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11. In addition to the provisions set forth above, Agency must incorporate in each contract for
<br />construction of the Project or the specifications therefor the (i) the provisions set forth in
<br />Article IV, Sections 2 and 3; and (ii) the provisions set forth in Exhibit C and Exhibit C -1
<br />attached hereto and incorporated herein.
<br />12. In order to prevent damage to BNSF trains and property, Agency must require its
<br />contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to (i)
<br />commencing work on BNSF property or near BNSF's tracks; or (ii) requesting a BNSF
<br />flagman in accordance with the requirements of Exhibit C attached hereto. Agency or
<br />Agency's contractor is responsible for the costs of flagmen during the construction or
<br />maintenance of the public road contemplated in this Agreement.
<br />To the fullest extent permitted by law, Agency hereby releases, indemnifies, defends and
<br />holds harmless BNSF, its affiliated companies, partners, successors, assigns, legal
<br />representatives, officers, directors, shareholders, employees and agents for, from and
<br />against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
<br />of action, suits, demands, judgments and expenses (including, without limitation, court costs
<br />and attorneys' fees) of any nature, kind or description of any person (including, without
<br />limitation, the employees of the parties hereto) or entity directly or indirectly arising out of,
<br />resulting from or related to (in whole or in part) (i) the use, occupancy or presence of Agency,
<br />its contractors, subcontractors, employees or agents in, on, or about the construction site, (ii)
<br />the performance, or failure to perform by the Agency, its contractors, subcontractors,
<br />employees, or agents, its work or any obligation under this Agreement, or (iii) the sole or
<br />contributing acts or omissions of Agency, its contractors, subcontractors, employees, or
<br />agents in, on, or about the construction site. THE LIABILITY ASSUMED BY AGENCY WILL
<br />NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
<br />DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY
<br />THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE,
<br />EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE
<br />INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.[
<br />13. Agency agrees that it shall, at its sole cost and expense, make changes to the public road or
<br />crossing contemplated under this Agreement when such changes are necessary to
<br />accommodate BNSF's use of its right -of -way or property.. Additionally, Agency will be
<br />responsible for the costs of any changes or alterations to BNSF facilities, including, without
<br />limitation, rail corridor fences, signal lines, power or other communication poles or wire lines
<br />located within the Easement Area when necessary to accommodate BNSF's use of its right-
<br />of-way or property. Agency will promptly reimburse BNSF for all costs associated with any
<br />such changes. Agency also agrees that any future traffic control systems at the crossing or
<br />crossing illumination will be installed at no cost to 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 .
<br />manner and each portion shall be promptly commenced by the party obligated hereunder to
<br />perform the same and thereafter diligently prosecuted to conclusion in its logical order and
<br />sequence. Furthermore, any changes or modifications during construction which affect
<br />BNSF shall be subject to BNSF's approval prior to the commencement of any such changes
<br />or modifications.
<br />2. Agency shall require its contractor(s) to reasonably adhere to the Project's construction
<br />schedule for all Project work. The parties hereto mutually agree that BNSF's failure to
<br />At Grade Crossing Agreement without Signals 6
<br />Form 010 Rev. 10/03
<br />-343-
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