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Home My WebLink AboutContract 31168-CA1 CITY SECRETARY CONTRACT NO.a CONSENT TO ASSIGNMENT OF TAX ABATEMENT AGREEMENT (CITY SECRETARY CONTRACT NO. 31168) This CONSENT TO ASSIGNMENT OF CITY SECRETARY CONTRACT NO. 31168 ("Consent") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipality organized under the laws of the State of Texas; PB BH BERRY STREET PO LIMITED PARTNERSHIP ("Assignor" or "Owner"), a Delaware limited partnership and successor in interest to Berry Street Limited Partnership; and GM WESTBERRY LLC ("Assignee"), a Delaware limited liability company. The following introductory provisions are true and correct and form the basis of this Consent: A. On or about December 30, 2004 the City and Berry Street Limited Partnership entered into that certain Tax Abatement Agreement on file in the City Secretary's Office as City Secretary Contract No. 31168 (the "Agreement"). Under the Agreement, Berry Street Limited Partnership agreed to construct a mixed-use development consisting of apartments, retail and commercial space and a multi-level parking garage (the "Required Improvements") on certain land in the City (the "Land") in return for a 10-year real property tax abatement on improvements located on the Land (the "Abatement"), all as more specifically set forth in the Agreement. The Abatement was granted pursuant to the City's Neighborhood Empowerment Zone Policy("NEZ Policy"). B. The Required Improvements were completed as required by the Agreement and the Abatement is currently in effect pursuant to and in accordance with the Agreement. Assignor is the successor in interest to Berry Street Limited Partnership. C. Assignor wishes to sell its leasehold interest in the Land and Required Improvements to Assignee and to assign all right, title and interest in the Agreement to Assignee. The Agreement stipulates that the Agreement may be assigned to a third party purchaser of the Required Improvements only upon submission of an application in accordance with the City's NEZ Policy, which application the City has received, and execution by such third party purchaser of a written agreement with the City in which the third party purchaser agrees to comply with all duties and obligations of the assignor under the Agreement. The City is willing to consent to an assignment of the Agreement by Assignor to Assignee solely in accordance with this Consent. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City, Assignor and Assignee agree as follows: 1. The City hereby consents to an assignment by Assignor to Assignee of all right, title and interest granted to Assignor by the Agreement, effective as of December , 2011 ("Effective Consent Date"). Page 1 of6 � Consent to Assignment of CSC No. 31 168 by PB BH Berry Street PO Limited Partnership to GM Westberry, LLC - ,; {� , 2. The City consents to such assignment expressly upon the promise and covenant by Assignee, and Assignee hereby promises and covenants to the City, that as of the Effective Consent Date Assignee will comply with all duties and obligations of Owner set forth in the Agreement. 3. Assignee understands and agrees that no act or omission of Assignor, whether on, before or after the Effective Consent Date, will serve to mitigate (i) any Event of Default set forth in Section 4 of the Agreement or (ii) any failure of any or all of the commitments for construction cost spending for the Required Improvements, annual employment commitments on the Land, and annual supply and service vendor contract spending commitments in connection with the operation and maintenance of the Apartments, as set forth in Sections 2.2.1.2., 2.2.1.3, 2.2.2, 2.2.3, 2.2.4, 2.2.5, or 2.2.6 of the Agreement, to be met. 4. Nothing in this Consent shall be deemed to grant Assignee any rights under the Agreement that are additional to or greater than those of Owner thereunder. 5. All terms in this Consent that are capitalized but not defined shall have the meanings assigned to them in the Agreement. EXECUTED in multiples as of the last date indicated below, but to be effective as of the Effective Consent Date: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT FOUR(4) PAGES] Page 2 of 6 Consent to Assignment of CSC No. 31 168 �z ��y €Y by PB BH Berry Street PO Limited Partnership to GM Westberry, LLC s7,f y CITY OF FORT WORTH: ATTEST: i By: �G' -�»� �iL-. By: Fernando Costa on Gonzales *00 -0*b Assistant City Manager Assistant City Secretary y o�0 a °0,y o Date: OOOOo°A� � 4Cr APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M&C: C-25218 10-18-11 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Fernando Costa, Assistant City Manager of the CITY OF FORT WORTH, a municipal corporation organized under the laws of the State of Texas, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the CITY OF FORT WORTH,that he was duly authorized to perform the same by appropriate resolution of the City Council of the City of Fort Worth and that she executed the same as the act of the CITY OF FORT WORTH for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 44ay of 2011.// Notary Public in and for the State of Texas >: EVONIA DANIELS MY COMMISSION EXPIRF 14, JI(J1y to.2013 ; Notary's Printed Name } Page 3 of OFf:f"iAL REC, "r Consent to Assignment of CSC No. 31 168 CITY S". -PrT,n;j j by PB BH Berry Street PO Limited Partnership to GM Westberry. LLC ? f i-i, r x _ _ i PB BH BERRY STREET PO LIMITED PARTNERSHIP, a Delaware limited partnership By: Berry Street Limited Partnership II, a Texas limited partnership, its managing general partner By: Phoenix GP XV1II,Inc., a Texas corporation, its managing feral partner Z' By f�1,/✓ ason P.Rnrmels,Vice President By: BREOF TCU GP LLC, a Delaware limited liability company, its general partner By: Name: Title: STATE OF TEXAS § s § COUNTY OF`D " § This instrument was acknowledged before me on December ly , 2011, by Jason P. Runnels, Vice President of Phoenix GP XVHI,Inc.,a Texas corporation,Managing General Partner of Beny Street Limited Partnership II,a Texas limited partnership,managing general partner of PB BH Berry Street PO Limited Partnershi rt nership,for and on behalf of said partnership. , Y'eii •., SALLY RUSH MY COMMISSION EXPIRES ! ^� ° •.- s -s �n117 �tZ Notary Public, Stat of Tee s(\�'l�\ STATE OF § COUNTY OF § This instrument was acknowledged before me on December 2011, by of BREOF TCU GP LLC, a Delaware lirnited liability company, general partner of Berry Street Limited Partnership II, a Texas limited partnership, managing general partner of PB BH Berry Street PO Limited Partnership,a Delaware limited partnership,for and on behalf of said partnership. Notary Public, State of Texas Page 4 of 5 - Consent to Assignment of CSC No. 31168 by PB BH Berry Street PO limited Partnership to GM Westberry,LLC '' i CITY S1=t✓Rr7 ? PB BH BERRY STREET PO LIMITED PARTNERSHIP, a Delaware limited partnership By: Berry Street Limited Partnership H, a Texas limited partnership, its managing general partner By: Phoenix GP XVHH,Inc., a Texas corporation, its managing general partner By: Jason kG Is, resident By: BREOF TCU a Delaware liany, its general pa By: Name: 5,"Ven GM 1131053 Title: STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on December , 2011, by Jason P. Runnels, Vice President of Phoenix GP XVIII,Inc.,a Texas corporation,Managing General Partner of Berry Street Limited Partnership 11, a Texas limited partnership, managing general partner of PB BH Berry Street PO Limited Partnership,a Delaware limited partnership, for and on behalf of said partnership. Notary Public, State of Texas STATE OF § COUNTY OF § This instrument was acknowledged before me on December �?_, 2011, by ,ems elrss , �n�n�U►�iles�r) } of BREOF TCU GP LLC, a Delaware limited liability company, general partner of Berry Street Limited Partnership II, a Texas limited partnership, managing general partner of PB BH Berry Street PO Limited Partnership,a Delaware limited partnership, for and on behalf of said partnership. f 0 MARGARET GOMNY Public, State of+ctras' Pa e 4 of 5 - e,►�l Dl . � NOTARY PUBLIC-STATE OF NEW YORK 1v Consent to Assignment of CSC No. 3 W68 01 G06104465 by PB B1 Berry Street PO limit "**WptW0NjWAW0y,LL I 1 ra My Commission Expires January 20, 2012 y 'ETA fd Y l +x GM WESTBERRY LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its general manager By: Education R Ity OP GP,Inc., a Delawa rporatio , is general partn r By: Name: —k-7 01a Ikeywd Title: at.was p.psidant STATE OF��nsy•�� § COUNTY This instrument was aclrnowled ed before me on December , 2011, by < �tof Education Realty OP GP, Inc., a Delaware corporation, general partner of Education Realty Operating Partnership, LP, a Delaware limited partnership, general manager of GM Westberry LLC, a Delaware limited liability company, for and on behalf of said limited liability company. TE�nF � r_p Notary Public, State of^` My Commission expires: 2FOEMBER28,2013 F:(PHOENIX118729_TCU_property1111201 Consent to Assignment of Tax Abatement Agreement to OM Westberry LLC CLEAN.doc Page 5 of 5 Consent to Assignment of CSC No. 31 168 by PB BH Berry Street PO Limited Partnership to GM Westberry, LLC C j r y :yL i:'CTARY FT. WOVI-I I