HomeMy WebLinkAboutRes 2022-01-1090 Development Agreement with Anna 455 Commercial, LP (Avery Pointe)CITY OF ANNA, TEXAS
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT
AGREEMENT WITH Q SEMINOLE ANNA TOWN CENTER, L.P., RELATING TO
DEVELOPMENT AND DESIGN REGULATIONS FOR SELF STORAGE, MINI -
WAREHOUSE DEVELOPMENT LOCATED ON THE EAST SIDE OF
THROCKMORTON BOULEVARD, 38± FEET SOUTH OF HACKBERRY DRIVE.
WHEREAS, Anna 455 Commercial, LP, is the Property Owners of real estate generally
located on the east side of Ferguson Parkway, 315± feet north of W. White Streete; and
WHEREAS, Property Owners desire to rezone the subject property to allow self -storage,
mini -warehouse; and
WHEREAS, Property Owner has agreed to development and design regulations should
the City approve granting a Specific Use Permit for 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 Anna 455
Commercial, LP, attached hereto as Exhibit A, 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 11th day of January
2022.
ATTESTED:
ea NtatePike, Mayor
This Development Agreement (this "Agreement") is entered effective as of January
11, 2022 ("Effective Date") between and among the City of Anna, Texas, a Texas home -rule
municipality ("City") and Anna 455 Commercial, LP, a Texas limited partnership ("Property
Owner") as follows:
WHEREAS, the Property Owner is the sole owner of 3.961 acres of real property described on
Exhibit 1 and identified as Lot 3 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 The Davis Group or it's permitted assigns (the
"Developer"); and,
WHEREAS, Property Owner has, at the request of Developer, applied to rezone the Property
to allow for a self -storage, mini -warehouse by Specific Use Permit and to modify existing
development standards; 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 self -storage, mini -warehouse 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 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:
1�Page
EXHIBIT A
Page 2 OF 10
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 Owner, Developer, and the City.
SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS.
Development and use of the Property, including, without limitation, the construction, installation,
maintenance, repair, and replacement of all buildings and all other improvements and facilities
of any kind whatsoever on and within the Property, shall be in compliance with City Regulations
unless expressly stated to the contrary in this Agreement. City Regulations shall apply to the
development and use of the Property unless expressly set forth to the contrary in this Agreement.
It is expressly understood and the Parties agree that City Regulations applicable to the Property
and its use and development include but are not limited to City Code provisions, ordinances,
design standards, uniform codes, zoning regulations not affected by this Agreement, and other
policies duly adopted by the City including without limitation any such regulations or
requirements that were affected by the passage of Texas H.B. 2439, 86(R), codified as Chapter
3000 of the Texas Government Code ("Materials and Methods Regulations"), which are
collectively incorporated herein as if set forth in full for all purposes; provided, however, to the
extent of any conflict between the requirements of Materials and Methods Regulations and the
requirements of this Agreement, this Agreement shall control. For purposes of this Agreement,
'City Regulations" mean the City's applicable development regulations in effect on the Effective
Date, including without limitation City Code provisions, ordinances (including, without limitation,
all development fees), design standards, and other policies duly adopted by the City; provided,
however, that as it relates to public infrastructure for any given phase of the Project, the
applicable construction standards (including, without limitation, uniform building codes) shall be
those that the City has duly adopted at the time of the filing of an application for a preliminary
plat for that phase unless construction has not commenced within two years of approval of such
preliminary plat in which case the construction standards shall be those that the City has duly
adopted at the time that construction commences.
With respect to all structures/development on Avery Pointe Commercial, Block A, Lot 3 within
the Planned Development Zoning District, Property Owner agrees any construction on the
Property shall be required 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, which are incorporated herein as if set forth in full for all
purposes, and with the following standards (in the event of any conflict, the following listed
standards shall govern).
Self -Storage, Mini -Warehouse Buildings
A. Each building facade facing the right of way may not exceed a length of 100 feet
without a break in the facade of a minimum depth of 2 feet for a minimum length of
10 feet.
2�F'ag�
EXHIBIT A
Page 3 OF 10
B. A minimum of 2 materials are required on each facade facing the right of way.
C. 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. The use of other
high -quality materials for building trim, architectural decoration, and other design
elements shall not be precluded; however, they are subject to approval by the
zoning administrator and should contribute to the overall design concept
D. At least 60% of exterior facades not visible to the public (excluding doors, door
frames, windows, and window frames) are required to be stone, brick, and/or split
face concrete masonry units.
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
and zoning commission.
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:
To Property Owner:
City Manager
City of Anna
111 North Powell Parkway
PO Box 776
Anna, Texas 75409
Attn: City Manager
Anna 455 Commercial, LP
10950 Research Road
Frisco, TX 75033
A fn: Craig Curry
This Agreement may only be modified and/or terminated as follows: (a) by mutual written
agreement of Property Owner and City; and/or (b) unilaterally by City upon default of the
3�Page
EXHIBIT A
Page 4 OF 10
Property Owner. Notwithstanding the foregoing or any other provision of this Agreement, this
Agreement shall terminate and be null and void if the City does not approve the rezoning of
the Property to allow for a Specific Use Permit for self -storage, mini -warehouse, as set forth
in the existing zoning (Ordinance No. 179-2005 as modified by Ord. No. 22&2005 and 709-
2015). The parties acknowledge and agree that the rezoning of the Property is a legislative
act and that this Agreement does not bind the City Council to approve any proposed rezoning
of the Property.
SECTION 5. CLOSING.
The Contract currently provides that the closing and funding of the sale of the Property shall
occur on March 17, 2022, unless otherwise extended or 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 (each, a "Subsequent Property
Owner") shall fully assume all of Property Owner's rights and obligations under this Agreement,
and Property Owner, its successors and assigns, shall be fully and completely released from
this Agreement for all purposes, including, but not limited to, the provisions of Section 2, Section
6_13, and Section 8, 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,
including but not limited to a Subsequent Property Owner (each, a "Defaulting Owner"), fail to
fully comply with all the terms and conditions included in this Agreement, 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. Any 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
4�Page
EXHIBIT A
Page 5 OF 10
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. In the event of a breach that is not timely cured as set
forth below, 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 any subsequent written notices as to subsequent dates or times
during which such breach is repeated or continues to occur
C. The non -defaulting party will additionally have any and all remedies available to it at
equity or in law.
Notwithstanding the foregoing, a Defaulting Owner shall not be liable for the remedies under
this Section 5 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).
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 HARMLESS.
THE PROPERTY OWNER INCLUDING ITS SUCCESSORS AND ASSIGNS (THE
"INDEMNIFYING PARTY") HEREBY COVENANTS AND AGREES TO RELEASE, DEFEND,
HOLD HARMLESS AND INDEMNIFY THE CITY AND ITS OFFICIALS, OFFICERS,
AGENTS SERVANTS AND EMPLOYEES FROM AND AGAINST ALL THIRD -PARTY
CLAIMS SUITS JUDGMENTS DAMAGES, AND DEMANDS AGAINST THE CITY,
WHETHER REAL OR ASSERTED INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY'S FEES RELATED EXPENSES, EXPERT WITNESS FEES, CONSULTANT
FEES AND OTHER COSTS (TOGETHER, "CLAIMS"), ARISING OUT OF THE
5 1 P a g e
M 0 4 : • • 1
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: (1) THE CITY'S RELIANCE UPON ANY OF THE INDEMNIFYING
PARTIES' REPRESENTATIONS IN THIS AGREEMENT; (22) THIS AGREEMENT OR
OWNERSHIP OF THE PROPERTY; OR (33) 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 7 will survive the
termination of this Agreement.
Property Owner at its sole cost will record this document, including all the Exhibits, on or
after one (1) business day after Closing and funding of the Contract, and immediately provide
a recorded copy to the City.
This Agreement is the entire agreement of the parties regarding the subject matter
51
Page
The recitals herein and exhibits attached 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.
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.
On or before 15 days after receipt of a written request from an owner of the Property that
desires to transfer its interest in the Property or borrow money secured by a mortgage or
deed of trust against the Property or a prospective transferee of an owner's interest or an
existing or prospective mortgagee, the City will execute and deliver an estoppel certificate
stating if, to the actual knowledge of the City executing the certificate, (i) the transferring or
borrowing owner is in default under this Agreement after notice from the City executing the
certificate and expiration of any applicable grace period; and (ii) this Agreement is in full
force and effect and whether there are any amendments thereto.
This Agreement will be effective upon the Effective Date first stated herein.
[signature page follows]
7��ag�
EXHIBIT
Page 8 OF 10
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 day of January, 2022, appeared Jim
Proce, known to me (or proved to me) to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same in his capacity as
City Manager of the City of Anna, Texas.
Notary Public, State of Texas
ANNA 455 COMMERCIAL, LP,
a Texas limited partnership
By: Anna 455 Commercial GP, LLC,
a Texas limited liability company,
General Partner
By:
Craig Curry, Manager
IN WITNESS WHEREOF:
STATE OF TEXAS
COUNTY OF COLLIN
Before me, the undersigned notary public, on the day of January, 2022, appeared Craig
Curry, known to me (or proved to me) to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me and verified under oath that he/she executed the
same in his/her capacity as Manager of Anna 455 Commercial GP, LLC, a Texas limited liability
company, General Partner of Anna 455 Commercial, LP, a Texas limited partnership.
Notary Public, State of Texas
8�E�age
EXHIBIT I"
PROPERTY DESCRIPTION
WHEREAS Anna 455 Commercial, LP is the owner of a tract of land situated in the F. Duffau
Survey, Abstract No. 288, City of Anna, Collin County, Texas, being a portion of Lot 1 R, Block
A, Avery Pointe Commercial Addition, an addition recorded in Cabinet 2021, Page 321 of the
Plat Records, Collin County, Texas (PRCCT), with the subject tract being more particularly
described as follows:
BEGINNING at the southwest corner of the subject tract, and also being in the east line of
Ferguson Parkway, a 120 foot right-of-way;
THENCE along the east line of Ferguson Parkway, the following:
N 06°12'36" E, 261.51 feet;
THENCE around a tangent curve to the left having a central angle of 04°14'59", a radius of
1660.00 feet, a chord of N 04005'07" E - 123.09 feet, an arc length of 123.12 feet,
N 01°57'38" E, 0.94 feet to a 1/2" iron rod with plastic cap stamped "SPIARSENG" set for the
southwest corner of Lot CA-67, Avery Pointe Phase 1, an addition recorded in Cabinet 2016,
Page 454 PRCCT, and from which a 5/8' iron rod with plastic cap found for the northwest corner
of the right-of-way dedication created by said Ferguson Parkway plat bears N 88056'01" W,
60.01 feet;
THENCE S 88056101" E, along the south line of Lot CA-67, passing the southeast corner thereof
and the upper southwest corner of Avery Pointe Phase 2, an addition recorded in Cabinet 2017,
Page 535 PRCCT, and continuing along a south line thereof a total distance of 436.52 feet to a
1/2" iron rod with plastic cap stamped "SPIARSENG" set,
THENCE S 01°15'S9" W, 384.32 feet along the lower west line of Avery Pointe Phase 2 to the
southeast corner of the parent tract;
THENCE N 88056'01" W, 276.58 feet to the POINT OF BEGINNING with the subject tract
containing 172,555 square feet or 3.961 acres of land.
EXHIBIT A
Page 10 OF 10
EXHIBIT " 2"
DEPICTION OF THE PROPERTY
f
nj
IM tPYfA
AINA Yi"ltii:iMl