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HomeMy WebLinkAboutRes 2020-12-831 Dev Agree JY & KC LLCCITY OF ANNA, TEXAS RESOLUTION NO. � �' � - �- `- A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT AGREEMENT WITH JY & KC, LLC, KAYASA HOLDINGS, LLC, OAKWOOD VILLAGE APRARTMENTS, INC., AND YOUNG KIM & TIM MUELLER RELATING TO DEVELOPMENT AND DESIGN REGULATIONS FOR A MUTI-USE DEVELOPMENT GENERALLY LOCATED ON THE EAST AND WEST SIDES OF FUTURE FERGUSON PARKWAY, NORTH OF HACKBERRY DRIVE, AND SOUTH OF MANTUA ROAD. WHEREAS, JY & KC, LLC, Kayasa Holdings, LLC, Oakwood Village Apartments, Inc., and Young Kim &Tim Mueller are the Property Owners of real estate generally located on the east and west sides of future Ferguson Parkway, north of Hackberry Drive, and south of Mantua Road; and WHEREAS, Property Owners desire to rezone the subject property to allow for a predominantly residential development that would include a mixture of residential types and supporting commercial zoning; and WHEREAS, Property Owners have agreed to development and design regulations should the City approve to amend the existing zoning to the property; 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 The City Council hereby approves the Development Agreement with JY & KC, LLC, Kayasa Holdings, LLC, Oakwood Village Apartments, Inc., and Young Kim &Tim Mueller 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 take all other actions necessary to finalize, act under and enforce the Agreement. PASSED by the City Council of the City of Anna, Texas, on this 8th day of December 2020. ATTESTED: \`\`\�wu�nu�rrriry��PROVED: y �, . _� �- � \,o� �,. ike, Mayor ,/ EXHIBIT A This Development Agreement (this "Agreement") is entered effective as of December, 8, 2020 ("Effective Date") between and among the City of Anna, Texas, a Texas home -rule municipality ("City") and Oakwood Village Apartments, ("Property Owner") as follows: RECITALS WHEREAS, the Property Owners are the sole owner of 111.66 acres of real property described in Exhibit 1 and depicted on Exhibit 2, (the "Property"); and, WHEREAS, the Property is presently under contract (the "Contract") to be sold by the Property Owner and purchased by Megatel Homes ("Developer"). WHEREAS, Property Owners have, at the request of Developer, applied to rezone the Property to allow for Planned Development -Multi -Use which will include the following zoning districts with modified development standards; C-1 Restricted Commercial (C-1), SF -60 Single -Family Residence District (SF -60) and, SF -Z Single -Family Residence District - Zero lot line homes (SF -Z); and, WHEREAS, the City's Planning & Zoning Commission and City Council have given the requisite notices by publication' and otherwise and have scheduled public hearings with respect to the rezoning of the Property as required 'bv law; and, WHEREAS, in the case of the'Property being rezoned, the City and Property Owner desire to enter into a development agreement to establish development and design regulations to ensure that future development is appropriate for the area and fits in well with adjacent properties; and, WHEREAS, it is the Parties' mutual intent that this agreement shall govern only the subject matter specifically set forth herein and shall supersede provisions of Anna City Code of Ordinances and other regulations and adopted policies of the City (collectively, "City Regulations") only to the extent that any such City Regulations directly conflict with the terms of this development agreement; and, NOW, THEREFORE, in consideration of the above recitals and the mutual consideration as reflected in the covenants, duties and obligations contained herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows, effective as of the Effective Date: 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 development agreement and said recitals constitute representations by Property Owners, Developer, and the City. SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS. With respect to all structures/development within the PD -MU Zoning District, Property Owner agrees to comply or to cause the builders to comply and any other successors or assigns to comply with all City Regulations and with the masonry material requirements and all other requirements of the Anna City Code of Ordinances,, Article 9.04 Zoning Ordinance, Section 9.04.034 Supplementary District Regulations, Subsection (e) Architectural Design Standards and with the following standards (in the event of any conflict, the following listed standards shall govern). Nonresidential Buildings A. At least 80% of the exterior walls,(excluding dao frames) shall use only stone, brick, and/or spl construction of the exterior facade that are visible B. Other finishes and materials may be used at th; adopted as part of the site plan approval and if PE C. At least 60% of ex windows. and wind D. A maximum of 10% of a E. Where the function of an a specific style, image, provision may be modifi of overall project design by the City Council after r frames, windows, and window concrete masonry units in the public. e discretion of the City Council if ed by building and fire codes. not visible to the public (excluding doors, door frames, reauired to be brick or rock veneer. wall may consist of EIFS idual business, or the recognized identity of a brand dictates ilding material associated with that company, the masonry w oever, the development shall maintain harmony in terms appearance, and such design shall be subject to approval mmendation from the Planning & Zoning Commission. Multiple -Family Residence Buildings A. All multi -family buildings and structures shall have at least sixty percent (60%), for the first three stories of the total exterior walls above grade level, excluding doors and windows, and recessed balcony areas (should be allowed as plane break), constructed of masonry (brick/rock veneer) materials with no more than forty percent (40%) consisting of cementitious siding (Hardie products) or stucco materials. B. A maximum of 10% of any exposed exterior wall may consist of EIFS C. Roofing materials for buildings and structures must be architectural roof shingles, said shingles shall be accompanied with a minimum 25 -year warranty. Under no circumstance shall three -tab shingles be used as roofing material. Single -Family Residence Buildings (SF -60 and SF -Z) A. Except as noted below, the exterior walls (excluding front elevation of any structure shall be 90 percE second -floor front elevation. The total cumulative s walls (excluding windows and doors) shall be 80% r B. A maximum of 10% of any exposed idows and doors) on the first -floor asonry and 80 percent on the ce area of the remaining exterior onry. I may consist of EIFS. C. Second floor Dutch gable roof elements are not required to be masonry if set back at least 3 feet from the first -floor front elevation vertical plane. D. The masonry standards that apply to the frontelevation of a structure as described in subsection (A) above shall also apply to any exterior walls on a structure that are: (i) adjacent to and face a public street or right-of-way; or (ii) visible from and located immediately adjacent to a public park, reserved open space or neighborhood common area, or an undeveloped flood hazard or drainage area that is also adjacent to a public street. E. Roofing materials of a structure may only consist of architectural asphalt shingles (including laminated dimensional shingles), clay and concrete tile, metal shingles, mineral -surfaced row roofing, slate and slate -type shingles, wood shingles, wood shakes or an equivalent or better product as compared with said materials. Should architectural shingles be used as roofing material, said shingles shall be accompanied with a minimum 25 -year warranty. Under no circumstance shall three -tab shingles be used as roofing material. F. All garages must also incorporate wood clad (or equivalent) garage doors or wood composite doors and contain at least two of the following enhancements: Two single garage doors (in lieu of double doors); Decorative windows; Decorative hardware; iv. Garage door recessed a minimum of 12 inches from the garage face; v. Cast stone surround. vi0 Eight -foot tall garage doors. G. All doors on the font facade of a residence shall be constructed of wood, iron, glass, and/or architectural fiberglass. SECTION 3. NOTICES. Any and all notices required to be given by either of the parties hereto must be in writing and will be deemed delivered upon personal service, if hand -delivered, or when mailed in the United States mailcertifiedreturn receipt requestedad , , , To City: To Property Owner( SECTION 4. MODIFI This Agreement may only be m agreement of Property Owner a Property Owner, Notwithstandinc Agreement shall terminate and t the Property to be zoned as PIce zoning district with modified de) Family Residence=60; (SF -60), at set forth in Section 9.04 of the parties acknowledge and agree 1 this Agreement does not bind t Property. SECTION 5. CLOSING. City Manager;, City of Anna 111 North Powell P, PO Box 776 Anna. Texas 75409 TI follows: as Inc. Hated as follows: (a) by mutual written ity; and/or (b) unilaterally by City upon default of the oregoing or any other provision of this Agreement, this and void if the City does not approve the rezoning of Development -Multi -Use which includes the following lopment .standards; Restricted Commercial (C-1), Single Single -Family Residence -Zero lot line homes (SF -Z), as Ana City Code of Ordinances, ("Zoning Ordinance"). The t the rezoning of the Property is a legislative act and that City Council to approve any proposed rezoning of the The Contract provides that the closing and funding of the sale of the Property shall occur on December 28, 2020, unless otherwise amended by the parties to the Contract (the "Closing"). Notwithstanding anything to the contrary herein, upon Closing and funding of the sale of the Property, Developer or its successors or assigns shall fully assume all of Property Owner's rights and obligations under this Agreement and Oak Village Apartments, Inc., its successors and assigns, shall be fully and completely released from this Agreement for all purposes, without the necessity of additional notice from or action by any Party. Nothing in this Section 5 shall serve to release any subsequent owners of the Property from the terms, conditions, and obligations in this Agreement. If Closing does not occur and the Contract is terminated, the City agrees to reasonably cooperate with Property Owner to modify the terms and conditions of this Agreement to accommodate any subsequent purchaser(s) and/or alternative use(s) of the Property. SECTION 6. DEFAULT. If Property Owner, its heirs, successors or assigns or su fully comply with all the terms and conditions includ Owner"), City will have the following non-exclusive and c A. Withholding of utilities or withholding or required for development and use of the'K the default (but no other portions of the Pt permits and certificates of occupancy. B. The Defaulting Owner, or its heirs, succe: Crs the Property (collectively, the "Defaulting [ the City the sum of $2,000 for each fail standards set forth in Section 3 of this Age shall be liable to pay the City said $2,000 to comply occurs. The sums of money t considered as a penalty, but shall be d liquidated damages that accrue Der day tt ent owners of the Property, fail to this Agreement (the "Defaulting tive remedies. tion of permits and other approvals of the Property that is the subject of )including without limitation building cor assigns, or subsequent owners of �veloper Parties") shall be liable to pay to re to fully comply with the development :ement. The Defaulting Developer Parties um per day for each day that such failure be paid for such failure(s) is not to be �med, taken and treated as reasonable �t'such a failure shall exist or occur. The said amounts are fixed and agreed upon by the parties because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the City in such event would sustain; and said amounts are agreed to be the amounts of damages which the City would sustain. Notwithstanding the foregoing, none of the Defaulting Developer Parties shall be liable to pay the liquidated damages that accrue under this paragraph unless there is a breach of any material term or condition of this Agreement and such breach remains uncured after forty-five (45) calendar days following receipt of written notice from the City provided in accordance with this Agreement describing said breach in reasonable detail (or, if the cure of the breach has diligently and continuously been undertaken but reasonably requires more than forty-five (45) calendar days to cure, then such additional amount of time as is reasonably necessary to effect the cure, as determined by both Parties mutually and in good faith but in no event shall such additional period exceed 120 days unless agreed to in writing by the parties to this Agreement). In the event of a breach that is not timely cured in accordance with this paragraph, the sum of liquidated damages shall be calculated to include each and every day of the occurrence of the breach beginning on the date that the City first provided written notice of such breach under this paragraph and the City shall not be required to provide a subsequent written notices as to subsequent dates or times during which such breach is repeated or continues to occur. C. In the event of a default, the non -defaulting party will additionally have any and all remedies available to it at equity or in law. SECTION 7. BINDING ON SUCCESSORS, AGREEMEN Except as otherwise provided for herein, this Ag benefit of the parties' respective successors, Agreement will run with the land and be binding SECTION 8. INDEMNIFICATION AND HO I subseq LESS WITH THE LAND. binding upon and inure to the I representatives. This Owners. i� ]��Ii•11�'11tiCr 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 OR OTHER WRONGFUL SUBCONTRACTORS MATERIAL ''MEN AND AGENTS IN CONNECTION WITH THE DESIGN OR CONSTRUCTION OF ANY PUBLIC INFRASTRUCTURE, STRUCTURES, OR UNDER THIS AGREEMENT AND/OR CITY REGULATIONS AND/OR ANY APPLICABLE DEVELOPMENT STANDARDS AND/OR ANY OTHER GOVERNING REGULATIONS: AND IN EXCEPT AS CONCURR NEGLIGENCE SUBJECT TO THE TERMS OF THIS SECTION. THE INDEMNIFYING PARTY SHALL NOT HOWEVER BE REQUIRED TO INDEMNIFY THE CITY AGAINST CLAIMS CAUSED BY THE CITY'S SOLE NEGLIGENCE, IF THE CITY INCURS CLAIMS THAT ARE CAUSED BY THE CONCURRENT NEGLIGENCE OF THE INDEMNIFYING PARTY AND THE CITY THE INDEMNIFYING PARTY'S INDEMNITY OBLIGATION WILL BE LIMITED TO A FRACTION OF THE TOTAL CLAIMS EQUIVALENT TO THE INDEMNIFYING PARTY'S OWN PERCENTAGE OF RESPONSIBILITY. THE INDEMNIFYING PARTY FURTHER COVENANTS AND AGREES TO RELEASE DEFEND HOLD HARMLESS AND INDEMNIFYI THE CITY AGAINST ANY AND ALL CLAIMS BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY AS OF THE DATE HEREOF WHO HAS NOT SIGNED THIS AGREEMENT IF SUCH CLAIMS RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH: (1) THE CITY'S RELIANCE UPON ANY OF THE INDEMNIFYING PARTIES' REPRESENTATIONS IN THIS AGREEMENT: (2) THIS AGREEMENT OR OWNERSHIP OF THE PROPERTY: OR (3) THE CITY'S APPROVAL OF ANY TYPE OF DEVELOPMENT APPLICATION OR SUBMISSION WITH RESPECT TO THE PROPERTY. At no time shall the City have any control over or charge of the design, construction or installation of any of the improvements to the Property or related work or undertakings, nor the means, methods, techniques, sequences or procedures utilized for the design, construction or installation related to s his Agreement does not create a oint enterprise or venture between the City and any survive the termination of this Agreement. SECTION 9. RECORDATION. The parties may record this documE one (1) business day after Closing a SECTION 9. ENTIRE '.:j Indemnified:Parties. This Section 8 will of Collin County on or after This Agreement is the entire agreement of the parties regarding the subject matter hereto. SECTION 10, RECITALS AND EXHIBITS. The recitals herein and exhibits attached hereto are hereby incorporated by reference. SECTION 11. Property Owner represents and warrants to the City that the Property Owner owns the Property that this Agreement is binding and enforceable on the Property. SECTION 12. INVALID PROVISIONS. If any provision of this Agreement is held not valid, such provision will be deemed to be excised there from and the invalidity thereof will not affect any of the other provisions contained herein. SECTION 13. EFFECTIVE DATE. This Agreement will be effective upon the Effective Date first stated herein. CITY OF ANNA By: Jim Proce, City Manager IN WITNESS WHEREOF STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary appeared Jim Proce, known to me (or to the foregoing instrument, and ackn as City Manager of the City of Anna, Notary Public, State of OAKWOOD VILLAGE APAR By: OAKWOOD VILL, By: Name, title IN WITNESS WHEREOF STATE OF COUNTY OF public, on the proved to me) tc �wledoed to me day of 2020, e person whose name is subscribed e executed the same in his capacity INC., a Texas limited partnership, PARTMENTS INC, Managing Partner Before me, the undersigned notary public, on the day of , 2020, appeared 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/she executed the same in his/her capacity as managing member of OAKWOOD VILLAGE APARTMENTS INC. in its capacity as managing partner of OAKWOOD VILLAGE APARTMENTS INC., a Texas limited partnership. Notary Public, State of II. EXHIBIT CONCEF EXHIBIT A DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered effective as of December, 8, 2020 ("Effective Date") between and among the City of Anna, Texas, a Texas home -rule municipality ("City") and Young Kim & Tim Mueller, ("Property Owners") as follows: RECITALS WHEREAS, the Property Owners are the sole owner of 84.00 acres of real property described in Exhibit 1 and depicted on Exhibit 2, (the "Property"); and, WHEREAS, the Property is presently under contract (the "Contract") to be sold by the Property Owner and purchased by Megatel Homes ("Developer"). WHEREAS, Property Owners have, at the :request of Developer, applied to rezone the Property to allow for Planned Development -Multi -Use which will include the following zoning districts with modified development standards, C-1 Restricted Commercial (C-1), SF -60 Single -Family Residence District (SF -60) and, SF -Z Single -Family Residence District - Zero lot line homes SF -Z); and, WHEREAS, the City's Planning & Zoning Commission and City Council have given the requisite notices by publication and otherwise and have scheduled public hearings with respect to the rezoning of the Property as required by law; and, WHEREAS,' in the case of the.: Property being rezoned, the City and Property Owner desire to enter into a development agreement to establish development and design regulations to ensure that future development is appropriate for the area and fits in well with adjacent properties; and, WHEREAS, it is the Parties' mutual intent that this agreement shall govern only the subject matter specifically set forth herein and shall supersede provisions of Anna City Code of Ordinances and other regulations and adopted policies of the City (collectively, "City Regulations") only to the extent that any such City Regulations directly conflict with the terms of this development agreement, and, NOW, THEREFORE, in consideration of the above recitals and the mutual consideration as reflected in the covenants, duties and obligations contained herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows, effective as of the Effective Date: SECTION I. RECITALS INCORPORATED. The recitals set forth above are incorporated herein as if set forth in full to further describe the Parties' intent under this development agreement and said recitals constitute representations by Property Owners, Developer, and the City. SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS. With respect to all structures/development within the PD -MU Zoning District, Property Owner agrees to comply or to cause the builders to comply and any other successors or assigns to comply with all City Regulations and with the masonry material requirements and all other requirements of the Anna City Code of Ordinances, Article 9.04 Zoning Ordinance, Section 9.04.034 Supplementary District Regulations, Subsection (e) Architectural Design Standards and with the following standards (in the event of any conflict, the following listed standards shall govern). Nonresidential Buildings A. At least 80% of the exterior frames) shall use only stoi construction of the exterior f B. Other finishes and m adopted as part of the C. At least 60% of windows. and % D. A maximum of 1 +alls,(excluding doors, door frames, windows, and window brick, ;and/or split face concrete masonry units in the :ade that are visible to the public. may be used at the sole discretion of the City Council if n approval and if permitted by building and fire codes. not visib e to the public (excluding doors, door frames, reauired to be brick or rock veneer, wall may consist of EIFS E. Where the function of an individual business, or the recognized identity of a brand dictates a specific style, image, or bung material associated with that company, the masonry provision may be modified; however, the development shall maintain harmony in terms of overall project design and appearance, and such design shall be subject to approval by the City Council after recommendation from the Planning & Zoning Commission. Multiple -Family Residence Buildings A. All multi -family buildings and structures shall have at least sixty percent (60%), for the first three stories of the total exterior walls above grade level, excluding doors and windows, and recessed balcony areas (should be allowed as plane break), constructed of masonry (brick/rock veneer) materials with no more than forty percent (40%) consisting of cementitious siding (Hardie products) or stucco materials. B. A maximum of 10% of any exposed exterior wall may consist of EIFS C. Roofing materials for buildings and structures must be architectural roof shingles, said shingles shall be accompanied with a minimum 25 -year warranty. Under no circumstance shall three -tab shingles be used as roofing material. Single -Family Residence Buildings (SF -60 and SF -Z) A. Except as noted below, the exterior walls (excluding front elevation of any structure shall be 90 percE second -floor front elevation. The total cumulative s walls (excluding windows and doors) shall be 80% r B. A maximum of 10% of any exposed C. Second floor Dutch gable roof element 3 feet from the first -floor front elevation D. The masonry standards that app subsection (A) above shall also 41 adjacent to and face a public s N mmediately adjacent to a public area, or an undeveloped flood ha street. E. Roofing (includir mineral ori materials uivalent shingles be used as roc 25 -year warranty. Und material. F. All garages must also composite doors and cc idows and doors) on the first -floor nasonry and 80 percent on the ce area of the remaining exterior onry. required to be plane. EIFS. ry if set back at least the front :elevation of a structure as described in to any exterior walls on a structure that are: (i) or right-of-way; or (ii) visible from and located reserved open space or neighborhood common or drainage area that is also adjacent to a public structure may only consist of architectural asphalt shingles ensonal shingles),,, clay and concrete tile, metal shingles, ng, slate and slate -type shingles, wood shingles, wood shakes product as compared with said materials. Should architectural g material, said shingles shall be accompanied with a minimum no circumstance shall three -tab shingles be used as roofing �rporate wood clad (or equivalent) garage doors or wood n at least two of the following enhancements: Two single garage doors (in lieu of double doors); Decorative windows; . Decorative hardware; iv. Garage door recessed a minimum of 12 inches from the garage face; v. Cast stone surround. vi0 Eight -foot tall garage doors. G. All doors on the font facade of a residence shall be constructed of wood, iron, glass, and/or architectural fiberglass. SECTION 3. NOTICES. Any and all notices required to be given by either of the parties hereto must be in writing and Ni ll be deemed delivered upon personal service, if hand -delivered, or when mailed in the United States mailcertifiedreturn receipt requestedfollows: , , , To City: To Property Owners SECTION 4. MODIFI This Agreement may agreement of Proper Owner, Notv Agreemei the Propt zoning di City Manag City of Ann; 111 North F PO Box 771 Anna. Texa ng Kim TER >well Parkway 75409 Tim Mueller Place 80 inated as follows: (a) by mutual written ;City; and/or (b) unilaterally by City upon default of the e foregoing or any other provision of this Agreement, this terminate and be null and void if the City does not approve the rezoning of be zoned as Planned Development-MUlti-Use which includes the following modified Family Residence' -60, opment standards; Restricted Commercial (C-1), Single (SF -60), z sIU t forth in Section 9.04 %J the parties acknowledge and agree this Agreement does not bind Property. SECTION 5. CLOSING. Single -Family Residence - Zero lot line homes (SF -Z), as na City Code of Ordinances, ("Zoning Ordinance"). The t the rezoning of the Property is a legislative act and that City Council to approve any proposed rezoning of the The Contract provides that the closing and funding of the sale of the Property shall occur on July 1, 2021, unless otherwise amended by the parties to the Contract (the "Closing"). Notwithstanding anything to the contrary herein, upon Closing and funding of the sale of the Property, Developer or its successors or assigns shall fully assume all of Property Owner's rights and obligations under this Agreement and Young Kim & Tim Mueller, its successors and assigns, shall be fully and completely released from this Agreement for all purposes, without the necessity of additional notice from or action by any Party. Nothing in this Section 5 shall serve to release any subsequent owners of the Property from the terms, conditions, and obligations in this Agreement. If Closing does not occur and the Contract is terminated, the City agrees to reasonably cooperate with Property Owner to modify the terms and conditions of this Agreement to accommodate any subsequent purchaser(s) and/or alternative use(s) of the Property. SECTION 6. DEFAULT. If Property Owner, its heirs, successors or assigns or subsequent owners of the Property, fail to fully comply with all the terms and conditions included in this Agreement (the "Defaulting Owner"), City will have the following non-exclusive and cumulative remedies. A. Withholding of utilities or withholding or revocation of permits and other approvals required for development and use of the portion of the Property that is the subject of the default (but no other portions of the Property) including without limitation building permits and certificates of occupancy. B. The Defaulting Owner, or its heirs, successors or assigns, or subsequent owners of the Property (collectively, the "Defaulting Developer Parties") shall be liable to pay to the City the sum of $2,000 for each failure to fully comply with the development standards set forth in Section 3 of this Agreement. The Defaulting Developer Parties shall be liable to pay the City, said $2,000 sum per day for each day that such failure to comply occurs. The sums of money to be paid for such failure(s) is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages that accrue per day that such a failure shall exist or occur. The said amounts are fixed and agreed upon by the parties because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the City in such event would sustain; and said amounts are agreed to be the amounts of damages which the City would sustain. Notwithstanding the foregoing, none of the Defaulting Developer Parties shall be liable to pay the liquidated damages that accrue under this paragraph unless there is a breach of any material term or condition of this Agreement and such breach remains uncured after forty-five (45) calendar days following receipt of written notice from the City provided in accordance with this Agreement describing said breach in reasonable detail (or, if the cure of the breach has diligently and continuously been undertaken but reasonably requires more than forty-five (45) calendar days to cure, then such additional amount of time as is reasonably necessary to effect the cure, as determined by both Parties mutually and in good faith but in no event shall such additional period exceed 120 days unless agreed to in writing by the parties to this Agreement). In the event of a breach that is not timely cured in accordance with this paragraph, the sum of liquidated damages shall be calculated to include each and every day of the occurrence of the breach beginning on the date that the City first provided written notice of such breach under this paragraph and the City shall not be required to provide a subsequent written notices as to subsequent dates or times during which such breach is repeated or continues to occur. C. In the event of a default, the non -defaulting party will additionally have any and all remedies available to it at equity or in law. SECTION 7. BINDING ON SUCCESSORS, AGREEMEN Except as otherwise provided for herein, this Ag benefit of the parties' respective successors, Agreement will run with the land and be binding SECTION 8. INDEMNIFICATION AND HO ■ FTALETIM I subseq LESS. S WITH THE LAND. binding upon and inure to the nal representatives. This Proaerty Owners. 171�[il��ltt7P►[��PI i<l7il+�ti7 EMPLOYEES CONTRACTORS SUBCONTRACTORS MATERIAL MEN AND AGENTS IN CONNECTION WITH THE DESIGN OR CONSTRUCTION OF ANY PUBLIC INFRASTRUCTURE. STRUCTURES, OR OTHER FACILITIES OR IMPROVEMENTS THAT REGULATIONS AND/OR ANY APPLICABLE DEVELOPMENT STANDARDS AND/OR ANY OTHER GOVERNING REGULATIONS AND IT IS EXPRESSLY UNDERSTOOD THAT SUCH CLAIMS SHALL, EXCEPT AS MODIFIED BELOW, INCLUDE CLAIMS EVEN IF CAUSED BY THE CITY'S OWN CONCURRENT NEGLIGENCE SUBJECT TO THE TERMS OF THIS SECTION THE INDEMNIFYING PARTY SHALL NOT HOWEVER BE REQUIRED TO INDEMNIFY THE CITY AGAINST CLAIMS CAUSED BY THE CITY'S SOLE NEGLIGENCE. IF THE CITY INCURS CLAIMS THAT ARE CAUSED BY THE CONCURRENT NEGLIGENCE OF THE INDEMNIFYING PARTY AND THE CITY THE INDEMNIFYING PARTY'S INDEMNITY OBLIGATION WILL BE LIMITED TO A FRACTION OF THE TOTAL CLAIMS EQUIVALENT TO THE INDEMNIFYING PARTY'S OWN PERCENTAGE OF RESPONSIBILITY. THE INDEMNIFYING PARTY FURTHER COVENANTS AND AGREES TO RELEASE DEFEND HOLD HARMLESS AND INDEMNIFY THE CITY AGAINST ANY AND ALL CLAIMS BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY AS OF THE DATE HEREOF WHO HAS NOT SIGNED THIS AGREEMENT IF SUCH CLAIMS RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH: (1) THE CITY'S RELIANCE UPON ANY OF THE INDEMNIFYING PARTIES' REPRESENTATIONS IN THIS AGREEMENT; (2) THIS AGREEMENT OR OWNERSHIP OF THE PROPERTY; OR (3) THE CITY'S APPROVAL OF ANY TYPE OF DEVELOPMENT APPLICATION OR SUBMISSION WITH RESPECT TO THE PROPERTY. At no time shall the City have any control over or charge of the design, construction or installation of any of the improvements to the Property or related work or undertakings, nor the means, methods, techniques, sequences or procedures utilized for the design, construction or installation related to same. This Agreement does not create a joint enterprise or venture between the City and any of the Indemnified Parties. This Section 8 will survive the termination of this Agreement. SECTION 9. RECORDATION. The parties may record this docu one (1) business day after SECTION 9. This Agreement is the ng a hereto. The recitals he SECTION '11. RECIT Property Owner represents of Collin County on or after nd funding of the Contract. SENTe greement of the parties regarding the subject matter are hereby incorporated by reference. warrants to the City that the Property Owner owns the Property that this Agreement is binding and enforceable on the Property. SECTION 12. INVALID PROVISIONS. If any provision of this Agreement is held not valid, such provision will be deemed to be excised there from and the invalidity thereof will not affect any of the other provisions contained herein. SECTION 13. EFFECTIVE DATE. This Agreement will be effective upon the Effective Date first stated herein. CITY OF ANNA By: Jim Proce, City Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary public, on the appeared Jim Proce, known to me (or proved to me)1 to the foregoing instrument, and acknowledged to mE as City Manager of the City of Anna, Texas. Notary Public, Young Kim, of T By: Young Kim By: Name, title IN WITNESS WHEREOF STATE OF COUNTY 0F day of 2020, be the person whose name is subscribed hat he executed the same in his capacity Before me, the undersigned notary public, on the day of , 2020, appeared 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/she executed the same in his/her capacity as owner. Notary Public, State of Tim Mueller, By: Tim Mueller By: Name, title IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF COLLIN Before me, the undersi subscribed in his/her e Notary Public, S#ate of blic, on the ` day of , 2020, appeared me (or proved to me) to be the person whose name is and acknowledged to me that he/she executed the same EXHIBIT "1" PROPERTY DESCRIPTION EXHIBIT " 2" CONCEPT PLAN EXHIBIT A EWA Eq EM •Ed V1_L I W;MV%PJ[ This Development Agreement (this "Agreement") is entered effective as of December, 8, 2020 ("Effective Date") between and among the City of Anna, Texas, a Texas home -rule municipality ("City") and JY & KC, LLC,("Property Owner") as follows. RECITALS WHEREAS, the Property Owners are the sole owner of 95.4 in Exhibit 1 and depicted on Exhibit 2, (the "Property"); and, WHEREAS, the Property is presently under c Owner and purchased by Megatel Homes ("D WHEREAS, Property Owners have, at the to allow for Planned Development-Multiv with modified development standards; C Residence District (SF -60) and, SF -Z Si (SF -Z); and, WHEREAS, the City's requisite notices by pub to the rezoning of the Pi WHEREAS enter into a that future c e case of ment Hent is ing of real property described sold by the Property uest of Developer, applied to rezone the Property which will include the following zoning districts ;stricted Commercial (C-1), SF -60 Single -Family Family Residence District - Zero lot line homes ing Commission and City Council have given the vise and have scheduled public hearings with respect arty being rezoned, the City and Property Owner desire to to establish development and design regulations to ensure re for the area and fits in well with adjacent properties; and, WHEREAS, it is the Parties' mutual intent that this agreement shall govern only the subject matter specally set forth herein and shall supersede provisions of Anna City Code of Ordinances and other regulations and adopted policies of the City (collectively, "City Regulations") only to the extent that any such City Regulations directly conflict with the terms of this development agreement; and, NOW, THEREFORE, in consideration of the above recitals and the mutual consideration as reflected in the covenants, duties and obligations contained herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows, effective as of the Effective Date: 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 development agreement and said recitals constitute representations by Property Owners, Developer, and the City. SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS. With respect to all structures/development within the PD -MU Zoning District, Property Owner agrees to comply or to cause the builders to comply and any other successors or assigns to comply with all City Regulations and with the masonry material requirements and all other requirements of the Anna City Code of Ordinances, ;Article 9.04 Zoning Ordinance, Section 9.04.034 Supplementary District Regulations, Subsection (e) Architectural Design Standards and with the following standards (in the event of any conflict, the following listed standards shall govern). Nonresidential Buildings A. At least 80% of the exterior walls (excluding doors, door frames, windows, and window frames) shall use only stone, brick, and/or split face concrete masonry units in the construction of the exterior facade that are visible to the public. B. Other finishes and materials may be used at the sole discretion of the City Council if adopted as part of the site plan approval and if permitted by building and fire codes. C. At least 60% of exterior fagades not visible to the public (excluding doors, door frames, windows. and window frames) are reauired to be brick or rock veneer. D. A E. Where mum of 10% of,any ction of a a specific style, image, provision may be modi of overall project desig by the City Council afte wall may consist of EIFS ividual business, or the recognized identity of a brand dictates wilding material associated with that company, the masonry however, the development shall maintain harmony in terms d appearance, and such design shall be subject to approval ommendation from the Planning & Zoning Commission. Multiple -Family Residence Buildings A. All multi -family buildings and structures shall have at least sixty percent (60%), for the first three stories of the total exterior walls above grade level, excluding doors and windows, and recessed balcony areas (should be allowed as plane break), constructed of masonry (brick/rock veneer) materials with no more than forty percent (40%) consisting of cementitious siding (Hardie products) or stucco materials. B. A maximum of 10% of any exposed exterior wall may consist of EIFS C. Roofing materials for buildings and structures must be architectural roof shingles, shingles shall be accompanied with a minimum 25 -year warranty. Under m circumstance shall three -tab shingles be used as roofing material. Single -Family Residence Buildings (SF -60 and SF -Z) A. Except as noted below, the exterior walls (excluding front elevation of any structure shall be 90 percE second -floor front elevation. The total cumulative s walls (excluding windows and doors) shall be 80% r B. A maximum of 10% of any exposed may ows and doors) on the first -floor asonry and 80 percent on the area of the remainina exterior EIFS. C. Second floor Dutch gable roof elements are not required to be masonry if set back at least 3 feet from the first -floor front elevation vertical plane. D. The masonry standards that apply to the front elevation of a structure as described in subsection (A) above shall also apply to any exterior walls on a structure that are: (i) adjacent to and face a public street or right-of-way; or (ii) visible from and located immediately adjacent to a public park, reserved open space or neighborhood common area, or an undeveloped flood hazard or drainage area that is also adjacent to a public street. E. Roofing materials of a structure may only consist of architectural asphalt shingles (including laminated dimensional shingles), clay and concrete tile, metal shingles, mineraksurfaced row roofing, slate and slate -type shingles, wood shingles, wood shakes or an equivalent or better product as compared with said materials. Should architectural shingles be used as roofing material, said shingles shall be accompanied with a minimum 25 -year warranty. Under no circumstance shall three -tab shingles be used as roofing material. F. All garages must also incorporate wood clad (or equivalent) garage doors or wood composite doors and contain at least two of the following enhancements: Two single garage doors (in lieu of double doors); Decorative windows; . Decorative hardware; iv. Garage door recessed a minimum of 12 inches from the garage face; v. Cast stone surround. viM Eight -foot tall garage doors. G. All doors on the font facade of a residence shall be constructed of wood, iron, glass, and/or architectural fiberglass. SECTION 3. NOTICES. Any and all notices required to be given by either of the parties hereto must be in writing and will be deemed delivered upon personal service, if hand -delivered, or when mailed in the United States mail, certified, return receipt requested, addressed as follows: To City: City Manager City of Anna 111 North Powell P, PO Box 776 Anna, Texas 75409 To Property Owners SECTION 4. MODI This Agreemen agreement of F Property Ownei Agreement sha NS I terminate and be the Property to be zoned as Planr zoning district with modified devel Family Residence -60 (SF -60), and set forth in Section 9.04 of the _Ar parties acknowledge and agree thet this Areement does not bind the Property. SECTION 5. CLOSING. KC, LLC' Amherst 5225 ified and/or terminated as follows: (a) by mutual written City; and/or (b) unilaterally by City upon default of the e foregoing or any other provision of this Agreement, this gull and void if the City does not approve the rezoning of ied Development -Multi -Use which includes the following upment standards; Restricted Commercial (C-1), Single Single -Family Residence -Zero lot line homes (SF -Z), as na City Code of Ordinances, ("Zoning Ordinance"). The g the rezoning of the Property is a legislative act and that City Council to approve any proposed rezoning of the The Contract provides that the closing and funding of the sale of the Property shall occur on May 17, 2021, unless otherwise amended by the parties to the Contract (the "Closing"). Notwithstanding anything to the contrary herein, upon Closing and funding of the sale of the Property, Developer or its successors or assigns shall fully assume all of Property Owner's rights and obligations under this Agreement and JY & KC, LLC., its successors and assigns, shall be fully and completely released from this Agreement for all purposes, without the necessity of additional notice from or action by any Party. Nothing in this Section 5 shall serve to release any subsequent owners of the Property from the terms, conditions, and obligations in this Agreement. If Closing does not occur and the Contract is terminated, the City agrees to reasonably cooperate with Property Owner to modify the terms and conditions of this Agreement to accommodate any subsequent purchaser(s) and/or alternative use(s) of the Property. SECTION 6. DEFAULT. If Property Owner, its heirs, successors or assigns or subsequent owners of the Property, fail to fully comply with all the terms and conditions included in this Agreement (the "Defaulting Owner"), City will have the following non-exclusive and "cumulative remedies. A. Withholding of utilities or withholding or`revocation of permits and other approvals required for development and use of the portion of the Property that is the subject of the default (but no other portions of the Property) including without limitation building permits and certificates of occupancy. B. The Defaulting Owner, or its heirs;, successors or assigns, or subsequent owners of the Property (collectively, the "Defaulting Developer Parties") shall be liable to pay to the City the sum of $2,000 for each failure to fully comply with the development standards set forth in Section 3 of this Agreement. The Defaulting Developer Parties shall be liable to pay the City said $2,000 sum per day for each day that such failure to comply occurs. The sums of money to be paid for such failure(s) is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages that accrue per day that such a failure shall exist or occur. The said `amounts are fixed and agreed upon by the parties because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the City in such event would sustain; and said amounts are agreed to be the amounts of damages which the City would sustain. Notwithstanding the foregoing, none of the Defaulting Developer Parties shall be liable to pay the liquidated damages that accrue under this paragraph unless there is a breach of any material term or condition of this Agreement and such breach remains uncured after forty-five (45) calendar days following receipt of written notice from the City provided in accordance with this Agreement describing said breach in reasonable detail (or, if the cure of the breach has diligently and continuously been undertaken but reasonably requires more than forty-five (45) calendar days to cure, then such additional amount of time as is reasonably necessary to effect the cure, as determined by both Parties mutually and in good faith but in no event shall such additional period exceed 120 days unless agreed to in writing by the parties to this Agreement). In the event of a breach that is not timely cured in accordance with this paragraph, the sum of liquidated damages shall be calculated to include each and every day of the occurrence of the breach beginning on the date that the City first provided written notice of such breach under this paragraph and the City shall not be required to provide a subsequent written notices as to subsequent dates or times during which such breach is repeated or continues to occur. C. In the event of a default, the non -defaulting party will additionally have any and all remedies available to it at equity or in law. SECTION 7. BINDING ON SUCCESSORS, AGREEMENT RUNS WITH THE LAND. Except as otherwise provided for herein, this Agreement will be binding upon and inure to the benefit of the parties' respective successors, assigns and personal representatives. This Agreement will run with the land and be binding on subsequent` Property Owners. SECTION 8. INDEMNIFICATION AND HOLD HARMLE Alt] RST] NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF THE INDEMNIFYING PARTY INCLUDING THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF ANY OF ITS EMPLOYEES CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN, AND AGENTS, IN CONNECTION WITH THE DESIGN OR CONSTRUCTION OF ANY PUBLIC INFRASTRUCTURE STRUCTURES OR OTHER FACILITIES OR IMPROVEMENTS THAT ARE REQUIRED OR PERMITTED UNDER THIS AGREEMENT AND/OR CITY REGULATIONS AND/OR ANY APPLICABLE DEVELOPMENT STANDARDS AND/OR ANY D IT IS EXPRESSLY SUCH CLAIMS SHALL EXCEPT AS MODIFIED BELOW INCLUDE CLAIMS EVEN IF CAUSED BY THE CITY'S OWN CONCURRENT NEGLIGENCE SUBJECT TO THE TERMS OF THIS SECTION THE INDEMNIFYING PARTY SHALL NOT HOWEVER BE REQUIRED TO INDEMNIFY THE CITY AGAINST CLAIMS CAUSED BY THE CITY'S SOLE NEGLIGENCE. IF THE CITY INCURS CLAIMS THAT ARE CAUSED BY THE CONCURRENT NEGLIGENCE OF THE INDEMNIFYING PARTY AND THE CITY THE INDEMNIFYING PARTY'S INDEMNITY OBLIGATION WILL BE LIMITED TO A FRACTION OF THE TOTAL CLAIMS EQUIVALENT TO THE INDEMNIFYING PARTY'S OWN PERCENTAGE OF RESPONSIBILITY. THE INDEMNIFYING PARTY FURTHER COVENANTS AND AGREES TO RELEASE, DEFEND, HOLD HARMLESS, AND INDEMNIFY THE CITY AGAINST ANY AND ALL CLAIMS BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY AS OF THE DATE HEREOF WHO HAS NOT SIGNED THIS AGREEMENT IF SUCH CLAIMS RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH: (1,) THE CITY'S RELIANCE UPON ANY OF THE INDEMNIFYING PARTIES' REPRESENTATIONS IN THIS AGREEMENT; (2) THIS AGREEMENT OR OWNERSHIP OF THE PROPERTY; OR (3) THE CITY'S APPROVAL OF ANY TYPE OF ;ATION OR SUBS At no time shall the City have any control over or charge of the design, construction or installation of any of the improvements to the Property or related work or undertakings, nor the means, methods, techniques, sequences or procedures + utilized for the design, construction or installation related to same. This Agreement does not create a joint enterprise or venture between the City and any of the Ind Parties. This Section 8 will survive the termination of this Agreement. SECTION 9. RECORDATION. The parties may record th one (1) business day after SECTION 9. ENTIRE This A. hereto. SECTION 1 The recitals herein �����C�I►�ifi� exhibits ment in the property, records of Collin County on or after and fundin_q of the Contract. es regarding the subject matter hereto are hereby incorporated by reference. Property Owner represents and warrants to the City that the Property Owner owns the Property that this Agreement is binding and enforceable on the Property. SECTION 12. INVALID PROVISIONS. If any provision ;+k* Agreement is held not valid, such provision will be deemed to be excised there from and the invalidity thereof will not affect any of the other provisions contained herein. SECTION 13. EFFECTIVE DATE. This Agreement will be effective upon the Effective Date first stated herein. CITY OF ANNA By: Jim Proce, City Manager IN WITNESS WHEREOF: STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary public appeared Jim Proce, known to me (or prove{ to the foregoing instrument, and acknowled( as City Manager of the City of Anna, Texas. Notary Pub JY & KC, LLC a Texas limited partnership, By: JY & KC, LLC, Managing Partner By: Name, title IN WITNESS WHEREOF STATE OF COUNTY 0 F on the `day of 2020, to me) to be the person whose name is subscribed ;d to me that he; executed the same in his capacity Before me, the undersigned notary public, on the day of , 2020, appeared 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/she executed the same in his/her capacity as managing member of JY & KC, LLC in its capacity as managing partner of JY & KC, LLC, a Texas limited partnership. Notary Public, State of EXHIBIT "1" PROPERTY DESCRIPTION EXHIBIT " 2" CONCEPTPLAN EXHIBIT A DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered effective as of December, 8, 2020 If I0 " ve Date) between and among the City of Anna, Texas, a Texas home -rule municipality ("City") and Kayasa Holdings, LLC,("Property Owner") as follows: RECITALS WHEREAS, the Property Owners are the sole in Exhibit 1 and depicted on Exhibit 2, (the "Pr WHEREAS, the Property is presently under Owner and purchased by Megatel Homes (" WHEREAS, Property Owners have, `at the to allow for Planned Development -Multi with modified development standards, C Residence District (SF -60) and, SF -Z Si (SF -Z); and, WHEREAS, the City's requisite notices by pub to the rezoning of the Pi WHEREAS, in the case of th enter into a development agrE that future development is ap of real property described and, (the "Contract") to be sold by the Property gest of Developer, applied to rezone the Property which will include the following zoning districts stricted Commercial (C-1), SF -60 Single -Family Family Residence District -Zero lot line homes ing &i Zoning Commission and City Council have given the and otherwise and have scheduled public hearings with respect roperty being rezoned, the City and Property Owner desire to ent to establish development and design regulations to ensure �riate for the area and fits in well with adjacent properties; and, WHEREAS, it is the Parties' .:mutual intent that this agreement shall govern only the subject matter specifically set forth herein and shall supersede provisions of Anna City Code of Ordinances and other regulations and adopted policies of the City (collectively, "City Regulations") only to the extent that any such City Regulations directly conflict with the terms of this development agreement; and, NOW, THEREFORE, in consideration of the above recitals and the mutual consideration as reflected in the covenants, duties and obligations contained herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows, effective as of the Effective Date: 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 development agreement and said recitals constitute representations by Property Owners, Developer, and the City. SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS. With respect to all structures/development within the PD -MU agrees to comply or to cause the builders to comply and any comply with all City Regulations and with the masonry mai requirements of the Anna City Code of Ordinances,, Article 9.04.034 Supplementary District Regulations, Subsection (e; and with the following standards (in the event of any conflict, tl govern). Nonresidential Buildings A. At least 80% of the exterior frames) shall use only stoi construction of the exterior f excluding doo k, and/or spli :hat are visible Zoning District, Property Owner other successors or assigns to erial requirements and all other 9.04 Zoning Ordinance, Section Architectural Design Standards �e following listed standards shall oor frames, and window concrete masonry units in the publics B. Other finishes and materials may `be ...used at the sole discretion of the City Council if adopted as part of the site plan approval and if permitted by building and fire codes. C. At least 60% of exterior fagades not visible to the public (excluding doors, door frames, windows, and window frames) are reauired to be brick or rock veneer. D. A maximum of 10°l0 of any exposed exterior wall may consist of EIFS E. Where the function of an individual business, or the recognized identity of a brand dictates a specific style, image, or building material associated with that company, the masonry provision may be modified; however, the development shall maintain harmony in terms of overall project design and appearance, and such design shall be subject to approval by the City Council after recommendation from the Planning & Zoning Commission. Multiple -Family Residence Buildings A. All multi -family buildings and structures shall have at least sixty percent (60%), for the first three stories of the total exterior walls above grade level, excluding doors and windows, and recessed balcony areas (should be allowed as plane break), constructed of masonry (brick/rock veneer) materials with no more than forty percent (40%) consisting of cementitious siding (Hardie products) or stucco materials. B. A maximum of 10% of any exposed exterior wall may consist of EIFS C. Roofing materials for buildings and structures must be architectural roof shingles, said shingles shall be accompanied with a minimum 25 -year warranty. Under no circumstance shall three -tab shingles be used as roofing material. Single -Family Residence Buildings (SF -60 and SF -Z) A. Except as noted below, the exterior walls (excludin front elevation of any structure shall be 90 perc second -floor front elevation. The total cumulative walls (excluding windows and doors) shall be 80% B. A maximum of 10% of any exposed C. Second floor Dutch gable roof elements 3 feet from the first -floor front elevation D. The masonry standards that apply subsection (A) above shall also apply adjacent to and face a public immediately adjacent to area, or an undevelopec street. street E. Roofing materials of (including laminated c mineral -surfaced row r( or an equivalent or bet' shingles be used as roc 25 -year warranty. Und material. F. All garages mu composite doors ;public p' flood hazard �dows and doors) on the first -floor masonry and 80 percent on the ice area of the remaining exterior wall may con required to be m EIFS. if set back at least to he front elevation of a structure as described in to any exterior walls on a structure that are: (i) eet or right-of-way; or, (ii) visible from and located ark, reserved open space or neighborhood common or drainage area that is also adjacent to a public ,tructure may only..... consist of architectural asphalt shingles ensional shingles), clay and concrete tile, metal shingles, ng, slate and slate -type shingles, wood shingles, wood shakes product as compared with said materials. Should architectural g material, said shingles shall be accompanied with a minimum no circumstance shall three -tab shingles be used as roofing orporate wood clad (or equivalent) garage doors or wood in at least two of the following enhancements: i. Two single garage doors (in lieu of double doors); ii. Decorative windows; Decorative hardware; iv. Garage door recessed a minimum of 12 inches from the garage face; v0 Cast stone surround. is Eight -foot tall garage doors. G. All doors on the font facade of a residence shall be constructed of wood, iron, glass, and/or architectural fiberglass. SECTION 3. NOTICES. Any and all notices required to be given by either of the parties hereto must be in writing and will be deemed delivered upon personal service, if hand -delivered, or when mailed in the United States mail, certified, return receipt requested, addressed as follows: To City: City Ma City of 1 111 No PO Box Anna, T To Property Owner(s): K 84 R) SECTION 4. MODIFICATIONS OR TERM This Agreemen agreement of F Property Ownei Agreement sha I terminate the Property to be zoned as I zoning district with modified c Family Residence -60 (SF -60), set forth in Section 9.04 of th parties acknowledge and this Agreement does not Property. SECTION 5. CLOSING. Powell '6 s 7541 Holdir look P 0 nodified and/or terminated as follows: (a) by mutual written and City; and/or (b) unilaterally by City upon default of the g the foregoing or any other provision of this Agreement, this be null and void if the City does not approve the rezoning of anned Development -Multi -Use which includes the following :velopment standards; Restricted Commercial (C-1), Single nd Single -Family Residence - Zero lot line homes (SF -Z), as Anna City Code of Ordinances, ("Zoning Ordinance"). The at the rezoning of the Property is a legislative act and that the City Council to approve any proposed rezoning of the The Contract provides that the closing and funding of the sale of the Property shall occur on May 4, 2021, unless otherwise amended by the parties to the Contract (the "Closing"). Notwithstanding anything to the contrary herein, upon Closing and funding of the sale of the Property, Developer or its successors or assigns shall fully assume all of Property Owner's rights and obligations under this Agreement and Kayasa Holdings, LLC its successors and assigns, shall be fully and completely released from this Agreement for all purposes, without the necessity X additional notice from or action by any Party. Nothing in this Section 5 shall serve to release any subsequent owners of the Property from the terms, conditions, and obligations in this Agreement. If Closing does not occur and the Contract is terminated, the City agrees to reasonably cooperate with Property Owner to modify the terms and conditions of this Agreement to accommodate any subsequent purchaser(s) and/or alternative use(s) of the Property. SECTION 6. DEFAULT. If Property Owner, its heirs, successors or assigns or subsequent owners of the Property, fail to fully comply with all the terms and conditions included in this Agreement (the "Defaulting Owner"), City will have the following non-exclusive and cumulative remedies. A. Withholding of utilities or withholding or"revocation of permits and other approvals required for development and use of the portion of the Property that is the subject of the default (but no other portions of the Property) including without limitation building permits and certificates of occupancy. B. The Defaulting Owner, or its heirs, successors or assigns, or subsequent owners of the Property (collectively, the "Defaulting Developer Parties") shall be liable to pay to the City the sure of $2,000 for each failure to fully comply with the development standards set forth in Section 3 of this Agreement. The Defaulting Developer Parties shall be liable to pay the City said $2,000 sum per day for each day that such failure to comply occurs. The sums of money' to be paid for such failure(s) is not to be considered as a penalty, but shall be deemed, taken and treated as reasonable liquidated damages that accrue per day that such a failure shall exist or occur. The said amounts are fixed and agreed upon by the parties because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the City in such event would sustain; and said amounts are agreed to be the amounts of damages which the City would sustain. Notwithstanding the foregoing, none of the Defaulting Developer Parties shall be liable to pay the liquidated damages that accrue under this paragraph unless there is a breach of any material term or condition of this Agreement and such breach remains uncured after forty-five (45) calendar days following receipt of written notice from the City provided in accordance with this Agreement describing said breach in reasonable detail (or, if the cure of the breach has diligently and continuously been undertaken but reasonably requires more than forty-five (45) calendar days to cure, then such additional amount of time as is reasonably necessary to effect the cure, as determined by both Parties mutually and in good faith but in no event shall such additional period exceed 120 days unless agreed to in writing by the parties to this Agreement). In the event of a breach that is not timely cured in accordance with this paragraph, the sum of liquidated damages shall be calculated to include each and every day of the occurrence of the breach beginning on the date that the City first provided written notice of such breach under this paragraph and the City shall not be required to provide a subsequent written notices as to subsequent dates or times during which such breach is repeated or continues to occur. C. In the event of a default, the non -defaulting party will additionally have any and all remedies available to it at equity or in law. SECTION 7. BINDING ON SUCCESSORS, AGREEMENT RUNS WITH THE LAND. Except as otherwise provided for herein, this Agreement will be binding upon and inure to the benefit of the parties' respective successors, assigns and personal representatives. This Agreement will run with the land and be binding on all subsequent' Property Owners. SECTION 8. INDEMNIFICATION AND HOLD THE DEVELOPER, INCLUDING ITS SUCCESSORS ANDASSIGNS (THE "INDEMNIFYING PARTY"), HEREBY COVENANTS AND AGREES TO RELEASE, DEFEND, HOLD HARMLESS AND INDEMNIFY THE PROPERTY OWNERS AND 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 OR OTHER WRONGFUL CONDUCT OF THE INDEMNIFYING PARTY INCLUDING THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF ANY OF ITS EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, MATERIAL MEN, AND AGENTS, IN CONNECTION . WITH THE DESIGN OR CONSTRUCTION OF ANY PUBLIC INFRASTRUCTURE STRUCTURES OR OTHER FACILITIES OR IMPROVEMENTS THAT ARE REQUIRED OR PERMITTED UNDER THIS AGREEMENT AND/OR CITY REGULATIONS AND/OR ANY APPLICABLE DEVELOPMENT STANDARDS AND/OR ANY OTHER GOVERNING REGULATIONS: AND IT IS EXPRESSLY UNDERSTOOD THAT SUCH CLAIMS SHALL EXCEPT AS MODIFIED BELOW INCLUDE CLAIMS EVEN IF CAUSED BY THE CITY'S OWN CONCURRENT NEGLIGENCE SUBJECT TO THE TERMS OF THIS SECTION, THE INDEMNIFYING PARTY SHALL NOT HOWEVER BE REQUIRED TO INDEMNIFY THE CITY AGAINST CLAIMS CAUSED BY THE CITY'S SOLE NEGLIGENCE. IF THE CITY INCURS CLAIMS THAT ARE CAUSED BY THE CONCURRENT NEGLIGENCE OF THE INDEMNIFYING PARTY AND THE CITY THE INDEMNIFYING PARTY'S INDEMNITY OBLIGATION WILL BE LIMITED TO A FRACTION OF THE TOTAL CLAIMS EQUIVALENT TO THE INDEMNIFYING PARTY'S OWN PERCENTAGE OF RESPONSIBILITY. THE INDEMNIFYING PARTY FURTHER COVENANTS AND AGREES TO RELEASE DEFEND, HOLD HARMLESS, AND INDEMNIFY THE CITY AGAINST ANY AND ALL CLAIMS BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY AS OF THE DATE HEREOF WHO HAS NOT SIGNED THIS AGREEMENT IF SUCH CLAIMS RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH: U THE CITY'S RELIANCE UPON ANY OF THE INDEMNIFYING PARTIES' REPRESENTATIONS IN THIS AGREEMENT, (2) THIS AGREEMENT OR OWNERSHIP OF THE PROPERTY: OR (3) THE CITY'S APPROVAL OF ANY TYPE OF R SUBMISSION � At no time shall the City have any control over or charge of the design, construction or installation of any of the improvements to the Property or related work or undertakings, nor the means, methods, techniques, sequences or procedures utilized for the design, construction or installation related to same. This Agreement does not create a joint enterprise or venture between the City and any of the Indemnified Parties, This Section 8 will survive the termination of this Agreement. SECTION 9. RECORDATION. The parties may record th one (1) business day after SECTION 9 This Ag hereto. SECTION 1 ENTIRE ITALS A The recitals herein and. exhibits SECTION 11. AUTH ment in the property records of Collin County on or after and funding of the Contract. regarding the subject matter hereto are hereby incorporated by reference. Property Owner represents and warrants to the City that the Property Owner owns the Property that this Agreement is binding and enforceable on the Property. SECTION 12, INVALID PROVISIONS. If any provision of this Agreement is held not valid, such provision will be deemed to be excised there from and the invalidity thereof will not affect any of the other provisions contained herein. SECTION 13, EFFECTIVE DATE. This Agreement will be effective upon the Effective Date first stated herein. CITY OF ANNA By: Jim Proce, City Manager IN WITNESS WHEREOF STATE OF TEXAS COUNTY OF COLLIN Before me, the undersigned notary public appeared Jim Proce, known to me (or prove to to the foregoing instrument, and acknowledt as City Manager of the City of Anna, Texas: Notary Public, State of T Kayasa Holdings, .LLC a Texa By: Kayasa By: Name, title IN WITNESS WHEREOF STATE OF COUNTY 0F ited to ership, anaging Partner :,.day of 2020, be the person whose name is subscribed hat he executed the same in his capacity Before me, the undersigned notary public, on the day of , 2020, appeared , 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/she executed the same in his/her capacity as managing member of Kayasa Holdings, LLC in its capacity as managing partner of Kayasa Holdings, LLC, a Texas limited partnership. Notary Public, State of EXHIBIT " I PROPERTY DESCRIPTION EXHIBIT " 2" CONCEPT PLAN