2006/05/31 Council Agenda Packet

survive Closing, shall be binding on the parties' successors and assigns and shall not merge into the BNSF Property Deed or any closing documents; 3.3.2 Any judgment or mortgage against BNSF that may appear of record as a lien against the BNSF Property shall be settled and satisfied by BNSF if and when it is judicially determined to be valid, and BNSF hereby indemnifies City and Rainier Title for any losses or costs, including the costs incurred by the City in exercising its eminent domain powers, arising out of BNSF's failure to have such a judgment or mortgage lien so settled and satisfied; and 3.3.3 The releases, settlements or satisfaction by BNSF of such liens referred to in Sections 3.3.1 or 3.3.2 above shall be deemed an acceptable cure of such items for purposes of this Section 3. The provisions of this Section 3.3 shall survive the Closing of the exchanges contemplated under this Agreement. 3.4 No Limitation on Eminent Domain Rights. Notwithstanding the provisions elsewhere in this Agreement to the contrary, BNSF acknowledges that City may initiate any condemnation or eminent domain action against the BNSF Property permitted by applicable law and City is not waiving any such rights. Section 4 City Obligations. 4.1 Regulatory Approvals. 4.1.1 City shall be responsible, at its sole cost and expense, to obtain the approvals required in connection with the construction of the Replacement Facilities (collectively, "Regulatory Approvals") from all governmental authorities with jurisdiction over the Exchange Properties (collectively, "Governmental Authorities"), which include without limitation the Regulatory Approvals listed on Exhibit G and the Regulatory Approvals necessary or appropriate to facilitate track relocation and associated site work as shown in the Environmental Assessment— 41st Street Overcrossing Freight Mobility and Railroad Track Removal and Upgrade Project, dated February 11, 2004, prepared by the U.S. Department of Transportation, 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 and in no event later than December 31, 2006. Submissions for most of the Regulatory Approvals have already been reviewed by BNSF, submitted by the City, and approved, as indicated on Exhibit G. 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 Exchange Agreement -5- DRAFT 5/23/06 32