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Home My WebLink About2001-092 CCR1 Member Ed Nelson introduced the following resolution and moved its adoption: RESOLUTION NO. 2001-92 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 28`'' 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 City Council of the City of Brooklyn Center that the City Manager 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 Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member Kay Lasman and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Kay Lasman, 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. 2001-92 TERMINATION AGREEMENT. THIS TERMINATION AGREEMENT ("Agreement'), made this ,184 day of Il.)e-~--~Q-r- , 2000, by and between The Housing and Redevelopment Authority of the City of Brooklyn Center, a Minnesota public body corporate and politic ("H1W) 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 l.c.) 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) bf 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 3e 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 K" increment deficiency prepared by its consultants and attorneys for real estate taxes 1227977v6 RESOLUTION NO. 2001-92 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 HRA, 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 Gonnella, 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 Uonnella and Lynn. 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 HRA, 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 say 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 2 RESOLUTION NO. 2001-92 2. In consideration of Brockdale'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. 2001-92 IN VTI MSS 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\ 1 MARIA L. ROSENBAUM By, STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The fore orn rostrum t w aclmowl ed befome 's da of No ember, 2by i Q ~E the %9yjLj6;'!9-1VL by the ' of The Housing and Red elopment thonty 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. 1227977x6 XAILJ~r 5 Notary Public 4 NOTARY pt1BLIC-NANNESQTA IAy Comdi~ssionExpitas Jan. 91, 20~ x And Its dC RESOLUTION NO. 2001-92 BROOKDALE ASSOCIATES LDaM PARTNERSIDP By - Brookdale Three Limited Partnership, its general partner By Ryan Properties, Inc., its general partner 1 STATE OF NIIN TESOTA COUNTY OF BENNEPIN ss. The foregoing ' ent was acknowledged before e th- day of November, 2000, by.10 .11.7• f~*i Sr• , the V'1 W?(eS1Vft' 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. 4~l. i rotary Public WV"ILMA Mry tR CommixMn .31 20D5 Minrt 1227977v6 5 RESOLUTION NO. 2001-92 CITY By And STATE OF M1[NNES0TA ) ) ss. COUNTY OF B ENNEPIN ) The foregoing instrument was ackno Iledged befo . me on this day of . . . & ax , 2000 by j and tit n tt lzthe and the Cit jf of Brookl Center, a Minnesota municipal co ration. zD'jy7ux11 Notary Public MARIA L ROSENBAUM MARY PURL"WOM grCauiaia~ E~4a,ga,~t,gppg DRAFTED BY: BRIGGS AND MORGAN, P.A. QRS) 2400 IDS Center 80 South Eighth Street Minneapolis, MN 55402 612-334-8400 1227977x6 6