07-23-2003 Council Agenda - Laserfiche WebLink

Home Browse Search

obtains actual knowledge that the condemning authority has commenced or is threatening to commence such eminent domain proceedings. If an entity with the power of eminent domain acquires all or any portion of the Development Property through the exercise of the power of eminent domain, the Developer, the EDA and any Mortgage holders may each appear in the condemnation proceedings and may each seek to recover damages from the condemning authority based on their respective interests in the property. 9.4. Release, Defense and Indemnification Covenants. The Developer releases the City, the EDA and their respective council members, officers, agents, servants and employees (hereinafter, for purposes of this Section 9.4, the "Indemnified Parties ") from any claims for loss or damage to property or for any injury to or death of any person occurring at or about each Parcel of the Development Property after the date the EDA conveys the applicable Parcel of the Development Property to the Developer. The Developer agrees to defend the Indemnified Parties from and against any claims for loss or damage to property or for any injury to or death of any person occurring at or about a Parcel (excluding any portion of the Development Property for which the EDA has issued a Certificate of Completion and Release) after the date the EDA conveys that Parcel to the Developer, except for claims alleging gross negligence or intentional misconduct on the part of the Indemnified Parties. The Developer agrees to indemnify the Indemnified Parties from any liability, cost or expense arising out of loss or damage to property or injury to or death of any person occurring at or about a Parcel (excluding any portion of the Development Property for which the EDA has issued a Certificate of Completion and Release) after the date the EDA conveys that Parcel to the Developer, except for liability, costs or expenses a court of competent jurisdiction imposes upon an Indemnified Party as a result of the Indemnified Parties' negligence or intentional misconduct. 10. MORTGAGE FINANCING. 10.1. Right to Mortgage. The Developer may not mortgage its interest in any portion of the Development Property before the EDA or the Developer has recorded the memorandum of this Agreement described in Section 13.8 and the applicable Assessment Agreement. After the EDA or the Developer records the memorandum and the applicable Assessment Agreement the Developer may (notwithstanding the provisions of Section 11.1) mortgage its interest in a Parcel (or portion thereof) provided the Mortgage includes the mortgagee's express acknowledgement that its interest in the Parcel is subject to the terms of this Agreement and the applicable Assessment Agreement. At the request of the Developer, the EDA will execute a recordable instrument subordinating the EDA's rights under this Agreement to the lien of the Mortgage and subjecting the EDA's future interest in the Parcel or Parcels pursuant to the right of re -entry described in Section 6.5 to the lien of the Mortgage; provided the Mortgage secures the repayment of a loan the proceeds of which the Developer uses for the Project. In the alternative, the EDA will, at the request of the mortgagee, execute the Mortgage for purposes of subordinating its rights under this Agreement and subjecting its future interests in the Parcel or Parcels pursuant to the right of re -entry described in Section 6.5 to the lien of a Mortgage that secures the repayment of a loan the proceeds of which the Developer uses for the Project; provided the Mortgage expressly states and acknowledges that the EDA is executing the Mortgage solely for the purpose of subjecting its interests in the -19-