery of the Bonds) an amount that is at least equal to 90 percent of the "Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United States of America, not later than 60 days after the Bonds have been paid in full, 100 percent of the amount then required to be paid as a result of Excess Earnings under section 148(f) of the Code. (b) Rebate Fund. In order to facilitate compliance with the above covenant (8), a "Rebate Fund" is hereby established by the Issuer for the sole benefit of the United States of America, and such fund shall not be subject to the claim of any other person, including without limitation the bondholders. The Rebate Fund is established for the additional purpose of compliance with section 148 of the Code. (c) Proceeds. The Issuer understands that the term "proceeds" includes "disposition proceeds" as defined in the Treasury Regulations and, in the case of refunding bonds, transferred proceeds (if any) and proceeds of the Refunded Obligations expended prior to the date of issuance of the Bonds. It is the understanding of the Issuer that the covenants contained herein are intended to assure compliance with the Code and any regulations or rulings promulgated by the U.S. Department of the Treasury pursuant thereto. In the event that regulations or rulings are hereafter promulgated which modify or expand provisions of the Code, as applicable to the Bonds, the Issuer will not be required to comply with any covenant contained herein to the extent that such failure to comply, in the opinion of nationally recognized bond counsel, will not adversely affect the exemption from federal income taxation of interest on the Bonds under section 103 of the Code. In the event that regulations or rulings are hereafter promulgated which impose additional requirements 20 Page 97 Item 8. which are applicable to the Bonds, the Issuer agrees to comply with the additional requirements to the extent necessary, in the opinion of nationally recognized bond counsel, to preserve the exemption from federal income taxation of interest on the Bonds under section 103 of the Code. In furtherance of such intention, the Issuer hereby authorizes and directs the Mayor or the Town Manager to execute any documents, certificates or reports required by the Code and to make such elections, on behalf of the Issuer, which may be permitted by the Code as are consistent with the purpose for the issuance of the Bonds. (d) Disposition of Project. The Issuer covenants that the projects funded with the proceeds of the Refunded Obligations will not be sold or otherwise disposed of in a transaction resulting in the receipt by the Issuer of cash or other compensation, unless any action taken in connection with such disposition will not adversely affect the tax-exempt status of the Bonds. For purpose of the foregoing, the Issuer may rely on an opinion of nationally-recognized bond counsel that the action taken in connection with such sale or other disposition will not adversely affect the tax-exempt status of the Bonds. For purposes of the foregoing, the portion of the property comprising personal property and disposed in the ordinary course shall not be treated as a transaction resulting in the receipt of cash or other compensation. For purposes hereof, the Issuer shall not be obligated to comply with this covenant if it obtains an opinion that such failure to comply will not adversely affect the excludability for federal income tax purposes from gross income of the interest. (e) Designation as Qualified Tax-Exempt Obligations. The Bonds may be designated as "qualified tax-exempt obligations" as defined in section 265(b)(3) of the Code, if so provided in the Pricing Certificate, and further conditioned upon the Purchaser certifying that the aggregate initial offering price of the Bonds to the public (excluding any accrued interest) is no greater than $10 million (or such other amount permitted by such section 265 of the Code). Assuming such condition is met, in furtherance of such designation, the Issuer represents, covenants and warrants the following: (a) that during the calendar year in which the Bonds are issued, the Issuer (including any subordinate entities) has not designated nor will designate obligations, which when aggregated with the Bonds, will result in more than $10,000,000 (or such other amount permitted by such section 265 of the Code) of "qualified tax-exempt obligations" being issued; (b) that the Issuer reasonably anticipates that the amount of tax-exempt obligations issued during the calendar year in which the Bonds are issued, by the Issuer (or any subordinate entities) will not exceed $10,000,000 (or such other amount permitted by such section 265 of the Code); and, (c) that the Issuer will take such action or refrain from such action as necessary, and as more particularly set forth in this Section, in order that the Bonds will not be considered "private activity bonds" within the meaning of section 141 of the Code. Section 12. SALE OF BONDS; OFFICIAL STATEMENT. (a) The Bonds shall be sold and delivered subject to the provisions of Section 1 and Section 3 and pursuant to the terms and provisions of a bond purchase agreement, notice of sale and bidding 21 Page 98 Item 8. instructions or private placement agreement (collectively, the "Purchase Agreement") which the Pricing Officer is hereby authorized to execute and deliver and in which the purchaser or purchasers (collectively, the "Purchaser") of the Bonds shall be designated. The Bonds shall initially be registered in the name of the purchaser thereof as set forth in the Pricing Certificate. (b) The Pricing Officer is hereby authorized, in the name and on behalf of the Issuer, to approve, distribute, and deliver a preliminary official statement and a final official statement relating to the Bonds to be used by the Purchaser in the marketing of the Bonds. Section 13. FURTHER PROCEDURES; ENGAGEMENT OF BOND COUNSEL; APPROPRIATION. (a) The Mayor or Mayor Pro-tem and Town Secretary of the Issuer and the Town Manager of the Issuer and all other officers, employees and agents of the Issuer, and each of them, shall be and they are hereby expressly authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the Issuer a Paying Agent/Registrar Agreement with the Paying Agent/Registrar in substantially the form presented to the Town Council at the meeting at which this Ordinance was adopted and all other instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance, the Letter of Representations, the Bonds, the sale of the Bonds and the Official Statement. Notwithstanding anything to the contrary contained herein, while the Bonds are subject to DTC's Book-Entry Only System and to the extent permitted by law, the Letter of Representations is hereby incorporated herein and its provisions shall prevail over any other provisions of this Ordinance in the event of conflict. In case any officer whose signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. (b) The obligation of the initial purchasers to accept delivery of the Bonds is subject to the initial purchasers being furnished with the final, approving opinion of McCall, Parkhurst & Horton L.L.P., bond counsel to the Issuer, which opinion shall be dated as of and delivered on the date of initial delivery of the Bonds to the initial purchasers. The engagement of such firm as bond counsel to the Issuer in connection with issuance, sale and delivery of the Bonds is hereby approved and confirmed. The execution and delivery of an engagement letter between the Issuer and such firm, with respect to such services as bond counsel, is hereby authorized in such form as may be approved by the Mayor, Mayor Pro-tem or the Town Manager are hereby authorized to execute such engagement letter. (c) To pay the debt service coming due on the Bonds, if any (as determined by the Pricing Certificate) prior to receipt of the taxes levied to pay such debt service, there is hereby appropriated from current funds on hand, which are hereby certified to be on hand and available for such purpose, an amount sufficient to pay such debt service, and such amount shall be used for no other purpose. Section 14. COMPLIANCE WITH RULE 15c2-12. (a) If the Bonds are sold by public offering, and are subject to the Rule (as defined below), the following provisions shall apply: 22 Page 99 Item 8. (i) Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: "Financial Obligation" means a (i) debt obligation; (ii) derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation; or (iii) guarantee of a debt obligation or any such derivative instrument; provided that "financial obligation" shall not include municipal securities as to which a final official statement (as defined in the Rule) has been provided to the MSRB consistent with the Rule. "MSRB" means the Municipal Securities Rulemaking Town Council. "Rule" means SEC Rule 15c2-12, as amended from time to time. "SEC" means the United States Securities and Exchange Commission. (ii) Annual Reports. (A) The Issuer shall provide annually to the MSRB, in the electronic format prescribed by the MSRB, financial information and operating data with respect to the Issuer consisting of the information described in the Pricing Certificate (the "Annual Operating Report"). The Issuer will additionally provide financial statements of the Issuer (the "Financial Statements"), that will be (i) prepared in accordance with the accounting principles described in the Pricing Certificate or such other accounting principles as the Issuer may be required to employ from time to time pursuant to State law or regulation and shall be in substantially the form included in the final Official Statement and (ii) audited, if the Issuer commissions an audit of such Financial Statements and the audit is completed within the period during which they must be provided. The Issuer will update and provide the Annual Operating Report within six months after the end of each fiscal year and the Financial Statements within 12 months of the end of each fiscal year, in each case beginning with the fiscal year ending in and after 2021. The Issuer may provide the Financial Statements earlier, including at the time it provides its Annual Operating Report, but if the audit of such Financial Statements is not complete within 12 months after any such fiscal year end, then the Issuer shall file unaudited Financial Statements within such 12-month period and audited Financial Statements for the applicable fiscal year, when and if the audit report on such Financial Statements becomes available. (B) If the Issuer changes its fiscal year, it will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the Issuer otherwise would be required to provide financial information and operating data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any documents available to the public on the MSRB's internet website or filed with the SEC. 23 Page 100 Item 8. (iii) Event Notices. The Issuer shall notify the MSRB, in a timely manner not in excess of ten Business Days after the occurrence of the event, of any of the following events with respect to the Bonds: 1. Principal and interest payment delinquencies; 2. Non-payment related defaults, if material; 3. Unscheduled draws on debt service reserves reflecting financial difficulties; 4. Unscheduled draws on credit enhancements reflecting financial difficulties; 5. Substitution of credit or liquidity providers, or their failure to perform; 6. Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; 7. Modifications to rights of holders of the Bonds, if material; 8. Bond calls, if material, and tender offers; 9. Defeasances; 10. Release, substitution, or sale of property securing repayment of the Bonds, if material; 11. Rating changes; 12. Bankruptcy, insolvency, receivership or similar event of the Issuer; 13. The consummation of a merger, consolidation, or acquisition involving the Issuer or the sale of all or substantially all of the assets of the Issuer, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; 14. Appointment of a successor Paying Agent/Registrar or change in the name of the Paying Agent/Registrar, if material; 15. Incurrence of a Financial Obligation of the Issuer, if material, or agreement to covenants, events of default, remedies, priority rights, or other similar terms of a Financial Obligation of the Issuer, any of which affect security holders, if material; and 16. Default, event of acceleration, termination event, modification of terms, or other similar events under the terms of a Financial Obligation of the Issuer, any of which reflect financial difficulties. The Issuer shall notify the MSRB, in a timely manner, of any failure by the Issuer to provide financial information or operating data in accordance with subsection (ii) of this Section by the time required by subsection (ii). As used in clause (iii)12 above, the phrase "bankruptcy, insolvency, receivership or similar event" means the appointment of a receiver, fiscal agent or similar officer for the Issuer in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court of governmental authority has assumed jurisdiction over substantially all of the assets or business of the Issuer, or if jurisdiction has been assumed by leaving the Town Council and officials or officers of the Issuer in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, 24 Page 101 Item 8. arrangement or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Issuer. (iv) Limitations, Disclaimers, and Amendments. (A) The Issuer shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the Issuer remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the Issuer in any event will give notice of any deposit made in accordance with this Ordinance or applicable law that causes the Bonds no longer to be outstanding. (B) The provisions of this Section are for the sole benefit of the registered owners and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The Issuer undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the Issuer's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The Issuer does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. (C) UNDER NO CIRCUMSTANCES SHALL THE ISSUER BE LIABLE TO THE REGISTERED OWNER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE ISSUER, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. (D) No default by the Issuer in observing or performing its obligations under this Section shall comprise a breach of or default under the Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the Issuer under federal and state securities laws. (E) The provisions of this Section may be amended by the Issuer from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the Issuer, but only if (1) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule since such offering as well as such changed circumstances and (2) either (a) the registered owners of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the Issuer (such as nationally recognized bond counsel) determined that such amendment will not materially 25 Page 102 Item 8. impair the interest of the registered owners and beneficial owners of the Bonds. If the Issuer so amends the provisions of this Section, it shall include with any amended financial information or operating data next provided in accordance with subsection (b) of this Section an explanation, in narrative form, of the reason for the amendment and of the impact of any change in the type of financial information or operating data so provided. The Issuer may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provision of the Rule or a court of final jurisdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling Bonds in the primary offering of the Bonds. (b) If the Bonds are sold by private placement or are not subject to the Rule, the Pricing Officer may agree to provide for an undertaking in accordance with the Rule or may agree to provide other public information to the purchaser as may be necessary for the sale of the Bonds on the most favorable terms to the Issuer, or neither. Section 15. METHOD OF AMENDMENT. The Issuer hereby reserves the right to amend this Ordinance subject to the following terms and conditions, to-wit: (a) The Issuer may from time to time, without the consent of any Registered Owner, except as otherwise required by paragraph (b) below, amend or supplement this Ordinance to (i) cure any ambiguity, defect or omission in this Ordinance that does not materially adversely affect the interests of the Registered Owners, (ii) grant additional rights or security for the benefit of the Registered Owners, (iii) add events of default as shall not be inconsistent with the provisions of this Ordinance and that shall not materially adversely affect the interests of the Registered Owners, (v) qualify this Ordinance under the Trust Indenture Act of 1939, as amended, or corresponding provisions of federal laws from time to time in effect, or (iv) make such other provisions in regard to matters or questions arising under this Ordinance as shall not be materially inconsistent with the provisions of this Ordinance and that shall not, in the opinion of nationally-recognized bond counsel, materially adversely affect the interests of the Registered Owners. (b) Except as provided in paragraph (a) above, a majority of the Registered Owners of Bonds then outstanding measured by original principal amount that are the subject of a proposed amendment shall have the right from time to time to approve any amendment hereto that may be deemed necessary or desirable by the Issuer; provided, however, that without the consent of 100% of the Registered Owners in aggregate principal amount of the then outstanding Bonds, nothing herein contained shall permit or be construed to permit amendment of the terms and conditions of this Ordinance or in any of the Bonds so as to: (1) Make any change in the maturity of any of the outstanding Bonds; (2) Reduce the rate of interest borne by any of the outstanding Bonds; (3) Reduce the amount of the principal of, or redemption premium, if any, payable on any outstanding Bonds; 26 Page 103 Item 8. (4) Modify the terms of payment of principal or of interest or redemption premium on outstanding Bonds or any of them or impose any condition with respect to such payment; or (5) Change the minimum percentage of the principal amount of the Bonds necessary for consent to such amendment. (c) If at any time the Issuer shall desire to amend this Ordinance under this Section, the Issuer shall send by U.S. mail to each registered owner of the affected Bonds a copy of the proposed amendment. (d) Whenever at any time within one year from the date of mailing of such notice the Issuer shall receive an instrument or instruments executed by the Registered Owners of at least a majority in aggregate principal amount of all of the Bonds then outstanding that are required for the amendment (or 100% if such amendment is made in accordance with paragraph (b)), which instrument or instruments shall refer to the proposed amendment and which shall specifically consent to and approve such amendment, the Issuer may adopt the amendment in substantially the same form. (e) Upon the adoption of any amendatory Ordinance pursuant to the provisions of this Section, this Ordinance shall be deemed to be modified and amended in accordance with such amendatory Ordinance, and the respective rights, duties, and obligations of the Issuer and all Registered Owners of such affected Bonds shall thereafter be determined, exercised, and enforced, subject in all respects to such amendment. (f) Any consent given by the Registered Owner of a Bond pursuant to the provisions of this Section shall be irrevocable for a period of six months from the date of such consent and shall be conclusive and binding upon all future Registered Owners of the same Bond during such period. Such consent may be revoked at any time after six months from the date of said consent by the Registered Owner who gave such consent, or by a successor in title, by filing notice with the Issuer, but such revocation shall not be effective if the Registered Owners the required amount of the affected Bonds then outstanding, have, prior to the attempted revocation, consented to and approved the amendment. (g) For the purposes of establishing ownership of the Bonds, the Issuer shall rely solely upon the registration of the ownership of such Bonds on the Registration Books kept by the Paying Agent/Registrar. Section 16. REDEMPTION OF REFUNDED OBLIGATIONS. (a) Subject to execution and delivery of the Purchase Agreement with the Purchaser, the Issuer hereby directs that the Refunded Obligations be called for redemption on the dates and at the prices set forth in the Pricing Certificate. 27 Page 104 Item 8. (b) The paying agent/registrar for the Refunded Obligations is hereby directed to provide the appropriate notice of redemption as required by the Refunded Obligations and is hereby directed to make appropriate arrangements so that the Refunded Obligations may be redeemed on the appropriate redemption date. (c) If the redemption of the Refunded Obligations results in the partial refunding of any maturity of the Refunded Obligations, the Pricing Officer shall direct the paying agent/registrar for the Refunded Obligations to designate at random and by lot which of the Refunded Obligations will be payable from and secured solely from ad valorem taxes of the Issuer pursuant to the order of the Issuer authorizing the issuance of such Refunded Obligations (the "Refunded Bond Ordinance"). For purposes of such determination and designation, all Refunded Obligations registered in denominations greater than $5,000 shall be considered to be registered in separate $5,000 denominations. The paying agent/registrar shall notify by first-class mail all registered owners of all affected bonds of such maturities that: (i) a portion of such bonds have been refunded and are secured until final maturity solely with cash and investments maintained by the Escrow Agent in the Escrow Fund, (ii) the principal amount of all affected bonds of such maturities registered in the name of such registered owner that have been refunded and are payable solely from cash and investments in the Escrow Fund and the remaining principal amount of all affected bonds of such maturities registered in the name of such registered owner, if any, have not been refunded and are payable and secured solely from ad valorem taxes of the Issuer described in the Refunded Obligation Ordinance, (iii) the registered owner is required to submit his or her Refunded Obligations to the paying agent/registrar, for the purposes of re-registering such registered owner's bonds and assigning new CUSIP numbers in order to distinguish the source of payment for the principal and interest on such bonds, and (iv) payment of principal of and interest on such bonds may, in some circumstances, be delayed until such bonds have been re-registered and new CUSIP numbers have been assigned as required by (iii) above. (d) The source of funds for payment of the principal of and interest on the Refunded Obligations on their respective maturity or redemption dates shall be from the funds deposited with the Escrow Agent, pursuant to the Escrow Agreement approved in Section 3 of this Ordinance, or from amounts deposited with the paying agent/registrar for the Refunded Obligations from proceeds of the Bonds, if there is no Escrow Agreement. Section 17. GOVERNING LAW. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 18. SEVERABILITY. If any provision of this Ordinance or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the application thereof to other circumstances shall nevertheless be valid, and this governing body hereby declares that this Ordinance would have been enacted without such invalid provision. Section 19. EVENTS OF DEFAULT. Each of the following occurrences or events for the purpose of this Ordinance is hereby declared to be an event of default (an "Event of Default"): 28 Page 105 Item 8. (i) the failure to make payment of the principal of or interest on any of the Current Interest Bonds or the Maturity Value of the Capital Appreciation Bonds when the same becomes due and payable; or (ii) default in the performance or observance of any other covenant, agreement or obligation of the Issuer, the failure to perform which materially, adversely affects the rights of the Registered Owners, including, but not limited to, their prospect or ability to be repaid in accordance with this Ordinance, and the continuation thereof for a period of 60 days after notice of such default is given by any Registered Owner to the Issuer. Section 20. REMEDIES FOR DEFAULT. (a) Upon the happening of any Event of Default, then and in every case, any Owner or an authorized representative thereof, including, but not limited to, a trustee or trustees therefor, may proceed against the Issuer for the purpose of protecting and enforcing the rights of the Owners under this Ordinance, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of the Owners hereunder or any combination of such remedies. (b) It is provided that all such proceedings shall be instituted and maintained for the equal benefit of all Owners of Bonds then outstanding. Section 21. REMEDIES NOT EXCLUSIVE. (a) No remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or under the Bonds or now or hereafter existing at law or in equity; provided, however, that notwithstanding any other provision of this Ordinance, the right to accelerate the debt evidenced by the Bonds shall not be available as a remedy under this Ordinance. (b) The exercise of any remedy herein conferred or reserved shall not be deemed a waiver of any other available remedy. (c) By accepting the delivery of a Bond authorized under this Ordinance, such Owner agrees that the certifications required to effectuate any covenants or representations contained in this Ordinance do not and shall never constitute or give rise to a personal or pecuniary liability or charge against the officers, employees or trustees of the Issuer or the Town Council. Section 22. EFFECTIVE DATE. In accordance with the provisions of V.T.C.A., Government Code, Section 1201.028, this Ordinance shall be effective immediately upon its adoption by the Town Council. 29 Page 106 Item 8. October 26, 2021 Mayor and Members of the Town Council Town of Prosper 200 S. Main Street Prosper, Texas 75078 Re: Proposed Town of Prosper, Texas, General Obligation Refunding Bonds, Series 2021 Ladies and Gentlemen: The purpose of this engagement letter is to set forth certain matters concerning the services we will perform as bond counsel to the Town of Prosper (the "Issuer") in connection with the issuance of the above-referenced bonds (the "Bonds"). We understand that the Bonds are being issued for the purpose of refunding up to $6,070,00 in aggregate principal amount of the Issuer's General Obligation Bonds, Series 2012 and the Issuer's Combination Tax and Revenue Certificates of Obligation, Series 2012 (collectively the "Refunded Bonds"). The Bonds will be issued in accordance with an ordinance that will authorize the issuance of the Bonds (the "Ordinance"), which will provide that the Bonds will be secured by a pledge of an ad valorem tax levied by the Issuer, within the limits prescribed by law. We further understand that the Bonds will be authorized to be sold by the Town Council of the Issuer (the "Council") by delegation in accordance with the Ordinance, which shall appoint the Town Manager to act as a pricing officer (the "Pricing Officer") in the manner set forth in Section 1207.007, Texas Government Code, on behalf of the Issuer. In accordance with such delegation, the Pricing Officer will be authorized to negotiate or privately place the sale of the Bonds to a purchaser or purchasers (collectively, the "Purchaser"). The Bonds will be sold only in accordance with the direction of the Council as set forth in Section 3 of the Ordinance. The date that the Bonds are priced and the sale negotiated, as aforesaid, is herein referred to as the "Sale Date." A. THE FINANCING As Bond Counsel to the Issuer, we would like for the Council to understand how the issuance of the Bonds will be effected and the ramifications of the financing. I will briefly describe the procedures and certain applicable law that pertains to the issuance of the Bonds, below. However, you should feel free to call me at any time to discuss any questions that you or your staff may have. (1) The Bonds are being issued to provide debt service savings with respect to the Issuer's future debt service payments. You should discuss the full impact of the debt service restructuring with Hilltop Securities, Inc., your financial advisor. (2) The Bonds will be "ordered to be issued" when and if the Council approves the Ordinance. The Ordinance provides for certain terms of the Bonds, and delegates to the Pricing Officer Page 107 Item 8. other terms of the Bonds. Among the matters approved in the Ordinance or delegated to the Pricing Officer are: (i) the terms of the Bonds, including the principal amortization schedule and interest rates; (ii) the Issuer's commitment to levy its debt service tax each year in an amount sufficient to pay the debt service on the Bonds; (iii) the sale of the Bonds to the Purchaser; (v) the approval of this engagement letter; (iv) approval of a paying agent agreement to whom you will make semiannual payments sufficient to pay the debt service on the Bonds; (v) instructions to the paying agent for the Refunded Bonds to give notice to the holders of the Refunded Bonds that they are being called for redemption; (vi) approval of an escrow agreement whereby the proceeds of the Bonds that are issued for refunding purposes will be used to pay the debt service on the Refunded Bonds; (vii) certain other covenants of the Issuer that are designed to allow the Issuer to issue the Bonds as tax-exempt obligations and (viii) covenants of the Issuer to provide on-going disclosures to the public markets in accordance with Rule 15c2-12 of the Securities and Exchange Commission. As you can see from the foregoing description, the Ordinance is an omnibus undertaking of the Issuer that is intended to provide for all actions and undertakings that are required for the issuance of the Bonds. There will be other certificates and letters that will be required to be executed by officers of the Issuer on the Sale Date, but they all spring from, and are authorized by, the Ordinance. (3) As noted above, the Bonds will be sold to the Purchaser in accordance with the provisions of the Ordinance and, in addition, the Purchaser will want the Issuer to sign a Sale Agreement or Private Placement Agreement (collectively, the "Sale Agreement") on the Sale Date that will set forth the terms of the sale of the Bonds. We will draft the Sale Agreement, and you should know that while it is a fairly routine form of document for this type of transaction, it does commit the Issuer to sell the Bonds to the Purchaser at the price to be negotiated between the Issuer and the Purchaser. In addition, it may contain representations of the Issuer to the Purchaser to the effect that the Issuer is authorized to issue the Bonds and that it has made full disclosure to the Purchaser and the bond investors of all material information. As a condition to the Purchaser's payment for the Bonds, the Purchaser will require this firm to deliver our Bond Counsel opinion to them, in which we will opine that the Bonds are valid obligations of the Issuer and that, assuming ongoing compliance by the Issuer with the provisions of the Ordinance, the interest on the Bonds will be exempt from federal income taxation. The Sale Agreement will also require the delivery of an opinion of the Texas Attorney General approving the Bonds, as is required by State law. We will review the Issuer's representations and agreements in the Sale Agreement to ensure that it is appropriate for the Issuer to make the representations and agreements of the nature contained in the Sale Agreement. However, if there are any unusual financial or legal circumstances affecting the Issuer that would make the covenants, representations or statements made by the Issuer in the Sale Agreement untrue, you should let the Purchaser, your financial advisor and/or the undersigned know about them as soon as possible. Page 108 Item 8. (4) You should know that the purchase price for the Bonds may be somewhat higher than the principal amount of the Bonds. This is because additional proceeds may be generated by the sale of certain of the Bonds at a premium. The premium, if any, can be used to fund the escrow fund created by the escrow agreement, mentioned above, and to pay costs of issuance of the Bonds. The premium will be taken into account in determining the savings from the refunding, which will be calculated by your financial advisor. (5) The Purchaser may offer the Bonds into the public debt markets prior to the time that the Council meets to accept the Purchaser's offer for the Bonds. Through this process, the Bonds will be "priced" – i.e., interest rates and premiums or discounts, if any, for the Bonds will be established. On the Sale Date, the Pricing Officer will consider the terms offered to the Issuer by the Purchaser based upon the market conditions and other factors that determine interest rates and pricing information. In connection with the offering of the Bonds, the Pricing Officer will be authorized to approve an offering document called an "Official Statement" that contains financial and operating data concerning the Issuer, and information that describes the Bonds, unless the Bonds are sold by private placement. If an Official Statement is prepared, the Issuer will be responsible for the information that is contained in the Official Statement to the extent that it describes the Bonds and the Issuer. Some information in any Official Statement may be prepared by others, including the Texas Education Agency (if the Bonds are guaranteed by the Permanent School Fund Guarantee Program) and the Purchaser, and the Issuer is not responsible for that information. As your Bond Counsel, we will review the Official Statement (if one is prepared) to ensure that the information describing the Bonds and the Ordinance are correct. As Bond Counsel, we do not review other areas of the Official Statement. If you know of any information that an investor would consider to be material in order to make an investment decision, and that information is omitted from, or incorrect in, the Official Statement, the Purchaser needs to know, so that it can correct the Official Statement. B. SCOPE OF ENGAGEMENT In this engagement, we have performed, or expect to perform, the following duties: (1) Subject to the completion of proceedings to our satisfaction, render our legal opinion (the "Bond Opinion"), regarding the validity and binding effect of the Bonds, the source of payment and security for the Bonds, and the excludability of interest on the Bonds from gross income for federal income tax purposes. (2) Prepare and review documents necessary or appropriate to the authorization, issuance and delivery of the Bonds, coordinate the authorization and execution of such documents, and review enabling legislation. Page 109 Item 8. (3) Assist the Issuer in seeking from other governmental authorities such approvals, permissions and exemptions as we determine are necessary or appropriate in connection with the authorization, issuance and delivery of the Bonds, except that we will not be responsible for any required federal or state securities law filings. In this connection, we particularly undertake to assist the Issuer in having the Bonds approved by the Public Finance Division of the Office of the Texas Attorney General, and, following such approval, registered by the Texas Comptroller of Public Accounts. (4) Review legal issues relating to the structure of the Bond issue. (5) Review those sections of the Official Statement (if any) to be disseminated in connection with the sale of the Bonds which describe the Bonds, the Ordinance pursuant to which they will be issued and the tax-exempt treatment of the interest on the Bonds for purposes of federal income taxation. (6) If requested, assist the Issuer in presenting information to bond rating organizations relating to legal issues affecting the issuance of the Bonds. (7) Draft the continuing disclosure undertaking of the Issuer (if any is required by the Sale Agreement). Our Bond Opinion will be delivered by us on the date the Bonds are exchanged for their purchase price (the "Closing"). The Issuer will be entitled to rely on our Bond Opinion. The Bond Opinion will be based on facts and law existing as of its date. In rendering our Bond Opinion, we will rely upon the certified proceedings and other certifications of public officials and other persons furnished to us without undertaking to verify the same by independent investigation, and we will assume continuing compliance by the Issuer with applicable laws relating to the Bonds. During the course of this engagement, we will rely on you to provide us with complete and timely information on all developments pertaining to any aspect of the Bonds and their security. We understand that you will direct members of your staff and other employees of the Issuer to cooperate with us in this regard. Our duties in this engagement are limited to those expressly set forth above. Unless we are separately engaged in writing to perform other services, our duties do not include any other services, including the following: (1) Except as described in sections A and B above, assisting in the preparation or review of an official statement or any other disclosure document with respect to the Bonds, assisting in the preparation of, or opining on, a continuing disclosure undertaking Page 110 Item 8. pertaining to the Bonds or, after Closing, providing advice concerning any actions necessary to assure compliance with any continuing disclosure undertaking, or, in connection with the issuance of the Bonds, performing an independent investigation to determine the accuracy, completeness or sufficiency of any such document or rendering advice that the official statement or other disclosure document does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. (2) Preparing requests for tax rulings from the Internal Revenue Service, or no action letters from the Securities and Exchange Commission. (3) Preparing state securities law memoranda or investment surveys with respect to the Bonds. (4) Drafting state constitutional or legislative amendments. (5) Pursuing test cases or other litigation. (6) Making an investigation or expressing any view as to the creditworthiness of the Issuer or the Bonds. (7) Representing the Issuer in Internal Revenue Service examinations or inquiries, or Securities and Exchange Commission investigations. (8) After Closing, providing continuing advice to the Issuer or any other party concerning any actions necessary to assure that interest paid on the Bonds will continue to be excludable from gross income for federal income tax purposes (e.g., our engagement does not include rebate calculations for the Bonds). (9) Negotiating the terms of, or opining as to, any investment contract. (10) Addressing any other matter not specifically set forth above that is not required to render our Bond Opinion. ATTORNEY-CLIENT RELATIONSHIP Upon execution of this engagement letter, the Issuer will be our client and an attorney-client relationship will exist between us. We further assume that all other parties in this transaction understand that we represent only the Issuer in this transaction, we are not counsel to any other party, and we are not acting as an intermediary among the parties. Our services as bond counsel are Page 111 Item 8. limited to those contracted for in this letter; the Issuer's execution of this engagement letter will constitute an acknowledgment of those limitations. Our representation of the Issuer will not affect, however, our responsibility to render an objective Bond Opinion. Our representation of the Issuer and the attorney-client relationship created by this engagement letter will be concluded upon issuance of the Bonds. Nevertheless, subsequent to Closing, we will mail the appropriate Internal Revenue Service Form 8038, prepare and distribute to the participants in the transaction a transcript of the proceedings pertaining to the Bonds. CONFLICTS As you are aware, our firm represents many political subdivisions and investment banking firms, among others, who do business with political subdivisions. It is possible that during the time that we are representing the Issuer, one or more of our present or future clients will have transactions with the Issuer. It is also possible that we may be asked to represent, in an unrelated matter, one or more of the entities involved in the issuance of the Bonds. We do not believe such representation, if it occurs, will adversely affect our ability to represent you as provided in this letter, either because such matters will be sufficiently different from the issuance of the Bonds so as to make such representations not adverse to our representation of you, or because the potential for such adversity is remote or minor and outweighed by the consideration that it is unlikely that advice given to the other client will be relevant to any aspect of the issuance of the Bonds. Execution of this letter will signify the Issuer's consent to our representation of others consistent with the circumstances described in this paragraph. FIRM NOT A MUNICIPAL ADVISOR As a consequence of the adoption of Rule 15Ba1-1 pursuant to the Securities Exchange Act of 1934 (the "Municipal Advisor Rule"), which has been promulgated by the Securities and Exchange Commission as a result of the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), we hereby inform the Issuer that we are not a "Municipal Advisor" within the meaning of the Municipal Advisor Rule or the Dodd-Frank Act (collectively, the "MA Rule"). In the course of performing our services as Bond Counsel in this transaction, we may engage in analysis, discussion, negotiation, and advice tot he Issuer regarding the legal ramifications of the structure, timing, terms, and other provisions of the financial transaction that culminates with the planned issuance of the Bonds, and such services and advice may be essential to the development of the plan of finance for the issuance of the Bonds. In turn, these services become, among other things, the basis for the transaction's basic legal documents, the preparation and delivery of the official statement or any other disclosure document that describes the material terms and provisions of the transaction, if an offering document is used in the offering of the Bonds, the preparation of the various closing certificates that embody the terms and provisions of this transaction and the preparation and delivery of our Bond Opinion. Moreover, legal advice Page 112 Item 8. and services of a traditional legal nature in the area of municipal finance inherently involve a financial advice component; but we hereby advise the Issuer that while we have expertise with respect to the legal aspects relating to the issuance of municipal securities, we are not "financial advisors" or "financial experts" in a manner that would subject us to the provisions of the MA Rule. As Bond Counsel, we provide only legal advice, not purely financial advice that is not inherent in our legal advice to the Issuer. The Issuer should seek the advice of its financial advisor with respect to the financial aspects of the issuance of the Bonds. By signing this engagement letter, the Issuer acknowledges receipt of this information, and evidences its understanding of the limitations of our role to the Issuer as Bond Counsel with respect to the MA Rule, as discussed in this paragraph. NO BOYCOTT OF ISRAEL The firm hereby represents that during the term of this agreement we do not, nor will we, boycott Israel, in compliance with and within the meaning of 50 U.S.C. Section 4607 and Section 2271.002, of the Texas Government Code. NOT A FOREIGN TERRORIST ORGANIZATION The firm hereby represents that neither the firm nor any wholly owned subsidiary, majority- owned subsidiary, parent company, or affiliate of the firm is an entity listed by the Texas Comptroller of Public Accounts under Sections 806.051, 807.051, or 2252.153 of the Texas Government Code. NO DISCRIMINATION OF FIREARMS INDUSTRY The firm hereby represents that it does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association, and the firm agrees that it will not discriminate during the term of this agreement against a firearm entity or firearm trade association within the meaning of Chapter 2274, Texas Government Code. NO DISCRIMINATION OF FOSSIL FUEL COMPANIES During the term of this agreement he firm will not refuse to deal with, terminate business activities with, or otherwise take any action that is, solely or primarily, intended to penalize, inflict economic harm on, or limit commercial relations with a company engages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel-based energy and does not commit or pledge to meet environmental standards beyond applicable federal and state law or does business with such a company. Page 113 Item 8. FEES Based upon: (i) the terms, structure, size and schedule of the financing represented by the Bonds; (ii) the duties we will undertake pursuant to this engagement letter; (iii) the time we anticipate devoting to the financing; and (iv) the responsibilities we will assume in connection therewith, our fee will be $7,500 for the first $1,000,000 in net proceeds of each series of Bonds issued, plus $1 per $1,000 of net proceeds of each series of the Bonds for all such amounts above $1,000,000. Net proceeds include any net original issue premium, less the amount of the Purchasers' discount, plus the principal amount of the Bonds (accrued interest is excluded from net proceeds). The fee includes our services rendered as Bond Counsel, but does not include client charges made or incurred on your behalf, such as travel costs, photocopying, deliveries, long distance telephone charges, telecopier charges, computer-assisted research and other expenses. In accordance with the terms of the Ordinance, the Issuer will provide the filing fee of the Texas Attorney General to Bond Counsel on a timely basis to permit the filing of the transcript of proceedings for the Bonds so that the Bonds may be approved by the Attorney General in time to meet the closing date set forth in the Official Statement. RECORDS After the transaction has closed, you will receive a transcript of proceedings that contains the primary financing and closing documents related to the transaction. At your request, papers and property furnished by you, and work product belonging to you and to which you are entitled, will be returned promptly. We may have copies of any and all documents made for our files at our sole cost and expense, to be retained by us. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to dispose of any documents or other materials retained by us after the closing of each transaction. ELECTRONIC COMMUNICATION AND STORAGE In the interest of facilitating our services to you, we may send documents, information or data electronically or via the Internet or store electronic documents or data via computer software applications hosted remotely or utilize cloud-based storage. Your confidential electronic documents or data may be transmitted or stored using these methods. We may use third party service providers to store or transmit these documents or data. In using these electronic communication and storage methods, we employ reasonable efforts to keep such communications, documents and data secure in accordance with our obligations under applicable laws, regulations, and professional standards; however, you recognize and accept that we have no control over the unauthorized interception or breach of any communications, documents or data once it has been transmitted or if it has been subject to unauthorized access while stored, notwithstanding all reasonable security measures employed by us or by our third party vendors. By your acceptance of this letter, you consent to our Page 114 Item 8. use of these electronic devices and applications and submission of confidential client information to or through third party service providers during this engagement. If the foregoing terms are acceptable to you, please so indicate by returning the enclosed copy of this engagement letter dated and signed by an authorized officer, retaining the original for your files. We look forward to working with you. Respectfully yours, Accepted and Approved Town of Prosper, Texas By: _____________________________ Mayor Date: October 26, 2021 Page 115 Item 8. Page 1 of 4 To: Mayor and Town Council From: Alex Glushko, AICP, Planning Manager Through: Harlan Jefferson, Town Manager Rebecca Zook, P.E., Executive Director of Development & Infrastructure Services Khara Dodds, AICP, Director of Development Services Re: Town Council Meeting – October 26, 2021 Agenda Item: Conduct a public hearing, and consider and act upon a request to rezone 163.2± acres, from Planned Development-90 (PD-90) to Planned Development (PD), to facilitate the development of a single family residential subdivision with private social club, located on the north side of First Street, east of Coit Road. (Z20-0021). History: This item was tabled at the August 10, 2021, August 24, 2021, September 14, 2021, and September 28, 2021, Town Council meetings. In addition, a Joint Work Session which included the Town Council, Parks and Recreation Board, and the Planning & Zoning Commission was conducted on September 1, 2020. At that time, the proposed request included a private social club with a subdivision including various lot sizes as shown below. Min. Lot Size Min. Lot Width Approx. # of Lots % of Total Lots 4,000 sq. ft. (alley-served) 40 feet 70 22% 6,000 sq. ft. 50 feet 67 21% 8,100 sq. ft. 60 feet 87 27% 10,360 sq. ft. 74 feet 50 16% 12,040 sq. ft. 86 feet 36 11% 14,250 sq. ft. 95 feet 9 3% Since that time, the applicant has revised the request by providing lot sizes consistent with the existing zoning, as described below. Description of Agenda Item: The zoning and land use of the surrounding properties are as follows: Prosper is a place where everyone matters. PLANNING Page 116 Item 9. Page 2 of 4 Zoning Current Land Use Future Land Use Plan Subject Property Planned Development- 90-Single Family Undeveloped and Single Family Residential Low Density Residential North Agricultural, Planned Development-5-Single Family, and Planned Development 18-Single Family Undeveloped and Residential Subdivision (Whispering Farms) Low Density Residential East Agricultural, Planned Development-49-Single Family Undeveloped and Residential Subdivision (Whitley Place) Low Density Residential South Planned Development- 87-Single Family Undeveloped Low Density Residential West Planned Development-5- Single Family and Planned Development 18-Single Family Undeveloped and Residential Subdivision (Greenspoint) Low Density Residential Requested Zoning – This is a request to rezone 163.2± acres, from Planned Development-90 (PD- 90) to Planned Development (PD), in order to allow for the development of a single-family residential subdivision with private social club, called Town Lake Village. The current PD-90 zoning allows maximum of 348 lots, requiring a minimum of 70 lots be a minimum of 15,000 square feet in area and a minimum of 90 feet in width, and the remaining 278 lots shall have a minimum lot area of 10,000 square feet with a minimum of 75 feet in width. The applicant is proposing to allow a maximum of 275 lots, consisting for four (4) types as follows: Lot Type Min. Lot Size Min. Lot Width Type A 18,000 sq. ft. 120 feet Type B (Minimum 67 Lots) 15,000 sq. ft. 100 feet Type C 12,000 sq. ft. 90 feet Type D 10,000 sq. ft. 75 feet While the proposed development is generally in accordance with the existing zoning with regard to lot size and development standards, the applicant is proposing rezoning to allow for the following modifications to the development standards: Land Use – PD-90 currently does not allow for a Private Social Club. This request would allow a Private Social Club as a permitted use. While it is anticipated that a Private Social Club will be provided with the development, the PD includes provisions in the instance a club is not provided, specifically with regard to proposed Park Dedication location, Hike and Bike Trail alignment, and floodplain on private lots as described below. In general, the applicant is proposing a Park Dedication location and Hike and Bike Trail alignments that deviate from the Parks Master Plan. The Parks and Recreation Board has considered the applicant’s request and is in support of the deviations, provided a Private Social Club is included in the development. The proposed PD includes provisions that allow deviations to the Parks Master Plan if a Private Social Club is included in the development, and if a Club is not included the recommendations of the Parks Master Plan would be required. Page 117 Item 9. Page 3 of 4 Floodplain – Town standards currently do not permit floodplain to be located on private lots. The western portion of the development is proposed to be gated, consists of Type A lots, and has adjacency to floodplain. While floodplain is typically located in an HOA owned and maintained common area, the proposed PD would allow the floodplain to be located on the private lots. However, the PD assigns maintenance of the floodplain to the HOA. The proposed PD includes provisions indicating if a Private Social Club is not provided in the development, floodplain located on private lots would not be permitted. The location of the gated portion of the subdivision and floodplain is shown below. Future Land Use Plan – The Future Land Use Plan recommends Low Density Residential for the property. Thoroughfare Plan – The property is adjacent to First Street, a future four-lane divided major thoroughfare. Parks Master Plan – The Parks Master Plan identifies a park and hike and bike trail on the subject property. Legal Obligations and Review: Notification was provided to neighboring property owners as required by state law. To date, staff has received two (2) Public Hearing Reply Forms, not in opposition to the request. Attached Documents: 1. Aerial and Zoning Maps 2. Exhibits A-F 3. Public Hearing Notice Reply Forms Parks and Recreation Board: At their July 8, 2021, meeting the Parks and Recreation Board approved the proposed Park Dedication and Hike and Bike Trails as proposed by zoning, by a vote of 5-0. Planning & Zoning Commission Recommendation: At their July 20, 2021, meeting, the Planning & Zoning Commission recommended the Town Council approve the request, by a vote of 6-0. Page 118 Item 9. Page 4 of 4 Staff Recommendation: Staff recommends approval of the request to rezone 163.2± acres, from Planned Development - 90 (PD-90) to Planned Development (PD), to facilitate the development of a single-family residential subdivision with private social club, located on the north side of First Street, east of Coit Road, subject to Town Council approval of a Development Agreement, including, but not limited to, right-of-way and/or easement dedication, and architectural building materials. Proposed Motion: I move to approve the request to rezone 163.2± acres, from Planned Development-90 (PD-90) to Planned Development (PD), to facilitate the development of a single-family residential subdivision with private social club, located on the north side of First Street, east of Coit Road , subject to approval of a Development Agreement, including, but not limited to, right-of-way and/or easement dedication, and architectural building materials. Page 119 Item 9. FM 1385W UNIVERSITY DR E FIRST ST PARVIN RD E UNIVERSIT Y DR N CUSTER RDE PROSPER TRL W FIRST ST W F RONT IER PK WY E FRONTIER PKWY PR OSPER RD N PRESTON RDN DALLAS PKWYS PRESTON RDFISHTRAP RD GEE RDFIRST STCOIT RDGENTRY DRGLACIER POINT CTSPICEW OOD DR TOWNLAKE DRCOUNTRY BROOK LNBRIARCLIFF DRSUNDANCE CTS P R I N G B R O O K D R NEWPORT DRPARKVIEW LN D O G W O O D D R SHARED DRIVEWAY G R E E N S P O I N T L N REDPINE DR A R B O R G L E N C T BURNET CTTO UCHSTO NE CT0 1,500750Feet µ Z20-0021 - Town Lake Village This map is for illus tr ation purpos es only. Page 120 Item 9. FM 1385W UNIVERSITY DR E FIRST ST PARVIN RD E UNIVERSIT Y DR N CUSTER RDE PROSPER TRL W FIRST ST W F RONT IER PK WY E FRONTIER PKWY PR OSPER RD N PRESTON RDN DALLAS PKWYS PRESTON RDFISHTRAP RD GEE RDS-10 S-7 PD-90 PD-18 PD-49 PD-5 PD-90PD-87 PD-5PD-5PD-77 PD-90PD-50 PD-6 PD-90PD-6 PD-90 PD-9 SF SF SF SFSF A SF-15 SF-15 R SF-15 SF SF-15 SF-10 A A SF SF A SF-15 A SF-10 R SF A A FIRST STCOIT RDGENTRY DRGLACIER POINT CTSPICEW OOD DR TOWNLAKE DRBRIARCLIFF DRS P R I N G B R O O K D R NEWPORT DRPARKVIEW LN D O G W O O D D R G R E E N S P O I N T L N REDPINE DR C H A L K H I L L L N S U N D A N C E L N BURNET CT0 1,500750Feet µ Z20-0021 - Town Lake Village This map is for illus tr ation purpos es only. Page 121 Item 9. Page 1 of 11 Town Lake Village Z20-0021 EXHIBIT “A” Page 122 Item 9. Page 2 of 11 Town Lake Village Z20-0021 EXHIBIT “A” Page 123 Item 9. Page 3 of 11 Town Lake Village Z20-0021 EXHIBIT “B” STATEMENT OF INTENT AND PURPOSE Town Lake Village is intended to be a high quality, single family neighborhood which is compatible with its surrounding uses. It is anticipated the neighborhood will have a broad mix of residents ranging from empty nesters in sprawling 1-story homes to families drawn to the community and schools in larger, 2-story homes. Town Lake Village will provide an opportunity to create a place that has the quality of life Prosper residents expect as well as easy access to other areas in the DFW Metroplex. Town Lake Village aims to provide its residents with high-quality custom homes in a community that balances manmade and natural environments. It is anticipated the neighborhood may feature a Private Club. The relationship of natural and manmade elements is further highlighted in the design of Town Lake Village. The neighborhood is designed with an emphasis on lots backing or siding creeks, greenbelts, and open space areas. The meandering nature of the streets will highlight the natural beauty and topography of the land. Along with the design of the neighborhood, development standards will be created to complement existing nearby neighborhoods by building upon major trends in household type, characteristics, and preferences as a means of enhancing the attractiveness of the area. The combination of these design ideas creates a neighborhood attractive to a broad assortment of groups wanting to call Prosper home. Page 124 Item 9. Page 4 of 11 Town Lake Village Z20-0021 EXHIBIT “C” DEVELOPMENT STANDARDS Conformance with the Town’s Zoning Ordinance and Subdivision Ordinance: Except as otherwise set forth in these Development Standards, the regulations of the Town’s Zoning Ordinance (Ordinance No. 05-20), as it exists or may be amended, and the Subdivision Ordinance (Ordinance No. 17-41), as it exists or may be amended, shall apply. 1. Development Plans 1.1. Concept Plans: The property shall be developed in general accordance with the attached concept plans, set forth in Exhibit D. However, if the property does not develop in accordance with Exhibit D, it shall otherwise be developed in accordance with the development standards of this Planned Development, the Zoning Ordinance, and the Subdivision Ordinance, as they exist or may be amended. Development of a Private Social Club shall be developed in general accordance with Exhibit D-1. 1.2. Elevations: Development of a Private Social Club shall be developed in general accordance with the attached elevations, set forth in Exhibit F. 2. Allowed Uses: 2.1. Land Uses ▪ Accessory buildings incidental to the allowed use and constructed of the same materials as the main structure. ▪ Churches / rectories ▪ Civic facilities ▪ Electronic security facilities, including gatehouses and control counter ▪ Fire stations and public safety facilities ▪ Gated communities with private streets, (developed to Town Standards) ▪ Public and/or Private Parks, playgrounds and neighborhood recreation facilities including, but not limited to, swimming pools, clubhouse facilities and tennis courts, to be stated on plat ▪ Residential uses as described herein ▪ Schools – public and/or private ▪ Golf Course for Country Club (including clubhouse, maintenance facilities, on-course food and beverage structure, and on course restroom facilities.) ▪ Private Social Club (including, but not limited to a clubhouse, maintenance facilities, tennis, pickleball, basketball/sport courts with lights (conforming to the Town Lighting Regulations), dining facilities, food and beverage service, beer, wine, and spirit service (in accordance with applicable TABC regulations), pools, and other club amenities). o Incidental uses may include but are not limited to a winery or micro-brewery (in accordance with applicable TABC regulations), and childcare provided for club membership in conjunction with club activities. A Licensed Child Care Center is not included in this definition. ▪ Temporary real estate sales offices for each builder or developer during the development and marketing of the Planned Development which shall be removed no later than 30 days following the final issuance of the last Certificate of Occupancy (CO) on the last lot owned by that builder. ▪ Temporary buildings / offices for builders’ or developers’ incidental construction work on the premises, which shall be removed upon completion of such work. ▪ Other necessary temporary construction facilities, which shall be removed upon completion of such work. ▪ Utility distribution lines and facilities. Electric substations shall be allowed by SUP. 3. Lot Area Regulations: 3.1. General Description 3.1.1. This Planned Development Ordinance shall permit a maximum of 275 single-family residential units. Page 125 Item 9. Page 5 of 11 Town Lake Village 3.2. Lot Area Regulations * Minimum of 67 lots. 4. General Standards 4.1. Layout and Design 4.1.1. A Private Social Club is not a required component of Town Lake Village. However, should a Private Social Club be included in the development, it shall be in general accordance with Exhibits D and F. 4.1.2. If a Private Social Club is not provided with the development, design and development of Town Lake Village shall be in accordance as otherwise provide in this Planned Development, the Zoning Ordinance, and the Subdivision Ordinance, as they exist or may be amended. 4.1.3. The layout of Town Lake Village shall allow lots to back or side creeks, greenbelts, and open space areas, in general conformance with Exhibit D. This provision shall not be applicable if a Private Social Club is not provided in conjunction with the development. 4.2. Floodplain 4.2.1. Lots may include floodplain in general accordance with Exhibit D. However, no dwelling unit or permanent structure shall be constructed within the limits of any floodplain. The provision shall not be applicable if a Private Social Club is not provided in conjunction with the development. 4.2.2. A Final Plat that provides lots that include floodplain shall not be approved until a Final Plat for a Private Social Club has been approved. 4.2.3. Maintenance of all floodplain areas within residential lots shall be the responsibility of the HOA. The HOA may transfer mowing and all other maintenance responsibilities to the individual owner through CC&R’s or other, but Town shall place all responsibilities including maintenance of excessive erosion, facilities installed without a permit or other floodplain obligations to the HOA. 4.3. Driveways 4.3.1. All driveways shall be constructed of one or more of the following materials: brick pavers, stone, interlocking pavers, decorative rock, or exposed aggregate; with brick or stone borders or other approved materials. The Developer may consider driveways of stamped or broom finished concrete with brick or stone borders on a case-by-case basis. All front entry surfaces must be constructed in brick, stone, slate, flagstone, or other approved materials to match the architecture of the house. All sidewalks and steps from the public sidewalk or front driveway to the front entry must be constructed in brick, stone, slate, flagstone, or other approved materials to match the architecture of the house. 5. Building Standards 5.1. Garages 5.1.1. All garage doors shall be constructed of decorative wood, glass, or similar architectural material. Standard metal or aluminum garage doors are not permitted. 5.1.2. Except for garage doors provided on J-swing garages, garage doors shall be located at or behind the primary front façade of the home. 5.1.3. Garage doors shall be setback a minimum of 25 feet from the front property line. 6. Landscape Standards 6.1. A minimum 30’ landscape buffer shall be provided adjacent to all roadways identified on the Thoroughfare Plan. The buffer shall be in a private “non-buildable” lot that is owned and maintained by the HOA. All plantings, screening, fencing and design elements shall comply with the Town’s Subdivision Ordinance as it exists or may be amended. 6.2. Trees 6.2.1. Front yard: a minimum of two 4” caliper trees shall be required in the front yard. Type A Type B* Type C Type D Minimum Lot Area (sq. ft.) 18,000 15,000 12,000 SF 10,000 SF Minimum Lot Width (ft.) 120 100 90 75 Minimum Lot Depth (ft.) 150 150 130 125 Minimum Front Yard (ft.) 20 20 20 20 Interior Side (ft.) 10 7 7 7 Street Side - Corner Lot (ft.) 15 15 15 15 Minimum Rear Lot (ft.) 5 5 5 5 Minimum Dwelling Area (sq. ft.) 4,000 3,800 3,500 3,000 Page 126 Item 9. Page 6 of 11 Town Lake Village 6.2.2. Rear yard: a minimum of one 4” caliper tree shall be required in the rear yard. 6.2.2.1. Lots with more than 95 feet of frontage to adjacent streets will require no less than two 4” caliper trees in the back yard. 6.2.3. Corner Lots: two additional 4” caliper trees shall be planted in each side yard space that abuts a street. These required trees shall be in addition to the required front yard and rear yard trees. 6.2.4. Timing: the required trees will typically be planted by the builder at the time of house construction and must be installed prior to the issuance of the certificate of occupancy for that lot and house. 6.3. Parks and Trails 6.3.1. All trails, parks and open spaces shall generally conform to Exhibit D at the cost of the developer. The park and trail improvements shall meet the requirements of the park improvement fee obligation for this development 6.3.2. Construction of trails shall include all sufficient storm drain infrastructure. 6.3.3. All hike and bike trails will be constructed with the associated phase of development, and built to meet the federal, state and local ADA and town trail requirements. 6.3.4. In addition to the hike and bike trails, the developer will be responsible for the construction of a parking lot at no cost to the Town. This parking lot will consist of a minimum 10 parking spaces and a handicap parking space. 6.3.5. Construction of hike and bike trails shall not commence until a Final Plat for a Private Social Club has been approved. 6.4. Parkland Dedication Requirements 6.4.1. The parkland dedication requirement shall be in accordance with Exhibit D, and all dedicated parks and trails shall be maintained by the Homeowners Association. 6.4.2. In addition to the parkland dedication, the developer will be required to ensure there is access to the waters edge 6.4.3. Parkland dedication shall not be accepted until a Final Plat for a Private Social Club has been approved. 6.4.4. Parkland dedication shall not occur until park improvements with associated parkland property is complete. 6.4.5. Hike and bike trail easements on the proposed parkland shall be required to meet the requirement of having hike and bike trails constructed with each phase of development. 6.5. The open spaces and detention areas shown on Exhibit D, which may vary in size, design, and location shall be landscaped and maintained by the Homeowners Association. 7. Screening / Walls /Fencing 7.1. Screening / Walls / Fencing 7.1.1. Walls and screens visible from streets or common areas shall be constructed of masonry matching that of the residence, masonry and ornamental metal fencing, or ornamental metal fencing. Walls and screens not visible from streets or common areas may be constructed of smooth finish redwood or #1 grade cedar, or similar. All fence posts shall be steel set in concrete and shall not be visible from the alley or another dwelling. All fence tops shall be level with grade changes stepped up or down as the grade changes. 7.1.2. A common ornamental metal fence detail, to be used for all rear and side fencing within the greenbelt / flood plain areas, will be chosen by the developer. 7.1.3. All fence returns shall consist of ornamental metal, not to exceed 8’ in height. 7.1.4. Corner lots adjacent to a street shall consist of ornamental metal fencing, not to exceed 8’ in height. 7.2. Mechanical Equipment 7.2.1. All mechanical equipment (pool, air conditioning, etc.) shall be completely screened from public view. A combination of hedges or walls shall be used to screen equipment or mechanical areas. 7.2.2. All mechanical equipment, air conditioning compressors, service yards, storage piles, woodpiles, garbage receptacles, and similar items must be visually screened from streets, alleys, common areas and neighboring lots by a combination of hedges or walls that match the residence material. 7.3. Screening along thoroughfares shall be decorative fencing, ornamental metal fencing, masonry columns, berms, shrubs, ponds or a combination of these elements. Page 127 Item 9. Page 7 of 11 Town Lake Village Z20-0021 EXHIBIT “D” Page 128 Item 9. Page 8 of 11 Town Lake Village Z20-0021 EXHIBIT “D-1” Page 129 Item 9. Page 9 of 11 Town Lake Village Z20-0021 EXHIBIT “E” DEVELOPMENT SCHEDULE It is anticipated that construction of Town Lake Village will begin within the next one to five years. Dates are approximate and are subject to change with final design and due to external forces, such as market conditions. Page 130 Item 9. Page 10 of 11 Town Lake Village Z20-0021 EXHIBIT “F” The following conceptual elevations and renderings shall be representative of the architectural style, colors, and material selections and placement for the club. Page 131 Item 9. Page 11 of 11 Town Lake Village Z20-0021 EXHIBIT “F” The following conceptual elevations and renderings shall be representative of the architectural style, colors, and material selections and placement for the club. Page 132 Item 9. Page 133 Item 9. Page 134 Item 9.