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HomeMy WebLinkAboutContract 46559-CA2 ITY SECRETARY]]ff// 7 WRACT PIO., 9 �D ASSIGNMENT AND CONSENT TO ASSIGNMENT OF TAX ABATEMENT AGREEMENT coo �00 (CITY SECRETARY CONTRACT NO. 46559) This ASSIGNMENT AND CONSENT TO ASSIGNMENT OF TAX ABATEMENT AGREEMENT ("Consent Agreement") 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; BERKELEY APARTMENTS PHASE II LLC ("Assignor"), a Delaware limited liability company; and CREST BERKELEY TIC I, LLC, Delaware limited liability company, CREST BERKELEY TIC II,LLC, a Delaware limited liability company, and CREST BERKELEY TIC III, LLC, a Texas limited liability company (collectively"Assignee"). The following statements are true and correct and form the basis upon which the parties have entered into this Amendment: A. The City and Park Ridge Multi-Family LP ("Park Ridge") previously entered into a Tax Abatement Agreement, which is a public document on file in the City Secretary's Office as City Secretary Contract (11CSC") No. 46559, (the "Abatement Agreement"). Under the Abatement Agreement, Park Ridge agreed to construct a multi- family complex containing rental apartment units (each an "Apartment") and certain other improvements on real property owned by Park Ridge (the "Land"), and to set aside a certain number of Apartments as affordable housing units for lease exclusively to qualifying households, as more specifically provided in the Abatement Agreement. In return, the City agreed to abate up to one hundred percent (100%) of the real property taxes generated from the increase in the taxable value of the improvements on the Land as more specifically provided in the Abatement Agreement. B. Park Ridge transferred the Land to Berkeley Apartments Phase II LLC ("Assignor"), which was an Affiliate of Park Ridge. Both Park Ridge and Assignor agreed to the assignment by Park Ridge of all rights and interest in the Abatement Agreement to Assignor. Under Section 6 of the Abatement Agreement, Assignor may assign this Agreement and all or any portion of the benefits provided hereunder to an Affiliate without the consent of the City, provided that (i) prior to or contemporaneously with the effectiveness of such assignment, Company provides the City with written notice of such assignment, which notice shall include the name of the Affiliate and a contact name, address and telephone number, and (ii) the Affiliate agrees in writing to assume all terms and conditions of Owner under this Agreement. Such Agreement is dated May 5, 2015, CSC No. 46559-CAI. C. Assignor has sold the Land and all improvements thereon to Assignee. Both Assignor and Assignee have requested that the City consent to an assignment by Assignor of all of Assignor's rights and interest in the Abatement Agreement to Assignee. Under Section 6 of the Abatement Agreement, Assignor is prohibited from Page 1 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley ApartmentsFFT.WORTH, � y TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 ARY TX assigning its rights and interest in the Abatement Agreement to another party unless (i)the City Council determines that the proposed assignee is financially capable of meeting the terms and conditions of the Agreement, and (ii)the proposed assignee agrees in writing to assume terms and conditions of Owner under the Abatement Agreement. The City is willing to consent to the proposed assignment solely in accordance with this Consent Agreement. NOW, THEREFORE, the City, Assignor and Assignee, for and in consideration of the mutual promises, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, agree as follows: 1. Assignor hereby assigns all of its right, title and interest in and to the Abatement Agreement to Assignee. 2. The City hereby consents to the assignment by Assignor to Assignee of all right, title and interest granted to Owner by the Abatement Agreement, effective as of s'E,*r,f~E.e Z 9 , 2017 ("Effective Date"). The City's consent to such assignment is expressly conditioned upon the promise and covenant by Assignee, and Assignee hereby promises and covenants to the City, that as of the Effective Date Assignee will comply with all duties and obligations of Owner set forth in the Abatement Agreement. 3. The City has not reviewed or agreed to, and does not adopt, ratify or approve of, any aspect or provision of any agreement that may exist between Assignor and Assignee as to such assignment or any other matter concerning the Abatement Agreement. This Consent Agreement does not grant any right, privilege or use to Assignee that is different from or more extensive than any right, privilege or use granted to Owner under the Abatement Agreement. In the event of any conflict between the Abatement Agreement and any agreement that may exist between Assignor and Assignee as to the assignment described herein or any other matter concerning the Abatement Agreement, the Abatement Agreement shall control as to the City. 4. Assignee understands and agrees that no act or omission of Assignor or any third party, whether before or after the Effective Date, will serve to mitigate (i) any Event of Default, as set forth in Section 4 of the Abatement Agreement, or (ii) any failure to meet any or all of the comrpitments of Owner that may be used to calculate the percentage of any particular tax abatement under the Abatement Agreement. 5. Assignee: Crest Berkeley TIC Attn: Kevin K. Braun 1400 Civic Place, Suite 225 Southlake, Texas 76092 Phone#—(81-06o8 -?,9o 6. Assignor shall indemnify and defend Assignee against and hold Assignee harmless from all claims, demands, liabilities, losses, damages, costs and expenses, Page 2 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Phase II LLC to Crest Berkeley TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 including, without limitation, reasonable attorneys' fees and disbursements (collectively, "Claims"), that are caused by any failure by Assignor to perform its obligations under the Abatement Agreement before the date of this Assignment. Assignee shall indemnify and defend against and hold Assignor harmless from all Claims that are caused by any failure by Assignee to perform its obligations arising or accruing under the Abatement Agreement on or after the date of this Assignment. The indemnifying parry shall control the litigation, including the selection of counsel, but it shall not have the authority to settle any claims without the indemnified party's prior consent, unless the indemnified party would be fully released from liability as part of such settlement. 7. Any capitalized terms not defined herein shall have the meanings assigned to them in the Abatement Agreement. [Signature pages immediately follow.] Page 3 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Phase II LLC to Crest Berkeley TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 EXECUTED as of the last date set forth below. CITY OF FORT WORTH Fernando Costa Assistant City Manager Date: APPROVED AS TO FORM AND LEGALITY: By: ;J1 Melinda Ramos ` Attested b Sr. Assistant City Attorney y'. M&C: C-28394 Mary elty Secretar, 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, and that he 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 UNrDER MY HAND AND SEAL OF OFFICE this day of 201/Y Notary ublitas and for the State of TRIKINYA L JOHNSON 1�a�•"�s a=o: M-Notary Public, State of Texas Comm. Expires 04-17-2018 Notary's P nted Name °,;;�.�0 Notary ID 1238832-0 Page 4 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Ph eWMIAf r"ftWx TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC ��, $ IL +K�D� Approved by M&C C-28394,September 26,2017 RETARY FIr.WORTH,TX ASSIGNOR: BERKELEY APARTMENTS PHASE II LLC a Delaware limited liability company By. LPC MM Berkeley Phase II LLC, a Texas limited liability company, Managing Member By: LPC Manager, Inc., a Delaware corporation, its manager By: Name: _ Title: Date: STATE OF rU J § COUNTY OF IttLW § -�f fUff&E�,W un r igr�d �•' y, o is day personally appeared / (, of LPC Manager, Inc., manager of LPC MIM Berkeley Phase II LLC, Managing Member of Berkeley Apartments Phase II LLC, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed,in the capacity therein stated. GI��.�UNDER MY SEAL OF OFFICE this y!" day of 2017. VA r G� MOP Kcc f the State of - i wRSP: ALYSE GRAYSON = My Commission Expires _ Wtibc October 10, 2018 Notary's Printed Namemuuuummuuumu�u��eMnono�uunnumR�nofia��amw�ypeurunnr Page 5 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Phase II LLC to Crest Berkeley TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 ASSIGNEE: CREST BERKELEY TIC I, LLC a Delaware limited liability company By: Crest Opportunity X, Inc., a Texas corporation, its Manager By: Kevin Braun Vice President CREST BERKELEY TIC II, LLC a Delaware limited liability company By: Crest Opportunity X, Inc., a Texas corporation, its Manager By: Kevin . Braun Vice President CREST BERKELEY TIC III, LLC a Texas limited liability company By: Crest Opportunity X, Inc., a Texas corporation, its Manager By: ,..� Kevin C Braun Vice President Page 6 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Phase II LLC to Crest Berkeley TIC I,LLC,Crest Berkeley TIC 11,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Kevin K. Braun, Vice President of Crest Berkeley TIC I, LLC, Crest Berkeley TIC II, LLC and Crest Berkeley TIC III, LLC, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed, in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this aa!l: day of -SL�—.e^4,b 2017. T Notary Public in and for V SUSAN TANDUKAR the State of Texas Notary ID#t 124984311 My Commission EMplre, SSS a-n Ta�.d�Ka .� October 20,2020 1 b Jr�� �Ef� J Notary's Printed Name Page 7 of 7 Assignment of Tax Abatement Contract CSC No.46559-CAI by Berkeley Apartments Phase II LLC to Crest Berkeley TIC I,LLC,Crest Berkeley TIC II,LLC and Crest Berkeley TIC III,LLC Approved by M&C C-28394,September 26,2017 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORTWORTII COUNCIL ACTION: Approved on 9/26/2017 DATE: 9/26/2017 REFERENCE ,.0-28394 LOG NAME: 19BERKELEYPHASEIIASSIGN NO.. CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of Consent to Assignment of City Secretary Contract No. 46559, a Tax Abatement Agreement with Berkeley Apartments Phase II, LLC, to Crest Berkeley TIC I, LLC, Crest Berkeley TIC II, LLC and Crest Berkeley TIC III, LLC (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council authorize the execution of a Consent to Assignment of City Secretary Contract No. 46559, a Tax Abatement Agreement between the City and Berkeley Apartments Phase II, LLC, to Crest Berkeley TIC I, LLC, Crest Berkeley TIC II, LLC and Crest Berkeley TIC III, LLC, in conjunction with the sale of the multi-family project located at 2521 Frazier Avenue in the Berry/University Neighborhood Empowerment Zone. DISCUSSION: On February 4, 2014, the City Council approved a five-year Tax Abatement Agreement (Agreement) with Park Ridge Multi-Family L.P., assigned to affiliate, Berkeley Apartments, Phase II (Company) related to the construction of a multi-family project with 310 residential units located at 2521 Frazier Avenue in the Berry/University Neighborhood Empowerment Zone Mayor and Council Communication (M&C C-26660), City Secretary Contract No. 46559 as amended by City Secretary Contract No. 46559-CA1. The Company now wishes to sell the development to Crest Berkeley TIC I, LLC, Crest Berkeley TIC II, LLC, and Crest Berkeley TIC III, LLC, (Purchaser). As part of the proposed sale, the Company has requested an assignment of the Agreement to the Purchaser, so that the Purchaser may continue to receive the tax abatement for the remainder of the term of the Agreement. Under the Agreement, the Company is prohibited from assigning the Agreement to another party without the City Council's consent. In order to facilitate the transaction, a Consent to Assignment Agreement between the City, the Company and the Purchaser will be required. The Company has constructed all the required improvements, as set forth in the Agreement, and the Purchaser will be required to meet all ongoing obligations of the Company under the Agreement. The City will continue to receive the public benefits resulting from development of this project. The multi-family project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that this action will have no material impact on City funds. http:iiapps.cfwnet.org/council_packet/mc_review.asp?ID=25151&councildate=9/26/2017[09/28/2017 8:38:52 PM] M&C Review TO Fund Department Account Project Program Activity Budget I Reference # Amount ID ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID I I Year I (Chartfield 2) Submitted for City Manager's Office byN Fernando Costa (6122) Originating Department Head: Aubrey Thagard (8187) Additional Information Contact: Sarah Odle (7316) ATTACHMENTS 2521 Frazier Avenue Mapndf FORM 1295-CREST BERKELEY TIC I LLC.pdf FORM 1295-CREST BERKELEY TIC 11 LLC.pdf FORM 1295-CREST BERKELEY TIC III LLC.pddf http://apps.cfwnet.org/council_packet/mc review.asp?ID=25151&councildate=9/26/2017[09/28/2017 8:38:52 PM]