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HomeMy WebLinkAbout2017 11-27 EDAP. . 0 EPA MEETING City of Brooklyn Center November 27, 2017 AGENDA Call to Order —The EDA 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 podium. 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. November 13, 2017 - Regular Session 4.Public Hearings —None 5.Commission Consideration Items a. Resolution Approving a Fifth Amendment to Development Agreement (Shingle Creek Crossing Project) 6. Adjournment 0 0 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 NOVEMBER 13, 2017 CITY HALL - COUNCIL CHAMBERS tiiiiti I)1Rl The Brooklyn Center Economic Development Authority (EDA) met in Regular Session called to order by President Tim Willson at 7:45 p.m. President Tim Willson and Commissioners Marquita Butler, April Graves, and Dan Ryan. Commissioner Kris Lawrence-Anderson was absent and unexcused. Also present were Executive Director Curt Boganey, Deputy City Manager Reggie Edwards, Director of Business and Development Gary Eitel, Interim Community Development Director Michael Ericson, Planner and Zoning Administrator Ginny McIntosh, Deputy Director of Building and Community Standards Jesse Anderson, City Attorney Troy Gilchrist, and Carla Wirth, TimeSaver Off Site Secretarial, Inc. 3.APPROVAL OF AGENDA AND CONSENT AGENDA Commissioner Ryan moved and Commissioner Graves seconded to approve the Agenda and Consent Agenda, and the following item was approved: 3a. APPROVAL OF MINUTES 1. October 23, 2017 —Regular Session Motion passed unanimously. 4.COMMISSION CONSIDERATION ITEMS 4a. RESOLUTION NO. 201748 APPROVING PURCHASE AND REDEVELOPMENT AGREEMENT WITH CONVEYANCE OF CERTIAN PROPERTY LOCATED AT 5801 EWING AVENUE NORTH Director of Business and Development Gary Eitel introduced the item, discussed the background, and stated the purpose of the proposed resolution to approve the purchase and redevelopment agreement to convey property located at 5801 Ewing Avenue North. It was noted on October 23, 11/13/17 -1- DRAFT 2017, the EDA called for a Public Hearing to be held November 13, 2017. Notice was published in the official newspaper on November 2, 2017. Commissioner Ryan asked if approved, whether this would be the ninth or tenth property done through the Remove and Rebuild Program. Mr. Eitel stated this would be the eighth rebuild and commented on the success of this program in Brooklyn Center as the demand for single-family homes is high. Commissioner Ryan stated his support for this program that maintains the City's neighborhoods. Commissioner Ryan moved and Commissioner Graves seconded to open the Public Hearing. Motion passed unanimously. No one wished to address this item. Commissioner Butler moved and Commissioner Graves seconded to close the Public Hearing. Motion passed unanimously. Commissioner Graves moved and Commissioner Ryan seconded to adopt RESOLUTION NO. 2017-18 Approving Purchase and Redevelopment Agreement and Conveyance of Certain Property Located at 5801 Ewing Avenue North. Motion passed unanimously. 4b. RESOLUTION NO. 2017-19 APPROVING PURCHASE AGREEMENT AND CONVEYANCE OF APPROXIMATELY 2.5 ACRE PORTION OF LOT 1, BLOCK 1, NORTHBROOK CENTER 2ND ADDITION Director of Business and Development Gary Eitel introduced the item, discussed the history, and stated the purpose of the proposed resolution to approve the purchase agreement and conveyance of approximately 2.5-acre portion of Lot 1, Block 1, Northbrook Center 2nd Addition. It was noted on August 28, 2017, the EDA approved the execution of a Letter of Intent, which authorized the preparation of a Purchase Agreement and the scheduling of a Public Hearing. Notice was published in the official newspaper on November 2, 2017. Commissioner Ryan moved and Commissioner Butler seconded to open the Public Hearing. Motion passed unanimously. No one wished to address this item. Commissioner Ryan moved and Commissioner Butler seconded to close the Public Hearing. Motion passed unanimously. 11/13/17 -2- DRAFT Commissioner Ryan moved and Commissioner Butler seconded to adopt RESOLUTION NO. 2017-19 Approving Purchase Agreement and Conveyance of approximately 2.5-acre portion of Lot 1, Block 1, Northbrook Center 2nd Addition. Motion passed unanimously. ' IMOISI 1kA IihI I Commissioner Ryan moved and Commissioner Graves seconded adjournment of the Economic Development Authority meeting at 8:03 p.m. Motion passed unanimously. 11/13/17 -3- DRAFT 0 0 DATE: November 27, 2017 TO: Curt Boganey, City Manag FROM: Gary Eitel, Director of Business & Development SUBJECT: Resolution Approving a Fifth Amendment to Development Agreement (Shingle Creek Crossing Project) Recommendation: It is recommended that the Economic Development Authority consider approval/adoption of Resolution Approving a Fifth Amendment to Development Agreement (Shingle Creek Crossing Project). Background: On November 13, 2017, City Council/EDA Work Session included a discussion on the drafting and processing of a Fifth Amendment to the Shingle Creek Crossing Tax Increment Development Agreement which included the following components: The developer's assignment of its rights to purchase the EDA Parcel to Ridgecrest Investors LLC, (d/b/aJ Told Development). 2, The processing of Shingle Creek Crossing 6'h Addition, the replat of Lots 1, Block 2, Shingle Creek Crossing and Outlot A (EDA Parcel and the Common areas of Shingle Creek Crossing). 3.The extension of the Additional Improvement Note Maturity Date to complete the 239,000 sf of additional commercial development within Shingle Creek Crossing from December 31, 2018 to December 31, 2021. 4.Including the redevelopment of the Kohl's lot (Lot 2, Block 2, Shingle Creek Crossing) to the Phase II Parcels identified for the 239,000 sf. of Additional Improvements that will be constructed and obtain certificates of occupancy permits. 5. Clarifications regarding the placement of a transitional screening fence on Food Court Pad Sites 9 and 10 pending the future development of these two pad sites to complete the Food Court Improvements. The consensus of the EDA was a favorable response that the components of the Fifth Amendment were in keeping with the vision and planning for the redevelopment of the Shingle Creek Crossing Project. Attached for reference is a copy of the November 13, 2017 staff memorandum. Mission: Ensuring an attractive, clean, safe, inclusive community that enhances the quality of life for al/people and preserves the public trust Fifth Amendment to Shingle Creek Crossing Development Agreement The EDA's tax increment attorney, Jenny Boulton, Kennedy and Graven, has prepared the attached Resolution and Fifth Amendment to the Development Agreement. In addition to the components identified in the draft agreement presented at the November 13th work session, the following component relating to the EDA's obligation/payment of $300,000 to Shingle Creek Crossing LLC. for the land necessary to construct the required bio-infiltration basin (Storm Water Improvements): Paragraph 11. In order to induce the construction by HOM of the HOM Furniture Improvements on the "Kohl's Parcel," as defined in the Original Development Agreement, the Authority has entered into a TIF Development Agreement, dated December -, 2017, pursuant to which the Authority has agreed to pay $300,000 to the Developer on behalf of HOM in exchange for the conveyance to HOM of a portion of the Kohl's Parcel, [depicted in Exhibit _J [legally described as: ,] which area will be subject to a drainage and utility easement [need correct description] (the "Storm Water Property"). Budget Issues: Tax Increment District No. 5 is a 17 year Renewal and Renovation District that is projected to receive $570,000 in tax increment revenue in 2017. This district is scheduled to receive sufficient tax increment through 2029 to repay the 2016 TIF 5 Bond Issue used to refinance the TIF 5 Pay-As-You-Go Note and $1.7 M of the inter-fund loan from TIF 2; the remaining balance of the $2.4 M TIF 2 inter-fund loan; and additional Out-of District Expenditures which would include ($209,000 for the western vehicular and pedestrian improvements and the Kohl's Storm Water Improvements $300,000 PAYG Note). Beginning in 2017, the 6 Year Statutory Rule of Tax Increment Financing requires that 80% of the annual tax increment generated from TIF 5 is limited to paying debt (bond issue and inter- fund loan) with 20% annually available for out of district expenditures, which includes up to 10% for documented administrative costs and other eligible out-of-district expenditures. 80% of the current annual increment provides approximately $456,000 for debt service and $114,000 for Out-of-District expenditures. It is projected that the additional funds generated for potential out of district expenditures will be in the range of $1,368,000. The TIF 5 Fund Balance projected at the end of 2017 is $742,838 of which approximately $249,000 has been identified by our financial consultant as funds eligible for out of district expenditures. The remaining $493,838 of the fund balance is a debt service reserve for the 2016 Bond Issue and the remaining $700,000 Inter-Fund Loan from TIF District No. 2. Mission: Ensuring an attractive, clean, safe, inclusive community that enhances the quality of lift for all people and preserves the public trust Additional development and opportunities for increased TIF revenue within the Shingle Creek Crossing Project include 4 retail pad sites (53,100 sf.) and 4 restaurant pad sites (20,800 sf.). Strategic Priorities: Targeted Redevelopment Mission: Ensuring an attractive, clean, safe, inclusive community that enhances the quality of life for all people and preserves the public trust Commissioner introduced the following resolution and moved its adoption: EDA RESOLUTION NO. APPROVING A FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT (SHINGLE CREEK CROSSING PROJECT) WHEREAS, Shingle Creek, LLC (the "Developer") has previously entered into a Development Agreement by and between the Economic Development Authority in and for the City of Brooklyn Center (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"), a Second Amendment to Development Agreement dated April 8, 2014 (the "Second Amendment"), a Third Amendment to Development Agreement dated March 10, 2015 (the "Third Amendment") and a Fourth Amendment to Development Agreement dated September 21, 2017 (the "Fourth Amendment" and, together with the Original Development Agreement, the First Amendment, the Second Amendment, and the Fourth Amendment the "Development Agreement"); and WHEREAS, the EDA and the Developer have proposed to further amend the Development Agreement to, among other things, provide that the construction of the HOM Furniture Improvements (as defined in the Development Agreement) will be credited towards the remaining 52,280 square feet of buildings constituting the Additional Improvements, clarify that the construction of the TOLD Improvements (as defined in the Development Agreement) will be credited towards the remaining 52,280 square feet of buildings constituting the Additional Improvements, extend the Additional Improvements Note Maturity Date, and amend the definition of the Lot 2 and Lot 5 Work to provide for the construction of a fence rather than a wall; and NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of the Economic Development Authority in and for the City of Brooklyn Center as follows: 1.The Development Agreement Amendment as presented to the Board is hereby in all respects approved, in substantially the form submitted, together with any related documents necessary in connection therewith, including without limitation applicable deeds, restrictive covenants, consents to approved plat amendments and all other documents referenced in or attached to such agreements (collectively, the "Development Documents") and the President and the Executive Director are hereby authorized and directed to execute the Development 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 Development Documents includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by legal counsel to the EDA and by the officers authorized herein to execute said documents prior to their execution; 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 5115841 J5B BR291-304 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. November 27, 2017 Date President ATTEST: Secretary 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. 511584v1 JSBBR291-304 I PJAVA D1 101 WO I ONION M-W ki D1 ^Dkrj I D1 By and Among 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: March 10, 2015 Fourth Amendment Dated as of: September 21, 2017 Fifth Amendment Dated as of: December -, 2017 This document was drafted by: KENNEDY & GRAVEN, CHARTERED (JSB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, Minnesota 55402 Telephone: (612) 337-9300 5106650 JSB BR291-304 FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT This Fifth Amendment to Development Agreement (the "Fifth Amendment") is made as of the day of December, 2017, by and among 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"), and SHINGLE CREEK, LLC, a Delaware limited liability company (the "Developer"). WITNESSETH: WHEREAS, the Authority and the Developer heretofore entered into a Development Agreement dated June 17, 2011 and filed for record June 30, 2011, as Document Number T4868190, in the Office of the Hennepin County Registrar of Titles (the "Original Development Agreement"), as amended by a First Amendment to Development Agreement dated November 13, 2012 and filed for record November 27, 2012, as Document Number T5017704, in the Office of the Hennepin County Registrar of Titles (the "First Amendment"), as further amended by a Primary Certificate of Completion dated January 14, 2013 and filed for record June 18, 2013, as Document Number T05087258 in the Office of the Hennepin County Registrar of Titles (the "Primary Certificate of Completion"), as further amended by a Second Amendment to Development Agreement dated April 8, 2014, and filed for record April 15, 2014, as Document No. T05164285, in the Office of the Hennepin County Registrar of Titles (the "Second Amendment"), as further amended by a Third Amendment to Development Agreement dated March 10, 2015, and filed for record March 11, 2015, as Document No. T05239433, in the Office of the Hennepin County Registrar of Titles (the "Third Amendment"), and as further amended by a Fourth Amendment to Development Agreement dated September 21, 2017, and filed for record , 2017, as Document No. , in the Office of the Hennepin County Registrar of Titles (the "Fourth Amendment" and, together with the Original Development Agreement, the First Amendment, the Primary Certificate of Completion, the Second Amendment, the Third Amendment, and the Fourth Amendment, the "Current Development Agreement") in connection with the construction of certain Minimum Improvements (as defined therein) in the Authority's Tax Increment Financing District No. 5 (A Renewal and Renovation District); and WHEREAS, capitalized terms used in this Fifth Amendment and not otherwise defined herein have the meanings given to them in the Current Development Agreement; and WHEREAS, the term "Development Agreement," as used in the Current Development Agreement and in this Fifth Amendment means the Current Development Agreement as modified by this Fifth Amendment; and WHEREAS, Section 4.4(a) of the Development Agreement, as amended and restated in its entirety in Section 10 of the Second Amendment and as further modified by the amendment to the definition of the term "Food Court Work" in Section 1 of the Third Amendment, requires Developer to: demolish the Food Court Building; construct the buildings identified as Buildings El, E2, E3, E4 and ES on Exhibit M attached to the Second Amendment and reattached, for 5106650 JSB BR291304 reference, to the Third Amendment ("Exhibit M") no later than May 31, 2015; and to construct the buildings identified as Buildings Ni, N2 and N3 and the Food Court Parking and Streetscaping no later than June 28, 2016 (the "Food Court Work"); and WHEREAS, Developer has completed the Food Court Work in a manner deemed sufficient by the Authority to permit the execution of a certificate of completion, to be dated as of the date hereof and recorded immediately prior to the recording of this Fifth Amendment (the "Food Court Work Certificate of Completion"), and the release of Lots 1 and 6, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota according to the recorded plat thereof (the "Food Court Work Released Property") from the terms and conditions of the Current Development Agreement; and WHEREAS, it is the intention of the Authority and the Developer that this Fifth Amendment be recorded against and only against title to Lots 2, 3, 4, and 5, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota; and WHEREAS, pursuant to Section 1 of the Third Amendment, the construction of Buildings Wi and W2 as depicted on Exhibit M attached to the Third Amendment, was omitted from the definition of the "Food Court Work". However, Section 8 of the Third Amendment obligated Developer to, on or before December 31, 2016, either (a) substantially complete the improvements labeled as Buildings Wi and W2 on Exhibit M; 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 (the "Lot 2 and Lot 5 Work"); and WHEREAS, the Developer has not yet completed the Lot 2 and Lot 5 Work, and the Authority and the Developer have determined to further amend the Current Development Agreement with respect to the completion of the Lot 2 and Lot 5 Work, and to set forth the terms and conditions under which the Authority will issue a Certificate of Completion for the Lot 2 and Lot S Work; and WHEREAS, the Original Development Agreement, as amended by the First Amendment and the Second Amendment, provided that the Authority would forgive the principal of and interest on the Additional Improvements Forgivable Loan if Developer (i) completed the Food Court Work; and (ii) constructed and obtained certificates of occupancy for not less than 239,000 square feet of buildings constituting Additional Improvements on the Phase II Parcels (the square foot area of the buildings completed as a part of the Food Court Work to be included as a part of the Additional Improvements constructed on the Phase II Parcels); and WHEREAS, the Third Amendment amended the Original Agreement, as amended by the First Amendment and Second Amendment, to reflect that the Developer partially met its obligations to complete the Additional Improvements and forgave a portion of the Additional Improvements Forgivable Loan; and 2 5106650 JSB BR291-304 WHEREAS, the Fourth Amendment amended the Original Agreement, as amended by the First Amendment through the Third Amendment, to reflect (i) that the City has issued its General Obligation Tax Increment Refunding Bonds, Series 2016B (the "Bonds") to refund the TIF Note so that no further Tax Increments will be paid to the Developer pursuant to the TIF Note or the Development Agreement and (ii) that the Authority will provide additional assistance to the Developer in connection with the construction of the "Traffic Calming Improvements" (as defined in the Fourth Amendment); and WHEREAS, this Fifth Amendment sets forth the terms and conditions under which the Authority will issue a certificate of completion evidencing the completion of the Lot 2 and Lot 5 Work and the Traffic Calming Improvements and releasing Lots 2, 3, 4, and 5, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota from the terms of the Development Agreement; and WHEREAS, the Developer and Ridgecrest Investors LLC, a Minnesota limited liability company (d/b/a TOLD Development Company) ("TOLD Development") have executed and the Authority has consented to Developer's execution of an Agreement for Assignment and Assumption of Agreement of Purchase and Sale, dated November , 2017 pursuant to which the Developer has assigned all of its right, title and interest in and to the "Purchase Agreement," as defined in the Original Development Agreement to TOLD Development (the "Assignment of Purchase Agreement"); and WHEREAS, the Developer and KKIVIBA Brooklyn Center, LLC, a Minnesota limited liability company ("ibM") have executed a Purchase Agreement dated November -, 2017 pursuant to which Developer has agreed to sell the "Kohl's Parcel," as defined in the Original Development Agreement, to HOM (the "HIOM Purchase Agreement"); and WHEREAS, the Developer has requested that the Authority further amend the Current Development Agreement to (i) provide that the square footage of the "HOM Furniture Improvements", as defined herein, will be credited towards the remaining 52,280 square feet of buildings constituting the Additional Improvements; (ii) clarify that the square footage of the "TOLD Improvements", as defined herein, will be credited towards the remaining 52,280 square feet of buildings constituting the Additional Improvements; (iii) to extend the Additional Improvements Note Maturity Date; and (iv) redefine the "Lot 2 and Lot 5 Work"; and WHEREAS, the Authority and the Developer have determined that it is necessary to execute an amendment to the plat to correct an error in the legal description of the EDA Parcel which inadvertently includes an area which contains a monument sign and was not part of the property originally owned by the Authority and will, therefore, be removed from the EDA Parcel and added to Outlot A Shingle Creek Crossing 2nd Addition to form Outlot A, Shingle Creek Crossing 6th Addition; and WHEREAS, the Developer and the Authority have proposed to further amend the Original Agreement as provided herein; NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, the parties agree as follows: 3 5106650 JSB BR291-304 1. Pursuant to the Primary Certificate of Completion, the Authority has released the Released Property, as defined in the Primary Certificate of Completion, from the terms of the Current Development Agreement. Pursuant to the Food Court Work Certificate of Completion, the Authority has released the Food Court Released Property, as defined in the Food Court Work Certificate of Completion and herein, from the terms of the Current Development Agreement. As a result of the Primary Certificate of Completion and the Food Court Work Certificate of Completion the only property that remains subject to the Development Agreement is the property legally described as Lots 2, 3, 4, and 5, Block 1, SHINGLE CREEK CROSSING 5th ADDITION, Hennepin County, Minnesota. Therefore, the Authority and the Developer agree that this Fifth Amendment should be memorialized only on the Certificates of Title for Lots 2, 3, 4, and 5, Block 1, SHINGLE CREEK CROSSING 5th ADDITION, Hennepin County, Minnesota. 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, 2021. 3.The definition of the "EDA Parcel" in Section 1.1 of the Original Development Agreement is hereby deleted in its entirety and replaced with the following: "EDA Parcel" means Lot 1, Block 1, Shingle Creek Crossing 6th Addition, Hennepin County, Minnesota. 4.The following definitions are hereby added to Section 1.1 of the Development Agreement: "HOM Furniture Improvements" means the construction of any additional building square footage on the Kohl's Parcel in accordance with the PUD (not including the existing approximately 75,000 square foot substandard retail building on the Kohl's Parcel). "Lot 2 and Lot 5 Work" means the construction of an approximately 8 foot high wooden fence to screen the back of the buildings constructed on Lots 1 and 6, Block 1, Shingle Creek Crossing 5th Addition, Hennepin County, Minnesota prior to completion of the improvements labeled as Buildings Wi and W2 on Exhibit M. "TOLD Improvements" means the construction of any building square footage on the EDA Parcel in accordance with the PUD. 5.Section 4.4(a) of the Development Amendment, as amended by the Second Amendment, is amended and restated in its entirety to read as follows: (a) The Developer has commenced and completed the Minimum Improvements and the Food Court Work in accordance with the Development Agreement. In addition, the Developer must substantially complete the Lot 2 and Lot 5 Work and the Traffic Calming Improvements not later than June 30, 2018. 4 5106650 JSB BR291-304 6.Section 8 of the Third Amendment is deleted in its entirety. 7.A new clause (c) is added to Section 4.9 of the Development Amendment as follows: (c) The Developer shall notify the Authority when the Lot 2 and Lot 5 Work and the Traffic Calming Improvements have been completed. The Authority shall, within 14 days after such notification, inspect the Lot 2 and Lot 5 Work and the Traffic Calming Improvements to determine whether the Lot 2 and Lot 5 Work and the Traffic Calming Improvements have been completed in substantial conformity with the approved Construction Plans and the PUD. If the Authority determines that the Lot 2 and Lot 5 Work or the Traffic Calming Improvements have not been completed in substantial conformity with the approved Construction Plans and the PUD, the Authority shall, within 28 days after the Developer's notification of completion of construction, deliver a written statement to the Developer indicating in adequate detail the specific respects in which the Lot 2 and Lot 5 Work or the Traffic Calming Improvements has not been completed in substantial conformity with the approved Construction Plans and the PUD, and the Developer shall promptly remedy such deficiencies, or cause such deficiencies to be remedied. When the Authority determines that the Lot 2 and Lot 5 Work and the Traffic Calming Improvements have been completed in substantial conformity with the applicable approved Construction Plans and the PUD, as amended, the Authority shall furnish to the Developer a certificate of completion in the form attached hereto as Exhibit B-3 (the "Final Certificate of Completion") certifying the completion of the Lot 2 and Lot 5 Work and the Traffic Calming Improvements. The Final Certificate of Completion shall conclusively satisfy and terminate the agreements and covenants of the Developer in this Agreement to construct the Lot 2 and Lot 5 Work and the Traffic Calming Improvements and shall release Lots 2, 3, 4, and 5, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota from the terms of the Development Agreement and shall confirm that with the release of Lots 2, 3, 4, and 5, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota from the terms of the Development Agreement all of the Development Property has been released from the terms of the Development Agreement. The issuance of the Final Certificate of Completion shall not be construed to relieve the Developer of any approvals required by any City Ordinances in connection with the construction, completion or occupancy of improvements on the Development Property nor shall it relieve the Developer of any other obligations under this Agreement, and following the execution and recording of the Final Certificate of Completion, the Development Agreement shall remain in full force and effect as a contract between the Authority and the Developer but shall not run with title to all or any part of the Development Property or be binding on the Developer's successors in title to all or any part of the Development Property. 8. Section 5.4(c) of the Current Development Agreement is amended and restated in its entirety to read as follows: (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 Fifth 5106650 JSB BR291-304 Amendment, the Authority acknowledges and agrees that $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, HOM, in the case of the HOM Furniture Improvements, and TOLD Development, in the case of the TOLD Improvements, (i) construct and obtain certificates of occupancy for not less than 52,580 square feet of buildings constituting Additional Improvements on the Remaining Phase II Parcels (or on Lot 2, Block 2, Shingle Creek Crossing, Hennepin County, Minnesota in the case of the HOM Furniture Improvements) in accordance with the approved Construction Plans, a site plan approved by the City and the PUD Agreement on or before the Additional Improvements Note Maturity Date, and (ii) no Event of Default exists hereunder, the principal of and interest on the Additional Improvements Forgivable Loan shall be deemed paid in full. 9. Section 5.4(d) of the Current Development Agreement is amended and restated in its entirety and replaced with the following: (d) If, as of the Additional Improvements Note Maturity Date, Developer, HOM, in the case of the HOM Furniture Improvements, and TOLD Development, in the case of the TOLD Improvements, have (i) constructed less than 52,280 square feet of buildings constituting Additional Improvements on the Remaining Phase II Parcels (or on Lot 2, Block 2, Shingle Creek Crossing, Hennepin County, Minnesota in the case of the HOM Furniture Improvements) in accordance with construction plans and a site plan approved by the City and the PUD Agreement on or before the Additional Improvements Note Maturity Date; and (ii) 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 determined by multiplying the principal amount of the Additional Improvements Forgivable Loan by a fraction, the numerator of which is the square footage of the Additional Improvements Developer, ibM, in the case of the HOM Furniture Improvements, and TOLD Development, in the case of the TOLD Improvements, have constructed on the Remaining Phase II Parcels or on Lot 2, Block 2, Shingle Creek Crossing, Hennepin County, Minnesota in the case of the HOM Furniture Improvements) 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. 10. The Developer and the EDA hereby consent to the re-platting of the EDA Parcel to reflect that a portion of the property which contains a monument sign and will be removed from the EDA Parcel and combined with added to Outlot A Shingle Creek Crossing 2nd Addition to form Outlot A, Shingle Creek Crossing 6th Addition and agrees to undertake all actions necessary to effectuate its consent and to execute and acknowledge the Plat of Shingle Creek Crossing 6th Addition. 6 5106650 JSB BR291-304 11.In order to induce the construction by HOM of the HOM Furniture Improvements on the "Kohl's Parcel," as defined in the Original Development Agreement, the Authority has entered into a TIF Development Agreement, dated December -' 2017, pursuant to which the Authority has agreed to pay $300,000 to the Developer on behalf of HOM in exchange for the conveyance to HUM of a portion of the Kohl's Parcel, [depicted in Exhibit ] [legally described as: ,] which area will be subject to a drainage and utility easement [need correct description] (the "Storm Water Property") in connection with HUM's purchase of the remainder of the Kohl's Parcel from the Developer in accordance with the HOM Purchase Agreement. The Developer agrees to sell the Storm Water Property to HOM upon receipt of $300,000 from the Authority and subject to the conditions set forth in the HOM Purchase Agreement. 12.Except as hereby amended, all other terms and conditions of the Current Development Agreement shall remain in full force and effect. 7 5106650 JSB BR291-304 IN WITNESS WHEREOF, the Authority has caused this Fifth 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 ) )ss COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me on this day of December, 2017 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 Fifth Amendment to Development Agreement 5-1 5106650 JSB BR291-304 SHINGLE CREEK, LLC, a Delaware limited liability company By: Its: STATE OF ) ss COUNTY OF The foregoing instrument was acknowledged before me on this day of December, 2017 by , the of Shingle Creek, LLC, a Delaware limited liability company on behalf of said limited liability company. Notary Public Signature page to Fifth Amendment to Development Agreement S-2 5106650 J5B BR291-304 1*4:iu u ii FINAL CERTIFICATE OF COMPLETION WHEREAS, the Economic Development Authority of Brooklyn Center, Minnesota (the "Authority"), a body corporate and politic subdivision of the State of Minnesota and Shingle Creek, LLC, a Delaware limited liability company (the "Developer") have entered into a Development Agreement dated June 17, 2011 and filed for record June 30, 2011, as Document Number T4868190, in the Office of the Hennepin County Registrar of Titles (the "Original Development Agreement"), as amended by a First Amendment to Development Agreement dated November 13, 2012 and filed for record November 27, 2012, as Document Number T5017704, in the Office of the Hennepin County Registrar of Titles (the "First Amendment"), as further amended by a Primary Certificate of Completion dated January 14, 2013 and filed for record June 18, 2013, as Document Number T05087258 in the Office of the Hennepin County Registrar of Titles (the "Primary Certificate of Completion"), as further amended by a Second Amendment to Development Agreement dated April 8, 2014, and filed for record April 15, 2014, as Document No. T05 164285, in the Office of the Hennepin County Registrar of Titles (the "Second Amendment"), as further amended by a Third Amendment to Development Agreement dated March 10, 2015, and filed for record March 11, 2015, as Document No. T05239433, in the Office of the Hennepin County Registrar of Titles (the "Third Amendment"), as further amended by a Fourth Amendment to Development Agreement dated September 21, 2017, and filed for record , 2017, as Document No. , in the Office of the Hennepin County Registrar of Titles (the "Fourth Amendment") as further amended by a Food Court Certificate of Completion dated, 2017 and filed for record 2017, as Document Number in the Office of the Hennepin County Registrar of Titles (the "Food Court Certificate of Completion"), and as further amended by a Fifth Amendment to Development Agreement dated December ____ 2017, and filed for record , 2017, as Document No. in the Office of the Hennepin County Registrar of Titles (the "Fifth Amendment" and, together with the Original Development Agreement, the First Amendment, the Primary Certificate of Completion, the Second Amendment, the Third Amendment, the Fourth Amendment and the Food Court Work Certificate of Completion, the "Development Agreement") in connection with the construction of certain Minimum Improvements (as defined therein) in the Authority's Tax Increment Financing District No. 5 (A Renewal and Renovation District); and WHEREAS, the Development Agreement requires the Developer to construct the Lot 2 and Lot 5 Work and the Traffic Calming Improvements (as defined in the Development Agreement); WHEREAS, the Developer has completed the Lot 2 and Lot 5 Work and the Traffic Calming Improvements in a manner deemed sufficient by the Authority to permit the execution of this certification and the release of Lots 2, 3, 4 and 5, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota (the "Final Certificate of Completion Released Property") from the terms and conditions of the Development Agreement; B-21 5106650 JSB BR291-304 NOW, THEREFORE, this is to certify that the Developer has completed the Lot 2 and Lot 5 Work and the Traffic Calming Improvements in a manner deemed sufficient by the Authority. As a result, the Authority hereby releases the Final Certificate of Completion Released Property from the terms of the Development Agreement, and the Development Agreement shall no longer run with title to the Final Certificate of Completion Released Property or bind successors in title to the Final Certificate of Completion Released Property. It is the intention of the Authority and the Developer that after this Final Certificate of Completion be memorialized under the Certificates of Title to the Final Certificate of Completion Released Property, the Hennepin County Registrar of Titles will omit the memorial of the Development Agreement and the memorial of this Final Certificate of Completion from future certificates of title for all or any portion of the Final Certificate of Completion Released Property. The Authority and the Developer also acknowledge and agree that based on the Authority's prior execution and recording of the Primary Certificate of Completion and the Food Court Work Certificate of Completion and the Authority's execution and recording of this Final Certificate of Completion, all of the Development Property has now been released from the terms of the Development Agreement. Notwithstanding the Authority's release of the Final Certificate of Release Released Property from the terms and conditions of the Development Agreement, the covenants and restrictions set forth in the Development Agreement remain the personal obligation of the Developer and of any third party to whom the Developer expressly assigns the Developer's obligations under the Development Agreement in accordance with Section 8.2(b)(ii) of the Development Agreement. IN WITNESS WHEREOF, the Authority has caused this Final Certificate of Completion to be executed with by its duly authorized officer as of the day of 20 ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA By President By Executive Director B-2-2 5106650 JSB BR291-304 STATE OF MINNESOTA ) )ss COUNTY OF HENNEPfN ) The foregoing instrument was acknowledged before me this day of____________ 20, by , the President and , the Executive Director of the Economic Development Authority of Brooklyn Center, Minnesota, a municipal corporation and politic subdivision organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. Notary Public B-2-3 5106650 JSB BR291-304 EXHIBIT M DEPICTION OF THE IMPROVEMENTS TO BE CONSTRUCTED ON THE FOOD COURT PARCEL -i- II U. M I I _____III 1I •im I IOU _H - - 5106650 JSB BR291-304 oS :7,5 <^ V Oo \UTRE B UI LDI NG PAD .4 ' ! \ ' " \ NIP A ---- / / \ \ - k \\\\\ ' . "( / ' - \ \'::'.0- N \ \ \\\\\ ; \ N ' "s PA 9 )\\ I ' \\\\ \ 7\ \\\ '' FR FUTURE cOEc11OH \ ' % NUGDETAL \"\\\ , /72 2, IV PS DEVEL C SF GAIUN DM 1301 ovetRJACKSONVLLON) 379-4\\\ FR ' ,2 ____ 7' PA k'4 I M'A (I) 1I WJPYA 3 I7I!AtLI) 1 I I'11 (I)I DATE: November 13, 2017 TO: Curt Boganey, City Manager FROM: Gary Eitel, Director of Business & Development SUBJECT: Discussion on the Drafting of a Fifth Amendment to Development Agreement (Shingle Creek Crossing Project) Recommendation: It is recommended that the City Council consider providing direction to staff regarding the drafting and processing of a Fifth Amendment to the Shingle Creek Crossing Tax Increment Development Agreement. Background: The drafting of the Fifth Amendment to Shingle Creek Crossing Tax Increment Development Agreement includes the following components: 1.The developer's assignment of its rights to purchase the EDA Parcel to Ridgecrest Investors LLC, (dIbIaJ Told Development). • An application for site plan approval for the development of a bank on the EDA Parcel has been scheduled for the Planning Commission's November 30th meeting and tentatively scheduled for the Council's consideration on December ll. • The assignment and pending conveyance of the EDA Parcel also includes a Public Hearing by the EDA, which is also tentatively scheduled for December ll. 2.The processing of Shingle Creek Crossing 6 1h Addition, the replat of Lots 1, Block 2, Shingle Creek Crossing and Outlot A (EDA Parcel and the Common areas of Shingle Creek Crossing). 3.The extension of the Additional Improvement Note Maturity Date to complete the 239,000 sf of additional commercial development within Shingle Creek Crossing from December 31, 2018 to December 31, 2021. 4.Including the redevelopment of the Kohl's lot (Lot 2, Block 2, Shingle Creek Crossing) to the Phase II Parcels identified for the 239,000 sf. of Additional Improvements that will be constructed and obtain certificates of occupancy permits. 5. Clarifications regarding the placement of a transitional screening fence on Food Court Pad Sites 9 and 10 pending the future development of these two pad sites to complete the Food Court Improvements. Mission: Ensuring an attractive, clean, safe, inclusive community that enhances the quality of life for al/people and preserves tile public trust k'4 I 3k4 [I) &WI WJYA M 7I!iLS] 1 '41 3'iI (SkI Policy Issues: Does the FDA require any additional information in its future consideration of the Fifth Amendment to the Shingle Creek Crossing Development Agreement? Strategic Priorities: Targeted Redevelopment Mission: Ensuring an attractive, clean, Safe, inclusive community that enhances the quality of life for all people and preserves the public trust FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT By and Among 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: March 10, 2015 Fourth Amendment Dated as of: September 21, 2017 Fifth Amendment Dated as of: December -, 2017 This document was drafted by: KENNEDY & GRAVEN, CHARTERED (JSB) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, Minnesota 55402 Telephone: (612) 337-9300 5106650 J5B BR291-304 FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT This Fifth Amendment to Development Agreement (the "Fifth Amendment") is made as of the day of December, 2017, by and among 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"), and SHINGLE CREEK, LLC, a Delaware limited liability company (the "Developer"). WITNESSETH: WHEREAS, the Authority and the Developer heretofore entered into a Development Agreement dated June 17, 2011 and filed for record June 30, 2011, as Document Number T4868190, in the Office of the Hennepin County Registrar of Titles (the "Original Development Agreement"), as amended by a First Amendment to Development Agreement dated November 13, 2012 and filed for record November 27, 2012, as Document Number T5017704, in the Office of the Hennepin County Registrar of Titles (the "First Amendment"), as further amended by a Primary Certificate of Completion dated January 14, 2013 and filed for record June 18, 2013, as Document Number T05087258 in the Office of the Hennepin County Registrar of Titles (the "Primary Certificate of Completion"), as further amended by a Second Amendment to Development Agreement dated April 8, 2014, and filed for record April 15, 2014, as Document No. T05164285, in the Office of the Hennepin County Registrar of Titles (the "Second Amendment"), as further amended by a Third Amendment to Development Agreement dated March 10, 2015, and filed for record March 11, 2015, as Document No. T05239433, in the Office of the Hennepin County Registrar of Titles (the "Third Amendment"), and as further amended by a Fourth Amendment to Development Agreement dated September 21, 2017, and filed for record , 2017, as Document No. , in the Office of the Hennepin County Registrar of Titles (the "Fourth Amendment" and, together with the Original Development Agreement, the First Amendment, the Primary Certificate of Completion, the Second Amendment, the Third Amendment, and the Fourth Amendment, the "Current Development Agreement") in connection with the construction of certain Minimum Improvements (as defined therein) in the Authority's Tax Increment Financing District No. 5 (A Renewal and Renovation District); and WHEREAS, capitalized terms used in this Fifth Amendment and not otherwise defined herein have the meanings given to them in the Development Agreement; and WHEREAS, the term "Development Agreement," as used in the Current Development Agreement and in this Fifth Amendment means the Current Development Agreement as modified by this Fifth Amendment; and WHEREAS, Section 4.4(a) of the Development Agreement, as amended and restated in its entirety in Section 10 of the Second Amendment and as further modified by the amendment to the definition of the term "Food Court Work" in Section 1 of the Third Amendment, requires Developer to: demolish the Food Court Building; construct the buildings identified as Buildings El, E2, E3, E4 and ES on Exhibit M, attached to the Second Amendment and reattached, for 510665v1 JSB BR291-304 reference, to the Third Amendment ("Exhibit M") no later than May 31, 2015; to construct the buildings identified as Buildings Ni, N2 and N3 and the Food Court Parking and Streetscape no later than June 28, 2016 (the "Food Court Work"); and WHEREAS, Developer has completed the Food Court Work in a manner deemed sufficient by the Authority to permit the execution of a certificate of completion, to be dated as of the date hereof, and the release of Lots 1, 3, 4 and 6, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota according to the recorded plat thereof (the "Released Property") from the terms and conditions of the Development Agreement; and WHEREAS, pursuant to Section 1 of the Third Amendment, the construction of Buildings Wi and W2 as depicted on Exhibit M attached to the Third Amendment, was omitted from the definition of the "Food Court Work". However, Section 8 of the Third Amendment obligates Developer to, on or before December 31, 2016, either (a) substantially complete the improvements labeled as Buildings Wi and W2 on Exhibit M; 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 (the "Lot 2 and Lot 5 Work"). WHEREAS, the Developer has not yet completed the Lot 2 and Lot 5 Work, and the Authority and the Developer have determined to further amend the Current Development Agreement with respect to the completion of the Lot 2 and Lot 5 Work, and to set forth the terms and conditions under which the Authority will issue a Certificate of Completion for the Lot 2 and Lot 5 Work; and WHEREAS, it is the intention of the Authority and the Developer that this Fifth Amendment be recorded against and only against title to Lots 2 and 5, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota; and WHEREAS, the Original Development Agreement, as amended by the First Amendment and the Second Amendment, provided that the Authority would forgive the principal of and interest on the Additional Improvements Forgivable Loan if Developer (i) completed the Food Court Work; and (ii) constructed and obtained certificates of occupancy for not less than 239,000 square feet of buildings constituting Additional Improvements on the Phase II Parcels (the square foot area of the buildings completed as a part of the Food Court Work to be included as a part of the Additional Improvements constructed on the Phase II Parcels); WHEREAS, the Third Amendment amended the Original Agreement, as amended by the First Amendment and Second Amendment, to reflect that the Developer partially met its obligations to complete the Additional Improvements and forgave a portion of the Additional Improvements Forgivable Loan; WHEREAS, the Fourth Amendment amended the Original Agreement, as amended by the First Amendment through the Third Amendment, to reflect (i) that the City has issued its General Obligation Tax Increment Refunding Bonds, Series 2016B (the "Bonds") to refund the 2 5106650 JSB BR291-304 TIF Note so that no further Tax Increments will be paid to the Developer pursuant to the TIF Note or the Development Agreement and (ii) that the Authority will provide additional assistance to the Developer in connection with the construction of the Lot 2 and Lot 5 Fence and the Traffic Calming Improvements as those terms are defined in the Fourth Amendment; WHEREAS, the Developer has requested that the Authority further amend the Current Development Agreement to (i) provide that the construction of additional retail and office space on the Kohl's Parcel and on the EDA Parcel will be credited towards the remaining 52,280 square feet of buildings constituting the Additional Improvements and (ii) to extend the Additional Improvements Note Maturity Date; WHEREAS, the Developer has determined to assign its rights to purchase the EDA Parcel to Ridgecrest Investors LLC, a Minnesota limited liability company (dlb/a TOLD Development Company) ("TOLD Development") pursuant to an Agreement for Assignment and Assumption of Agreement of Purchase and Sale, dated November , 2017, between the Developer and TOLD Development (the "Assignment of Purchase Agreement"); and; and WHEREAS, the Authority has determined to replat the EDA Parcel to reflect that a portion of the property which contains a monument sign and will be removed from the EDA Parcel and added to [Outlot A Shingle Creek Crossing, and the Developer agrees to consent to and join the replatting of the EDA Parcel; and WHEREAS, the Developer and the Authority have proposed to further amend the Original Agreement as provided herein; NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, the parties agree as follows: 1.Pursuant to the Primary Certificate of Completion, the Authority has released the Released Property from the terms of the Current Development Agreement, and, as a result of that release, the only property that remains subject to the Current Development Agreement is the property legally describes as Lots 1 through 6, Block 1, SHINGLE CREEK CROSSING 5th ADDITION, Hennepin County, Minnesota. Therefore, the Authority and the Developer agree that this Fourth Amendment should be memorialized only on the Certificates of Title for Lots 1 through 6, Block 1, SHINGLE CREEK CROSSING 5th ADDITION, Hennepin County, Minnesota. 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, 2021. 3. The following definition is hereby added to Section 1.1 of the Development Agreement: "HOM Furniture Improvements" means the construction of an approximately 24,000 square foot addition to an existing approximately 75,000 square foot substandard retail building on the Kohl's Parcel and the construction of a 46,000 square foot retail and office building on the Kohl's Parcel and the EDA Parcel. 3 510665v1 JSB BR291-304 4.Section 4.4(a) of the Development Amendment, as amended by the Second Amendment, is amended and restated in its entirety to read as follows: (a) The Developer has commenced and completed the Minimum Improvements, the Food Court Work, the Lot 2 and Lot 5 Fence and the Traffic Calming Improvements in accordance with the Development Agreement and the Developer must substantially complete the improvements labeled as buildings Wi and W2 on Exhibit M attached to the Second Amendment and reattached to this Fifth Amendment for reference purposes (the "Lot 2 and Lot 5 Work") as soon as commercially reasonable. 5.Section 8 of the Third Amendment is deleted in its entirety. 6.A new clause (c) is added to Section 4.9 of the Development Amendment as follows: (c) The Developer shall notify the Authority when the Lot 2 and Lot 5 Work has been completed. The Authority shall, within 14 days after such notification, inspect the Lot 2 and Lot 5 Work to determine whether the Lot 2 and Lot 5 Work has been completed in substantial conformity with the approved Construction Plans and PUD. If the Authority determines that the Lot 2 and Lot 5 Work has not been completed in substantial conformity with the approved Construction Plans and the PUD, the Authority shall, within 28 days after the Developer's notification of completion of construction, deliver a written statement to the Developer indicating in adequate detail the specific respects in which the Lot 2 and Lot 5 Work has not been completed in substantial conformity with the approved Construction Plans and PUD, and the Developer shall promptly remedy such deficiencies, or cause such deficiencies to be remedied. If the Authority determines that the Lot 2 and Lot 5 Work has been completed in substantial conformity with the applicable approved Construction Plans and the PUD, as amended, the Authority shall furnish to the Developer a certificate of completion in the form attached hereto as Exhibit B-3 (the "Lot 2 and Lot 5 Work Certificate of Completion") certifying the completion of the Lot 2 and Lot 5 Work. The Lot 2 and Lot 5 Work Certificate of Completion issued for the Lot 2 and Lot 5 Work shall conclusively satisfy and terminate the agreements and covenants of the Developer in this Agreement to perform the Lot 2 and Lot 5 Work only. The issuance of the Lot 2 and Lot 5 Work Certificate of Completion shall not be construed to relieve the Developer of any approval required by any City department in connection with the construction, completion or occupancy of such improvements nor shall it relieve the Developer of any other obligations under this Agreement. 7.Section 5.4(c) of the Current Development Agreement is amended and restated in its entirety to read as follows: (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 Fifth Amendment, the Authority acknowledges and agrees that $780,000.00 of principal is deemed paid in full. As of the date hereof, the outstanding principal amount of the 4 510665v1 JSB BR291-304 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 (i) constructs and obtains certificates of occupancy for not less than 52,580 square feet of buildings constituting Additional Improvements on the Remaining Phase II Parcels in accordance with the approved Construction Plans, a site plan approved by the City and the PUD Agreement on or before the Additional Improvements Note Maturity Date, and (ii) no Event of Default exists hereunder, the principal of and interest on the Additional Improvements Forgivable Loan shall be deemed paid in full. The Authority agrees that the requirement for 52,280 square feet of buildings constituting Additional Improvements in clause (i) hereof will be reduced by the square footage of any HOM Furniture Improvements upon completion thereof. 8.Section 5.4(d) of the Current Development Agreement is amended and restated in its entirety and replaced with the following: (d) If, as of the Additional Improvements Note Maturity Date, Developer has (i) constructed less than 52,280 square feet of buildings constituting Additional Improvements on the Remaining Phase II Parcels (less the square footage of any HOM Furniture Improvements) 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 (ii) 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 determined by multiplying the principal amount of the Additional Improvements Forgivable Loan by a fraction, the numerator of which is the square footage of the Additional Improvements Developer has constructed on the Remaining Phase II Parcels and the denominator of which is 52,850 less the square footage of any HOM Furniture Improvements. 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. 9.The Developer hereby consents to the replatting of the EDA Parcel to reflect that a portion of the property which contains a monument sign and will be removed from the EDA Parcel and added to [Outlot A Shingle Creek Crossing] and agrees to undertake all actions necessary to effectuate its consent and join the replat. 10.The Developer agrees to assign its rights to purchase the EDA Parcel, as replatted, to TOLD Development pursuant to the Assignment of Purchase Agreement. 11.Except as hereby amended, all other terms and conditions of the Current Development Agreement shall remain in full force and effect. 5 5106650 J5B BR291-304 IN WITNESS WHEREOF, the Authority has caused this Fifth 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 ) ) ss: COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me on this day of December, 2017 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 Fifth Amendment to Development Agreement 5-1 5106650 JSB BR291-304 SHINGLE CREEK, LLC, a Delaware limited liability company By: Its: STATE OF ) ss: COUNTY OF The foregoing instrument was acknowledged before me on this day of December, 2017 by , the of Shingle Creek, LLC, a Delaware limited liability company on behalf of said limited liability company. Notary Public Signature page to Fifth Amendment to Development Agreement S-2 510665v1 JSB BR291-304 I *:i :ii U N I :& I ItLI IJ.I (t'YLfl 1 CUI I I (I7aI N DLII LEIII M DNl [ShI WHEREAS, the Economic Development Authority of Brooklyn Center, Minnesota (the "Authority"), a body corporate and politic subdivision of the State of Minnesota and Shingle Creek, LLC, a Delaware limited liability company (and together with Shingle Creek 3, LLC, the "Developer") have entered into a Development Agreement dated June 17, 2011 and filed for record June 30, 2011, as Document Number T4868 190, in the Office of the Hennepin County Registrar of Titles (the "Original Development Agreement"), as amended by a First Amendment to Development Agreement dated November 13, 2012 and filed for record November 27, 2012, as Document Number T5017704, in the Office of the Hennepin County Registrar of Titles (the "First Amendment"), as further amended by a Second Amendment to Development Agreement dated April 8, 2014, and filed for record April 15, 2014, as Document No. T05 164285, in the Office of the Hennepin County Registrar of Titles (the "Second Amendment"), as further amended by a Third Amendment to Development Agreement dated March 10, 2015, and filed for record March 11, 2015, as Document No. T05239433, in the Office of the Hennepin County Registrar of Titles (the "Third Amendment") and as further amended by a Fifth Amendment to Development Agreement dated December , 2017, and filed for record ,2017, as Document No. in the Office of the Hennepin County Registrar of Titles (the "Fifth Amendment" and, together with the Original Development Agreement, the First Amendment, the Second Amendment, and the Third Amendment, the "Development Agreement"); and WHEREAS, the Development Agreement requires the Developer to perform the Lot 2 and Lot 5 Work (as defined in the Development Agreement); WHEREAS, the Developer has completed the Lot 2 and Lot 5 Work in a manner deemed sufficient by the Authority to permit the execution of this certification and the release of Lots 2 and 5, Block 1, SHINGLE CREEK CROSSING 5TH ADDITION, Hennepin County, Minnesota (the "Released Property") from the terms and conditions of the Development Agreement; NOW, THEREFORE, this is to certify that the Developer has completed the Lot 2 and Lot 5 Work in a manner deemed sufficient by the Authority. As a result, the Authority hereby releases the Released Property from the terms of the Development Agreement, and the Development Agreement shall no longer run with title to the Released Property or bind successors in title to the Released Property. It is the intention of the Authority and the Developer that after this Food Court Certificate of Completion is memorialized under the Certificates of Title to the Released Property, the Hennepin County Registrar of Titles will omit the memorial of the Development Agreement and the memorial of this Lot 2 and Lot 5 Work Certificate of Completion from future certificates of title for all or any portion of the Released Property. Notwithstanding the Authority's release of the Released Property from the terms and conditions of the Development Agreement, the covenants and restrictions set forth in the Development Agreement remain the personal obligation of the Developer and any successor in title to all or any portion of the Developer Property, as defined in the Development Agreement, to whom the B-2-1 510665v1 JSB BR291-304 Developer expressly assigns the Developer's obligations under the Development Agreement in accordance with Section 8 .2(b)(ii) of the Development Agreement. IN WITNESS WHEREOF, the Authority has caused this Certificate of Completion to be exiecuted with by its duly authorized officer as of the day of MINNESOTA By President By Executive Director STATE OF MINNESOTA ) )ss COUNTY OFHENNEPIN ) The foregoing instrument was acknowledged before me this day of 20, by , the President and , the Executive Director of the Economic Development Authority of Brooklyn Center, Minnesota, a municipal corporation and politic subdivision organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. Notary Public B-2-2 510665v1 JSEBR29I-304 EXHIBIT M DEPICTION OF THE IMPROVEMENTS TO BE CONSTRUCTED ON THE FOOD COURT PARCEL Fo 1 _________j 1 2O 15 176. __ J 14[ , MIT Ln Izx Kc le lUll llllilll( 0 510665v1 JSB BR291-304 w • or'issojo VIOS3NNIN ALNflO3 NId3HN3H O1€NIRS 31N3NA1)OOUiOH((nIWI) iVid AJVNlLAJl1d IdJ8 o cn ;:: i o rr ; oz U ^-00 LU Qoo—2 L.LJ < LLJ CL w LO CO Z C-) HlHL1't \IjI • I / I00I00I00 I EDA Agenda Item No. 5.a November 27, 2017 1.The developer’s assignment of its rights to purchase the EDA Parcel to Ridgecrest Investors LLC, (d/b/a/ Told Development. An application for site plan approval for the development of a bank on the EDA Parcel has been scheduled for the Planning Commission’s November 30th meeting and tentatively scheduled for the Council’s consideration on December 11th. The assignment and pending conveyance of the EDA Parcel also includes a Public Hearing by the EDA, which is also tentatively scheduled for December 11th. 2. The processing of Shingle Creek Crossing 6th Addition, the replat of Lots 1, Block 2, Shingle Creek Crossing and Outlot A (EDA Parcel and the Common areas of Shingle Creek Crossing). 3. The extension of the Additional Improvement Note Maturity Date to complete the 239,000 sf of additional commercial development within Shingle Creek Crossing from December 31, 2018 to December 31, 2021. 4. Including the redevelopment of the Kohl’s lot (Lot 2, Block 2, Shingle Creek Crossing) to the Phase II Parcels identified for the 239,000 sf. of Additional Improvements that will be constructed and obtain certificates of occupancy permits. 5. Clarifications regarding the placement of a transitional screening fence on Food Court Pad Sites 9 and 10 pending the future development of these two pad sites to complete the Food Court Improvements. In addition to the components identified in the draft agreement presented at the November 13th work session, the following component relating to the EDA’s obligation/payment of $300,000 to Shingle Creek Crossing LLC. for the land necessary to construct the required bio-infiltration basin (Storm Water Improvements): Paragraph 11. In order to induce the construction by HOM of the HOM Furniture Improvements on the “Kohl’s Parcel,” as defined in the Original Development Agreement, the Authority has entered into a TIF Development Agreement, dated December __, 2017, pursuant to which the Authority has agreed to pay $300,000 to the Developer on behalf of HOM in exchange for the conveyance to HOM of a portion of the Kohl’s Parcel, [depicted in Exhibit ___] [legally described as: ________________,] which area will be subject to a drainage and utility. Tax Increment District No. 5 is a 17 year Renewal and Renovation District that is projected to receive $570,000 in tax increment revenue in 2017. The TIF 5 Fund Balance projected at the end of 2017 is $742,838 of which approximately $249,000 has been identified by our financial consultant as funds eligible for out of district expenditures. The remaining $493,838 of the fund balance is a debt service reserve for the 2016 Bond Issue and the remaining $700,000 Inter-Fund Loan from TIF District No. 2. This district is scheduled to receive sufficient tax increment through 2029 to repay: the 2016 TIF 5 Bond Issue used to refinance the TIF 5 Pay-As-You-Go Note and $1.7 M of the inter-fund loan from TIF 2; the remaining balance of the $2.4 M TIF 2 inter-fund loan; and additional Out-of- District Expenditures which would include ($209,000 for the western vehicular and pedestrian improvements; Kohl’s Storm Water Improvements $300,000 PAYG Note); and approximately $1 M for other eligible Out-of-District Expenditures and administrative costs Additional development and opportunities for increased TIF revenue within the Shingle Creek Crossing Project include 4 retail pad sites (53,100 sf.) and 4 restaurant pad sites (20,800 sf.). Motion to approve Resolution Approving a Fifth Amendment to Development Agreement (Shingle Creek Crossing Project)