HomeMy WebLinkAbout2015 02-23 EDAPEDA MEETING
City of Brooklyn Center
February 23, 2015 AGENDA
Call to Order
—The FDA requests that attendees turn off cell phones and pagers during the meeting. A
copy of the full City Council packet, including EDA (Economic Development Authority),
is available to the public. The packet ring binder is located at the front of the Council
Chambers by the Secretary.
2.Roll Call
3.Approval of Agenda and Consent Agenda
—The following items are considered to be routine by the Economic Development
Authority (EDA) and will be enacted by one motion. There will be no separate
discussion of these items unless a Commissioner so requests, in which event the item will
be removed from the consent agenda and considered at the end of Commission
Consideration Items.
a. Approval of Minutes
1. February 9, 2015 - Regular Session
4.Commission Consideration Items
a. Resolution Approving a Third Amendment to Development Agreement, a Second
Amendment to Purchase Agreement, and Related Documents (Shingle Creek
Crossing Project)
Requested Commission Action:
—Motion to adopt resolution.
5.Adjournment
EDA Agenda Item No. 3a
MINUTES OF THE PROCEEDINGS OF THE
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BROOKLYN CENTER
IN THE COUNTY OF HENNEPIN AND THE
STATE OF MINNESOTA
REGULAR SESSION
FEBRUARY 9,2015
CITY HALL - COUNCIL CHAMBERS
1.CALL TO ORDER
The Brooklyn Center Economic Development Authority (EDA) met in Regular Session called to
order by President Tim Willson at 9:37 p.m.
2.ROLL CALL
President Tim Willson and Commissioners April Graves, Kris Lawrence-Anderson, Lin
Myszkowski, and Dan Ryan. Also present were Executive Director Curt Boganey, Assistant
City Manager/Director of Building and Community Standards Vickie Schleuning, City Attorney
Troy Gilchrist, and Brittney Berndt, TimeSaver Off Site Secretarial, Inc.
3.APPROVAL OF AGENDA AND CONSENT AGENDA
Commissioner Ryan moved and Commissioner Lawrence-Anderson seconded approval of the
Agenda and Consent Agenda, and the following item was approved:
3a. APPROVAL OF MINUTES
1. January 12, 2015 - Regular Session
Motion passed unanimously.
4.COMMISSION CONSIDERATION ITEMS
4a. RESOLUTION NO. 2015-2 OPTING NOT TO WAIVE TORT LIABILITY FOR
2015
Executive Director Curt Boganey introduced the item, discussed the history, and stated the
purpose of the proposed resolution.
Commissioner Myszkowski moved and Commissioner Graves seconded to adopt
RESOLUTION NO. 2015-2 Opting Not to Waive Tort Liability for 2015.
Motion passed unanimously.
02/09/15 -1- DRAFT
5. ADJOURNMENT
Commissioner Ryan moved and Commissioner Myszkowski seconded adjournment of the
Economic Development Authority meeting at 9:40 p.m.
Motion passed unanimously.
02/09/15 -2- DRAFT
EDA Agenda Item No. 4a
DATE: February 23, 2015
TO: Curt Boganey, City Manager
FROM: Gary Eitel, Director of Business & Development
SUBJECT: Resolution Approving a Third Amendment to Development Agreement, a Second
Amendment to Purchase Agreement, and Related Documents (Shingle Creek
Crossing Project)
Recommendation:
It is recommended that the Economic Development Authority consider approval/adoption of the
Resolution Approving a Third Amendment to Development Agreement, a Second Amendment to
Purchase Agreement, and Related Documents (Shingle Creek Crossing Project).
Background:
On May 23, 2011, the City Council approved the Planned Unit Development of Shingle Creek
Crossing, the Final Plat of Shingle Creek Crossing, and the EDA approved the Shingle Creek
Crossing Tax Increment Development Agreement.
The Development Agreement included the following components:
Identified the Tax Increment Assistance that would be available for the development of the
Shingle Creek Crossing PUD and included provisions for the completion of the following
minimum improvements by December 31, 2012:
1.The demolition of the existing Brookdale Mall, excluding the Sears department store and
the Food Court Building, the "reskinning" of the Food Court Building,
2.The partial day-lighting of Shingle Creek,
3.The construction by the Developer of the Phase I Streets and Streetscaping; and
4.The construction of the storm water detention and/or retention areas by the Developer on
the Development Property, all consistent with the PUD and any approved development
plans.
Addressed the conveyance of the EDA parcel (former Boulevard/Ground Round Restaurant Site)
and an incentive to the Developer should the Midas site be included in the Shingle Creek
Crossing PUD.
Addressed the completion of Additional Improvements that the Developer will construct (or, in
the case of the Food Court Building, renovate) and obtain certificate of occupancy permits for
not less than 239,000 sq. ft. of buildings on the Phase II Parcels within five years of the
execution of the agreement (May 23, 2016).
Article IX of the Development Agreement, Events of Default and Damages, addresses the
potential of a default and describes remedies. Section 9.4, identifies the following actions the
EDA could take in the event of a default by the developer:
1.Suspend performance under the Agreement and the TIF Note until it receives
assurances from the Developer, deemed adequate by the Authority, that the Developer
will cure its default and continue its performance under this Agreement.
2.Withhold the Certificate of Completion for the Minimum Improvements.
3.The Authority may cancel and terminate the Agreement and the TIF Note.
4.Take whatever action at law or in equity may appear necessary or desirable to the
Authority to collect any payments due under this Agreement or to enforce performance
and observance of any obligation, agreement, or covenant of the Authority under this
Agreement.
Provided for securities held by the EDA including the following:
1.The $1.4 M Forgivable Loan for the minimum improvements is secured by the EDA
holding a first mortgage on Lots 15 and 16, Block 1 Shingle Creek Crossing
(approximately 4 acres adjacent to the day-lighting of Shingle Creek).
2.The $1M Forgivable Loan for completion of 239,000 sq. ft. of business certificate of
occupancies is secured by a second mortgage on the 6.83 acre Kohl's lot.
3. The $2.3M TIF Pay-As-You-Go Note requires that the Developer substantially
completed the Minimum Improvements before it can be issued.
On October 8, 2012, the EDA adopted Resolution No. 2012-15, A Resolution Approving First
Amendment to the Purchase Agreement and First Amendment to the Development Agreement.
(Shingle Creek Crossing) which addressed the following:
1.The closing date for the EDA parcel was extended from June 30, 2016 until June 30,
2017.
2.The completion date for the reskinning of the Food Court Building was extended from
December 31, 2012 to September 30, 2013.
3. The legal description for Phase II parcels was corrected to include the Food Court
Building (Lot 2, Block 1, Shingle Creek Crossing).
On January 14, 2013, A Primary Certificate of Completion for the substantial completion of the
first phase minimum improvements, as amended, was issued and the mortgages for Lots 15 and
16, Block 1, Shingle Creek Crossing were released.
On October 14, 2013, the City Council adopted Resolution No. 2013-124, which approved a
PUD Amendment to the Shingle Creek Crossing Project that included the removal of the Food
Court Building and replaced it with ten (10) new individual retail store buildings consisting of
108,901 sq. ft. of new building area.
On March 24, 2014, the, the EDA adopted Resolution No. 2014-04, A Resolution Approving a
Second Amendment to Development Agreement (Shingle Creek Crossing), which provided the
following changes to the Minimum Improvements to be completed by the Developer and the
security for the Additional Improvements $1 M Forgivable Loan:
1.The deletion of the provisions of the agreement that obligate the Developer to "re-
skin" the Food Court Building and replacing them with the provision that the
Developer is obligated to demolish the Food Court Building and to construct the
improvements depicted on Exhibit M, on the Food Court Parcel, all in accordance
with the PUD, as amended as of October 14, 2013.
2.A schedule for the completion of the building area replacing the Food Court Building
that includes the developer proceeding with the demolition of the Food Court building
on or before May 1, 2014 and barring unavoidable delays, the construction of the
eastern portion of the building, (El, E2, E3, E4, and E5 as identified on Exhibit M),
consisting of 80,069 sq. ft. will be substantially completed no later than May 31, 2015
and the developer will cause the construction of the remaining portion of the Food
Court Work consisting of building Ni, N2, N3, Wl, and W2 as identified on Exhibit
M and the substantial completion of the Food Court Parking and Streetscaping no
later than June 28, 2016.
3. The release of the Second Mortgage on the Kohl's Parcel (Kohl's Parcel Mortgage)
being held as security for the $1 M Forgivable Loan based on the determination that
the EDA has adequate security for the performance of the Developer's obligation to
repay this Additional Improvements $1 M Forgivable Loan through suspending
performance under the TIF PAYG Note or canceling the TIF PAYG Note in the event
of a Developer's Default of the Development Agreement by not completing the Food
Court Work.
On June 9, 2014, the City Council adopted Resolution No. 2014-7 , a resolution approving PUD
Amendment No. 6 to the Shingle Creek Crossing Project which approved a revised layout for the
former Food Court Buildings 9 and 10 (Wi and W2); Buildings R & T along Xerxes Ave.; and
Building B with a drive thru lane for a Jimmy John restaurant.
Additionally, on June 9, 2014, the City Council adopted Resolution No. 2014-76, which
approved a revised site plan for Building 9 & 10 consistent with the PUD amendment and
included provisions for further consideration of screening should the developer not proceed with
the construction of 9 & 10 by October 1, 2015.
The Developer completed the demolition of the Food Court building during the month of June,
2014 and on July 16, 2014, building permits were issued for the construction of buildings 1 thru
8 (El thru E5 and Ni thru N3).
3
EDA ITEMMEMORANDUM3k'A (I) 1I I1II I
Third Amendment to the Development Agreement (Shingle Creek Crossing Project)
The developer, Shingle Creek LLC. (Gatlin Development) is in the process of refinancing the
Shingle Creek Crossing Project from a commercial construction loan, which was reported to
have an annual interest rate of 15% to a commercial mortgage that has an interest rate of 8%.
The Third Amendment to the Development Agreement. seeks to accomplish the following to
facilitate this refinancing:
1.To redefine the Food Court Work to mean the demolition of the Food Court Building, the
construction of buildings El, E2, E3, E4, ES, Ni, N2, and N3 (building 1-8) and construction
of food court parking and streets caping.
2.To extend the 5 year $1 M Forgivable Loan project completion date from June 28, 2016 to
December 31, 2018
3.To accept the status of the development and approve a partial forgiveness of the $1 M
Forgivable Loan in the amount of $780,000 (78%).
4.To adjust the terms of the $1 M Forgivable Loan to reflect an adjusted balance of $220,000
and the additional development of 52,280 sq.ft. to achieve total forgiveness.
5.To allow the developer to pledge the $2.3 M. TIF PAYG Note as collateral towards the new
mortgage.
6.Remove the potential suspension or termination of the TIF Note as a remedy in the event of
Default by the Developer
Second Amendment to the Purchase Agreement (Shingle Creek Crossing Project).
The developer is requesting that the FDA allow an extension of the closing date for their
acquisition of the Land (EDA parcel) from June 30, 2017 to no later than December 31, 2018.
Related Documents to the Development Agreement and Purchase Agreement (Shingle
Creek Crossing Project).
The Resolution includes the authorization to execute the following related documents:
7.An Amended and Restated Tax Increment Pay As You Go Note;
8.Consent by the EDA to a Collateral Assignment of the Amended Purchase Agreement
between the Developer and Lender;
9. Consent by the EDA to a Collateral Assignment of the Development Agreement and Pledge
of TIF Note between the Developer and Lender.
Budget Issues:
There are no Tax Increment budget issues to consider given the following:
1.The developer is responsible for all legal costs associated with the Tax Increment Agreement.
2.The Phase I improvements have been substantially completed with a letter of credit to assure
their completion and the Phase II site related improvements include performance agreements
as part of their site plan approval.
4
3. The Tax Increment Plan for District No. 5 has identified that additional Tax Increment
Revenue will be generated and has provided the EDA with the necessary authorization for
other in-district and out-of-district expenditures.
Strategic Priorities:
Focused Redevelopment
Commissioner introduced the following resolution and moved its adoption:
EDA RESOLUTION NO.__________
RESOLUTION APPROVING A THIRD
AMENDMENT TO DEVELOPMENT AGREEMENT, A SECOND
AMENDMENT TO PURCHASE AGREEMENT, AND RELATED DOCUMENTS
(SHINGLE CREEK CROSSING PROJECT)
WHEREAS, Shingle Creek, LLC (the "Developer") has previously entered into a Development
Agreement by and between the EDA and the Developer dated June 17, 2011 (the "Original Development Agreement"),
as amended by a First Amendment to Development Agreement dated November 13, 2012 (the "First Amendment") and
a Second Amendment to Development Agreement dated April 8, 2014 (the "Second Amendment" and, together with the
Original Development Agreement and the First Amendment, the "Development Agreement"); and
WHEREAS, the EDA and the Developer have proposed to further amend the Development
Agreement to, among other things, acknowledge completion of sufficient additional improvements sufficient for
forgiveness of 78% of the Additional Improvements Forgivable Loan (as defined in the Development Agreement)
and extend the dates for completion of remaining required improvements (the "Development Agreement
Amendment"); and
WHEREAS, pursuant to the Development Agreement the EDA has issued the Tax Increment
Revenue Note (Shingle Creek Crossing Project) in the amount of $2,300,000 (the "TIF Note") and certain changes
in the Development Agreement Amendment have necessitated changes in the TIF Note (the "Amended and Restated
TIF Note"); and
WHEREAS, the Developer and the EDA have previously entered into a Purchase Agreement
dated June 28, 2011, as amended (the "Purchase Agreement"); and
WHEREAS, the Purchase Agreement requires closing on the acquisition of the Land (as defined
in the Purchase Agreement), no later than June 30, 2017 and the Developer has requested that EDA extend the
required closing date to no later than December 31, 2018; and
WHEREAS, the EDA and the Developer have proposed to amend the Purchase Agreement to
provide for the later closing date (the "Purchase Agreement Amendment" and, together with the Development
Agreement Amendment and the Amended and Restated TIF Note, the "Amendments"); and
WHEREAS, as a condition to providing a loan to refinance the Developer's construction loan, the
lender has required the Developer to (i) collaterally assign to the lender its rights under (i) the Purchase Agreement
pursuant to a Collateral Assignment of Agreement of Purchase and Sale dated on or after the date hereof between
the Developer and, the Lender with the consent of the EDA (the "Purchase Assignment") and (ii) collaterally assign
the Development Agreement and pledge the Amended and Restated TIF Note pursuant to an Assignment of
Development Agreement and Pledge of TIF Note dated on or after the date hereof between the Developer and the
Lender with the consent of the EDA (the "TIF Assignment" and, together with the Purchase Assignment, the
"Assignments"); and
NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the
City of Brooklyn Center as follows:
1. The Amendments and the Assignments as presented to the Board are hereby in all respects
approved, in substantially the forms submitted, together with any related documents necessary in connection therewith
(collectively, the "Amendment Documents") and the President and the Executive Director are hereby authorized and
directed to execute the Amendment Documents on behalf of the EDA and to carry out, on behalf of the EDA, the EDA's
obligations thereunder.
2. The approval hereby given to the Amendment 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; 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.
February 23, 2015
Date President
The motion for the adoption of the foregoing resolution was duly seconded by Commissioner
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
THIRD AMENDMENT TO
DEVELOPMENT AGREEMENT
By and Between
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN
CENTER, MINNESOTA
AND
SHINGLE CREEK, LLC
Dated as of: June 17, 2011
First Amendment Dated as of: November 13, 2012
Second Amendment Dated as of: April 8, 2014
Third Amendment Dated as of: February -, 2015
This document was drafted by:
Briggs and Morgan, P.A.
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Telephone: (612) 977-8400
6888100v4
THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
This Third Amendment to Development Agreement (the "Third Amendment") is made as
of the day of 2015, by and between the ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER, MINNESOTA, a body corporate and politic
organized and existing under the laws of the State of Minnesota (the "Authority"), SHINGLE
CREEK, LLC, a Delaware limited liability company (the "Developer").
WITNESSETH:
WHEREAS, the Authority and the Developer are parties to a Development Agreement
dated June 17, 2011 and recorded in the Office of the Hennepin County Registrar of Titles on
June 30, 2011 as Document No. T4868190 (the "Original Agreement"). The Original
Agreement initially encumbered Lots 2 through 17, Block 1, Lot 2, Block 2 and Outlot A,
SHINGLE CREEK CROSSING, Hennepin County, Minnesota according to the recorded plat
thereof, except that part formally described as Tract A, Registered Land Survey 1649, Hennepin
County, Minnesota (the "Developer Property"); and
WHEREAS, the Authority and the Developer amended the Original Agreement pursuant
to a First Amendment to Development Agreement dated November 13, 2012 and recorded in the
office of the Hennepin County Registrar of Titles on November 27, 2012 as Document No.
T5017704 (the "First Amendment"). On or about January 14th 2013 the Authority executed a
Primary Certificate of Completion which, among other things, confirmed the Developer's
completion of the "Minimum Improvements, as defined in the Original Agreement, other than
the so called "re-skinning" of the Food Court Building, and released the Developer Property
from the terms of the Original Agreement (the "Primary Certificate of Completion"). The
Authority and the Developer further amended the Original Agreement pursuant to a Second
Amendment to Development Agreement dated April 8, 2014 and recorded in the office of the
Hennepin County Registrar of Titles on April 15, 2014 as Document No. T05164285 (the
"Second Amendment"). The Original Agreement, as amended by the First Amendment, the
Primary Certificate of Completion and the Second Amendment is referred to herein as the
"Current Development Agreement." The term "Development Agreement," as used in the
Current Development Agreement and in this Third Amendment means the Current Development
Agreement as modified by this Third Amendment; and
WHEREAS, capitalized terms used in this Third Amendment and not otherwise defined
herein have the meanings given to them in the Current Development Agreement; and
WHEREAS, the Developer has asked the Authority to amend the Development
Agreement to:
A. Redefine the term "Food Court Work" to mean "the demolition of the Food Court
Building, the construction of the improvements labeled as buildings depicted as El, E2,
E3, E4, ES, Nl, N2 and N3 on Exhibit M attached to the Second Amendment and
reattached hereto for reference purposes and the construction of the Food Court Parking
and Streetscaping";
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B.Obligate the Developer to, on or before December 31, 2016, amend the site plan
that the City has approved with respect to the Developer's development of Lots 1, 2, 5
and 6, Block 1, Shingle Creek Crossing 5th Addition, Hennepin County, Minnesota and
construct a screening wall to screen the back of the buildings constructed on Lots 1 and 6,
Block 1, Shingle Creek Crossing 5th Addition, Hennepin County, Minnesota if Developer
has not completed the improvements labeled as buildings Wi and W2 on Exhibit M
attached to the Second Amendment and reattached hereto for reference purposes.
C.Confirm that the Developer has or is deemed to have, for purposes of Section
5.4(d) of the Current Development Agreement, sufficiently satisfied the requirements of
Sections 5.4(c) and 5.4(d) of the Current Development Agreement to entitle Developer to
a partial forgiveness of the Additional Improvements Forgivable Loan;
D.Evidence the Authority's forgiveness, as of the date of this Third Amendment, of
$780,000.00 of the Additional Improvements Forgivable Loan, together with all interest
that has accrued on the $780,000.00 pursuant to Section 5.4(b) of the Development
Agreement;
E.Evidence the Authority's and the Developer's agreement that, as of the date of
this Third Amendment, the outstanding principal amount of the Additional Improvements
Forgivable Loan is $220,000.00, which amount has accrued and will continue to accrue
interest as provided in Section 5.4(b) of the Development Agreement;
F.Extend the Additional Improvements Note Maturity date to December 31, 2018;
G.Delete Section 5.3(f) of the Development Agreement;
H.Amend Section 5.4(c) and Section 5.4(d) of the Current Development Agreement
to provide for the Authority's forgiveness of all or part of the remaining $220,000.00
principal balance of the Additional Improvements Forgivable Loan and interest thereon
based on Developer's construction of and acquisition of certificates of occupancy for
Additional Improvements on the Remaining Phase II Parcels, as defined below; and
I.Delete Section 9.4 of the Development Agreement and replace it with a revised
Section 9.4 which does not authorize the Authority to suspend performance under, cancel
or terminate the TIF Note as a remedy for a Developer Event of Default, but which does
authorize the Authority to reduce the outstanding principal balance due under the TIF
Note if Developer defaults in its obligation to pay the outstanding balance and interest
due on the Additional Improvements Forgivable Loan on the Additional Improvements
Note Maturity Date as provided for in Section 5.4(d) of the Development Agreement.
NOW, THEREFORE, in consideration of the mutual obligations of the parties hereto,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. The definition of "Food Court Work" which Section 4 of the Second Amendment
added to Section 1.1 of the Development Agreement is deleted in its entirety and replaced with
the following:
6888100v4
"Food Court Work" means the demolition of the Food Court Building; the construction
of the improvements labeled as buildings El, E2, E3, E4, E5, Ni, N2, and N3 on Exhibit
M attached to the Second Amendment Exhibit M attached to the Second Amendment and
reattached to- the Third Amendment for reference purposes; and the construction of the
Food Court Parking and Streetscape.
2.The definition of "Additional Improvements Note Maturity Date" set forth in
Section 1.1 of the Current Development Agreement is deleted in its entirety and replaced with
the following:
"Additional Improvements Note Maturity Date" means December 31, 2018.
3.A new definition of "Remaining Phase II Parcels" is hereby added to Section 1.1
of the Current Development Agreement, as follows;
"Remaining Phase II Parcels" means the portion of the Development Property described
on Exhibit N attached hereto and made a part hereof.
4.Section 5.3(f) of the Current Development Agreement is deleted in entirety and is
not replaced.
5.Section 5.4(c) of the Current Development Agreement is deleted in its entirety
and replaced with the following:
(c)Based on the portion of the Food Court Work and the square footage of the
Additional Improvements the Developer has constructed as of the date of this Third Amendment,
the Authority acknowledges and agrees that $780,000.00 of principal of the Additional
Improvements Forgivable Loan and all interest that has accrued on the $780,000.00 of principal is
deemed paid in full. As of the date hereof, the outstanding principal amount of the Additional
Improvements Forgivable Loan is $220,000.00 which amount has accrued and will, until paid or
deemed paid, continue to accrue interest as set forth in Section 5.4(b). If Developer (a) completes
the Food Court Work; (b) constructs not less than 52,580 square feet of buildings constituting
Additional Improvements on the Remaining Phase II Parcels in accordance with approved
Construction Plans, a site plan approved by the City and the PUD Agreement on or before the
Additional Improvements Note Maturity Date; and (c) no Event of Default exists under the
Development Agreement as of the date that Developer has satisfied requirements (a) and (b) above,
the remaining principal balance of the Additional Improvements Forgivable Loan and all interest
thereon shall be deemed to be paid in full.
6. Section 5.4(d) of the Current Development Agreement is deleted in its entirety
and replaced with the following:
(d)If, as of the Additional Improvements Note Maturity Date, Developer (a) has
completed the Food Court Work; (b) has constructed less than 52,580 square feet of buildings
constituting Additional Improvements on the Remaining Phase II Parcels in accordance with
approved Construction Plans, a site plan approved by the City and the PUD Agreement on or before
the Additional Improvements Note Maturity Date; and (c) no Event of Default exists under the
Development Agreement the principal of and interest on the Additional Improvements Forgivable
Loan shall be deemed paid on the Additional Improvements Note Maturity Date in an amount
6888100v4
determined by multiplying the principal amount of the Additional Improvements Forgivable Loan
by a fraction, the numerator of which is the square footage of Additional Improvements Developer
has constructed on the Remaining Phase II Parcels and the denominator of which is 52,850. The
Developer shall repay the remaining balance of the Additional Improvements Forgivable Note plus
accrued interest on the remaining balance of the Additional Improvements Forgivable Note on the
Additional Improvements Note Maturity Date
7.Section 9.4 of the Development Agreement is deleted in its entirety and replaced
with the following:
Section 9.4 Authority Remedies on Default. Whenever a Developer Event of Default
occurs, the Authority may take whatever action at law or in equity may appear necessary or
desirable to the Authority to enforce performance and observance of any obligation, agreement, or
covenant of the Developer under this Agreement; provided, however, the Authority not suspend
performance under, cancel, or rescind the TIF Note and may not, except as set forth in this Section
9.4, set off any amounts the Authority owes pursuant to the terms of the TIF Note against amounts
owed to the Authority as a result of a default under the terms of this Agreement. If the Developer
defaults in the performance of the Developer's obligation to complete the Food Court Work, the
Authority may, in addition to any other remedies available at law or in equity, withhold the Food
Court Certificate of Completion. If the Developer defaults in the performance of the Developer's
obligation to pay the principal and interest, if any, due under the Additional Improvements
Forgivable Loan on the Additional Improvements Note Maturity Date, the outstanding principal
balance due under the terms of the TIE Note as of the Additional Improvements Note Maturity Date
will be reduced by an amount equal to the amount of the principal and interest due to the Authority
from the Developer under the Additional Improvements Forgivable Loan on the Additional
Improvements Note Maturity Date (after the application of the formula set forth in Section 5.4(d) of
the Development Agreement).
8.Developer must, on or before December .31, 2016, either (a) substantially
complete the improvements labeled as buildings Wi and W2 on Exhibit M attached to the
Second Amendment and reattached to this Third Amendment for reference purposes; or (b)
amend the site plan that the City has approved with respect to the Developer's development of
Lots 1, 2, 5 and 6, Block 1, Shingle Creek Crossing 5th Addition, Hennepin County, Minnesota
and construct a screening wall to screen the back of the buildings constructed on Lots 1 and 6,
Block 1, Shingle Creek Crossing 5th Addition, Hennepin County, Minnesota.
9. Except as hereby amended, all other terms and conditions of the Current
Development Agreement remain in full force and effect.
6888100v4
IN WITNESS WHEREOF, the Authority has caused this Third Amendment to be duly
executed in its name and behalf and its seal to be hereunto duly affixed and the Developer has
caused this Agreement to be duly executed in its name and behalf on or as of the date first above
written.
ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER, MINNESOTA
By
President
By
Executive Director
STATE OF MINNESOTA )
)
COUNTY OF HENNEP1N )
The foregoing instrument was acknowledged before me on this day of ________
2015 by —and , the President and
Executive Director of the Economic Development Authority of the City of Brooklyn Center,
Minnesota, a body corporate and politic established pursuant to Minn. Stat. Chapter 469, on
behalf of the Authority.
Notary Public
Signature page to Third Amendment to Development Agreement
6888100v4
SHINGLE CREEK, LLC,
a Delaware limited liability company
By: Shingle Creek Crossing Holdings, LLC,
a Delaware limited liability company
Its: Sole Member
By: Shingle Creek MM, Inc., a Delaware
corporation
Its: Controlling Member
By:
Franklin C. Gatlin, III
Its: Chief Executive Officer
STATE OF FLORIDA )
) ss:
COUNTY OF BRO WARD )
This instrument was acknowledged before me on
by Franklin C. Gatlin, III, the Chief Executive Officer of Shingle Creek MM, Inc., a Delaware
corporation, the controlling member of Shingle Creek Crossing Holdings, LLC, a Delaware
limited liability, the sole member of Shingle Creek KSS, LLC, a Delaware limited liability
company.
6888100v4
Signature page to Third Amendment to Development Agreement
6888100v4
EXHIBIT M
Depiction of the Improvements to be Constructed on the Food COURT Parcel
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6888100v4
EXHIBIT N
Legal Description of the Remaining Phase II Parcels
Lots 14, and 15, Block 1, Shingle Creek Crossing, according to the recorded plat thereof,
Hennepin County, Minnesota;
Lot 1, Block 2, Shingle Creek Crossing, according to the recorded plat thereof, Hennepin
County, Minnesota;
Lot 2, Block 1, and Lots 1, 2, 3, Block 2, Shingle Creek Crossing 2nd Addition, according to the
recorded plat thereof, Hennepin County, Minnesota
Lots 2, 3, 4, 5, Block 1, Shingle Creek Crossing 5th Addition, according to the recorded plat
thereof, Hennepin County, Minnesota
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