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4 <br /> PROPERTY EXCHANGE AGREEMENT <br /> THIS PROPERTY EXCHANGE AGREEMENT ("Agreement") is entered into as of the day <br /> of September, 2005 (the "Effective Date"), between BNSF RAILWAY COMPANY, a Delaware <br /> corporation ("BNSF"), and CITY OF EVERETT, a Washington municipal corporation and charter city <br /> ("City"). <br /> RECITALS <br /> A. BNSF owns certain parcels of real property totaling approximately 28.88 acres, which <br /> parcels are located at or near the Snohomish River in the City of Everett, Snohomish County, Washington <br /> (collectively, such parcels are referred to herein as the "BNSF Property"). The BNSF Property is <br /> depicted as Parcels 1, 2, 3, 4, 5, 6, 7, 8 and 11 on the drawing attached hereto as Exhibit A and <br /> incorporated herein by this reference. <br /> B. City owns (or shall acquire prior to or at the Closing, as further defined and described in <br /> this Agreement) certain parcels of real property totaling approximately 14.62 acres, which parcels are <br /> located at or near the Snohomish River in the City of Everett, Snohomish County, Washington <br /> (collectively, such parcels are referred to herein as the "City Property"). The City Property is depicted as <br /> Parcels 9, 10, 12, 13, 14, 15, E1, E2, E3 and on the drawing attached hereto as Exhibit A and <br /> incorporated herein by this reference. The BNSF Property and the City Property are sometimes <br /> collectively referred to herein as the"Exchange Properties" or individually as an "Exchange Property". <br /> C. BNSF currently conducts railroad operations over multiple tracks located on the BNSF <br /> Property. In connection with its public land use objectives, City desires to acquire the BNSF Property for <br /> public use and development. City is prepared to institute eminent domain proceedings to acquire the <br /> BNSF Property. In order to avoid the expense and delay of such condemnation action by City, BNSF is <br /> willing to quitclaim to City, and City is willing to accept, all of BNSF's right, title and interest in and to the <br /> BNSF Property in lieu of such condemnation action on the terms and conditions set forth in this <br /> Agreement. <br /> D. The sequence of actions contemplated by this Agreement are set forth in Exhibit A-1 <br /> ("Anticipated Timeline"). <br /> AGREEMENTS <br /> In consideration of the mutual covenants set forth in this Agreement and for other valuable <br /> consideration, the receipt and sufficiency of which are hereby acknowledged, BNSF and City agree as <br /> follows: <br /> Section 1 Exchange Properties. <br /> 1.1 City Property. Subject to the terms and conditions set forth in this Agreement, City <br /> agrees to convey the City Property to BNSF on the Closing Date (defined below) in the following <br /> conveyances: <br /> 1.1.1 City agrees to quitclaim that certain portion of the City Property described as <br /> Parcels 9, 10, 12, 13, and 15 on Exhibit A, which together total approximately 5.15 acres (the <br /> "Fee Parcel"), to BNSF by quitclaim deed ("City Property Deed"), the City Property Deed to be <br /> in form and substance identical to that set forth on Exhibit B attached hereto and incorporated <br /> herein by this reference. <br /> 1.1.2 City agrees to grant and convey a non-exclusive easement for future wetlands <br /> J mitigation over, upon and across that certain portion of the City Property described as Parcels El, <br /> Exchange Agreement -1- DRAFT 10/19/05 <br /> SEA 1713601v1 39546-32 <br />