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of such other public agencies. In the event any state or federal resources agency (e.g.,
<br />California Department of Fish and Wildlife, U.S. Fish and Wildlife Service, U.S. Army Corps of
<br />Engineers, Regional Water Quality Control Board/State Water Resources Control Board, Bay
<br />Area Air Quality Management District), in connection with its final issuance of a permit or
<br />certification for all or a portion of the Project, imposes requirements that require modifications to
<br />the Project, to the maximum extent permitted by law and consistent with its authority, City shall
<br />assist Developer in obtaining such permits and approvals without such modifications however,
<br />should any such agency impose such requirements then the Parties will use their best efforts to
<br />incorporate such changes into the Project; provided, however, that if Developer appeals or
<br />challenges any such permit requirements, then the Parties may defer such changes until the
<br />completion of such appeal or challenge.
<br />
<br />Section 4.5 Other Government Permits. At Developer’s sole discretion and in
<br />accordance with Developer’s construction schedule, Developer shall apply for such other
<br />permits and approvals as may be required by other governmental or quasi-governmental
<br />entities in connection with the development of, or the provision of services to, the Project. City
<br />shall use reasonable efforts to assist Developer in obtaining such permits and approvals,
<br />including, at the reasonable request of Developer, attending meetings with other governmental
<br />or quasi-governmental entities, providing documents reasonably requested by other
<br />governmental or quasi-governmental entities, and assisting Developer, at Developer’s sole cost
<br />and expense, in implementing mitigation measures or other measures required by any such
<br />entity, and may, in its sole discretion, from time to time at the request of Developer, enter into
<br />binding agreements with any such entity as may be necessary to ensure the timely availability of
<br />such permits and approvals.
<br />
<br />ARTICLE 5 Mortgagee Protection
<br />
<br />Section 5.1 Mortgagee Protection. This Agreement shall not prevent or limit
<br />Developer in any manner, at Developer’s sole discretion, from encumbering the Project Site or
<br />any portion thereof or any improvement thereon by any mortgage, deed of trust or other security
<br />device securing financing with respect to the Project Site (“Mortgage”). This Agreement shall be
<br />superior and senior to any lien placed upon the Project Site or any portion thereof after the date
<br />of recording this Agreement, including the lien of any Mortgage. Notwithstanding the foregoing,
<br />no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made
<br />in good faith and for value, but all of the terms and conditions contained in this Agreement shall
<br />be binding upon and effective against and inure to the benefit of any person or entity, including
<br />any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Project Site,
<br />or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
<br />
<br />Section 5.2 Mortgagee Not Obligated. Notwithstanding the provisions of
<br />Section 5.1 above, no Mortgagee shall have any obligation or duty under this Agreement to
<br />perform Developer’s obligations or other affirmative covenants of Developer hereunder;
<br />provided, however, that a Mortgagee shall not be entitled to devote the Project Site to any uses
<br />or to construct any improvements thereon other than those uses or improvements provided for
<br />or authorized by this Agreement, or by the Project Approvals and Applicable Law.
<br />
<br />Section 5.3 Notice of Default to Mortgagee; Right of Mortgagee to Cure. If City
<br />receives a notice from a Mortgagee requesting a copy of any Default Notice given to Developer
<br />hereunder and specifying the address for service thereof, then City shall deliver to such
<br />Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with
<br />respect to any claim by City that Developer has committed a default, and if City makes a
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