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7 <br /> ^ <br /> 15.5 WSDOT Easement Request for Parcels 10 and 15. <br /> 15.5.1 As part of its construction of a high occupancy vehicle (HOV) lane on <br /> northbound I-5, the Washington State Department of Transportation ("WSDOT") is <br /> currently seeking, under the threat of eminent domain, a crossing easement over a portion <br /> of City Parcels 10 and 15 that include the right to construct, operate and maintain an <br /> overhead bridge crossing along with its support structures and an airspace corridor above <br /> BNSF's required vertical clearance limits (the "WSDOT Crossing Easement"). The <br /> acquisition of the WSDOT Crossing Easement may occur prior to the Closing between <br /> the parties of the Exchange Parcels. <br /> 15.5.2 The transfer of the Crossing Easement by the City to WSDOT in advance <br /> of the Closing for the Exchange Parcels shall be subject to BNSF's approval of(i) the <br /> form and location of the WSDOT Crossing Easement, (ii) all necessary construction and <br /> operations agreements triggered by such transfer, and (iii)the amount of the <br /> compensation paid for the Crossing Easement. <br /> 15.5.3 In the event that the transfer of the WSDOT Crossing Easement occurs <br /> prior to the Closing of the Exchange Parcels and the WSDOT compensation is paid to the <br /> City, the value of Parcels 10 and 15 will be adjusted downward by the amount of <br /> compensation paid to the City by WSDOT for the Crossing Easement and the amount <br /> paid by the City to BNSF at Closing pursuant to Section 6.3.1, will be adjusted upward <br /> by the amount paid by WSDOT for the Crossing Easement; provided, however, the <br /> amount of the Reimbursement Cap, in Section 10.4.1, will not be adjusted downward by <br /> the amount paid by WSDOT for the Crossing Easement. <br /> Section 16 Miscellaneous. <br /> 16.1 Notices. Any notice under this Agreement must be written. Notices must be <br /> either (i) hand-delivered; (ii) placed in the United States certified mail, return receipt requested, <br /> addressed to the recipient; (iii) deposited with a nationally recognized overnight delivery service, <br /> addressed to the Contact Person specified in Section 15.1 above; or (iv) telecopied by facsimile <br /> transmission to the Contact Person at the telecopy number listed above, provided that such <br /> transmission is followed with a copy sent by overnight delivery or regular mail to the address <br /> specified above. Any notice is effective upon deposit with the U.S. Postal Service or with the <br /> overnight delivery service, as applicable; all other notices are effective when received. All <br /> notices shall be addressed to the address of the Contact Person. Either party may change its <br /> address and Contact Person for notice by proper notice to the other party. <br /> 16.2 Casualty or Condemnation. If, prior to Closing, an Exchange Property or any <br /> portion thereof is destroyed, damaged or becomes subject to a taking by virtue of eminent <br /> domain, to such an extent as to materially adversely affect the ability of the party acquiring such <br /> Exchange Property to conduct normal railroad operations over the Exchange Property, then <br /> either party may terminate this Agreement by written notice to the other within thirty (30) days <br /> after notice of such fact (but in any event prior to Closing). If this Agreement is so terminated, <br /> neither party shall have any further obligations hereunder except those that expressly survive <br /> termination. If this Agreement is not so terminated, the parties shall proceed with the Closing. <br /> Exchange Agreement -25- DRAFT 5/23/06 <br /> 52 <br />