2006/05/31 Council Agenda Packet

• the Removal Tracks once BNSF's operation can be relocated to the Connecting Track as set forth in this Agreement.. F. The sequence of actions contemplated by this Agreement is set forth in Exhibit A-1 ("Anticipated Timeline"). AGREEMENTS In consideration of the mutual covenants set forth in this Agreement and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BNSF and City agree as follows: Section 1 Exchange Properties. 1.1 City Property. Subject to the terms and conditions set forth in this Agreement, City agrees to convey the City Property to BNSF on the Closing Date (defined below) in the following conveyances: 1.1.1 City agrees to quitclaim that certain portion of the City Property described as Parcels 9, 10, 12, 13, and 15 on Exhibit A, which together total approximately 5.09 acres (the "Fee Parcel"), to BNSF by quitclaim deed ("City Property Deed"), the City Property Deed to be in form and substance identical to that set forth on Exhibit B attached hereto and incorporated herein by this reference. 1.1.2 City agrees to grant and convey a non-exclusive easement for future wetlands mitigation over, upon and across that certain portion of the City Property described as Parcels El, E2 and E3 on Exhibit A, which together total approximately 7.88 acres (the "Mitigation Easement Parcel"), to BNSF by an instrument (the "Mitigation Easement") in form and substance identical to that set forth on Exhibit C attached hereto and incorporated herein by this reference. If at any time after Closing and before BNSF uses Parcel E3 for wetland mitigation purposes, the City desires to use a portion of Parcel E3 for its development and desires that the property area covered by the related Mitigation Easement be revised, the City shall give written notice of that desire to BNSF along with the City's proposed revisions; provided, however, that any proposed revision to the property area covered by such Mitigation Easement must provide BNSF with mitigation and real estate value that is equivalent or greater than the mitigation and real estate value of the original Mitigation Easement. BNSF, in its sole and absolute discretion, may accept or reject any such proposed revision. If a proposed revision is accepted by BNSF, then the conveyance of the revised mitigation easement shall be on terms mutually acceptable to the parties; provided however, the parties agree that any such conveyance shall be at City's sole cost and BNSF shall not incur any cost or be subject to any taxable effect as a result of the conveyance. In addition, the City agrees to issue a revised Mitigation Plan (as hereinafter defined) and Mitigation Plan Compliance Letter(as hereinafter defined) 29 Exchange Agreement -2- DRAFT 5/23/06