Loading...
13-46 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. 13-46 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, AUTHORIZING THE TOWN MANAGER OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE THE TOWN OF PROSPER AND TOWN OF LITTLE ELM INTERLOCAL AGREEMENT FOR THE REDUCTION AND RELEASE OF DESIGNATED PORTIONS OF THE TOWN OF PROSPER'S EXTRATERRITORIAL JURISDICTION, AS MORE FULLY DESCRIBED HEREIN, AND TAKE ANY AND ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE SAME, INCLUDING THE TOWN COUNCIL'S CONSENT TO SAME; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Hillwood Development Company, by and through H4 Little Elm, LP, is a real estate development company that owns approximately 257.3 acres, more or less, in the extraterritorial jurisdiction ("ETJ") of the Town of Prosper, Texas ("Prosper"), which property is more particularly described in the Town of Prosper and Town of Little Elm Interlocal Agreement for the Reduction and Release of Designated Portions of the Town of Prosper's Extraterritorial Jurisdiction ("Agreement"), attached hereto as Exhibit A and incorporated by reference; and WHEREAS, Section 42.023 of the Texas Local Government Code authorizes Prosper and the Town of Little Elm, Texas ("Little Elm"), to enter into an agreement to allocate portions of Prosper's ETJ to Little Elm's ETJ; and WHEREAS, Prosper and Little Elm have negotiated the Agreement and all pertinent matters related thereto have been fully addressed by Prosper and Little Elm. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THAT: SECTION 1 All of the above premises are found to be true and correct and are incorporated into the body of this Resolution as if copied in their entirety. SECTION 2 The Town Manager of the Town of Prosper, Texas, is hereby authorized to execute the "Town of Prosper and Town of Little Elm Interlocal Agreement for the Reduction and Release of Designated Portions of the Town of Prosper's Extraterritorial Jurisdiction," and take any and all other actions necessary to effectuate the same. This Resolution shall constitute consent to the terms and conditions contained in said Interlocal Agreement. SECTION 3 This Resolution is effective immediately upon its passage. DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, THIS 27TH DAY OF AUGUST, 2013. s Ray Sml li, Mayor ATTEST: RobyBit ile, TownSecretary APPROVED AS TO FORM AND LEGALITY: Terrence S.'elch, Town Attorney Resolution No. 13-46, Page 2 Doc -110989 **** Electronically Filed Document **** Denton County Cynthia Mitchell County Clerk Document Number: 2013-110989 Recorded As : ERX-AGREEMENT Recorded On: September 04, 2013 Recorded At: 02:11:18 pm Number of Pages: 14 Recording Fee: $68.00 Parties: Direct -TOWN OF PROSPER Indirect- Receipt ndirect- Receipt Number: 1086127 Processed By: Dwayne Kitzmiller THIS PAGE IS PART OF THE INSTRUMENT Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY because of color or race is invalid and unenforceable under federal law. THE &TATE u! TEXAS) y]"'„^yq, COUNTY OF DENTONj `,F'` 1 b—by -Aitr t1N the i-trauKwu� F14ED i. A. Fila N—b.r saquuw ow the dQuAlfe �' pri�w—dd��I�{v/�ayq{N w ddw.o/Iduuly RECORDED in the Ofr.,W 1w—rdt a1 Vse R Comfy, Tmu. / " dA& Cordy Clerk .i, D.M— Cwmty, T.rz- u+w+w Alter Recordine Reloro toy Town Secretary Town of Prosper, Texas P.O. Box 307 Prosper, Texas 75078; and Town Secretary Town of Little Elm, Texas 100 West Eldorado Parkway Little Elm, Texas 75068-5060 TOWN OF PROSPER AND TOWN OF LITTLE ELM INTERLOCAL AGREEMENT FOR THE REDUCTION AND RELEASE OF DESIGNATED PORTIONS OF THE TOWN OF PROSPER'S EXTRATERRITORIAL JURISDICTION THIS INTERLOCAL AGREEMENT ("A1acenlellt") is entered into to be effective on the date that the last approving Party executes the Agreement, under and in accordance with the provisions of the Interlocal Cooperation Act, Chapter 791, Texas Government Code, by and between the TOWN OF LITTLE ELM, TEXAS, a home -rule municipality ("Little E1111"), and the TOWN OF PROSPER, TEXAS, a home -rule municipality ("1'1_ _cls 1Lr"). Little Elm and Prosper are sometimes referred to collectively as the "Panics" or individually as a "Party." ARTICLE ONE RECITALS 1.1 WHEREAS, the Interlocal Cooperation Act authorizes any local government to contract with one or more local governments to perform governmental functions and services under the terms of the Act; and 1.2 WHEREAS, Local Government Code section 42.023 authorizes Prosper to reduce its extraterritorial jurisdiction ("ETJ") by agreement with Little Elm; and 1.3 WHEREAS, the Hillwood Development Company, by and through H4 Little Elm, LP, a Texas limited partnership ("Hillwood"), is a real estate development company that owns approximately 257.3 acres, more or less, that is located in Denton County and in Prosper's ETJ ("Hillwt�o(VProsver ETJ Tract"), which Hillwood/Prosper ETJ Tract is more particularly described by metes and bounds in Exhibit A attached hereto and incorporated herein for all purposes and graphically portrayed in Exhibit 1J attached hereto and incorporated herein for all purposes; and 1.5 WHEREAS, Prosper has determined that it is in the best interests of Prosper to release the Hillwood/Prosper ETJ Tract in favor of Little Elm's ETJ under the terms and conditions set forth in this Agreement. NOW, THEREFORE, this Agreement is made and entered into by Little Elm and Prosper, upon and for the mutual consideration hereinafter stated, which entities hereby agree and understand as follows: PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 1 ARTICLE TWO REPRESENTATIONS/CONSIDERATIONS 2.1 Representations. (A) The Parties believe that the Recitals set forth above are true and correct in all material respects and are hereby incorporated into the body of this Agreement as though fully set forth in their entirety herein. (B) Each of the Parties acknowledges and agrees that it has the requisite power and authority to enter into this Agreement; that this Agreement has been duly authorized and approved by its governing body; and that the person executing the Agreement on its behalf has been duly authorized to do so. 2.2 Consideratioti. The Parties acknowledge and agree that the obligations, rights and benefits provided herein are mutual and supported by adequate consideration. ARTICLE THREE SPECIFIC TERMS 3.1 Pro,swrls Attorne Irr fees. Little Elm agrees to pay, or cause to be paid, to Prosper any attorney's fees charged to Prosper by Prosper's legal counsel for, among other things, legal review and revision of this Agreement and all further agreements, ordinances or resolutions contemplated by this Agreement, negotiations and discussions with Little Elm's attorney and the provision of advice to applicable Prosper Town Staff and the Prosper Town Council, in an amount not to exceed $5,000.00 within ten (10) days upon receipt of an invoice of same from Prosper. 3.2 Transaction Fee. Little Elm agrees to pay, or cause to be paid, to Prosper a transaction fee of $1,100.00 per acre, as consideration for Prosper's release of the Hillwood/Prosper ETJ Tract, for a total amount of $283,030.00. This fee shall be paid contemporaneously with or before the release of the Hillwood/Prosper ETJ Tract from Prosper's ETJ. 3.3 1'ieveloment B uildhi Restrictions. Little Elm agrees that it will require Hillwood, in Little Elm's pre -annexation and development agreement with Hillwood, to restrict Hillwood's use and development of the Hillwood/Prosper ETJ Tract as follows: (A) The average density within the Hillwood/Prosper ETJ Tract shall not exceed 4.25 single family dwelling units per gross acre. (B) Multifamily residential dwelling units shall not be permitted within the Hillwood/Prosper ETJ Tract. PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 2 (C) Within the Hillwood/Prosper ETJ Tract, the exterior facades of a main building or structure, excluding glass windows and doors, shall be constructed of ninety percent (90%) Masonry (as defined below). For purposes of this Paragraph, "Masonry" shall mean clay fired brick, natural and manufactured stone, granite, marble, stucco and architectural concrete block. Masonry shall also include cementatious fiber board, but cementatious fiber board may only constitute fifty percent (50%) of stories other than the first story. However, cementatious fiber board may not be used as a fagade cladding material for portions of upper stories that are in the same vertical plane as the first story. Cementatious fiber board may also be used for architectural features, including window box -outs, bay windows, room dormers, garage door headers, columns, chimneys not part of an exterior wall, or other architectural features. The remaining ten percent (10%) of the exterior facades of a main building or structure, excluding glass windows and doors, shall not be wood, vinyl or EFIS. (D) At least 13 acres of property shall be provided for common areas and open space within the Hillwood/Prosper ETJ Tract. ARTICLE FOUR REDUCTION AND RELEASE OF ETJ TO LITTLE ELM Prosper agrees that, upon the Effective Date of this Agreement and with no other action needing to be taken by Prosper, the Hillwood/Prosper ETJ Tract is released from Prosper's ETJ and, to the extent allowed by law, allocated into Little Elm's ETJ. Notwithstanding any matter in this Agreement, this Agreement shall not affect or otherwise change any Prosper corporate limits or Prosper ETJ except as specifically set forth herein. This Agreement shall not inure to the benefit of any party not a signatory to this Agreement. ARTICLE FIVE REMEDIES UPON DEFAULT It is not intended hereby to specify (and this Agreement shall not be considered as specifying) an exclusive remedy for any default, but all such other remedies (other than termination) existing at law or in equity may be availed of by either Party hereto and shall be cumulative. However, recognizing that each Party's undertakings hereunder are obligations, failure in the performance of which cannot be adequately compensated in money damages alone, each Party agrees, in the event of any default on its part, that the other Party shall have available to them the equitable remedy of mandamus and specific performance in addition to any other legal and equitable remedies (other than termination) which may also be available. No waiver or waivers of any breach or default (or any breaches or defaults) by either Party hereto or of performance by the other Party of any duty or obligation hereunder shall be deemed a waiver thereof in the future, nor PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 3 shall any such waiver or waivers be deemed or construed to be a waiver of subsequent breaches, defaults of any kind, character or description, under any circumstances. ARTICLE SIX INDEMNIFICATION 6.1 TO THE EXTENT ALLOWED BY LAW, EACH PARTY AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER (AND ITS OFFICERS, AGENTS AND EMPLOYEES) FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES (INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF USE), AND ANY OTHER LOSSES, DEMANDS, SUITS, JUDGMENTS, AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, IN ANY WAY ARISING OUT OF, OR RELATED TO, OR RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, OR CAUSED BY ITS NEGLIGENT ACTS OR OMISSIONS (OR THOSE OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR ANY OTHER THIRD PARTIES FOR WHOM IT IS LEGALLY RESPONSIBLE) IN CONNECTION WITH PERFORMING THIS AGREEMENT. 6.2 THIS ARTICLE SIX SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. ARTICLE SEVEN GENERAL PROVISIONS 7.1 Term of Agreement. This Agreement shall be deemed effective on and from the date that this Agreement is approved by both the Prosper Town Council and the Little Elm Town Counsel ("Effective Date"), whichever approval occurring last being deemed the Effective Date. 7.2 Mod'ificatiotu. No change, amendment or modification of this Agreement shall be made or be effective except by means of written agreement executed by the Parties hereto. 7.3 Addresses and Notice. Unless otherwise provided herein, any notice, communication, request, reply or advise (herein severally and collectively, for convenience, called "➢ttic") herein provided or permitted to be given, made or accepted by either Party to any other Party must be in writing and may be given or be served by depositing the same in the United States mail postpaid and registered or certified and addressed to the Party to be notified, with return receipt requested, or by delivering the same to an officer of such Party, or by prepaid telegram when appropriate, addressed to the Party to be notified. Notice deposited in the mail in the manner described above shall be conclusively deemed to be effective, unless otherwise stated herein, from and after the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 4 and when received by the Party to be notified. For any purposes of notice, the addresses of the Parties shall, until changed as hereinafter provided, be as follows: If to Prosper, to: Town of Prosper P.O. Box 307 Prosper, Texas 75078 Attention: Town Manager If to Little Elm, to: Town of Little Elm 100 West Eldorado Parkway Little Elm, Texas 75068-5060 Attention: Town Manager The Parties hereto shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least fifteen (15) days written notice to the other Party hereto. 7.4 Representations. Each signatory represents this Agreement has been read by the Party for which this Agreement is executed and that each Party has had an opportunity to confer with its counsel. 7.5 No Third Partv Beneficiaries. Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, and the Parties do not intend to create any third party beneficiaries by entering into this Agreement. 7.6 State or Federal Laves, Rales, Orders or Regulations. This Agreement is subject to all applicable Federal and State law, as they exist, may be amended or in the future arising, and any applicable permits, ordinances, rules, orders and regulations of any local, State or Federal governmental authority having or asserting jurisdiction, but nothing contained herein shall be construed as a waiver of any right to question or contest any such law, ordinance, order, rule or regulation in any forum having jurisdiction. 7.7 Savins/S'everability. The Parties hereto specifically agree that in case any one or more of the sections, subsections, provisions, clauses or words of this Agreement or the application of such sections, subsections, provisions, clauses or words to any situation or circumstance shall be, or should be held to be, for any reason, invalid or unconstitutional, under the laws or constitutions of the State of Texas or the United States of America, or in contravention of any such laws or constitutions, such invalidity, unconstitutionality or contravention shall not affect any other sections, subsections, provisions, clauses or words of this Agreement or the application of such sections, subsections, provisions, clauses or words to any other situation or circumstances, and it is intended that this Agreement shall be severable and shall be construed and applied as if any such invalid or unconstitutional sections, subsection, provision, clause or word had not been included herein, and the rights and obligations of the Parties hereto shall be construed and remain in force accordingly. PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 5 7.8 Venue. This Agreement shall be construed in accordance with the laws of the State of Texas and shall be performable in Denton County, Texas, which is the County in which the Hillwood/Prosper ETJ Tract is located. It is specifically agreed between the Parties to this Agreement that Denton County, Texas, is the place of performance of this Agreement; and in the event that any legal proceeding is brought to enforce this Agreement or any provision hereof, the same shall be brought and exclusive venue shall lie in Denton County, Texas. 7.9 Sovereign :Immunity. By entering into and executing this Agreement, the Parties agree neither Prosper nor Little Elm waives, limits or surrenders its sovereign immunity, except as specifically provided for herein. 7.10 Mis,cc11a.neouS Dl*afting Provisions. This Agreement shall be deemed drafted equally by the Parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and the presumption or principle that the language herein is to be construed against either 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 Agreement. IN WITNESS WHEREOF, the Parties hereto, acting under authority of their respective governing bodies, have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an original. [SIGNATURE AND ACKNOWLEDGMENT PAGES FOLLOW] PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 6 t` `' 1)'F VED BY THE TOWN COUNCIL FOR THE TOWN OF PROSPER, TEXAS, in "^^ " its meetfiig'j;pl l mi the 27th day of August, 2013, and executed by its authorized representative. ATTEST: arms: 1 lvii l own Secretary APPROVED AS TO FORM: AC Name: Terrence S. Welch Title: Town Attorney TOWN OF PROSPER By: — ........ . Harlan .1 Title: ToWo Date: of Prosper PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 7 APPROVED BY THE TOWN COUNCIL FOR THE TOWN OF LITTLE ELM, TEXAS, in its meeting held on the 20th day of August, 2013, and executed by its authorized representative. Name: Kath Oilli-ps Title: Town Secretary APPROVED7 TO FORM: 3ZS 1 -1- Name: Robert F. Brown Title: Town Attorney 014%1 of I ELM 0 dV do 40 %.00 0 001 01 111111110 TOWN OF LITTLE ELM By: -' wS............ ............... Diivid Hillock Title: Mayor,'rown of Little Elm Date-, '64'"° ,"—T PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 8 EXHIBIT "A" Hillwood/Prosper ETJ Tract Metes and Bounds Description PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 9 TOWN OF PROSPER ETJ 257.3 Acres BEING a tract of land out of a called 757.040 acre tract described in deed to H4 Little Elm, LP, recorded in Instrument No. 2013-48961 of the Denton County Deed Records (D.R.D.C.T.) and being located in the William Lumpkin Survey, Abstract 730 and the Thomas Navo Survey, Abstract 964 and being more particularly described as follows: BEGINNING at the southeast corner of said 109.503 acre tract and the west right of way line of FM 1385; THENCE N 87° 43'38" W, along the south line of the said 109.503 acre tract, a distance of 1891.09 feet to a point for the northwest corner of the 20.264 acre Savannah Properties Associates, LP tract as recorded in Document No. 2004-164139 of the D.R.D.C.T., and being the northeast corner of the 40.739 acre tract of land described in deed to Savannah Properties Associates, LP, as recorded in Document No. 2004-37441, D.R.D.C.T.; THENCE N 87° 53' 20" W, continuing along the south line of the said 109.503 acre tract, a distance of 939.59 feet to a point for the most easterly southwest corner of the said 109.503 acre tract and being the northwest corner of the said 40.739 acre tract and being in the east line of the said 645.238 acre tract; THENCE S 020 11'21" W, along the east line of the said 645.238 acre tract, a distance of 1981.34 feet to a point in the approximate centerline of said Fishtrap Road and being the southeast corner of the said 645.238 acre tract; THENCE N 880 03' 53" W, along the approximate centerline of Fishtrap Road and along the most northerly south line of the said 645.238 acre tract, a distance of 2935.71 feet to a point for corner at the beginning of a non -tangent curve to the right; THENCE Along said non -tangent curve to the right having a central angle of 26°24'40", a radius of 5280.00 feet, a chord bearing of N 15°49'17" E, 2412.37 feet and an are length of 2433.86 feet to a point for corner in the north line of the said 645.238 acre tract; THENCE S 880 09'26" E, along the north line of the said 645.238 acre tract, a distance of 642.79 feet to a point for the westerly southwest comer of said 109.503 acre tract; THENCE N 020 01' 46" E, along the west line of the said 109.503 acre tract and along the approximate centerline of Byran Road, a distance of 862.83 feet to a point for the northwest corner of said 109.503 acre tract; THENCE, along the north line of the said 109.503 acre tract, the following courses: S 88° 33'41" E, a distance of 1200.64 feet to a point for corner; S 88° 34'26" E, a distance of 818.96 feet to a point for corner; S 88° 15'06" E, a distance of 438.64 feet to a point for corner; S 00° 34' 22" E, a distance of 122.17 feet to a point for corner; Page 1 of 2 Union Park S 87° 46' 03" E, a distance of 2091.15 feet to a point for the northeast corner of the said 109.503 acre tract and being on the west right of way line of FM 1385, an 80 foot right of way; THENCE S 020 04' 14" W, along the east line of the said 109.503 acre tract and along the west right-of- way line of said FM 1385, a distance of 1124.66 feet the POINT OF BEGINNING, containing 257.3 acres of land, more or less. This document was prepared under 22 TAC 663.21, does not does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. Page 2 of 2 Union Park EXHIBIT "B" Hillwood/Prosper ETJ Tract Map PROSPER AND LITTLE ELM INTERLOCAL AGREEMENT FOR RELEASE OF ETJ Page 10 I Creek (DCFWSD #8A) Ij NAVO 1;�J) NAVO M.S. Union Park (670.8 Acres) 0 375 750 1,500 Feet Leaend I µ, ..... ....... Union Park Property (670.8 Ac.) M M Prosper ETJ (257 3 Ac.) BYRAN RD Savannah (DCFWSD 910) Prosper ETJ (257.3 Acres) 16 m IM it IQ 114 1C, A R 11 E IP, TOWN OF PROSPER ETJ II UNION PARK Dtc Aug 17, 2013