HomeMy WebLinkAbout2010-007 EDAR Commissioner Tim Roche introduced the following resolution and
moved its adoption:
EDA RESOLUTION NO. 2010 -07
RESOLUTION AUTHORIZING EXECUTION OF A SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT
WHEREAS, the Economic Development Authority of the City of Brooklyn
Center, Minnesota (the "Authority ") and the United States of America, acting by and through the
U.S. General Services Administration (the "GSA ") have heretofore entered into a Real Estate
Option Agreement (as amended, the "Option Agreement ") providing for the Authority's
conveyance of certain real property to GSA for the purpose of constructing office space
containing up to approximately 173,572 square feet of rentable space with an onsite parking
facility structure having a minimum of 347 secured and visitor parking spaces (the "Project ")
within the City of Brooklyn Center, Minnesota (the "City "); and
WHEREAS, by that certain Assignment of Option Agreement dated effective as
of June 19, 2009, the GSA assigned its rights under Option Agreement to Barry Minneapolis,
LLC (the "Developer "); and
WHEREAS, the Developer exercised the option granted in the Option
Agreement by delivering to the Authority, inter alia, that certain Development Agreement dated
October 16, 2009, (the "Development Agreement "); and
WHEREAS, the Authority and the Developer previously amended the
Development Agreement pursuant to that First Amendment to Development Agreement dated
effective as of February 22, 2010, to revise the timing of the Closing Date set forth in the
Development Agreement to April 29, 2010, together with corresponding revisions to the dates
set forth for commencement and completion of the construction of the Minimum Improvements
(as set forth in the Development Agreement); and
WHEREAS, the Authority and the Developer now desire to further amend the
Development Agreement pursuant to a Second Amendment to Development Agreement (the
"Amendment ") to revise the timing of the Closing Date set forth in the Development Agreement
to June 10, 2010, together with corresponding revisions to the dates set forth for commencement
and completion of the construction of the Minimum Improvements (as set forth in the
Development Agreement).
NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the
Authority of Brooklyn Center, Minnesota, as follows:
1. The Board of Commissioners hereby approves the Amendment in substantially
the form submitted, and the Executive Director is hereby authorized and directed
to execute the Amendment on behalf of the Authority.
EDA RESOLUTION NO. 2010 -07
2. The approval hereby given to the Amendment includes approval of such
additional details therein as may be necessary and appropriate and such
modifications thereof, deletions there from and additions thereto as may be
necessary and appropriate and approved by the Authority officials authorized by
this resolution to execute the Amendment. The execution of the Amendment by
the appropriate officer or officers of the Authority shall be conclusive evidence of
the approval of the Amendment in accordance with the terms hereof.
April 26, 2010
Date President
The motion for the adoption of the foregoing resolution was duly seconded by commissioner
Kay Lasman
and upon vote being taken thereon, the following voted in favor thereof:
Tim Willson, Kay Lasman, Tim Roche, Dan Ryan, and Mark Yelich;
and the following voted against the same: none;
whereupon said resolution was declared duly passed and adopted.
EDA RESOLUTION NO. 2010 -07
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (this
"Amendment ") is entered into effective as of April _, 2010, by and between the
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, a public body
corporate and politic organized and existing under the laws of the State of Minnesota (the
"Authority "), and BARRY MINNEAPOLIS, LLC, a Georgia limited liability company (the
"Developer ").
RECITALS
WHEREAS, the Authority and the UNITED STATES OF AMERICA, ACTING BY
AND THROUGH THE U.S. GENERAL SERVICES ADMINISTRATION (the "GSA ")
entered into that certain Real Estate Option Agreement dated effective as of March 19, 2008 (as
amended, the "Option Agreement "), pursuant to which the Authority granted to the GSA an
option to purchase certain property located in Brooklyn Center, Minnesota (the "Property ") for
the purpose of constructing a federal office facility of up to approximately 173,572 square feet
and a related parking facility.
WHEREAS, pursuant to that certain Assignment of Option Agreement dated effective as
of June 19, 2009, the GSA assigned its -rights under the Option Agreement to Developer.
Developer exercised the option to purchase granted in the Option Agreement by delivering to the
Authority, inter alia, that certain Development Agreement dated October 16, 2009 (the
"Development Agreement "), which Development Agreement sets forth the terms and
conditions of the sale of real property from the Authority to the Developer and the development
of said property by Developer.
WHEREAS, the Development Agreement, as amended by that certain First Amendment
to Development Agreement dated effective as of February 22, 2010 ( "First Amendment "),
currently provides for a Closing Date of April 29, 2010, or such other date as the parties may
agree.
WHEREAS, Developer and PH LLC, a Nevada limited liability company, are under
contract for the assignment of Developer's right, title and interest in and to a lease with the GSA
and the Development Agreement to PH LLC ( "Purchase Agreement ").
WHEREAS, the closing under the Purchase Agreement shall occur prior to, or
simultaneously with, PH LLC's closing on the financing of the design and construction of the
Minimum Improvements and the Development Agreement.
WHEREAS, the terms of the Development Agreement provide that Developer's
obligation to close the transaction contemplated by the Development Agreement on the Closing
Date is conditioned on Developer having closed on financing for Developer's design and
construction of the Minimum Improvements.
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EDA RESOLUTION NO. 2010 -07
WHEREAS, the Authority has agreed to Developer's request to amend the Development
Agreement to permit Developer additional time to close the Purchase Agreement and PH LLC's
subsequent financing.
WHEREAS, the parties now desire to amend the terms of the Development Agreement
to reflect the above described agreement.
WHEREAS, the parties have agreed to amend the Development Agreement on the terms
and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions Capitalized terms not otherwise defined or amended in this
Amendment shall have the meaning(s) as set forth in the Development Agreement.
2. Closing Date Sections 3.9(a) of the Development Agreement is hereby deleted
and replaced with the following:
"(a) Time and Place Subject to the terms and conditions of this Agreement,
the Closing on the purchase and sale of the Development Property shall take place
on or before June 10, 2010, or such other date as the parties may mutually agree.
If Developer desires to close prior to June 10, 2010, Developer shall provide five
(5) business days written notice of such earlier Closing Date to the Authority.
The Closing shall take place at the Minneapolis offices of Briggs and Morgan,
P.A. or such other place which is mutually acceptable to the parties. The
Authority shall deliver possession of the Development Property to the Developer
on the Closing Date."
3. Commencement and Completion of Construction The first sentence of
Section 4.3 of the Development Agreement is hereby deleted and replaced with the following:
"Subject to the terms and conditions of this Agreement and to Unavoidable
Delays, the Developer will commence construction of the Minimum
Improvements no later than August 31, 2010, and will complete construction of
the Minimum Improvements no later than January 1, 2012."
4. No Further Modification of Agreements; Ratification Except to the extent
modified herein, all other terms and provisions of the Development Agreement, as previously
amended by the First Amendment, shall remain in full force and effect. Except to the extent
modified herein, the Development Agreement, as previously amended by the First Amendment,
is hereby ratified and affirmed in all respects by the Authority and Developer. If any conflict
exists between the terms and conditions of the Development Agreement or the First Amendment
and the terms and conditions of this Amendment, the terms and conditions of this Amendment
shall control
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EDA RESOLUTION NO. 2010 -07
5. Governing Law This Amendment shall be construed and enforced in
accordance with the laws of the State of Minnesota.
6. Counterparts This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signature page(s) follow.]
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EDA RESOLUTION NO. 2010 --07
IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as
of the day and year first above written.
Authority: Developer:
ECONOMIC DEVELOPMENT BARRY MINNEAPOLIS, LLC,
AUTHORITY OF BROOKLYN a Georgia limited liability company
CENTER,
a public body corporate and politic
organized and existing under the laws of the By:
State of Minnesota Name:
Its:
By:
Name:
Its:
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