65A - RFQ - 3RD AND BROADWAY DEV

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3.12.5 Hazardous Materials Defined. As used in this Agreement, the term "Hazardous Materials" means any substance, material or waste that is (1) defined as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under any provision of California law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (7) defined as a "hazardous substance" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act ( "CERCLA "), 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property. 3.12.6 Materiality. The Developer acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of the 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 the Developer's obligations were as provided herein. 3.13 Preliminary Work and Right of Entr y. Prior to the conveyance of fee interest in the City Property to the Developer, representatives of the Developer shall have the right of access to the City Property at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement. The City may require the Developer to execute a commercially reasonable right of entry agreement satisfactory to the City prior to entry onto the City Property for such purpose. The Developer's inspections, examination, testing, survey and review of the City Property shall be at the Developer's sole cost and expense. The developer shall obtain the City's consent in writing prior to any proposed physical testing of the City Property, which consent shall not be unreasonably conditioned, withheld or delayed. The Developer shall repair, restore and return the City Property to its original condition after such physical testing, at Developer's sole cost and expense, provided that Developer shall have no obligation to remediate Hazardous Materials discovered during such testing. The Developer shall schedule any such inspections during normal business hours unless otherwise approved by the City. During this inspection period, the Developer shall at all times keep the City Property free and clear of any liens and encumbrances created by Developer. 3.14 City Property Data and Information. The City shall make all data and information pertaining to the City Property available to the Developer. The City makes no warranty or representations, however, as to the completeness, correctness, or validity of such data and information. Copies of final data, surveys, and tests obtained or made by the Developer on the City Property shall be filed with the City. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits for such preliminary work from the appropriate governmental agencies. 55394.00000\29008220. l 65A -16