HomeMy WebLinkAbout2001-001 HRARCommissioner Ed Nelson introduced the following resolution and
moved its adoption:
HRA RESOLUTION NO. 2001-01
RESOLUTION AUTHORIZING ACCEPTANCE OF PAYMENT IN
SATISIFICATION OF THE TERMINATION AGREMEENT DATED THE 28TH
DAY OF NOVEMBER 2000 BY AND BETWEEN THE HOUSING AND
REDEVELOPMENT AUTHORITY (HRA) OF THE CITY OF BROOKLYN
CENTER, THE CITY OF BROOKLYN CENTER, AND BROOKDALE
ASSOCIATES LIMITED PARTNERSHIP (SUCCESSOR AND INTEREST TO
BROOKDALE THREE LIMITED PARTNERSHIP)
WHEREAS, as of the 2P Day of November 2000, the City, the HRA, and
Brookdale Associates Limited Partnership entered into an agreement to terminate the deficiency
agreement dated December 19, 1985, between the HRA and Brookdale Three Limited
Partnership and various other agreements identified in the termination agreement of November
28, 2000; and
WHEREAS, the parties agreed that there would be further calculation and
discussion regarding the maximum payment to be received by the City and HRA pursuant to the
deficiency agreement; and
WHEREAS, further review of the market value of the property and what would
constitute deficiency payments by virtue of the payment of taxes in excess of the fair market
value of the property have been undertaken; and
WHEREAS, the parties have proposed a final settlement pursuant to the
termination agreement of November 28, 2000.
NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment
Authority in and for the City of Brooklyn Center that the Executive Director is hereby authorized
to accept the payment of $176,000 in full and complete discharge of the obligations of Brookdale
Associates Limited Partnership under the termination agreement of November 28, 2000, for any
and all deficiencies owed under the agreements identified in the termination agreement of
November 28, 2001.
June 25, 2001
Date
Cha'
k^
The motion for the adoption of the foregoing resolution was duly seconded by commissioner
Kay layman
and upon vote being taken thereon, the following voted in favor thereof:
Myrna Kragness, Kay layman, Ed Nelson, Bob Peppe, and Tim Ricker;
and the following voted against the same: none;
whereupon said resolution was declared duly passed and adopted.
RESOLUTION NO. 2001-01
TEFIVffNATION AGREEMENT.
THIS TER 41NATION AGREEMENT ("Agreement'), made this &y of
Il)&V-Q~Q- - , 2000, by and between The Housing and Redevelopment Authority of the City
of Brooklyn Center, a Minnesota public body corporate and politic ("HIW) the City of
Brooklyn Center, a Minnesota public body corporate and politic ("City") and Brookdale
Associates Limited Partnership, a Minnesota limited partnership successor in interest to
Brookdale Three Limited Partnership ("Brookdale").
RECITALS
HRA and Brookdale are parties to a Deficiency Agreement dated December 19,
1985, between HRA and Brookdale Three Limited Partnership (the "Deficiency Agreement"),
relating to tracts A and H, registered land survey No. 1594, Hennepin County, Minnesota (the
"Property") and recorded as Document No. 1695004, and an Assessment Agreement and
Certification of Assessor dated December 19, 1985, between HRA and Brookdale Three Limited
Partnership (the "Assessment Agreement"), relating to the Property and recorded as Document
No. 1695005, and a Contract for Private Development dated December 19, 1985 filed
December 31, 1985, as Document No. 1695001 among the HRA, the City, Brookdale Three
Limited Partnership, and Brookdale Corporate Center, a limited partnership {"Contract for
Private Development'). In consideration of Brookdale's agreement to pay the amount
determined pursuant to this Agreement to HRA, HRA and City hereby terminate the. Deficiency
Agreement and Assessment Agreement. The City and HRA also hereby terminate the Contract
for Private Development but only as it relates to Lot 2, Block 1, Brooklyn Farm, Hennepin
County, Minnesota. Nothing herein shall act to terminate the Contract for Private Development
as it relates to Lot 1, Block 1, Brooklyn Farm, Hennepin County, Minnesota.
NOW, THEREFORE, the parties hereto agree as follows:
1. On or before the "Payment Date," (or, if applicable, the payment date set
forth in Section Le.) Brookdale shall pay to HRA an amount (the "Payment') equal to the lesser
of $335,000 or the maximum amount which could be paid on the Payment Date pursuant to the
terms of the Deficiency Agreement, including the provisions thereof incorporating the limitations
of Section 6.1(04) of the Development Agreement, as defined below, to pay all tax increment
deficiencies payable in 2003 and all prior years. For purposes of this Agreement, it shall be
conclusively presumed that no "private payments" for purposes of the Internal Revenue Code
were or would be included in real estate taxes payable in 1997 or any later year or in 1991- or any.
prior year, and that the tax increment deficiency under the Deficiency Agreement in payment
years 2001, 2002 and 2003, calculated without reference to the limitation in Section 6.1(04) of
the Development Agreement, would be $53,726.58 per year.
. a. The "Payment Date" shall be the later of the 3& day after the date
of the Agreement or the tenth day after the day the HRA provides Brookdale
written notice of such tax increment deficiency and all calculations of the tax
increment deficiency prepared by its consultants and attorneys for real estate taxes
1227977x6
RESOLUTION NO. 2001-01
paid during the term of the Deficiency Agreement, including without limitation,
calculation of the limitations on tax deficiency set forth in Section 6.1(04) of the
contract for Private Development, dated December 19, 1985 among the IMk
City, Brookdale Three Limited Partnership, and Brookdale Corporate Center
("Development Agreement").
b. Brookdale shall have the right to contest any such calculations by
written notice delivered to City on or prior to the Payment Date. In the event the
parties disagree as to the correctness of the calculations, the parties shall seek the
.written opinion of Joseph Gomrella, Esq. of the Dorsey Whitney law firm. If
Joseph Gonnella, is unavailable, the parties shall seek the written opinion of Lynn
Endorf of the Dorsey Whitney law firm. If Lynn Endorf is unavailable, the
parties shall seek the written opinion of a mutually acceptable bond attorney who
is regularly retained to advise developers, owners and municipalities as to tax
exempt financing and who regularly renders opinions as to tax exempt bonds.
(i) If Joseph Uoffiella and Lymr-Endorf are unavailable and
the parties cannot agree as to such attorney, within ten (10) days of
delivery of Brookdale's written notice of objection (such notice delivery
date hereafter called "Notice Date"), Joseph Gonnella and Lynn Endorf
shall jointly select an attorney who is regularly retained to advise
developers, owners and municipalities as to tax exempt financing and who
regularly renders opinions as to tax exempt bonds.
(ii) Brookdale shall have the right to submit a memorandum to
the attorney explaining Brookdale's position within five (5) days of the
later of the date of Brookdale's notice of its contest of any such
calculations or the date the attorney is selected.
(iii) The selected attorney shall render an opinion to the ERA,
City, Brookdale and BCC Associates, LLC as to the correct calculation of
the deficiency and the correct calculation of the limitations imposed by
Article VI of the Development Agreement including the opinion that such
deficiency payment shall not affect the tax exempt status of the bonds
within thirty (30) days of being selected and notified of the dispute. Such
opinion shall resolve the dispute as to the calculation of such deficiency
and the calculation of any limitations on such deficiency. The opinion, as
a resolution of such disputes, shall be final and nonappealable.
(iv) Brookdale shall pay the cost of the attorney retained
pursuant to the process outlined above.
C. Payment of such tax increment deficiency shall be postponed
pending resolution of any such dispute but shall be paid within seven (7) days of
such resolution.
1227977v6
RESOLUTION NO. 2001-01
2. In consideration of Brookdale's commitment to make the Payment, the
City, HRA and Brookdale hereby terminate the Development Agreement, the Deficiency
Agreement and Assessment Agreement and the City and HRA hereby releases and discharges
Brookdale, Brookdale Three Limited Partnership and their respective successors and assigns
from any and all obligations and liabilities, for payment or otherwise, now existing or hereafter
arising under the Development Agreement the Deficiency Agreement or Assessment Agreement.
3. A notice, demand or other communication under the Agreement by any
party to another party shall be sufficiently given or delivered if and when it is sent by mail,
postage prepaid, return receipt requested or delivered personally to the following addresses:
As to the HRA: Executive Director
The Housing and Redevelopment
Authority in and for the
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota
As to the City: City Manager
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota
As to Brookdale: Brookdale Associates Limited Partnership
c% Ryan Properties, Inc.
900 Second Avenue South
Minneapolis, Minnesota 55402
Attention: John Kelly
[Signature pages to follow]
1227977v6 3
RESOLUTION NO. 2001-01
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
made as of the day and year first above stated.
THE HOUSING REDEVELOPMENT
AUTHORITY OF THE CITY OF BROOKLYN
CENTER r\
My Commission Expires M. 9i, 2005
And
Its
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The fore oing instrum t awacknowled befo me day of
No ember, 20 0, by i 2'j ME the ~a ilk. d by
M rte- ' , the of The Housing and
Red elopment Mority in and for the City of Brooklyn Center, a Minnesota public body
corporate and politic, on behalf of The Housing and Redevelopment Authority in and for the City
of Brooklyn Center.
1227977v6
l
Notary Public
4
i
MARIA L. ROSENBAUM
NOTARY PUBLIC-MINNESOTA
a
i5
By Ryan Properties, Inc.,
its general partner
I I7`~~
1
RESOLUTION NO. 2001-01
BROOKDALE ASSOCIATES LIMITED
PARTNERSHIP
By Brookdale Three Limited Partnership,
its general partner
STATE OF MINNESOTA
) ss.
COUNTY OF SPIN )
The foregoing ins ?ent was acknowledged before e this0~day of
November, 2000, by.~ Oktn *P. Ytt atVI Sr- , the _T1 Cf.,TfeS! &jj- of Ryan
Properties, Inc., general partner of Brookdale Three Limited Partnership, general partner of
Brookdale Associates Limited Partnership, a Minnesota limited partnership, on behalf of the
limited partnership.
rotary Public
U q
NOWY Public
WIMAY AD.
Cm
misslo UJU. st t sODS
1227977vb
5
RESOLUTION NO. 2001-01
STATE OF MINNESOTA
COUNTY OF HENNEPIN
) ss.
CITY OF
By
is
And By
Its
YN
The foregoing instrument was ackn led ;the befo me on this ~+A. of
, 2000 by and n a the
and Ci of Brookl Center, a Minnesota
municipal co 'on.
Notary Public
SAM -
MARIA L ROSENBAUM
NOTARY Pty-YIt~90RA
My t~ipion Exp~.Nn. it, BOOS
' a
DRAFTED BY:
BRIGGS AND MORGAN, P.A. QRS)
2400 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
612-334-8400
1227977x6 6