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HomeMy WebLinkAboutRes 2014-05-11 SIA West Crossing Phase 4.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2014-05-11 A RESOLUTION OF THE CITY OF ANNA, TEXAS RESOLUTION APPROVING A SUBDIVISION IMPROVEMENT AGREEMENT FOR WEST CROSSING, PHASE 4 WHEREAS, the City of Anna, Texas (the "City") and Bloomfield Homes, L.P. ("Owner") desire to enter into a Subdivision Improvement Agreement for West Crossing, Phase 4 (the "Agreement"); and WHEREAS, the City Council of the City of Anna, Texas find that approval of the Agreement is in the best interest of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The City Council hereby approves Subdivision Improvement Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 27th day of May, 2014. APPROVED: ------ATTEST: )iZ&I Mike Crist, Mayor Nat ilkison, City Secretary RES. 2014-05-11 Subdivision Improvement Agreement West Crossing Phase 4 PAGE 1 OF 1 05-27-14 SUBDIVISION IMPROVEMENT AGREEMENT WEST CROSSING, PHASE 4 This Subdivision Improvement Agreement (this "Agreement") is entered into between the City of Anna, Texas, a home -rule municipality (the "City") and Bloomfield Homes L.P., a Texas limited partnership, (the "Owner"), for the purposes and consideration stated below. The term "Owner" includes all owners of the Property, and each of the owners of the Property are jointly and severally bound to the obligations of the "Owner" under this Agreement. WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties," or, each individually, as "Party"; and WHEREAS, it is the Parties' mutual intent that this Agreement shall govern only the subject matter specifically set forth herein and shall supersede any previous agreement between the Parties and City Regulations only to the extent that any such agreements or City Regulations directly conflict with the terms of this Agreement; and WHEREAS, Owner owns and desires to develop a parcel or parcels of real property (the "Property") in Collin County, Texas, which is composed of approximately 14.14 acres of land located entirely within the corporate limits of the City of Anna and is more particularly and separately or jointly described in the attached Exhibit A; and, WHEREAS, Owner acknowledges that the obligations undertaken under this Agreement are primarily for the benefit of the Property; and, WHEREAS, Owner understands and acknowledges that acceptance of this Agreement is not an exaction or a concession demanded by the City but rather is an undertaking of Owner's voluntary design to ensure consistency, quality, and adequate infrastructure that will benefit Owner's development of the Property; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: SECTION 1 RECITALS INCORPORATED The recitals set forth above are incorporated herein as if set forth in full to further describe the Parties' intent under this Agreement and said recitals constitute representations by Owner and the City. SECTION 2 DEFINITIONS City Code means The Anna City Code of Ordinances. City Regulations mean City Code provisions, ordinances, design standards, uniform codes, and other policies duly adopted by the City. SUBDIVISION IMPROVEMENT AGREEMENT Page I 1 Development means the new residential development on the Property that is the subject of this Agreement. Park Development Fees means fees charged by the City to a developer or builder for the general purpose of funding the construction of park facilities as described in Part III -A, Article 4, Section 5.03 (d), of the City Code. Public Improvements) means the Park Facilities. Park Facilities means the park facilities to be constructed by Owner as described and depicted in Exhibit B, attached hereto, and in accordance with design/construction plans to be approved by the City. SECTION 3 GENERAL PROVISIONS (a) Maintenance Bond, or Other Security. The Owner shall be responsible for and shall guarantee the costs of any repairs which may become necessary to any part of the work performed in connection with the Park Facilities, arising from defective workmanship or materials used therein, for a full period of two years from the date of final acceptance of the Park Facilities. For each paving construction contract for any part of the Park Facilities, Owner or Owner's contractor must execute a Maintenance Bond in accordance with applicable City Regulations that guarantee the costs of any repairs which may become necessary to any part of the paving construction work performed in connection with the Park Facilities, arising from defective workmanship or materials used therein, for a full period of two years from the date of final acceptance of the Park Facilities constructed under such contract. (b) Acceptance of Public Improvements and Withholding of Services. It shall not be a breach or violation of the Agreement if the City withholds City services of any type that it is obligated to provide under this Agreement or otherwise obligated to provide until the required Park Facilities are properly constructed according to the approved engineering plans and City Regulations, and until such Park Facilities are dedicated to and accepted by the City. From and after the inspection and acceptance by the City of the Park Facilities, such improvements and dedications shall be owned and maintained (subject to the maintenance bond requirement) by the City. Owner's sole remedy for nonperformance of this Agreement by the City shall be to seek specific performance of the terms of this Agreement. This Agreement does not waive any rights or immunities otherwise existing under law unless expressly set forth herein and the Parties understand and agree that this Agreement is not one for the provision of goods or services to the City by Owner or any other person. (c) Approval of Plats/Plans. Approval by the City, the City's Engineer or other City employee or representative, of any plans, designs or specifications submitted by Owner pursuant to this Agreement or pursuant to City Regulations shall not constitute or be deemed to be a SUBDIVISION IMPROVEMENT AGREEMENT Page 12 release of the responsibility and liability of Owner, his engineer, employees, officers or agents for the accuracy and competency of their design and specifications. Further, any such approvals shall not be deemed to be an assumption of such responsibility and liability by the City for any defect in the design and specifications prepared by Owner's engineer, his officers, agents, servants or employees, it being the intent of the parties that approval by the City's engineer signifies the City's approval on only the general design concept of the improvements to be constructed. (d) Insurance. Owner or its contractor(s) shall acquire and maintain, during the period of time when any of the Public Improvements are under construction (and until the full and final completion of the Public Improvements and acceptance thereof by the City: (a) workers compensation insurance in the amount required by law; and (b) commercial general liability insurance including personal injury liability, premises operations liability, and contractual liability, covering, but not limited to, the liability assumed under any indemnification provisions of this Agreement, with limits of liability for bodily injury, death and property damage of not less than $1,000,000.00, whichever is greater. Coverage must be on an "per occurrence" basis. Such insurance shall also cover any and all claims which might arise out of the Public Improvement construction contracts, whether by Owner, a contractor, subcontractor, material man, or otherwise. All such insurance shall: (i) be issued by a carrier which is rated "A-1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas; and (ii) name the City as an additional insured and contain a waiver of subrogation endorsement in favor of the City. Upon the execution of Public Improvement construction contracts, Owner shall provide to the City certificates of insurance evidencing such insurance coverage together with the declaration of such policies, along with the endorsement naming the City as an additional insured. Each such policy shall provide that, at least 30 days prior to the cancellation, non -renewal or modification of the same, the City shall receive written notice of such cancellation, non -renewal or modification. (e) Indemnification and Hold Harmless. OWNER COVENANTS AND AGREES TO INDEMNIFY AND DOES HEREBY INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICIALS, OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING BUT NOT LIMITED TO DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS) ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE NEGLIGENT OR OTHERWISE WRONGFUL ACTS OR OMISSIONS OF OWNER, ITS AGENTS, SERVANTS, CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN OR EMPLOYEES IN CONNECTION WITH THE DESIGN, CONSTRUCTION OR INSTALLATION OF THE PUBLIC IMPROVEMENTS, INCLUDING BUT NOT LIMITED TO INJURY OR DAMAGE TO CITY PROPERTY. SUCH INDEMNITY SHALL SURVIVE THE TERM OF THIS AGREEMENT. THE OWNER FURTHER COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL CLAIMS OR SUITS, BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY WHO HAS NOT SIGNED THIS AGREEMENT TO THE EXTENT SUCH SUBDIVISION IMPROVEMENT AGREEMENT Page 13 CLAIMS OR SUITS: (1) ARISE IN ANY WAY FROM THE CITY'S RELIANCE ON OWNER'S REPRESENTATIONS IN THIS AGREEMENT; OR (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH OWNERSHIP OF THE PROPERTY OR ASSIGNMENT OF THE FACILITIES AGREEMENT. (f) Relationship of Parties. At no time shall the city have any control over or charge of the Owner's design, construction or installation of any of the Public Improvements that are the subject of this agreement, nor the means, methods, techniques, sequences or procedures utilized for said design, construction or installation. There is no joint enterprise between the City and Owner. SECTION 4 PARK FACILITIES (a) Owner Obligations. Within two (2) years of the Effective Date, Owner agrees to complete in a good and workmanlike manner construction of the Park Facilities. If Owner fails to fully complete construction of the Park Facilities in said manner within two years of the Effective Date of this Agreement, then the City's obligations under Section 4(b) shall terminate and Owner shall not be entitled to the credit described therein. (b) City. Obligations. City agrees that it shall waive and forgo collection of the Park Development Fees that would normally be charged in connection with the issuance of building permits for single family homes to be constructed on lots located within the West Crossing subdivision and owned by the Owner, up to a maximum amount of $24,450. Notwithstanding any provision of this Agreement, inspection fees, impact fees, and other chargeable fees apart from said maximum amount of Park Development Fees shall remain applicable, and such fees shall be collected under applicable ordinances and regulations. SECTION 5 EFFECTIVE DATE The Effective Date of this Agreement is the date that the last of the Parties' signatures to this Agreement is fully and properly affixed to this Agreement and acknowledged by a public notary. The City's duties and obligations hereunder shall not arise unless and until the City Council has duly adopted this Agreement and Owner has duly executed same. SECTION 6 SUCCESSORS AND ASSIGNS a) All obligations and covenants of Owner under this Agreement shall constitute covenants running with the land, and shall bind Owner and each successive owner of all of any portion of the Property; provided, however, the terms of this Agreement shall (i) not be binding on the owner of any residence that is purchased by such owner from a homebuilder, and (ii) be subordinate to the lien of (and shall not be binding on) any mortgagee who finances or refinances residences constructed on the Property. SUBDIVISION IMPROVEMENT AGREEMENT Page 14 b) Without limiting the generality of the foregoing, and except as otherwise provided in this paragraph, Owner has the right (from time to time upon delivery of 21 days' prior written note to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity (an "Assignee") that is or will become an owner of any portion of the Property or that is an entity that is controlled by or under common control with Owner. Notwithstanding the foregoing, Owner shall not assign this Agreement, in whole or in part, to an Assignee if the City, after action by the City Council (which action shall be considered by the City in good faith based upon financial and performance criteria, and which action shall not be unreasonably withheld, conditioned or delayed), notifies Owner within 14 days of receipt of the written notice required by this Section 6(b) that such Assignee fails to satisfy the City's financial and performance criteria. If the City provides such notice to Owner then the Parties, within 14 days of such notice, shall mediate the dispute. The mediator shall be mutually agreed-upon; and the cost of such mediator shall be paid equally by the Parties. The mediator's determination shall be binding on the Parties. If a Party refuses to mediate, then the decision of the Party willing to mediate shall be binding. c) Each assignment shall be in writing executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, Owner shall not be released until the City receives an executed copy of such assignment. Further, no assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. SECTION 7 MISCELLANEOUS PROVISIONS (a) Authority to execute contract. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. (b) Termination. Notwithstanding any other provision of this Agreement, the Agreement and the parties' obligations hereunder, including but not limited to the City's waiver of Park SUBDIVISION IMPROVEMENT AGREEMENT Page 15 Development Fees, shall expire five (5) years following the Effective Date even if the total amount of the Park Development Fees that the City waives under this Agreement is less than the maximum amount stipulated in Section 4(b) of this Agreement. (c) Notice. All notices, demands or other communications required or provided hereunder shall be in writing and shall be deemed to have been given on the earlier to occur of actual receipt or three (3) days after the same are deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, addressed to the parties at the addresses set forth below or at such other addresses as such parties may designate by written notice to the other parties in accordance with this notice provision. If to the City: City of Anna Attn: City Manager P.O. Box 776 111 N. Powell Parkway Anna, TX 75409 If to Owner: Bloomfield Homes L.P. 1050 E. Hwy 114 Suite 210 Southlake, TX 76092 (d) Complete Agreement. This Agreement embodies the entire Agreement between the Parties and cannot be varied or terminated except as set forth in this Agreement, or by written agreement of the Parties amending the terms of this Agreement. (e) Applicable Law and Venue. This Agreement shall be performable and all compensation payable in Collin County, Texas. Venue and exclusive jurisdiction under this Agreement lies in a court of competent jurisdiction in Collin County, Texas. (f) Severability. If any clause, paragraph, section or portion of this Agreement shall be found to be illegal, unlawful, unconstitutional or void for any reason, the balance of the Agreement shall remain in full force and effect and the parties shall be deemed to have contracted as if said clause, section, paragraph or portion had not been in the Agreement initially. (g) Representation. Each signatory representing 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. (h) Consideration. This Agreement is executed by the Parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is hereby acknowledged. (i) Waiver. Waiver by either Party or any breach of this Agreement, or the failure of either Party to enforce any of the provisions of this Agreement, at any time, shall not in any way SUBDIVISION IMPROVEMENT AGREEMENT Page 16 affect, limit or waive such Party's right thereafter to enforce and compel strict compliance of the Agreement. (j) Miscellaneous Drafting Provisions. This Agreement was 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 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) No Other Beneficiaries. This Agreement is for the sole and exclusive benefit of the City and Owner and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. (1) Binding Effect. This Agreement shall bind and inure to the benefit of the City and Owner and to any successor owner/developer of the property, may be recorded in the Collin County property records, and runs with the land. (m) Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. [SIGNATURES PAGES FOLLOW, REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] SUBDIVISION IMPROVEMENT AGREEMENT Page 17 BLOOMFIELD HOMES, L.P., A Texas limited partnership By: Bloomfield Properties, Inc., a Texas corporation, its General Partner 22 Donald J. Dykstra, its President IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF § Before me, the undersigned notary public, on the day of ,2014, personally appeared Donald J. Dykstra, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as President of Bloomfield Properties, Inc., a Texas corporation, as General Partner of Bloomfield Homes, L.P., a Texas limited partnership. Notary Public, State of Texas SUBDIVISION IMPROVEMENT AGREEMENT Page 18 CITY OF ANNA By: Philip Sanders, City Manager Notary Public, State of Texas STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the day of ,2014, personally appeared Philip Sanders, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as City Manager of the City of Anna and on behalf of the City of Anna. Notary Public, State of Texas SUBDIVISION IMPROVEMENT AGREEMENT Page 19 ATTACHMENTS Exhibit A —The Property (legal description and survey drawing) Exhibit B — Park Facilities SUBDIVISION IMPROVEMENT AGREEMENT Page 110 EXHIBIT "A" WEST CROSSING PHASE 4 "�,C,OLAS "OSS PROP u-1 :6i7 tl Q MVE Dal-, Z o p Ni A�:: si Z: tK 5 x, 14 e QF; zz HONEMnL D,,? (3 By: I City of Anna WEST CROSSING PHASE 4 MAY ' 8, 24,14 PARK IMPROVEMENT COST SUMMARY Bloomfield Homes Anna, Texas Item # Description West Crossing Trail Head Improvements (North) 1 Excavation 2 6" 3600 PSI Reinf. Conc. Street 3 6" Lime Stabilized Subgrade 4 Hydrated Lime 5 Engineering,Staking, and Contingencies Total Costs West Crossing Trail Head Improvement (South) 1 Irrigation 2 Bermuda Sod 3 Crepe Myrtles 4 Red Oaks (3 in. cal.) 5 Park Benches 8 Engineering and surveying Total Costs Unit Quant Price Amount CY 70 $2.00 $140.00 SY 200 $32.00 $6,400.00 SY 215 $2.40 $516.00 Tons 4 $220.00 $880.00 $1,058.40 $8,994.40 LS 1 $8,000.00 SY 1,200 $2.00 $2,400.00 EA 9 $100.00 $900.00 EA 2 $250.00 $500.00 EA 2 $578.00 $1,156.00 LS 1 $2,500.00 $2,500.00 TOTAL PARK IMPROVEMENTS $24,4S0.40� EXHIBIT IvBvv West Crossing Phase J Parking Spaci ',y Ly 1 0 UZz MOM !g z� -.0 F O QXF^ -- --Ow Jw +aw wLKNf? I w Y 00 U www \ Y U e \ O \\ 00 U May 29, 2014 Bloomfield Homes L.P. 1050 E. Hwy 114 Suite 210 Southlake, Texas 76092 Re: Subdivision Improvement Agreement, West Crossing, Phase 4 Dear Sir, Enclosed are two (2) copies of the Subdivision Improvement Agreement for West Crossing, Phase 4. Please sign both copies and return both copies to Natha Wilkison, City Secretary. Upon receiving the agreements, I will have the City Manager, Philip Sanders sign both copies and return an executed copy to you. If you have any questions or concerns please contact Natha Wilkison, City Secretary at 972-924-3325. Sincerely, Nat a Wilkison City Secretary City of Anna CITY OF ANNA, TEXAS 111 N. POWELL PKWY. P.O. BOX 776 ANNA, TEXAS 75409-0776 PHONE 972-924-3325 FAX 972.924-2620 www.annatexas.gov