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HomeMy WebLinkAbout2010-011 EDAR Commissioner Mark Yelich introduced the following resolution and moved its adoption: EDA RESOLUTION NO. 2010 -11 RESOLUTION AUTHORIZING ECONOMIC DEVELOPMENT AUTHORITY CONSENT TO ASSIGNMENT OF DEVELOPMENT AGREEMENT AND AUTHORITY TO CONVEY REDEVELOPMENT PROPERTY (FBI REGIONAL FIELD OFFICE PROJECT) 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 (as defined in the Development Agreement, the "Development Property ") to the 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 ( "Barry "); and WHEREAS, Barry 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 Barry previously amended the Development Agreement pursuant to that First Amendment to Development Agreement dated effective as of February 22, 2010 and that Second Amendment to Development Agreement dated effective as of April 27, 2010 to revise the timing of the Closing Date set forth in the Development Agreement to on or before 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); and WHEREAS, PH LLC, a Nevada limited liability company ( "PH "), and Barry entered into that certain Purchase Agreement dated as of December 21, 2009, as amended by that certain First Amendment to Purchase Agreement dated as of January 15, 2010, as amended by that certain Second Amendment to Purchase Agreement, dated March 29, 2010 (collectively, the "Purchase Agreement "), which Purchase Agreement will be assigned by PH to an entity to be formed as a Nevada limited liability company owned by affiliates of PH to be named either PH NARA, LLC or PH Minneapolis, LLC (such entity to be referred to herein as the "Developer "); and WHEREAS, pursuant to a certain Assignment and Assumption Agreement, in the form attached hereto, Barry desires to assign to Developer all of Barry's rights and obligations under the Development Agreement (the "Assignment ") and has asked the Authority to consent to the Assignment in accordance with Section 9.2 of the Development Agreement; and EDA RESOLUTION NO. 2010 -11 WHEREAS, Section 3.9(b)(iv) of the Development Agreement requires the Authority to provide a resolution of the Authority authorizing the Authority's conveyance of the Development Property to Developer (the "Conveyance ") and identifying the individuals authorized to execute the Deed (as defined in the Development Agreement) to be granted in connection with the Conveyance and any other documents required under the Development Agreement in connection with the Conveyance (together with the Deed, the "Closing Documents "); and 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 Assignment, including the assignment documents in substantially the form submitted, and the Executive Director is hereby authorized and directed to execute any document required to evidence the Authority's consent to the Assignment on behalf of the Authority. 2. The Board of Commissioners hereby approves the Conveyance, including the execution of the Closing Documents and any documents reasonably required in connection therewith, and the Executive Director is hereby authorized and directed to execute any document required to complete the Conveyance on behalf of the Authority. 3. The approval hereby given to the Assignment and the Conveyance (including the execution of any and all Closing Documents) includes approval of such additional details contained in the documents related thereto as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the Authority officials authorized by this resolution to execute documents required in connection with the Authority's consent to the Assignment and with the Conveyance. The execution of such documents by the appropriate officer or officers of the Authority shall be conclusive evidence of the approval of the Assignment and Conveyance (including the execution of any and all Closing Documents) in accordance with the terms hereof. May 24, 2010 Date President The motion for the adoption of the foregoing resolution was duly seconded by commissioner Dan Ryan 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 -11 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this " Assignment ") is made this _ day of , 2010, by and between Barry Minneapolis, LLC, a Georgia limited liability company (hereinafter referred to as " Assignor '), and PH [NARA/Minneapolis], LLC, a Nevada limited liability company (hereinafter referred to as " Assignee "). BACKGROUND STATEMENT WHEREAS, by Purchase Agreement dated as of December 21, 2009 (as any time amended, the " Purchase Agreement by and between Assignor and PH LLC, a Nevada limited liability company, Assignor agreed to sell to Assignee certain property comprising the Purchased Assets (as defined in the Purchase Agreement), all as more particularly described in the Purchase Agreement, including, without limitation, certain property relating to the real property legally described as Lot 1, Block 1, Richardson Park 3rd Addition, Hennepin County, Minnesota; and WHEREAS, the Purchase Agreement provides, among other things, that Assignor shall assign to Assignee certain assumed contracts, that Assignee shall assume all of the obligations of Assignor with respect to such assumed'contracts so assigned after the Closing Date, and that Assignor and Assignee shall enter into this Assignment, which is the "Assignment and Assumption Agreement" under (and as defined in) the Purchase Agreement. STATEMENT OF AGREEMENT NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Definitions Unless otherwise defined herein, capitalized terms used in this Assignment have the respective meanings assigned to them in the Purchase Agreement. 2. Assumed Contracts Assignor does hereby assign, convey, transfer and set over unto Assignee all of Assignor's right, title, interest and privilege in, to and under all contracts and agreements relating to the Project EDA RESOLUTION NO. 2010 -11 which are described on Exhibit A attached hereto and hereby made a part hereof (the " Assumed Contracts Assignee hereby accepts the Assumed Contracts and hereby expressly assumes all of Assignor's duties and obligations under or with respect thereto and arising or accruing after the Closing Date. 3. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ASSIGNOR AND ASSIGNEE EACH ACKNOWLEDGES AND AGREES THAT NO LIMITED PARTNER OF ASSIGNEE.OR ASSIGNOR, NOR ANY TRUSTEE, DIRECTOR, HOLDER OF ANY BENEFICIAL INTERESTS, MEMBER, MANAGER, SHAREHOLDER, OFFICER OR EMPLOYEE OF ASSIGNEE OR ASSIGNOR OR ANY AFFILIATE OF ASSIGNEE OR ASSIGNOR SHALL HAVE ANY PERSONAL LIABILITY, DIRECTLY OR INDIRECTLY, UNDER THIS ASSIGNMENT, AND EACH PARTY HERETO SHALL HAVE RECOURSE HEREUNDER ONLY AGAINST THE OTHER PARTY'S ASSETS. 4. Miscellaneous This Assignment and the obligations of the parties hereunder shall survive the Closing of the transaction referred to in the Purchase Agreement, subject to the limitations set forth in Section 8.5 of the Purchase Agreement, shall be binding upon and inure to the benefit of the parties hereto, their respective legal representatives, successors and assigns, shall be governed by and construed in accordance with the laws of the State of Minnesota applicable to agreements made and to be wholly performed within said State, and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. Except as specifically provided in this Section 4, this Assignment is not intended to, and shall not, create any rights in any person or entity whomsoever except Assignor, Assignee, and the Economic Development Authority of Brooklyn Center, a public body corporate and politic organized and existing under the laws of the State of Minnesota, whom Assignor and Assignee expressly agree is an intended third -party beneficiary hereof. 5. Counterparts This Assignment may be executed in one or more counterparts, which taken together shall constitute one and the same instrument. [SIGNATURES COMMENCE ON FOLLOWING PAGE] EDA RESOLUTION NO. 2010 -11 [SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT] IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the day and year first above written. ASSIGNOR Barry Minneapolis, LLC, a Georgia limited liability company By: Name: Its: ASSIGNEE PH [NARA/Minneapolis], LLC, a Nevada limited liability company By: PH [NARA/Minneapolis] MM, Inc., a Nevada corporation Its: Manager By: Name: Its: EDA RESOLUTION NO. 2010 -11 [NOTARY PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT] STATE OF ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2010, by as of Barry Minneapolis, LLC, a Georgia limited liability company. Notary Public STATE OF ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2010, by as of PH [NARA/Minneapolis] MM, Inc., a Nevada corporation, which is the manager of PH [NARA/Minneapolis], LLC, a Nevada limited liability company. Notary Public THIS INSTRUMENT WAS DRAFTED BY: EDA RESOLUTION NO. 2010 -11 EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT LIST OF ASSUMED CONTRACTS 1. Development Agreement dated as of October 16, 2009, as amended by that certain First Amendment to Development Agreement dated as of February 22, 2010, and that certain Second Amendment to Development Agreement dated as of , 2010, all of the foregoing 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, and Assignor.