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Contract Number: BF-20583561 <br /> <br /> <br /> <br />A. The Contractor must observe and comply with all provisions, obligations, <br />requirements and limitations contained in the Agreement, and the Contractor <br />Requirements set forth on Exhibit “C” attached to the Agreement and this <br />Agreement, including, but not be limited to, payment of all costs incurred for any <br />damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from <br />use, occupancy, or presence of its employees, representatives, or agents or <br />subcontractors on or about the construction site. Contractor shall execute a <br />Temporary Construction Crossing Agreement or Private Crossing Agreement <br />(http://www.bnsf.com/communities/faqs/permits-real-estate/), for any temporary <br />crossing requested to aid in the construction of this Project, if approved by BNSF. <br /> <br />7) TRAIN DELAY <br /> <br />A. Contractor is responsible for and hereby indemnifies and holds harmless Railway <br />(including its affiliated railway companies, and its tenants) for, from and against all <br />damages arising from any unscheduled delay to a freight or passenger train which <br />affects Railway's ability to fully utilize its equipment and to meet customer service <br />and contract obligations. Contractor will be billed, as further provided below, for <br />the economic losses arising from loss of use of equipment, contractual loss of <br />incentive pay and bonuses and contractual penalties resulting from train delays, <br />whether caused by Contractor, or subcontractors, or by the Railway performing <br />work under this Agreement. Railway agrees that it will not perform any act to <br />unnecessarily cause train delay. <br /> <br />B. For loss of use of equipment, Contractor will be billed the current freight train hour <br />rate per train as determined from Railway's records. Any disruption to train traffic <br />may cause delays to multiple trains at the same time for the same period. <br /> <br />C. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain <br />other grain, intermodal, coal and freight trains operate under incentive/penalty <br />contracts between Railway and its customer(s). Under these arrangements, if <br />Railway does not meet its contract service commitments, Railway may suffer loss <br />of performance or incentive pay and/or be subject to penalty payments. Contractor <br />is responsible for any train performance and incentive penalties or other <br />contractual economic losses actually incurred by Railway which are attributable to <br />a train delay caused by Contractor or its subcontractors. <br /> <br />D. The contractual relationship between Railway and its customers is proprietary and <br />confidential. In the event of a train delay covered by this Agreement, Railway will <br />share information relevant to any train delay to the extent consistent with Railway