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for damage to property or injury or death of any persons (collectively, the "Claims") arising from <br /> the presence on Port property or any adjacent property of any Hazardous Substance (as that term <br /> is defined in Section 3.C. below) that was released onto, in or under the Port property from the <br /> New City Work after completion of construction under Section 2.E above. Notwithstanding the <br /> 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 Persons <br /> into PSO 2 or into the drainage area of PSO 2 or (2) Hazardous Substances released on Port <br /> property that enter into PSO 2, when such release is by any person other than the City; provided, <br /> that in the event the City asserts such limitations on its contractual indemnity apply, it shall have <br /> the burden of proof on the issue(s)of whether the exceptions to the City's indemnity responsibility <br /> are applicable. The parties agree that this Section A provides contractual indemnity, defense and <br /> hold harmless to the Port for discharges from the New City Work (such as, for one example, a <br /> break in the New City Work) and does not provide a contractual indemnity, defense or hold <br /> harmless for discharges from parts of PSO 1 that are not New City Work(such as,for one example, <br /> discharge from the end of PSO 1). <br /> B. Not Used. <br /> C. Definition 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,which <br /> by any federal, state, county, municipal or other local governmental statutes, regulations, <br /> ordinances or resolutions require special handling or notification in its collection, storage, <br /> treatment or disposal. <br /> SECTION 4: GENERAL PROVISIONS <br /> A. Administration. Each Party to this Agreement shall serve as an administrator of <br /> this Agreement for the purposes of compliance with RCW 39.34.030 for each Party's respective <br /> actions in performance of this Agreement. <br /> B. Duration/Expiration. This Agreement expires upon completion of the true-ups set <br /> forth in Section 2.G.3 above. <br /> C. Governing Law. The laws of the State of Washington, without giving effect to <br /> principles of conflict of laws, govern all matters arising out of or relating to this Agreement. <br /> D. Venue. The Parties shall bring any litigation arising out of or relating to this <br /> Agreement only before the Snohomish County Superior Court. <br /> E. Complete Agreement. This Agreement constitutes the entire agreement of the <br /> parties relating to the subject matter of this Agreement. This Agreement supersedes and replaces <br /> all other written or oral agreements thereto. <br /> 4 <br /> SOM\03221\0081\00762427.v 1 <br />