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<br />under Section 4 below, agreed to by BIC) in any order authorizing the
<br />construction of the underpass project, including temporary facilities, and
<br />restoration of areas used for temporary facilities to the reasonable satisfaction of
<br />the PUC, UPRR, and the City. BIC shall be solely responsible for all costs related
<br />to the design, development, financing, inspection fees, and construction of the
<br />underpass project, including application, consultant fees, and project conditions
<br />and/or fines or penalties imposed by the PUC, until such time as the respective
<br />elements of the underpass project, i.e., the railroad structure and the roadway
<br />improvements, are accepted by the UPRR, and the City. Nothing in this
<br />Agreement shall preclude BIC's appealing any order issued by the PUC.
<br />4. Cooperation of City. To the extent reasonably requested by BIC, City shall
<br />cooperate with and assist BIC in the processing of the application through the
<br />PUC. In addition, City agrees that neither the City nor any "City Representative"
<br />(as hereinafter defined) will agree to any condition to the PUC's order or to any
<br />revision to the design of the underpass project facilities without BIC's prior
<br />written consent.
<br />Due Diligence. BIC agrees to diligently pursue the design, development and
<br />construction of the underpass project, subject to the requirement of Section 3.16
<br />of the Development Agreement.
<br />6. Ownership. Following construction of the underpass project and acceptance of
<br />the roadway improvements, including, but not limited to street improvements,
<br />storm drain pumps and related equipment (the "Roadway Improvements"), by the
<br />City, the ownership of the Roadway Improvements shall pass to the City, and BIC
<br />shall have the right to utilize the Roadway Improvements in the same manner as
<br />other members of the public. The ownership of the railroad structure and related
<br />improvements shall pass to the UPRR. Responsibility for maintenance, once
<br />Roadway Improvements and the railroad structure are accepted by the City and
<br />UPRR respectively, shall be established through a maintenance agreement that is
<br />acceptable to both the City and UPRR. City hereby agrees, following
<br />construction of the underpass project, to accept the Roadway Improvements and
<br />not to delay or unreasonably withhold City's approval of the maintenance
<br />agreement between the City and UPRR. No conveyance by BIC of Roadway
<br />Improvements to the City or the railroad structure and improvements to UPRR
<br />shall affect title to the real estate underlying such improvements.
<br />7. Indemnity. BIC shall indemnify, defend and hold harmless the City, its
<br />employees, Council, commissions, and agents ("City Representatives") from any
<br />loss, claims, liability or expenses, including reasonable attorney's fees and costs,
<br />for personal injury or death, of property damage, arising out of or in connection
<br />with the activities of BIC or its employees or agents in the performance of its
<br />obligations , or lack thereof, under this Agreement; provided, however, the
<br />foregoing indemnity shall not include any personal injury, death or property
<br />damage arising as a result of the negligence or willful misconduct of the City or
<br />any City Representatives or any third party.
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