IV.7. Third Amendment to PUD/Development Agreement – Mokabaka, LLC; Elverum (CR2016-115)489424v3 AMB HP145-4
THIRD AMENDMENT TO PUD-DEVELOPMENT AGREEMENT
By and Between
THE CITY OF HOPKINS
and
MOKABAKA LLC
Dated: November ____, 2016
This Instrument drafted by:
Kennedy & Graven, Chartered (SJR)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
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THIS THIRD AMENDMENT TO THE PUD-DEVELOPMENT AGREEMENT (the
“Third Amendment”) is made and entered into this ___ day of November, 2016, by and between the
City of Hopkins, Minnesota, a municipal corporation under the laws of Minnesota, (the “City”),
and Mokabaka LLC., a limited liability company under the laws of Minnesota, (the
“Developer”);
WHEREAS, On November 20, 2013, SSI Properties, Inc., a corporation under the laws
of California (“SSI”), the Developer, and the City entered into a PUD-Development Agreement
(the “PUD Agreement”) stating the terms and conditions of the City’s approval of PUD zoning
and a Development Plan for the development of certain real property legally described in Exhibit
A attached hereto (the “Real Property”). The PUD Agreement was filed for record on November
27, 2013, as Hennepin County Registrar of Titles Document No. T05135961. By a Quitclaim
deed recorded November 27, 2014, as Hennepin County Registrar of Titles Document No.
T5135956, SSI transferred fee title to the Real Property to the Developer; and
WHEREAS, Paragraph 11 of the PUD Agreement stated that the Developer is to
commence construction of the Improvements (as defined in the PUD Agreement) and
development of the Real Property in accordance with the terms and conditions of the PUD
Agreement no later than December 1, 2013, and substantially complete construction within 18
months thereafter.
WHEREAS, Developer and the City entered into an amendment to the PUD Agreement
(the “First Amendment”) on the 29th of October, 2014, whereby the City agreed to extend the
time allowed under Paragraph 11 of the PUD Agreement; and
WHEREAS, under the terms of the First Amendment, the Developer is required to
commence construction of the Improvements (as defined in the PUD Agreement) no later than
December 1, 2013, and the Developer shall also substantially complete such Improvements no
later than May 31, 2016; and
WHEREAS, Developer and the City entered into a second amendment to the PUD
Agreement (the “Second Amendment”) on the 31st of May, 2016, whereby the City agreed to
extend the time allowed under Paragraph 11 of the PUD Agreement, as amended by the First
Amendment; and
WHEREAS, under the terms of the Second Amendment, the Developer is required to
commence construction on of the Improvements (as defined in the PUD Agreement) no later
than December 1, 2013, and the Developer shall also substantially complete such improvements
no later than November 30, 2016; and
WHEREAS, the Developer, due to circumstances outside of its control, will not be able
to substantially complete such Improvements by November 30, 2016, and has requested
additional time for completion from the City; and
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WHEREAS, the City wishes to enter into this Third Amendment granting the Developer
additional time for substantial completion under the PUD Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and other good and valuable
consideration hereinafter set forth, the City and Developer hereby agree to enter into this Third
Amendment and amend the PUD Agreement as hereinafter provided:
1. Incorporation of Recitals. The recitals set forth above and the exhibits attached
hereto, if any, are incorporated herein by reference as if set forth herein.
2. Amendment of the PUD Agreement as Amended. Paragraph 11 of the PUD
Agreement, as amended by the First Amendment and the Second Amendment, shall be deleted in
its entirety and replaced with the following new paragraph 11:
Time of Performance. The Developer shall commence or continue construction
of the Improvements and the development of the Real Property in accordance
with the terms and conditions of this Development Agreement no later than
November 30, 2013, and shall substantially complete construction of the
Improvements and development of the Real Property no later than June 30, 2017.
3. Reasonable Efforts. The Developer agrees to use all reasonable efforts to
substantially complete all work contemplated in the PUD Agreement no later than April 30,
2017.
4. Effect on the PUD Agreement. Any other terms, agreements, requirements or
conditions contained in or required by the PUD Agreement shall remain in effect and any such
other terms, agreements, requirements, or conditions of the PUD Agreement that are required to
be modified to be consistent with this Third Amendment shall be appropriately modified and
revised to be in accordance with the terms of this Third Amendment, with any such required
modification or revision constituting a necessary condition of the approval of this Third
Amendment. Except as specifically provided in this Third Amendment, the PUD Agreement
remains unaltered and in full force and effect.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the City has caused this Third Amendment to be duly executed
in its name and behalf, and the Developer has caused this Third Amendment to be duly executed in
its name and behalf on or as of the date first above written.
CITY OF HOPKINS
By: ______________________________
Molly Cummings
Its: Mayor
By: ____________________________
Michael J. Mornson
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on this ____ day of November,
2016, by Molly Cummings and Michael J. Mornson, the Mayor and City Manager, respectively,
of the City of Hopkins, a municipal corporation under the laws of the state of Minnesota, on
behalf of said municipal corporation.
____________________________________
Notary Public
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MOKABAKA LLC
By: ______________________________
Dan Dorholt
Its: Chief Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me on this ____ day of November,
2016, by Dan Dorholt, the Chief Manager, of Mokabaka LLC, a limited liability company under
the laws of the state of Minnesota, on behalf of said limited liability company.
____________________________________
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lot 1, Block 1, Dorholt Addition, Hennepin County, Minnesota
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MORTGAGEE’S CONSENT
____________________, a _________________________, the mortgagee named in that
certain Mortgage dated __________, 2013, which was recorded on _________________, 2013,
with the Hennepin County Registrar of Titles as Document No. ______________, hereby
consents to the foregoing Third Amendment to the PUD-Development Agreement and agrees
that said Mortgage shall be subject to and subordinate to said Third Amendment to the PUD-
Development Agreement.
________________________________
By:
Its:
State of Minnesota )
)ss.
County of ________ )
The foregoing instrument was acknowledged before my on this ____ day of
___________, 2016, by ________________________________, the
__________________________, of ______________, a ___________________ under the laws
of the state of ________________, on behalf of _____________________.
____________________________________
Notary Public