HomeMy WebLinkAboutRes 2019-08-595 Bloomfield Homes Development Agmt (Lakeview Park)CITY OF ANNA, TEXAS
RESOLUTION NO. 4019 -0� -595
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT
AGREEMENT WITH BLOOMFIELD HOMES, L.P., A TEXAS LIMITED PARTNERSHIP AND
THE CITY OF ANNA
WHEREAS, Bloomfield Homes, L.P., a Texas limited partnership (Owner) desires to make park
improvements within the corporate limits of the City of Anna, Texas (the City); and,
WHEREAS, the Owner has agreed to construct certain park improvements connection with
development of the property; and,
WHEREAS the Owner has requested park fee credits for the construction of said park
improvements;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS, THAT:
Section 1. Recitals Incorporated.
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 2. Approval of Subdivision Improvement Agreement
The City Council hereby approves the Development Agreement with Bloomfield Homes,
attached hereto as Exhibit 1, and ratifies and approves the City Manager's execution of the
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 13th day
of August 2019.
ATTEST:
Carrie L. Smith, City Secretary
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PROVED:
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DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement") is entered into between the City of
Anna, Texas (the "City") and BLOOMFIELD HOMES, L.P. ("Owner"). 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"; and
WHEREAS, it is the Parties mutual intent that this Agreement shall govern only the subject
matter specifically set forth herein and that this Agreement shall supersede any other
agreement between the Parties and the City's ordinances and other regulations only to the
extent that any such agreements, ordinances or regulations directly conflict with the terms
of this Agreement; and
WHEREAS, the Owner owns parcels of real property in Collin County, Texas, said real
property being located entirely within the corporate limits of the City of Anna and being
described and/or depicted in the attached EXHIBITS A, B, C and D (collectively, the
"Property"); and,
WHEREAS, the Owner has dedicated property to the City for the development of park
and recreation facilities or other public use (the "Land Dedication for Public Use"); and
WHEREAS, the Parties desires to make certain public improvements (the "Public
Improvements") to the Property; and
WHEREAS, the Owner acknowledges that the City's acceptance of the Land
Dedication for Public Use and Public Improvements places a significant burden upon
the City to thereafter maintain the Land Dedication for Public Use and Public
Improvements for public purposes;
WHEREAS, the City acknowledges that the Owner will incur significant costs in the
making of the Public Improvements and that those costs will result in some public benefit;
WHEREAS, the City is agreeable to the Owner's proposal to the Public Improvements
and in consideration thereof is willing to forgo collection of certain Park Fees with
respect to the Property;
WHEREAS, in consideration of the construction of the Public Improvements, the City
agrees to forgo collection of certain fees to be paid in connection with the issuance of
single-family home building permits and fees in lieu of park land dedication required
on 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 the representations by the owner:
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Section 2. Terms. Unless the context requires otherwise, and in addition to the terms
defined above, the following terms and phrases used in this Agreement have the
meanings set out below:
Park Fees means any applicable fees described in Part IV, Article 4, Section 6 of the
Anna City Code of Ordinances.
Section 3. Public Improvements. The Owner shall fund, and complete construction
of the Public Improvements as indicated in EXHIBITS E -F and shown on
EXHIBITS G -K within 120 days of the effective date of this Agreement. To the
extent not already dedicated to the City, the Owner shall dedicate the Public
Improvements to the City within 30 days after the City provides a written request
for such dedication(s) and such dedication shall be in a form acceptable to the City
such as a plat or a separate instrument.
Section 4. Park Fees. Provided that the Owner fulfills its obligations under this
Agreement to timely complete construction of all of the Public Improvements, the City
agrees that it shall not be entitled to collect, and shall forgo collection of the Park Fees
that would normally be charged in connection with the issuance of building permits
and filing of final plats for up to a maximum of $723,799. Notwithstanding any provision
of this Agreement, inspection fees and other customary fees apart from Park Fees
shall remain applicable to the Property and Public Improvements, and such fees shall
be collected, under applicable ordinances and regulations. If Owner fails to fulfill its
obligation to timely complete construction of all of the Public Improvements, then the
Park Fees that would be due for the areas comprising the Property shall be paid by
the Owner to the City upon 30 days' written request by the City to the Owner.
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 the Owner has duly executed same.
Section 6. INDEMNIFICATION, HOLD HARMLESS AND RIGHT OF CONTROL.
THE OWNER, INCLUDING ITS RESPECTIVE SUCCESSORS AND ASSIGNS,
HEREBY COVENANT AND AGREE TO RELEASE, DEFEND, HOLD HARMLESS,
AND INDEMNIFY THE CITY AND ITS OFFICERS, AGENTS, SERVANTS AND
EMPLOYEES, FROM AND AGAINST ALL THIRD -PARTY CLAIMS, SUITS,
JUDGMENTS, DAMAGES, AND DEMANDS (TOGETHER, "CLAIMS") AGAINST THE
CITY, WHETHER REAL OR ASSERTED INCLUDING WITHOUT LIMITATION
REASONABLE ATTORNEY'S FEES, RELATED EXPENSES, EXPERT WITNESS
FEES, CONSULTANT FEES, AND OTHER COSTS, ARISING OUT OF THE
NEGLIGENCE, GROSS NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF
OWNER, INCLUDING WITHOUT LIMITATION THE NEGLIGENCE, GROSS
NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF ITS RESPECTIVE
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN, AND
AGENTS, IN CONNECTION WITH OR IN ANY MANNER RELATING TO THE
CONSTRUCTION AND INSTALLATION OF THE PUBLIC IMPROVEMENTS AND
ANY OTHER CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THE
PERFORMANCE OF THIS AGREEMENT. THE OWNER COVENANTS AND
AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE CITY AGAINST ANY AND ALL CLAIMS, BY ANY PERSON CLAIMING
AN OWNERSHIP INTEREST IN THE PROPERTY WHO HAS NOT SIGNED
THIS AGREEMENT AND WHICH CLAIMS ARISE IN ANY WAY FROM THE
CITY'S RELIANCE ON THIS AGREEMENT, AND RELATE IN ANY MANNER OR
ARISE IN CONNECTION WITH THIS AGREEMENT.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE CITY SHALL HAVE
NO RIGHT OF CONTROL, SUPERVISION, OR DIRECTION OVER THE DESIGN OR
CONSTRUCTION OF ANY PUBLIC IMPROVEMENT, NOR THE MEANS,
METHODS, SEQUENCES, PROCEDURES, AND TECHNIQUES UTILIZED TO
COMPLETE THE PUBLIC IMPROVEMENTS. CITY SHALL EXERCISE
CUSTOMARY INSPECTION AND PERMITTING FUNCTIONS, AS REQUIRED BY
CITY ORDINANCES AND REGULATIONS.
During the term of this Agreement and until Owner fully completes the
Public Improvements, Owner shall secure polices of insurance for work place general
liability and worker's compensation. Owner or its contractor(s) shall acquire and
maintain, during the period of time when any of work under this Agreement is being
performed or is under construction (and until the full and final completion of
said work): (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. Such insurance shall also cover any and all claims which might arise out
of this Agreement or any subcontracts, whether by Owner, a contractor, subcontractor,
material man, or otherwise. Coverage must be on an "per occurrence" basis. 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 request, 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.
Section 7. This Agreement may be enforced by the City by any proceeding at law or
in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of
this Agreement thereafter. From and after the inspection and acceptance by the City
of the Public Improvement or any part thereof, such Public Improvement shall be
owned by the City. Owner agrees to take any action reasonably required by the City to
transfer or otherwise dedicate ownership and use of the Public Improvements to the
City and the public. Once a Public Improvement is owned by the City, the City shall
operate and maintain such Public Improvement. The Owner's sole remedy for
nonperformance 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 the Owner or any other person. Owner does not boycott Israel and will not Boycott
Israel during the term of this Agreement.
Section 8. Exclusive jurisdiction, forum and venue for any dispute arising out of this
Agreement shall be in Collin County, Texas.
Section 9. Notwithstanding any other provision of this Agreement, Owner and Its
successors or assigns must comply with all applicable statutes or regulations of the
United States and the State of Texas, as well as any City ordinances in effect on the
Effective Date and not in conflict with this Agreement any rules implementing
such statutes or regulations.
Section 10. Assignment by Owner.
(a) Except as otherwise provided in this paragraph, Owner has the right (from time to time
upon delivery of two week's 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 10(a) 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.
(b) 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. 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 11. This Agreement is for the sole and exclusive benefit of the City and the owner
and is not intended to and shall not confer any rights or benefits of any third party not a
signatory hereto.
Section 12. This Agreement may be separately executed in individual counterparts
and, upon execution, shall constitute one and the same instrument.
Section 13. All notices, demands or other communications required or provided
hereunder shall be in writing and shall be deemed to have been given on the earner 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 notice to the other parties. Such notices shall be given
to the Parties at their respective addresses as follows:
If to the City:
Attn: City Manager
City of Anna, Texas
111 N. Powell Pkwy
Anna, Texas 75409
With a copy to:
Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
If to the Owner:
Bloomfield Homes L.P.
Attn: Don Dykstra
1050 E Highway 114, Suite 210
Southlake, TX 76092
972.877.1458
EXECUTED by the Parties on the following pages.
BLOOMFIELD HOMES, LP.,
a Texas limited partnership
By: Bloomfield Properties, Inc.,
a Texas corporation,
Its General Partner
Donald J. Dykstra, President
IN WITNESS WHEREOF:
STATE OF TEXAS §
COUNTY OF §
Before me, the undersigned notary public, on the day of 2019,
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, LP., a Texas
limited partnership, and on its behalf.
[SEAL]
Notary Public, State of Texas
CITY OF
, City Manager
STATE OF TEXAS §
§ COUNTY OQ�, §
Before me, the undersigned notary public, on the day of 2019,
personally appeared Jim Proce, known to me (or proved to me) to be tft6 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, Texas.
:,. CABBIE L. SMITH
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*; My Rotary ID # 11419404
''•',,bF:` Expires February 4,2023 Notary Public, State of Texas
EXHIBIT "A"
Lakeview Estates Phase 3
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EXHIBIT "C"
West Crossing Phase 9
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West Crossing Phase 11
EXHIBIT "E"
The Owner shall construct the following public improvements:
1. A Playground facility (including fall zone and concrete ribbon
edging), bathroom facilities, pavilion, a lake wall, hike
and bike trail, sod and irrigation at Lakeview Park as shown in
Exhibit F -K.
EXHIBIT "F"
Park Improvements
Lakeview Estates, Anna
Irrigation
130,560.00
10 Trees (3")
2,500.00
Hydro Mulch (see map)
2,000.00
Bermuda Sod (see map)
73,000.00
Grading/Spraying weeds for New Grass Area
12,000.00
Playground (Installation, Material, Wood Fiber)
160,000.00
Concrete Edge for Playground
12,000.00
4 ft Tall Fence by Playground (approx. 200 LF)
3,800.00
Pavilion with engineered drawings and install (24x24)
36,000.00
Pavilion concrete pad (24'x 24')
4,500.00
Additional 8' wide Hike and Bike Trail (1,250 LF)
76,375.00
Restroom Structure
105,000.00
4 Pet Stations
3,000.00
Water Fountain/Pet Fountain
4,500.00
3 Trash Receptacles
2,700.00
Retaining Wall along parking lot
3,500.00
Head Wall along pond
25,000.00
Lake Dredging
40,000.00
Contingency
27,364.00
Total
723,799.00
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