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<br /> ABOUT THE CONSTRUCTION SITE, (II)THE PERFORMANCE, OR FAILURE TO PERFORM BY THE
<br /> AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR
<br /> ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR
<br /> OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS
<br /> IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY
<br /> CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF
<br /> THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE
<br /> TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
<br /> AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-
<br /> WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE
<br /> BY AGENCY, OR(VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS,AGENTS, INVITEES,
<br /> EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY
<br /> OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY
<br /> ASSUMED BY AGENCY WILL APPLY ONLY TO THE EXTENT OF THE NEGL €E OF AGENCY,
<br /> ITS AGENTS OR EMPLOYEES, AND THIS WILL NOT BE AFFECTED P , IF IT IS A
<br /> FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH W OCC'S 0 NED BY OR
<br /> CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGE S, SE ANT. MPa,,�YEES OR
<br /> OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS E PRM 11 ELY QMJSED BY
<br /> THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNS�e\
<br /> It is mutually negotiated between the.parties that the indem fioation I bli ation s all include all
<br /> claims brought by Agency's employees against BN•F, its ,2C- ts, a ants, employees or
<br /> otherwise, and Agency expressly waives its immun;ty'u der the i •ustri I surance act (RCW
<br /> Title 51)and assumes potential liability for all actions • • •ht by its - ployees.
<br /> 17. Agency must give BNSF's Manager of P b E Projects ''en notiev o proceed ("Notice to
<br /> Proceed") with the railroad work after receipt of I- es - VI nds'a-[(` ° 'oject. BNSF will not begin the
<br /> railroad work (including, without limitation, • ec i -ment o` J..lies,(Ki ..ment or materials) until written
<br /> notice to proceed is received from Agenc ,
<br /> (****Drafter's Note: Insert the folio %j).1_i is rovisio ii a ecessary:
<br /> 18. Agency must perfor - r s eces -If work to o. ain the permanent closure and vacation of
<br /> Road/Avenuece os (_e SF's ig 4-of-way and must barricade the road approaches prior to
<br /> completion of the Project 1I' SF I I coopera vv :th Agency to achieve the closure and vacation of
<br /> 'oad/AvenucA d wil fiGno e cr. sing surface within its right-of-way. 1
<br /> [**** -* k-eil TO 'AFTER: I the f,C el ing provision if financial assurances are necessary:
<br /> 19. l; Agency ag,-e- (0 . Ovid- B Sr ith one of the following credit enhancements guaranteeing the
<br /> total a' oun o ''e ey s 1 a ial ob igations (including, without limitation, liquidated damages, indemnity
<br /> obligation an ter expens=s)under this Agreement:
<br /> 1
<br /> (a) I,,rovocab Ba k Letter of Credit drawn upon a bank satisfactory to BNSF;
<br /> (b) .uret► oo • underwritten by an insurance company listed in the Department of Treasury
<br /> Fder-a'Register with terms acceptable to BNSF, in BNSF's sole discretion; or
<br /> (c) A posted cash deposit via wire transfer to a BNSF deposit account.
<br /> Any irrevocable letter of credit or surety bond provided to BNSF pursuant to this provision shall have a
<br /> minimum term of eighteen (18) months. The bank issuing the letter of credit and the insurance company
<br /> issuing the surety bond shall notify BNSF thirty (30) days prior to the expiration date of the letter of credit
<br /> or the surety bond. Upon expiration of any surety bond or letter of credit, Agency must immediately
<br /> provide BNSF with a substitute letter of credit, surety bond or cash deposit as set forth above until
<br /> Agency's financial obligations to BNSF are fully and finally satisfied.
<br /> Any cash deposit provided under this provision will be held in a non-interest bearing account in the name
<br /> of BNSF. If Agency's financial obligations at the end of the Project are less than the amount of the cash
<br /> deposit, BNSF shall refund any remaining sum to Agency.
<br /> 2 Form 0105 Rev.06/01/05
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