HomeMy WebLinkAbout19- Estoppel Certificate - The Etha Hotel, LLC - Agreement for the Payment of Deferred Impact Fees and Notice of Intent to Lien ,TWVWWtA% &R .
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P.O. Box 6550 k201 9
Bozeman, MT 59771-6550
ESTOPPEL CERTIFICATE
AND CONSENT TO COLLATERAL ASSIGNMENT OF IMPACT FEE AGREEMENT AND
ASSUMPTION AGREEMENT
IMPACT FEE Agreement for the Payment of Deferred Impact Fees and Notice of
AGREEMENT: Intent to Lien, dated November 21, 2014, by the City of Bozeman and
The Etha Hotel, LLC and recorded as Document No. 2497881 in the
records of Gallatin County, Montana.
PROPERTY: 24 West Mendenhall Street, Bozeman, Montana
CITY: City of Bozeman, a municipal corporation of the State of Montana
BORROWER: The Etha Hotel, LLC
LENDER: CIP 2018 Equity REIT LLC, together with its successors and assigns
as holder(s)of the Loan
DATE: March a, 2019
The Lender is providing a construction mortgage loan(the"Loan")to Borrower. Pursuant to
a certain Collateral Assignment and Security Agreement in Respect of Contracts, Licenses and
Permits and such other assignment instruments as may be executed from time to time between
Borrower and Lender ("Collateral Documents"), Borrower has agreed, among other things, to assign
to Lender, as collateral security for the Loan and related obligations, all of its right, title and interest
in,to and under the Impact Fee Agreement.
Pursuant to Section 12 of the Impact Fee Agreement, the City's consent is required in order
for Borrower to collaterally assign its rights under the Agreement.
This Estoppel Certificate and Consent to Collateral Assignment of Impact Fee Agreement
and Assumption Agreement (this "Agreement") is entered into by the City as a courtesy for the
benefit of Borrower with the understanding that Lender will loan certain monies to Borrower for
Borrower to complete construction of the Etha Hotel (the "Hotel"). The Lender represents it will
engage in its own due diligence regarding the conditions of the Hotel and the current state of
Borrower's compliance with the Impact Fee Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the City and the Lender
hereby agree as follows:
1. Attached hereto as Exhibit "A" is a true, correct, and complete copy of the Impact Fee
Agreement. Except as attached hereto, the Impact Fee Agreement has not been assigned,
modified, supplemented, or amended in any way. The Impact Fee Agreement constitutes
the entire agreement between the City and Borrower with respect to the deferred impact
fee.
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2. The Impact Fee Agreement is valid and is in full force and effect, and, to the best of the
City's knowledge,Borrower is not in default thereunder.
3. Notwithstanding anything to the contrary contained in the Impact Fee Agreement, the
City hereby consents to Borrower's collateral assignment to the Lender of its right, title
and interest in and to the Impact Fee Agreement and agrees that, upon receipt of notice
from Lender that an event of default has occurred with respect to Borrower's obligations
in connection with the Loan, if so requested in such notice, Lender shall be entitled to
exercise all of Borrower's rights under the Impact Fee Agreement and all other rights
otherwise afforded to a secured party.
4. The City agrees that if Lender notifies the City in writing that Lender has foreclosed upon
the Property or otherwise acquired title in connection with the exercise of remedies under
the loan documents or a deed-in-lieu of foreclosure (each, a "Lender Title Transfer
Action"), then (a)Lender shall be substituted for Borrower under the Impact Fee
Agreement, (b)the City shall (1)recognize Lender as its counterparty under the Impact
Fee Agreement and (2)subject to the provisions of the Impact Fee Agreement and this
Agreement, perform its obligations under the Impact Fee Agreement in favor of Lender.
If Lender notifies the City it effected a Lender Title Transfer Action, Lender must,in the
same written notice, (i) indicate whether it intends to honor the Borrower's duties and
obligation under the Impact Fee Agreement from and after the date of such Lender Title
Transfer Action; or (ii) terminate the Impact Fee Agreement. If the Lender delivers a
notice pursuant to clause (i), Lender agrees to accept all the duties and obligations of
Borrower included in the Impact Fee Agreement, including all required indemnity
obligations, as if they were Lender's own, in each case first accruing after such Lender
Title Transfer Action. Nothing herein releases the Borrower from such duties and
obligations accruing prior to such action by Lender.
5. The City agrees that in the event of a default or breach by Borrower of any of the terms,
conditions or provisions of the Impact Fee Agreement, the City will give Lender written
notice of such default. In all cases of default by Borrower of any of the terms, conditions
or provisions of the Impact Fee Agreement, the City agrees to give Lender the
opportunity to remedy or cure such default within the time periods provided for in the
Impact Fee Agreement or thirty(30) days after receipt of the notice of default by Lender,
whichever is later. The City agrees to accept any cure or performance by Lender on
Borrower's behalf as if Lender were the"Obligor"under the Impact Fee Agreement.
6. Upon the full discharge and satisfaction of Borrower's obligations under the Loan and the
release of the Deed of Trust by Lender(except in connection with a Lender Title Transfer
Action pursuant to Section 4 of this Agreement), this Agreement and all rights herein
assigned to Lender and the duties and obligations assumed by Lender shall terminate
automatically without further notice.
7. Nothing herein shall affect the City's right to amend and/or terminate the Impact Fee
Agreement for any reason provided in the Impact Fee Agreement; provided that any
amendment entered into by Borrower shall not be binding on Lender without Lender's
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written consent to such amendment. The City agrees to provide written notice of any
such amendment or termination to Lender.
8. Notwithstanding anything to the contrary herein, in the event Lender succeeds to
Borrower's right and interest in and to the Impact Fee Agreement pursuant to Section 4
of this Agreement, Lender's interest in the Impact Fee Agreement may be. assigned by
Lender only with the prior written approval of the City, which approval shall not be
unreasonably withheld, conditioned or delayed. A requirement that the assignee must use
the Property as a hotel shall not be regarded as an unreasonable condition.
9. All notices to be given to Lender shall be addressed as follows:
CIP 2018 Equity REIT LLC
One Boston Place
Boston,MA 02108
Attention: Patrick O'Sullivan
Telephone: (617) 624-8323
Email: posullivan@crossharborc!qpital.com
crossharborcapital.com
All notices to be given to the City shall be addressed as follows:
City of Bozeman
Attn: City Manager
PO Box 1230
Bozeman,MT 59771-1230
10. The persons signing this Agreement are duly authorized representatives of the City and
the Lender, as applicable.
11. This Agreement shall be binding upon the undersigned and its successors and assigns.
12. This Agreement shall be governed by and construed in accordance with the laws of the
State of Montana, without regard to conflict of laws principles. Venue for any legal
actions pertaining to this Agreement shall be Gallatin County,Montana.
13. This Agreement shall be recorded in the records of the Gallatin County Clerk and
Recorder. All costs of recording shall be borne by the Lender. A copy of this recorded
agreement shall be provided to the City at the address noted herein.
[Signatures begin on the following page]
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2641591 Page 4 of 12 04/05/2019 10:31:07 AM
THE CITY OF BOZEMAN
By:
Name:
Title: City Manager
STATE OF MONTANA )
COUNTY OF
his ins rument was acknowledged before me on this # day of ��� 2019, by
known to me to be the City anager of the City of Bozeman.
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.SEAT =t' mission Expires:
My Com 2022 Residing at ,Montana
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[Signatures continue on the following page]
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2641591 Page 5 of 12 04/05/2019 10:31:07 AM
CIP 2018 EQUITY REIT LLC,
a Delaware limited liability company
By: CrossHarbor Institutional Partners 2018 GP,L.P.,
a Delaware limited partnership,
its Manager
By: CrossHarbor Capital Partners LLC,
a Delaware limited liability company,
its General Partner
By:
Na e: hy C.Hart
Tit naging Partner
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF SUFFOLK )
'0�
On this'- day of March, 2019, before me, the undersigned notary public, personally
appeared Jay C. Hart proved to me though satisfactory identification, which was based on the
undersigned's personal knowledge of the identity of the principal, to be the person whose name is
signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily
for its stated purpose as Managing Partner of CrossHarbor Capital Partners LLC, which is the
General Partner of CrossHarbor Institutional Partners 2018 GP, L.P., which is the Manager of CIP
2018 Equity REIT LLC,a Delaware limited liability company.
Notary Public
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Exhibit A
Impact Fee Agreement
See attached.
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Return to:
City of Bozeman
City Clerk
PO Box 1230
Bozeman MT 59771-1230
Paps: 1 of S 11/2112014 04.20:40 PM Fee: $42.00
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AGREEMENT FOR THE PAYMENT OF DEFERRED IMPACT FEES AND
NOTICE OF INTENT TO LIEN
THIS AGREEMENT is made and entered into this 2.1 day of ,
2014, by and between Etxea Hospitality LLC, PO Box 1795, Bozeman MT 59771 hereinafter
called the"Obligor,"and the City of Bozeman,a Municipal Corporation of the State of Montana,
hereinafter called the"City."
WHEREAS, it is the intent and purpose of the Obligor to meet the requirements of
Commission Resolution #4433 to allow the issuance of building permit 13-19564 prior to
payment of transportation impact fees required by 2.06.1640 BMC on property located at 24
West Mendenhall Street and legally described as the cast 1.25' of Lot 16, Block A; all of Lots
17-20, Block A; and the West 24.5' Lot 21,Block A;Plat C-1-F;Tracy's 1 st Amended Addition,
City of Bozeman,Gallatin County,Montana.
WHEREAS,it is the intent of the Obligor to defer payment of transportation impact fees
until occupancy for the construction authorized under building permit 13-19564; and
WHEREAS, it is the intent and purpose of both the Obligor and the City to hereby enter
into an Agreement which will guarantee the full and satisfactory completion of the required
payment; and it is the intent of this Agreement, and of the parties hereto, to satisfy the
requirements of the municipal code and Commission Resolution#4433.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, it is hereby agreed as follows:
1. Property Description
This Agreement pertains to and includes those properties which are designated and
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�greement for Ealment of Defened Impact Fees and Notice of Intent to Lien
identified as 24 West Mendenhall Street and legally described as the east 1.25' of Lot 16,Block
A; all of Lots 17-20, Block A; and the West 24.5' Lot 21, Block A; Plat C-1-F; Tracy's ist
Amended Addition,City of Bozeman,Gallatin County,Montana.
2. Payment of Deferred Impact pees
This Agreement specifically includes the payment of transportation impact fees calculated for
building permit 13.19564, in the amount of$148,257.19 (One Hundred Forty-Eight Thousand
Two Hundred Fifty-Seven dollars and Nineteen cents). Obligor acknowledges that the above
impact fee must be paid in full before the Certificate of Occupancy may be issued. Obligor
agrees to pay the above stated fee in accordance with this agreement and Commission Resolution
#4433 before the structure(s)identified in the building permit referenced above is occupied.
3. Guarantee,Time for Completion of Agreement
No occupancy of the structure, either temporary or permanent prior to full payment of the
deferred transportation impact fee and completion of this agreement. This agreement constitutes
a Notice of Intent to Lien against the property in the event that the deferred impact fees are not
paid. Should the fees not be paid the City may without further action record a lien against the
property in the full amount of the deferred fees as stated above and for costs required for
collection of the deferred fee.
4. Inspection
Representatives of the City shall have the right to enter upon the property at any reasonable time
in order to inspect it and to determine if the Obligor is in compliance with this Agreement, and
the Obligor shall permit the City and its representatives to enter upon and inspect the property at
any reasonable time.
5. Default
Time is of the essence for this Agreement. If the Obligor shall default in or fail to fully perform
any of its obligations in conformance with the time schedule under this Agreement the City may
elect to enforce any of the following specified remedies:
A) The City may withhold a Certificate of Occupancy and prohibit use of the property.
B) The City may,at its option,record a lien against the property.
C) The City may enforce any other remedy provided by law or this agreement.
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A ee ent for Payment of Deferred Impact Fees and Notice of Intent to Lien
6. Indemnification
The Obligor hereby expressly agrees to indemnify and hold the City harmless for and against all
claims,costs and liability of every kind and nature, for injury or damage received or sustained by
any person or entity in connection with, or on account of the performance of work at the
development site and elsewhere pursuant to this Agreement, or delays in the issuance of a
Certificate of Occupancy pursuant to this agreement. The Obligor further agrees to aid and
defend the City in the event that it is named as a defendant in an action concerning the
performance of work pursuant to this Agreement except where such suit is brought by the
Obligor. The Obligor is not an agent or employee of the City.
7. Governing Law and Venue
This Agreement shall be construed under and governed by the laws of the State of Montana. In
the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District
Court,Gallatin County,State of Montana.
S. Changes in Fee During Deferral Period
The fees due at conclusion of the deferral period shall not change from the amount determined in
Section 2. In the event the amount of fees due for the category of development for newly
submitted projects which is the same category as that which is the subject of this agreement
either decreases or increases no change in the amount of fees due from the project will be made
unless the project constructs more or less demand generating improvements than originally
depicted on the building permit for the work. In the event of non-payment additional fees for
collection costs and other fees as established by Resolution 4433 will be charged in addition to
the deferred transportation impact fee.
9. Attorney's Fees or Other Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney to
enforce any of the terms or conditions of this Agreement, then the prevailing party shall be
entitled to reasonable attorney's tees and costs, to include the salary and costs of in-house
counsel including City Attorney. Other fees and costs may be incurred as set forth in Resolution
4433 relating to the enforcement of this agreement.
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A eement for Pa ment of Deferred Impact Fees and Notice of Intent to Lien
10. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid, unless agreed to in writing by
the parties hereto.
11. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
12, No Assignment
It is expressly agreed that the Obligor shalt not assign this Agreement in whole, or in part,
without prior written consent of the City.
13. Successors
Except as provided in paragraph 10, this Agreement shall be binding upon, enure to the benefit
of,and be enforceable by the parties hereto and their respective heirs,successors and assigns.
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Agymment for Payment of Deferred Impact Fees and Notice of Intent to Lien
CORPORATION
Emea Hospitality LLC
STATE OF MONTANA )
)ss.
County of Gallatin )
On this 2.1 day of , 2 14, before me, the undersigned, a Notary
Public for the State of Montana,personally appeared LAtuye4iU known
to me to be the of E a Hospitality LLC the corporation
that executed the withiffingerument, and acknowledged to me that he executed the same for and
on behalf of said corporation.
IN WITNESS WHEREOF, l have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
y h. ASHL.EY M KOENIG
Notary Public
t"1.2 State of Montana e"'
residing at:
Nam•- :?eigrade,Montana Notary PU ie for the State of ntana
9TFor `,c,;�` 1:1y Commission Expires:
_ August si Zo Residing at Bozeman
My Commission Expires
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Agmement for La ment of Deferred Impact Fees and�Noticeof Intent to Lien
THE CITY OF BOF ASV
Wendy Thomas
Community Development Director.
STATE OF MONTANA )
)ss.
County of GALL ATIN }
On this dayq Oy of ®V Q M ,2014,before me, a Notary Public for the
State of Montana, personally appeared Wendy Thomas, known to me to be the person described
in and who executed the foregoing instrument as Community Development Director of the City
of Bozeman, whose name is subscribed to the within instrument and acknowledged to me that
she executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seat the
day and year first above written. N/v N � �A 0,)��k
a
(SEAL) Notary Public for the State of ontana
TARA L HASTIE Residing at RcQ
`p Aotwy,Public
.'�otnrr�q�. for the Stag:al A•iontann My Commission Expires: 1
Residing at' (Use four digits for expiration year)
=,r,,SI;A1..�•, Bozoniat), Montmin
My commis:;ion Cxpiros:
Apri;04,2017
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