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7.A. - Page 142 1.1.108 "Waiver of Subro a� tion" means a provision in, or endorsement to, any Liability Insurance or Automobile Liability Insurance policy, by which the insurance carrier agrees to waive rights of recovery by way of subrogation against any Person for any loss such policy covers. 1.1.109 "Workers' Compensation Insurance" means worker's compensation insurance complying with the provisions of State Law and Employer's Liability insurance, with limits not less than One Million Dollars ($1,000,000) each accident for bodily injury and disease. The Workers' Compensation Insurance shall contain an endorsement stating that the insurer waives any right of subrogation against the City for losses covered by the policy. 1.1.110 "Work Product" means any and all studies and reports prepared by or on behalf of the Developer regarding the Site or the Project, including, without limitation, soils reports, geotechnical reports and feasibility studies, but excluding proprietary information of the Developer or information protected by law as confidential or privileged. 1.2 Deposit. The Developer shall, prior to or concurrently with the execution of this Agreement, establish and fund a deposit account ("Deposit Account") with the City designed to ensure that, except as otherwise provided herein, City is never required to perform work for which reimbursement funds have not been previously deposited (the "Deposit"). The Developer shall fund the Deposit initially by depositing the amount of Five Hundred Thousand Dollars ($500,000) to pay costs associated with the planning and approvals to be paid for by the Developer as provided in this Agreement, and, further, as security for the performance of the obligations of the Developer to be performed prior to the credit and/or return of the Deposit to the Developer as provided herein, or its retention by the City as liquidated damages. Prior to the execution of this Agreement, City prepared and delivered to Developer a budget ("City Budget") of estimated expenditures to be paid for or reimbursed out of the Deposit during the term of this Agreement (but not including City's normal permit or processing fees charged to developers), which City Budget Developer has approved. The City Budget is attached hereto as Exhibit L and incorporated herein. City shall have the right to revise the City Budget, from time to time, as necessary, subj ect to the prior consent of Developer, which consent shall not be unreasonably withheld, to add unanticipated new expenditures and increases in budgeted expenditures reasonably projected to be incurred in connection with the execution and implementation of this Agreement. Once construction of the Project has commenced, provided that all expenditures theretofore made by City in accordance with the City Budget have been reimbursed, the amount of the Deposit required to be maintained shall be reduced such that it shall at all times equal One Hundred Twenty-Five Percent (125%) of the City's anticipated construction manager costs as set forth in the City Budget, as it may be amended. The Parties acknowledge that the Developer previously established and maintained a deposit account in the initial amount of One Hundred Fifty Thousand Dollars ($150,000) ("Initial Deposit") pursuant to a Reimbursement Agreement between Developer and City dated August 16, 2012 ("Reimbursement A�reement") entered into in implementation of the Cost Recovery Policy established by the City by Resolution No. 14609 adopted in September 2004. The Reimbursement Agreement terminated upon the parties' execution of this Agreement. Any funds remaining in the Initial Deposit that are not expended for City expenses pursuant to the 82483.00009\7571312.11 14 ATTY/AGR/2013.118/BLOCK 2 HUNTER STORM REV: 07-19-13 PT