HomeMy WebLinkAboutRes 2022-01-1096 Amended and Restated Development Agreement with Anna Town Center Mixed Use, LLC (Parmore-Anna)CITY OF ANNA, TEXAS
RESOLUTION NO. y "►ngCp
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AN AMENDED AND
RESTATED DEVELOPMENT AGREEMENT WITH ANNA TOWN CENTER MIXED
USE, LLC RELATING TO DEVELOPMENT AND DESIGN REGULATIONS FOR
MULTIPLE=FAMILY RESIDENCE DEVELOPMENT LOCATED AT THE NORTHEAST
CORNER OF FINLEY BOULEVARD AND FLORENCE WAY.
WHEREAS, Anna Town Center Mixed Use, LLC is the Property Owner (the "Owner") of real
estate generally located at the at the northeast corner of Finley Boulevard and Florence
May; and
WHEREAS, Owner and the City entered into a Development Agreement effective as of
September 28, 2021 (the "Original Agreement"); and
WHEREAS, Owner and the City desire to amend, restate and otherwise replace in its
entirety the Original Agreement.
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 Amended and Restated Development Agreement
with Anna Town Center Mixed Use, LLC, attached hereto as Exhibit A, and ratifies and
approves the City Manager's execution of
authorized to execute all documents and take
u
nder and enforce the Agreement.
the same. The City Manager is hereby
all other actions necessary to finalize, act
PASSED by the City Council of the City of Anna, Texas, on this 25th day of January
2022.
ATTESTED:
Caa „
e L. Land, City
ati~ �Re, Mayor
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This Amended and Restated Development Agreement (this "Agreement") is entered
effective as of January 25, 2022 ("Effective Date") between and among the City of Anna,
Texas, a Texas home -rule municipality ("City") and Anna Town Center Mixed Use, LLC
("Property Owner") as follows.
RECITALS
WHEREAS, the Property Owner is the sole owner of 9.9± acres of real property described in
Exhibit 1 and depicted on Exhibit 2, (the "Property"); and,
WHEREAS, Property Owner has applied to rezone the Property to allow for Planned
Development -Multiple -Family - High Density (PDWF-2) to allow for multiple -family residences
with modified 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 entered
into a Development Agreement dated effective as of September 28, 2021, copies of which are
recorded in the Official Public Records of Collin County, Texas at Clerk's File Nos.
202110070020555701 20211007002055580, and 20211007002055560 (the "Original
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, City and Property Owner desire to enter into this Agreement to amend, restate
and otherwise replace in its entirety the Original Agreement in the form of this restated
Agreement, which includes an amendment to automatic termination provision in Section 4 of
the Original Agreement, 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:
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 Owner, Developer, and the City.
SECTION 2. DEVELOPMENT STANDARDS /BUILDING MATERIALS.
Development and use of the Property, including, without limitation, the cons#ruction, 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 within the PD-MF-2 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,
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).
Multiple -Family Residence`Buiidirtgs
A. All multi -family buildings and structures shall have at least seventy percent (70%), 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,
stone, pre -cast stone, and other similar veneer material) or Stucco materials with no more than
(W/o) consisting of cementitious siding (Hardie products).
B. Roofing materials of for buildings and structures must be architectural roof shingles, said
shingles shall be accompanied with a minimum 25-year warranty. Under no circumstances
shall three -tab shingles be used as roofing material.
C. Accessory buildings shall use similar building and roofing materials as those used on the
primary buildings.
D. A covered entry area shall be designed at the main entry to each building.
E. A minimum of 75% of all units must have one of the following design features: a true balcony,
stoop, or patio to create outdoor living space.
F. Four architectural design features are required on facades facing public streets, parking and
common areas. Acceptable architectural design features may include but are not limited to:
1) Articulation of building facade,
2) Extensions to the building through bay or box windows, and other similar features
projecting out from the facade,
3) A horizontal change in building materials between stories of a building,
4) Variation in building materials between vertical intervals,
5) Variations in window placement,
6) Architectural features such as shutters, awnings, dormers, chimneys, decorative
moldings or ornamental details, and
7) Roof height, pitch, ridgelines and materials shall be varied to create visual interest and
avoid repeon.
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 Parkway
PO Box 776
Anna, Texas 75409
Attno City Manager
To Property Owner:
To Subsequent Property Owner:
SECTION 4. MODIFICATIONS OR TERMINATION.
Anna Town Center Mixed Use, LLC
8214 Westchester Dr., Suite 710
Dallas, TX 75225
Attn: John Arnold
JPI
600 E. Las Colinas Blvd, Suite 1800
Irving, TX 75039
Attn: Miller Sylvan
This Agreement may only be modified and/or terminated as follows: (a) by i`nutual written
agreement of Property Owner and City; and/or (b) unilaterally by City upon default of the
Property Owner. Notwithstanding the foregoing or any other provision of this Agreement, this
Agreement shall terminate and be null and void if (i) the City does not approve the rezoning
of the Property to be zoned as Planned Development -Multiple -Family Residential - High
Density (PD-MF-2), as set forth in Section 9.04 of the Anna City Code of Ordinances, ("Zoning
Ordinance"); or (ii) if Property Owner does not transfer and convey the Property to TDI
Affordable Housing, LLC, or Parmore Anna Holdings, LLC, or an affiliate of either (the
"Subsequent Property Owner), not later than one (1) year after the Effective Date. 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. DEFAULT.
If Property Owner, its heirs, successors or assigns or subsequent owners of the Property,
including but not limited to the Subsequent Property Owner., 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 failures) 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. 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 6. BINDING ON SUCCESSORS, AGREEMENT RUNS WITH THE LAND.
This Agreement will be binding upon and inure to the benefit of the parties' respective
successors, assigns and personal representatives, including without limitation the
Subsequent Property Owner and its successors, assigns and personal representatives. This
Agreement will run with the land and be binding on all subsequent Property Owners and
Developers including without limitation the Subsequent Property Owner.
SECTION 7. INDEMNIFICATION AND HOLD HARMLESS.
THE PROPERTY OWNER, fNCLUDING 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 AGAINSTALLTHIRD-PARTY
CLAIMS, SUITS, JUDGMENTS, DAMAGES AND DEMANDS _ AGAINST -THE CITY,
WHETHER REAL OR .ASSERTED INCLUDING WITHOUT LIMITATION REASONABLE
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS MATERIAL MEN AND_AGENTS
ARE REQUIRED OR PERMITTED .....UNDER --THIS - AGREEMENT AND/OR CITY
OF THIS SECTION. THE INDEMNIFYING PARTY SHALL NOT.. HOWEVER. BE REQUIRED
--THE CITY'S SOLE
NEGLIGENCE, IF THE CITY INCURS_ CLAIMS THAT ARE CAUSED BY THE
TO INDEMNIFY THE CITY AGAINST CLAIMS CAUSED BY
INDEMNIFYING PARTY'S INDEMNITY OBLIGATION WILL BE LIMITED TO A FRACTION.
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
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.
SECTION 8. RECORDATION.
Subsequent Property Owner at its sole cost will record this document, including all the
Exhibits, not later than ten (10) business days after the transfer and conveyance of the
Property to the Subsequent Property Owner and promptly provide a recorded copy to the
City.
SECTION 9. ENTIRE AGREEMENT.
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. AUTHORITY.
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. ESTOPPEL.
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.
SECTION 14. EFFECTIVE DATE.
This Agreement will be effective upon the Effective Date first stated herein.
[signature page follows]
CITY OF ANNA
By: '
Jim Proce, CityfManager
IN WITNESS WHEREOF:
STATE OF TEXAS
COUNTY OF COLLIN
Before me, the undersigned notary public, on the D-day of , 2022,
appeared Jim Proce, known to me (or proved to me) to be the person w ose name i ubscribed
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 TOWN CENTER MIXED USE, LLC, a Texas limited liability corporation,
By: SKORBURG ANNA TOWN CENTER MIXED USE, LTD.,
a Texas limited liability partnership, its managing member
By: SKORBURG ANNA TOWN CENTER MIXED USE GP CORP,
a Texas
By:
IN WITNESS WHEREOF:
STATE OF TEXAS
COUNTY OF COLLIN
Before me, the undersigned notary public, on the 3 1�day of 6nt&� ✓ ,2022, appeared
Adam Buczek, known to me (or proved to me) to be the person whose narde 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 Authorized Signer of Skorburg Anna Town Center Mixed Use
GP Corp. in its capacity as general partner of Skorburg Anna Town Center Mixed Use, Ltd., in
its capacity of managing member of Anna Town Center Mixed Use, LLC.
Notapj'ublic, State of Texas
}1�"� °�o^ HUMBERTO JOHNSON
Notary ID 1i132479174
� f My Commission Expires
May 15, 2024
EXHIBIT "I
PROPERTY DESCRIPTION
BEING a tract of land situated in the Granderson Stark Survey, Abstract No. 798, City of Anna, Collin
County, Texas and being part of a tract of land described in Special Warranty Deed with Vendor's Lien
to Anna Town Center Mixed Use LLC, recorded in Instrument No. 20150317000291340, Official Public
Records of Collin County, Texas and being more particularly described as follows:
COMMENCING at a 5/8" iron rod with plastic cap stamped "RPLS 4838" found at the northeast corner of
Lot 1, Block 1 Anna Crossing Addition - Phase 11 according to the plat recorded in Instrument No.
20180914010004340 of said Official Public Records and at a point the south line of Anna Crossing Phase
7 according to the plat recorded in Instrument No. 20180907010004210 of said Official Public Records,
THENCE with the east line of said Lot 1, Block 1, South 10°25'10" East, a distance of 53.08 to a 5/8" iron
rod with plastic cap stamped "RPLS 4838" found for the POINT OF BEGINNING;
THENCE departing said east line of Lot 1, Block 1 and with the south line of said Anna Crossing Phase
7, the following courses and distances:
North 88°55'S0" East, a distance of 841.94 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set for corner;
South 72037'22" East, a distance of 83.18 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set for corner in the northwest right -of --way line of Finley Drive (an 80-foot right-of-way) and for
the southeast corner of said Anna Crossing Phase 7,
THENCE with said northwest right -of --way line of Finley Drive, the following courses and distances:
South 37033148" West, a distance of 796.51 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set at the beginning of anon -tangent curve to the right having a central angle of 1 °03'23, a radius
of 960.00 feet, a chord bearing and distance of South 38006'29" West, 17.70 feet;
In a southwesterly direction, with said curve to the right, an arc distance of 17.70 feet to a 5/8"
iron rod with plastic cap stamped "KHA" set for corner;
South 50°09'15" West, a distance of 74.01 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set at the beginning of a non -tangent curve to the right having a central angle of 6°28'26", a radius
of 948.00 feet, a chord bearing and distance of South 46°15'38" West, 107.06 feet;
In a southwesterly direction, with said curve to the right, an arc distance of 107.12 feet to an "X"
cut in concrete set for corner;
South 49029'51" West, a distance of 32.99 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set for corner at the eastern end of a right -of --way corner clip of said northwest right -of --way line of
Finley Drive and the northeast right -of --way line of Florence Way (an 80-foot right-of-way);
THENCE with said right-of-way corner clip, North 85030'09" West, a distance of 21.17 feet to a 5/8" iron
rod with plastic cap stamped "KHA" set for corner;
THENCE with said northeast right-of-way of Florence Way, the following courses and distances:
North 40°3009" West, a distance of 79.16 feet to a 5/8" iron rod with plastic cap stamped "KHA"
set at the beginning of a tangent curve to the right having a central angle of 29°43'25", a radius
of 460.00 feet, a chord bearing and distance of North 25°its 27 West, 235.97 feet;
4888-5267-9177v.2
In a northwesterly direction, with said curve to the right, an arc distance of 238.64 feet to a 5/8"
iron rod with plastic cap stamped "KHA" set for corner in the south line of said Lot 1, Block 1
THENCE with said south line of Lot 1, Block 1, North 89°42at, East, a distance of 5.33 feet to a point
on a vault being the southeast corner of said Lot 1, Block 1;
THENCE with said east line of Lot 1, Block 1, North 10°2509 West, a distance of 531.46 feet to the
POINT OF BEGINNING and containing 9.9258 acres or 432,369 square feet of land.
Bearing system based on the Texas Coordinate System of 1983, North Central Zone (4202), North
American Datum of 1983.
4688-5267-9177v.2
EXHIBIT " 2"
CONCEPT PLAN
4888-5267-9177v.2
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