8.1 SR 08-19-2024 - Laserfiche WebLink

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4 Development Assistance Agreement is subordinate to the FBER Mortgages prior to the issuance of a certificate of occupancy by the City, and any contractual right to collect delinquent real estate taxes from FBER under Section 4.3 (Right to Collect Delinquent Taxes) is subordinate to the FBER Mortgages (but no such subordination shall impact the normal City or county process for collecting delinquent real estate taxes). FBER may also sell the Property following a foreclosure of the FBER Mortgages notwithstanding the provisions of Section 5.2 (Prohibition against Transfer of Property and Assignment of Agreement). A foreclosure of the FBER Mortgages prior to the delivery of a certificate of occupancy by the City shall result in the termination of all rights of the City under any of the foregoing Development Assistance Agreement, DAA Mortgage, Deed and Assessment Agreement, but the DAA Guaranties shall survive such foreclosure. In addition, in the event of such foreclosure, FBER shall utilize efforts to secure a new owner whose use of the property complies with Minnesota Statutes, Section 469.174 through 469.1794 (the “TIF Act”) to allow the City to collect tax increments from the property. Notwithstanding anything herein to the contrary, this Agreement shall in no way limit any of the City’s rights and remedies under the DAA Documents prior to an event of default under the FBER Loans or the City’s remedies of specific performance or injunctive relief under the Development Assistance Agreement. 3. Construction Completion. The City acknowledges and agrees that neither FBER, nor its successors or assigns, shall be obligated to construct or complete the Project; provided, however, that, (i) if FBER or its successors or assigns acquire the Property by foreclosure or by a conveyance in lieu of foreclosure, the City acknowledges and agrees that, upon substantial completion of the Project pursuant to and in accordance with the Development Assistance Agreement, FBER shall be entitled to seek from the City a Certificate of Completion for the Project in accordance with the terms set forth in the Development Assistance Agreement and (ii) by its acceptance hereof, FBER acknowledges and agrees that the City shall have no obligation to make any Tax Increment available to the Borrowers or their successors and/or assigns pursuant to the terms of the Development Assistance Agreement unless all of the terms, covenants and conditions related to the Tax Increment as set forth in the Development Assistance Agreement have been satisfied or waived. 4. Entire Agreement; Modifications. The City acknowledges that FBER is not a party to the Development Assistance Agreement, that this Agreement constitutes the entire agreement between the City and FBER with respect to the Development Assistance Agreement, and that this Agreement may be amended only in a writing executed by the City and FBER. 5. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns, including any subsequent holder of the FBER Mortgages and/or the DAA Mortgage. 6. Notices. Any notices and other communications permitted or required by the provisions of this Agreement shall be in writing and shall be deemed to have been properly given or served by (i) personal delivery, (ii) depositing the same with the United States Postal Service, or any official successor thereto, designated as Registered or Certified Mail, Return Receipt Requested, bearing adequate postage, (iii) depositing the same with a reputable private courier or Page 222 of 327