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(ii) Any foreseeable act or omission of a third party unless Grantee exercised
<br /> the utmost care with respect to the foreseeable acts or omissions of the
<br /> third party and the foreseeable consequences of those acts or omissions.
<br /> (3) A breach of the obligations of Subsection 8.3, above, by Grantee, its
<br /> subgrantees, contractors, agents, employees, guests, invitees, or affiliates.
<br /> (b) Grantee will have use of and access to the Easement Pro perry. Accordingly, if
<br /> State seeks to impose liability under Subsection 8.5(a), State will have the initial
<br /> burden of proving by a preponderance of the evidence the existence, release, or
<br /> threatened release of Hazardous Substances in, on,under, or above the Easement
<br /> Property or any adjoining property. Grantee shall then have the burden of proving
<br /> by a preponderance of the evidence that none of the indemnification provisions
<br /> apply.
<br /> 8.6 Cleanup. If a release of Hazardous Substances occurs on, in,under,or above the
<br /> Easement Property or other State-owned property arising out of any action or inaction described
<br /> or referred to in Subsection 8.5 above, Grantee shall,at its sole expense,promptly take all actions
<br /> necessary or advisable to clean up the Hazardous Substances. These actions shall include,
<br /> without limitation,removal, containment and remedial actions and shall be performed in
<br /> accordance with all applicable laws, rules, ordinances, and permits. Grantee shall also be solely
<br /> responsible for all cleanup, administrative, and enforcement costs of governmental agencies,
<br /> including natural resource damage claims. Any cleanup shall be performed in a manner
<br /> approved in advance in writing by State,except that in emergency situations Grantee may take
<br /> reasonable and appropriate actions without advance approval.
<br /> 8.7 Sampling.
<br /> (a) As a condition of State entering into this Easement, Grantee has provided the
<br /> environmental investigation specified in Exhibit B (Section 8) of this document.
<br /> The investigation specified in Exhibit B has been conducted in accordance with
<br /> generally accepted scientific methods and principles.
<br /> (b) State may conduct sampling,tests, audits, surveys,or investigations("Tests")of
<br /> the Easement Property at any time to determine the existence, scope, or effects of
<br /> Ha7ardous Substances on the Easement Property, any adjoining property,any
<br /> other property subject to use by Grantee in conjunction with its use of the
<br /> Easement Property, or any natural resources. If such Tests, along with any other
<br /> information, demonstrates the existence,release, or threatened release of
<br /> Ha7ardous Substances arising out of any action, inaction, or event described or
<br /> referred to in Subsection 8.5, above, Grantee shall promptly reimburse State for
<br /> all costs associated with such Tests.
<br /> October 14,2002 Page 11 of 27 Outfall Easement
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