HomeMy WebLinkAboutRes 2022-11-1315 First Amendment to Amended & Restated Incentive Agreement with Anna VillageRESOLUTION NO. AG 9 ,� - [ I - 13 )S
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS
APPROVING AND AUTHORIZING A FIRST AMENDMENT TO AMENDED AND
RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
WITH ANNA VILLAGE RESIDENTIAL, LTD. AND ANNA VILLAGE COMMERCIAL,
LTD.
WHEREAS, the City previously entered into an Incentive Agreement for New Economic
Development ("the Agreement") with Anna Village Residential, Ltd. and Anna Village
Commercial, Ltd on October 12, 2021, and desires to make certain amendments to the Agreement
substantially in the form of the First Amendment to Amended and Restated Incentive Agreement;
and
WHEREAS, the City of Anna, Texas (the "City") desires to waive all water, wastewater,
roadway impact fees, and park fees in support of a community development project that will create
and retain jobs, and that will result in new capital investment within the corporate limits of the City
of Anna, Texas; and
WHEREAS, the City has found that the Project will promote new or expanded business
enterprises; and
WHEREAS, the City is authorized to grant the waiver under Chapter 380 of the Texas
Local Government Code;
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ANNA, TEXAS:
SECTION 1. Findings. The findings set forth above are incorporated herein for all
purposes as if set forth in full.
SECTION 2. Approval of Project and Agreement
The City Council of the City of Anna, Texas hereby approves the First Amendment to the
Amended and Restated Incentive Agreement for New Economic Development with Anna Village
Residential, Ltd. and Anna Village Commercial, Ltd. and the City of Anna, Texas ("Agreement")
attached hereto as Exhibit I. incorporated herein for all purposes, and authorizes the Mayor to
execute the same on its behalf, subject to approval as to form by legal counsel for the City, said
Agreement to be effective upon its passage and as set forth in said Agreement.
SECTION 3. Administration
The City hereby authorizes the City Manager or his designee to administer the Agreement.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Anna,
Texas, on this the 22nd day of November 2022.
City of Anna Resolution No. 90 Po? - 11 -1315 Page 1
ATTEST: APPROVED:
OF A00
�f/
� o
City Secretary, darrie L. Land - &ayor, Nate Pike
City of Anna Resolution No. G 2 a - [ I - 13157 Page 2
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT
FOR NEW ECONOMIC DEVELOPMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT
FOR NEW ECONOMIC DEVELOPMENT (this "First Amendment") is entered into by and
among the City of Anna, Texas (the "City"), Anna Village Residential, Ltd., a Texas limited
partnership, and Anna Village Commercial, Ltd., a Texas limited partnership.
WHEREAS, the City previously entered into that certain Incentive Agreement for New Economic
Development (the "Agreement") which City approved by City of Anna Resolution No. 2020-
020689 on February 25, 2020 and which Assignor executed on February 20, 2020; and
WHEREAS, the City subsequently entered into that certain Amended and Restated Incentive
Agreement for New Economic Development (the "Restated Agreement") which City approved by
City of Anna Resolution No. 2021-10-1021 on October 12, 2021, which replaced and superseded
the Agreement; and
WHEREAS, the City entered into the Restated Agreement with Anna Village Residential, Ltd.
and Anna Village Commercial, Ltd. (collectively referenced herein as "Developer"); and
WHEREAS, the City and Developer desire to modify and amend the Restated Agreement solely
as expressly stated in this First Amendment and the Restated Agreement shall otherwise remain in
full force and effect including without limitation the exhibits attached thereto;
NOW, THEREFORE, in consideration of the covenants, promises, and conditions stated
in this First Amendment, the City and Developer agree as follows:
Section 1. Amendment to Section 2.02 of the Restated Agreement. The entirety of Section 2.02
of the Restated Agreement is replaced with the following:
"2.02 Notwithstanding any provision of this Amendment, Developer shall be deemed to
have timely obtained a building permit for Phase I (the "Phase I Permit") if Developer pays to the
City all outstanding fees for the building permit in the amount of $440,314.50 (the "Permit
Payment") and satisfies all other requirements to obtain the Phase I Permit on or before December
9, 2022. Notwithstanding any provision of this Amendment, if Developer fails to timely obtain the
Phase I Permit it shall constitute a material breach of this Amendment and the City may elect to
terminate this Amendment by providing written notice of termination and the City shall have no
obligation to provide any notice of default before terminating this Amendment. If Developer fails
to timely Commence Construction and/or timely construct or cause to be constructed the
Apartment Project in accordance with Section 4.01 of this Amendment the City may provide notice
of default to Developer pursuant to Section 8.08 of this Amendment and pursue all other remedies
available under law or equity."
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
Page 1
Section 2. Amendment to Section 2.03 of the Restated Agreement. The entirety of Section 2.03
of the Restated Agreement is replaced with the following:
"2.03 If this Amendment is terminated by the City for Developer's failure to timely obtain
a building permit for Phase I or timely Commence Construction of Phase I, this Amendment shall
terminate and both Parties are relieved of any obligations hereunder including without limitation
the City's obligation to forgo collection of any impact fees or park fees relating to any future
development of the Property."
Section 3. Amendment to Section 2.04 of the Restated Agreement. The entirety of Section 2.04
of the Restated Agreement is replaced with the following:
"2.04 If Developer fails to timely Complete Phase I Construction, Developer will be
required to pay the City liquidated damages as set forth in this paragraph. For each day that
construction of Phase I remains uncompleted after the expiration of the deadline to Complete Phase
I Construction (as required in Section 4.01), Developer shall owe the City the sum of $500 per day
during any such period of construction being uncompleted during the first 90 days after expiration
of said deadline. During the period of 640 days following said 90-day period Developer shall owe
the City the sum of $1,126.65 per day that construction remains uncompleted until and unless the
amount of the liquidated damages paid by Developer equals the amount of the Phase I Incentive
Grant, at which time Developer's obligation to pay liquidated damages ceases. For example, if
Phase I remains uncompleted for 100 days after the expiration of the construction deadline,
Developer would owe the City $56,266.50 ($500 multiplied by 90 plus $1,126.65 multiplied by
10). All such sums owed shall be paid to the City within 10 days after demand by the City. Any
such sums owed are not to be considered as a penalty, but shall be deemed, taken and treated as
reasonable liquidated damages, per day that Developer has failed to Complete Phase I
Construction. The said sums are fixed and agreed upon by and between the City and Developer
because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages
which the City would sustain."
Section 4. Amendment to Section 2.05 of the Restated Agreement. The entirety of Section 2.05
of the Restated Agreement is replaced with the following:
"2.05 If Developer commences construction of Phase I but abandons Phase I before
completion, and the City terminates this Amendment, the Phase I Incentive Grant shall be deemed
to have been forfeited by Developer in full and the City shall be entitled to collect and Developer,
within 30 days of termination under this paragraph, shall pay the City all impact fees and/or park
fees that would have at the time of said termination —in the absence of this Amendment —been
due and subject to collection in connection with the development of Phase I and the Parties will
have no further obligations hereunder. For the purposes of this paragraph Phase I shall be
considered abandoned if Developer either (a) clearly demonstrates that it has relinquished its rights
hereunder or (b) without legal excuse, ceases work on Phase I and fails to resume work within 90
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONONUC DEVELOPMENT
Page 2
days thereafter. The City may cause this Amendment to terminate under this paragraph by
following the notice and cure provisions set forth in Section 8.08 of this Amendment. The
Developer's obligation to immediately pay all impact fees and/or park fees under this paragraph
shall survive the termination of this Amendment."
Section 5. Amendment to Section 2.07 of the Restated Agreement. The entirety of Section 2.07
of the Restated Agreement is replaced with the following:
"2.07 If Developer fails to timely Complete Phase H Construction, Developer will be
required to pay the City liquidated damages as set forth in this paragraph. For each day that
construction of Phase H remains uncompleted after the expiration of the deadline to Complete
Phase II Construction (as required in Section 4.01) Developer shall owe the City the sum of $500
per day during any such period of construction being uncompleted during the first 90 days after
expiration of said deadline. During the period of 640 days following said 90-day period Developer
shall owe the City the sum of $1,109.3 8 per day that construction remains uncompleted until and
unless the amount of the liquidated damages paid by Developer equals the amount of the Phase II
Incentive Grant, at which time Developer's obligation to pay liquidated damages ceases. For
example, if Phase H remains uncompleted for 100 days after the expiration of the construction
deadline, Developer would owe the City $56,093.80 ($500 multiplied by 90 plus $1,109.38
multiplied by 10). All such sums owed shall be paid to the City within 10 days after demand by
the City. Any such sums owed are not to be considered as a penalty, but shall be deemed, taken
and treated as reasonable liquidated damages, per day that Developer has failed to Complete Phase
I Construction. The said sums are fixed and agreed upon by and between the City and Developer
because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages
which the City would sustain."
Section 6. Amendment to Section 2.08 of the Restated Agreement. The entirety of Section 2.08
of the Restated Agreement is replaced with the following:
"2.08 If Developer commences construction of Phase II but abandons Phase H before
completion, and the City terminates this Amendment, the Phase II Incentive Grant as relates to
Phase II shall be deemed to have been forfeited by Developer in full and the City shall be entitled
to collect and Developer, within 30 days of termination under this paragraph, shall pay the City all
impact fees and/or park fees that would have at the time of said termination —in the absence of
this Amendment —been due and subject to collection in connection with the development of Phase
II and the Parties will have no finther obligations hereunder. For the purposes of this paragraph
Phase II shall be considered abandoned, if Developer either (a) clearly demonstrates that it has
relinquished its rights hereunder or (b) without legal excuse, ceases work on Phase II and fails to
resume work within 90 days thereafter. The City may cause this Amendment to terminate under
this paragraph by following the notice and cure provisions set forth in Section 8.08 of this
Amendment. The Developer's obligation to immediately pay all impact fees and/or park fees under
this paragraph shall survive the termination of this Amendment."
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
Page 3
Section 7. Amendment to Section 4.01 of the Restated Agreement. The entirety of Section 4.01
of the Restated Agreement is replaced with the following:
"4.01. Location and Construction Deadlines. The Apartment Project shall be located
within the Property consistent with the concept plan attached hereto as Exhibit B. Developer shall
Commence Construction on Phase I on or before the 31s' day of January, 2023. Developer shall
Complete Phase I Construction on or before the 31 St day of December, 2024. Developer shall
submit an application and pay all associated fees for a building permit for Phase II within six
months of the City's issuance of a Certificate of Occupancy for all buildings required to be
constructed in Phase I. Developer shall Commence Construction on Phase II on or before the
expiration of three months after the building permits, excluding any grading permit, necessary to
commence construction on Phase II are approved and issued by the City. Developer shall Complete
Phase II Construction on or before the expiration of 30 months after the building permits) for
Phase II are approved and issued by the City. Notwithstanding the foregoing or any other provision
of this Amendment, Developer may submit an application for Phase I and Phase II simultaneously
and in such event "Phase I" as used in this Amendment shall include Phase II for all purposes and
the Phase I Incentive Grant and the Phase II Incentive Grant shall be combined and all time periods
for commencing and completing construction shall be deemed to be those that pertain to Phase I."
Section 8. Amendment to Section 4.06 of the Restated Agreement. The entirety of Section 4.06
of the Restated Agreement is replaced with the following:
"4.06. Developer Pays All Fees and Costs. After notice to cure and termination by the City
of this Amendment, the Phase I Incentive Grant and Phase II Incentive Grant shall be deemed to
have been forfeited, if Developer fails to timely pay, or cause third parties to timely pay its
engineering, planning, accounting, architectural, legal fees and expenses, survey, testing,
laboratory costs, license fees, development fees, permit fees, land clearing and grading costs,
advertising and other bidding costs, amounts due under construction contracts, costs of labor and
material, inspection fees, impact fees not included in the Incentive Grant, insurance premiums,
bond premiums (if applicable), interest, carry cost, financing fees and all other fees, costs and
expenses incurred in connection with the construction of the Public Improvements. If the Phase I
Incentive Grant and/or Phase II Incentive Grant is forfeited under this paragraph, Developer,
within 30 days of termination under this paragraph, shall pay all impact fees and park fees ("in lieu
of fees" and park development fees) that would have at the time of said forfeiture —in the absence
of this Amendment —been due and subject to collection in connection with the development of the
Property and the Parties will have no further obligations hereunder. The Developer's obligation to
immediately pay all impact fees and/or said park fees under this paragraph shall survive the
termination of this Amendment."
Section 9. Amendment to Section 8.08 of the Restated Agreement. The entirety of Section 8.08
of the Restated Agreement is replaced with the following:
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
Page 4
"8.08. Notice of Default. Should the City determine that Developer is in default according
to the terms of this Amendment, the City shall notify Developer in writing of the event of default,
and provide 60 days from the date of the notice ("Cure Period") for Developer to cure the event of
default; provided, however, that if the breach or default cannot reasonably be cured within such
period but diligent efforts to cure promptly commence, then the Cure Period shall continue for a
period not to exceed a total of 90 days from the date of the notice. This Section 8.08 does not apply
to a default by Developer for failure to timely make the Permit Payment described in Section 2.02
of this Amendment."
Section 10. Amendment to Section 8.09 of the Restated Agreement. The entirety of Section
8.09 of the Restated Agreement is replaced with the following:
"8.09. Results of Termination by City. If the City terminates this Amendment, the
Developer shall pay the City the amount of the Phase I Incentive Grant and/or Phase II Incentive
Grant, as applicable, to the extent that the same would have at the time of said termination —in the
absence of this Amendment —been due and subject to collection in connection with the
development of the Property. If the City acts to collect any. amounts due hereunder, Developer
shall pay the City its reasonable attorney fees and costs of court to collect amounts found to be due
to City. Upon full payment by Developer of all sums due under this Amendment including withoit
limitation liquidated damages, the City and Developer shall have no further obligations to one
another under this Amendment. Neither the City nor Developer may be held liable for any special
or consequential damages except for any liquidated damages that become due under this
Amendment."
Section 11. Amendment to Section 8.10 of the Restated Agreement. The entirety of Section
8.10 of the Restated Agreement is replaced with the following:
"8.10 This section is intentionally blank."
Section 12. Amendment to Section 8.25 of the Restated Agreement. The entirety of Section
8.25 of the Restated Agreement is replaced with the following:
"8.25. Recording. The Parties agree that this Amendment and any memorandum or short
form of this Amendment may be recorded and that this Amendment shall run with the land. The
Parties further agree that any amendment to this Amendment and any memorandum or short form
of such amendment may be recorded and that such amendment shall run with the land."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
Page 5
1, its anager
ounty of Colli
Before me, on this day personally appeared Robert S. Beall, known 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 Manager of Beall Anna Genpar, LLC in its capacity as general partner for Anna
Village Residential, Ltd. for the purposes and consideration therein expressed.
Given under my hand and seal of office this
1
By•
Robert S . Beal
State of Texas
County of Collin
r
Notary —State of Texas
Notary. State of
::W Comm, Expires 04�O82023
Notary• 4510014
LITY., a Texas limited partnership
1, its Manager
Before me, on this day personally appeared Robert S. Beall, known 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 Manager of Beall Anna Genpar, LLC in its capacity as general partner for Anna
Village Commercial, Ltd. for the purposes and consideration therein expressed.
W!m
Given under my hand and seal of office this
'111`'' GVVENDE RUTH
'a°�''�`�r Notary Public, State of Texas
, Q ` Comm. Expires 04-®8-2023
°;r,� Notary (D 4516014
2022.
Notary —State of Texas
FIRST AMENDMENT T0 AMENDED AND RESTATED INCENTNE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
CITY OF ANNA,
M
ty Manager
State of TE
County of
Before me, on this day personally appeared Jim Proce known 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.
Given under my hand and seal of office this .2'3 day of N Qy r? rM be-r 2022.
JEOVANNA RUBIO
0 Notary Public, State of Texas ,
P Comm. Expires 10.03-2026 C;o�tary — State of Texas
,°;, Notary ID 133995676
FIRST AMENDMENT TO AMENDED AND RESTATED INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT
Page 7