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date on which Agency and/or its Contractor will meet with BNSF for the purpose of
<br /> making final inspection of the Project.
<br /> 16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY
<br /> RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS
<br /> AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL
<br /> REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
<br /> AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
<br /> FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
<br /> SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT
<br /> LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND
<br /> OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE
<br /> EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY
<br /> ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART)
<br /> (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
<br /> SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE
<br /> CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY
<br /> THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
<br /> AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE
<br /> SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
<br /> CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR
<br /> ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE
<br /> TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY
<br /> PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR
<br /> INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
<br /> CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
<br /> AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY
<br /> OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT
<br /> MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR
<br /> OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
<br /> CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY
<br /> OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE
<br /> LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT
<br /> IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS
<br /> OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS
<br /> AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
<br /> THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
<br /> MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. IT IS MUTUALLY NEGOTIATED
<br /> BETWEEN THE PARTIES THAT THE INDEMNIFICATION OBLIGATION SHALL
<br /> INCLUDE ALL CLAIMS BROUGHT BY AGENCY'S EMPLOYEES AGAINST BNSF,
<br /> ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, AND AGENCY
<br /> EXPRESSLY WAIVES ITS IMMUNITY UNDER THE INDUSTRIAL INSURANCE ACT
<br /> (RCW TITLE 51) AND ASSUMES POTENTIAL LIABILITY FOR ALL ACTIONS
<br /> BROUGHT BY ITS EMPLOYEES.
<br /> 9
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