10-053 - R TOWN OF PROSPER, TEXAS RESOLUTION NO. 10-053
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER
OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE AN ESCROW
AGREEMENT BETWEEN THE TOWN OF PROSPER AND
LIGHTHOUSE CHURCH RELATED TO THE FUTURE
CONSTRUCTION OF SIDEWALKS ALONG PROSPER TRAIL AND
CUSTER ROAD.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby authorized to
execute, on behalf of the Town Council of the Town of Prosper, Texas, an Escrow Agreement
between the Town of Prosper and Lighthouse Church related to the future construction of
sidewalks along Prosper Trail and Custer Road, as hereto attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 22nd day of June, 2010.
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Ray Soni h, Mayos _ ........
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�tiliew D. Denton TRMC �
own Secretary AW
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ov, -rimilo SEM�/1 1 ESCROW AGRE'E'1VtENT
(Lighthouse Sidewalk Construction)
THIS ESCROW AGREEMENT j.,("A mient") is entered into by and between thec,L
TOWN OF PROSPER, TEXAS, a municipal corporation ("Town"), and LIGHTHOUSE
CHURCH ("Owner").
WHEREAS, Owner owns 4.259 acres, more or less, situated in the George Horn Survey,
Abstract No. 412, Collin County, Texas and adjacent to the future extension of Custer Road and
Prosper Trail, more accurately described and depicted on Exhibit A, which is attached to and
made a part of this Agreement ("llroperty"); and
WHEREAS, in conjunction with Owner's development of the Property, Owner is
required pursuant to Section 10.5 of the Town's subdivision ordinance to pay for and/or
construct sidewalks for the length of the Property along Custer Road and Prosper Trail as such
rights-of-way are shown on the final plat attached hereto as Exhibit B ("Qbligatiogs");
WHEREAS, the Town and/or TxDOT will construct Custer Road and Prosper Trail
adjacent to the Property at a future date, determined solely by the Town and/or TxDOT; and
WHEREAS, the Owner has requested that the Owner not be required to pay for and/or
construct the sidewalks before Custer Road and Prosper Trail are constructed. Instead, Owner
requests that Escrow Funds, as defined herein, should be deposited by the Owner only at such
time as the Town and/or TxDOT construct Custer Road and Prosper Trail adjacent to the
Property; and
WHEREAS, the Town has agreed to allow Owner to deposit the Escrow Fees, as defined
herein, at the time that Custer Road and Prosper Trail are constructed, but only under the
conditions stated herein.
Now, therefore, in consideration of the premises and the mutual covenants herein
contained, Owner and Town hereby agree as follows:
1. Escrow Funds. Owner shall deposit nineteen thousand, three hundred and 00/100
dollars ($19,300.00) ("Escrow Funds") in escrow to pay for the Obligations. The amount of the
Escrow Funds is based on estimates provided by Owner's Engineer, such estimates are provided
in Exhibit C, which is attached to and made a part of this Agreement. If the actual construction
costs of the Obligations exceed the amount of the Escrow Funds, Owner shall pay the
construction cost overruns as provided below.
2. Payment of Escrow Funds. Within fifteen (15) days after receiving written
notice from the Town of the intent to bid out the contract to construct Custer Road and/or
Prosper Trial, or portions thereof, adjacent to the Property, Owner shall pay the Escrow Funds
into an escrow account, at the location solely determined by the Town. The Escrow Funds shall
be available to the Town to pay for the construction costs associated with the Obligations, and
the Town shall, in its sole discretion, be entitled to use, at any time, all or a portion of the Escrow
Escrow Agreement(Lighthouse Church) Page 1
570191.v2
Funds in connection with the construction of the Obligations. The Town shall fiurther be entitled
to, as its sole property, any and all interest earned on the Escrow Funds, and Owner hereby
waives and relinquishes any and all rights or claim to interest earned, if any, on the Escrow
Funds.
3. l e'nlainilm Escrow Funds. In addition, if any amount of the Escrow Funds
remains in the account after the Town has accepted the construction of and paid all of the
construction costs associated with the Obligations, as solely determined by the Town,
("_ qir lilri.tr Es'c" � 1°°uji(�as"), Owner shall be entitled to, as its sole property, the Remaining
Escrow Funds. The Town may, in its sole discretion, utilize the interest earned on the
Remaining Escrow Funds, if any, for any purpose.
4. Constt"ti ction "ost Overruns. Owner shall, within thirty (30) days of receiving
written notice from the Town, tender to the Town any and all construction cost overruns
associated with the construction of the Obligations. The phrase "construction cost overruns" as
used herein shall mean those costs, which may be incurred by the Town in the design and
construction of the Obligations, and which are over and above the Escrow Funds.
Notwithstanding anything to the contrary herein, the Town and Owner agree that the Town shall,
under no circumstance, be responsible for any part or portion of the construction costs
associated, directly or indirectly, with the Obligations.
5. Digchlitnelm fWaiver of Dania-eslLiabilit . Owner acknowledges and agrees that
the Town is not providing any guarantee, representation and/or warranty, and the Town hereby
disclaims any guarantee, representation and/or warranty, of any work performed by TxDOT, its
agents, employees, representatives, contractors, subcontractors and/or designees, in connection
with the construction of the Obligations, in whole or in part.
OWNEEII ]TS OFF:i't"Fits IDIIIECTOlts AGENTS IMt'RESENTATtVt+S EMP1,0YEE HEIR'
REi'[t.US1+:NTATiV"ES LEGATEEESI SUCCESSOMS,ASSIGNS2 GRANTEES ANiVOR TRUSTEES, HEREBY
RELEASES TIME TOWN ITS COUNCII, MEMBERS OFt+10ERIs E['RESENI'A°'C"IVES AND
EMPLOYEES,Es FROM AGwPID AGAINST AND WAIVES ANY AND ALL RIGI fS TO ANY AND ALL CI,AI'M8
AND/OR DEMANDS FOR DAC' AGr,,.i jPERSONAL OR PROPtaaRI INJ URY-(INCLU DING DEATH), O
OTHERWISE rUTHEY MAY IDAVIr.wIT1I 1M,GAR D TCD 111E CONSTRUCTION ANI.D/OIt COMPI,ETIO
OIC THE OBLIGATIONS AIMED/OR OR ANY OTHER ACT AMID/OR OMISSION RE'LAIJNG DIREC'My OR
IN DII 11,IC ITI.'V TO THE OBLIGATIONS IN WH01,E OR IN PART AS PROVIDED IN 1°1115 GU.,I.IwIECV'�.
IN DENIt" IFICATION. OW ER ITS OFFICERS. DIRECTORS, ACSEZ�I`I's
ItUIP'I1lI�SEN't'ATIVES EMPI;,OYEIS IIEIIZ,'. REPRESE ""I.A`YIVI;S LEGATEES :SUCCESSORS ASSIGNS,
GRANTEES AMID/t itTRUSTEES Dar-las-HEREBY AGREE'F0FULLY DEI"W'END INDEMNIFYI AGSM HOLD
RAI~IMUSS "ICTIIE TOWN,,ITS COUN(.3I, MEMBERS OFFICERS, A+I:;MTS IIEPRE'sENTA"I"IVP;S AVIA
EMPLOYEES FROM AND AGAINST' All, DAMAGES, INJURIEs INCLU)CIS G DEATH)-,---CLAIMS,
PROPERTY DAMAGES fiNCLUDING LOSS OF USE I OSSES. DEMAND-S. sU11'S JUDGMENTS AND
COSTS INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING G A`I".I'a:DltNEV'S
EES ANDD EXPENSES INC.URIZEID IN LeNITORCII'G` HIs INLDEI"wINII""I CAUSIe ID I3"I''THE I1'I!GLIC.ENT
GROSSLY NEGLIGENT, AND/OR IISTE TIONAI., ACT ANWOR OMISSION OF TX D ' AND/Olt
OWNER, THEIR RESPECTIVE OFFICERS. II,EPIUSEI' TATIVI+� I:aVIPIODIpES
Escrow Agreement(Lighthouse Church) Page 2
570191.v2
CONTRACTORS, BCONTRU]"MR, j( vNrSut:s Irswur
ORANV,QTfjERjj1MD PARTJIS FOR
WHOM OWNER M, IN FIS/1111UR PERFORNIANCT
ANQ/Qf �ARJSJNG Q OF �THE C'.QNSrR.LJCT10N.M THE OBIAGvrioNs iujvsuvqr ro -n-jis
Umuuwr�a, REGARDLESS OF THE JOINT OR.( )NCV111111111'r NEGUG
OFT lit',THE Q(�'ENCJI 011STRIUABILM'
IN rt's stux, ojscju,�"rto R SELECT
DEFENSE,COUNSEL T10 BE RETAINED 134 OWNER IN FULFILLING ITS OBLIGA"[LON I I EI Z D'A J N1 1)ffil Z
TO DEFEND AND INDUAINIFy Tin '01 UNLESS StdI-1I'S�C1XP11L1S1SLVNVAjVIFD BY 'I'llb,
TOWN IN WRITING. PROVIDE A PORTION OR ALL OF ITS
OWN DEFENSE; i-i0wvvrji.,,Tj-n,TOWN IS UNDER NO OBLIGATION TO DO So. ANY SUCII ACTION
'FE
13YTHE"I'ONNIN IS NOTTO BE CONSTRUED AS Lk_WAIVER,Ole OWNEWS 03LIGATIONTO DE IND
THE TOWN OR AS A WAIVER OF OWNER'S OBLIGATION'I'() INDEMNIFY Ti4F.TOWN PURSUANT
TO THis AG MCEMENT. OWNER SHALL III! ',I'Hr,, 1,OWN-APPROVED DEFENSE COUNSEL
WITHIN SEVEN (7) RtTSINERR DAYS OF THE TnwN1q WRrFTF!,N NOTICE THAT Tim TOWN IS
INVOKING ITS RIGHT TO IND14,MNIFICAI'tONIJNI)ER 'rins NGREEMEN't". IF OWNER V611 To
RETAIN COUNSEL WITHIN SUCH TIME PER[op THE Towx SHAIA,IIAVE 111ERIGHT'll
-1111, -1-111 10 RETAIN
DEFENSE COUNSEL ON ITS OWN BFHALF SNI")_OWNER, SHALL BE LIABLI1, FOR ALL 0IS"I'S"
INCURRED BY 'I'ME TOWN. THE RIGHTS AND OT3LK,,Wr(()NS Cjjj,;A�rFD BVrjjjS
SHALL SURVIVE TERMINATIQN!� ��THJS�AGJUT�Mj � pAj�ACRAjjj
11. Limitations of Agreement. The parties hereto acknowledge this Agreement is
limited to the Obligations only. Town Ordinances covering property taxes, utility rates and fees,
park dedication, perimeter streets, pro rata fees, impact fees and the like are not affected by this
Agreement. Further, this Agreement does not waive or limit any of the obligations of Owner to
Town under any other ordinance whether now existing or in the future arising.
12. Default. In the event Owner fails to comply with any of the provisions of this
Agreement, the Town shall have the following remedies in addition to the Town's other rights
and remedies, at law or in equity:
a. to notify the County and request their revocation and/or denial of any and
all Building Permits and Certificates of Occupancy; and/or
b. to file this instrument in the Land Records of Collin County as a lien
and/or encumbrance against Owner and/or the Property; and/or
C. to immediately, without further notice to Owner, cease any and all design
and/or construction of the Obligations; and/or
d. to seek specific performance.
In the event of the Town's default under this Agreement, Owner will be entitled
to seek specific performance and/or any other remedy available to them at law or in equity,
Escrow Agreement(Lighthouse Church) Page 3
570191.v2
13. of tinuity. This Agreement shall he a covenant running with the land and shall
be binding upon Owner, its officers, directors, agents, representatives, employees, heirs,
representatives, legatees, successors, assigns, grantees and/or trustees. In addition, the parties
shall cause this Agreement to be filed in the Land Records of Collin County,
14. Miscellaneous.
a. Notice. Any notice required to be sent under this Agreement must be in
writing and may be served by depositing same in the United States Mail, addressed to the party
to be notified, postage pre-paid and registered or certified with return receipt requested, or by
delivering the same in person to such party via a hand-delivery service, Federal Express or any
courier service that provides a return receipt showing the date of actual delivery of same to the
addressee thereof. Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties shall be as follows:
If to the Town, to:
Town of Prosper
Attn: Mike Land, Town Manager
121 W. Broadway
P.O. Box 307
Prosper, Texas 75078
If to Owner, to:
Lighthouse Fellowship Church
4255 E. Prosper Trail
Prosper, Texas 75078
b. Assignment. This Agreement is not assignable.
c. nt:ii°e, A . This Agreement contains the entire agreement of the
parties with respect to the matters contained herein and may not be modified or terminated
except upon the provisions hereof or by the mutual written agreement of the parties hereto.
d. Venue. This Agreement shall be construed in accordance with the laws of
the State of Texas and shall be performable in Collin County, Texas.
e. Consideration. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the sufficiency of which is forever
confessed.
f. Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes.
g. Authority to Execute. The individuals executing this Agreement on behalf
of the respective parties below represent to each other and to others that all appropriate and
Escrow Agreement(Lighthouse Church) Page 4
570191.v2
necessary action has been taken to authorize the individual who is executing this Agreement to
do so for and on behalf of the party for which his or her signature appears, that there are no other
parties or entities required to execute this Agreement in order for the same to be an authorized
and binding agreement on the party for whom the individual is signing this Agreement and that
each individual affixing his or her signature hereto is authorized to do so, and such authorization
is valid and effective on the date hereof:
h. avmlags/ eve_gbil tv. hi case any one or more of the provisions contained
in this Agreement shall liar any reason be field to be invalid, ille,a.l or unenforceable in any
respect, such iruvadidity, illegality ora unetit"orceability shall not affectany other provision thereof,
and this Agreement sha.11 be construed as if`such invalid, illegal or unenforceable provision had
never been contained herein.
i. Representations. Each signatory represents this Agreement has been read
by the party for which this Agreement is executed and that such party has had an opportunity to
confer with its counsel.
J• Miscellaneous 1�)ra t0visitat�s. This Agreement shall be deemed
drafted equally by all parties hereto. The language of all parts of this Agreement shall be
construed as a whole according to its fair meaning, and any presumption or principle that the
language herein is to be construed against any party shall not apply. Headings in this Agreement
are for the convenience of the parties and are not intended to be used in construing this
document.
k. ove�reign;bripju ity. The parties agree that the Town have not waived its
sovereign immunity by entering into and performing its obligations under this Agreement.
1. No Third 1"?K!y Bemueficwalue�s. Nothing in this Agreement shall be
construed to create tummy right in aamy third party not a signatory to this Agreenlient, and the parties
do not intend to create any third party beneficiaries by entering into this Agreernent.
m. ec t ,llss. The representations, covenants, and recitations set forth in the
forgoing recitals of this Agreement are true and correct and are hereby incorporated into the
body of this Agreement and adopted as findings of the City and the Owner.
In witness whereof, the parties have executed this Agreement to be effective the
ay° �.._............. �.......... .. . 12010.
Owner:
Lighthouse Church
By:
. .�,.mftor
Escrow Agreement(Lighthouse Church) Page 5
570191.v2
Town:
Attest: Town of Prosper, 1% x'1,
1
j . .. ._ .._ Y
apt.DentonTown Secretary Mike Lan-d, ow....
Manager
Escrow Agreement(Lighthouse Church) Page 6
570191A
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E%firntate lklte.
2801 Capital Street
Wylie,Texas 75093
(972)941-8400 (972)941-8401 fax
Average Prices Used: All
Engineers Opinion Of Probable Construction Cost
*+"This estimate has been completed on limited information and should be used For project evaluation.Prior to making Financial commitments based on this estimate,these numbers
should be verified by Engineering Concepts&Design L,.P.
"'No assumptions have been made for the following items:Contractor hlob&e inon,Entry Features,Landscaping,Irrigation,Screening`yells,Land Cost,Sidewalks,Impact Fees,
Street Sign fees,Inspection Fees,er Franchise Utilities Inchalirlg Eleciric,.Caifrle�P11(une,etc_
Paving
6 A 3.SFB jr 18 Uri 4,j.unolit 111th Unit Price Item Amount
or
E`It Ptl�vmuwConcrete 5'pdcawIY9,,m'x'%ktrtttp�a 4 1,e 5,100 SF 000Or)0 'alil.'S1YO
7xuaid- uitctntc. S
tdr.avillarlklxxxu gnmorFree Ramp. Single 5 EA $80000 $4000
Paving Total $19,300
In providing opinions of probable construction cost,the client understands that the design professional has no comiol overt crus or Ilii•price of IaBacr,exlnrcparrscoil„
materials,or over the contractor's method of pricing,and that the opinions or probable cor s(ruetion costs provkhA her our rise to ba,anodc asor the basis of"the do$[on
professional's qualifications and experience. The client should also understand that quantities are based on avail ablo poollrilinaryr mrpm"I tion and em aml wiR 911[111 go
once engineering design is completed.The design professional makes no warranty,expressed or implied,as In il'm vectunr y or(arch opinions as conrtraxed Ur bids of
actual costs.
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