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HomeMy WebLinkAboutresolution.council.144-14 RESOLUTION NO. 144 SERIES OF 2014 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING AN ASSIGNMENT OF A PARTNERSHIP INTEREST IN THE ASPEN COUNTRY INN LIMITED PARTNERSHIP AND AUTHORIZING THE CITY MANAGER TO EXECUTE A FINAL AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS,The City has been an active partner with the Aspen Pitkin County Housing Authority in the development of affordable housing for its residents; and WHEREAS, in order to accommodate Aspen Pitkin County Housing Authority's acquisition of the Limited Partners interest in Aspen Country Inn housing project the city needs to accept the assignment of a 1% interest in the Aspen Pitkin County Limited Partnership; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO That the City Council of the City of Aspen hereby approves that Assignment of Partnership interests and Second Amendment to Partnership Agreement, a draft copy of which is attached hereto, and does hereby authorize the City Manager to execute a final agreement on behalf of the City of Aspen in substantially the form attached hereto,subject to the approval of the City Manager,the City Finance Director and the City Attorney. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 8th day of Dece .ber, 2014. Steve adron, ayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen,Colorado, at a meeting held December 8, 2014 Linda Manni g, City Clerk ASSIGNMENT OF PARTNERSHIP INTERESTS AND SECOND AMENDMENT TO PARTNERSHIP AGREEMENT This Assignment of Partnership Interests and Second Amendment to Partnership Agreement (this"Agreement") is executed to be effective as of 11:59 p.m. on the 31 st day of December, 2014 (the"Effective Date")by and among: (i) Boston Capital Corporate Tax Credit Fund XII, A Limited Partnership, a Massachusetts limited partnership(the"Withdrawing Investment Limited Partner"); BCCC, Inc., a Massachusetts corporation(the"Withdrawing Special Limited Partner") (collectively, the Withdrawing Investment Limited Partner and the Withdrawing Special Limited Partner are the"Assignors"); (ii) Aspen/Pitkin County Housing Authority, a multi jurisdictional housing authority ("APCHA"or the"SLP Assignee"). (iii) The City of Aspen, Colorado, a Colorado body corporate and politic(the"City,"and together with APCHA, the"ILP Assignees"or the"Assignees"as the context requires); (iv) The entity or entities executing this Agreement below as"SLP Assignee"(the"SLP Assignee", and together with the ILP Assignee,the"Assignees"); and Recitals A. Reference is made to that certain First Amended and Restated Agreement of Limited Partnership dated as of July 1, 1999, as amended by Amendment One to the First Amended and Restated Agreement of Limited Partnership dated as of December 15, 2000 (collectively, the "Partnership Agreement")of Aspen Country Inn I, L.P., a Colorado limited partnership(the "Partnership"). Capitalized terms used and not defined herein have the meanings ascribed to them in the Partnership Agreement. APCHA is the general partner of the Partnership (in such capacity,the "General Partner"). B. Under the terms and conditions set forth in this Agreement,the Assignors will transfer to the Assignees their respective Interests as the Investment Limited Partner and Special Limited Partner of the Partnership as described in Paragraph I below, in consideration of the Purchase Price(defined in Paragraph 3 below); the Assignees will assume the respective Transferred Interest(as defined in Paragraph I below); and the General Partner will consent to such transfer. C. Following the transfer of the Transferred Interest,the undersigned desire to amend the Partnership Agreement to: (i) acknowledge the withdrawal of the Withdrawing Investment Limited Partner and Withdrawing Special Limited Partner as Limited Partners of the Partnership and the transfer of their Interests to the Assignees; (ii)admit the ILP Assignees as the Investment Limited Partner of the Partnership and the SLP Assignee as the Special Limited Partner of the Partnership; and(iii)modify certain other provisions of the Partnership Agreement. D. The General Partner of the Partnership has indicated its willingness to consent to the transfer of the Transferred Interest, as defined below, and by its signature below shall have so consented. Now therefore, in consideration of the payment of the Purchase Price, and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties, intending to be legally bound hereby, agree as follows: 4824-5440-9760.4 - 2 - Agreement 1. Assignment of Transferred Interest. As of the Effective Date, the Withdrawing Investment Limited Partner irrevocably and unconditionally assigns, transfers and sets over to the APCHA and the City, in the proportions set out below, and their respective successors and assigns, all of the Withdrawing Investment Limited Partner's economic right, title and interest in its Interest including, without limitation: (a) all of its right in the profits, losses, credits, and distributions of the Partnership; (b) its Capital Contribution; (c) its right to repayment of any loans or advances made by it to the Partnership; and (d) all of its rights and claims now existing or hereafter arising to (i) all fees and payments due under the Partnership Agreement or any other agreement affecting the Partnership or its property, and (ii) all other benefits, rights and claims of any kind whatsoever under the Partnership Agreement, or any other agreement affecting the Partnership or its property (collectively, the"ILP Transferred Interest"). The Withdrawing Investment Limited Partner hereby assigns the ILP Transferred Interest so that the APCHA shall hold a portion of the ILP Transferred Interest o corresponding to a Percentage Interest of 98.99% and the City shall hold a portion of the ILP Transferred Interest corresponding to a Percentage Interest of 1.00%. Each of the ILP Assignees agrees, as of the Effective Date, to act as the new Investment Limited Partner of the Partnership:and to be bound by all terms, conditions, obligations and rights of an Investment Limited Partner under the Partnership Agreement. As of the Effective Date, the Withdrawing Special Limited Partner irrevocably and unconditionally assigns, transfers and sets over to the SLP Assignee, its successors and assigns, all of the Withdrawing Special Limited Partner's economic right, title and interest in its Interest including, without limitation: (a) all of its right in the profits, losses, credits, and distributions of the Partnership; (b) its Capital Contribution; (c) its right to repayment of any loans or advances made by it to the Partnership; and (d) all of its rights and claims now existing or hereafter arising to (i) all fees and payments due under the Partnership Agreement br any other agreement affecting the Partnership or its property, and (ii) all other benefits, rights and claims of any kind whatsoever under the Partnership Agreement, or any other agreement affecting the Partnership or its property (collectively, the "SLP Transferred Interest" and together with the II,P Transferred Interest, the "Transferred Interest"). The SLP Assignee agrees, as of the Effective Date, to act as the new Special Limited Partner of the Partnership and to be bound by all terms, conditions, obligations and rights of a Special Limited Partner under the Partnership Agreement. 2. Withdrawal of the Assignors; Admission of the Assignee Limited Partners; Consent. Pursuant to Sections 8.1 and 8.2 of the Partnership Agreement,as of the Effective Date: (a)the General Partner consents to the withdrawal of the Withdrawing Investment Limited Partner and the Withdrawing Special Limited Partner as Limited Partners of the Partnership and the transfer of their respective Interests in the Partnership as the Investment Limited Partner and Special Limited Partner to the Assignees; (b)the Withdrawing Investment Limited Partner and the Withdrawing Special Limited Partner hereby withdraw from the Partnership; and(c) each ILP Assignee is admitted to the Partnership as an Investment Limited Partner and the SLP Assignee is admitted to the Partnership as the Special Limited Partner. 3. Purchase Price. As consideration for the transfer by the Assignors to the Assignees of the Transferred Interest: (a)the ILP Assignees shall, simultaneously with the execution of this Agreement,pay the Assignors, in proportions corresponding to the ILP Assignees' respective interests in the ILP Transferred Interest, Seventy-Seven Thousand Eighty-Three Dollars($77,083.00) (the"ILP Purchase Price"); and(b)the SLP Assignee shall, simultaneously with the execution of this Agreement, pay the Assignors Ten Dollars ($10.00) (the"SLP Purchase Price", and together with the ILP Purchase Price,the"Purchase Price"). 4. Representations and Warranties of the Assignors. Each of the Withdrawing Investment Limited Partner and the Withdrawing Special Limited Partner represents and warrants that, as of the Effective Date: (a) it has good and marketable title to its Interest; (b)there are no liens, 4824-5440-9760.4 - 3 - charges, security interests or encumbrances of any nature whatsoever affecting any portion of its Interest; and(c) it has all requisite power and authority to enter into and perform its obligations under this Agreement. The foregoing representations and warranties shall survive the assignment of the Transferred Interest to the Assignees and the admission of the Assignees to the Partnership, and the Withdrawing Investment Limited Partner shall warrant and defend the same unto the Assignees,their successors and assigns, against the lawful claims and demands of all persons. Each ILP Assignee acknowledges and agrees that, except for the foregoing representations, neither Assignors nor any affiliate of Assignors has made any representation or warranty with respect to the Transferred Interest or any matter related thereto, and that ILP Assignee is acquiring the Transferred Interest on an"AS IS, WHERE IS"basis. SLP Assignee acknowledges and agrees that, except for the foregoing. representations, neither Assignors nor any affiliate of Assignors has made any representation or warranty with respect to the Transferred Interest or any matter related thereto, and that SLP Assignee is acquiring the Transferred Interest on an"AS IS, WHERE IS"basis. 5. Representations and Warranties of the APCHA. With respect to any regulatory agency having jurisdiction over the Apartment Complex and any other holder of a lien on the title to the property improved by.the Apartment Complex,APCHA represents and warrants that it has obtained any required consent to consummate the transfer of the ILP Transferred Interest and the SLP Transferred Interest. APCHA further represents and warrants that it has all requisite power and authority to enter into and perform its obligations under this Agreement. APCHA shall indemnify and hold the Assignors harmless from and against any and all costs, expenses,claims, losses or damages, including reasonable attorneys fees and consultants fees, resulting from the failure by APCHA to have obtained each such consent. The foregoing representations,warranties, and indemnity shall survive the assignment of the ILP Transferred Interest and the SLP Transferred Interest by the Withdrawing Investment Limited Partner to APCHA, and the admission of APCHA to the Partnership. 6. Representations and Warranties of the City. With respect to any regulatory agency having jurisdiction over the Apartment Complex and any other holder of a lien on the title to the property improved by the Apartment Complex ,the City represents and warrants that it has obtained any required consent to consummate the transfer of the ILP Transferred Interest. The City further represents and warrants that it has all requisite power and authority to enter into and perform its obligations under this Agreement. The City shall indemnify and hold the Assignors harmless from and against any and all costs, expenses, claims, losses or damages, including reasonable attorneys' fees and consultants' fees, resulting from the failure by City to have obtained each such consent. The foregoing representations,warranties, and indemnity shall survive the assignment of the ILP Transferred Interest by the Withdrawing Investment Limited Partner to the City, and the admission of the City to the Partnership. 7. Tax Matters. The Assignees acknowledge that assignment of the Transferred Interest herein will result in a technical termination of the Partnership for federal income tax purposes on the Effective Date. The General Partner shall timely file a federal income tax return for 2014 and, if necessary, state income tax returns relating to such tax termination. No later than thirty(30)days prior to the due date of such return,the General Partner shall provide a draft copy of such tax return to the Assignors for their review. The General Partner and the Withdrawing Investment Limited Partner agree to reasonably cooperate with each other in connection with the filing of such return. In particular, the General Partner and the Withdrawing Investment Limited Partner shall cooperate in good faith regarding the special allocation of losses of the Partnership and shall take no position on their respective income tax returns contrary to or inconsistent with the terms of the Partnership Agreement, as amended hereby. Without in any way limiting the General Partner's obligations to the Withdrawing Investment Limited Partner under the Partnership Agreement accruing prior to the Effective Date, which obligations are hereby affirmed and ratified,the General Partner shall indemnify, hold harmless and defend the Withdrawing.Investment Limited Partner from and against 4824-5440-9760.4 - 4 - any and all tax related losses, damages and liabilities (including, without limitation, attorneys' and accountants' fees, and interest and penalties)which the Withdrawing Investment Limited Partner(and its affiliates and their respective successors and/or assigns).may incur, arising out of the General Partner's acts or omissions. The foregoing covenants shall survive the assignment of the Transferred Interest by the Assignors to the Assignees, and the admission of the Assignees to the Partnership. 8. Allocations. Nothing in this Agreement shall affect the allocation to the Assignors of profits, losses and other items of income, gain, loss, deduction, or credit allocable to the Assignors Interests and attributable to any period before the Effective Date or any distribution or payments made to the Assignors in respect of the Transferred Interest before the Effective Date.The foregoing covenant shall survive the assignment of the Transferred Interest by the Assignors to the Assignees, and the admission of the Assignees to the Partnership. 9. Transfer Tax. To the extent that any local and/or state governmental authority in the State imposes or enforces a tax in connection with the transfer of Transferred Interest (e.g., a tax on the consideration paid, or the fair market value of the Transferred Interest), then APCHA shall promptly pay such tax and any costs related thereto. APCHA, for itself and its successors and assigns, shall indemnify and hold Assignors and their asset manager harmless from and against all costs and liabilities arising out of any failure by an ILP Assignee to file any necessary transfer tax forms or to pay any such transfer tax if and when due. The foregoing indemnity shall survive the assignment of the Transferred Interest by the Withdrawing Investment Limited Partner to the ILP Assignees, and the admission of the ILP Assignees to the Partnership. 10. Waiver of Section 13.1. Pursuant to the terms of Section 13.1 of the Partnership Agreement,the Withdrawing Investment Limited Partner and the General Partner hereby waive the applicability of Section 13.1 to the Disposition of the Transferred Interest. 11. Amendments. The Partnership Agreement is amended as follows:' A. Schedule A of the Partnership Agreement is hereby deleted in its entirety and replaced with the Schedule A attached hereto. B. The definition in Article I of"BCCTCF" is hereby deleted in its entirety and replaced with Aspen/Pitkin County Housing Authority, a multi jurisdictional housing authority, its successors and assigns. References to`BCCTCF" shall mean Aspen/Pitkin County Housing Authority. The definition in Article I of"BCCC"is hereby deleted in its entirety,and replaced with Aspen/Pitkin County Housing, a multi jurisdictional housing, its successors and assigns. References to"BCCC" shall mean Aspen/Pitkin County Housing Authority. The definition in Article I of "Investment General Partner"is hereby deleted in its entirety and all references to such term are deleted. C. The definition in Article I of"Investment Limited Partner"is hereby deleted in its entirety and replaced with the following: "`Investment Limited Partner' means Aspen/Pitkin County Housing Authority and the City of Aspen and any Person or Persons who replace either of them as a Substituted Limited Partner. In any provision of this Agreement requiring the Consent of the Investment Limited Partner or any other approval by the Investment Limited Partner,the consent or approval of Aspen/Pitkin County Housing Authority shall be sufficient to bind the Investment Limited Partner." 4824-5440-9760.4 - 5 - D. The definition in Article I of"Special Limited Partner"is hereby deleted in its entirety and replaced with the following: "`Special Limited Partner' means Aspen/Pitkin County Housing Authority and any Person or Persons who replace it as the Special Limited Partner." 12. Filings. The General Partner is authorized to make, and shall make, any filings with the State and to the Lender and any other lenders that are necessary to effect the purposes of this Agreement. 13. Miscellaneous. A. Governing Law and Venue. This Agreement, and the application and interpretation hereof, shall be governed by and construed in accordance with the law of the State applicable to contracts executed in and to be performed in the State. Pitkin County, Colorado, shall be the venue of any legal action concerning this Agreement and/or the transactions contemplated hereby. B. Construction. Whenever the singular number is used in this Agreement and when required by the context,the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa. C. Headings and Pronouns. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof. All pronouns and any variation thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural as the identity of the person or persons may require. D. Waivers. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation. E. Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. F. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid,illegal or unenforceable to any extent,the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. G. Heirs, Successors and Assigns. Each and all of the covenants,terms,provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and their respective heirs,personal representatives, successors and assigns. H. Third Parties. None of the provisions of this Agreement shall be for the benefit of or enforceable by any third parties, including any creditor, except as required by the law. L Integrated Agreement. This Agreement, including Schedule A hereto, constitutes the entire agreement among the parties with respect to the subject matter hereof. There are no other agreements,understandings, or undertakings which modify or supplement this Agreement. J. Recitals. The Recitals to this Agreement are hereby incorporated into this Agreement as if fully set forth herein. 4824-5440-9760.4 - 6 - K. Counterparts. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement, binding on all of the parties hereto. Any counterpart of this Agreement that has attached to it separate signature pages that together contain the signatures of all parties hereto or is executed by an attorney-in-fact on behalf of some or all of the parties hereto, shall for all purposes be deemed a fully executed instrument. L. Time is of the Essence. Time is of the essence of all provisions of this Agreement. [No further text. Signature pages follow.] 4824-5440-9760.4 i i - 7 - 3 I Assignors'Signature Page to Assignment of Partnership Interests and Second Amembnent to J Partnership Agreentent 1 WITNESS the execution hereof under seal as of the Effective Date. { 1 ASSIGNORS: I ! Boston Capital Corporate Tax Credit Fund 1I1,A Limited Partnership f By: BCCTC Associates XII, LLC, its General Partner By: BCCTC, Inc., its nager i } By: -ref Go in e ' e Vice President j or Marc N.Teal Senior Vice President I j BCCC,Inc. By: effr Idste' xec Vice President r Marc.N. Teal Senior Vice President 4324-5440-9i60A - 8 - Assignee's Signature Page to Assignment of Partnership Interests and Second Amendment to Partnership Agreement WITNESS the execution hereof under seal as of the Effective Date. Aspen/Pitkin County Housing Authority By: (2Z A Name: Ronald rickson Title: Chairperson City of Aspen By: Name. Stephen H. Barwick Title: City Manager 4824-5440-9760.4 - 9 - General Partner's Signature Page to Assignment of Partnership Interests and Second Amendment to Partnership Agreement WITNESS the execution hereof under seal as of the Effective Date. GENERAL PARTNER: Aspen/Pitkin County Housing Authority By: � ( Name: A. Ronald Erickson Title: Chairperson 4824-5440-9760.4 - 10 - SCHEDULE A As of 11:59.p.m., on December 31, 2014 Capital Contributions Percentage Interest General Partner Aspen/Pitkin County Housing $100 0.01% Authority 530 E. Main Street Aspen, CO 81611 Investment Limited Partner Aspen/Pitkin County Housing $2,832,894 98.99% Authority 530 E. Main Street Aspen, CO 81611 1.00% City of Aspen Special Limited Partner Aspen/Pitkin County Housing $10 0% Authority 530 E. Main Street Aspen, CO 81611 4824-5440-9760.4