HomeMy WebLinkAboutContract 35327-CA2 CRY SECRETAW
CONTRACT 140.
CONSENT TO ASSIGNMENT
FOR SECURITY PURPOSES OF
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
BETWEEN CITY OF FORT WORTH AND
METROPOLITAN LIFE INSURANCE COMPANY
(CITY SECRETARY CONTRACT NO. 35327, AS AMENDED)
This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Consent") is entered
into by and between the CITY OF FORT WORTH ("City"), a home rule municipal
corporation organized under the laws of the State of Texas; SWF TRINITY BLUFFS,
LLC ("Developer"), a Delaware limited liability company authorized to do business in the
State of Texas; and METROPOLITAN LIFE INSURANCE COMPANY ("Lender"),
a New York corporation.
RECITALS
The City, Developer and Lender hereby agree that the following statements are true
and correct and constitute the basis upon which the parties have entered into this Consent:
A. The City is a party to a(i)Amended and Restated Economic Development Program
Agreement, dated on or about May 25, 2007, between the City and Developer, as
successor-in-interest to LPC Trinity Parks LP ("LPC"), a Texas limited partnership, as
successor-in-interest to Trinity Bluff Development, Ltd. ("TBD"), on file in the City
Secretary's Office as City Secretary Contract No. 35327, (ii) Amendment No. 1 to
Amended and Restated Economic Development Program Agreement between the City and
Developer, as successor-in-interest to LPC, as successor-in-interest to TBD, on file in the
City Secretary's Office as City Secretary Contract No. 35327-A1 and(iii)Amendment No.
2 to Amended and Restated Economic Development Program Agreement between the City
and Developer, as successor-in-interest to LPC, as successor-in-interest to TBD, on file in
the City Secretary's Office as City Secretary Contract No.35327-A2(items(i), (ii)and(iii)
are collectively the "EDPA").
B. Developer wishes to obtain an assignment from Lender of the existing loan
encumbering the property subject to the EDPA in connection with Developer's purchase of
the subject property from LPC (the "Loan"). As security for the Loan, certain agreements
between Developer and Lender governing the Loan, including, but not limited to, that
certain (i) Deed of Trust, Security Agreement and Fixture Filing dated July 27, 2011,
executed by LPC, as Grantor, for the benefit of Lender, as Beneficiary, and recorded as
County Clerk File No. D211179398 in the Real Property Records of Tarrant County,
Texas, (ii) Promissory Note dated July 26, 2011, in amount of
$40,220,000.00 executed by LPC, to the order o4oigal
mption and
Modification Agreement for Deed of Trust and Oth c�TYand between
Page I FT.
Consent to Collateral Assignment of Economic Development Program( SC N RECEIVED JUN U 9' 1014
between City of Fort Worth,SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
LPC, Developer and Lender pursuant to which Developer is assuming the existing Loan,
and (iv) certain other related documents entered into by the parties in connection with the
Loan (collectively, the "Loan Documents") require that Developer assign, transfer and
convey to Lender all of Developer's rights, interest in and to the EDPA until such time as
Developer has fully satisfied all duties and obligations set forth in the Loan Documents that
are necessary to discharge Lender's security interest in the EDPA (the "Assignment").
C. Pursuant to Section 10 of the EDPA, the City is willing to grant consent to this
conditional Assignment specifically in accordance with the terms and conditions of this
Consent.
AGREEMENT
1. The City, Developer and Lender hereby agree that the recitals set forth above are
true and correct and form the basis upon which the City has entered into this Consent.
2. The City hereby consents to the Assignment at the request of Developer and Lender
solely for the purpose of Lender's securing the Loan pursuant to and in accordance with the
Loan Documents. Notwithstanding such consent, the City does not adopt, ratify or
approve any of the particular provisions of the Loan Documents and, unless and to the
extent specifically acknowledged by the City in this Consent, does not grant any right or
privilege to Lender or any assignee or successor in interest thereto that is different from or
more extensive than any right or privilege granted to Developer under the EDPA.
3. In the event that the City is required by the EDPA to provide any kind of written
notice to Developer, including notice of breach or default by Developer,the City shall also
provide a copy of such written notice to Lender, addressed to the following, or such other
party or address as Lender designates in writing, by certified mail, postage prepaid, or by
hand delivery:
Metropolitan Life Insurance Company, a New York corporation
10 Park Avenue
Morristown,NJ 07962
Attention: Managing Director
Real Estate Investments
With a copy to:
Metropolitan Life Insurance Company
10 Park Avenue
Morristown,New Jersey 07960
Attention: Senior Vice-President,
Real Estate Investments
Page 2
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth, SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
With a copy to:
Metropolitan Life Insurance Company
Two Lincoln Centre
5420 LBJ Freeway, Suite 1310
Dallas, Texas 75240
Attention: Director and OIC
or such other address(es) as Lender may advise City from time to time.
4. If Developer fails to cure any default under the EDPA,the City agrees that Lender,
its agents or designees shall have an additional thirty (30) calendar days or such greater
time as may specifically be provided under the EDPA to perform any of the obligations or
requirements of Developer imposed by the EDPA and that the City will accept Lender's
performance of the same as if Developer had performed such obligations or requirements;
provided,however,that in the event such default cannot be cured within such time,Lender,
its agents or designees, shall have such additional time as may be reasonably necessary if
within such time period Lender has commenced and is diligently pursuing the remedies to
cure such default,including,without limitation, such time as may be required for Lender to
gain possession of the Development Property and the Required Improvements pursuant to
the terms of the Loan Documents.
5. If at any time Lender wishes to exercise any foreclosure rights under the Loan
Documents, before taking any foreclosure action Lender shall first provide written notice
to the City of such intent (a "Notice"). Lender shall copy Developer on the Notice and
deliver such Notice to Developer by both first class and certified mail return receipt
concurrent with its transmittal of the Notice to the City and represent in the Notice that it
has done so. Notwithstanding anything to the contrary herein, unless Lender enters into a
written agreement with the City to assume and be bound by all covenants and obligations
of"Developer" under the EDPA, Lender understands and agrees that the City shall not be
bound to pay Lender any Program Grants pursuant to the EDPA. In addition, Lender
understands and agrees that if Lender wishes to sell all or any portion of the Development
Property or the Required Improvements to a third party following Lender's exercise of any
foreclosure rights under the Loan Documents,the City shall not be bound to pay such third
party any Program Grants pursuant to the EDPA unless Lender and such third party
comply with the procedure for assignment set forth in Section 10 of the EDPA, including
the obligation of such third party to enter into a written agreement with the City to assume
and be bound by all covenants and obligations of"Developer" under the EDPA. In the
event that payment of any Program Grants are withheld by the City pursuant to this Section
5, any rights to receipt of those Program Grants are hereby waived, but the number and
amount(s) of any such Program Grant(s) shall nevertheless be counted for purposes of
calculating the Term of the EDPA, as set forth in Section 3 of the EDPA.
6. In the event of any conflict between this Consent and the EDPA,this Consent shall
control. In the event of any conflict between this Consent and any of the Loan Documents,
Page 3
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth,SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
this Consent shall control. In the event of any conflict between the EDPA and any of the
Loan Documents, the EDPA shall control.
7. This Consent may not be amended or modified except by a written agreement
executed by all of the parties hereto. Notwithstanding anything to the contrary in the Loan
Documents, an amendment to any of the Loan Documents shall not constitute an
amendment to this Consent or the EDPA.
8. Once Developer has fully satisfied all duties and obligations set forth in the Loan
Documents that are necessary to discharge Lender's security interest in the EDPA and such
security interest is released, Lender shall provide written notice to the City that Lender has
released such security interest, in which case this Consent shall automatically terminate.
9. This Consent shall be construed in accordance with the laws of the State of Texas.
Venue for any action arising under the provisions of this Consent shall lie in state courts
located in Tarrant County, Texas or in the United States District Court for the Northern
District of Texas, Fort Worth Division.
10. Capitalized terms used but not specifically defined in this Consent shall have the
meanings ascribed to them in the EDPA.
11. This written instrument contains the entire understanding and agreement between
the City, Developer and Lender as to the matters contained herein. Any prior or
contemporaneous oral or written agreement concerning such matters is hereby declared
null and void to the extent in conflict with this Consent.
12. This Consent shall be effective on the later date as of which all parties have
executed it. This Consent may be executed in any number of duplicate originals and each
duplicate original shall be deemed to be an original. The failure of any party hereto to
execute this Consent, or any counterpart hereof, shall not relieve the other signatories from
their obligations from their obligations hereunder.
EXECUTED as of the last date indicated below:
[SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE]
Page 4
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth,SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
By: � By:
Fernando Costa Peter Vaky
Assistant City Manager Deputy City Attorney
Date: S',S'//� M&C: C-26763 04-15-14
DEVELOPER: Ate by,
SWF TRINITY BLUFFS, LLC, J. g r, lty SeCI'e
a Delaware limited liability company 00 00000°°°oo�.
0 `�$0 "
0
By: Southwest Multifamily Partners, L.P., .-
a Delaware limited partnership, n
its managing member 000o1,110Mg00
By: Southwest Multifamily GP, LLC,
a Delaware limited liability
company, its general partner
By:
Name:
Title:
Date:
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation:
By:
Name: _
Title: OFFICIAL RECORD
CITY SECRETARY
Date: FT. ftRTH, TX
Page 5
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth,SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
Fernando Costa Peter Vaky -'
Assistant City Manager Deputy City Attorney
Date: ��' M&C: C-26763 04-15-14
DEVELOPER:
SWF TRINITY BLUFFS,LLC,
a Delaware limited liability company
its
MIT
er
By: / l�
Name: r,a_14mi✓
Title: /lrSi!)E'�fJ j
Date: ,1*1114 z 20/,/
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation:
By:
Name:
Title:
Date:
Page 5
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth,SWF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
By: By: ti
Fernando Costa Peter Vaky
Assistant City Manager Deputy City Attorney
Date: S!��¢ M&C: C-26763 04-15-14
DEVELOPER:
SWF TRINITY BLUFFS,LLC,
a Delaware limited liability company
By: Southwest Multifamily Partners, L.P.,
a Delaware limited partnership,
its managing member
By: Southwest Multifamily GP, LLC,
a Delaware limited liability
company, its general partner
By:
Name:
Title:
Date:
LENDER:
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation:
a Na in Hall
Name: a
Title: Director
Date: 64
Page 5
Consent to Collateral Assignment of Economic Development Program(CSC No.35327,as Amended)
between City of Fort Worth,S WF Trinity Bluffs,LLC,and Metropolitan Life Insurance Company
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTH
COUNCIL ACTION: Approved on 4/15/2014
DATE: 4/15/2014 REFERENCE.**C-26763 NAME:LOG 17TRINITYBLUFFCONSENTTOASSIGN
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of a Consent to Assignment of Economic Development Program
Agreements for Trinity Bluff Development by LPC Trinity Parks LP to SWF Trinity Bluffs,
LLC or an Affiliate, City Secretary Contract Nos. 35326 and 35327, as Amended and a
Consent to Collateral Assignment by SWF Trinity Bluffs, LLC or an Affiliate to Metropolitan
Life Insurance Company (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute a Consent to Assignment of certain Economic
Development Program Agreements City Secretary Contract Nos. 35326 and 35327, as amended by
LPC Trinity Parks LP to SWF Trinity Bluffs, LLC or an affiliate; and
2. Authorize the City Manager to execute a Consent to Collateral Assignment of those Economic
Development Agreements by SWF Trinity Bluffs, LLC or an affiliate to Metropolitan Life Insurance
Company.
DISCUSSION:
In May 2007, the City entered into Economic Development Program Agreements with Trinity Bluff
Development, Ltd., for the development of a three-story residential project and a four-story project
with a total investment of$42,400,000.00 (Required Improvements) City Secretary Contract Nos.
35326 and 35327, as amended). In addition to the Required Improvements, in order to receive the full
Program Grants available under the Agreements, additional investments equal to 58 percent of the
construction costs of the Required Improvements in the vicinity of the Required Improvements must
be completed.
On May 30, 2007, Trinity Bluff Development, Ltd., assigned all of its rights and obligations under the
Agreement to LPC Trinity Parks LP (Developer), which is an affiliate of Lincoln Property Company
Southwest, Inc.
In March 2014, LPC Trinity Parks LP approached the City about its desire to sell the development to
SWF Trinity Bluff, LLC or one of its affiliates (Purchaser). As part of the proposed sale, the
Developer needs to assign the Agreement to the Purchaser. Under the Agreement, LPC Trinity
Parks LP, is prohibited from assigning the Agreement to another parry without the City Council's
consent.
Staff does not object to this request. The Developer has constructed all the Required Improvements,
but has not completed all of the additional investment necessary to obtain the full amounts of the
Program Grants under the Agreements. The Purchaser will be required to meet all ongoing
obligations of the Developer under the Agreement. The City will continue to receive the public
benefits resulting from development of this project. Any future assignment of the Agreement by
Purchaser would have to be approved by City Council.
In addition, the Purchaser is obtaining financing on this project from Metropolitan Life Insurance
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=19706&councildate=4/15/2014 6/9/2014
M&C Review Page 2 of 2
Company (Met Life). In order to secure that loan, the Purchaser and Met Life have requested that the
City consent to an assignment by Purchaser to Met Life of all right, title and interest in the
Agreements. In the event that Met Life were to foreclose on the loan, Met Life would take over as the
Developer under the Agreements. However, the proposed Consent to Collateral Assignment
document will prohibit Met Life from assigning the Agreements to a new buyer without the City
Council's approval.
The Trinity Bluff development is located in COUNCIL DISTRICT 9, Mapsco 63S.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on
City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Jay Chapa (5804)
Cynthia Garcia (8187)
Additional Information Contact: Avis F. Chaisson (6342)
ATTACHMENTS
TrinityBluff.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=19706&councildate=4/15/2014 6/9/2014