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7 <br /> ' 11.2 New Crossings. <br /> 11.2.1 41 S` Street Overpass. As noted above, City has constructed the 41st Street <br /> Overpass. The construction of the 41st Street Overpass has been done at City's sole cost <br /> and expense, and BNSF shall have no obligation therefore except to the extent expressly <br /> set forth in the C&M Agreement. <br /> 11.3 Future Crossings. <br /> 11.3.1 36`h Street/Lenora Crossing. Subject to the limitations set forth in this <br /> Section 11.3.1, City reserves the right to construct, at City's sole cost and expense, a <br /> grade-separated pedestrian overcrossing or a grade-separated vehicular undercrossing at <br /> 36th Street and/or a grade-separated pedestrian overcrossing at a location between 36th <br /> Street and Lenora Avenue (collectively, the "36th Street/Lenora Crossings"). BNSF <br /> agrees to reasonably cooperate with City in City's efforts to construct the 36th <br /> Street/Lenora Crossings; provided,however, that BNSF shall not be required to incur any <br /> expense or obligation in connection with such crossings. In addition, City covenants and <br /> agrees that such 36th Street/Lenora Crossings, if constructed, shall not limit BNSF's <br /> ability to fully utilize its right-of-way, interfere with BNSF's sight distances or interfere <br /> with the construction of additional tracks as determined by BNSF in its sole and absolute <br /> discretion. <br /> 11.4 Grade-Separated Pacific Avenue Crossing. As part of the consideration from City <br /> to BNSF for BNSF's consent to enter into this Agreement, City hereby acknowledges and agrees <br /> that BNSF has satisfied all obligations towards the previously-completed grade-separated Pacific <br /> Avenue crossing located west of Interstate Highway 5. <br /> 11.5 No Future At-Grade Crossings. The City covenants and agrees that there will be <br /> no future at-grade crossings requested or installed by City or its developers, successors or assigns <br /> across any existing or future track shown on Exhibit A-2 or otherwise located between MP <br /> 1780.70 of Scenic Sub and MP 0.8, C-Line of Bellingham Sub or between MP 1780.70 of Scenic <br /> Sub and 1782.8 of Scenic Sub. This Section 11.5 shall survive the Closing and termination of <br /> this Agreement. <br /> Section 12 Wetlands Mitigation. <br /> 12.1 Mitigation Obligations. As part of the consideration from City to BNSF for <br /> BNSF's consent to enter into this Agreement, City shall undertake and perform, at City's sole <br /> cost and expense, all wetlands mitigation actions necessary in connection with the construction of <br /> the Replacement Facilities (the "Mitigation Obligations"), including without limitation those <br /> actions as further described in the 41st Street Overcrossing ESA. City expressly acknowledges <br /> and agrees that it is solely responsible for all initial and ongoing construction, monitoring, <br /> maintenance, operation and other actions in connection with or related to the Mitigation <br /> Obligations, and, to the fullest extent allowed by law, City hereby indemnifies, defends and holds <br /> harmless and hereby waives, releases and discharges forever BNSF and BNSF's officers, <br /> directors, shareholders, employees and agents from any and all present or future claims or <br /> Exchange Agreement -20- DRAFT 5/23/06 <br /> 47 <br />