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a. The City Council shall conduct a hearing at which Developer <br />must submit evidence that it has complied in good faith with the terms and conditions of this <br />Agreement. Developer shall be given an opportunity to be heard at the hearing. The findings of <br />the City Council on whether Developer has complied with this Agreement for the period under <br />review shall be based upon substantial evidence in the record. if the City Council determines, <br />based upon substantial evidence, that Developer has complied in good faith with the terms and <br />conditions of this Agreement, the review for that period shall be concluded. If the City Council <br />determines, based upon substantial evidence in the record, that Developer has not complied in <br />good faith with the teens and conditions of this Agreement, or there are significant questions as to <br />whether Developer has complied with the terms and conditions of this Agreement, the City <br />Council, at its option, may continue the hearing and may notify Developer of the City's intent to <br />meet and confer with Developer within 30 days of such determination, prior to taking further <br />action. Following,such meeting, the City Council shall resume the hearing in order to further <br />consider the matter and to make a detennination regarding Developer's good faith compliance <br />with the terms and conditions of this Agreement. In the event City determines Developer is not in <br />good faith compliance with the terms and conditions of this Agreement, City may exercise its right <br />to terminate this Agreement by written Notice to Developer (without any requirement of a further <br />public hearing pursuant.to Section 11.2) or pursue legal action under Section 11.3. <br />C. Failure to Conduct Annual Review. Failure of City to conduct an annual <br />review shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of <br />this Agreement nor shall Developer have or assert any defense to such enforcement by reason of <br />any such failure to conduct an annual review. <br />D. Certificate of Compliance. If, at the conclusion of the annual review <br />described in Section 6.1.13, the Developer is found to be in compliance with this Agreement, City <br />shall, upon request by Developer, issue a Certificate of Compliance ("Certificate") to Developer <br />stating that after the most recent annual review and based upon the information actually known to <br />an appropriate official of City specified in such Certificate that: (1) this Agreement remains in <br />effect, and (2) the Developer is not in Default. The Certificate shall be in a recordable form, shall <br />contain information necessary to communicate constructive record notice of the finding of <br />compliance, and shall state the anticipated date of commencement of the next annual review. <br />Developer may record the Certificate without cost or expense to City. <br />ARTICLE 7. MORTGAGEE PROTECTION <br />Section 7.1 Mortgagee Protection. This Agreement shall not prevent or limit Developer <br />in any manner, at Developer's sole discretion, from encumbering the Property or any portion <br />thereof or any improvement thereon by any mortgage, deed of trust, or other security device <br />securing financing with respect to the Property ("Mortgage"). This Agreement shall be superior <br />and senior to any lien placed upon the Property or any portion thereof after the date of recording <br />the Agreement, including the lien of any Mortgage. Notwithstanding the foregoing, no breach <br />hereof shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith <br />and for value, but all of the terms and conditions contained in this Agreement shall be binding <br />upon and effective against and shall run to the benefit of any person or entity, including any deed <br />0 <br />ATTY/AGR/2024.193 - GATEKEEPER DA - 1900 BROADWAY <br />REV: 10-22-24 VR <br />