2015/05/06 Council Agenda Packet

I (ii) Special assessments, if any, for work on the Property actually commenced or levied prior to the Effective Date of this Agreement, or for work performed by or on Seller's behalf during the Term,shall be paid by Seller. All other special assessments related to the Property that result directly from Buyer's activities on the Property shall be paid by Buyer. (iii) Any income, other taxes, or expenses affecting the Property through the Closing Date accrue to or are the obligation of Seller, as the case may be, unless such items are incurred by Buyer. (iv) Seller and Buyer shall each pay their respective attorney's fees and one-half of the escrow and recording fees. 5. Agreement Regarding Crossing License(s). a. As consideration for the Option as provided for under Section 1 of this Agreement and for use of City property in connection with Pigeon Creek Road as provided for under that certain separate Temporary Construction Easement between Seller and Buyer (the "TCE"), BNSF hereby agrees to grant City the right to apply for and receive, subject to the terms and conditions of 5.d below, all non-exclusive BNSF license or licenses and related easement(s) necessary to construct, maintain and use two (2) crossings of BNSF's rail corridor without payment of any license or crossing application fee or easement fee or compensation of any kind; provided, however, that all BNSF labor, materials, tools and equipment costs of railroad work required in connection with City's construction of the crossings shall be reimbursed by City to BNSF as set forth in the Form Agreement defined below. The crossings shall be limited to the follow specific uses: (i) The non-exclusive license for a utility crossing for the City for its construction, use and maintenance of a 30-inch underground sanitary sewer pipe across the rail corridor at or near County of Snohomish, Line Segment 37, Mile Post 1784.6 and located within two hundred (200)feet west of and parallel to the City's existing 30-inch sanitary sewer pipe that crosses BNSF's rail corridor(the"Utility Crossing"). (ii) A non-exclusive license for the City for its construction, use and maintenance of an overhead, public pedestrian bridge within a crossing area not to exceed fourteen (14) feet in width and located at or near County of Snohomish, Line Segment 37, Mile Post 1784.6 (the"Overhead Crossing"). b. Notwithstanding anything to the contrary contained herein, if the parties fail to execute the TCE contemporaneous with execution of this Agreement, or if City, following BNSF's exercise of its Option, fails to convey the Property to BNSF, then the City's rights with respect to such crossing licenses shall terminate and City shall have no rights under this Section 5. c. City shall have a ten (10) year period following the Effective Date of this Agreement within which to submit an application for the Utility Crossing and the Overhead Crossing (a separate application shall be required for each of the Utility Crossing and Overhead Crossing), together with all then-required standard application submittal requirements for BNSF's review and approval. In addition, within five years of obtaining BNSF's approval(s) for crossing(s), City shall have completed actual construction of all crossing improvements as permitted and approved by BNSF pursuant to the City's crossing application(s). City's failure to timely submit such application(s) and to complete such construction as approved shall be deemed a permanent waiver of its rights as to either or both of the Utility Crossing and Overhead Crossing,as applicable,as set forth in this Section 5. d. Except as expressly provided in this Section 5, nothing within this Section 5 shall be deemed an advance approval of, consent to or waiver of any standard requirements, terms or conditions of BNSF's standard form crossing license and related construction standards and specifications then in use by BNSF at the time of City's submittal of an application for either the Utility Crossing or the Overhead Crossing or the requirements of any state or federal law then in effect, all of which shall be applicable to City's license application(s) at the time of submittal. By way of example only, BNSF's current standard form overpass agreement, which would need to be revised in conformity with this Section 5, is attached hereto as Exhibit"F" ("Form Agreement"). City and BNSF agree and acknowledge that BNSF's standard form crossing agreement and/or overpass agreement then in effect during the 10-year period for the City's exercise of its rights under this Section 5 may include the same, more or different terms or conditions than the Form Agreement attached 3 513 2125.0 7