#6

STAFF REPORT NO. 017-13

TO: Mayor and City Council DATE: 02/04/13 FROM: Eric Holmes, City Manager 02/25/13 03/04/13

Subject: Street vacation of a portion of right-of-way of West 32nd Circle within the Columbia Crest Subdivision and adjacent to the Burlington Northern Santa Fe (BNSF) right-of-way.

Objective: To grant a street vacation for a portion of right-of-way of West 32nd Circle located west of Olive Street and immediately adjacent to and east of the BNSF right-of-way.

Present Situation: Pursuant to the Tri-Party Exchange Agreement between the City of Vancouver, BNSF and the State Department of Transportation (WSDOT), approved by the Vancouver City Council on January 14, 2013, the City has agreed to initiate the vacation of a portion of the right-of-way associated with West 32nd Circle. BNSF owns adjacent to the proposed vacated right-of-way. BNSF is currently developing the Vancouver Bypass Project, which will allow passenger trains to bypass congested rail areas created by freight trains, thereby improving passenger train service in this region and reducing railroad congestion. BNSF is requesting vacation of the subject street to facilitate access to the bypass facility and other railroad infrastructure to perform necessary maintenance and operations as well as to ensure public safety by controlling access into their railroad facilities.

Staff has contacted all utility owners with facilities located within the subject area. The City of Vancouver has utilities within the area of the proposed vacation, including a sanitary sewer trunk line and other utility infrastructure. Therefore, the City will retain utility under and over the vacated area for the construction, repair and maintenance of all public utilities and services.

Pursuant to VMC 11.05.130, the property associated with a vacated street shall belong to the abutting property owners, one-half to each. The Tri-Party Exchange Agreement stipulates the conveyance of Parcel 059355-396 (City of Vancouver) and Parcel 000136-000 (WSDOT) to BNSF. Therefore, conveyance of the subject vacated area will ultimately go to BNSF.

RCW 35.79.030 and VMC 11.05.120 provide for, but do not require, the City to collect compensation for the value of public right-of-way that is vacated. As previously noted, the vacation of a portion of West 32nd Circle is pursuant to the Tri-Party Exchange Agreement between the City of Vancouver, BNSF and WSDOT, approved by the Vancouver City Council on January 14, 2013. Section 1.A of the Agreement stipulates that the exchange of as described in the Agreement is, “…adequate and sufficient consideration, and no other monies or additional consideration is owed to or by any of the Parties…” Therefore, staff recommends that no compensation be required for the vacated right-of-way.

Advantages: 1. Allows vacated property to be placed on the rolls. 2. Allows the applicants to maximize use of the abutting property. Staff Report 017-13 February 4, 2013 February 25, 2013 March 4, 2013 Page 2 of 2

Disadvantages: Easements will need to be maintained over the vacated area for the protection of public utilities and public access.

Budget Impact: None.

Action Requested: 1. On February 4, 2013 adopt a resolution of intent to vacate a portion of right-of-way of West 32nd Circle, setting the date of public hearing for February 25, 2013. 2. On February 25, 2013 subject to public hearing on the resolution of intent, approve ordinance on first reading, setting date of second reading and public hearing for March 4, 2013. 3. On March 4, 2013 subject to second reading and public hearing, approve the ordinance.

Attachments:  Exhibit A – Legal Description & Site Map Exhibit  Exhibit B – Overall Vicinity Map  Exhibit C – Tri-Party Exchange Agreement  Resolution  Ordinance

EXHIBIT ‘A’ RIGHT-OF-WAY VACATION A TRACT OF LAND LOCATED IN NORTHEAST ONE-QUARTER OF SECTION 21, TOWNSHIP 2 NORTH, RANGE 1 EAST, WILLAMETTE MERIDIAN IN THE CITY OF VANCOUVER, CLARK COUNTY, WASHINGTON. SAID TRACT BEING A PORTION OF WEST 32ND CIRCLE AS DEDICATED ON THE FACE OF COLUMBIA CREST SUBDIVISION AND HIDDEN VIEW SUBDIVISION, CLARK COUNTY PLAT RECORDS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A 1-1/4 INCH BRASS DISC MARKING THE NORTHEAST CORNER OF SECTION 21, TOWNSHIP 2 NORTH, RANGE 1 EAST, WILLAMETTE MERIDIAN; THENCE SOUTH 13°07'36" WEST, 2,032.64 FEET TO THE INTERSECTION OF THE CENTERLINES OF WEST 32ND CIRCLE AND OLIVE STREET; THENCE ALONG THE CENTERLINE OF WEST 32ND CIRCLE NORTH 89°14'19" WEST, 254.93 FEET; THENCE NORTH 00°45'41" EAST, 10.00 FEET TO THE RADIUS POINT OF CUL-DE-SAC AT THE WESTERN TERMINATION WEST 32ND CIRCLE AS DEDICATED ON COLUMBIA CREST SUDIVISION, CLARK COUNTY PLAT RECORDS; THENCE NORTH 31°23'30" EAST, 50.00 FEET TO THE NORTHERLY RIGHT- OF-WAY OF WEST 32ND CIRCLE AND THE TRUE POINT OF BEGINNING AT A POINT OF NO-TANGENT CURVATURE WITH A 50.00 FEET RADIUS CURVE CONCAVE TO THE EAST FROM WHICH THE RADIAL LINE BEARS SOUTH 31°23'30" WEST; THENCE ALONG SAID CURVE, BEING THE RIGHT-OF-WAY OF WEST 32ND CIRCLE, THROUGH A CENTRAL ANGLE OF 252°02'23" (THE CHORD BEARS SOUTH 04°37'42" EAST, 80.88 FEET) AN ARC DISTANCE OF 219.95 FEET TO A POINT OF REVERSE CURVATURE WITH A 10.00 FEET RADIUS CURVE; THENCE ALONG THE ARC OF SAID REVERSE, BEING THE RIGHT-OF-WAY OF WEST 32ND CIRCLE, CURVE THROUGH A CENTRAL ANGLE OF 41°24'35" (THE CHORD BEARS NORTH 70°03'24" EAST, 7.07 FEET) AN ARC DISTANCE OF 7.23 FEET TO A POINT OF TANGENCY; THENCE CONTINUING ALONG THE SOUTHERN RIGHT-OF-WAY OF WEST 32ND CIRCLE, SOUTH 89°14'19" EAST, 7.39 FEET TO A POINT OF NON- TANGENTDRAFT CURVATURE WITH A10/31/2012 44.36 FEET RADIUS CURVE CONCAVE TO THE NORTHEAST FROM WHICH THE RADIAL LINE BEARS NORTH 00°45'41" EAST; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 44°05'40" (THE CHORD BEARS NORTH 67°11'29" WEST, 33.30 FEET) AN ARC

PAGE 1 OF 3

DISTANCE OF 34.14 FEET TO THE SOUTHERN LINE OF SAID COLUMBIA CREST SUBDIVISION; THENCE ALONG SAID SOUTHERN LINE SOUTH 89°14'19" EAST, 6.68 FEET TO A POINT OF NON-TANGENT CURVATURE WITH A 40.00 FEET RADIUS CURVE CONCAVE TO THE EAST FROM WHICH THE RADIAL LINE BEARS NORTH 37°58'21" EAST; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 110°06'24" (THE CHORD BEARS NORTH 03°01'33" EAST, 65.57 FEET) AN ARC DISTANCE OF 76.87 FEET TO THE POINT OF BEGINNING. SAID TRACT CONTAINS 5,540 SQUARE FEET / 0.13 ACRES, MORE OR LESS. SAID TRACT IS MORE PARTICULARLY DEPICTED ON PAGE 3 OF THIS EXHIBIT BEARINGS BASED ON THE BNSF BY-PASS LOCAL PLANE COORDINATE SYSTEM.

DRAFT 10/31/2012

PAGE 2 OF 3

DRAFT 10/31/2012

TM Because the world is a spatial place 1724 23rd Avenue | Forest Grove OR 97116 T: 503.359.1688 | www.oriongeomatics.com Proposed Street Vacation Area

BNSF BNSF

WSDOT - 000136-000

COV - 059355-396

W

e

s

t 3

Cherry Street 2

n

d

Cir

c

le W

W Olive Street

e

e

s

s

t

t

31

30

s

t

h

t

S S

BRICKYARD

t

t

r r

PARK

e

e

et et

of reduction in travel time and a reduction of 3.8 delay minutes for State-sponsored passenger rail train runs between the cities of and Portland for twenty (20) years.

F. The Washington legislature appropriated funds to WSDOT to implement the Project and acquisition of pursuant to the WSDOT/BNSF Agreement. The WSDOT-owned properties to be exchanged pursuant to this Agreement were purchased by WSDOT specifically for the Project using those appropriated funds with the intent to subsequently transfer as necessary and appropriate to implement the Project.

AGREEMENTS

In consideration of the mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Section 1. Conveyance of the Exchange Properties/Fair Market Value.

A. Conveyance. Upon the execution of this Agreement by the duly authorized representatives of the Parties, and subject to final ratification of this Agreement by ordinance of the Vancouver City Council and satisfaction of the other terms and conditions set forth in this Agreement, on the Date (defined below), each Party, as a Transferor, agrees to transfer and convey the land parcels as described in the Exchange Exhibit to the Party designated in the Exchange Exhibit as the Transferee, including all right, and interest of each Transferor Party, including without limitation, to the extent owned by Transferor Party, all minerals, oil and gas on or under such land, development rights, land use entitlements, , water rights, and any interests in, on, or under the land, together with any and all improvements, structures or fixtures now or on the Closing Date located thereon. Each Party agrees and acknowledges that the transfer and exchange of the Exchange Properties as described herein is adequate and sufficient consideration, and no other monies or additional consideration is owed to or by any of the Parties in connection with the transfer and exchange of the Exchange Properties with the exception of the payment of those fees, costs or payable as set forth in Section 9.

B. . Each of the Exchange Properties shall be conveyed by quit claim deed free and clear of all (as hereinafter defined) except the Permitted Encumbrances (as hereinafter defined).

C. Exchange Properties. The Exchange Properties are shown on the aerial photographs attached hereto as Exhibit “A”. The Exchange Properties and who is the Transferor and who will be the Transferee are:

Parcel No. Transferor Transferee

059355-396 COV BNSF 32nd Circle vacation parcel COV BNSF

51244123.9 2 Lincoln St. vacation parcel COV BNSF 31st St. vacation parcel COV BNSF 136000 WSDOT BNSF 059355-276 WSDOT COV 059355-274 WSDOT COV 059355-394 WSDOT COV 370000 BNSF COV 380000 BNSF COV 37918670 BNSF COV

D. COV. Certain of the Exchange Properties are owned and held by COV as public rights of way and are thus subject to approval by COV of one or more street vacations initiated by application and/or COV legislative resolution as further described in Section 6C. hereto. The COV Parcels subject to a street vacation approval are identified as “subject to street vacation” in Exhibit “B” attached hereto. Conveyance of one or more of the COV Parcels is further subject to a surplus determination by the City of Vancouver as described in Section 6C. hereto. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge that COV may not hold fee simple title to the COV Parcels set forth above, and that COV’s interest in all or part of the COV Parcels, if any, may rise only to the level of an for street purposes. BNSF is willing to accept COV’s interest in the COV Parcels on this basis and expressly releases COV, its successors and assigns, from any claims that BNSF or its successors may have as a result of vacation of the streets over the COV Parcels. In light of COV’s disclosure that it may not hold a fee interest in all or part of the COV Parcels, each Transferee of a COV Parcel agrees to indemnify, defend and hold COV harmless from any suit or claim for damages, punitive or otherwise, expenses, attorneys’ fees or civil penalties that may be imposed on COV as a result of any person or entity claiming an interest in any portion of the COV Parcels or claiming that COV did not have the right to transfer all or part of the COV Parcels to such Transferee. The provisions of this Section 1.D may be included in any deed from COV to a Transferee hereunder. Public rights of way may be held by COV in fee or they may be an easement interest only. If all contingencies to this Agreement are met as set forth herein, COV shall convey all right, title and interest it has provided for in Section 1.C above.

E. WSDOT. Conveyance of some or all of the Exchange Properties owned by WSDOT is subject to a review process by WSDOT as further described in Section 6B. hereto.

F. BNSF. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge that BNSF may not hold fee simple title to the BNSF Parcels and that BNSF's interest in all or part of the BNSF Parcels, if any, may rise only to the level of an easement for railroad purposes. Each Transferee of BNSF Parcels is willing to accept BNSF's interest in the BNSF Parcels, if any, on this basis and expressly releases BNSF, its successors and assigns from any claims that Transferee or its successors may have as a result of an abandonment of the line of rail running over or adjacent to any portion of the BNSF Parcels. In light of BNSF's disclosure that it may not hold a fee interest in all or part of the BNSF Parcels, each Transferee of BNSF Parcels agrees to indemnify, defend and hold BNSF harmless from any suit or claim for damages, punitive or otherwise, expenses, attorneys' fees, or civil penalties that may be imposed on BNSF as the result of any person or entity claiming an interest in any portion of the BNSF

51244123.9 3 Parcels or claiming that BNSF did not have the right to transfer all or part of the BNSF Parcels to such Transferee. The provisions of this Section 1E shall be included in any deed from BNSF to the BNSF Parcels.

G. Property Appraisals. Each of the Parties hereby confirms that it has reviewed and approved, as of the Effective Date hereof, an appraisal of fair market value and a review appraisal, to the extent it requires or elects, for each of the Exchange Properties to be conveyed by or to such Party as described herein (collectively, the “Property Appraisals”).

Section 2. Conditions Precedent; Good Faith Efforts. The obligation of each Party to convey its respective Exchange Property as contemplated by this Agreement is subject to satisfaction of each of the terms and conditions set forth in Section 3 and Section 6 (any of which may be waived only in writing and only by the Party in whose favor such condition exists) on or before the applicable date specified for satisfaction of the applicable condition. If any of such conditions is not fulfilled (or so waived in writing) pursuant to the terms of this Agreement, then the Party in whose favor such condition exists may terminate this Agreement and, in connection with any such termination made in accordance with this Section 2, each of the other Parties shall be released from further obligation or liability hereunder to such terminating Party (except for those obligations and liabilities which, pursuant to the terms of this Agreement, survive such termination. Notwithstanding anything to the contrary contained herein, in the event one Party elects to terminate this Agreement pursuant to this Section 2, then the remaining Parties may elect either to also terminate this Agreement or to consummate their respective obligations to each other as described herein.

Each Party hereby agrees to use all good faith efforts required on its part to expeditiously satisfy and complete their respective obligations as necessary to satisfy the conditions precedent set forth in this Agreement.

Section 3. Due Diligence/Due Diligence Period.

A. Due Diligence. Each Party (including its agents, employees and consultants), as a Transferee, shall be provided the opportunity during the Due Diligence Period (as defined below) to enter upon the Exchange Property which it is acquiring pursuant to this Agreement for the purpose of examining the same and the condition thereof, and to conduct such surveys and to make such engineering and other inspections, tests and studies, including without limitation a Phase I environmental assessment (and, if so recommended by the Phase I environmental assessment, to conduct a Phase II environmental assessment) (collectively, "Tests") as each such Party may determine to be reasonably necessary. Each Party agrees to give reasonable advance notice of such Tests to the other Parties and in accordance with the entry policies and procedures of the Parties. Each Party shall have until the end of the Due Diligence Period in which to make such additional Tests as it deems appropriate, and to deliver written notice to the other Parties terminating this Agreement if such Party is not, for any reason or no reason, satisfied with any Exchange Property which it is acquiring pursuant to this Agreement. If any Party fails to so deliver such notice to the other Parties terminating this Agreement by the end of the Due Diligence Period, then such Party’s right to terminate under this Section 3 shall be deemed to have been waived. If any Party does timely deliver notice terminating this Agreement, this

51244123.9 4 Agreement shall terminate and the Parties shall have no further rights or obligations hereunder, except those that expressly survive termination.

B. Due Diligence Period. As used in this Agreement, the term “Due Diligence Period” shall mean the period beginning on the Effective Date and ending at 11:59 p.m. Pacific Time on February 28, 2013. The Parties shall review and approve, in their sole discretion, the following due diligence items as described in this Section 3.

C. Property Surveys. On or before the last day of the Due Diligence Period, each of the Parties shall have confirmed in writing that it has reviewed and approved a survey, to the extent it requires or elects, for each of the Exchange Properties to be conveyed by or to such Party (collectively, the "Property Surveys") pursuant to current on-the-ground staked surveys which Property Surveys (i) are certified to the Transferee and any title insurance company providing an owner’s policy of title insurance to Transferee as required herein (“Title Company”), (ii) reflect the actual dimensions of the Exchange Property described therein, (iii) identify any rights-of-way, easements, or other Encumbrances by applicable recording reference, (iv) show the location of all improvements, if any, (v) are conducted in accordance with the Minimum Detail Requirements and Standards for Land Title Surveys of the American Title Association and American Congress on Surveying and Mapping, including any additional “Table A” selections required by any Transferee, and (vi) include the Surveyor's registered number and seal, the date of the survey, and the narrative certificate set forth on Exhibit "C" attached hereto and incorporated herein by this reference.

D. Title Review . On or before the last day of the Due Diligence Period, each of the Parties shall have confirmed in writing that it has reviewed and approved the condition of title for each of the Exchange Properties, to the extent it requires or elects, to be conveyed by or to such Party, as set forth in the ALTA form commitments for an owner’s title insurance policy (“Property Title Commitments”) as described in Exhibit “D” attached hereto and incorporated herein by this reference, and excepting only those exceptions to title and/or survey matters which the applicable Transferor has agreed in writing to cure or remove (the “Permitted Encumbrances”).

Approval by any Transferee of any additional exceptions to title or survey matters following expiration of the Due Diligence Period shall be a condition precedent to such Transferee’s obligations hereunder. Unless any Transferee gives written notice that it disapproves of any such additional exceptions to title or survey matters, stating the exceptions so disapproved, (for this purpose the “Review Transferee”) on or before five (5) business days after receipt of written notice thereof (but not later than the Closing Date), Review Transferee shall be deemed to have approved said additional exceptions or survey matters. If Review Transferee objects, by written notice to the other Parties, to any additional title or survey matters on or before five (5) business days after receipt of written notice thereof (but not later than the Closing Date), the applicable Transferor shall advise Review Transferee in writing within five (5) business days after receipt of the written objections: (I) which objections Transferor will cause to be remove at Closing, (II) which objection the Title Company has agreed to insure over in the owner’s policy to be issued at Closing (together with the proposed form of endorsement), and (III) which objections will not be removed or insured over. Failure of Transferor to respond

51244123.9 5 to the Review Transferee within such five (5) business day period shall be deemed Transferor’s election not to remove any such objections. Within five (5) business days after receipt of the Transferor’s response to Review Transferee’s written objections (or the failure of Transferor to respond to Review Transferee within such five (5) business day period), and if Transferor has not agreed to remove or cause Title Company to insure over all objection to which Review Transferee objects, Review Transferee shall notify the other Parties in writing of Review Transferor’s election to either: (x) terminate this Agreement, or (y) waive its objections to the objection(s) that Transferor will not remove or cause to be insured over, in which event such objections shall be deemed accepted by Review Transferee and deemed a Permitted hereunder. If Review Transferee fails to respond within such time, Review Transferee will be deemed to have made the election to terminate in subsection (x).

If, for any reason, on or before the Closing Date, any Transferor does not cause any exceptions to title or survey matters, which the Transferor has agreed to remove or cause the Title Company to insure over, then any Transferee of an Exchange Property subject to such uncured title or survey matter may elect, on or prior to the Closing Date, to: (i) terminate this Agreement, or (ii) accept the Exchange Property subject to such matters and proceed to close, with the right to deduct from the Purchase Price amounts secured by liens of a definite or ascertainable amount which Transferor has not removed as provided herein as well as amounts required to remove such matters.

In no event will any liens or other monetary Encumbrances affecting the Exchange Properties be a Permitted Encumbrance. No Transferee shall be required to object to, and, on or prior to Closing, each Transferor shall be obligated to cause the release of, any “Transferor Encumbrances”. As used herein, “Transferor Encumbrances” means the following: (1) any mortgages, of trusts, assignment of and rents, financing statements, and other monetary liens or impositions created or suffered by or on behalf of any Transferor (other than the liens for real property taxes not yet due and payable), and (2) any mechanics’, lis pendens or judgment liens that encumber an Exchange Property. Notwithstanding the foregoing or anything to the contrary contained herein, if any portion of the BNSF Parcels are encumbered by liens of one or more mortgages of BNSF (or its predecessors), BNSF shall deliver to the Transferee of such BNSF Parcels good and sufficient releases of such liens that are applicable to the BNSF Parcels within one hundred eighty (180) days after the first meeting of BNSF’s Board of Directors held after the Closing Date.

E. Owner’s Policy. On or before the last day of the Due Diligence Period, unless waived in writing by Transferee, Title Company shall have irrevocably committed to record the “Deeds” (defined below) on the Closing Date and to issue to Transferee effective as of the date and time the Deeds are recorded, a 2006 ALTA Form extended coverage owner’s title insurance policy for the applicable Exchange Property (“Owner’s Policy”), or equivalent form reasonably acceptable to Transferee dated as of the date and time the Deed for the Exchange Property is recorded, indicating title to be vested of record in Transferee subject solely to the “Permitted Exceptions” and containing such endorsements as Title Company has agreed to provide.

F. Condition of Exchange Properties. Each of the Parties, as a Transferor hereunder, confirms that during the Due Diligence Period it will provide the opportunity for the Transferee

51244123.9 6 to inspect the Exchange Properties which Transferee is acquiring pursuant to this Agreement in accordance with this Section 3F. for the purpose of conducting such inspections, analyses and other Tests as the Transferee has deemed advisable in its sole discretion including but not limited to all Property Conditions (as hereinafter defined). EACH PARTY TAKING TITLE TO AN EXCHANGE PROPERTY AS A TRANSFEREE HEREUNDER IS ACCEPTING SAID EXCHANGE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE EXCHANGE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM ANY TRANSFEROR OR OTHER PARTY AS TO ANY MATTERS CONCERNING SAID EXCHANGE PROPERTY, including, but not limited to, the physical condition; status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Exchange Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Exchange Property; the presence of any Hazardous Substances (defined below), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Exchange Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in, on or under the Exchange Property; and the existence of any leases, easements, permits, orders, licenses, or other agreements, affecting the Exchange Property (collectively, the "Property Conditions").

Each Party represents and warrants to the other Parties that it has not relied and will not rely on, and no other Party is liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Exchange Properties or relating thereto.

Each Party, with respect to the Exchange Property it is acquiring under this Agreement, assumes the risk that Hazardous Substances or other adverse matters may affect the Exchange Property it is acquiring pursuant to this Agreement that were not revealed by the Party’s inspection and hereby waives, releases and discharges forever the Transferor of such Exchange Property and its officers, directors, shareholders, employees and agents from any and all present or future claims or demands, and any and all damages, losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort) costs and expenses (including, without limitation fines, penalties and judgments, and attorneys’ fees) of any and every kind or character, known or unknown, arising from or in any way related to the Property Conditions or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Exchange Property.

For purposes of this Agreement:

1. "Environmental Law(s) means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control

51244123.9 7 Act, and any similar or comparable state or local law.

2. "Hazardous Substance(s)" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions.

3. "Environmental Matters" means matters relating to the generation, manufacture, use, storage, handling, transportation and/or disposal of Hazardous Substances, or conditions with respect to the atmosphere, soil, surface and ground waters, wetlands, stream sediments, vegetation, endangered species and stormwater runoff or discharge.

The provisions of this Section 3F. shall survive the Closing, bind each Party and their respective heirs, successors and assigns and shall be covenants running with the land.

Section 4. Representations and Warranties. Each Party represents and warrants to the other Parties as of the date of this Agreement and as of the Closing Date:

A. Authority. It has all necessary power and authority to enter into and execute this Agreement as of the Effective Date and, on or before Closing, shall have all necessary power and authority to consummate the transactions contemplated hereby.

B. No Actions, Etc. Except as disclosed to the Transferee in writing, to the Transferor’s knowledge:

1. No actions, suits, proceedings, orders, inquiries, or investigations are pending or are threatened against, involving, or affecting the Exchange Property, at law or in equity, or before or by any federal, state, municipal, or other governmental department, court, commission, board, bureau, agency, or instrumentality, alleging the violation of any federal, state, or local law, statute, ordinance, rule, regulation, decree, order, and/or permit relating to Environmental Matters (defined below) or the release of any Hazardous Substances (defined below).

2. No actions, suits, or proceedings are pending, threatened or asserted against the Exchange Property or against Transferor in connection with the Exchange Property, before or by any federal, state, municipal, or other governmental department, court, commission, board, bureau, agency, or instrumentality.

3. No pending or threatened condemnation actions exist with respect to the Exchange Property.

4. Transferor has not received any notice that any ordinance, regulation, law, or statute of any governmental agency pertaining to the Exchange Property has been violated.

51244123.9 8 5. No permission, approval, or consent by third parties or governmental authorities is required for Transferor to consummate this transaction.

C. Knowledge. The term "knowledge" as used in this Agreement, including without limitation this Section 4, refers to the actual, present knowledge of: (i) Charles E. Keltner, Senior Manager for BNSF; John Sibold, State Rail and Marine Director for WSDOT; and (iii) Ryan Lopossa, Senior Civil Engineer for COV (each, the respective Party's "Information Representative"), as of the Effective Date of this Agreement, without any duty of investigation or inquiry of any kind or nature whatsoever.

Section 5. Operations Pending Closing. Except as otherwise set forth in this Agreement, no Party shall (a) enter into or agree to enter into any , easement, license or other agreement concerning occupancy or use of any of the Exchange Properties that will survive Closing hereunder; or (b) enter into, or consent in writing to, any easement, encumbrance, covenant, condition, restriction or right-of way-affecting an Exchange Property without first obtaining the prior written consent of the intended Transferee of the Exchange Property hereunder, which consent may not be unreasonably withheld, conditioned or delayed.

Section 6. Conditions to Closing.

A. Conditions to BNSF’s Obligations. BNSF’s obligation to proceed to Closing under this Agreement is subject to the following conditions precedent:

1. As of the Closing Date, this Agreement is in full force and effect and the other Parties have timely performed each of their respective covenants under this Agreement.

2. The representations and warranties of the other Parties in this Agreement are true in all material respects as of the Closing Date.

3. As of the Closing Date, there shall have been no material adverse change in the condition of the Exchange Property to be acquired by BNSF other than as contemplated in this Agreement.

4. BNSF (or the Project) is able to obtain at Closing an Owner’s Policy to the Exchange Property to be acquired by BNSF (or the Project) subject only to the Permitted Encumbrances applicable thereto under Section 3.

5. All permits, approvals, authorizations, statutory, legislative (state and local) and other actions by the other Parties necessary in order to complete the transfers as described in this Agreement, including but not limited to the street vacations, have been granted or otherwise legally taken or authorized and any applicable appeal periods have expired without appeals having been taken.

B. Conditions to WSDOT’s Obligations. WSDOT’s obligation to proceed to Closing under this Agreement is subject to the following conditions precedent:

51244123.9 9

1. As of the Closing Date, this Agreement is in full force and effect and the other Parties have timely performed each of their respective covenants under this Agreement.

2. The representations and warranties of the other Parties in this Agreement are true in all material respects as of the Closing Date.

3. All permits, approvals, authorizations, statutory, legislative (state and local) and other actions by the other Parties necessary in order to complete the transfers as described in this Agreement, including but not limited to the street vacations, have been granted or otherwise legally taken or authorized and any applicable appeal periods have expired without appeals having been taken.

C. Conditions to COV’s Obligations. COV’s obligation to proceed to Closing under this Agreement is subject to the following conditions precedent:

1. As of the Closing Date, this Agreement is in full force and effect and the other Parties have timely performed each of their respective covenants under this Agreement.

2. The representations and warranties of the other Parties in this Agreement are true in all material respects as of the Closing Date.

3. As of the Closing Date, there shall have been no material adverse change in the condition of the Exchange Property to be acquired by COV other than as contemplated in this Agreement.

4. COV is able to obtain at Closing an Owner’s Policy to the Exchange Property to be acquired by COV subject only to the Permitted Encumbrances applicable thereto under Section 3.

5. All permits, approvals, authorizations, statutory, legislative (state and local) and other actions by the other Parties necessary in order to complete the transfers as described in this Agreement, including but not limited to the street vacations referenced herein, have been granted or otherwise legally taken or authorized and any applicable appeal periods have expired without appeals having been taken.

6. All necessary COV legislative action to approve the vacation of those COV Parcels noted in Exhibit “B” as being subject to a street vacation has been approved and all applicable appeal periods, if any, shall have expired without appeal.

7. All necessary COV legislative action to approve the surplus determination of those COV Parcels noted in Exhibit “B” as being subject to a surplus determination has been approved and all applicable appeal periods, if any, shall have expired without appeal.

51244123.9 10 In the event any of the foregoing conditions are not satisfied on or before the Closing Date specified above, any Party may terminate this Agreement by written notice to the other Parties and thereafter shall have no obligation to proceed with the Closing and no Party shall have any further obligation hereunder except those that expressly survive the termination of this Agreement. Nothing within this Section 6 shall be construed as a waiver or pre-determination by COV of any discretionary findings or approvals necessary in order to approve any street vacation and/or surplus determination as described herein.

Section 7. Closing.

A. The closing of the exchange contemplated by this Agreement ("Closing") shall occur on or before thirty (30) days following satisfaction of all conditions set forth in Sections 3 and 6 of this Agreement ("Closing Date"). Notwithstanding anything to the contrary, the obligations of each Party to consummate this transaction shall be subject to the fulfillment on or before the Closing Date of all of the closing conditions contained in this Section 7, any or all of which may be waived only by such Party in writing, and the delivery of the following items:

B. At Closing, each Party, as a Transferor, shall deliver the following to any Transferee Party:

1. a quit claim deed to the Exchange Property in the form applicable to each Transferor as attached to this Agreement as Exhibit "E" fully executed and acknowledged by Transferor and conveying title subject only to the Permitted Encumbrances;

2. such other and further documents as may be reasonably required to consummate the transactions contemplated by this Agreement and for Title Company to issue an Owner Policy to Transferee in accordance with this Agreement;

3. possession of the Exchange Property free and clear of all tenancies and parties in possession.

Section 9. Fees and Costs; Taxes.

A. Unless otherwise expressly set forth in this Agreement, the Parties shall prorate items of income and expense related to the Exchange Properties and shall allocate certain Closing costs as set forth in this Section 9.

B. Each Transferor will be responsible for the cost of removing any monetary encumbrances or obtaining any lien releases pertaining to the Exchange Property to be conveyed by it hereunder.

C. WSDOT shall pay, as a Project expense, for the cost of the Property Appraisals, Property Surveys, the Title Policies, the Tests and any and all recording fees, transfer taxes, and escrow fees.

51244123.9 11 D. There shall be no proration for real estate taxes, taxes, special tax assessments ("Taxes") accruing to, attributable to or becoming a lien against any Exchange Property that are not yet due and payable as of the Closing Date. Each Party shall pay on or before the Closing Date any and all such Taxes attributable to the Exchange Property to be conveyed by it hereunder which is due and payable on or before the Closing Date.

E. Other than as set forth above or elsewhere in this Agreement, each party shall pay its own expenses incurred in connection with the transaction contemplated by this Agreement.

Section 10. Miscellaneous.

A. Time is of the essence of this Agreement. This Agreement is binding upon the heirs, executors, administrators, successors, and assigns of each of the Parties hereto.

B. In any action (declaratory or otherwise) brought by any Party in connection with or arising out of the terms of this Agreement, the prevailing party in such action will be entitled to recover from the nonprevailing party all actual costs, actual damages, and actual expenses, except however that each of the Parties shall bear its own attorneys’ fees and charges.

C. All notices hereunder shall be in writing and addressed as set forth below, or to such other address as may be designated by the party desiring its address to be changed in a notice to other parties given in like manner:

If to WSDOT:

Washington State Department of Transportation 310 Maple Park SE Olympia, WA 98501 Attn: John Sibold, State Rail and Marine Director Tel: (360)-705-6903 Fax: (360) 705-6821

If to BNSF:

BNSF Railway Company 2500 Lou Menk Drive - AOB-3 Fort Worth, Texas 76131-2830 Attn: Charles E. Keltner, Tel: (817) 352-6464 Fax: (817) 352-7797

51244123.9 12 If to COV:

P.O. Box 1995 Vancouver, WA 98668-1995 Attn: Ryan Lopossa Tel: (360) 487-7706 Fax: (360) 487-7139

Notice will be deemed to have been served and given if (i) delivered in person to the address set forth above for the party to whom the notice is given, (ii) delivered in person at the Closing (if such Party is present at the Closing and the delivery is to be made at Closing), (iii) placed in the mail, return receipt requested, addressed to such party at the address specified above, (iv) deposited into the custody of nationally recognized overnight delivery service for next day delivery, addressed to such Party at the address specified above or (v) telecopied by facsimile transmission to the Party at the telecopy number listed below, provided that such transmission is followed with a copy sent by overnight delivery or regular mail to the address specified above.

D. No failure of a Party to enforce a provision of this Agreement will be construed as a general or a specific waiver of that provision, or of a Party’s right to enforce that provision, or of a Party’s right to enforce any other provisions of this Agreement. No waiver of any breach of any covenant or other provisions herein contained shall be deemed to be a waiver of any preceding or succeeding breach, or of any other covenant or provision herein contained. No extension of time for performance of any obligation or act shall be deemed to be an extension of the time for performance of any other obligation or act.

E. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be deemed to constitute a single agreement. The execution and delivery of one counterpart by a Party shall have the same force and effect as if that Party had signed all other counterparts. The signatures to this Agreement may be executed on separate pages and when attached to this Agreement shall constitute one complete document.

F. This Agreement binds and is for the benefit of the Parties and their permitted successors and assigns. No Party to this Agreement may assign his or its rights and obligations hereunder without prior written consent of the other Parties, which consent shall not be unreasonably withheld, conditioned or delayed.

G. This Agreement is governed by and must be construed in accordance with the laws of the State of Washington.

H. This Agreement may not be modified, amended, or terminated except in writing signed by all Parties. This Agreement constitutes the entire agreement between the Parties with respect to the exchange of the Exchange Properties and supersedes any prior understandings and agreements between them respecting the subject matter of this Agreement. There are no other representations, agreements, arrangements, or understandings, oral or written, between and

51244123.9 13 among the Parties to this Agreement or any of them, relating to the subject matter of this Agreement.

I. If the Closing Date or the day for performance of any act required under this Agreement falls on a Saturday, Sunday or legal holiday, then the Closing Date or the day for such performance, as the case may be, shall be the next following regular business day.

J. Each Party and its counsel have reviewed and revised this Agreement. The Parties agree that the rule of construction that any ambiguities are to be resolved against the drafting Party must not be employed to interpret this Agreement or its amendments or exhibits.

K. If any clause or provision of this Agreement is illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, then and in that event, it is the intention of the Parties that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the Parties that in lieu of each clause or provision of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.

L. Subject to provisions of Section 3E., all warranties, representations, covenants, obligations, and agreements contained in or arising out of this Agreement will survive the Closing and conveyance of the Exchange Properties. The indemnity obligations set forth in this Agreement shall survive the Closing or earlier termination of this Agreement.

M. If prior to Closing any portion of an Exchange Property is the actual or threatened subject of a condemnation or action, the Party to which such Exchange Property is to be conveyed may elect to either terminate this Agreement or proceed to Closing and receive an assignment of all condemnation proceeds for the Exchange Property.

Section 11. Default and Remedies. If any Party fails to perform any of its obligations under this Agreement either prior to or at Closing for any reason other than a right to terminate this Agreement expressly set forth herein, then any other Party, as its sole and exclusive remedy, may terminate this Agreement by giving the other Parties written notice of such termination, whereupon this Agreement shall immediately terminate and no Party shall have any further rights or obligations hereunder except for those rights or obligations that expressly survive termination of this Agreement. After the Closing, if any dispute arises between the Parties with respect to this Agreement or the Closing, no Party is entitled to seek rescission of the conveyances as a remedy, and the only remedies available to an aggrieved Party will be to seek monetary damages.

Section 12. Information. If this Agreement is terminated without Closing having occurred, then promptly after such termination, each Party shall deliver to the other Parties legible copies of all Tests, Property Surveys, studies, reports and other written materials obtained or produced with respect to its inspection and review pursuant to this Agreement of any of the Exchange Properties.

51244123.9 14 Section 13. No Brokers. The Parties agree that there are no brokers involved in connection with this exchange.

Section 14. Tax Effect; Section 1031 Exchange.

A. No Party has made or is making any representations to the other Parties concerning any of the tax effects of the transactions provided for in this Agreement. No Party shall be liable for or in any way responsible to any other Parties because of any tax effect resulting from the transactions provided for in this Agreement.

B. BNSF reserves the right to assign this Agreement to Goldfinch Exchange Company LLC, a Delaware limited liability company. ("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. BNSF 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 the other Parties from and against any and all reasonable and necessary additional costs, expenses (including reasonable attorneys’ fees) and liabilities which the other Parties may incur as a result of BNSF’s use of Goldfinch or the qualification of this transaction as a tax-deferred transaction pursuant to Section 1031. The Parties shall cooperate with BNSF with respect to this tax- deferred exchange, and upon BNSF’s request, shall execute such documents as may be required to effect this tax-deferred exchange.

[Signature page follows]

51244123.9 15

Exhibits to be attached to Agreement:

Exhibit "A": Aerial of Exchange Properties in vicinity of Project Exhibit "B": Description of Exchange Properties Exhibit "C": Form of Surveyor’s Certificate Exhibit "D": Property Title Commitments for Exchange Properties Exhibit “E” Form of Deeds E-1 Form of WSDOT Deed E-2 Form of BNSF Deed E-3 Form of COV Deed

51244123.8 17

EXHIBIT "A"

Aerial of Exchange Properties in Vicinity of VBP

EXHIBIT “A” Exhibit "A" 51244123.8

EXHIBIT "B"

Breakdown of Exchange Properties

Title Commitment Parcel Transferor Transferee Reference No.

*059355-396 COV BNSF 00102684 **W. 32nd Circle Parcel COV BNSF 137900 **Lincoln Street Parcel COV BNSF 134752 **31st Street Parcel COV BNSF 00134828 136000 WSDOT BNSF 118055 059355-276 WSDOT COV 102682 059355-274 WSDOT COV 102681 059355-394 WSDOT COV 102683 370000 (portion) BNSF COV 137704 380000 (portion) BNSF COV 137703 37918670 (portion) BNSF COV 137705

* conveyance subject to surplus approval by COV City Council ** conveyance subject to approval of COV street vacation ordinance

EXHIBIT “B” Exhibit "B" 51244123.8 EXHIBIT "C"

Form of Surveyor's Certificate

I, the undersigned, being a duly licensed and qualified surveyor in and for the State of ______, do hereby certify to and (“Title Company”) that I made a survey of the above described land and improvements on the ___ day of ______, 2013, in accordance with the ALTA/ACSM Land Title Surveys," jointly established and adopted by ALTA, ACSM and NSPS in 1999, as defined therein and includes Items 1, 2, 3, 4, 6, 8, 10, 11, 13, 14, 15 and 16 of Table A thereof, indicates all access easements and off-site easements appurtenant and meets the accuracy requirements of an Urban Survey, as defined therein.

The Property lies within Flood Zone ___, as designated by current Federal Emergency Management Agency Maps which make up a part of the National Flood Insurance Administration Report; Community No. , Panel No. dated . No portion of the property lies within a National Wetland Inventory area as determined by the maps of the United States Fish and Wildlife Service.

The survey correctly shows (i) the zoning classification for the property, (ii) the permitted uses within such classification, and (ii) the sources of such information.

I have shown all recorded easements and rights-of-way as described in copies of recorded instruments furnished to me by Title Company (with reference to recording data) and, unless otherwise shown, the physical evidence and recorded description of such easements conform. All of said buildings, structures and improvements, including location and dimensions, are correctly depicted and are fully completed, except as shown hereon.

I further certify that except as shown hereon there are no (i) easements, (ii) rights-of-way across said property, (iii) party walls, (iv) encroachments on adjoining properties or streets by any of said buildings, structures or improvements, (v) encroachments on said property by buildings, structures or other improvements situated on adjoining property, or (vi) streams, rivers, springs, ponds, lakes, ditches or drains located or bordering on or running through said property. There are no gaps, gores or overlaps between parcels or roads, highways, streets or alleys and all parcels which comprise the whole property are contiguous.

All private and public roads, highways, streets and alleys running adjacent to or upon the property and all public roads to which the property has indirect access over connecting easements affecting are shown; the property has vehicular and pedestrian access to open, publicly dedicated and accepted roads, highways and streets at drives and through curb cuts as shown hereon and commonly known as ______, without intervening strips, gaps or gores, either directly or indirectly over and through access easements shown hereon. The publicly dedicated roads and the access easements shown are contiguous with each other and the property without strips, gaps or gores at points shown hereon; no barriers except for paving and curb cuts are located within the access easements shown hereon; all physical evidence of boundary lines and lines of possession or occupancy have been shown and proper

EXHIBIT “C” Exhibit "C" 51244123.8 notification made where in conflict with the legal description; there are no boundary line discrepancies and no deficiencies in the quantity of the land described in the legal description and the acreage shown hereon is correct; the survey was actually made on the ground as per record description furnished by Title Company and is true and correct.

A physical examination of the property reveals no evidence of cemeteries or burial grounds.

Certified this ______day of ______, 2013.

______

EXHIBIT “C” Exhibit "C" 51244123.8 EXHIBIT "D"

PROPERTY TITLE COMMITMENTS

[see attached]

EXHIBIT “D” Exhibit "D" 51244123.8 EXHIBIT “E”

FORMS OF DEEDS

[see attached]

EXHIBIT “E” Exhibit "E" 51244123.8 EXHIBIT “E-1”

FORM OF WSDOT DEED

AFTER RECORDING RETURN TO:

ATTN: REAL ESTATE SERVICES DEPARTMENT OF TRANSPORTATION P.O. BOX 47338 OLYMPIA, WA 98504-7338

Document Title: Quitclaim Deed Reference Number of Related Document: N/A Grantor(s): State of Washington Grantee(s): Legal Description: Additional Legal Description is on Page of document Assessor’s Tax Parcel Number:

Q U I T C L A I M D E E D

PNWRC Vancouver Yard, Double Tract Bypass

The STATE OF WASHINGTON acting by and through its DEPARTMENT OF TRANSPORTATION, Grantor, for and in consideration of AND NO/100 DOLLARS ($.00), hereby conveys and quitclaims unto , Grantee(s), all right, title, and interest in and to the following described real property situated in Clark County, State of Washington: Insert Legal Description The specific details concerning all of which may be found on sheet 1,2 3 and 4 of that certain plan entitled PNWRC Vancouver Yard Double Track Bypass, now of record and on file in the office of the Secretary of Transportation at Olympia, Washington, bearing date of approval March, 7, 2000, revised ______. Subject to all existing encumbrances, including easements, restrictions and reservations, if any.

EXHIBIT “E-1” Exhibit "E-1" 51244123.8 The Grantee(s) herein, on behalf of itself and its heirs, successors or assigns, waives and/or releases Grantor from any past, present, or future claims for damages directly or indirectly caused by highway drainage or runoff, and further Grantee(s), its heirs, successors or assigns, shall have no right of compensation for damages to the property herein conveyed caused directly or indirectly by highway drainage or runoff.

The grantee(s) as part consideration herein does hereby agree to comply with all civil rights and anti-discrimination requirements of Chapter 49.60 RCW as to the lands herein described.

The lands herein described are not required for State highway purposes and are conveyed pursuant to the provisions of RCW 47.79.

Dated at Olympia, Washington, this ______day of ______, 2013.

S T A T E O F W A S H I N G T O N

______Paula J. Hammond, P.E. Secretary of Transportation

APPROVED AS TO FORM:

By: ______Assistant Attorney General

REVIEWED AS TO FORM:

By: ______

EXHIBIT “E-1” Exhibit "E-1" 51244123.8 STATE OF WASHINGTON )

): ss

County of THURSTON )

On this ______day of ______, 2013, before me personally appeared Paula J. Hammond, P.E., known to me as the Secretary of Transportation, Washington State Department of Transportation, and executed the foregoing instrument, acknowledging said instrument to be the free and voluntary act and deed of the State of Washington, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument.

Given under my hand and official seal the day and year last above written.

______Notary (print name) ______Notary Public in and for the State of Washington, residing at Olympia My Appointment Expires ______

EXHIBIT “E-1” Exhibit "E-1" 51244123.8 EXHIBIT “E-2”

FORM OF BNSF DEED

QUITCLAIM DEED

BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash and other good and valuable consideration to it paid by ______("Grantee"), whose mailing address is , the receipt and sufficiency of which are hereby acknowledged and confessed, has CONVEYED AND QUITCLAIMED, and by these presents does CONVEY and QUITCLAIM unto the Grantee all of Grantor's right, title and interest in and to that certain tract of land ("Property") located in the City of Vancouver, Clark County, State of Washington, as more particularly described on Exhibit "A" attached hereto.

Grantee acknowledges and affirms that Grantor may not hold fee simple title to the Property and that Grantor's interest in all or part of the Property, if any, may rise only to the level of an easement for railroad purposes. Grantee hereby accepts Grantor's interest in the Property, if any, on this basis and expressly releases and further agrees to indemnify, defend and hold Grantor, its successors and assigns harmless from any suit or claim for damages, punitive or otherwise, expenses, attorneys' fees, or civil penalties that may be imposed on Grantor as the result of any person or entity claiming an interest in any portion of the Property or claiming that Grantor did not have the right to transfer all or part of the Property to Grantee.

GRANTEE IS ACCEPTING THE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM GRANTOR AS TO ANY MATTERS CONCERNING THE PROPERTY, including, but not limited to, the physical condition of the Property; zoning status; tax consequences of this quitclaim; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (meaning any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (meaning any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any above ground or underground structures or improvements, including tanks and transformers in,

EXHIBIT “E-2” Exhibit "E-2" 51244123.8 on or under the Property; the condition of title to the Property, and the existence of any leases, easements, permits, orders, licenses, or other agreements, affecting the Property being acquired.

Grantor hereby specifically reserves to itself and its successors and assigns the following interests in the Property:

1. Grantee’s interest in the Property is subject to the rights and interests of Grantor, Grantor’s licensees, permittees and other third parties in and to all existing utilities, fiber optic lines, tracks, wires and easements of any kind whatsoever on the Property whether owned, operated, used or maintained by the Grantor, Grantor's licensees, permittees or other third parties and whether or not of public record. Grantor has a perpetual easement on the Property for the use of such existing utilities, fiber optic lines, tracks, wires and easements by Grantor and Grantor’s licensees, permittees and customers. Grantor has a non-exclusive easement for the construction, maintenance and operation of one or more pipelines or fiber optic lines and any and all communications facilities as may be located in the future on the Property within 60 feet of the center line of any main track on or adjacent to the Property and as may be presently located on the Property.

2. In addition to the more general reservation of rights set forth in paragraph 1 above, Grantor hereby expressly reserves an easement over and across the entirety of the Property as legally described in Exhibit A for access to Grantor’s adjacent track for the purposes of track maintenance and service and any and all maintenance and mechanical needs (the “Easement Area”). A site plan detailing the Easement Area is attached hereto as Exhibit B.

3. Grantee’s interest in the Property is subject to a reservation to Grantor of all coal, oil, gas, casing-head gas and all ores and minerals of every kind and nature including sand and gravel underlying the surface of the Property, together with the full right, privilege and license at any and all times to explore, or drill for and to protect, conserve, mine, take, remove and market any and all such products in any manner which will not damage structures on the surface of the Property, together with the right of access at all times to exercise said rights.

4. Any improvements constructed or altered on the Property after the date hereof shall be constructed or altered in such a manner to provide adequate drainage of water away from any of Grantor’s railroad tracks on nearby property.

5. GRANTOR RESERVES UNTO ITSELF, ITS SUCCESSORS AND ASSIGNS, IN PERPETUITY, ANY AND ALL NON-RIPARIAN WATER AND WATER RIGHTS ASSOCIATED WITH THE PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY AND ALL DITCHES AND DITCH RIGHTS, WATER WELLS, SPRINGS, DIVERSION WORKS, WATER LINES, PIPES, PUMPS, MOTORS, GENERATORS, ELECTRICAL GEAR AND WIRES, AND ANY RELATED EQUIPMENT AND IMPROVEMENTS WHATSOEVER, HISTORICALLY USED UPON OR ASSOCIATED WITH THE PROPERTY,

EXHIBIT “E-2” Exhibit "E-2" 51244123.8 INCLUDING ALL MUTUAL WATER COMPANY SHARES, DITCH SHARES, WATER SERVICE AGREEMENTS AND CONTRACTS, AND WATER CLAIMS, AND INCLUDING BUT NOT LIMITED TO, ALL UNAPPROPRIATED, UNDEVELOPED OR UNUSED WATER AND WATER RIGHTS ASSOCIATED WITH OR UNDERLYING THE PROPERTY, AND THE EXCLUSIVE RIGHT TO DEVELOP AND TAKE WATER FROM THE PROPERTY BY ANY MEANS, AND INCLUDING ALL APPROPRIATIONS, PRIORITIES, PERMITS AND CERTIFICATES WHICH ARE APPURTENANT TO, ASSOCIATED WITH, USED UPON, FLOWING OVER, UNDER, OR LYING ON, IN, OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT TO CONSTRUCT, INSTALL, OPERATE, REPLACE, REWORK, RECONSTRUCT, REHABILITATE AND MAINTAIN ANY AND ALL WATER DIVERSION, PRODUCTION, AND TRANSPORTATION STRUCTURES, EQUIPMENT, IMPROVEMENTS AND PIPING, INCLUDING BUT NOT LIMITED TO, HEADGATES, DIVERSION STRUCTURES, WATER WELLS, WATER WELL HOUSES, WATER WELL CASING, WATER WELL SCREENS, SPRING COLLECTION GALLERIES, SUMPS, WATER PIPES, AND RELATED ELECTRICAL GEAR AND WIRES, AND TO CONSTRUCT, INSTALL, OPERATE AND MAINTAIN WATER PUMPS AND HYDROELECTRIC GENERATION EQUIPMENT AND ALL EQUIPMENT NECESSARY, CONVENIENT OR RELATED TO THE PRODUCTION, TRANSPORTATION OR DELIVERY OF WATER FROM, ON, UNDER OR ACROSS THE PROPERTY, OR ANY PORTION THEREOF.

TO HAVE AND TO HOLD all of Grantor's right, title and interest, if any, in the Property unto Grantee, its successors and assigns, so that Grantor shall not have claim or demand to any right or title to the Property or any part thereof.

WITNESS THE EXECUTION HEREOF as of the day of , 2013.

GRANTOR:

BNSF RAILWAY COMPANY, a Delaware corporation

By: Name: Title:

[Acknowledgment and exhibit to be attached prior to execution]

EXHIBIT “E-2” Exhibit "E-2" 51244123.8 EXHIBIT “E-3”

FORM OF COV DEED

After recording, return to:

City of Vancouver City Clerk’s Office P. O. Box 1995 Vancouver, WA 98668-1995

QUIT CLAIM DEED

Title of Document: Quit Claim Deed Grantor(s): City of Vancouver, a Municipal Corporation Grantee(s): Assessor’s Tax Parcel ID#(s): ______

THE GRANTOR, City of Vancouver, a Municipal Corporation, for and in consideration of valuable considerations as set out in part below, conveys and Quit Claims to ______, heirs and assigns, the following described real estate situated in the City of Vancouver, County of Clark, State of Washington, to-wit:

See Exhibit “A” attached hereto ______, Clark County Washington

The City retains an easement and the right to exercise and grant easements for the repair, service, maintenance and/or installation of sewer, water, telephone, power utilities and other public utilities and for relocation and/or protection of existing utilities under and over the vacated area described in Exhibit “A” so long as such relocation and/or protection of existing utilities is done in a manner consistent with and does not interfere with the easement rights granted herein.

CONSIDERATION: Consideration for the transfer of the above-described real estate is the total payment of ZERO DOLLARS, AND 00/100 ($0) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged.

DATED this _____ day of ______, 2013.

EXHIBIT “E-3” Exhibit "E-3" 51244123.8 GRANTOR:

CITY OF VANCOUVER A Washington municipal corporation

By: ______Eric Holmes, City Manager APPROVED AS TO FORM:

By: ______Ted H. Gathe, City Attorney

STATE OF WASHINGTON ) ) ss.: COUNTY OF CLARK )

I hereby certify that I know or have satisfactory evidence that Eric Holmes is the person who appeared before me, and that said person acknowledged that he is the authorized person to execute this instrument as the City Manager of the City of Vancouver, of Clark County, Washington, and who signed this Quit Claim Deed and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument.

Dated this _____ day of ______, 2013.

______Notary Public Residing at______My commission expires: ______

[Exhibit to be attached prior to execution]

EXHIBIT “E-3” Exhibit "E-3" 51244123.8

02-25-13 03-04-13

ORDINANCE NO. ______

AN ORDINANCE vacating a portion of the right-of-way of West 32nd Circle; providing

for an effective date.

BE IT ORDAINED BY THE CITY OF VANCOUVER:

Section 1. City Council initiated a vacation proceeding for a portion of West 32nd Circle located within the Columbia Crest Subdivision and adjacent to the Burlington Northern Santa Fe

(BNSF) right-of-way. As recommended by Staff Report No. ______, Council adopted

Resolution M-______and set the date of public hearing for February 25, 2013 at 7:00 p.m.

The City Clerk caused the notices of the public hearing to be posted and published as required by law.

At the time and place set for hearing, the hearing was held. City Council considered the reports and information provided at the public hearing and determined to vacate the property as described in Section 2 of this ordinance subject to the following:

A. The City has contacted utility owners and found that there are public sanitary sewer conveyance systems and other public utility facilities within the area of right-of-way to be vacated. The City will retain all utility easements under and over the vacated area for the construction, repair, relocation and maintenance of public utilities and services.

ORDINANCE - 1

B. The area of right-of-way to be vacated consists of approximately 5,540 square

feet. The City will retain utility easements for the maintenance of all public utilities located

within the vacated area.

C. RCW 35.79.030 and VMC 11.05.120 provide for, but do not require, the City to

collect compensation for the value of public right-of-way that is vacated. The vacation of a

portion of West 32nd Circle is pursuant to the Tri-Party Exchange Agreement between the City of

Vancouver, BNSF and WSDOT, approved by the City Council on January 14, 2013. Section 1.A

of the Agreement stipulates that the exchange of properties as described in the Agreement is,

“…adequate and sufficient consideration, and no other monies or additional consideration is owed to or by any of the Parties…” Therefore, staff recommends that no compensation be required for the vacated right-of-way.

Section 2. The following street area to be vacated is described herein in the legal description and map exhibit attached hereto and incorporated herein as Exhibits “A” and “B”.

Section 3. Effective date. This ordinance shall go into effect five days after approval.

Read first time:

Ayes: Councilmembers

Nays: Councilmembers

Absent: Councilmembers

Read second time:

PASSED by the following vote:

Ayes: Councilmembers

Nays: Councilmembers

Absent: Councilmembers

ORDINANCE - 2

SIGNED this ______day of ______, 2013.

______Timothy D. Leavitt, Mayor

Attest:

______R. Lloyd Tyler, City Clerk By: Carrie Lewellen, Deputy City Clerk

Approved as to form:

______Ted H. Gathe, City Attorney

ORDINANCE - 3

SUMMARY

ORDINANCE M-______

AN ORDINANCE vacating a portion of the right-of-way of West 32nd Circle; providing for an effective date.

The full text of this ordinance will be mailed upon request. Contact Raelyn McJilton, Records Officer at 487-8711, or via www.cityofvancouver.us (Go to City Government and Public Records).

ORDINANCE - 4