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HomeMy WebLinkAboutContract 35327-CA3CSC No. 35327-CA3 CONSENT TO ASSIGNMENT OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (CITY SECRETARY CONTRACT NO. 35327) This CONSENT TO ASSIGNMENT OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (CITY SECRETARY CONTRACT NO. 35327) ("Consent") is made and 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, a Delaware limited liability company ("SWF"); and BGO-S2 TRINITY BLUFFS OWNER LLC, a Delaware limited liability company ("S2" ). The following introductory provisions are true and correct and form the basis upon which the City, SWF, and S2 have entered into this Consent: A. As of May 25, 2007, the City and Trinity Bluff Development, Ltd. ("Trinity Bluff') entered into that certain Amended and Restated Economic Development Program Agreement on file in the City Secretary's Office as City Secretary Contract No. 35327, as subsequently amended by that certain Amendment No. 1 to Amended and Restated Economic Development Program Agreement dated December 21, 2009 on file in the City Secretary's Office as City Secretary Contract No. 35327-A1, and that certain Amendment No. 2 to Amended and Restated Economic Development Program Agreement dated April 21, 2012 on file in the City Secretary's Office as City Secretary Contract No. 35327-A2 (as amended and assigned, collectively, the "Agreement"). B. Under the Agreement, SWF (as successor to Trinity Bluff and LPC Trinity Parks LP) agreed, among other things, to construct a 4-story apartment complex at least 299 apartment units ("Required Improvements") on approximately 4.916 acres of land ('Development Property"). In return, the City agreed to pay SWF certain Program Grants as authorized by Chapter 380 of the Texas Local Government Code and outlined in the Agreement. C Section 10 of the Agreement permits an assignment of the Agreement to Lincoln Property Southwest, Inc. or an affiliate thereof without the approval of the City. Any other assignment requires the advance consent of the City Council, a finding by the City Council that the proposed assignee is financially capable of meeting the terms and conditions of the Agreement, and prior execution by the proposed assignee of a written agreement with the City under which the assignee agrees to assume all covenants and obligations of Developer under the Agreement. D. SWF now wishes to sell the Development Property and the Required Improvements, and to assign all of its rights and obligations under the Agreement, to S2. Because S2 is not an affiliate of Lincoln Property Southwest, Inc., SWF has requested the City's consent to this assignment. The City is willing to consent to an assignment of the Agreement to S2 solely in accordance with this Consent. E. On May 4, 2021, the City Council adopted Mayor and Council Communication 21-0310, authorizing a consent to assignment by SWF to S2 Trinity Bluff, LLC. Subsequently, S2 Trinity Bluff changed its name BGO-S2 Trinity Bluffs Owner, LLC. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, SWF and S2 agree as follows: 1. The City hereby consents to an assignment by SWF of all right, title, and interest granted to "Developer" by the Agreement, effective as of the date on which the City, SWF, and S2 have all executed this Consent ("Effective Date"). 2. The City consents to such assignment expressly upon the promise and covenant by S2, and S2 hereby promises and covenants to the City, that as of the Effective Date, S2 will comply with all duties and obligations of Developer set forth in the Agreement. This Consent does not grant S2 any greater or different rights under the Agreement than those of Developer. OFFICIAL RECORD Consent to Assignment of CSC No. 35327 (Economic Development Program Agreement) CITY E C RE TARY by SWF to S2 FT. WORTH, T 3. S2 understands and agrees that no act or omission of SWF, whether before or after the Effective Date, will serve to mitigate the existence of any breach or default under the Agreement, as set forth in Section 6 of the Agreement or any available remedies of the City on account of such breach or default; any failure to meet any or all of the commitments for employment, supply and service spending or the set -aside for affordable housing units on the Development Property, as set forth in Sections 4.4, 4.5 and 4.6 of the Agreement (as amended by Amendment No. 2), and any applicable reduction in the amount of a Program Grant or Program Grants payable under the Agreement on account of any such failure; or any act or omission of SWF that causes any forfeiture or reduction in the amount of a Program Grant or Program Grants payable under the Agreement, as outlined in Section 5.2.3 of the Agreement. 4. By executing this Consent, the City does not ratify or endorse any agreement or representation between SWF and S2; grant S2 any rights greater than those granted to Developer under the Agreement; or consent to any amendment to the Agreement. 5. All terms in this Consent that are capitalized but not defined shall have the meanings assigned to them in the Agreement. 6. The Agreement is in full force and effect and has not been modified, supplemented, or amended in any way unless specifically set forth herein. 7. On and after the Effective Date, all notices which are required or desired to be sent to Developer under the Agreement will be delivered to the following: BGO-S2 Trinity Bluffs Owner LLC 5950 Berkshire Lane, Suite 1300 Dallas, Texas 75225 Attn: Scott Everett 8. This Consent may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. [Remainder of page intentionally left blank. Signature pages follow.] OFFICIAL RECORD CITY SECRETARY FT. WORTH, T Consent to Assignment of CSC No. 35327 (Economic Development Program Agreement) by SWF to S2 '2 of 4 IN WITNESS WHEREOF, the undersigned have caused this Consent to be executed in multiples as of the last date indicated below: CITY OF FORT WORTH: Eeg nald Zeno By�egi—nald Zeno (May 24, 202111:02 CDT) Jay Chapa Deputy City Manager Date: May 24, 2021 APPROVED AS TO FORM AND LEGALITY: By: Tyler F. Wallach Assistant City Attorney Contract Compliance Manager: ATTEST: By:MUU 1 0 Mary Kayser City Secretary By signing, I acknowledge that I am the person responsible for monitoring and administration of this contract, including all performance and reporting requirements. ECr%se� Back Elise Back (Play 21, 2021 16:10 CDT) Elise Back, Manager Economic Development M&C: 21-0310 (May 4, 2021) Form 1295: 2021-722488 (March 2, 2021); 2021-719083 (February 22, 2021); 2021-722585 (March 3, 2021) OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Consent to Assignment of CSC No. 35327 (Economic Development Program Agreement) by SwF to S2 '3 of 4 Assignor: SWF TRINITY BLUFFS, LLC a Delaware limited liability company: /(,/l' By: Seim. try 21, 202116:07 EDT) Name: Sean Burton Title: President Date: May 21, 2021 Assignee: BGO-S2 TRINITY BLUFFS OWNER LLC, a Delaware limited liability company By: BGO-S2 Lincoln Park and Verandas JV LLC, a Delaware limited liability company, its Managing Member By: S2 BGO LV LLC, a Texas limited liability company, its Administrative Member By: i CDT, Name: Scott Everett Title: Manager May 21, 2021 Date: Consent to Assignment of CSC No. 35327 (Economic Development Progmin Agreement) by SwF to S2 OFFICIAL RECORD CITY SECRETARY FT. WORTH, T A of 4 City of Fort Worth, Texas Mayor and Council Communication DATE: 05/04/21 M&C FILE NUMBER: M&C 21-0310 LOG NAME: 17TRINITYBLUFFCONSENT3 SUBJECT (CD 9) Authorize Execution of a Consent to Assignment to Economic Development Program Agreements, City Secretary Contract Nos. 35326 and 35327, with SWF Trinity Bluffs, LLC to Allow Assignment of the Agreements to S2 Trinity Bluff, LLC or an Affiliate RECOMMENDATION: It is recommended that the City Council authorize execution of a consent to assignment to Economic Development Program Agreements, City Secretary Contract Nos. 35326 and 35327, with SWF Trinity Bluffs, LLC to allow assignment of the agreements to S2 Trinity Bluff, LLC or an affiliate. 11&10111*4103kqF On July 25, 2006, the City authorized the execution of Economic Development Program Agreements (EDPA) with Trinity Bluff Development, Ltd. for downtown residential projects (City Secretary Contract Nos. 34173 and 34174, M&C C-21586). Under the proposed Economic Development Program Agreements, Trinity Bluff Development, Ltd., working with Lincoln Property Southwest, Inc. (collectively, the Developer), committed to construct two apartment complexes, with approximately 490 units for lease with 5% of the apartments set aside for lease at affordable rates to qualifying households earning no more than 80% of the area median income, per HUD standards, (collectively, the Development). On May 15, 2007, the City authorized the execution of Amended and Restated Economic Development Program Agreements with Trinity Bluff Development, Ltd. to allow for changes in the project's scope and provide for changes in the amount of grants payable by the City to the Developer under the agreements (City Secretary Contract No. 35326 and 35327, M&C C-22121). The authorized amendments replaced the originally approved agreements. On May 30, 2007, Trinity Bluff Development, Ltd., assigned all of its rights and obligations under the Agreements to LPC Trinity Parks LP, which is an affiliate of Lincoln Property Company Southwest, Inc. On October 6, 2009, the City authorized amendments to the Amended and Restated Economic Development Program Agreements (City Secretary Contract Nos. 35236-A1 and 35237-A1, M&C 23823), to modify the deadlines for the completion of the private improvements that are required under those Agreements in order to receive certain economic development grants from the City. On March 15, 2014, the City authorized Consents to Assignment with LPC Trinity Parks LP assigning all of its rights and obligations under the Agreements to SWF Trinity Bluff, LLC or one of its affiliates and Consents to Collateral Assignment with Metropolitan Life Insurance (City Secretary Contract Nos. 35326-CA-1, 35326-CA-2, 35327-CA-1, and 35327-CA-2, M&C C-26763). In March 2020, SWF Trinity Bluff, LLC approached the City about its desire to assign the Agreements to S2 Trinity Bluff, LLC or an Affiliate. 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 and any additional assignments of the Agreement would have to be approved by City Council. Staff recommends approving the execution of Consents to Assignment of the Economic Development Agreements (City Secretary Contract No. 35326 and 35327) with SWF Trinity Bluffs, LLC to allow assignment of the agreement to S2 Trinity Bluff, LLC or an affiliate. The Trinity Bluff development is located in COUNCIL DISTRICT 9. FISCAL INFORMATION / CERTIFICATION: The Director of Finance certifies that approval of this recommendation will have no material effect on City funds. Submitted for Citv Manaaer's Office bv: Jay Chapa 5804 Oriainatina Business Unit Head: Robert Sturns 2663 Additional Information Contact: Robert Sturns 2663