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<br /> BNSF Property. The BNSF Reserved Rights shall be binding upon City and its heirs, successors
<br /> and assigns, shall be included in the BNSF Property Deed and shall be covenants running with
<br /> the land benefiting BNSF and BNSF's successors and assigns. BNSF hereby specifically
<br /> reserves to itself and its successors and assigns the following interests in the BNSF Property,
<br /> which are referred to herein collectively as the "BNSF Reserved Rights":
<br /> 9.2.1 Unless BNSF becomes fully satisfied in its sole and absolute discretion
<br /> through review of the Final Updated Survey and BNSF's own internal records that such
<br /> interests do not currently exist, BNSF shall reserve unto itself, its successors and assigns:
<br /> all existing fiber optics and telecommunications facilities and all related appurtenances,
<br /> including without limitation existing towers, equipment shelters and wiring; all existing
<br /> longitudinal licenses, leases and other agreements with third parties affecting the BNSF
<br /> Property that extend beyond the limits of the BNSF Property; and a non-exclusive
<br /> perpetual access easement to, from and across the BNSF Property for the operation,
<br /> maintenance, repair, removal, modification and reinstallation of such existing fiber optics
<br /> and telecommunications facilities
<br /> 9.3 City Reserved Rights. Notwithstanding the provisions of Section 1.1 above, the
<br /> parties acknowledge and agree that the City Property quitclaimed to BNSF pursuant to this
<br /> Agreement excludes all rights in and to the City Reserved Rights, which City Reserved Rights
<br /> may be exercised by City as deemed necessary or advisable by City and without charge and
<br /> without notification to BNSF; provided, however, City's exercise of the City Reserved Rights
<br /> shall not unreasonably interfere with BNSF's use and occupancy of the City Property. The City
<br /> Reserved Rights shall be binding upon BNSF and its heirs, successors and assigns, shall be
<br /> included in the City Property Deed and shall be covenants running with the land benefiting City
<br /> and City's successors and assigns. City hereby specifically reserves to itself and its successors
<br /> and assigns the following interests in the City Property, which are referred to herein collectively
<br /> as the "City Reserved Rights":
<br /> 9.3.1 The sewer pump station and utility lines on Parcels 10 and 15 and a water
<br /> main on Parcels 12 and 15, all as shown on the Survey (collectively, "City Reserved
<br /> Property"). BNSF shall execute and deliver to City, easements for the ownership,
<br /> operation, maintenance, repair, removal, modification and reinstallation of such
<br /> structures and facilities, together with access, in the form attached hereto as Exhibit M
<br /> ("Sewer Easement") and Exhibit N ("Water Main Easement"). City shall remain solely
<br /> liable and responsible for the City Reserved Rights and City Reserved Property. TO
<br /> THE FULLEST EXTENT ALLOWED BY LAW, CITY HEREBY INDEMNIFIES,
<br /> DEFENDS AND HOLDS HARMLESS AND HEREBY WAIVES, RELEASES AND
<br /> DISCHARGES FOREVER BNSF AND BNSF'S OFFICERS, DIRECTORS,
<br /> SHAREHOLDERS, EMPLOYEES AND AGENTS FROM ANY AND ALL PRESENT
<br /> OR FUTURE CLAIMS OR DEMANDS, AND ANY AND ALL DAMAGES,
<br /> INJURIES, LIABILITIES, CAUSES OF ACTIONS (INCLUDING, WITHOUT
<br /> LIMITATION, CAUSES OF ACTION IN TORT), COSTS AND EXPENSES
<br /> (INCLUDING, WITHOUT LIMITATION, FINES, PENALTIES AND JUDGMENTS,
<br /> AND ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER,
<br /> KNOWN OR UNKNOWN, ARISING FROM OR IN ANY WAY RELATED TO
<br /> Exchange Agreement -16- l 3 DRAFT 5/23/06
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