Reso13 PC 13-14 2879 Planning Commission Recommending Approval of DDA for 950 Middlefield Road

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City Draft 6128/13 1.1.108 "Waiver of Subro a�" means a provision in, or endorsement to, any Liability Insurance ar Automobile Liability Insurance policy, by which the insurance carrier agrees to waive rights of recovery by way of subrogation against an}�Person for any loss such policy covers. 1.1.109 "Workers' Compensation Insurance" means worker's compensation insu�rance complying with the provisions of State Law and Ernplayer's Liability insurance, with limits not less than One Million Dollars($1,000,000) each accident for bodily injury and disease. The Workers' Compensation Insurance shall contain an endorsement stating that the insurer waives any right of subrogation against the City for losses covered by the policy. 1.1.110 "Work Product" means any and all studies and reports prepared by ar on behalf of the Developer regarding the Site or the Project, including, without limitation, soils reports, geotechnical reports and feasibility studies, but excluding proprietary inforxnation of the Developer or information protected by Iaw as confidentia�or privileged. 1.2 Deposit. The DeveIoper sk�all, prior to or concurrently with the execution of this Agreement, establish and fund a deposit account ("Deposit Account") with the City designed to ensure that, except as otherwise provided herein, City is never required to perform work for which reimbursement funds have not been previously deposited (the "D_eU051t"). The Developer shall fund the Deposit initially by depositing the axnount of Five Hundred Thousand Dollars ($SOO,D00) to pay costs associated with the planning and approvals to be paid for by the Developer as provided in tlzis Agreement, and, furthex, as security for the performance of the obligations of the Develaper to be performed prior to the credit andlor retuan af the Deposit to the Developer as provided herein, or its retentian 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 far or reimbursed out of the Deposit during the term of this Agreement (but no# including City's normal permit or processing fees charged to deveYopers), which City Budget Developer has approved. City sha11 bave the right to revise the City Budget, from time to time, as necessary, subject to the prior consent of Developer, which cansent sha11 not be unreasonably withheld, to add unanticipated new expenditures and increases in budgeted expenditures reasanably projected to be incurred in connection with the execution and implementation of this Agreement. Once construction of the Project has commenced, provided that a11 expenditures theretofore made by City in accardance with the City Buc�get have been reimbursed, the amount of the Deposit required to be maintained shall be reduced such that it shall at alt 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 ac�owledge that the Developer previously established and maintained a deposit account in the initial amount of One Hundred Fifty Thousand Dollars ($150,000} ("Ixutial De�osit") pursuant to a Reimbursement Agreement between De�eloper and City dated August lb, 2012 ("Reiznbursement Agreement") entered into in irnplementa�ion of the Cost Recovery Policy established by the City by Resolution No. �4609 adopted in September 2004. The Reimbursement Agreement terminated upon the parties' execution of this Agreement. Any funds remaining in the Initial Deposit that are r�ot expended for City expenses pursuant to the 82483.0000917571312.10 14