2005/11/02 Council Agenda Packet

4 Federal Highway Administration, Washington State Department of Transportation and the City of Everett Department of Public Works ("41st Street Overcrossing ESA"). 4.1.2 City covenants and agrees to obtain all necessary Regulatory Approvals prior to the commencement of construction of the Replacement Facilities. Submissions for most of the Regulatory Approvals listed on Exhibit H have already been reviewed by BNSF, submitted by the City, and approved, as indicated on Exhibit H. BNSF reserves the right to review and approve all submissions for Regulatory Approvals made after the effective date of this Agreement, prior to such submissions to the applicable Governmental Authorities, and City agrees that it shall not submit any such applications for Regulatory Approvals prior to obtaining BNSF's written approval of such applications. City also agrees to promptly provide BNSF with copies of all Regulatory Approvals obtained. BNSF agrees to reasonably cooperate with City in the obtaining of the Regulatory Approvals; provided, however, BNSF shall not be obligated to incur any cost or expense related to obtaining the Regulatory Approvals. 4.1.3 BNSF has determined that no additional approvals for abandonment and removal of the Existing Tracks on the BNSF Property are required from any other party or Governmental Authortiy, including without limitation, the Surface Transportation Board. If BNSF subsequently determines that additional approvals are required for such abandonment and removal, BNSF shall, at its own expense, obtain such approvals. 4.2 Mitigation Plan Compliance Letter. City has previously prepared a wetlands mitigation concept plan ("Mitigation Plan"), attached hereto as Exhibit I and incorporated herein by this reference, for the wetlands mitigation necessary for a possible future fourth track and an associated access/maintenance road parallel to and east of the existing BNSF mainline tracks and the track known as the"Turkey Trail"track ("Future Track Expansion") as described in such Mitigation Plan. The BNSF mainline tracks and the Turkey Trail track are shown on the diagram attached as Exhibit I-1. Any changes to the Mitigation Plan for the Future Track Expansion shall be subject to the prior written approval of BNSF. Prior to the Closing, City shall deliver to BNSF a letter ("Mitigation Plan Compliance Letter") signed by the City's Planning Director that affirms compliance of the Mitigation Plan with the City's current sensitive areas regulations, such letter being in the form attached hereto as Exhibit J and incorporated herein by this reference. City's obligation to deliver the Mitigation Plan Compliance Letter to BNSF under this Section 4.2 shall be in addition to, and not in limitation of, City's continuing Mitigation Obligations (defined below) for the Replacement Facilities described in Section 12 below. 4.3 Acquisition and Conveyance of Port Parcel. 4.3.1 City acknowledges that a portion of the City Property intended to be conveyed to BNSF at the Closing is currently owned by the Port of Everett ("Port Parcel"), as such Port Parcel is depicted as Parcel 9 on Exhibit A. City covenants and agrees to acquire the Port Parcel, at its sole cost and expense, prior to the Closing Date, and to convey such Port Parcel to BNSF at the Closing as part of the Fee Parcel. 4.3.2 All costs and expenses that City incurs or may incur to acquire the Port Parcel pursuant to this Agreement shall be at the sole cost of City and shall not be included in the Reimbursement Cap. 4.4 Removal of Improvements From City Property. Prior to the Closing Date, City, at City's sole cost and expense, shall remove all improvements (including without limitation the GTS Drywall Building on Parcel 10 and all other buildings and other structures), rubbish and debris from the City Property, other than the structures and facilities that are retained as part of the City Reserved Rights under Section 9.2 below. Upon such removal, City further agrees to grade and otherwise restore the surface of the City Property to its existing grade. 4.5 Closure of Junction Avenue Crossing. On or before the Closing Date, City covenants and agrees to permanently close, completely vacate and fence the pedestrian and vehicular crossing located at 17 Exchange Agreement -5- DRAFT 10/19/05 SEA 1713601v1 39546-32