HomeMy WebLinkAboutResolution No. 120-24 - EDA - Resolution - Third Amendment to Development Assistance Agreement and Declaration of Restrictive Covenants - Bryk Apts
EDA RESOLUTION NO.
CITY COUNCIL RESOLUTION NO.
Rochester Economic Development Authority
County of Olmsted, State of Minnesota
Authorizing the Execution of Third Amendment to Development Assistance
Agreement and a Third Amendment to Declaration of Restrictive Covenants
BE IT RESOLVED by the Board of Commissioners (the “Board”) of the Rochester
Economic Development Authority (the “EDA”), as follows:
Section 1. Recitals.
1.01. The EDA has heretofore approved a Development Assistance Agreement,
dated as of August 31, 2021, as previously amended (the “Original Agreement”), between
the EDA and Bryk Apartments Rochester LLC, a Minnesota limited liability company (the
“Developer”), stating the Developer’s responsibilities related to the construction of an
approximately 6-story, 180-unit affordable workforce residential apartment building to be
known as “Bryk on Broadway Apartments,” with approximately 100 underground parking
stalls and 40 surface level parking stalls, an exercise facility, board room, indoor and
outdoor community spaces, and approximately 7,261 square feet of commercial/retail
space (the “Project”);
1.02. In connection with the Project, the EDA and Developer entered into a
Declaration of Restrictive Covenants, dated August 31, 2021, recorded on September 1,
2021 as Document No. T155381 in the Office of the Registrar of Titles of Olmsted County,
Minnesota and as Document No. A1545345 in the Office of the County Recorder of
Olmsted County, Minnesota for (the “2021 Declaration”), as amended by that First
Amendment to Declaration of Restrictive Covenants, dated March 20, 2023, recorded on
January 25, 2024 as Document No. T160621 in the Office of the Registrar of Titles of
Olmsted County, Minnesota and as Document No. A1599498 in the Office of the County
Recorder of Olmsted County, Minnesota (the “First Amendment”) and as further amended
by that Second Amendment to Declaration of Restrictive Covenants, dated March 18,
2024, recorded on March 20, 2024 as Document No. T160916 in the Office of the
Registrar of Titles of Olmsted County, Minnesota and as Document No. A1601873 in the
Office of the County Recorder of Olmsted County, Minnesota (the “Second Amendment”
and, together with the 2021 Declaration and the First Amendment, the “Original
Declaration”), which set forth certain occupancy restrictions for the Project;
1.03. The Original Agreement and the Original Declaration required that 108 of
the residential units in the Project be occupied by persons or families whose income is
80% or less of area median income (the “80% Units”), and the Developer has had difficulty
finding renters who meet that income level; and
1.04. The Developer has requested that the EDA amend the Original Agreement
pursuant to a Third Amendment to Development Assistance Agreement (the “Amendment
to Agreement”) and amend the Original Declaration pursuant to a Third Amendment to
Declaration of Restrictive Covenants (the “Amendment to Declaration” and together with
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the Amendment to Agreement, the “Amendments”) to revise the affordability covenants
related to the 80% Units.
Section 2. Approval of the Amendments.
2.01. The Board hereby approves the Amendments in substantially the forms
presented to the Board, together with any related documents necessary in connection
therewith (collectively, the “Development Documents”) and hereby authorizes the
President and Secretary, to execute the same on behalf of the EDA, and to carry out, on
behalf of the EDA, the EDA’s rights and obligations thereunder, including without
limitation the authority to execute and record, at the direction of the City’s Community
Development Director, one or more Certificates of Extension as set forth in Exhibit D to
the Declaration further extending the date for conversion of the Flex Units back to 80%
Units (as those terms are defined in the Declaration) for up to 3 additional 12-month
periods. This authorization by the EDA shall expire if the Amendments are not executed
by the Developer within 90 days after the date hereof.
2.02. The approval hereby given to the Development Documents includes
approval of such additional details therein as may be necessary and appropriate and such
modifications thereof, deletions therefrom and additions thereto as may be necessary and
appropriate and approved by legal counsel to the EDA and by the officers authorized
herein to execute said documents prior to their execution, including without limitation
changes recommended by the Destination Medical Center Corporation (“DMCC”); and
said officers are hereby authorized to approve said changes on behalf of the EDA. The
execution of any instrument by the appropriate officers of the EDA herein authorized shall
be conclusive evidence of the approval of such document in accordance with the terms
hereof. In the event of absence or disability of the officers, any of the documents
authorized by this Resolution to be executed may be executed without further act or
authorization of the Board by any duly designated acting official, or by such other officer
or officers of the Board as, in the opinion of the City Attorney, may act in their behalf.
2.03. Upon execution and delivery of the Development Documents, the officers
and employees of the EDA are hereby authorized and directed to take or cause to be
taken such actions as may be necessary on behalf of the EDA to implement the
Development Documents.
2.04. The Board hereby determines that the execution and performance of the
Development Documents will help realize the public purposes of the Act.
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PASSED AND ADOPTED BY THE BOARD OF COMMISSIONERS OF THE
th
ROCHESTER ECONOMIC DEVELOPMENT AUTHORITY, THIS 17 DAY OF JUNE,
2024.
PRESIDENT OF SAID AUTHORITY
SECRETARY OF SAID AUTHORITY
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APPROVED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER,
MINNESOTA, THIS 17th DAY OF JUNE, 2024.
PRESIDENT OF SAID COMMON COUNCIL
ATTEST: _________________
CITY CLERK
APPROVED THIS ______ DAY OF JUNE, 2024.
MAYOR OF SAID CITY
(Seal of the City of
Rochester, Minnesota)
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