CITY of ALBUQUERQUE
TWENTY THIRD COUNCIL
COUNCIL BILL NO. F/S R-18-110 ENACTMENT NO. ________________________
SPONSORED BY: Patrick Davis
RESOLUTION
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Supplemented, And Certain Other Related Agreements, In Connection With The Purchase Of The Property Underlying The Districts By MDS Investments, LLC, For The Purpose Of Financing Public Infrastructure Improvements Within The Districts (Davis)
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CONSENTING TO THE ASSIGNMENT OF THE MASTER DEVELOPMENT AGREEMENT FOR THE MESA DEL SOL TAX INCREMENT DEVELOPMENT DISTRICTS 1 THROUGH 5, BY AND AMONG THE CITY OF ALBUQUERQUE, NEW MEXICO, MESA DEL SOL, LLC AND THE DISTRICTS RECORDED IN THE BERNALILLO COUNTY, NEW MEXICO REAL ESTATE RECORDS ON JUNE 19, 2008, AS AMENDED AND SUPPLEMENTED, AND CERTAIN OTHER RELATED AGREEMENTS, IN CONNECTION WITH THE PURCHASE OF THE PROPERTY UNDERLYING THE DISTRICTS BY MDS INVESTMENTS, LLC, FOR THE PURPOSE OF FINANCING PUBLIC INFRASTRUCTURE IMPROVEMENTS WITHIN THE DISTRICTS.
WHEREAS, the Boards of Directors of the Mesa Del Sol Tax Increment Development Districts 1 through 5 (the “Districts”), being tax increment development districts established and existing pursuant to NMSA Sections 5- 15-1 et seq., previously have approved, executed and delivered the Master Development Agreement by and among the Districts, the City of Albuquerque, New Mexico (the “City”) and Mesa del Sol, LLC (the “Original Developer”), recorded in the Bernalillo County, New Mexico Real Estate Records on June 19, 2008, as amended and supplemented (the “TIDD Master Development Agreement”; capitalized terms used in this Resolution and not otherwise defined herein shall have the meanings provided in the TIDD Development Agreement); and
WHEREAS, the Original Developer (and/or its successors in interest with respect to the real property underlying the Districts, referred to herein as the “Seller”) was named as the Defendant in a certain court proceeding in the Second Judicial District Court of New Mexico known as Case No. D-202-CV- 2015-05944 (the “Foreclosure”), in which the Court appointed a receiver to convey the real property underlying the Districts together with all rights and interests in the TIDD Master Development Agreement Mesa del Sol Tax Increment Development Districts 1 Through 5, by and among the City of Albuquerque, New Mexico, Mesa del Sol, LLC and Mesa del Sol Tax Increment Development Districts 1 through 5, recorded in the Bernalillo County, New Mexico real estate records on June 19, 2008, as Document No. 2008-070059, as amended by First Amendment to the Master Development Agreement Mesa del Sol Tax Increment Development Districts 1 Through 5, by and among the City of Albuquerque, New Mexico, Mesa del Sol, LLC and Mesa del Sol Tax Increment Development Districts 1 through 5 dated September 17, 2009, and recorded in the Bernalillo County, New Mexico real estate records on March 30, 2010, as Document No. 2010-026776, as further amended by First Amendment to the Master Development Agreement Mesa del Sol Tax Increment Development Districts 1 Through 5, by and among the City of Albuquerque, New Mexico, Mesa del Sol, LLC and Mesa del Sol Tax Increment Development Districts 1 through 5 dated September 17, 2009, and recorded in the Bernalillo County, New Mexico real estate records on August 22, 2011, as Document No. 2011-075938, as further amended by First Amendment together with the Bond Anticipation Reimbursement Agreement by and between Mesa del Sol, LLC and Mesa del Sol Tax Increment Development Districts 1-5 dated December 23rd 2008. (collectively the “TIDD Development Agreements” attached hereto as Exhibit A) (see Third Amendment to Emergency Order Appointing Receiver filed 2/19/2018); and
WHEREAS through the Foreclosure and a series of transactions (the “Transaction”) the underlying real property and the rights under the TIDD Development Agreements were conveyed from Seller to MDS Investments, LLC (the “Purchaser”); and
WHEREAS, Section 12.G of the June 19, 2008 TIDD Master Development Agreement provides that the TIDD Master Development Agreement shall not be assigned without the written consent of the City; and
WHEREAS, the Purchaser has presented a form of a Consent to Assignment of the TIDD Development Agreements acceptable to the City (the form of Consent to Assignment of the TIDD Development Agreements is attached hereto as Exhibit B); and
WHEREAS, the Purchaser has provided satisfactory evidence to the City that each entity comprising the Seller has disclaimed any interest in the real property underlying the Districts and any rights under the TIDD Development Agreements and other due diligence materials and related studies (collectively the “Due Diligence Documents” attached hereto as Exhibit C).
BE IT RESOLVED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
Section 1. Consent to Assignment of the TIDD Development Agreements. Pursuant to the promises and the acceptance of the obligations referenced in the Consent to Assignment of the TIDD Development Agreements, the City consents to the assignment of the TIDD Development Agreements to the Purchaser and the Chief Administrative Officer of the City will execute the Consent to Assignment of the TIDD Development Agreements.
Section 2. Repealer. All ordinances or resolutions, or parts thereof in conflict with the provisions of this Resolution, are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any ordinance or resolution, or part thereof, heretofore repealed.
Section 3. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no manner affect any remaining provisions of this Resolution.
x:\city council\share\cl-staff\_legislative staff\legislation\23 council\r-110fsfinal.doc.docxEXHIBIT a
TIDD MASTER DEVELOPMENT AGREEMENT,
FIRST AMENDMENTS TO THE TIDD MASTER DEVELOPMENT AGREEMENT, AND
BOND ANTICIPATION REIMBURSEMENT AGREEMENT
EXHIBIT B
CONSENT TO ASSIGNMENT AGREEMENT
exhibit c
30 THREE SIXTY PUBLIC FINANCE STUDY, AND
PRO FORMA