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<br /> ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
<br /> NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
<br /> OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
<br /> PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS
<br /> NEGLIGENCE OF BNSF.
<br /> (d) The Contractor shall be responsible for the rearrangement of any facilities or Lines
<br /> determined to interfere with the construction. The Contractor shall cooperate fully
<br /> with any telecommunications company(ies) in performing such rearrangements.
<br /> 12. Agency shall incorporate in each prime contract for construction of the Project, or the
<br /> specifications therefor (i)the provisions set forth in Article III, Sections 8, 9, 10, 11, and 13; (ii)the
<br /> provisions set forth in Article IV, Sections 3, 4, 10 and 11; and (iii)the provisions set forth in Exhibit C and
<br /> Exhibit C-I, attached hereto and by reference made a part hereof.
<br /> 13. Except as otherwise provided below in this Section 13, all construction work to be performed
<br /> hereunder by Agency for the Project shall be pursuant to a contract or contracts to be let by Agency, and
<br /> all such contracts shall provide:
<br /> (a) All work performed under such contract or contracts within the limits of BNSF's right-of-
<br /> way shall be performed in a good and workmanlike manner in accordance with plans and
<br /> specifications approved by BNSF;
<br /> (b) Changes or modifications during construction that affect safety or BNSF operations shall
<br /> be subject to BNSF's approval;
<br /> (c) No work shall be commenced within BNSF's right-of-way until each of the prime
<br /> contractors employed in connection with said work shall have(i) executed and delivered
<br /> to BNSF a letter agreement in the form of Exhibit C-I, and (ii)delivered to and secured
<br /> BNSF's approval of the required insurance; and
<br /> (d) If it shall be in Agency's best interest, Agency may direct that the construction of the
<br /> Project be done by day labor under the direction and control of Agency, or if at any time,
<br /> in the opinion of Agency, the contractor has failed to prosecute with diligence the work
<br /> specified in and by the terms of said contract, Agency may terminate its contract with the
<br /> contractor and take control over the work and proceed to complete the same by day labor
<br /> or by employing another contractor(s) provided; however, that any contractor(s) replacing
<br /> the original contractor(s) shall be required to comply with the obligations in favor of BNSF
<br /> hereinabove set forth and, provided further,that if such construction is performed by day
<br /> labor, Agency will, at its expense, procure and maintain on behalf of BNSF the insurance
<br /> required by Exhibit C-1.
<br /> 14. Agency shall advise the appropriate BNSF Manager of Public Projects, in writing, of the
<br /> completion date of the Project within thirty (30) days after such completion date. Additionally, Agency
<br /> shall notify BNSF's Manager of Public Projects, in writing, of the date on which Agency and/or its
<br /> Contractor will meet with BNSF for the purpose of making final inspection of the Project.
<br /> 15. To the fullest extent permitted by law, Agency shall release, indemnify defend and hold harmless
<br /> BNSF, its affiliated companies, partners, successors, assigns, legal representatives, officers,
<br /> directors, shareholders, employees and agents for,from and against any and all claims, liabilities,
<br /> fines, penalties, costs, damages, losses, liens, causes of action, suits, demands,judgments and
<br /> expenses(including, without limitation, court costs and attorneys'fees) of any nature, kind or
<br /> description of any person (including, without limitation, the employees of the parties hereto) or
<br /> entity directly or indirectly arising out of, resulting from or related to (in whole or in part) (i)the
<br /> use, occupancy or presence of Agency, its contractors, subcontractors, employees or agents in,
<br /> on, or about the construction site, (ii) the performance, or failure to perform by the Agency, its
<br /> contractors, subcontractors, employees, or agents, its work or any obligation under this
<br /> 9
<br /> Form 0105 Rev. 1/30/03
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