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2003/11/12 Council Agenda Packet
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2003/11/12 Council Agenda Packet
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Council Agenda Packet
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11/12/2003
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• 2 <br /> Agreement, or(iii)the sole or contributing acts or omissions of Agency, its contractors, <br /> subcontractors, employees, or agents in, on, or about the construction site. THE LIABILITY <br /> ASSUMED BY AGENCY SHALL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT <br /> THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR <br /> CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, <br /> EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE <br /> PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE <br /> OF BNSF. <br /> ARTICLE IV—JOINT OBLIGATIONS <br /> IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: <br /> 1. All work contemplated in this Agreement shall be performed in a good and workmanlike manner <br /> and each portion shall be promptly commenced by the party obligated hereunder to perform the same <br /> and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any <br /> changes or modifications during construction which affect BNSF shall be subject to BNSF's approval prior <br /> to the commencement of any such changes or modifications. <br /> 2. The work hereunder shall be done in accordance with the detailed plans and specifications <br /> approved by BNSF. <br /> 3. Agency shall require its contractor(s) to reasonably adhere to the Project's construction schedule <br /> for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in <br /> accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies <br /> shall not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. <br /> Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the <br /> labor forces assigned to complete the railroad work in the event of an emergency to provide for the <br /> immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or <br /> property on or near any BNSF owned property. BNSF shall not be liable for any additional costs or <br /> expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any <br /> reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or <br /> costs resulting from any such reallocation shall not constitute a breach of this Agreement by BNSF. <br /> 4. BNSF shall have the right to stop construction work on the Project if any of the following events <br /> take place: (i) Agency (or any of its contractors) shall perform the Project work in a manner contrary to the <br /> plans and specifications approved by BNSF; (ii) Agency (or any of its contractors) shall, in BNSF's <br /> opinion, prosecute the Project work in a manner which is hazardous to BNSF property,facilities or the <br /> safe and expeditious movement of railroad traffic; or(iii)the insurance described in the attached Exhibit <br /> CC=1 is canceled during the course of the Project. The work stoppage shall continue until all necessary <br /> actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division <br /> Engineer or until additional insurance has been delivered to and accepted by BNSF. Any such work <br /> stoppage under this provision shall not give rise to any liability on the part of BNSF. BNSF's right to stop <br /> the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for <br /> damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF <br /> agrees to immediately notify the following individual in writing: <br /> Dave Davis <br /> City Engineer <br /> 3200 Cedar Street <br /> Everett,WA. 98201 <br /> Telephone No. (425)257-8913 <br /> Telecopy No. (425)257-8856 <br /> 5. Agency shall supervise and inspect the operations of all Agency contractors to assure compliance <br /> with the plans and specifications approved by BNSF, the terms of this Agreement and all safety <br /> Form 0105 Rev. 1/30/03 1 U <br /> 6 <br />
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