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<br /> 8.4.2 Notwithstanding the limitations set forth in Section 8.3 above or anything
<br /> contained in this Agreement to the contrary, City expressly covenants and agrees that it
<br /> retains sole responsibility for all City Environmental Obligations, and that, to the fullest
<br /> extent allowed by law, it hereby indemnifies, defends and holds harmless and hereby
<br /> waives, releases and discharges forever the BNSF Indemnitees from any and all present
<br /> or future claims or demands, and any and all damages, BNSF Losses (as defined in
<br /> Section 8.2.3), injuries, liabilities, causes of actions (including, without limitation, causes
<br /> of action in tort) costs and expenses (including, without limitation fines, penalties and
<br /> judgments, and attorneys' fees) of any and every kind or character, known or unknown
<br /> arising from or in any way related to the Everett Landfill/Tire Fire Site and the City
<br /> Environmental Obligations, including without limitation the City's Environmental
<br /> Obligations with respect to Parcels 6, 11, 12, 14, and E3. The rights of BNSF under this
<br /> section shall be in addition to and not in lieu of any other rights or remedies to which it
<br /> may be entitled under this document or otherwise. This indemnity specifically includes
<br /> the obligation of City to remove, close, remediate, reimburse or take other actions
<br /> requested or required by any governmental agency concerning any Environmental
<br /> Obligations affecting the City Property.
<br /> 8.5 Definitions. For purposes of this Agreement, the term "Environmental Law"
<br /> means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment,
<br /> decree, injunction or common law pertaining in any way to the protection of human health or the
<br /> environment, including without limitation, the Resource Conservation and Recovery Act, the
<br /> Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances
<br /> Control Act, and any similar or comparable state or local law. The term "Hazardous
<br /> Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as
<br /> defined, listed or regulated under any Environmental Law, and includes without limitation
<br /> petroleum oil and any of its fractions.
<br /> 8.6 Survival. The provisions of this Section 8 shall survive the Closing, bind each
<br /> party and their respective heirs, successors and assigns, shall be included in the BNSF Property
<br /> Deed and the City Property Deed and shall be covenants running with the land.
<br /> Section 9 Reservations.
<br /> 9.1 Easement to Operate. BNSF shall reserve unto itself, its successors and assigns a
<br /> rail service easement ("Easement to Operate") in the form attached hereto as Exhibit L, which
<br /> Easement to Operate shall permit BNSF to enter and remain on the BNSF Property until the
<br /> removal of the Removal Tracks, pursuant to Section 10.4 below, for the sole purposes of BNSF
<br /> operating rail freight service over, and repairing, maintaining, replacing and removing, the
<br /> Removal Tracks that now are present on the BNSF Property.
<br /> 9.2 BNSF Other Reserved Rights. Notwithstanding the provisions of Section 1.3
<br /> above, the parties acknowledge and agree that the BNSF Property quitclaimed to City pursuant
<br /> to this Agreement excludes all rights in and to the BNSF Reserved Rights, which BNSF
<br /> Reserved Rights may be exercised by BNSF as deemed necessary or advisable by BNSF and
<br /> without charge and without notification to City; provided, however, BNSF's exercise of the
<br /> BNSF Reserved Rights shall not unreasonably interfere with City's use and occupancy of the
<br /> Exchange Agreement -15- DRAFT 5/23/06
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