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UNITED STATES BANKRUPTCY COURT
District of Masachusetts
c. 11 Case No. SO-11664-HAL
BACK BAY RESTORATIONS COMPANY
(A Limited Partnership Debtor)
Plaintiff
v.
UNIVERSITY BANK NATIONAL
ASSOCIATION, formerly UNIVERSITY
BANK & TRUST COMPANY
Defendant
Adversary
Proceedings
No.
VERIFIED COMPLAINT TO DETERMINE EXTENT & VALIDITY OF ALLEGED HORTGAGE HELD BY UNIVERSITY BANK NATIONAL ASSOCIATION & WHETHER INTEREST CHARGED WAS OVER THE AGREED UPON RATE AND USURIOUS
Dated: June 25, 1990
THIS IS A REQUEST BY THE DEBTOR, BACK BAY RESTORATIONS COMPANY ("BBRC"), TO THE COURT:
A. to examine the documents and loan history of the Defendant University Bank National Association, formerly University Bank d Tryst Company ("university"), in the charges and payments iBade under the t«n»s of a certain loan nade to BBRC on March 16, 1986, and to deter«ine the true balance due to University; and
B. to void the fees paid by BBRC to University and order the paymenta applied first to interest at 3» over prime, and then to principal; and
C. to assess penalties tor illegal usurious and extortionate conduct.
FACTUAL BACKGROUND:
1. On March 5, 1986, Back BAY Restorations Company. ("BBRC") closed a loan with...city and the Attorney General. The BRA had involvd and threatened every party with which BBRC was dealing: banks, title company, lawyars, condo buyera and their mortgagees, tenants, the city government, the state goverment. Froa a position of *uch weakness, victorious »ettle»ent terra ware irposed by the BRA and agreed to by BBRC. The *etiraent Included accepting the only refinancing available, the potentially usurious loan offered by university Bank and Trust co. ("university").
27. The BRA terms for releasing and completing the condo conversion at 280 Commonwealth Avenue were for BBRC to make a $250,000 "punishment" payment, grant a $500,000 "punishment" mortgage to the BRA to accrue interest at 12» PA, to co»e due in May. 1991, to be offset against lot of the profits of a sale of the project; to stiffen and renew the c. 121A, S. 6A tax contract. In return, the BRA agreed to release the 280 Commonwealth Avenue condominiums froa 121A immediately, thus clearing title to the condos; and to reduce the tens of the 121A contract from 40 years to the legal limit of 15 years (of which 6 years would reaain).
28. In December, 1986. the BRA unilaterally established' the Westminster k'inard Affordability Fund, to provide to a low income housing project, the xioneys taken from BBRC7 described in this complaintTo date, no money has been disbursed to Westminster Willard by the BRA.
29. The BRA'S extra mortgage of $500,000^(10 accrue interest at l2» PA until May. 1951} was included vithin University's aortgage loan. University's high bank Interest of 3t over prime, when combined with its -profit *baring". -fees'', "penalties" and *'extension fees" brought the true interest return to the bank to 22.69» during its first year, for a loan which was to have charged interest at 3t over prit&e, at a time when prime was 7.51 and 8t.
30. Closing of the University loan wad ttade a condition of the settlement with the BRA and confimed by a letter from Stephen Coyle. firector of the BRA, dated March 5, 1986, attached hereto as EXHIBIT "E".
EXHIBIT 2:
Pages 1 - 9
BOSTON REDEVELOPMENT AUTHORITY
DECEMBER 11, 1986
BOARD MEETING SCHEDULED FOR 2:30 P.M.
Proposal of the Sale of Westminster Place and Willard Place
Board Members
Mr. Farrell, Chairman Mr. Coy Ie Mr. Donlan Mr. Fidherf/ Mr. Jones Mr. Simonian Mr. Walsh
Boston Redevelopment Authority, Boston City Hall, Ninth Floor, Thursday, December 11, 1986,
2:30 p.m.
O'BRIEN & LEVINE COURT REPORTING SERVICES. INC. COMMOWEALTH AVE. BOSTON. MA
PROCEEDINGS
MURPHY & DRISCOLL INVESTIGATIONS
To: File #
From: Joe Murphy
Date: November 8,1994
Re: B.R.A
On Wednesday, November 8, 1994,1 went to the offices of the Boston Redevelopment Authority, City Hall, Boston where I reviewed their Westminster Place and WiUard Place files. I ordered copies of the 6A application under Chapter 121 for both projects as well as the first amendment to this agreement which will be available on Friday, December 9. 1994.
Note that there is little in their files regarding circa 1968 in these files. All documents of interest to this investigation were copied. I found no reference to any use of the $200,000 fund established in 1986.
MURPHY & DRISCOLL
PRIVATE INVESTIGATIONS
72 HANCOCK STREET, SUITE 100 EVERETT, MA 02149
(617) 389-2766
CONFIDENTIAL - ATTORNEY WORK PRODUCT
To: File #94-199/Mandella
From: Joe Murphy
Date: November 29, 1994
Re: B.R.A.
On Tuesday, November 29, 1994,1 went to the offices of the Boston Redevelopment Authority and spoke with Susan Hannon. Ms. Hannon states that she could find neither the agreement nor application for the Willard or Westminster project and suggested that I write a Freedom of Information Request to the City of Boston Assessing Department.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
EDMUND T. SHAMSI,PLAINTIFF(S)
Vs.
V & M MANAGEMENT< Inc., DEFENDANT(S)
JUDGMENT
This action came on for trial before the Court, KING,J., presiding and the issues having
been duly iffiSWheard and findings having been duly rendered. it is ORDERED and ADJUDGED:
1. Judgment enters dismissing Shamsi's claim for specifir performance.
2. Declaratory judgment.enters; Edmund I. Shamsi breached the terms of the Purchase and Sale Agreement, dated March 7, 1986, with respect to the purchase of the development known as Mestminster-Willard apartments and for this reason V & H Management Inc. is entitled to the $50,000 deposit plus interest being held in an escrow account by the real estate broker handling this transaction.
Dated at Boston, Massachusetts, this day of
June 29,1988.
CLERK OF COURT
CIVIL ACTION 87-/5/5/4/7/
SHAMSl v. V t M MANAGEMENT
anticipated that BRA night not be willing to approve the transfer of the development to him. For this reason, the agreement provided that in the event Shamsi was rejected by BRA, Shamsi had 120 days from the date of the rejection to assign the agreement to another purchaser.
8. In fact, the process of obtaining BRA'S approval proved to be very lenghty. BRA approval was not obtained until July 24, 1987, some 16 months after the agreement was executed. I find that both V & M and Shansi acted reasonably in obtaining BRA and HUD approvals and none of the delay can be attributed to their lack of diligence. Shamsi did not file his application for approval of the transfer with the BRA until September 2, 1986. However, between March and September 1986, his representatives negotiated with the BRA concerning the transfer and BRA would not accept the application before September 2, 1986. There was no unreasonable delay on Shaasi's part in filing the actual form application for approval.
It is reasonable to infer from the facts that BRA was hostile to the proposed transfer of ownership to Shaasi and for this reason ixposed a number of onerous conditions. For example, BRA wanted Shamsi to: (l) transfer ownership of a rooming house he owned in the Kenmore Square section of Boston to a non-profit corporation at a very low price and to provide the non-profit corporation with significant
2) agree to place one of his buildings in Boston under the jurisdiction of the Boston Rent Equity Boardeven though that property was not subject to rent control; and (3) eliminate all code violations in any properties Shams! owned in the City of Boston. In August 1986, V & M filed an action against the BRA in the Boston Housing Court seeking an order requiring the BRA to make a decision with regard to the transfer. V & M was interested in concluding the transaction as quickly as possible because V t M was experiencing severe financial problems and the longer V t M owned the developaent, the less profit Mr. Mourad would realize from the sale.
9. Shamsi attempted to assist V t M with respect to its financial difficulties and acted reasonably in dealing with the BRA concerning the transfer application. Shams! loaned V 6 M a total of $350,000 in 1986, secured by aortgages. The loans were in default but Shams! took no steps to foreclose on the *ortgages. Although under the terms of the agreement executed on March 7, 1986, V 6 M was responsible for eliminating any code violations by the time of the closing, V & M was unable financially to correct all of the code violations. Shamsi agreed to place $488,000 into an escrow account at the time of the closing at the insistence of BRA. One hundred and twenty-five thousand dollars ($125,000) of this amount was to Purchase and Sale Agreeaent, dated March 7, 1986, with respect to the purchase of the development known as Westininster-Willard Apartments and for this reason, V&M Management Inc. is entitled to the $50,000 deposit plus interest being held in an escrow account by the real estate broker handling the transaction.
PATRICK J. KING ASSOCIATE JUSTICI
Date: June 29, 1988
cc: Glen Frank, Esq.
Paul L. Baccari, Esq. John Russell, Esq. William H. Carroll, Esq. Antonette S. Fernandez, Esq.
COMMONWEALTH OF MASSACHUSETTS Suffolk,
Superior Court
Civil Action No. 87-391
V & M MANAGEMENT, INC.,
Plaintiff,
v
CITY OF BOSTON, et al,
Defendants
DEPOSITION of EDMUND I. SHAMSI, a witness called by counsel for the Defendant, City of Boston, taken pursuant to Rule 30 of the Massachusetts Rules of Civil Procedure, before Daria Lochiatto, Shorthand Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the City of Boston Law Department, City Hall, Boston, Massachusetts, on Tuesday, May 26, 1987, commencing at 10:l6 a.m.
DORIS M. JONES i ASSOCIATES, INC
Professional Shorthand Reporters
59 Temple Place Boston, Massachusetts 02111
(617) 542-0039
A. I had a couple of meetings. I had a ft-meetings with Peter Drier* On the first one there was no one present*
Q. What did you discuss at that meeting?
MS. WOLFE: Objection as to form. You may answer the question, if you understand it*
A. Westminister Willard would be approved if I sell the Buckminister, which is a property I own at 645 Beacon Street, to a non-profit organization choosing of the City of Boston, and how he had discussed with the mayor. Mayor Ray Flynn the night before that if I do so, Westminister would be approved* And if I put Back Bay Manner under rent control regulations, for that same reason, Westminister Willard would be approved.
Q. What was your response to these conditions?
A. I didn't say no, I didn't say yes* I wanted to hear more.
Q. Did you have another meeting with Peter Drier?
A. Yes, I did.
Q. What was discussed at that meeting?
A. Primarily the purchase price of the
A.F.F.I.D.A.V.I.T
A, Glenn P. Frank, being duly sworn hereby depose and say:
1. I an an attorney duly licensed to practice law in the Coanonwealth of Massachusetts.
2. That I am a *eaber of the law fira of Blooa Rosenwald I. Witkin. P. A., 185 Devonshire Street, Boston, Massachusetts 02110. Our fira represents Edaund I. Shaasi, President of Shaair Construction Corporation.
3. The Shaair Construction Corporation has entered into a purchase and sale agreeaent with V & M Man.igeaent, Inc., and has agreed to purchase the preaises known as tt * Westainster-Willard Apartaents.
4. Upon inforaation and belief, V & M Manageaent, Inc., is a corporation orgaiised pursuant to Massachusetts General Laws Chapter 121 A and has been authorized by the Boston Redevelopment Authority to own and manage the property known as the WestBinster-Willard Apartaents as an "urb'an redevelopaent project" pursuant to said Chapter 121A.
5. Upon inforaation and belief, Massachusetts General Laws Chapter 121A requires the prior approval of the Boston Redevelopaent Authority before any sale or transfer of any interest in a Massachusetts General Laws Chapter 121A project can be consummated.
6. The above-described purchase and sale agreeoent between Shaair Construction Corporation and V & M Manageaent, Inc., for the WestBinster-Willard Apartments was executed on March 7, 1986, and thereafter a ounber of special aeetings were requested by our office and by the office of the Seller's attorney, Paul Garrity, wherein the transfer of the Chapter 121A statua could be discussed.
7. At several of the above-described aeetings, our office was inforaed by Peter Dreier, Assistant House Director of the Boston Redevelopaent Authority,that no approval froa the Boston Redevelopaent Authority (for the purchase of the project) would be forthcoBing unless Mr. Shaasi (President of Shaair Construction Corporation) agreed to certain cor...itions. Aaong these conditions were the following:
a. That Mr. Shaasi agree to sell the property known as the Buckainster Apartaents (645 Beacon Street, Boston, Massachusetts) to a non-profit organization who would *aintain the saae as a rooaiog house. I have been interned by Mr. Shaasi that not only were all offers froa non-profit corporations wholly inadequate but also that Mr. Shaasi is not the sole owner of said preaises and Remission froa independent third parties would be required to coaplete such a transaction.
b) The BRA also requires that Mr. Shaasi place the preaises known as Back Bay Manor Apartaents (75 St. Alphonsus Street, Boston, Massachusetts) under the control of the Boston Rent Equity Board. This Project, due to idiosyncrasies in the Boston Rent Equity Ordinance, is presently exeapt from rent control and is not aonitored by the Boaton Rent Equity Board.
c) It was also aade a prerequisite that all housing code violations on any and all properties owed in whole or in part by Mr. Shaasi be reaedied and/or corrected before an approval would be forthcoming.
8. At no time were we peraitted to file a foraal application for the transfer of the Chapter 121A atatua and we were inforaed that no application would be accapted for conaideration until the above-described conditiona were met.
Signed and sealed under the pains and penalty of perjury this 9th day of Septeaber,1986.
Glenn P. Frank
6016-04
AFFIDAVIT
I, Alphonse Mourad, being first duly sworn, hereby depose and say:
1. I am the president of v&M Management, Inc., the corporation which owns the 276 unit housing complex in Roxbury, Massachusetts formerly known as Westminster/Willard, now known as Mandela (hereafter referred to as the "Complex"). In March, 1986, I agreed to sell the Complex to Edmund Shamsi who signed a Purchase and Sale Agreement.
2. After execution of the Purchase and Sale Agreement in March, 1986, my attorneys and Mr. Shamsi'-s attorneys met with the BRA to commence the approval process.
3. Over four months passed with no action having been taken by the BRA. Being fed up with the continuing delay, my attorney threatened a suit if no action was forthcoming. Finally, after filing suit, we were granted a meeting with BRA Director Coyle on August 21, 1986.
4. Before the meeting, we learned from Shamsi's counsel that Peter Drier had informed Shamsi in August of 1986 that the sale would be approved only on the conditions that (1) Mr. Shamsi sell a property known as the "Buckminster Apart-ments" at 645 Beacon Street in Boston to a non-profit group (at a price which, as I understand it, was well below market value), and (2) that Mr. Shamsi place another build-ing known as the Back Bay Manor Apartments which was not subj'ect to rent control regulation under the control of the Boston Rent Equity Board.
5. Drier told Shamsi that he had spoken with Mayor Flynn, and that Mayor Flynn and the BRA would approve the transfer if Shamsi would agree to those *conditions" on two completely unrelated projects. During a deposition, Shamsi acknow-ledged that Councillor David Scondras, in whose district the Buckminster and Back Bay Manor are located, had told Shamsi that the Westminster transfer would go smoothly if he would agree to these conditions.
6. Under the guise of protecting the minority inhabitants of the Westminster/willard, the BRA was attempting to extort from Mr. Shamsi benefits for the largely non-minority tenants at Buckminster and Back Bay Manor.
7. At the August 21 meeting, I was present with my attorney, Director Coyle and an attorney from the BRA. The meeting took no more than 10 minutes. My attorney, Paul G. Garrity, told Mr. Coyle that the BRA'S actions were tanta-mount to extortion, and that he intended to bring this up at the upcoming court hearing. Coyle agreed, stating words to the effect "O.K., we screwed up, what do you want". Coyle asked Garrity to put the court hearing over until September 6, 1986, because there was a scheduled BRA Board
hearing on September 3, 1986, Coyle told me that if I brought 4 tenants from westminster/Willard to that hearing to acknowledge that the property was in good condition, he would approve the transfer and have the transfer signed and approved by Mayor Flynn by September 5, 1986 at 5:00 P.M.
The foregoing is true to the best of mv knowledge and belief.
Alphonse Mourad
THE COMMONWEALTH OF MASSACHUSETTS Suffolk, SS.
Then personally appeared before me, the above-named Alphonse Mourad, and duly acknowledged that the above act was his free act and deed.
Notary Public, My Commission Expires: 3/18/89
December 28, 1988
Mr. Leroy H. Keihn, President
Winter Hill Federal Savings Bank
342 Broadway
Somerville, MA 02145
RE: Mortgage of V & M Management-- Mandela Apartments (a/k/a Westminster Willard Apartments). located at Shawmut Avenue and Washington Street, Boston, Massachusetts
Dear Mr. Keihn:
I am writing to you on behalf of the Boston Redevelopment Authority (BRA) which is greatly concerned about the present financial condition and the future of Mandela Apartments. It is the ERA'S understanding that the mortgage you hold on the above property is presently overdue and that you are considering foreclosing thereon.
I wish to inform you that the BRA is presently reviewing and seriously considering a proposal submitted by V & M Management to sell the premises to a limited equity cooperative. At this point, the BRA is awaiting the owner's production of information relating to the property's condition and value. It is the BRA'S position to encourage a sale to a cooperative composed of the present tenant occupants. The BRA has clearly stated on a number of occasions that it would give its full support and assistance for the establishment of a tenant cooperative. In fact, the BRA has allocated $25,000 for the tenants to retain one or more consultants of their choice for the ouroose of establishina a workable tenant cooperative.
Needless to say, it is necessary for the owner's proposal to be carefully scrutinized to insure that it is financially viable and in the interests of the current tenants. The BRA has hired ex-perienced consultants in conversions of buildings such as these to limited equity cooperatives to assist it in this endeavor. The process of developing a feasible conversion plan is now well underway.
The BRA has committed itself to respond in January, 1989, to the proposal submitted by V & M. We would greatly appreciate it if you would withhold any action toward foreclosure until we have had the opportunity to respond to the proposal.
Ideally, it will be possible for the BRA to facilitate a sale of the premises to the tenants who live there.
Please be assured that all parties will work with deliberate speed and that we will keep you posted on subsequent developments. If you have any questions, do not hesitate to call Mr. Thomas O'Malley, BRA Director of Planning and Development in the South End, -who is coordinating this project at 722-4300, or Attorney Saul Schapiro, of Schapiro and Margolin, who is representing the BRA in this matter at 723-7440.
Thank you for your consideration in this matter.
Sincerely,
Stephen Coyle
cc: Councillor Bruce Boiling Mr. Alphonse Mourad Paul L. Baccari, Esq. Barry M-. Haight, Esq.
CLEARANCE AND SIGNATURE REQUEST
ADDRESSSEE: BRA Board & Stephen Coyle
ORIGINATOR: Robert Rush
SUBJECT: Westminister-Willard Tenant Organization
SUMMARY:
The Westminister-Willard Tenant Organization seeks a $25,000 grant from the Authority's Back Bay Restoration Settlement for Seed Money to create a Limited Equity Cooperative.
COMMENTS:
BOARD APPROVED
Minutes and Amendment Attached
ORIGINATOR'S APPROVAL: Robert Rush
CLEARED BY: Ricardo Millett(Dept. Head), Robert McNeil (Law), Joseph Noonan (Finance).
DIRECTOR'S STAFF: Bill Whitman & Chris Grace
WEISS, ANGOFF, COLTIN & KOSKI, P.C.
ATTORNEYS AT LAW T
HREE CENTER. PLAZA
BOSTON, MASSACHUSETTS 02108
September 26, 1990
Mr. Peter Dreier
Boston Redevelopment Authority
One City Hall Square
Boston, MA 02201
Dear Mr. Dreier:
This firm represents V&M Management, Inc., the owners of the Mandela apartments.
I understand that the Authority is maintaining that before it releases the $25,000.00 tenant assistance fund to Mandela Residents Cooperative Associates, Inc., the Authority insists upon having copies of V&M's financial statements for the past three years. V&M believes that the Authority has no,right under State or Federal law to demand access to these records.'' Nonetheless, in a spirit of cooperation, and without waiving any of its rights, V&M is prepared to release copies of the last three financial statements that it has provided to the United States Department of Housing and Urban Redevelopment, provided that the Authority commits in writing to releasing the $25,000.00 fund upon receipt of the financial statements.
I would be happy to discuss this with you. I certainly hope that we can resolve this matter promptly.
Sincerely yours,
WEISS, ANGOFF, COLTIN &KOSKI, P.C.
SIGNED: Robert M. Mendillo
SCHAPIRO & MARGOLIN
ATTORNEYS AT LAW
44 SCHOOL STREET BOSTON
MASSACHUSETTS 02108
Barry Haight, Esquire
Buckley, Haight, Muldoon,
Jubinville and Gilligan
480 Adams Street Milton, MA 02186
RE: Mandela Apartments (aka Westminster/Willard Housing Development)
Dear Mr. Haight:
This letter is written in response to various proposals submitted by your client, Mr. Mourad, to sell the above-referenced property. In your last two letters, most recently January 4, 1989, you have offered the . above-referenced property for sale to the Boston Redevelopment Authority (BRA). As we have plainly stated in the past, the BRA is not in a position itself to buy and manage this project. The BRA is not structured to own and operate rental property. Rather, the BRA is committed to facilitating the conversion of the property to a limited-equity cooperative or a comparable entity. The terms of this conversion must be such that the current residents are not displaced and the financial integrity of the project is protected.
To obtain the information essential to evaluating Mr. Mourad's offer, I transmitted a list of documents needed in my December 12, 1988, letter. Recently, Thomas O'Malley of the BRA and a representative of Mr. Mourad met and spoke on the telephone to follow up on my letter; Mr. O'Malley then forwarded information as requested. However, with the exception of an unaudited financial statement for 1987 (which was only provided on Friday, January 13, 1989), none of the documents requested in my December 12, 1988 letter have been received. This has left us in the unfortunate position of analyzing the project with sketchy information. As you must be aware, it is impossible for us to proceed
seriously in investigating matters relating to mortgage financing, insurance, tax abatement and subsidies, without the documentation requested.
Notwithstanding the foregoing, we have made serious effort to analyze the project's value. As you know, the BRA has retained a consultant, Emily Achtenberg, to assist in its evaluation. Based only on the information available, the following financial assumptions were used in our analysis:
1. The income stream from rental units consists of the 1989 contract rents supplied by HUD;
2. The vacancy rate is 9 percent. (This is based on information provided indicating that there are 24 vacant units. Our understanding is that most needed significant work to be placed back in service.);
3. The annual income provided from commercial leases is roughly $24,000;
4. The operating expenses are $4,400 per unit per year. This number is from the 1987 financial compilation produced by Ziner and Company. The formula is:Operating Expenses minus debt service divided by total number of units (276). 'This number still does not include an operating reserve;
5. A 1:1.1 debt service coverage ratio (considered low);
and
6. The mortgage interest rate will be 11 percent with a 30-year amortization.
These assumptions lead to the conclusion that the income stream generated by this approach could not alone support your revised offer price of $6,500,000. This is the case even before the costs of bringing the property up to code are taken into account, or the costs of establishing a replacement reserve to meet future needs. The analysis performed to date, of course, is subject to change with the provision of the information we have requested.
Additionally, the BRA is investigating possible sources of subsidy funds to augment the Zena Nemitz fund already committed to the project. The Nemitz fund at present consists of two hundred thousand dollars ($200,000) on hand, and a five hundred thousand dollar CS^nn nnm
Page Three Barry Haight, Esquire
judgment is that for the immediate future we can realistically count on only the $700,000 received or secured.
If your client desires the BRA to further pursue these matters and to continue to consider his offer, the information previously requested in my December 12, 1988, must be provided without further delay. Additionally, in order for us to properly inspect the properties, your client's written permission allowing an engineering/-structural analysis is required. We would need access to as many roofs, basements, utility plants, commercial spaces and apartments as maybe deemed necessary by our consultants. ' A memorandum is being prepared to the BRA. board of directors to pay for this analysis. Also, to investigate the possibility of gaining HUD approval for the extension of the Section 8 contracts to cover a 15-year period, your client's cooperation is necessary.
We look forward to assisting in establishing a limited equity cooperative or comparable entity on behalf of the current tenants. We hope, however, that false expectations are not being built, as the tenants have already experienced enough uncertainty through the last couple of years. I think it is therefore encumbent on me to state unequivocally for the record that we are not satisfied with your client's actions to date. Specifically, Mr. Mourad has repeatedly stated his wish to sell the property as soon as possible, while his representatives have failed to provide information necessary and customary to evaluating the value of the project. Meanwhile, we have entered negotiations, intervened with the utility companies to prevent shutoffs, and called the project's mortgage lender to forestall foreclosure. We have also hired a consultant specializing in tenant cooperatives, met with Mr. Mourad's representatives, and proposed to pay for necessary engineering and structural analyses. It is time for us all to cooperate in structuring a transaction which benefits the tenants.
We look forward to your response to this letter.
Sincerely,
Saul A. Schapiro
Exh."D"
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT HOUSING COURT DEPARTMENT
CITY OF BOSTON DIVISION / DOCKET #: CA 21269
V & M MANAGEMENT. INC. Plaintiff
VS.
BOSTON REDEVELOPMENT AUTHORITY ET AL Defendants
AFFIDAVIT OF BARRY M HAIGHT. ESQ.
1. My name is Barry M Haight. I am an attorney admitted to the Bar in Massachusetts.
2. I have represented V & M Management. Inc. in two cases.
3. V & M Management. Inc. Y. City of Boston ef al, Docket #87.391 in the Suffolk Superior Court and V & M Management. Inc. v. Boston Redevelopment Authority. Stephen Covie and Peter Drier. Docket 4121269 in the Boston Housing Court. The gravamen of the Complaints in both of these suits is the failure of the City of Boston to approve the sale of the Mandela Development originally scheduled for 1986 thereby forc'ng V & M Management to sustain tens of thousands of dollars a month in operating losses. The case against Coyle and Drier sought to impose personal liability on these men for their actions. V & M Management. Inc. is in a severe financial crisis due to a number of .-.factors, including the C. 121 A status of the project and the excessive amounts of repairs for vandalism caused by gangs of drug dealers and by drug users who invade the project from the outside. V & M Management. Inc. is still under severe financial pressure from these causes. The BRA has been informed of this fact over a period of many years through, inter alia. the above described law suits.
4. Further, the BRA has been informed for over a year that foreclosure proceedings "will imminently begin against V & M Management." See my letter to Mr. Schapiro, attorney for the BRA, dated January 6. 1988.
5. In July of 1988 V & M Management. Inc. proposed that the Mandela Development be sold to the tenants as a tenant owned limited equity cooperative. V & M Management, Inc. was told that the BRA would respond within 45 days. This proposal was followed up by a 7 page written proposal dated August 19. 1988 contingent upon agreement upon a price within 30 days and transfer of title within six months.
6. In the Summer of 1988 I received a number of telephone calls from Attorney Schapiro. Mr. Schapiro pressed me to convince V & M Management. Inc. to drop the claim for individual liability against Mr Coyle, who is Director of the BRA. and Mr. Drier, who is Assistant Director of the BRA. He stated to me that if the claims against Coyle and Drier as individuals were dropped the BRA would negotiate in good faith with respect to V & M Management. Inc.'s proposal to convert the Mandela Development into a tenant owned limited equity coop.
7. In reliance on these representations. I filed the requested dismissal on August 16. 1988. Pursuant to Mr. Schapiro's request, the dismissal was "with prejudice."
8. During the latter half of 1988 I had numerous conversations and with attorney Schapiro and representatives of the BRA in which they promised that the BRA would take action on the proposal to sell the Mandela Development to a tenant owned limited equity cooperative.
9. Because of typographical errors in the first proposal, a second written proposal for a tenant owned limited equity cooperative was sent on October 4. 1988. This second proposal was almost identical to the original proposal, except that certain typographical errors and one or two editorial changes were made.
10. No response to V & M Managements proposal was received by October 26. 1988 at which time I wrote to Mr. Schapiro again outlining over $1.400,000 in losses sustained by V & M Management, Inc. because of the delay in approving the sale of the project in 1986.
11. No response to V & M Management's proposal was received by November 15. 1988 at which time I wrote to attorney Schapiro, and advised him that the project was "perilously close to going under." I sent him another letter on November 21. 1988 after V & M Management had received a letter from the first mortgagee,the Winter Hill Savings Bank giving formal notice that foreclosure proceedings would be brought by January 1. 1989. The Bank also stated that:
It is understood negotiations are underway
to coop this particular project. Should
commitment in writing be received by Winter
Hill from the BRA, proceedings will be
postponed a reasonable time to complete
the sale.
12. On December 10, 1988 Mr. Paul L. Baccari also representing V & M Management, Inc. sent a letter to Mr. Schapiro setting a price for the project as requested by the BRA. at $7,500,000 and reminding him of the need for action on the proposal in order to stave off foreclosure. I wrote a similar letter on December 12. 1988 specifically informing the BRA that the Winter Hill Savings Bank had expressed an intent to foreclose. I indicated that the offer was for the project in an 'as is" condition and that the closing would have to take place within 120 days. or April 12. 1989. I also gave the BRA permission to communicate directly with the Winter Hill Savings Bank.
13. On December 16, 1988 Mr. Schapiro finally responded in writing to Mr Baccari that the BRA was seriously reviewing the proposal on December 28. 1988. He acknowledged that Mr. Baccari had indicated to him that a response was necessary by January 10. 1989. Mr. Schapiro included in his letter a demand for a tremendous amount of financial and other information concerning the Mandela Development. Further, the letter of December 16. 1988 referred to the necessity of 'architectural/engineering reports developed by the City or other independent sources evidencing the scope and costs of necessary rehabilitation."
14. By December 27. 1988 I was informed that no communication had been made to the Winter Hill Savings Bank by the BRA. I again wrote to Mr. Schapiro, informing him of this fact.
15. On December 28. 1988. three days before the deadline for foreclosure. Mr. Stephen Coyle finally wrote to the Winter Hill Savings Bank stating that it was "presently reviewing and seriously considering a proposal by V & M Management to sell the premises to a limited equity cooperative." Mr. Coyle went on to state that the BRA had committed itself to respond in January to the proposal.
16. On January 19. 1989 I received a letter from Mr. Schapiro in which the BRA rejected the proposal, indicated that the financial information requested from V & M Management had not been provided to him and in which he admitted that none of the architectural
/engineering work had even been attempted by the City. This letter is clearly an effort to blame V & M Management for the BRA'S delay in evaluating the limited equity cooperative concept.
17. While I do not question the good faith of attorney Saul Schapiro. he like any attorney took direction from his client. It is my present impression that BRA officials had determined early in the negotiations referred to herein that no sale to the Mandela tenants would be consumated if it benefited in any way, Alphonse Mourad or V & M Management, Inc. I further believe that BRA officials were concerned only with that portion of the lawsuit which potentially subjected them to personal liability and consequently directed attorney Schapiro to obtain dismissals (with prejudice) which named said officials personally. In return for the dismissal I was assured that the BRA would negotiate the sale of the Mandela Apartments in good faith.
18. The BRA did not. in my judgment, negotiate in good faith. The basis for this judgment is my experience of many years as an attorney involved in negotiations. Examples of the factors which give rise to this judgment are as follows: After the dismissals, it took letter after letter to get the BRA to inform the first mortgagee, the Winter Hill Savings Bank. that it was considering the limited equity tenant owned cooperative. There were meetings scheduled by the BRA in which we were required to wait for over an hour. only to have the meeting cancelled. The BRA. from August to December of 1988. simply did not move on the proposal despite the fact that it knew the dire financial condition of V & M Management.
SIGNED UNDER THE PENALTIES OF PERJURY.
May 10. 1989'
BARRY M. HAIGHT
July 1, 1988
Mr. Alphonse Mourad
Mourad Enterprises
815 Gallivan Boulevard
Dorchester, Mass.
Re: Mandela Apts
Dear Al:
Enclosed for your files are copies of Letters sent to Bob Rush at BRA and Tony Everitt at Puller. In both instances, I express my view that the proposed project plan is doable.
Our meeting today with Mr. Rush and Mr. Shapiro has been outlined to you by Paul. I must let you know that the tone of the meeting was two-fold, one relating to law and the other to finance and housing. In the first instance, the matter of the "personal suits" is the thorn in everyones side. This deal can be made and I am 80 to 90-@eraect positive of this position. However, the price to dp business is to drop these "suits" and in return get the BRA to stop/ the coding. As to the BRA suit itself, put it on hold for now to see/if we can work the deal. Clearly therfe are political reasons for the dropping of the suit in that the media would have a field day to find/that the Director signs the $200,000 annual contract while also being/relieved of the suit. Perception being what it is, this could be made into something.
The housing side of the issue was received in a positlva manner. Mr. Rush commented that he was pleased that actions had been initiated by you to see how a program could be developed. He also felt that the concept had merit and he suggested that we do his other 16,000 units for him. Not unlike your suggestion. The plan is for him to asset my letter, discuss it internally and then if acceptable on the surface to invite us to a work session. I have other ideas that make this deal very profitable politically to the BRA that I have not discussed. These are our aaces".
I would like to suggest that you take a real, long hard look at this situation. Seven numbers can come to you in the forseable future. A positive approach, manner and style is needed. Appoint Paul as your point man on "all" issues including legal. You have nothing to lose for the immediate future since we are in the appeal period and we can determine if the BRA interest is real. One thing is for sure, they will not back away from their current public posture and commitment to the tenants as it would be political suicide.
Let me know your thoughts and I shall respond to any BRA inquiry on your behalf with only your approval and knowledge. Should you wish me to follow other actions, please let me know.
Best Wishes,
Robert D. Carroll, President
cc: P. Baccari P. Lombard
COMMONWEALTH OF MASSACHUSETTS
BOSTON HOUSING COURT
CIVIL ACTION NUMBER 21269
V& M MANAGEMENT, INC.
Plaintiff
VS.
NOTICE OF DISMISSAL
THE BOSTON REDEVELOPMENT AUTHORITY STEPHEN COYLE AND PETER DRIER--Defendants
Now comes the above named Plaintiff and through its attorney and President, files the within Notice Of Dismissal as to the Defendants, Stephen Coyle and Peter Drier only; that said dismissal is with prejudice, each party to bear their own
respective costs.
The Plaintiff specifically reserves its right to proceed ,in this action against the Boston Redevelopment Authority.
Barry M. Haight, Esquire Buckley, Haignt, Muldoon, Jubinville and Gilligan 480 Adams Street Milton, Massachusetts 02186
Alphonse Mourad
President, Director & clerk
V & M Management, Inc.
Dated: August 12, 1988
LAW OFFICES Of BUCKLEY, HAIGHT, MULDOON. JUDINVILLE ADAMS STREET MILTON. MASSACHUSETTS
December 28, 1988
Saul A. Schspiro, Esquire
Schapiro & Margolin
44 School Street Boston, MA 02108
RE: Westminster-Willard Development
Dear Saul:
As a follow up to my letters dated December 12, 1988 and December 27, 1988, I have been authorized by Mr. Mourad to communicate with you regarding one final offer in an attempt to resolve the Westminster-Willard situation. Presently, it is impossible to determine the financial condition of the development but, at best, it is bleak.
Mr. Mourad, in an effort to assist the efforts of Andrew Jones, co-founder of the Greater Roxbury Incorporation Project, in bringing about Black and Hispanic ownership within the City of Boston herein reduces his offer to sell the Westminster-Willard Development to the B.R.A. by $1,000,000.00.
Thus, Mr. Mourad agrees to sell the Westminsfcer-Willard Development to the B.R.A. for the net sum of $6,500,000.00 in an as is condition. This offer expires o.. January 11, 1989.
Very truly yours,
Barry M. Haight, Esquire
cc: Bruce C. Bolling
Boston City Council
Paul L. Baccari, Esquire
Stephen Coyle, Director BRA
Raymond L. Flynn, Mayor
CLERKS OFFICE
UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS - BOSTON
IN THE MATTER OF:
Case No: 96-10123
V & M MANAGEMENT, INC.
Boston, Massachusetts
April 1, 1996
Debtor
TRANSCRIPT OF EVIDENTIARY HEARING ON MOTION OF BOSTON REDEVELOPMENT AUTHORITY, THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF REVENUE, AND THE CITY OF BOSTON FOR APPOINTMENT OF A CHAPTER 11 TRUSTEE; AFFIDAVIT OF ARTHUR CHIPOURAS, KERRY LYNN EADIE, AND SAUL A. SCHAPIRO, ESQ. BEFORE THE HONORABLE CAROL J. KENNER, J.U.S.B.C.
APPEARANCES:
For Boston Redevelopment SAUL A. SCHAPIRO, ESQ. Authority; Rosenberg & Schapiro
44 School Street,
Suite 800
Boston, MA 02108
For the Debtor:
HARRY MURPHY, ESQ.
DONALD FARRELL, ESQ.
Hanify & King
One Federal Street
Boston, MA 02110
For Mass. DOR:
KENNETH GURGE, ESQ.
100 Cambridge Street
Boston, MA
Electronic Sound Recording Operator:
Mary L. Artesani
Proceedings Recorded by Electronic Sound Recording Transcript produced by Transcription Service
GCI TRANSCRIPTION AND RECORDING SERVICES 505 HAMILTON AVENUE Suite 107 LINWOOD, NEW JERSEY 08221 (609) 927-0299 FAX (609) 927-6420 1-800-471-0299
your decision, and in the tenants' concerns about that,whoever owns that project is subject to the identical restrictions in terms of the purposes of the project, the income that can come out, the tax payments, or whatever. The restrictions are no different for any party other than V&M as they are for V&M. And that's true whether the property is sold in the marketplace, and it's true whether or not there's a foreclosure on the property, so I just wanted the Court to be aware of that fact and the parties to be aware of that fact, that the nature of that project cannot change.
THE COURT: So you're saying in any -- you're
saying essentially the tenants are in a win-win situation because the property has to be maintained as a affordable housing?
MR. SCHAPIRO: It has to be maintained in that
capacity, exactly.
THE COURT: Well --
MR. MURPHY: Your Honor, I mean, I thought if he
had something additional, if we had some evidence as opposed to oral argument, that you would deal with that.
THE COURT: Mmhmm.
MR. MURPHY: I mean, if he wanted to put in a title
record to show or whatever, I mean, there's legal issues and there's factual issues.
BOSTON REDEVELOPMENT AUTHORITY
August 20, 1985
DELIVERED BY HAND
Paul L. Baccari, Esq. Cargill, Masterman & Culbert One Lewis Wharf Boston, Massachusetts
Re: Westminister and Willard 121A Projects South End Urban Renewal Area
Dear Mr. Baccari:
This is to acknowledge receipt of your letter dated August 15, 1985, wherein you requested a determination by the Boston Redevelopment Authority (the "Authority") whether the above-captioned projects, which were designated as what are commonly known as "121A projects" with forty year terms in 1968 pursuant to Chapter 121A of the Massachusetts General Laws and Chapter 652 of the Acts of 1960, both as then amended (respectively referred to as "Chapter 121A" and "Chapter 652"), may be sold and/or transferred to a new ownership entity without the prior approval of the Authority.
Based on the information provided in your letter, the answer is no. Such projects once designated may not be sold and/or trans-ferred without the prior approval of the Authority, as required by Section 13A of Chapter 652, as amended, and respectively Sections 11, third paragraph, and 18B of Chapter 121A, both as amended, to the extent the foregoing sections are not inconsistent with Section 13A. The text of Section 13A is attached for your review.
There is one exception to this general rule and that is in the case of a foreclosure under Section 16A of Chapter 121A. Upon foreclosure a successor in interest or purchaser has the option to be released from the "121A project" designation and accordingly the applicable benefits, restrictions and limitations within one year from its date of acquisition of the project. If the option is not exercised within this one year period and formally approved by the Authority, the project still remains subject to Chapter 121A
As stated in your letter, the Department of Housing and Urban Development ("HUD") foreclosed its mortgages on both projects !bmetime in 1972. Since no request to be released was submitted within the one year period by HUD or the entity to which it jonveyed the projects and approved by the Authority, the same |emain subject to Chapter 121A and the option to be released was waived.
In accordance with the foregoing review of the applicable statutory provisions, the conveyance to Shamir Construction Corporation, or
I'ts nominee, pursuant to the Purchase and Sale Agreement, dated bvember 5, 1984, would have required approval of the Authority rior to closing. Otherwise the transfer would be considered null and void. An application for amendments to the original report and Decision on both projects must be filed. Under ection 13A the Authority would review the applications to determine whether the proposed transferee had the ability to carry out the projects as originally approved, or if any changes herein would be acceptable. The Authority, in its discretion cased on the information presented, may or may not approve the transfer.
As you further stated in your letter, there was a substantial outstanding tax liability on both projects (in excess of 12,000,000), which was accumulated during the period from 1972 hrough 1981 when they were managed by HUD. The policy of the Authority is that an application to transfer a "121A project" Lyill not be considered unless and until any outstanding tax liability is resolved to the satisfaction of the City's Collector-Treasurer.
In conclusion, the sale and/or transfer of the Westminster and Willard "121A projects" without the prior approval of the Authority would be in violation of Section 13A and the Authority can and
would take appropriate legal action to have the same rescinded.
If you have any questions, do not hesitate to call me at 722-4300, ext. 336.
Sincerely,
Kevin J. Morrison (Assistant General Counsel
KJM/dIm (Attachment: A/S
cc: William Whitney Peter Dreier
GREATER BOSTON LEGAL SERVICES
68 ESSEX STREET
BOSTON MASSACHUSETTS 02111
October 22, 1986
Robert Farrell, Chairman
Boston Redevelopment Authority, (BRA)
1 City Hall Plaza, Room 914
Boston, Massachusetts 02201
Dear Mr. Farrell:
On behalf of our clients, the Westminster-Willard Tenants' Organization, a member of the Boston Affordable Housing Coalition, we formally request that the BRA Board vote to deny the Application of Edmund I. Shamsi for Consent to Transfer and Acquire a Project pursuant to M.G.L c. 121 A, Sections 11, 18B and 18C, and the Acts of 1960, Chapter 652, Section 13A, (as added by Section 3 of Chapter 859 of the Acts of 1965).
Our recommendation to the Board is based upon.several grounds. We are gravely concerned that the financing and rent structure proposed by Mr. Shamsi will not allow sufficient funds for operation and maintenance of the property. In addition, it is vital that a unit-by-unit inspection of the Westminster-Willard properties be completed before the Board takes any action on the 121 A transfer request. While both the seller and the buyer have submitted repair budgets, we are concerned that these amounts will be insufficient to correct outstanding code violations. Finally, Mr. Shamsi's prior performance as a Boston landlord raises serious doubts as to his ability to maintain units in accordance with the State Sanitary Code, and to abide by tenants' rights regulations under the Boston Rent Equity Ordinance.
Enclosed in support of this recommendation are the following documents:
1. Attachment "A"--Proposed Covenants;
reports from the entire development be evaluated by an architect to be hired to work on behalf of the tenants' organization, so that the total cost of deferred maintenance may be properly estimated.
While the above mentioned inspection reports may be representative of the types of code violations present at Westminster-WiIlard, they are no substitute for unit-by-unit inspections of the entire development. Such a review, combined with a cost estimate of repairs by the tenants' architect, will better enable the Board to evaluate the realistic costs of deferred maintenance.
THE SHAMSI RECORD
Mr. Shamsi's prior record as a landlord, particularly at Buckminster J and 75 St. Alphonsus, merits the Board's close scrutiny. Before you is a fife of ISD Complaint Forms-all from the Buckminster property at 645 j Beacon Street. [See Attachment "C".] We ask you to carefully review these | complaint forms. They reveal serious code violations -such as loss of hot water, roof leaks and rodent and insect infestation-both in individual i units as well as in the common areas. A number of these code violations * may have already been corrected by this date. What is important and fair ^ to glean from these records is the consistent pattern of code violations * I which exist at Buckminster. This pattern of violations calls into question
Mr. Shamsi's ability to maintain rental property in accordance with state jand municipal laws and regulations.
We also submit a number of affidavits from Buckminster tenants Vjwhich allege Mr. Shamsi's failure to correct code violations and to comply with regulations under the Boston Rent Equity Ordinance. [See Attachment D".]
THE RISK OF FORECLOSURE
One of the concerns expressed in connection with the BRA'S review of Air. Shamsi's application is that the HUD Section 8 Housing Assistance B'ayments Contract (hereinafter "Section 8 HAP Contract") could be unenforceable in the event that Mr. Shamsi's application is denied and one
the current mortgagees pursues foreclosure. This concern, while gitimate, is answered by the applicable HUD contract and statements of--
VICTOR ARONOW
Attornev-at-Law
P.O. Box 3436
Phoenix, Az. 85030
(602)829-1520
November 13, 1995
Al Mourad
V&M Management
Boston, Mass.
RE: Negotiation with City of Boston
Dear Al:
As you requested, I have reviewed my notes of my prior discussions with Marie Lee, Dean Papademetriou, Richard Cohen, and the conversations I had with Jim Dillon concerning his recent discussions with the Department of Revenue, as well as the 1975 amendments to C.121A, the March 15, 1987 letter from Attorney Vincent McCarthy to Mayor Flynn, and the Roxse Homes/BRA. litigation.
Before you undertake any negotiation with the City, you need to understand clearly what happened as a result of Judge White's decision and order of September 15, 1995. In that order, while she preliminarily enjoined Nicosia from proceeding with the foreclosure sale, she permitted him from completing publication and notice. Under Massachusetts law, if he can convince the federal court to lift the injunction, he can procees immediately with the foreclosure.
There are several legal effects from the pendency of this foreclosure:
First, as Mr.McCarthy's letter points out on page 6, and as the Roxse Homes case clearly states, you can legally transfer the property without the approval of the BRA under threat of foreclosure. Legally, where the only thing that presently separates V&M from foreclosure is the temporary ruling of the judge, this is a situation where you are under threat of a foreclosure. If Nicosia proceeds with the foreclosure, under the Roxse Homes decision, he also can convey the property without the approval of the BRA.
Second, under section 16A of C.121A, if Mario takes the property under foreclosure, or if you sell it to him directly under a threat of foreclosure, he or a third party purchaser can, within a year, request removal from c. 121A status from the BRA. The statute does not grant the BRA any discretion here, if the conditions are met, then the BRA must approve the termination of the C.121A designation.
Third, if the sale is concluded,the City loses all liens and abilities to collect the delinquent C.121A excises. As you recall from the memo I prepared for you a while back on this issue, C.121A excises are not treated like unpaid c.59 taxes for purposes of a foreclosure or bankruptcy. Under the tax statute, they are entitled to no priority. If Nicosia forecloses on his note, the City loses everything.
As you know, HUD presently has about $1.5 million in unexpended funds which rightfully belong to you. HUD has never denied either the existence of these funds, or the validity of your claim. As you also know, if these funds arte not expended by November, 1996, they will revert to the federal Treasury as an unexpended surplus. Since all the parties concerned with the tax issue are in federal court, if the matter cannot be resolved directly with the City through negotiation, I will come to Boston and we will set up a settlement conference as we did so successfully last time with the utilities, and let the judge impose a settlement.
However, it would certainly be better for you and the City to reach an amicable agreement outside of the court. Here is what I see as a settlement, based on the considerations I have outlined earlier:
1. Back taxes through the date of settlement to be resolved for $1.5 million;
2. V&M Management and the City will file a mutual request with the federal court to enter a mandamus order directing that HUD pay the $1.5 million over the the Department of Revenue to be transferred to the City;
3. V&M Management will execute a 6A agreement with the City that as long as the project is still under c. 121A, the combined amount of C.121A excise and c.59 taxes paid by the project every year will not exceed c. 59 taxes;
4. The City wilJ agree as part of the 6A agreement that the 1975 amendments to c. 121A apply to V&M Management;
5. V&M Management will agree, as part of the 6A agreement, that should the amount of C.121A excises and c. 59 taxes under the post 1975 definition of gross income fall below the amount of taxes which would have been due under c. 59, then V&M Management will pay the difference up to the c. 59 levels;
6. The City will provide V&M Management with an estimate of the taxes and excises due for each year, and V&M Management will arrange to have its bank pay that amount in monthly instalments directly from the HUD check to the Department of Revenue;
7. V&M Management will dismiss its litigation against the City, and will withdraw its pending proceeding before the Appellate Tax Board.
If you have any questions, please feel free to contact me. Thank you.
Sincerely,
Victor Aronow
CITY OF BOSTON * MASSACHUSETTS
OFFICE OF THE MAYOR THOMAS M. MENINO
April 3, 1996
TO THE CITY COUNCIL Dear Councillors:
Relative to Section 17F information request, passes by your Honorable Body on February 28. 1996 regarding the Boston Redevelopment Authority: please find the attached response.
Sincerely,
Thomas M. Menino Mayor of Boston
Exhibit "D"
Housing project for non project uses. while simultaneously failing to pay any C.121A exdse taxes (the outstanding amount being approximately $3.4 million), burdening the project wrth mortgage debt (in excess of $6 million), and generally failing to comply with the provisions of C.121A. (A more detailed description of each case follows.)
At an earlier point in the history of this project, when V&M was intending to sell the project to Shamsi, the BRA had offered, in the event of such a sale to Shamsi. to make available to the project some funds from an unrelated lawsuit involving Back Bay Restorations to ensure that the project remains affordable. That sale never took place and the funds were later reallocated to other activities involving affordable housing in thedty.
The BRA has been represented in most of the proceedings described above by Saul Schapiro. The fees are on a scale from paralegal to partner rates of $40.00 per hour for the former to $125.00 per hour for partner time. One hundred twenty-five ($125.00) dollars per hour is half of Mr. Schapiro's standard billing rate. The total amount of bills for the two cases brought against the BRA by V&M which will be described hereafter from 1988 through 1995. including expenses is $241,118.73. The total amount of bills for Mourad v. Dreier from 1992 to date. including expenses, is $76.469.95.
The BRA was represented in Bankruptcy Court relating to a petition filed by BBRC including the defense of an adversary proceeding and in a related, 1994. Norfolk Superior Courtcase by Saul Schapiro. The total amount of bills for the bankruptcy work including expenses, was $45,028.48. The total amount of bills for the Norfolk Superior Court case, including expenses, was $3,709.50.
There were also additional payments regarding Back Bay Restorations case to Attorney Alexander Kovel of approximately $49,000.00
SDIR/69.RPT 060595/B
MR. FARRELL: The meeting will come to order. This is a continuation of the public hearing we had on the proposal of the sale of Westminster Place and Willard Place, transfer of the 121A Project.
Previously, the Board had voted to opt--to direct our counsel-to prepare a favorable report and decision on this matter with certain conditions, which the staff has discussed with those who are concerned. The members of the Authority have received and, as I understand, have examined the report and decision and
the conditions set forth in that report and decision.
I would ask the Director if he would outline that report and decision and the conditions embodied therein for the benefit of the parties involved. And then, I will ask a couple of questions.
MR. COYLE: Mr. Chairman, members of the Board, the salient features of the agreement that is recommended for adoption is that the period of coverage would be till October 18th. the year 2008. which represents the initial forty year period of the 121A agreement. Secondly, all financing/subsequent refinancing would have to be approved by the Authority. Third, it would be maintained as a rental housing project till the year 2008. Fourth, it would be an obligation to continue the Section 8 subsidy and. furthermore, until the year 1996. And, furthermore, there is an affirmative obligation to seek and accept further available rent subsidies for ail of the dwelling units within the project upon the termination of Section 8.
Additionally, the partnership will agree to
place into escrow $488,000 to remedy existing and future code violations. Additionally, the partnership will provide the Authority with a letter of credit in the amount of $200,000, and restore it annually, to cover maintenance and operating deficiencies as they arise.
Additionally, all amounts due to the Department of
Revenue of the Commonwealth and the City will be paid before closing. Additionally, the Authority will establish a special fund, using the proceeds awarded to the Authority in a litigation brought by the Authority against Back Bay Restorations Company, and that fund will be dedicated to the purpose of providing affordable housing and/or, as it says on Page 5, including but not limited to expenditures for further rent subsidies in
the project. And, in the event no further rent subsidies are available from other sources, it could also be used for the acquisition of the project at that time as a cooperative by the tenants.
The bottom line is that if we look back to what we said at the outset of the process, Mr. Farrell, we said that we would try to, within the limits of the law, guarantee that there would be affordability; that there would be livability; that there would be some accountability. This agreement also requires, from the Buyer, that they present to the Authority a management plan developed hy a consultant that has been retained by the Buyer that will have as his purpose improving the relationship between the management and the tenant groups in the project.
Our goal, initially, was to make sure this project would be brought to code; that the Federal subsidies would be continued; ':hat there would be every effort made to continue those subsidies, including the dedication of the Authority's own funds in this instance. Presently, we have $200,000 on deposit in that fund. We believe the proceeds could mature to be a number in excess of $2,000,000. We have also sought that all other amounts owned the City be paid.
We think.after this is looked at, what we have
conditioned this report and decision and regulatory agreement with represents responsible action by the Authority to carry out its responsibilities under Chapter 121A.
MR. FARRELL: Thank you, Mr. Coyle.
I have in front of me a memo to the Board
from the Westminster/Wiliard Steering Committee in which they state they are opposed to the approval of the sale. And they state four grounds.
One, they would like to see a strong set of
regulations requiring the development be brought up to State Housing Code standards. That's provided for in this agreement. That State Housing Code, of course, is something beyond the jurisdiction of this Authority to enforce; and, obviously, the enforcement of that code
will be enforced by other agencies.
They would like to see a management agreement
between the owner, HUD/3RA, and the tenants. The
agreement does provide for a management agreement
involving the tenants.
Three, they want an assistance fund to be
established for the benefit of low and moderate income tenants. I believe that this agreement provides for even a little bit more than that. I don't know what else they have in mind.
And they also state that they want the agreement to state that it would be an unlawful practice
to coerce/restrain tenants in the exercise of their lawful civil rights. I believe that's what the law is anyway, and I don't think it has to be stated other than that's what the law is.
Does the Buyer understand what these conditions
are? And does the Buyer agree to the conditions that are set forth in this agreement?
BUYER: Yes, Mr. Chairman.
And, if I may, I would just like to reference
one thing that you had stated and Mr. Coy Ie had stated. On Page 4 of the report, Subparagraph D-6--
MR. FARRELL: Provides for' a management plan.
Is that what you're talking about?
BUYER: Yes, sir. We just want to confirm to
the Board what our understanding of that is, because we have had some discussion, and it is our understanding that paragraph would be complied with upon our furnishing to the Board a management plan prepared by our management agent regarding our communications with the tenants and our ongoing relationship with them. And that plan has already, I think, been started and work has been done. And that is our understanding of our obligations under Paragraph--Subparagraph 6, and that is our understanding of how you view it.
And just with that caveat, because we do not
want to be, certainly, in default of any provision, and that is how we would go forward on that basis.
MR. COYLE: The understanding is that you submit a plan acceptable to the Authority. BUYER: A'management plan, yes.
MR. FARRELL: A management plan.
BUYER: And we do note that you do have the
right to approve any of those plans as provided for, yes.
MR. FARRELL: Good.
MR. COYLE: Mr. Chairman, there are agreements and activities that are contemplated that follow from this agreement that also invol-.-e the Buyer and the City on the question of 6A payments, so there are a number of subsequent actions----
MR. FARRELL: As I understand all of the
requirements of the statute that we have to look to, i.e., taxes that have been paid, that this is a--the Buyer has the financial capacity to buy the project and has the capacity to maintain the project and keep it to code. The staff is satisfied--and I am, by the way--that those requirements have been complied with.
If there is nothing further, I will invite a
motion.
UNIDENTIFIED: Moved and second the motion. MR.
FARRELL: Moved and seconded that the
report and decision be adopted. All in favor say,
"Aye." Any opposed?
That's the motion. So ordered.
Thank you/ gentlemen. (Adjourned.)
EXHIBIT 3: