2006/05/24 Council Agenda Packet

13 EASEMENT referred to as Parcel 10 on the survey prepared for Grantor by Perteet Engineering, Inc., entitled "Right-of-Way Exchange" and dated 9-6-05 ("Parcel 10"). Parcel 10 includes the Easement premises. The Easement premises is adjacent to land owned by BNSF encumbered by an elevated easement to Grantee for the widening of the existing I-5 overpasses with said elevated easement subject to that certain Construction and Maintenance Agreement, I-5 Everett HOV Overpasses (RR MP 1782.46, LS 37 and RR MP 0.15, LS 408) Everett, Washington dated as of January 25, 2006, (the "C&M Agreement"). If and when BNSF acquires the Easement premises, the terms of the C&M Agreement are incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer in effect. The parties acknowledge that the C&M Agreement includes access restrictions to portions of BNSF's adjacent property and those restrictions will also apply to all rights of access of the Grantee to the Easement premises and all land within the BNSF Triangle (as defined in the C&M Agreement), whether any such right of access is or was granted pursuant to this Easement or any easement or other document, and this Easement shall so amend any other such access rights to the extent related to the property restricted in the C&M Agreement. If and when BNSF acquires the Easement premises, the improvements contemplated in this Easement must be maintained in strict compliance with the plans and specifications approved by BNSF as set forth in said C&M Agreement 6. On condition that Grantee on behalf of its successor(s) and assigns, by acceptance hereof, covenants and agrees not to construct, without the prior written consent of Grantor, or its successors or assigns, any additional structures on or within the Easement herein granted. 7. The Grantee or its contractor(s) shall telephone BNSF's Communication Network Control Center at (800)533-2891 (a 24 hour number) to determine if fiber optic cable is buried anywhere on the Easement premises; and if so, the Grantee or its contractor(s) will contact the telecommunications company(ies) involved, and make arrangements with the telecommunications company(ies) for protection of the fiber optic cable prior to beginning any work on the Easement premises. 8. If said described Easement premises, or any part thereof, shall at any time cease to be used by said Grantee, or by the public, for the purpose, as aforesaid, or should they be converted to any other use whatsoever, or should the Grantee fail to remedy a violation of any of the conditions herein expressed within sixty (60) days after written notice from Grantor of any such violation, then and in any such event, all the right, title, interest,benefits and enjoyment of said Grantee, or of the public,in and to said Easement Page 3 of 10 pages Parcel No. 1-22125 103