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HomeMy WebLinkAbout5607 RESOLUTION NO. 5607 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE EASEMENT AGREEMENTS BETWEEN THE CITY OF AUBURN (THE CITY) AND BURLINGTON NORTHERN SANTA FE RAILWAY (BNSF) RELATING TO PROJECT NO. CP1110, A STREET SE CORRIDOR STUDY (PROJECT) WHEREAS, the City Project CP1110, A Street SE Corridor Study, is underway and has identified the need for an easement from BNSF for future roadway improvements; and WHEREAS, the future roadway improvements will provide a u-turn at 37th Street SE for northbound vehicles on A Street SE; and WHEREAS, the u-turn and other improvements will be incorporated into a future project; and WHERAS, the City and BNSF have agreed upon a fair market value price of for the easement of $7,374.00 plus applicable fees which the City will pay to BNSF using budgeted Project funds. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor and City Clerk are authorized to execute easement agreements between the City and BNSF, in substantial conformity with the agreements attached, marked as Exhibit "A" and incorporated herein by this reference. Resolution No. 5607 August 3, 2021 Page 1 Instrument Number: 20211012002178 Document:MEMO Rec Record Date:10/12/2021 4:33 PM Electronically Recorded King County, WA City of Auburn Return Name 25 West Main Street Street Address Auburn, WA 98001 City State ZIP Standard Cover Sheet The Auditor/Recorder will rely on the information provided on the form The staff will not read the document to venfy the accuracy or completeness of the indexing information provided herein Document Title(s) 1. Memorandum of Easement 3 • 2_ • 4 Reference Number(s)of Related Documents Additional reference numbers on page Grantor(s) BNSF Railway Company Last Name ' First Name Middle Initial 2 Last Name First Name Middle Initial Additional names on page Grantee(s) 1 City of Auburn Last Name ' First Name Middle Initial 2_ Last Name ' First Name Middle Initial Additional names on page Legal Description (abbreviated form ie lot,block,plat or section,township,range) PORTION OF PARCEL 1 CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-001 RECORDED UNDER RECORDING NUMBER 20060616000926 KING COUNTY RECORDS WASHINGTON LOCATED IN SEA.,SEC 25 T21N R4E W M Assessor's Property Tax Parcel/Account Number 0 Number not yet assigned 2521049028 Additional numbers on page Instrument Number: 20211012002178 Document:MEMO Re( Record Date:10/12/2021 4:33 PM King County, WA Memorandum of Easement NE -. THIS MEMORANDUM OF EASEMENT is hereby executed this day of OC/vi , 2021, by and between BNSF-RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is2500Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF AUBURN,a municipal corporation ("Grantee"),whose address for purposes of this instrument is 25 West Main Street, Auburn, Washington, 98001, which terms "Grantor' and "Grantee" shall include, wherever -the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"and depicted on Exhibit"B" attached hereto and incorporated herein by reference(the"Premises'), WHEREAS,Grantor and Grantee entered into an Easement Agreement,dated 'l34.-6 (the"Easement Agreement')which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across a portion of the Premises(the"Easement");and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record For valuable consideration the receipt and sufficiency of which are hereby acknowledged,Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document This Memorandum of Easement is not intended to amend, modify,supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] Page 1 of 2 Instrument Number: 20211012002178 Document:MEMO Re( Record Date:10/12/2021 4:33 PM King County, WA IN WITNESS WHEREOF,Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written GRANTOR: BNSF RAIL Y OMP Y,a Delaw corporation B /de Name 4iht :/44•e i Title lar _A*/ GRANTEE: CITY OF AUBURN,a municipal corporation wc. By k *- • . Name J'*t"1'ilT. Title STATE OF a,1 § COUNTY OF (G-frµ� § This instru nt was acknowledged before me on thh day ofa-,O �'� 2021.by ; ;, 1a.a� lde/1.eE(name)as c«si r �e.�s —(title)of BNSF RAILWAY COMPANY,a Delaware corporation _pD U :ry Public Notary I #3474 PF7+• My Camnisslan!apiT ( al) �'r,► September 21.1074 // My:ppointment expires 9/01q.649")1" _ STATE OFVMaS-4'it1A;Qr1 § h��, COUNTY oi=�i. § insx nt s knawledged�e fore me on th ."I44day o,A tt$f ,2021,by rt eC rename)as 1Ltf 1 C� ( e)`6f t r, .amu, ct ,l GQIrP. 91.44,/,,,wxyawttliffotary Public 440 e� ';e4r6 (Seal) pfd r i 11 r 1g—ZaZL n qty F My appointment expires. ? 7.fg4 /`I`Q ,fI,, WASH" ` " s -is Page 2 of 2 Instrument Number: 20211012002178 Document:MEMO Rec Record Date:10/12/2021 4:33 PM King County, WA EXHIBIT A EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY,WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25,TOWNSHIP 21 NORTH,RANGE 4 EAST,WILLAMETTE MERIDIAN,KING COUNTY,WASHINGTON,DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37TH STREET SOUTHEASTAND_"A"STREET SOUTHEAST,THENCE NORTH 88°59'10"WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF"A"STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10"WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEM ENT; THENCE.ALONG SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE.LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE.PARALLEL WITHSAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25"EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50"EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET,MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19"EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 41ST STREET SOUTHEAST TO THE-MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 37TM STREET SOUTHEAST,CITY OF AUBURN,WASHINGTON. fG►l 414, ••pa cr •s • �+t+�lOsTLRg9 LA0 4 08/30/2021 Instrument Number: 20211012002178 Document:MEMO Rec: $207.50 Page-5 o Record Date:10/12/2021 4:33 PM King County, WA �7 paws. 1 Cl1oGo'� SCALE: 1"=2O FEET I- MI , S W�1�C�WU"�� l�l���� M.'■III ■� yhtiy S 01'00'50"EASEMENT 35.00' X29, G ��( �. 0 10 20 40 a�,/6 �6�S��� \\ .7.06,' k• __ - S 01'00'50' W,40.07 WEST LINE OF EASEMENT N 01'00'50" E 70.00' - POB A\_ f/N WEST RIGHT OF WAY MARGIN N 0117'13"13" E z 1 'A"STREET SOUTHEAST cil tn w W i MON AT 41ST ST SE o ? A "BASIS OF BEARINGS' N 01'01'19" E POC"\T` RIGHT OF WAY CENTERLINE N 01'17'13' E 4 10iPER ROS UNDER REC. NO. 20160426900014 w R°F wYEN ait 4c1'� x O g� o� Z xi I• {. co m �.fO52833 EAST RIGHT OF WAY MARGIN C CIsrE� S�S4` £ S t'LLOD m 06/30/2021 d POC - POINT OF COMMENCEMENT rn ' ` POB = POINT OF BEGINNING 1 "I * PROJ CP1110 X0.1' EXHIBIT B �, CITY OF AUBURN 4!.„..4.::;;R:41 `±r :' fPUBLIC WORKS DEPARTMENT EASEMENT DEPICTION SCALE 1-=20' ' WASfIltZGmN DRAWN BY TAG Section 2. The Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures. Dated and signed this 16th day of August, 2021. CITY OF AUBURN tIt-I . a.s. ANCYAKUS MAYOR ATTEST: 7 OW SZt( Shawn Campbell, II City Clerk APPROVED AS TO FORM: Kendra Comeau, City Attorney Resolution No. 5607 August 3, 2021 Page 2 EASEMENT AGREEMENT FOR ROADWAY CONSTRUCTION,MAINTENANCE AND USE THIS EASEMENT AGREEMENT FOR ROADWAY GONSTRUCTJON MAINTENANCE AND USE ("Easement Agreement") is made and entered into as of the1±day of CliA _-2021 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF AUBURN,a municipal corporation("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Auburn, County of King, State of Washington, at Mile Post 23.63, as depicted on Exhibit"A" and described on Exhibit"A"-1 attached hereto and made a part hereof(the"Premises"). B. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose(as defined below). C. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The"Easement Purpose"shall be the construction, maintenance and use of a [private/public] roadway and related surface improvements (collectively, "Improvements") to be constructed,located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the Plans and Specifications (as hereinafter defined) approved as set forth in Section 5. Grantee expressly acknowledges and agrees that the Easement Purpose does not include, and no rights are granted hereunder,for an elevated roadway or related improvements or any subsurface rights. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement("Easement")over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all Laws (as hereinafter defined), including without limitation zoning laws, regulations, and ordinances of municipal and other governmental authorities, if any. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon,over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. 1.4 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement,shall be perpetual. Form 703;Rev.02/12/10 1 Section 2 Compensation. Grantee shall pay Grantor, prior to the Effective Date, the sum of Four Thousand Eight Hundred Seventy Four and No/100 Dollars ($4,874.00) as compensation for the grant of this Easement. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS"AND 'WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises,and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors(as hereinafter defined)can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor,Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Plans and Specifications for Improvements. Grantee shall submit to Grantor for its review and approval detailed information concerning the design, location and configuration of the Improvements ("Plans and Specifications"). As soon as reasonably practicable after Grantor's receipt of the Plans and Specifications and other information required by Grantor about the proposed location of the Improvements, Grantor will notify Grantee in writing whether Grantor has approved or disapproved the design, location and configuration of the proposed Improvements or the Plans and Specifications, and shall include one or more reasons for any disapproval. Grantor may disapprove the Plans and Specifications only where, in Grantor's sole judgment,construction, maintenance,operation or removal of all or any part of the Improvements constructed in accordance with the Plans and Specifications would cause Grantee to violate any of the provisions of Section 6.3 hereof. Following any disapproval,Grantee shall have the right to modify the location,configuration or other aspects of the Plans and Specifications of the proposed Improvements and to resubmit such modified information to Grantor for its further review and approval. Grantor may approve or disapprove the Plans and Specifications in Grantor's sole discretion.Any approval or consent by Grantor of any of such plans shall in no way obligate Grantor in any manner with respect to the finished product design and/or construction. Any such consent or approval shall mean only that such Plans and Specifications meet the subjective standards of Grantor, and such consent or approval by Grantor shall not be deemed to mean that such Plans and Specifications or construction are structurally sound and appropriate or that such Plans and Specifications or construction meet the applicable construction standards or codes. Any deficiency in design or construction, notwithstanding the prior approval of Grantor, shall be solely the responsibility of Grantee. Section 6 Improvements. 6.1 Construction of Improvements. Grantee, and Grantee's Contractors, at Grantee's sole cost and expense, shall locate, configure, construct and maintain the Improvements: (i) in a good and workmanlike manner and in strict accordance with the Plans and Specifications approved by Grantor pursuant to the Form 703;Rev.02/12/10 2 provisions of Section 5 above, (ii) in conformance with applicable building uses and all applicable engineering, safety and other Laws, (iii) in accordance with the highest accepted industry standards of care, skill and diligence, and (iv) in such a manner as shall not adversely affect the structural integrity or maintenance of the Premises, any structures on or near the Premises, or any lateral support of structures adjacent to or in the proximity of the Premises. The construction of the.Improvements within the Premises shall be completed by Grantee and Grantee's Contractors within one (1) year after the Effective Date. Grantee shall provide as built drawings of all Improvements to Grantor promptly upon completion of construction and shall use its best efforts to cause such as built drawings to be electronically accessible to Grantor. 6.2 Maintenance of Improvements. Grantee shall at all times during the term of this Easement Agreement, at Grantee's sole cost and expense, keep and maintain the Improvements located upon the Premises in a structurally safe and sound condition, in good repair and in compliance with the Plans and Specifications and this Easement Agreement. Grantee shall also promptly repair any damage to the Premises or the Improvements caused, either in whole or in part, by Grantee Parties (as hereinafter defined). Grantee shall not cause or permit another person to cause any damage to the Premises or the Improvements, and Grantee shall be responsible for any such damage which may occur as a result of any Grantee Party's action or inaction. Grantee shall not permit the existence of any nuisance or the accumulation of junk, debris or other unsightly materials on the Premises and shall keep the Premises in a clean and safe condition. Grantee shall, at its sole cost and expense, remove ice and snow from the Premises. Grantee shall keep the Premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on the Premises, said work of cutting and removal to be done at such times and with such frequency as to comply with local Laws and regulations and abate any and all hazard of fire. Grantor shall have no obligation whatsoever, monetary or non-monetary,to maintain the Improvements in the Premises. 6.3 No Interference. During the construction of, and any subsequent maintenance performed on, operation of, or removal of, all or any portion of the Improvements, Grantee, at Grantee's sole cost, shall perform all activities and work on or near Grantor's rail corridor or property and/or the Premises in such a manner as to preclude injury to persons or damage to the property of Grantor, or any party on or with property on Grantor's rail corridor or property,and shall ensure that there is no interference with the railroad operations or other activities of Grantor, or anyone present on Grantor's rail corridor or property with the authority or permission of Grantor. Grantee shall not disturb any improvements of Grantor or Grantor's existing lessees, licensees, license beneficiaries or lien holders, if any, or interfere with the use of such improvements. Grantor may direct one of its field engineers to observe or inspect the construction, maintenance, operation or removal of the Improvements, or any portion thereof, at any time to ensure such safety and noninterference, and to ensure that the Improvements comply with the Plans and Specifications. If any Grantee Party is ordered at any time to leave the Premises or to halt any activity on the Premises, then the party conducting that activity immediately shall cease such activity and leave the Premises, if the order was issued by Grantor's personnel to promote safety, such noninterference with other activities or property, or because the Improvements were not in compliance with this Easement Agreement. Notwithstanding the foregoing right of Grantor,Grantor has no duty or obligation to observe or inspect, or to halt work on, the Premises, it being solely Grantee's responsibility to ensure that the Improvements are constructed, maintained, operated and removed in strict accordance with all Laws, safety measures, such noninterference and the Plans and Specifications and in compliance with all terms hereof. Neither the exercise nor the failure by Grantor to exercise any right set forth in this Section 6.3 shall alter the liability allocation set forth in this Easement Agreement. 6.4 No Alterations. Except as may be shown in the Plans and Specifications approved by Grantor for the Easement, Grantee may not make any alterations to the Premises, or permanently affix anything to the Premises,without Grantor's prior written consent. If Grantee desires to change either the location of any of the Improvements or any other aspect of the Plans and Specifications of any of the Improvements, Grantee shall submit such change and modified Plans and Specifications to Grantor in writing for its approval in the same manner as provided for in Section 5. Grantee shall have no right to commence any such change until after Grantee has received Grantor's approval of such change in writing. 6.5 Approvals:Compliance with Laws and Safety Rules. (a) Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, Form 703;Rev.02/12/10 3 including such actions as may be necessary to obtain any required approvals or authorizations from applicable governmental authorities. (b) Prior to entering the Premises, and at all times during the term of this Easement Agreement, Grantee shall comply, and shall cause its contractor, any subcontractor, any assignee, and any contractor or subcontractor of any assignee performing work on the Premises or entering the Premises on behalf of Grantee (collectively, "Grantee's Contractors"), to comply, with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws(defined below)(collectively,"Laws"), and all of Grantor's applicable safety rules and regulations including those found on the website noted below in Section 6.5(c). (c) No Grantee Party may enter the Premises without first having completed Grantor's safety orientation found on the website:www.contractororientation.com. 6.6 Other Improvements. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements(fiber optic,cable,communication or otherwise)may exist. 6.7 Flagging and Other Costs. Grantee shall not conduct any activities on, or be present on, any portion of the Premises or Grantor's rail corridor or property that is within twenty-five (25) feet of any active railroad track, except in the presence of a flagman. In any case where a flagman or flagmen are required in connection with the presence of individuals on Grantor's rail corridor or the Premises, Grantee shall provide as much advance notice as possible prior to any entry upon the Premises. Grantor shall arrange for the presence of the flagman or flagmen as soon as practicable after receipt of such notice from Grantee. Grantee shall reimburse to Grantor, within thirty (30) days following Grantee's receipt of each bill therefor, Grantor's costs in arranging for and providing the flagman or flagmen,which shall be billed to Grantee at Grantor's then applicable standard rate. The estimated cost of one flagger as of the Effective Date is $600 for an eight hour basic day with time and one-half or double time for overtime, rest days and holidays, plus the cost of any vehicle rental costs or other out-of-pocket costs. Grantee agrees to reimburse Grantor(within thirty(30) days after receipt of a bill therefor) for all other costs and expenses incurred by Grantor in connection with Grantee's use of the Premises or the presence,construction, maintenance,and use of the Improvements situated thereon. 6.8 No Unauthorized Tests or Digging. Grantee, and Grantee's Contractors, must not conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on Grantor's rail corridor or property(whether or not such centerline is located within the Premises), except after Grantee has obtained written approval from Grantor, and then only in strict accordance with the terms and any conditions of such approval. 6.9 Boring. Prior to conducting any boring work on or near Grantor's rail corridor or property(which shall only be permitted within the Premises), Grantee and Grantee's Contractors shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, Grantee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Grantee's written request, which shall be made thirty (30) business days in advance of Grantee's proposed construction or modification of Improvements, Grantor will provide to Grantee any information that Grantor has Form 703;Rev.02/12/10 4 in the possession of its Engineering Department concerning the existence and approximate location of Grantor's underground utilities and pipelines at or near the vicinity of the proposed Improvements. Prior to conducting any boring work, Grantee, and Grantee's Contractors, shall review all such material. Grantor does not warrant the accuracy or completeness of information relating to subsurface conditions and Grantee's, and Grantee's Contractors', operations at all times shall be subject to the liability provisions set forth herein. For all bores greater than 20 inches in diameter and at a depth less than ten(10)feet below the bottom of a rail, Grantee, and Grantee's Contractors, shall perform a soil investigation which must be reviewed by Grantor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Grantor's reasonable opinion that granular material is present, Grantor may select a new location for Grantee's use, or may require Grantee, and Grantee's Contractors, to furnish for Grantor's review and approval, in Grantor's sole discretion, a remedial plan to deal with the granular material. Once Grantor has approved any such remedial plan in writing, Grantee, and Grantee's Contractors, at Grantee's sole cost, shall carry out the approved plan in accordance with all terms thereof and hereof. Any open hole, boring or well constructed on the Premises by Grantee, or Grantee's Contractors, shall be safely covered and secured at all times when anyone who is not creating it,working in it or using it as permitted hereunder is present in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises shall be promptly filled in by Grantee and Grantee's Contractors to surrounding ground level with compacted bentonite grout, or otherwise secured or retired in accordance with any applicable Laws. No excavated materials may remain on Grantor's rail corridor or property for more than ten (10) days, and must be properly disposed of by Grantee and Grantee's Contractors in accordance with applicable Laws. 6.10 Drainage of Premises and Property. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Premises shall be made and maintained by Grantee in such manner, form and to the extent as will provide adequate drainage of and from the Premises and Grantor's adjoining right of way;and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from the Property and Grantor's adjoining right of way, Grantee shall construct and maintain suchculverts or drains within the Premises as may be requisite to preserve such natural and pre- existing drainage. Grantee shall wherever necessary,construct extensions of existing drains,culverts or ditches through or along the Premises, such extensions to be of adequate sectional dimensions to preserve flowage of drainage or other waters, and/or material and workmanship equally as good as those now existing. 6.11 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi- governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. 6.12 Modification, Relocation or Removal of Improvements. If at any time,Grantor desires the use of its rail corridor in such a manner that, in Grantor's reasonable opinion,would be interfered with by any portion of the Improvements or the Easement, Grantee, at Grantee's sole cost, shall make such changes in the Improvements and/or Premises that, in the sole discretion of Grantor, are necessary to avoid interference with the proposed use of Grantor's property, including, without limitation, Grantee relocating or removing all or a portion of the Improvements from the Premises. Grantor acknowledges that, in some instances, Improvements will not need to be moved or removed from the Premises, but can be protected in place, subject to approval by Grantor's engineering department. Grantee hereby waives any rights that it may have to use condemnation Laws to keep Improvements in place and not relocate or remove the Improvements where relocation or removal is required by Grantor. Where it is practicable to do so, Grantor shall provide to Grantee at least one hundred twenty (120) days prior written notice that Improvements must be modified, removed or relocated, and in circumstances where one hundred twenty(120) days notice is not practicable, Grantor shall provide to Grantee as much notice as it reasonably can, and in no case less than twenty (20) days prior written notice. Grantee shall ensure that all Improvements are modified, removed or relocated as required on or before the date set forth in Grantor's written notice. Form 703;Rev.02/12/10 5 Section 7 Indemnification. 7.1 TO THE FULLEST EXTENT PERMITTED BY LAW,GRANTEE SHALL,AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, RELEASE,INDEMNIFY, DEFEND AND HOLD HARMLESS GRANTOR AND GRANTOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY, "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO(IN WHOLE OR IN PART): (i) THIS EASEMENT AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS EASEMENT AGREEMENT, (iii) OCCUPATION AND USE OF THE PREMISES BY GRANTEE'S OR GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER (INDIVIDUALLY, A "GRANTEE PARTY,"AND COLLECTIVELY,"GRANTEE PARTIES"), (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED TO BY GRANTEE PARTIES,OR (v) ANY ACT OR OMISSION OF GRANTEE PARTIES, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH GRANTEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 7.2 TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 7.1, GRANTEE SHALL, AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT, GRANTOR IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE IMPROVEMENTS FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. GRANTEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. GRANTEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS EASEMENT AGREEMENT SHALL NOT IN ANY WAY SUBJECT GRANTOR TO CLAIMS THAT GRANTOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL GRANTOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. 7.3 TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE SHALL,AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE Form 703;Rev.02/12/10 6 DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF GRANTEE, OR ANY OF ITS CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES OR PERMITTEES, CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT,THE OCCUPATIONAL SAFETY AND HEALTH ACT,THE RESOURCE CONSERVATION AND RECOVERY ACT,AND ANY SIMILAR STATE OR FEDERAL STATUTE. 7.4 Upon written notice from Grantor, Grantee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Easement Agreement for which Grantee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Grantee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Section 8 Insurance. Grantee shall, at its sole cost and expense, procure and maintain during the life of this Easement Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by Grantee.. . Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway and Jones, Lang,LaSalle Global Services RR,Inc • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that the workers'compensation and employers'liability related exclusions in the Commercial General Liability insurance policy(s)required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence,and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired Form 703;Rev.02/12/10 7 This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor or and acceptable to Railway. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: • Grantee's statutory liability under the worker's compensation Laws of the state(s)in which the work is to be performed. If optional under State Law,the insurance must cover all employees anyway. • Employers' Liability(Part B)with limits of at least$500,000 each accident,$500,000 by disease policy limit,$500,000 by disease each employee. This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. D. Railroad Protective Liability Insurance is required if there is any construction or demolition activities. This insurance shall name only the Railway as the Insured with coverage of at least$2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to include Evacuation Expense Coverage.Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railway prior to performing any work or services under this Easement Agreement If available and in lieu of providing a Railroad Protective Liability Policy, Grantee may participate in the Railway's Blanket Railroad Protective Liability Insurance Policyyailable to Grantee or its contractor. The limjts•,•,•••.•••••.• of coverage are the same as above. The cost is$ 1,501.50 • I elect to participate in Grantor's Blanket Policy; • I elect not to participate in Grantor's Blanket Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Grantee agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through policy endorsement, waive their right of subrogation against Railway for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Grantee further waives its right of recovery,and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under its care, custody, or control. Grantee is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Grantee in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Easement Agreement, be covered by Grantee's insurance will be covered as if Grantee elected not to include a deductible, self-insured retention,or other financial responsibility for claims. Form 703;Rev.02/1 2/1 0 8 Prior to commencing work, Grantee shall furnish to Railway an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies)to notify Railway in -writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Railway, a certified duplicate original of any required policy shall be furnished. Any insurance policy shall be written by a reputable insurance company acceptable to Railway or with a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Grantee represents that this Easement Agreement has been thoroughly reviewed by Grantee's insurance agent(s)/broker(s),who have been instructed by Grantee to procure the insurance coverage required by this Easement Agreement. Allocated Loss Expense shall be in addition to.all policy limits for coverages referenced above. Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Grantee, Grantee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railway to the same extent and under the same terms and conditions as Grantee is required to release, defend and indemnify Railway herein. Failure to provide evidence as required by this Section 8 shall entitle, but not require, Railway to terminate the Easement immediately.Acceptance of a certificate that does not comply with this Section 8 shall not operate as a waiver of Grantee's obligations hereunder. The fact that insurance (including,without limitation, self-insurance) is obtained by Grantee shall not be deemed to release or diminish the liability of Grantee including, without limitation, liability under the indemnity provisions of this Easement Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. For purposes of this Section 8, Railway shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company"and the subsidiaries, successors,assigns and affiliates of each. Section 9 Environmental. 9.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act(collectively referred to as the"Environmental Laws"). Grantee shall not maintain a"treatment,""storage,""transfer"or"disposal"facility, or"underground storage tank,"as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or"hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 9.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at(800)832-5452 of any release of hazardous substances on or from the Premises,violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of Form 703;Rev.02/12/10 9 all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 9.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 9.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however,that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 9.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 9. Should Grantee not comply fully with the above- stated obligations of this Section 9, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 12. Section 10 PERSONAL PROPERTY WAIVER. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF GRANTEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Section 11 Default and Termination. 11.1 Grantor's Performance Rights. If at any time Grantee,or Grantee's Contractors,fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or(ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations,activities and property,or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 11.2 Grantor's Termination Rights. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee: (i) if default shall be made in any of the covenants or agreements of Grantee contained in this Easement Agreement, (ii) in case of any assignment or transfer of the Easement by operation of law,or(iii)if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 11.3 Effect of Termination or Expiration. Neither termination nor expiration,will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any.acts, omissions or events happening prior to the date of termination or expiration,or, if later, the date the Premises are restored as required by Section 12. Form 703;Rev.02/12/10 10 11.4 Non-exclusive Remedies. The remedies set forth in this Section 11 shall be in addition to,and not in limitation of,any other remedies that Grantor may have at law or in equity. Section 12 Surrender of Premises. 12.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall,at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises,as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 12.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement,whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 13 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 13 or any other section of this Easement Agreement. Section 14 Tax Exchange. Grantor reserves the right to assign this Easement Agreement to Goldfinch Exchange Company LLC. ("Goldfinch"). Goldfinch is a qualified intermediary within the meaning of Section 1031 of the Internal.Revenue Code of 1986, as amended, and Treas. Reg. § 1.1031(k)-1(g), for the purpose of completing a tax-deferred exchange under said Section 1031. Grantor shall bear all expenses associated with the use of Goldfinch, or necessary to qualify this transaction as a tax-deferred exchange, and,'except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Grantee from and against any and all reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee may incur as a result of Grantor's use of Goldfinch or the qualification of this transaction as a tax- deferred transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax- deferred exchange, and upon Grantor's request, shall execute such documents as may be required to effect this tax-deferred exchange. Section 15 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be in writing andthe same shall be given and shall be deemed to have been served and given if(i)placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party Form 703;Rev.02/12/10 11 specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty(30)days'advance written notice of such change in address. If to Grantor: BNSF Railway Company 2500 Lou Menk Dr.—AOB3 Fort Worth,Texas 76131 Attn: Director of Real Estate With a copy to: BNSF Railway Company 2500 Lou Menk Drive Fort Worth,Texas 76131 If to Grantee: City of Auburn—Public Works Engineering 25 West Main Street Auburn,WA 98001 Attn:Jacob Sweeting Section 16 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit"B" (the"Memorandum of Easement")subject to changes required, if any,to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 30 days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 17 Miscellaneous. 17.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of Texas without regard to conflicts of law provisions. 17.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives,successors and assigns and shall run with and be binding upon the Premises. 17.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement,the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 17.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein,there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. 17.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. Form 703;Rev.02/12/10 12 17.6 Time is of the essence for the performance of this Easement Agreement. Section 18 Administration Fee Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantors Broker a processing fee in the amount of$2,500.00 over and above the agreed upon Purchase Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAik191 * Y COY,a Delaware rporation By: ��V Name: GRANTEE: CITY OF AUBURN,a municipal corporation Name: Z • ' Title: ► Form 703;Rev.02/12/10 13 EXHIBIT,A• ��n{ T0a/ip/bl�yCdp'9h-YgIfJM4TY//9M4!A'�a1 ID WYxN',b f9a7 Wl*M1 tl9J1 fiHIiM FP fN W<pafylriMltby': P./. '1:., �C+ y,/(y'QQ�'�:: MOVN ryn,�"f.M�N'+�M�I,!/fm1nN W+1•1. 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'Tn yFY�,°•'r' .x$y.� a: zp,e z '1 a_ `'_Z cr :„ K •r"' mss'` { . z.,3`g 1. ,,3�� :fi d�z' a� _ � ,,,,..rt..; ,.:;:cam a: -��' • Page 1 of2•• EXHIBIT A-1 EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY,WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25,TOWNSHIP 21 NORTH, RANGE 4 EAST,WILLAMETTE MERIDIAN, KING COUNTY,WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37TH STREET SOUTHEAST AND"A"STREET SOUTHEAST,THENCE NORTH 88°59'10"WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF"A"STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10"WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEMENT; THENCE ALONG SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25" EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50" EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET, MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19" EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 415T STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 37TH STREET SOUTHEAST,CITY OF AUBURN,WASHINGTON. Page 2 of 2 EXHIBIT"B" • Memorandum of Easement Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this �°day of ()du b-e-1" , 2021, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF AUBURN, a municipal corporation ("Grantee"),whose address for purposes of this instrument is 25 West Main Street, Auburn, Washington, 98001, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"-1 attached hereto and incorporated herein by reference(the"Premises'); WHEREAS,Grantor and Grantee entered into an Easement Agreement,dated 6e fr6e<G, (the"Easement Agreement")which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across a portion of the Premises(the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged,Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] Page 1 of 2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAIL.1 ,'V OMP V.a Delaw' corporation By Name: j" flJ 4i► 41 Title: A ' AF/ GRANTEE: CITY OF AUBURN,a municipal corporation ILL By: i a,, D.,... NNat to • . l,fe ' Tit;e6 STATE OF.:. a 5 :._.,...::.: .>: § COUNTY OF 16-cru-417 § / , /� 's instrurnt was acknowledged before me on thc�day of U b'#---r _ 2021,by fd,n.e_ fSf/r / (ame)as "D:p- 4v i �--�>4 s .4title)of BNSF RAILWAY COMPANY, a Delaware corporation. M - - I � Notary ID N3474626 r i, �r, My Commission Expfr4s; (S 2}aI) e 0,• September 21 2024..' .''MT,PPOittgent expires!. .9,,a-iik,. . r, _ , STATE oF, '�' 1 + § COUNTY OF\fl9 §' ,11i�If15t, Cti; �5�a �wle�gsd befgle 0�fttlT� •Baty►�t 2021,by ( "r i :- (name)as �' : '.;'•1;./ I (t lle f D 3 & t�r I?t<Yit Ii t ,�,. NS".4%alx{{f 44. , C*--41 Notary Public StgAt.-16'. 0.`f (Seal) My appointment expires: 1._l I 1 el^ c.--%-#Z�. 1illi WA 1 4 Page 2 of 2 Exhibit"A"-1 THAT PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY,WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25,TOWNSHIP 21 NORTH, RANGE 4 EAST,WILLAMETTE MERIDIAN, KING COUNTY,WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37TH STREET SOUTHEAST AND"A"STREET SOUTHEAST,THENCE NORTH 88°59'10"WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF"A"STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10"WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEMENT; THENCE ALONG SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25" EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50" EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET,MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19" EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 415T STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 37TH STREET SOUTHEAST,CITY OF AUBURN,WASHINGTON. RECEIVED Title&Escrow Services/USA JLL 0 C T 2 5 202 Main Office:4200 Buckingham Road,Ste.110 Fort Worth,Texas 76155-2685 City of Auburn M 469.346.1194 0 817 230 2612 F 312 470 5311 Public Works Dept E-mail:rhonda.burton(4am jll.com/rleeb7@gmail.com October 22,2021 Via FedEx Priority Overnight Trk#7749 9891 1441 CITY OF AUBURN, WA Attn: Public Works, Engineering,Jacob Sweeting 25 West Main Street Auburn,WA 98001 E mail: cctiflL' Juhurmv.1.2(x RE: Auburn, King County,WA File No.: BNSF 12037 WA Dear Jacob: Pursuant to instructions received by phone today, please find attached the following for your further handling: • PDF Copy/Original-Memorandum of Easement("Memorandum") —eRecorded in King County. • Easement Agreement for Roadway Construction, Maintenance and Use ("Agreement") — PLEASE DO NOT SUBMIT FOR RECORDING — see Agreement Page 12, Section i6 Recordation —for your records. • Proof of Deposit(s) — ("Receipts") —for your records. Please contact our office if you need anything further. JLL is acting as representative for BNSF Railway Company—we appreciate your business. Very truly yours, Rail Practice Group Rl�oVLOIC gu.rtov Rhonda Burton Director,Specialist Advisory National Title Services cc: tim.sharman@am jll.com Instrument Number: 20211012002178 Document:MEMO Rec Record Date: 10/12/2021 4:33 PM Electronically Recorded King County, WA City of Auburn Return Name 25 West Main Street Street Address Auburn, WA 98001 City State ZIP Standard Cover Sheet The Auditor/Recorder will rely on the information provided on the form The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein Document Title(s) 1. Memorandum of Easement 3 2 4 Reference Number(s)of Related Documents Additional reference numbers on page Grantor(s) BNSF Railway Company Last Name ' First Name Middle Initial 2 Last Name First Name Middle Initial Additional names on page Grantee(s) City of Auburn Last Name First Name Middle Initial 2 Last Name ' First Name Middle Initial Additional names on page Legal Description (abbreviated form Ie lot,block,plat or section,township,range) PORTION OF PARCEL I CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-001 RECORDED UNDER RECORDING NUMBER 20060614000926 KING COUNTY RECORDS WASHINGTON LOCATED IN SEA SEC 25 T21N R4E W M Assessor's Property Tax Parcell Account Number Number not yet assigned 2521049028 Additional numbers on page Instrument Number: 20211012002178 Document:MEMO Ret Record Date: 10/12/2021 4:33 PM King County, WA Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this 'day of OCI & , 2021, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF AUBURN, a municipal corporation ("Grantee"),whose address for purposes of this instrument is 25 West Main Street, Auburn, Washington, 98001, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"and deaicted on Exhibit"B" attached hereto and incorporated herein by reference(the"Premises'), WHEREAS,Grantor and Grantee entered into an Easement Agreement, dated 641A-4 002/ (the"Easement Agreement")which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across a portion of the Premises(the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] Page 1 of 2 Instrument Number: 20211012002178 Document:MEMO Re( Record Date: 10/12/2021 4:33 PM King County, WA IN WITNESS WHEREOF,Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written GRANTOR: BNSF RAIL Y OMP Y,a Delaw corporation B Y Name ;it , t.� Title NO.- •/%t,61�1 GRANTEE: CITY OF AUBURN,a municipal corporation rc By • Name '(: 7' .,' i1' Title ` ! STATE OF -re--V&A, § COUNTY OF ht-era-4-f" § /� �J , b is instrurnt was acknowledged before me on thh day of LJ 2021,by a..n� ts►1dti4.1(name)as 2,,e4.4, , _ J /+ title)of BNSF RAILWAY COMPANY,a eiaware corporation 41: Ty Public c J: ■4014 A 1K nor 141y. notaryW M)474Mj� R'+ My Ca r'.5ssbn£ I,.,, ! al) See�nCi/44-1,1"•`)A / � � ' / dry. �cbar 21.Ie2� l / / My ppeintment expires STATE OFwOL4V110J0r1 § COUNTY oFV-k. § �I1 his insx nt as knawledged�e tore me on the``tTday ot,4d4(L$t ,2021,by rte �tt(name)as 1LeLO( (4? (btle)Uf n aIll Lull c4 2 c.ar'P• /-q' $LA ' 411 otary Public et1� 0 � (Seal) j 203917 *A; My appointment expires. 00:441:12:301:4: Page 2 of 2 Instrument Number: 20211012002178 Document:MEMO Ret Record Date: 10/12/2021 4:33 PM King County, WA EXHIBIT A EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY,WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25,TOWNSHIP 21 NORTH,RANGE 4 EAST,WILLAMETTE MERIDIAN,KING COUNTY,WASHINGTON,DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 371"STREET SOUTHEAST AND"A"STREET SOUTHEAST,THENCE NORTH 88°59'10"WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF"A"STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10"WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEM ENT; THENCE ALONG SAID WEST LINE SOUTH O1°00'50"WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25"EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'SO"EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET, MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19"EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 41ST STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF"A"STREET SOUTHEAST AND 37TH STREET SOUTHEAST,CITY OF AUBURN,WASHINGTON. GI .�og ��s►rf,t. � 52833 "s,p yrs slet0 Vrz 06/30/2021 �r Instrument Number: 20211012002178 Document:MEMO Rec: $207.50 Page-5 o Record Date: 10/12/2021 4:33 PM King County, WA SCALE: 1"=20 FEET �uguto LEA�1 INN MIMEI1�� y5 S `00'50" W 35.00' S Q35, REE go. SED'e .470oIP —__ _ - S 01'00'50' W 40.07' - WEST UNE OF EASEMENT N 01'00'50" E 70.00' - POB �rt EASEMENT REC.NO 81091002Se et WEST RIGHT OF WAY MARGIN N 01'17'13* E Z — "A"STREET SOUTHEAST at w p iN�ONAT4ISTSTSE p + BASIS OF BEARINGS" N 01'01'19* E POC--N;( RIGHT OF WAY CENTERLINE N 01'17'13' E 0 PER ROS UNDER REC. NO. 20160426900014 (.4 A.R 3) co ,P 4, it: z -i I 4 m ,-.j2833 1- ' (EAST RIGHT OF WAY MARGIN • c 06/3W2021 POC .s POINT OF COMMENCEMENTEPOB - POINT OF BEGINNING E # PROJ CP1110 c""°=1- ' CITY OF AUBURN EXHIBIT B 6/30/2021 %`�''�'• PUBLIC WORKS DEPARTMENT EASEMENT DEPICTION SCALE 1`2° WASHINGTON DRAWN BY TAG City of Auburn Return Name 25 West Main Street Street Address Auburn, WA 98001 City,State,ZIP Standard Cover Sheet The Auditor/Recorder will rely on the information provided on the form.The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein. Document Title(s) 1. Memorandum of Easement 3 2. 4. Reference Number(s)of Related Documents Additional reference numbers on page Grantor(s) 1 BNSF Railway Company Last Name First Name Middle Initial 2. Last Name ' First Name Middle Initial Additional names on page Grantee(s) 1 City of Auburn Last Name ' First Name Middle Mita{ 2. Last Name ' First Name Middle Initial Additional names on page Legal Description (abbreviated form:ie lot,block,plat or section,township,range) PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-001 RECORDED UNDER RECORDING NUMBER 20060616000926,KING COUNTY RECORDS,WASHINGTON LOCATED IN SE%SEC.26.T21N,R4E.,W.M. Assessor's Property Tax Parcel!Account Number El Number not yet assigned 2521049028 Additional numbers on page Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this L day of (1'dec , 2021, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF AUBURN, a municipal corporation ("Grantee"), whose address for purposes of this instrument is 25 West Main Street, Auburn, Washington, 98001, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by reference (the"Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated d' i/e,-4/2•4/ (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across a portion of the Premises(the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] Page 1 of 2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAIL Y COMP Y, a Delaware c poration By: / lib Name: p'/gilt. (th►! Title: An-eC1,v to/ Crfe GRANTEE: CITY OF AUBURN, a municipal corporation By: 1( Name: ��3-Title: �• STATE OF 7;F-4.5 § � § COUNTY OF—/ mac'-a § s instrumW ac nowledged before me on the ro day of Oen , 2021, by lieD)a a kt i ,/Jt/b (name) as ;re Axe !nai d (title)of BNSF RAI AY COMPANY, a Delaware corporation. •ta Public ..*Y ? RHONDA BURTON I (Seal 41\1 Notary ID is#3474626n Expires I --172-;/ /�/2-4ef +,7��� My Commission Expires I o. September 21,2024 I My app•'ntment expires: STATE OF VVOl 110110&- § COUNTY OF )&h.j § J �h, tI This instrument was acknowledged efore me on 910 day of U , 2021, by -QX : 1 I. name) as eCOrd,-S C " (title)of ITS u ch , a tyttkr i G 1, •(Q . �� SLAG. � 4/ -%%ssIoN1",� `y / Notary Public 1-7 C., 410 �o 4 (Seal) % 203917 11°% (1)% A&s1.\C" _ My •appointment expires: l-I- Z02/2, 171 1'4,77.1941S k0F -41/ 1\WASN\����� Exhibit"B" Page Lo'2 EXHIBIT A EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1, CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY,WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25,TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, KING COUNTY,WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37TH STREET SOUTHEAST AND"A"STREET SOUTHEAST,THENCE NORTH 88°59'10" WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF"A"STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10"WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEM ENT; THENCE ALONG SAID WEST LINE SOUTH 01°00'50"WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50" WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25" EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50" EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET, MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19" EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF "A"STREET SOUTHEAST AND 41ST STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF "A"STREET SOUTHEAST AND 37TH STREET SOUTHEAST, CITY OF AUBURN,WASHINGTON. ,LEN`J WAG'pF �; s .ii) 4''04> if 4 off... 4, 52833 D : ,w41 ‹'LISTER,. �4 /h'AL LAN9 S 06/30/2021 — pQG�3C�G[� ii SCALE: 1"=20 FEET Qu o uRN LLA06-0001 NM 1 MIME �,LS S 01'00'50" W 35.00' s 232 . RE© a�" 2Oo0606�I6000J�6 0 10 20 40 S 4;1 �� 62' \ E� SEMENT 2300 8" • -- t _ ` -- \S FT \ \ S 01'00 50" W 40.07' WEST LINE OF EASEMENT - N 01'00'50" E 70.00' '..ty �POB EASEMENTREC. NO. 011097160298N WEST RIGHT OF WAY MARGIN N 01'17'13" E z — co "A" STREET SOUTHEAST c0 0,', (ry ..,4 c0 iMON AT 41ST ST SE o - ^ "BASIS OF BEARINGS" N 01'01'19" E POC RIGHT OF WAY CENTERLINE N 01'17'13" E PER ROS UNDER REC. NO. 20160426900014 CA) N,LEN GI ,47 .....EiIAI. GJ :...0F IA '4. *cs, _ .y�� ao -I z 03 M If , co M OI) ff ` t O �, 1p 52833 .0 :'�'w C d'�; .'PCtSTER•-`.� — (EAST RIGHT OF WAY MARGIN -I IO3'AL L.0-1).. AN9 S — — — — — _ m a 06/30/2021 POC = POINT OF COMMENCEMENT el POB = POINT OF BEGINNING I Cil * PROJ:CP1110 °F 1— CITY OF AUBURN EXHIBIT B 6/30/2021 WASHINGTON PUBLIC WORKS DEPARTMENT EASEMENT DEPICTION DRAWN BY:TAG EASEMENT AGREEMENT FOR ROADWAY CONSTRUCTION, MAINTENANCE AND USE THIS EASEMENT AGREEMENT FOR ROADWAY 99_NSTRUCTION, MAINTENANCE AND USE ("Easement Agreement") is made and entered into as of the 6day of 6c-4+b`-' 2021 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF AUBURN, a municipal corporation ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Auburn, County of King, State of Washington, at Mile Post 23.63, as depicted on Exhibit "A" and described on Exhibit "A"-1 attached hereto and made a part hereof(the"Premises"). B. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). C. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The"Easement Purpose"shall be the construction, maintenance and use of a [private/public] roadway and related surface improvements (collectively, "Improvements") to be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the Plans and Specifications (as hereinafter defined) approved as set forth in Section 5. Grantee expressly acknowledges and agrees that the Easement Purpose does not include, and no rights are granted hereunder, for an elevated roadway or related improvements or any subsurface rights. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all Laws (as hereinafter defined), including without limitation zoning laws, regulations, and ordinances of municipal and other governmental authorities, if any. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. 1.4 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Form 703;Rev.02/12/10 1 Section 2 Compensation. Grantee shall pay Grantor, prior to the Effective Date, the sum of Four Thousand Eight Hundred Seventy Four and No/100 Dollars ($4,874.00) as compensation for the grant of this Easement. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined)can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Plans and Specifications for Improvements. Grantee shall submit to Grantor for its review and approval detailed information concerning the design, location and configuration of the Improvements ("Plans and Specifications"). As soon as reasonably practicable after Grantor's receipt of the Plans and Specifications and other information required by Grantor about the proposed location of the Improvements, Grantor will notify Grantee in writing whether Grantor has approved or disapproved the design, location and configuration of the proposed Improvements or the Plans and Specifications, and shall include one or more reasons for any disapproval. Grantor may disapprove the Plans and Specifications only where, in Grantor's sole judgment, construction, maintenance, operation or removal of all or any part of the Improvements constructed in accordance with the Plans and Specifications would cause Grantee to violate any of the provisions of Section 6.3 hereof. Following any disapproval, Grantee shall have the right to modify the location, configuration or other aspects of the Plans and Specifications of the proposed Improvements and to resubmit such modified information to Grantor for its further review and approval. Grantor may approve or disapprove the Plans and Specifications in Grantor's sole discretion. Any approval or consent by Grantor of any of such plans shall in no way obligate Grantor in any manner with respect to the finished product design and/or construction. Any such consent or approval shall mean only that such Plans and Specifications meet the subjective standards of Grantor, and such consent or approval by Grantor shall not be deemed to mean that such Plans and Specifications or construction are structurally sound and appropriate or that such Plans and Specifications or construction meet the applicable construction standards or codes. Any deficiency in design or construction, notwithstanding the prior approval of Grantor, shall be solely the responsibility of Grantee. Section 6 Improvements. 6.1 Construction of Improvements. Grantee, and Grantee's Contractors, at Grantee's sole cost and expense, shall locate, configure, construct and maintain the Improvements: (i) in a good and workmanlike manner and in strict accordance with the Plans and Specifications approved by Grantor pursuant to the Form 703;Rev.02/12/10 2 provisions of Section 5 above, (ii) in conformance with applicable building uses and all applicable engineering, safety and other Laws, (iii) in accordance with the highest accepted industry standards of care, skill and diligence, and (iv) in such a manner as shall not adversely affect the structural integrity or maintenance of the Premises, any structures on or near the Premises, or any lateral support of structures adjacent to or in the proximity of the Premises. The construction of the Improvements within the Premises shall be completed by Grantee and Grantee's Contractors within one (1) year after the Effective Date. Grantee shall provide as built drawings of all Improvements to Grantor promptly upon completion of construction and shall use its best efforts to cause such as built drawings to be electronically accessible to Grantor. 6.2 Maintenance of Improvements. Grantee shall at all times during the term of this Easement Agreement, at Grantee's sole cost and expense, keep and maintain the Improvements located upon the Premises in a structurally safe and sound condition, in good repair and in compliance with the Plans and Specifications and this Easement Agreement. Grantee shall also promptly repair any damage to the Premises or the Improvements caused, either in whole or in part, by Grantee Parties (as hereinafter defined). Grantee shall not cause or permit another person to cause any damage to the Premises or the Improvements, and Grantee shall be responsible for any such damage which may occur as a result of any Grantee Party's action or inaction. Grantee shall not permit the existence of any nuisance or the accumulation of junk, debris or other unsightly materials on the Premises and shall keep the Premises in a clean and safe condition. Grantee shall, at its sole cost and expense, remove ice and snow from the Premises. Grantee shall keep the Premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on the Premises, said work of cutting and removal to be done at such times and with such frequency as to comply with local Laws and regulations and abate any and all hazard of fire. Grantor shall have no obligation whatsoever, monetary or non-monetary, to maintain the Improvements in the Premises. 6.3 No Interference. During the construction of, and any subsequent maintenance performed on, operation of, or removal of, all or any portion of the Improvements, Grantee, at Grantee's sole cost, shall perform all activities and work on or near Grantor's rail corridor or property and/or the Premises in such a manner as to preclude injury to persons or damage to the property of Grantor, or any party on or with property on Grantor's rail corridor or property, and shall ensure that there is no interference with the railroad operations or other activities of Grantor, or anyone present on Grantor's rail corridor or property with the authority or permission of Grantor. Grantee shall not disturb any improvements of Grantor or Grantor's existing lessees, licensees, license beneficiaries or lien holders, if any, or interfere with the use of such improvements. Grantor may direct one of its field engineers to observe or inspect the construction, maintenance, operation or removal of the Improvements, or any portion thereof, at any time to ensure such safety and noninterference, and to ensure that the Improvements comply with the Plans and Specifications. If any Grantee Party is ordered at any time to leave the Premises or to halt any activity on the Premises, then the party conducting that activity immediately shall cease such activity and leave the Premises, if the order was issued by Grantor's personnel to promote safety, such noninterference with other activities or property, or because the Improvements were not in compliance with this Easement Agreement. Notwithstanding the foregoing right of Grantor, Grantor has no duty or obligation to observe or inspect, or to halt work on, the Premises, it being solely Grantee's responsibility to ensure that the Improvements are constructed, maintained, operated and removed in strict accordance with all Laws, safety measures, such noninterference and the Plans and Specifications and in compliance with all terms hereof. Neither the exercise nor the failure by Grantor to exercise any right set forth in this Section 6.3 shall alter the liability allocation set forth in this Easement Agreement. 6.4 No Alterations. Except as may be shown in the Plans and Specifications approved by Grantor for the Easement, Grantee may not make any alterations to the Premises, or permanently affix anything to the Premises, without Grantor's prior written consent. If Grantee desires to change either the location of any of the Improvements or any other aspect of the Plans and Specifications of any of the Improvements, Grantee shall submit such change and modified Plans and Specifications to Grantor in writing for its approval in the same manner as provided for in Section 5. Grantee shall have no right to commence any such change until after Grantee has received Grantor's approval of such change in writing. 6.5 Approvals: Compliance with Laws and Safety Rules. (a) Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, Form 703;Rev.02/12/10 3 including such actions as may be necessary to obtain any required approvals or authorizations from applicable governmental authorities. (b) Prior to entering the Premises, and at all times during the term of this Easement Agreement, Grantee shall comply, and shall cause its contractor, any subcontractor, any assignee, and any contractor or subcontractor of any assignee performing work on the Premises or entering the Premises on behalf of Grantee (collectively, "Grantee's Contractors"), to comply, with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) (collectively, "Laws"), and all of Grantor's applicable safety rules and regulations including those found on the website noted below in Section 6.5(c). (c) No Grantee Party may enter the Premises without first having completed Grantor's safety orientation found on the website:www.contractororientation.com. 6.6 Other Improvements. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements(fiber optic, cable, communication or otherwise) may exist. 6.7 Flagging and Other Costs. Grantee shall not conduct any activities on, or be present on, any portion of the Premises or Grantor's rail corridor or property that is within twenty-five (25) feet of any active railroad track, except in the presence of a flagman. In any case where a flagman or flagmen are required in connection with the presence of individuals on Grantor's rail corridor or the Premises, Grantee shall provide as much advance notice as possible prior to any entry upon the Premises. Grantor shall arrange for the presence of the flagman or flagmen as soon as practicable after receipt of such notice from Grantee. Grantee shall reimburse to Grantor, within thirty (30) days following Grantee's receipt of each bill therefor, Grantor's costs in arranging for and providing the flagman or flagmen, which shall be billed to Grantee at Grantor's then applicable standard rate. The estimated cost of one flagger as of the Effective Date is $600 for an eight hour basic day with time and one-half or double time for overtime, rest days and holidays, plus the cost of any vehicle rental costs or other out-of-pocket costs. Grantee agrees to reimburse Grantor(within thirty(30) days after receipt of a bill therefor) for all other costs and expenses incurred by Grantor in connection with Grantee's use of the Premises or the presence, construction, maintenance, and use of the Improvements situated thereon. 6.8 No Unauthorized Tests or Digging. Grantee, and Grantee's Contractors, must not conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on Grantor's rail corridor or property(whether or not such centerline is located within the Premises), except after Grantee has obtained written approval from Grantor, and then only in strict accordance with the terms and any conditions of such approval. 6.9 Boring. Prior to conducting any boring work on or near Grantor's rail corridor or property (which shall only be permitted within the Premises), Grantee and Grantee's Contractors shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, Grantee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Grantee's written request, which shall be made thirty (30) business days in advance of Grantee's proposed construction or modification of Improvements, Grantor will provide to Grantee any information that Grantor has Form 703;Rev.02/12/10 4 in the possession of its Engineering Department concerning the existence and approximate location of Grantor's underground utilities and pipelines at or near the vicinity of the proposed Improvements. Prior to conducting any boring work, Grantee, and Grantee's Contractors, shall review all such material. Grantor does not warrant the accuracy or completeness of information relating to subsurface conditions and Grantee's, and Grantee's Contractors', operations at all times shall be subject to the liability provisions set forth herein. For all bores greater than 20 inches in diameter and at a depth less than ten (10)feet below the bottom of a rail, Grantee, and Grantee's Contractors, shall perform a soil investigation which must be reviewed by Grantor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Grantor's reasonable opinion that granular material is present, Grantor may select a new location for Grantee's use, or may require Grantee, and Grantee's Contractors, to furnish for Grantor's review and approval, in Grantor's sole discretion, a remedial plan to deal with the granular material. Once Grantor has approved any such remedial plan in writing, Grantee, and Grantee's Contractors, at Grantee's sole cost, shall carry out the approved plan in accordance with all terms thereof and hereof. Any open hole, boring or well constructed on the Premises by Grantee, or Grantee's Contractors, shall be safely covered and secured at all times when anyone who is not creating it, working in it or using it as permitted hereunder is present in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises shall be promptly filled in by Grantee and Grantee's Contractors to surrounding ground level with compacted bentonite grout, or otherwise secured or retired in accordance with any applicable Laws. No excavated materials may remain on Grantor's rail corridor or property for more than ten (10) days, and must be properly disposed of by Grantee and Grantee's Contractors in accordance with applicable Laws. 6.10 Drainage of Premises and Property. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Premises shall be made and maintained by Grantee in such manner, form and to the extent as will provide adequate drainage of and from the Premises and Grantor's adjoining right of way; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from the Property and Grantor's adjoining right of way, Grantee shall construct and maintain such culverts or drains within the Premises as may be requisite to preserve such natural and pre- existing drainage. Grantee shall wherever necessary, construct extensions of existing drains, culverts or ditches through or along the Premises, such extensions to be of adequate sectional dimensions to preserve flowage of drainage or other waters, and/or material and workmanship equally as good as those now existing. 6.11 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi- governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. 6.12 Modification, Relocation or Removal of Improvements. If at any time, Grantor desires the use of its rail corridor in such a manner that, in Grantor's reasonable opinion, would be interfered with by any portion of the Improvements or the Easement, Grantee, at Grantee's sole cost, shall make such changes in the Improvements and/or Premises that, in the sole discretion of Grantor, are necessary to avoid interference with the proposed use of Grantor's property, including, without limitation, Grantee relocating or removing all or a portion of the Improvements from the Premises. Grantor acknowledges that, in some instances, Improvements will not need to be moved or removed from the Premises, but can be protected in place, subject to approval by Grantor's engineering department. Grantee hereby waives any rights that it may have to use condemnation Laws to keep Improvements in place and not relocate or remove the Improvements where relocation or removal is required by Grantor. Where it is practicable to do so, Grantor shall provide to Grantee at least one hundred twenty (120) days prior written notice that Improvements must be modified, removed or relocated, and in circumstances where one hundred twenty (120) days notice is not practicable, Grantor shall provide to Grantee as much notice as it reasonably can, and in no case less than twenty (20) days prior written notice. Grantee shall ensure that all Improvements are modified, removed or relocated as required on or before the date set forth in Grantor's written notice. Form 703;Rev.02/12/10 5 Section 7 Indemnification. 7.1 TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE SHALL, AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS GRANTOR AND GRANTOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY, "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS EASEMENT AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS EASEMENT AGREEMENT, (iii) OCCUPATION AND USE OF THE PREMISES BY GRANTEE'S OR GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER (INDIVIDUALLY, A "GRANTEE PARTY,"AND COLLECTIVELY, "GRANTEE PARTIES"), (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED TO BY GRANTEE PARTIES, OR (v) ANY ACT OR OMISSION OF GRANTEE PARTIES, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH GRANTEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 7.2 TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 7.1, GRANTEE SHALL, AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT GRANTOR IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE IMPROVEMENTS FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. GRANTEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. GRANTEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS EASEMENT AGREEMENT SHALL NOT IN ANY WAY SUBJECT GRANTOR TO CLAIMS THAT GRANTOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL GRANTOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. 7.3 TO THE FULLEST EXTENT PERMITTED BY LAW, GRANTEE SHALL, AND SHALL CAUSE GRANTEE'S CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES AND PERMITTEES TO, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE Form 703; Rev.02/12/10 6 DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF GRANTEE, OR ANY OF ITS CONTRACTORS, SUBCONTRACTORS, AGENTS, INVITEES, LESSEES, LICENSEES OR PERMITTEES, CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT,AND ANY SIMILAR STATE OR FEDERAL STATUTE. 7.4 Upon written notice from Grantor, Grantee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Easement Agreement for which Grantee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Grantee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Section 8 Insurance. Grantee shall, at its sole cost and expense, procure and maintain during the life of this Easement Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by Grantee.. . Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway and Jones, Lang, LaSalle Global Services RR,Inc. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired Form 703;Rev.02/12/10 7 This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor or and acceptable to Railway. ♦ Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. C. Workers Compensation and Employers Liability Insurance. This,insurance shall include coverage for, but not limited to: • Grantee's statutory liability under the worker's compensation Laws of the state(s) in which the work is to be performed. If optional under State Law, the insurance must cover all employees anyway. • Employers' Liability (Part B)with limits of at least$500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. D. Railroad Protective Liability Insurance is required if there is any construction or demolition activities. This insurance shall name only the Railway as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railway prior to performing any work or services under this Easement Agreement If available and in lieu of providing a Railroad Protective Liability Policy, Grantee may participate in the Railway's Blanket Railroad Protective Liability insurance Policy available to Grantee or its contractor. The limits of coverage are the same as above. The cost is $ 1,501.50 4. • I elect to participate in Grantor's Blanket Policy; ❑ I elect not to participate in Grantor's Blanket Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Grantee agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through policy endorsement, waive their right of subrogation against Railway for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Grantee further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under its care, custody, or control. Grantee is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Grantee in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Easement Agreement, be covered by Grantee's insurance will be covered as if Grantee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Form 703;Rev.02/12/10 8 Prior to commencing work, Grantee shall furnish to Railway an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railway in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Railway, a certified duplicate original of any required policy shall be furnished. Any insurance policy shall be written by a reputable insurance company acceptable to Railway or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Grantee represents that this Easement Agreement has been thoroughly reviewed by Grantee's insurance agent(s)/broker(s), who have been instructed by Grantee to procure the insurance coverage required by this Easement Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Grantee, Grantee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railway to the same extent and under the same terms and conditions as Grantee is required to release, defend and indemnify Railway herein. Failure to provide evidence as required by this Section 8 shall entitle, but not require, Railway to terminate the Easement immediately. Acceptance of a certificate that does not comply with this Section 8 shall not operate as a waiver of Grantee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Grantee shall not be deemed to release or diminish the liability of Grantee including, without limitation, liability under the indemnity provisions of this Easement Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. For purposes of this Section 8, Railway shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company"and the subsidiaries, successors, assigns and affiliates of each. Section 9 Environmental. 9.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act(collectively referred to as the"Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or"disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 9.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of Form 703;Rev.02/12/10 9 all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 9.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 9.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 9.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 9. Should Grantee not comply fully with the above- stated obligations of this Section 9, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 12. Section 10 PERSONAL PROPERTY WAIVER. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF GRANTEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Section 11 Default and Termination. 11.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 11.2 Grantor's Termination Rights. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee: (i) if default shall be made in any of the covenants or agreements of Grantee contained in this Easement Agreement, (ii) in case of any assignment or transfer of the Easement by operation of law, or(iii) if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 11.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 12. Form 703;Rev.02/12/10 10 11.4 Non-exclusive Remedies. The remedies set forth in this Section 11 shall be in addition to, and not in limitation of, any other remedies that Grantor may have at law or in equity. Section 12 Surrender of Premises. 12.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 12.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 13 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 13 or any other section of this Easement Agreement. Section 14 Tax Exchange. Grantor reserves the right to assign this Easement Agreement to Goldfinch Exchange Company LLC. ("Goldfinch"). Goldfinch is a qualified intermediary within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and Treas. Reg. § 1.1031(k)-1(g), for the purpose of completing a tax-deferred exchange under said Section 1031. Grantor shall bear all expenses associated with the use of Goldfinch, or necessary to qualify this transaction as a tax-deferred exchange, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Grantee from and against any and all reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee may incur as a result of Grantor's use of Goldfinch or the qualification of this transaction as a tax- deferred transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax- deferred exchange, and upon Grantor's request, shall execute such documents as may be required to effect this tax-deferred exchange. Section 15 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if(i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party Form 703;Rev.02/12/10 11 specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30)days' advance written notice of such change in address. If to Grantor: BNSF Railway Company 2500 Lou Menk Dr.—AOB3 Fort Worth, Texas 76131 Attn: Director of Real Estate With a copy to: BNSF Railway Company 2500 Lou Menk Drive Fort Worth, Texas 76131 If to Grantee: City of Auburn—Public Works Engineering 25 West Main Street Auburn, WA 98001 Attn: Jacob Sweeting Section 16 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit"B" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 30 days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 17 Miscellaneous. 17.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of Texas without regard to conflicts of law provisions. 17.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 17.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 17.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 17.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. Form 703;Rev.02/12/10 12 17.6 Time is of the essence for the performance of this Easement Agreement. Section 18 Administration Fee Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantors Broker a processing fee in the amount of$2,500.00 over and above the agreed upon Purchase Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAIL Y COMPA Y, a Delawar poration By: Name: 4,"44. �j•%a/yi,�a�� Title: 4.ec- v Rv/ l GRANTEE: CITY OF AUBURN,a municipal corporation `- N : Name: Title: •...1 Form 703;Rev.02/12/10 13 �,,,,�„���,�, EXHIBIT "A” rte• SCALE 101•SB FT eW Aq tftIE '2eA5'iO3 'MP STA•aSA771 RW•- pp � �'' b y E s tib t fi 3' *kk 14,0440, - illr 01E t If N �'£` , «? LP 2387 '9 r+w B.RYr P ! }'a� .•, y, �7 27 4Th 112"226YY7 _ '� I. N g g ,`[8' fi x h ": r „,,,,-,.,,,4, O X 8 +. . a r`1 s.y a I lit g�V i q. A ppb � � a•tl.i! 9 ,t.s, a, -'' - -4.'t k ., ,, � .,, ,, ,„ , , „r , ,4, ...,1 C. ',aft "P A. ' - ,-''''s Rei � �4 �� '� "Y"� "�� ,M .; `' 1 t i [ 1 1i ,; ,.... t o I _. V 1 NORTHWEST DIVISION "'ti` SEATTLE SUBDIVISION-LS.00514 TO CITY OF AUBURN LEGEND .p YALSEC 51036 AT AUBURN -' 'r"' ” $ NP RY WA-03, MAP 04 r"P� . .'?F W.,�'"� ft SEC 25,TZ1N,R4E W0.LM KMG COUNTY. wacEs1Es - renr ucauRa�ms+:awErt WA —mec« 9yFp 6b7StrdeNOFc5EsrvE• DATE Va2021 fly. rw:w[asuaewc*1< MP 23.63 REVISION 3 DRANO�.JNC DRA S S G NO.76951 EXHIBIT A-1 EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1, CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY, WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, KING COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37TH STREET SOUTHEAST AND "A" STREET SOUTHEAST,THENCE NORTH 88°59'10" WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF "A" STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10" WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEMENT; THENCE ALONG SAID WEST LINE SOUTH 01°00'50" WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28" WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50" WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25" EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50" EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET, MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19" EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF "A" STREET SOUTHEAST AND 41ST STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF "A" STREET SOUTHEAST AND 37TH STREET SOUTHEAST, CITY OF AUBURN, WASHINGTON. Page 2 of 2 EXHIBIT "B" Memorandum of Easement City of Auburn Return Name 25 West Main Street Street Address Auburn, WA 98001 City,State,ZIP Standard Cover Sheet The Auditor/Recorder will rely on the information provided on the form.The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein. Document Title(s) 1. Memorandum of Easement 3 2. 4. Reference Number(s) of Related Documents Additional reference numbers on page Grantor(s) 1. BNSF Railway Company Last Name First Name Middle Initial 2. Last Name ' First Name Middle Initial Additional names on page Grantee(s) 1 City of Auburn Last Name ' First Name Middle Initial 2. Last Name ' First Name Middle Initial Additional names on page Legal Description (abbreviated form:ie lot,block,plat or section,township,range) PORTION OF PARCEL 1,CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-001 RECORDED UNDER RECORDING NUMBER 20060616000926,KING COUNTY RECORDS,WASHINGTON LOCATED IN SE'/.,SEC.25,T21N,R4E.,W.M. Assessor's Property Tax Parcel/Account Number E Number not yet assigned 2521049028 Additional numbers on page Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this_day of , 2021, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF AUBURN, a municipal corporation ("Grantee"), whose address for purposes of this instrument is 25 West Main Street, Auburn, Washington, 98001, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herein by reference (the"Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across a portion of the Premises (the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] Page 1 of 2 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: CITY OF AUBURN, a municipal corporation By: Name: Title: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the_day of , 2021, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the_day of , 2021, by (name) as (title) of , a Notary Public (Seal) My appointment expires: Page 2 of 2 EXHIBIT A EASEMENT LEGAL DESCRIPTION THAT PORTION OF PARCEL 1, CITY OF AUBURN LOT LINE ADJUSTMENT NUMBER LLA06-0001 RECORDED UNDER RECORDING NUMBER 20060616000926 RECORDS OF KING COUNTY, WASHINGTON LOCATED IN THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 21 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN, KING COUNTY,WASHINGTON, DESCRIBED AS FOLLOWS: COMMENCING AT AN ENCASED MONUMENT LOCATED AT THE INTERSECTION OF 37'STREET SOUTHEAST AND "A"STREET SOUTHEAST,THENCE NORTH 88°59'10" WEST A DISTANCE OF 23.84 FEET TO THE WEST RIGHT OF WAY MARGIN OF "A" STREET SOUTHEAST ALSO BEING THE EAST LINE OF AN EASEMENT GRANTED TO THE CITY OF AUBURN FOR HIGHWAY AND WATER RETENTION POND PURPOSES UNDER RECORDING NUMBER 8109100298; THENCE CONTINUING NORTH 88°59'10" WEST A DISTANCE OF 12.23 FEET TO THE WEST LINE OF SAID EASEMENT; THENCE ALONG SAID WEST LINE SOUTH 01°00'50" WEST A DISTANCE OF 40.07 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID WEST LINE SOUTH 23°29'28"WEST A DISTANCE OF 23.00 FEET; THENCE PARALLEL WITH SAID WEST LINE SOUTH 01°00'50" WEST A DISTANCE OF 35.00 FEET; THENCE SOUTH 31°35'25" EAST A DISTANCE OF 16.32 FEET TO SAID WEST LINE; THENCE ALONG SAID WEST LINE NORTH 01°00'50" EAST A DISTANCE OF 70.00 FEET TO THE POINT OF BEGINNING. THE EASEMENT CONTAINS AN AREA OF 462 SQUARE FEET, MORE OR LESS THE BASIS OF BEARINGS FOR THIS DESCRIPTION IS NORTH 01°01'19" EAST AS DETERMINED FROM THE MONUMENT LOCATED AT THE INTERSECTION OF "A"STREET SOUTHEAST AND 41ST STREET SOUTHEAST TO THE MONUMENT LOCATED AT THE INTERSECTION OF "A"STREET SOUTHEAST AND 37TH STREET SOUTHEAST, CITY OF AUBURN, WASHINGTON. / j,LEN QI ov _rPE.58 EgM9: 4a sf�NAL LAO 06/30/2021 num SCALE: 1"=20 FEET c S Q� �° 2 06Q0060000926 ii• Immo MI -� •41) (1, S 01'00'50" W 35.00' 232 p�(� Ind 00� 1 0 10 20 40 S-511�� \<\\\ EASEI�v ENT 23.0?8' �, \ 1'00.50" W 40.07' WEST LINE OF EASEMENT - N 01'00'50" E 70.00' POB EASEMENT LWT R CC. NO. OW5100298 N WEST RIGHT OF WAY MARGIN N 01'17'13" E z — "A" STREET SOUTHEAST can• c^',, /-MON AT 41ST ST SE o ^ "BASIS OF BEARINGS" N 01'01'19" E POC RIGHT OF WAY CENTERLINE N 01'17'13" E PER ROS UNDER REC. NO. 20160426900014 w P�'LEN GI cj pF wa .Q...447 47s I_ o!��� 4.goy (n r z x ',7 co m ,- o'�'` 52833 47 ,D O s3, ";',4, (EAST— EAST RIGHT OF WAY MARGIN OVAL LA11�S — — — — — 2 m 06/30/2021 POC = POINT OF COMMENCEMENT POB = POINT OF BEGINNING * PROJ:CP1110 =-�' EXHIBIT B of CITY OF AUBURN 6/30/2021 • 4.•.:13;111:41 PUBLIC WORKS DEPARTMENT EASEMENT DEPICTION SCALE: 1"=20' WASHINGTON DRAWN BY:TAG 1033 Memorandum (0) J LL Title&Escrow Services/USA 4200 Buckingham Road,Suite 110 Fort Worth,TX 76155-2865 tel 817 230 2612 fax 312 470 5311 E-mail:rtionda.t�urton@am.jll.corn TO: BNSF Railway Company 3115 Solutions Center Chicago,IL 60677-3001 FROM: Rhonda Burton Director,Specialist Advisory Direct Line+1817 230 2612 CLOSE DATE: October 12,2021 FILE NO.: BNSF 12037 Auburn,King County,Washington Attached Is Warrant Check No. 464647 dated 09/07/2021 in the amount of $4,874.00 for a permanent easement grant covering 0.01+/-acre to City of Auburn(Easement at A Street SE/37th Street SE). Permanent Easement CONSIDERATION DUE: $4,874.00 COMPANY: 1000 AFE NO: NONE ACCOUNT: 71007627 CENTER: 81043 rte•LT:L9ti1t_DO.NOT ACCEPT THIS CHECK UNLESS HE PINK LOCK L KEY ICONS FADE.WHEN.WARMED AND YOU CAN SEE HEXAGONS IN A DUAL-TON .TRUE WAY -MARK WHEN.HELDTOTHE LIGHT * KayBank National Association 19-10 VOID-6 MONTHS 1 ACCOUNTS PAYABLE CITY OF ...J Au8oc `Y2Y0 gton 98001 CLAIMS CHECK AFTER CHECK DATE 1250 CITY OF AUBURN A "Cot`. 41.. .7;.' .I Vy; , a ;'1. ` 44.3% Li_ ` T; . :. 25 WEST MAIN STREET4 r 286220 09/07/2021 464647 ""'""4,874.00 I STATE OF WASHINGTON 98001 .00- ---.....0*-- --..�, WASHINGTON o, PAY Four Thousand Eight Hundred Seventy Four Dollars and No Cents,. i **t'4 w .— x"'kT Y s' 'fir R i - TO THE BNSF RAILWAY COCA --- d.e 2500 LOU MENK DRIVE t J i ORDER FT WORTH, TX 76131-2830 ' ,__./I OF Anon Mosier l /NSP /.213-?-J1 __ s • Memorandum 0 Jii, Title Si Escrow Services/USA 4200 Buckingham Road,Suite 110 Fort Worth,TX 76155-2865 tel 817 230 2612 fax 312 470 5311 E-mail:rhonda.burton@am.jll.com TO: BNSF Railway Company 3115 Solutions Center - Chicago,IL 60677-3001 FROM: Rhonda Burton Director,Specialist Advisory Direct Line+1817 230 2612 CLOSE DATE: October 12,2021 FILE NO.: BNSF 12037 Auburn, King County,Washington Attached is Warrant Check No.464648 dated 09/07/2021 in the amount of$2,500.00 for administrative processing concerning a permanent easement grant covering 0.01+/-acre to City of Auburn(Easement at A Street SE/37th Street SE). Administrative Processing Fee ADMINISTRATIVE PROCESSING FEE: $2,500.00 COMPANY: 1000 AFE NO: NONE ACCOUNT: 71007627 CENTER: 81043 7.1out I KeyBank National Association 19-1 Q �` �'`� Auburn,Wash ngtor 96001 VOID-8 MONTHS ACCOUNTS PAYABLE CITY OF -..!....see.—: ' y CLAIMS CHECK AFTER CHECK DATE 1250 CITY OF AUBURN A . , •� :O"v ` { 25 WEST MAIN STREET r* " 4 i , STATE OF WASHINGTON 98001 ;<--'___ WASHINGTON 286220 09/07/2021 464648 """"2,500.00 1 o C PAY Two Thousand Five Hundred Dollars and No Cents 19 .n g Fi i , 55 TO THE BNSF RAILWAY COMPANY mawM. Im l ORDER 2500 LOU MENK DRIVE I FT WORTH, TX 76131-2830 69 i OF Fhunae Okedot -- IIIIIIIIIIIIIIMIIIIIIIIMIIIIIIIIIIIIIIIIIIIIIIMIIIIIIIIIIIIIII --.R a-R:-EATM ON TAUj1lAQ•T9titAKDIA1ITIN •g NOT A E-T CITY OF AUBURN,STATE OF WASHINGTON 98001 ACCOUNTS PAYABLE CHECK NO. 465198 CP1110 A ST RPLI 08/16/2021 21-001308 BNSF Easement(Railroad Insurance)- 0.00 1,501.50 PLEASE DETACH BEFORE DEPOSITING _.. W7IRM119•L_[SiEW•1 T 1 -. P. L Pit • i O. 3LTW9`J ML • .• • . , . . f•. t-. . 1-RIA•RK ,$4 • • KeyBank National Auoc$atlon 19-10 ACCOUNTS PAYABLE /- * Auburn,Wastungton 96001 ammomVOID-6 MONTHS CITY OF. .-.,./' * k CLAIMS CHECK AFTER CHECK DATE 1250 CITY OF AUBURN A .� 1 ilia 0mamm 25 WEST MAIN STREET r r I aM qp , ......1.1.41. STATE OF WASHINGTON 98001 WASHINGTON 286220 10/07/2021 4651981,501.50 PAY One Thousand Five Hundred One Dollars and Fifty Cents A I .7., &04.440. .6 TO THE BNSF RAILWAY COMPANY is(.." - ORDER 2500 LOU MENK DRIVE Mayor 'W FT WORTH,TX 76131-2830 OF , /' 1,,,,,..._._.,) /111149144.614Flname arewor - 1 i j L Y•R BREATHE N THE PINK L• h K Y I 0 C•LOR WILL ADE AND THEN R APPEAR ON AN A\.4 NTiC HECK iT C.InigerMirnri BNSF Railway Company Railroad Protective Confirmation OJILL To: Blake Jung Contact Name: Jacob Sweeting Date: 10/03/2021 Contact Phone: 253-804-3118 From: Tim Sharman Agreement Type: easement Phone: 2067489420 Contractor/Licensee: City of Auburn Tracking No: 13241. BF if avalible: X82758 Date Quoted: 09/12/2021 Job Description and/or Length of Track Construction. Roadway widening project for 37th Street Project Cost: $80,000.00 RPLI Cost: $1,501.50 Line Segment: 005 I-4 2M per occurance/6M in aggregate Mile Post: 23.63 ri 5M per occurance/ 10M in aggregate This will acknowledge that Railroad Protective Liability Insurance is in place effective 10-'04-2021 to 01 27 2022 for the above referenced project,subject to the terms of BNSF's Contractor Right of Entry Agreement as approved and executed. Insured: BNSF Railway Company Thank you! cc: cc: File (©)i LL