2006/05/31 Council Agenda Packet

, 7 shall make sufficient progress on its construction of the Replacement Facilities, by June 30, 2007, so that it has expended or incurred acquisition and construction costs in the amount of $1,800,000 or more. The parties agree that the amount paid as the Exchange Compensation under Section 6.3.1 will be included for the purposes of reaching the $1,800,000 acquisition and construction cost amount under this section. 10.5.2 BNSF shall periodically prepare and present to City an invoice for Replacement Costs incurred. Within 30 days after the receipt of such invoice, City shall reimburse BNSF for the Replacement Costs incurred as shown in the invoice, subject to the Reimbursement Cap. 10.5.3 In the event that City shall fail to pay any monies due to BNSF, then City shall pay interest on such unpaid sum from thirty (30) days after its due date to the date of payment by City at an annual rate equal to (i) the greater of(a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2-1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by applicable law, whichever is less. 10.5.4 The parties acknowledge and agree that City is obtaining funds for the various costs and expenses to be incurred by City under this Agreement from state and federal funding sources. BNSF agrees to reasonably cooperate, at no cost or expense to BNSF, with City in City's efforts to obtain such funds. 10.5.5 BNSF shall be entitled to retain all monies, if any, received from salvage of the Removal Tracks, without any obligation to account to City for any such amounts received, and such salvage monies, if any, shall not be netted with or otherwise applied to or against the Replacement Costs or the Reimbursement Cap. 10.6 Survival. The provisions of this Section 10 shall survive the Closing contemplated under this Agreement. Section 11 Crossings. 11.1 Existing Crossings to Be Closed. 11.1.1 Junction Avenue Crossing. City, at City's sole cost and expense, has agreed to the immediate and permanent closure of the Junction Avenue Crossing. Pursuant to Section 4.5, City has further agreed to deliver the Junction Avenue Closure Documentation to BNSF on or before the Closing Date. 11.1.2 36`h Street Crossing. Pursuant to that certain Construction and Maintenance Agreement between the parties dated March 8, 2004 (the "C&M Agreement"), City has constructed a grade-separated overpass at 41st Street (the "41St Street Overpass") and has closed the at-grade crossing located at 36th Street and Interstate Highway 5 (the "36th Street Crossing"). Exchange Agreement -19- DRAFT 5/23/06 46