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Contract Number: BF-20583561
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<br />16) TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY
<br />RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF & MNNR,
<br />ITS 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
<br />INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
<br />OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS
<br />CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR
<br />ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO
<br />PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS,
<br />EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
<br />AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF
<br />AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
<br />AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY’S
<br />BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT
<br />GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
<br />ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE
<br />TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN
<br />ARTICLE II OF THIS AGREEMENT, (VI) AGENCY’S OCCUPATION AND USE OF
<br />BNSF’S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION,
<br />SUBSEQUENT MAINTENANCE OF THE PROJECT BY AGENCY, OR (VII) AN ACT
<br />OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES,
<br />EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY
<br />EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE
<br />CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE
<br />AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION,
<br />INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
<br />NEGLIGENCE OF BNSF OR MNNR, 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 OR MNNR.
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