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<br />expended by the Port related to the PSO 2 Work. Upon completion and acceptance of the PSO 2
<br />Work and resolution of contractor claims (if any), the Parties will true -up the payments, so that
<br />the City has paid 100% of the expenses related to the PSO 2 Work.
<br />H. Use of Off -Ramps. The Parties acknowledge that the work regarding PSO 2 is
<br />necessary work, and the City has budgeted about $300,000 for work described in Section 2. The
<br />Parties agree that the necessity of the work must be taken into account when a Party considers
<br />using an off -ramp under Sections 2.A.3 and 2.C.2 above.
<br />SECTION 3: ENVIRONMENTAL INDEMNITY
<br />A. Indemnification by City. To the extent that PSO 2 after completion of
<br />construction under Section 2.E above discharges directly and/or indirectly onto Port property or
<br />facilities, the City shall indemnify, defend, and hold harmless the Port and its employees,
<br />commissioners, representatives, tenants, invitees, agents and consultants (all such persons
<br />collectively, "Port Persons"), from and against any and all claims, liabilities, loss, demands,
<br />liens, costs and expenses including reasonable attorneys' fees, agency orders, requirements or
<br />enforcement actions, suits and causes of action, and damages including but not limited to any
<br />claim for damage to property or injury or death of any persons (collectively, the "Claims")
<br />arising from the presence on Port property or any adjacent property of any Hazardous Substance
<br />(as that term is defined in Section 3.C.. below) that was released onto, in or under the Port
<br />property from PSO 2 after completion of construction under Section 2.E above. Notwithstanding
<br />the foregoing, the City shall not have any obligation to indemnify, defend or hold harmless Port
<br />Persons for any Claims arising from (1) Hazardous Substances released or allowed by Port
<br />Persons into PSO 2 or into the drainage area of PSO 2 or (2) Hazardous Substances released on
<br />Port property that enter into PSO 2, .when such release is by any person other than the City;
<br />provided, that in the event the City asserts such limitations on its contractual indemnity apply, it
<br />shall have the burden of proof on the issue(s) of whether the exceptions to the City's indemnity
<br />responsibility are applicable.
<br />B. Baseline Sampling. During the design and permitting of the PSO 2 Work, the
<br />City and Port will discuss the desirability and feasibility of conducting baseline sampling. If
<br />both the City and Port determine to conduct baseline sampling, the City and Port will equally
<br />split the sampling cost. If one party wants to conduct baseline sampling and the other does not,
<br />the party wanting the sampling may conduct the sampling at its sole cost, and the other party will
<br />fully cooperate with the sampling. Any baseline sampling perfonned will be coordinated with
<br />the Department of Ecology Toxics Cleanup Program.
<br />C. Defnution of Hazardous Substance. As used in this Agreement, the term
<br />"Hazardous Substance" shall mean (i) any "hazardous substance" under the Washington Model
<br />Toxics Control Act (chapter 70.105D RCW) as amended from time to time and regulations
<br />promulgated thereunder; (ii) any substance the presence of which is prohibited by any federal,
<br />state, county, municipal or other local governmental statutes, regulations, ordinances or
<br />resolutions; and (iii) other substances deemed hazardous, toxic, a pollutant, or contaminant,
<br />which by any federal, state, county, municipal or other local governmental statutes, regulations,
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