|
(c) In addition to the liability terms contained elsewhere in this Agreement, the contractor
<br />hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
<br />liability, and expense whatsoever (including, without limitation, attorney's fees and court
<br />costs and expenses) arising out of or in any way contributed to by any act or omission of
<br />Contractor, its subcontractors, agents and /or employees that cause or in any way or
<br />degree contribute to (1) any damage to or destruction of any Lines by Contractor, and /or
<br />its subcontractors, agents and /or employees, on BNSF's property or within BNSF's right -
<br />of -way, (2) any injury to or death of any person employed by or on behalf of any
<br />telecommunications company, and /or its contractor, agents and /or employees, on
<br />BNSF's property or within BNSF's right -of -way, and/or (3) any claim or cause of action for
<br />alleged loss of profits or revenue by, or loss of service by a customer or user of such
<br />telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL
<br />NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
<br />DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM 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 GROSS NEGLIGENCE OF BNSF. [Note to Drafter: In California,
<br />replace the word " "INTENTIONAL" in the last sentence with the word "WILLFUL ".
<br />Further, replace the word "GROSS" in the last sentence with the word "SOLE ".]
<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 with
<br />any telecommunications company(ies) in performing such rearrangements.
<br />(e) All work performed within the limits of BNSF's right -of -way shall be performed in a good
<br />and workmanlike manner in accordance with plans and specifications approved by
<br />BNSF.
<br />(f) Changes or modifications during construction that affect safety or BNSF operations shall
<br />be subject to BNSF's approval.
<br />(g) No work shall be commenced within BNSF's right -of -way until contractors employed in
<br />connection with said work shall have (i) executed and delivered to BNSF a letter
<br />agreement in the form of Exhibit C -I , and (ii) delivered to and secured BNSF's approval of
<br />the required insurance; and
<br />(h) 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 />10. 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,
<br />Agency shall notify BNSF's Manager of Public Projects, in writing, of the date on which
<br />Agency and /or its Contractor will meet with BNSF for the purpose of making final inspection
<br />of the Project.
<br />At Grade Crossing Agreement without Signals 5
<br />Form 010 ;Rev. 10/03
<br />-342-
<br />
|