AgdaPkt 2015-07-27 Joint SA and PFA

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8.A. - Page 55 local, state or federal governmental or private party claims, including any claims by Developer or City. As used in this Agreement, the term "Environmental Response Costs" means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages. As used in this Agreement, the term "Hazardous Materials" means any substance, material or waste which is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," "restricted hazardous waste," "pollutant" or any other terms comparable to the foregoing terms under any provision of California law or federal law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; or (6) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property. 5. Materiality Developer acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of Developer for the benefit of the City set forth in this Agreement are a material element of the consideration to the City for the performance of its obligations under this Agreement, and that the City would not have entered into this Agreement unless Developer's obligations were as provided for herein. Developer further acknowledges and agrees that the provisions of this Section 2.9 which extend representations, warranties, indemnifications, and /or covenants of Developer to the benefit of the City shall not be satisfied, waived or otherwise extinguished by City's issuance of any Certificate of Completion. ARTICLE 3. PROJECT DEVELOPMENT. 3.1 Precise Plan. The Site is located within an area covered by the recently- adopted Precise Plan and shall be developed by the Developer with a mixed -use retail /commercial project as set forth in the Project Description (Exhibit B). 3.2 Submittal of Plans, Drawings and Related Documents. Prior to approval and execution of this Agreement by the Parties, the Developer prepared and submitted to the City, and the City approved a Schematic Design package for the development of the Project on the Site, including the plans for the removal of the portion of the existing walls of the Jefferson Garage to effectuate the connection between the Hamilton Garage and Jefferson Garage. The Developer may also prepare and submit a Design Development package and shall prepare and submit a Construction Document package to the City for review and written approval as and at the times established in the Performance Schedule (Exhibit C). All design 82483.00019\9644366. 13 ATTY /AGR /2015.146 /HAMILTON - WINSLOW DDA REV: 07 -22 -15 VR Page 14 of 102