2005/11/02 Council Agenda Packet

4 Junction Avenue (the "Junction Avenue Crossing"), which Junction Avenue Crossing is depicted on Exhibit A. As part of the Closing, City agrees to quitclaim to BNSF any interest it may have in the Junction Avenue Crossing and sign any other documents reasonably requested and provided by BNSF. Prior to the Closing, City shall deliver to BNSF evidence satisfactory to BNSF ("Junction Avenue Closure Documentation")that the Junction Avenue Crossing has been permanently closed, completely vacated and fenced by City to BNSF's satisfaction so that BNSF may safely remove the crossing surface. 4.6 Two-Lane Pacific Avenue Crossing. 4.6.1 Revised Pacific Avenue Crossing. The two-lane Pacific Avenue at-grade crossing located east of Interstate Highway 5 (the "Two-Lane Pacific Avenue Crossing"), is depicted on Exhibit A. The Two-Lane Pacific Avenue Crossing will remain open in an improved two-lane configuration as depicted on Exhibit K ("Revised Pacific Avenue Crossing") attached and incorporated herein by this reference. The Revised Pacific Avenue Crossing includes the following features, subject to final approval of the construction plans by BNSF prior to commencement of construction: perpendicular street approaches; traffic lights on Pacific Avenue (eastbound) and Chestnut Street (southbound); center median; emergency loops; cantilevered gates; and such other features as are reasonably required by BNSF to accomplish the Revised Pacific Avenue Crossing. The approved construction plans will indicate those features which are the responsibility of the City to construct and those features which, upon approval by BNSF, are the responsibility of BNSF to construct. 4.6.2 Construction at City Expense. The City will pay all design and construction expenses for the Revised Pacific Avenue Crossing, and such expenses shall not be included in the Reimbursement Cap (defined below). For its expenses in constructing and installing any portion of the Revised Pacific Avenue Crossing, BNSF shall present an invoice to the City upon completion of BNSF's work and the City shall reimburse BNSF within thirty (30) days after the receipt of such invoice. 4.6.3 Timing. Upon execution of this Agreement, the City will commence preparation of the construction drawings to accomplish the Revised Pacific Avenue Crossing. The completed construction drawings will be presented to BNSF's Contact Person for review and approval prior to the commencement of construction by BNSF of the Replacement Facilities (defined below). Subject to BNSF's approval of the timing and schedule for construction of the Revised Pacific Avenue Crossing, the City and BNSF shall complete their construction of the Revised Pacific Avenue Crossing within 180 days of completion of the removal of the Existing Tracks (defined below) in accordance with Section 10.3 below. 4.6.4 Future Use. The City covenants and agrees not to expand the capacity of the Two- Lane Pacific Avenue Crossing for vehicular use. The parties further agree to work cooperatively in order to accomplish closing and/or at grade separation of the Revised Pacific Avenue Crossing as soon as reasonably practical. 4.7 Boundary Line Adjustments. At or prior to the Closing, City covenants and agrees to obtain all boundary line adjustments on the Exchange Properties necessary for the Closing. All costs of obtaining such boundary line adjustments shall be paid by the City and shall not be included in the Reimbursement Cap. 4.8 Legal Opinion. At or prior to the Closing, City covenants and agrees to provide BNSF a legal opinion from its outside counsel, in form and substance acceptable to BNSF, stating that the indemnification and reimbursement obligations of City under this Agreement are fully enforceable against City by BNSF and the City has the requisite power and authority to agree to such indemnification and reimbursement obligations. 18 Exchange Agreement -6- DRAFT 10/19/05 SEA 1713601v1 39546-32