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HomeMy WebLinkAboutRes 2020-12-840 Agreement with Village Communities Development Corporation and Anna Crossing Partners SLP, LP, for Multifamily DevelopmentRESOLUTION NO. c°QaIO J $� A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS APPROVING AN AGREEMENT WITH VILLAGE COMMUNITIES DEVELOPMENT CORPORATION AND ANNA CROSSING PARTNERS SLP LP FOR MULTIFAMILY DEVELOPMENT WHEREAS, the City of Anna, Texas (the "City") has a need for and desires to increase its supply of quality affordable housing for the benefit of its current and future residents; and WHEREAS, the Village Communities Development Corporation (the "Corporation") and Anna Crossing Partners SLP LP (the "Partnership") has the capacity and desire to develop quality, safe, sanitary, and affordable housing and has identified a site in the City for a multifamily development to be more commonly known as Waterview Apartments; and WHEREAS, the City, the Corporation and the Partnership desire to enter into the Agreement attached hereto as Exhibit A (the "Agreement") setting forth their respective rights and responsibilities; 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 set forth in full. SECTION 2. Approval of Project and Agreement The City Council of the City of Anna, Texas (the "City Coiwcil") hereby approves the Agreement Between the City of Anna, Texas, Village Communities Development, and Anrra Crossing Partners SLP LP, attached hereto and incorporated herein for all purposes, and authorizes the City Manager to execute same on its behalf. SECTION 3. Administration The City Council hereby authorizes the City's Economic Development Director or his designee to administer the Agreement and to execute all other documents necessary to effectuate the Agreement. CONSIDERED, PASSED AND ADOPTED by the City Council of the City of Anna at a regular• meeting on the 8th day of December 2020. A PP Pike, Exhibit A AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS, VILLAGE COMMUNITIES DEVELOPMENT CORPORATION, AND ANNA CROSSING PARTNERS SLP LP This Agreement ("Agreement") is made and entered into by and between the City of Anna, Texas (the "City") a political subdivision of the State of Texas, Village Communities Development Corporation, a non-profit public facility corporation ("Corporation") sponsored by the Housing Authority of the City of Texarkana, Texas (the "Authority"), a public housing authority organized under Chapter 392 of the Texas Local Government Code, and Anna Crossing Partners SLP LP, a Texas limited partnership ("Partnership"). WHEREAS, the City desires to promote, maintain, and provide safe, sanitary, and affordable housing for low to moderate -income citizens of Anna; and WHEREAS, the Authority's mission is to provide safe, sanitary and affordable housing for eligible residents and desires to support the development and operation of affordable housing through Corporation, its affiliate entity, a public housing authority sponsored public facility corporation, in communities across the state of Texas; and WHEREAS, Chapter• 791 of Texas Local Government Code allows City and the Authority to enter into interlocal agreements in order to increase the efficiency and effectiveness of local governments; and WHEREAS, Section 392.059 of the Texas Local Government Code states that authorities may cooperate with a municipality in providing housing for persons of low income within the boundaries of the cooperating political subdivision; and, WHEREAS, the City has a need for and desires to increase its supply of quality affordable housing for the benefit of its current and future residents; and WHEREAS, the Corporation has the capacity and desire to develop quality, safe, sanitary, and affordable housing in the City of Anna and has identified a site in the City for said affordable housing to be located at located on 20.799 acres of real property at 1220 S. Powell Partway (the "Property"); and WHEREAS, the Corporation has identified Provident Realty Advisors, Inc., a Texas corporation, to act as its Developer partner to construct a multifamily development more commonly known as Waterview Apartments (the "Project"); and WHEREAS, the Corporation and the City understand that the Project will rely on City resources including the cost of provision of public services; and WHEREAS, this Agreement provides for payment to the City as compensation to assist with funding of said public services; and 40 1 Exhibit A NOW THEREFORE, the City and the Corporation (collectively, the "Parties") agree as follows: Section 1: Purpose and Objective. The Parties agree that the purpose of this Agreement is to facilitate collaboration and coordination between the Parties in the development of the Project to be constructed and operated within the territorial limits of the City for the purpose of providing quality, safe, and affordable housing to low and moderate income residents of the City; provided, however, that this Agreement does not amend or otherwise affect any development agreement related to the Property to which the City is a party. Section 2: Role of the Corporation and Partnership. The responsibilities of the Corporation and Partnership under this Agreement shall include the following: (a) Corporation shall work with the developer to identify and propose an appropriate financial structure to support the development of the Project. (b) Corporation shall work with the developer to identify and propose vendors for third party services necessary to the development of the Project, including but not limited to, architects, consultants, and legal counsel. (c) Corporation shall coordinate with the City to provide requested briefings to the City Council and City staff, as appropriate. (d) Corporation shall work with the developer to prepare and submit an application to the Texas Department of Housing and Community Affairs ("TDHCA") for an allocation of 4% Low Income Housing Tax Credits ("4% Credits") to support the Project. (e) Corporation's sponsor's affiliate, shall serve as the issuer of any bonds required in conjunction with the award of the 4% Credits. (f) Corporation shall serve as the owner of the fee simple interest in the real property underlying the Project and shall enter into a long term ground lease with the owner partnership. (g) Corporation shall serve as the sole member of the general partner of the Partnership. (h) Partnership shall make or cause to be made annual payments to the City to assist with the funding of the City's public services provided to the Project. The first of such payments shall be in the amount of $100,000 and shall be due and payable to the City within 180 days after the first certificate of occupancy (temporary or otherwise) is issued by the City for full or partial occupancy and operation of the Project (the "First Payment Date"). Subsequent payments shall be due and payable to the City on each subsequent annual anniversary of the First Payment Date, subject to available net cash flow (as hereinafter defined) and shall be in the amount of 20% of the full amount of the ad valorem tax amount that would otherwise be assessed and imposed by the City on the Property were the Project not exempt from ad valorem taxation. As used herein, the term "Net Cash Flow" shall mean the revenue from the Project less Operating Expenses of the Project and less the amount of debt service payable to the First Lienholder. The ad valorem tax amount described herein shall be inclusive of taxes assessed and imposed on real property as well as furniture, fixtures, equipment and business personal property, and is limited only to the taxes that would otherwise be assessed and imposed by the City and no other taxing jurisdiction. Section 3: Role of the City. The City's responsibility under this Agreement shall include the following: 2 Exhibit A (a) City shall endeavor to identify local service providers and programs that have the potential to serve and/or enhance services at the Project. (b) City staff shall cooperate with the Corporation and shall participate in briefings to the City Council upon the Corporation's request. (c) City staff shall work with the Corporation to facilitate any departmental approvals or city permits necessary to the completion of the Project. (d) City agrees to expedite and assist with any procedural requirements involved in obtaining any City Council approvals necessary to the development of the Project, including approvals and resolutions related to the Project's application to TDHCA for 4% Credits. (e) The City agrees to supply the Project with the same degree of public services that it supplies to other similar development within the City. Section 4: Joint Obligations. In addition to the duties outlined in Sections 2 and 3 above, to facilitate the development, financing, and construction of the Project, the City and the Corporation agree to jointly collaborate to achieve the following: (a) Determine any financial responsibilities to be assumed by either the City or the Corporation with regard to the Project. (b) Each party shall make best efforts to consult and coordinate with the other as to timing, content, and form before issuing any press release or other public disclosure or formal statement related to this Agreement or the Project. However, this section does not prohibit any disclosures regarding this Agreement, if, in the opinion of its legal counsel, such disclosure is required by law, including but not limited to disclosures required by the Texas Public Information Act. Section 5: Term. Agreement Term. This Agreement shall be effective upon execution by the last party whose signature renders this Agreement fully executed. Unless otherwise terminated in accordance with this Agreement, the term of this Agreement ('Agreement Term") shall continue throughout the life of the Project (the life of the Project shall be considered to have expired if the multifamily housing operation completely ceases for a period of at least 365 consecutive days). Section 6: Representations and Warranties. 6.1. The Corporation hereby unconditionally warrants and represents to the City as follows: (a) It has the legal and financial capacity to assume responsibility for compliance with all applicable laws, regulations, rules, programs and agreements and to enter into this Agreement and to perform all of the undertakings set forth herein. In connection with the Project, the Corporation will comply with all legal requirements required to be met, including but not limited to the following: (i) any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of any governmental authority in any way applicable to the Authority or the 3 Exhibit A Project, including, without limitation, the ownership, use, construction, occupancy, possession, operation, maintenance, alteration, repair or reconstruction thereof, (ii) any and all covenants, conditions, and restrictions contained in any deed or other form of conveyance or in any other instrument of any nature that relate in any way or are applicable or to the ownership, use, construction, occupancy, possession, operation, maintenance, aIteration, repair or reconstruction thereof, (iii) the Corporation's presently or subsequently effective bylaws and articles of incorporation or partnership, limited partnership, joint venture, trust or other form of business association agreement, (iv) any and all terms, provisions and conditions of any commitment which are to be performed or observed by the Corporation, (v) any and all leases and other contracts (written or oral) of any nature that relate in any way to the Project and to which the Corporation may be bound and (vi) all applicable restrictive covenants, zoning ordinances, subdivision and building codes, or if no local building codes are in place, then the most recent version of the International Building Code, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or requirements issued by any state, federal or municipal authorities having or claiming jurisdiction over the Project. (b) It is a duly organized and validly existing legal entity under• the laws of the State of Texas. (c) The Corporation is not a party to any contract or agreement or subject to any charter or other legal restriction of any kind which materially and adversely affects the business, property or assets, or the condition, financial or otherwise, of the Authority. Neither the execution and delivery of this Agreement, nor compliance with the terms, conditions and provisions hereof, will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under any law or any regulation, order or decree of any court or governmental agency, or any indenture or other agreement or instrument to which the Corporation is subject, or will result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Corporation pursuant to the terms of any such indenture or agreement or instrument, and will not require the approval of any federal regulatory body or of any state or local commission or authority having jurisdiction with respect thereto, unless such approval has been obtained and is in full force and effect on the date hereof. (d) There is no action, proceeding or investigation now pending before any court or any governmental department or agency nor any basis therefor, known or believed to exist which: (i) questions the validity of this Agreement or any action or act taken or to be taken by the Corporation pursuant to this Agreement, or (ii) is likely to result in a material adverse change in the authority, property, assets, liabilities or condition of the Corporation which will materially and substantially impair its ability to perform pursuant to the terms of this Agreement. 6.2. The City hereby unconditionally warrants and represents to the Corporation as follows: (a) It has legal capacity to assume responsibility for compliance with all applicable laws, regulations, rules, programs and agreements and to enter into this Agreement and to perform all the undertakings set forth herein. 4 Exhibit A (b) It is a duly organized and validly existing legal entity under laws of the State of Texas. (c) This Agreement has been duly and validly executed and hereby binds the City and constitutes a valid and legally binding obligation enforceable in accordance with its terms. (d) The City is not a party to any contract or agreement or subject to any charter or other legal restriction of a kind which materially and adversely affects the business, property, or assets, or the condition, financial or otherwise, of the City. Neither the execution and delivery of this Agreement, nor compliance with the terms, conditions and provisions hereof will conflict with or result in a breach of the terns, conditions or provisions of, or constitute a default under any law or any regulation, or decree of any court or governmental agency, or of any indenture or other agreement or instrument to which the City is subject, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the City pursuant to the terns of any such indenture or agreement or instrument and, except as expressly set forth herein, will not require the approval of any federal regulatory body or of any state or local commission or authority having jurisdiction with respect thereto, unless such approval has been obtained and is in full force and effect on the date hereof. (e) There is no action, proceeding or investigation now pending before any court or any governmental department or agency nor any basis therefor, known or believed to exist which: (i) questions the validity of this Agreement or any action or act taken or to be taken by the City pursuant to this Agreement, or (ii) is likely to result in a material adverse change in the authority, property, assets, liabilities or condition of the City which will materially and substantially impair its ability to perform pursuant to the terms of this Agreement. (f) The authorization of the City Council to proceed with the execution of this Agreement shall include the authorization of the Economic Development Director ("Director") to provide any approvals or consents required from the City pursuant to this Agreement without the need for further action by the City Council. To the extent the Director deems any consent or approval item needs to be brought before the City Council, such City Council action shall be taken by the City within the time period necessary to meet any deadlines applicable to such item. Regardless of the foregoing, it is expressly understood and agreed that the Authority, its agents and or the Developer of the Project envisioned herein must obtain zoning approvals as if they were private parties, and that the City Council will vote upon those requests in its legislative capacity and with full authority to approve or not approve the zoning without regard to this Agreement. Section 7: Notices. All notices and communications under this Agreement shall be mailed by certified mail, return receipt requested, or delivered to the Corporation at the following address: Antonio D. Williams, Secretary &CEO Exhibit A Village Communities Development Corporation 1611 N. Robison Road Texarkana, Texas 75501 E-mail: awilliams@texarlcanaha.org with a copy to: Barry J. Palmer Coats Rose, P.C. 9 Greenway Plaza #1000 Houston, Texas 77046 E-mail: bpalmer@coatsrose.com All notices and communications under this Agreement shall be mailed by certified mail, return receipt requested to the City at the following address: Jim Proce, City Manager City of Anna 111 N. Powell Parkway Anna, Texas 75409 with a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, Texas 75034 Notice will be considered given and completed upon actual receipt of the notice by the receiving party. Either Fax may change its designated address for notice purposes upon ten (10) days' prior written notice to the other party. SECTION 8. Cooperation and Compliance. The parties hereto agree to cooperate with each other and provide all necessary documentation, certificates and consents and to take ali necessary action in order to satisfy the terms and conditions hereof in accordance with the applicable laws, regulations and agreements relating thereto. SECTION 9. Miscellaneous. 9.1 Waivers. No delay or omission by either party to insist upon the strict performance of any of the other parry's obligations under this Agreement or to exercise any right or remedy available hereunder shall impair any such right or remedy or constitute a waiver thereof in the event of any subsequent occasion giving rise to such right or availability or remedy or obligation, whether of a similar or dissimilar nature. Exhibit A 9.2 Assignment and Successors. No party to this Agreement will make, in whole or in part, any assignment of this Agreement or any obligation hereunder without the prior written consent of the other party. The terms, covenants, agreements, provisions, and conditions contained herein shall bind and inure to the benefit of the parties hereto, their successors and assigns and shall not bestow any rights upon any third party. 9.3 Applicable Laws, Interpretation and Governing Law. In addition to the matters specifically set forth herein, this Agreement is subject to all laws, rules, orders and regulations of the United States of America, the State of Texas, and the City of Anna. This Agreement shall not be construed against the party who prepared it but shall be construed as though prepared by both parties. This Agreement shall be construed, interpreted, and governed by the laws of the State of Texas, and with respect to any dispute hereunder, jurisdiction and venue shall lie with the courts of Collin County, Texas. Should any party hereto retain counsel for the purpose of litigation to enforce, prevent the breach of any provision hereof, or for any other judicial remedy, then the prevailing party shall be entitled to be reimbursed by the losing party for all reasonable costs and expenses incurred thereby, including, but not limited to, reasonable attorneys' fees and costs incurred by such prevailing party. 9.4 Final Agreement. This Agreement constitutes the final understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties, whether written or oral. This Agreement may be amended, supplemented or changed only by a writing signed or authorized by or on behalf of the party to be bound thereby. 9.5 Approvals. Any approvals required from the parties in connection with this Agreement shall not be unreasonably withheld, conditioned or delayed. 9.6 Severability. If any term or provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such term or provision shall be deemed severed from this Agreement and the remaining parts shall continue in full force as though such invalid or unenforceable term or provision had not been part of this Agreement. 9.7 Headings. The Section and Subsection entitlements hereof are inserted for convenience of reference only and in no way shall alter, modify or define, or be used in construing, the text of such Sections and Subsections. 9.8 Counterparts. This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. 9.9 Further Assurances. Each party shall execute such other and further documents as maybe reasonably necessary or proper for the consummation of the transactions contemplated by this Agreement. 9.10 Parties Bound. No officer, director, shareholder, employee, agent, or other person authorized to act for and on behalf of either party shall be personally liable for any obligation, express or implied, hereunder. [SIGNATURE PAGE TO FOLLOW] 7 Exhibit A EXECUTED, this day of , 2020. VILLAGE COMMUNITIES DEVELOPMENT CORPORATION a Texas non-profit public facility corporation By: Antonio D. Williams Secretary & CEO, CITY OF NA, a Texas u i pal( By: Name: Jim Title: )city ANNA G$OSSIN ted partnership PARTNERS SLP LP, a Texas By: ANNA CROSSING PARTNERS SLP GP LLC, a Texas limited liability company By: its