HomeMy WebLinkAboutRes 2022-03-1122 Development Agreement with Anna 31 Retail, LPCITY OF ANNA, TEXAS
RESOLUTION NO.oaa
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT
AGREEMENT WITH ANNA 31 RETAIL, LP, RELATING TO DEVELOPMENT AND
DESIGN REGULATIONS FOR MULTIPLE -FAMILY RESIDENCE DEVELOPMENT
GENERALLY LOCATED ON THE EAST AND WEST SIDE OF THROCKMORTON
BOULEVARD, 370± FEET SOUTH OF W. WHITE STREET (FM 455).
WHEREAS, Anna 31 Retail LP, is the Property Owners of real estate generally located on
the east and west sides of Throckmorton Boulevard, 370± feet south of W. White Street
(FM 455); and
WHEREAS, Property Owners desire to rezone the subject property to allow residential
uses; and
WHEREAS, Property Owner has agreed to development and design regulations should
the City approve rezoning 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 31 Retail, 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 22nd day of March 2022.
ATTESTED:
L. Land, City Secretary
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DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement") is entered effective as of March 22,
2022 ("Effective Date") between and among the City of Anna, Texas, a Texas home -rule
municipality ("City") and Anna 31 Retail, LP ("Property Owner") as follows:
RECITALS
WHEREAS, the Property Owner is the sole owner of 15.4± acres of real property described in
Exhibit 1A and Exhibit 1 B and depicted on Exhibit 2, (the "Property"); and,
WHEREAS, Property Owner has, at the request of Developer, applied to rezone the Property
to allow for Planned Development -Multiple -Family - High Density (PD-MF-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 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 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 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 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 Buildings
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 (30%) consisting of cementitious siding (Hardie products).
B. Roofing materials 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.
I
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:
1) 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, Cl" 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 repetition.
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
Anna 31 Retail, LP
c/o David E Claassen
8400 Westchester Dr.
Dallas, TX 75225
Suite
300
SECTION 4. MODIFICATIONS OR TERMINATION,
This Agreement may only be modified and/or terminated as follows: (a) by mutual written
agreement of Property Owner (or, after the Closing (as hereinafter defined), by Developer
instead 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 the City does not approve the rezoning of
the Property to be zoned as Planned Development -Multiple -Family Residential - High Density
(PDWF-2), as set forth in Section 9.04 of the Anna City Code of Ordinances, ("Zoning
Ordinance") on or before the 22nd day of March, 2022. 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 comply with all the material
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 shall be liable to pay to the City the sum of $2,000 for each
failure to materially comply with the development standards set forth in Section 3 of
this Agreement. The Defaulting Owner 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. 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 6 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, INCLUDING ITS SUCCESSORS AND ASSIGNS (THE
"INDEMNIFYIN(3 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
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
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 OR BY THE CITY'S WILLFUL MISCONDUCT OR GROSS 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 8. RECORDATION.
This document, including all Exhibits, may be recorded in the Official Records of Collin
Gounty, Texas.
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 %J 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 %J 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 AN
By:
Jim P
City NTanager
IN WITNES�8 WHEREOF
STATE OF TEXAS
COUNTY OF COLLIN
Before me, the undersigned notary public, on the jlPz day of [1 ro.;"�� . , 20225
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 31 Retail, LP
By: DEC Properties, L.L.C., its genera
By:
"'PY °° 0 CARRIE L. LAND
;= My Notary ID # 11419404
'•',rF ;�+'` Expires February 4, 2023
OF
rtner
David E. Claa"ssen, its Manager
IN WITNESS WHEREOF
STATE OF TEXAS
COUNTY OF DALLAS
Before me, the undersigned notary public, on the day of 2022, appeared
David E. Claassen, 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 executed
the same in his capacity as Manager of DEC Properties, LLC, in its capacity as general partner
of Anna 31 Retail, I.P.
JANE DONACHIE
:*; *= My Notary ID # 128809066
ry PubPuWW, %s Ote of Texas `:�:g�� t+P Expires November 22, 2023
EXHIBIT "1A" Lxhibit 1
PROPERTY DESCRIPTION
PROPERTY DE5CRIPTiON
Being a 2.52 acre tract of land located in the Thomas Rattan Survey, Abstract Number 782, Collin
County, Texas, being a part of Lot 3, Block A of the Anna Retail Addition, recorded in Instrument Number
20220310010000970 of the Official Public Records of Collin County, Texas, (OPRCCT), said 2.52 acre tract
as determined from a survey by Kenneth Yazel, RPLS 6182 on February 28, 2022 (ground distances are
expressed in US survey feet using a projected combined scale factor of 1.000152710) and being more
particularly described as follows:
COMMENCING at a found 5/8" iron rod having Texas Coordinate System of the North American datum
of 1983 (2011) EPOCH 2O10, North Central Zone (4202) Grid Coordinates of Northing 7176569.4 and
Fasting 2552835.6, on the east right-of-way line of U.S. Highway 75 (Variable Width Right -of -Way) and
at the southwest corner of said Lot 3;
THENCE North 88 degrees 57 minutes 21 seconds East (Grid Bearings based on said Texas Coordinate
System), with the south line of said Lot 3, a distance of 1635.97 feet to a found 5/8" iron rod at the
southeast corner of said Lot 3;
THENCE North 02 degrees 45 minutes 07 seconds West, with the east line of said Lot 3, a distance of
59.39 feet to the POINT OF BEGINNING of the herein described tract;
THENCE South 88 degrees 57 minutes 21 seconds West, across said Lot 3, a distance of 88.00 feet to a
point for corner;
THENCE North 45 degrees 32 minutes 35 seconds West, continuing across said Lot 3, a distance of 14.97
feet to a point for corner;
THENCE North 01 degrees 05 minutes 11 seconds West, continuing across said Lot 3, a distance of 58.82
feet to a point for corner In a curve to the left having a radius of 740.00 feet and whose chord bears
North 14 degrees 35 minutes 12 seconds West, a distance of 345.51 feet;
THENCE Northwesterly, continuing across said lot 3 with said curve to the left through a central angle of
27 degrees 00 minutes 03 seconds an arc length of 348.73 feet to a point for corner at the beginning of a
curve to the right having a radius of 656.66 feet and whose chord bears North 14 degrees 34 minutes 09
seconds West, a distance of 308.55 feet;
THENCE Northwesterly, continuing across said Lot 3 with said curve to the left through a central angle of
27 degrees 10 minutes 34 seconds an arc length of 311.46 feet to a point for corner on the north line of
said Lot 3, from which a found 1/2" iron rod with cap stamped "ypassociates.com" bears South 88
degrees 54 minutes 49 seconds West, a distance of 12.72 feet;
THENCE North 88 degrees 54 minutes 49 seconds East, with the north line of said Lot 3, a distance of
230.56 feet to a found 1/2" iron rod with cap stamped "ypassociates.com" at the northeast corner of
said Lot 3;
THENCE South 02 degrees 45 minutes 07 seconds East, with the east line of said Lot 3, a distance of
705.88 feet to the POINT OF BEGINNING and containing 2.52 acres, or 109,799 square feet of land,
more or less.
EXHIBIT its Exhibit 1
PROPERTY DESCRIPTION
PROPERTY DESCRIPTION
being a 12.87 acre tract of land located in the Thomas Rattan Survey, Abstract Number 782, Collin
County, Texas, being a part of Lot 3, Block A of the Anna Retail Addition, recorded in Instrument Number
20220310010000970 of the Official Public Records of Collin County, Texas, (OPRCCT), said 12.87 acre
tract as determined from a survey by Kenneth Yazel, RPLS 6182 on February 28, 2022 (ground distances
are expressed in US survey feet using a projected combined scale factor of 1.000152710) and being
more particularly described as follows:
COMMMENCiNG at a found 5/8" iron rod having Texas Coordinate System of the North American
Datum of 1983 (2011) EPOCH 2O10, North Central Zone (4202) Grid Coordinates of Northing 7176569.4
and Easting 2552835.6, on the east right-of-way line of U.S. Highway 75 (Variable Width Right -of -Way)
and at the southwest corner of said Lot 3;
THENCE North 88 degrees 57 minutes 21 seconds East (Grid Bearings based on said Texas Coordinate
System), with the south line of said said Lot 3, a distance of 369.85 feet to the POINT OF BEGINNING of
the herein described tract,
THENCE North 01 degrees 02 minutes 37 seconds West, across said Lot 31 a distance of 508.22 feet to a
set 1/2" Iron rod with a cap stamped "ypassociates.com";
THENCE North 88 degrees 57 minutes 22 seconds East, continuing across said Lot 3, a distance of 69.28
feet to a point for corner;
THENCE North 01 degrees 03 minutes 24 seconds West, continuing across said Lot 3, a distance of 24.87
feet to a point for corner from which a found 1/2" iron rod with a cap stamped "ypassociates.com" at an
angle point on the north line of said Lot 3 bears North 01 degrees 03 minutes 24 seconds West, a
distance of 26.13 feet;
THENCE North 88 degrees 52 minutes 55 seconds East, continuing across said Lot 3, a distance of 900.32
feet to a point for corner in a curve to the left having a radius of 740.00 feet and whose chord bears
South 23 degrees 38 minutes 38 seconds East, a distance of 114.66 feet;
THENCE Southeasterly, continuing across said Lot 3 with said curve to the left through a central angle of
08 degrees 53 minutes 12 seconds an arc length of 114.77 feet to a point for corner at the beginning of a
curve to the right having a radius of 660.00 feet and whose chord bears South 14 degrees 35 minutes 12
seconds East, a distance of 308.16 feet;
THENCE Southeasterly, continuing across said Lot 3 with said curve to the left through a central angle of
27 degrees 00 minutes 03 seconds an arc length of 311.03 feet to a point for corner;
THENCE South 01 degrees 05 minutes 11 seconds East, continuing across said Lot 3, a distance of 128.81
feet to a point of corner from which a found 5/8" iron rod at the southeast corner of said Lot 3 bears
North 88 degrees 57 minutes 21 seconds East, a distance of 180.20 feet;
THENCE South 88 degrees 57 minutes 21 seconds West, with the south line of said Lot 30 a distance of
1085.91 feet to the POINT OF BEGINNING and containing 12.87 acres, or 560,585 square feet of land,
more or less.
3
EXHIBIT " 2"
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