PERMANENT EASEMENT AGREEMENT

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1 PERMANENT EASEMENT AGREEMENT THIS PERMANENT EASEMENT AGREEMENT ( Agreement ) is made and entered into this day of, 2016 ( Effective Date ), by and between Staker & Parson Companies, a Utah corporation authorized to do business in Idaho ( Grantor ) and the City of Eagle, an Idaho municipal corporation, by and through its Department of Parks and Recreation ( Grantee ), whose current address is P.O. Box 1520, Eagle, Idaho BACKGROUND. 1.1 Grantor s Real Property. Grantor owns that certain real property located in the northeast quarter of Section 22, Township 4 North, Range 1 East, Boise Meridian, Ada County, Idaho, as depicted on Exhibit A and more particularly described in Exhibit B, which exhibits are attached hereto and incorporated herein by reference ( Grantor s Property ). Grantor s Property includes a service road that Grantor periodically uses for its business purposes, including the hauling of gravel to and from its property. 1.2 Easement Real Property. Grantor and Grantee desire to establish a ten foot (10) wide paved public pathway across Grantor s Property along a twenty-five (25) foot wide pathway easement as depicted on Exhibit A and more particularly described in Exhibit B, which exhibits are attached hereto and incorporated herein by reference ( Easement Property ). Grantee has requested Grantor to convey to Grantee an exclusive easement on the Easement Property for the purposes described in Section 2.2 below. 1.3 Purpose of Agreement. The purposes of this Agreement are (i) to describe the easement granted, and (ii) to establish the relative rights and obligations of the parties regarding the easement granted under this Agreement. 2. GRANT OF EASEMENT. 2.1 Grant. For value received, Grantor hereby GRANTS AND CONVEYS to the Grantee, and Grantee hereby accepts, a perpetual easement on, over and across the Easement Property for the purposes described in Section 2.2 herein. 2.2 Purposes of Easement. Except as otherwise provided in this Agreement or as otherwise permitted by Grantor, the easement conveyed hereby shall be used solely for the following purposes: (a) Construction, maintenance and operation of a paved pathway for nonmotorized uses that shall be open to use by the general public. No motorized vehicles of any kind whatsoever shall be permitted on the Easement Property, except those used for the construction and maintenance of the pathway by Grantee. (b) The public shall have the right of access to the easement for non-motorized vehicle and pedestrian use. PERMANENT EASEMENT AGREEMENT - 1

2 2.3 Use by Grantor. This Agreement does not extend to Grantee the right to use the surface of the Easement Property to the exclusion of Grantor, and Grantee s rights under this Agreement are subject to the rights of the Grantor and Grantor s guests, invitees, agents and contractors to use and enjoy the surface of the Easement Property, provided the structural integrity or uninhibited use by the public of the public pathway is not compromised by such activities. 2.4 Term of Easement. The term of this Agreement shall be perpetual. 2.5 Construction and Installation. The construction of the public pathway on, over and across the Easement Property, as well as the gate described in Section 2.7 herein, shall be completed by Grantee. All costs and expenses related to the design, construction, maintenance and repair of the public pathway, including the gate described in Section 2.7 herein, hereafter, shall be the sole responsibility and obligation of, and shall be paid by, Grantee. 2.6 Maintenance. Grantee shall maintain the physical integrity of the public pathway in good condition and repair and as required to satisfy all requirements of applicable laws, the policies of Grantee and sound engineering practices. 2.7 Easement Obstructions. Grantee shall construct a gate across the Easement Property in the general location as depicted on Exhibit C attached hereto and incorporated herein by this reference, which gate may be closed periodically to allow Grantor use of its service road for gravel hauling purposes. Grantor shall provide Grantee two (2) days notice prior to any use of the service road, which notice shall include the expected duration of Grantor s use. The gate shall include appropriate signage directing pathway users to a bypass route. Except for the gate as described herein, no fence or other barrier shall be erected or permitted within or across the Easement Property which would prevent or obstruct the passage of pedestrian or non-motorized vehicular travel; provided, however, that the foregoing shall not prohibit the temporary erection of barricades which are reasonably necessary for security and/or safety purposes in connection with the construction, reconstruction, repair and maintenance of improvements, including the easement, on the Grantor s Property, it being agreed by the parties, however, that all such work shall be conducted in the most expeditious manner reasonably possible to minimize the interference with the use of the easement by Grantor, and such work shall be diligently prosecuted to completion. 2.8 Relocation Reservation. The easement conveyed herein is granted prior to the development of Grantor s Property and/or the development of the Ada County Highway District s proposed Three Cities River Crossing (the Crossing ) of the public pathway over the Boise River at an alternate location on Grantor s Property. The parties hereby reserve the right to relocate the public pathway upon Grantor s Property either before or after the development of Grantor s property or the development of the Crossing over the Boise River, upon sixty (60) days prior written notice. The parties then agree to execute, deliver and record an amendment to this Agreement to evidence the relocation. 3. COVENANTS AND AGREEMENTS OF GRANTOR. 3.1 Binding Effect. The Grantor, on behalf of the Grantor and the Grantor s heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with the Grantee PERMANENT EASEMENT AGREEMENT - 2

3 and the Grantee s heirs, successors, assigns, purchasers, or transferee of any kind, that the provisions of this Easement Agreement (i) shall run with and bind the Easement Property, and (ii) shall inure to the benefit of, and be enforceable (at law or in equity) by any owner of all or part of, the Easement Property. 3.2 Temporary License. In order to carry out the provisions of this Easement Agreement, Grantor further conveys to Grantee a temporary license to occupy a portion of the Grantor s Property located adjacent to the Easement Property to the extent such occupation of Grantor s Property is reasonably necessary for the purpose of constructing or improving the public pathway or other improvements on the Easement Property. This license shall expire automatically and be of no further force and effect six (6) months from the date of the Effective Date of this Easement Agreement, unless extended at the discretion of the Grantor. 4. COVENANTS AND AGREEMENTS OF THE GRANTEE. 4.1 Construction of Pathway. The Grantee, on behalf of the Grantee and Grantee s heirs, successors, assigns, purchasers, or transferee of any kind, covenants and agrees with the Grantor and Grantor s heirs, successors, assigns, purchasers, or transferee of any kind that it may construct a paved public pathway across the Easement Property and operate and maintain said pathway in a manner consistent with the purposes set forth in Section 2.2 of this Easement Agreement and pursuant to the rules, regulations and policies of the City of Eagle Department of Parks and Recreation. 4.2 Signs. Grantee shall be permitted to post such signage on and along said public pathway as it in its sole discretion deems appropriate and as are consistent with the rules, regulations and policies of the City of Eagle Department of Parks and Recreation governing permitted uses and hours of operation, if any, of the pathway. Any such signage shall include notification that private property exists on either side of the public pathway and a warning that the public pathway crosses a service road utilized by heavy machinery and/or large equipment. 5. INDEMNIFICATION. 5.1 By Grantee. Grantee hereby agrees to protect, defend, indemnify and hold harmless Grantor, Grantor s officers, employees, representatives and/or agents, and their successors and assigns, for, from, and against any and all liabilities, costs and/or expenses including, without limitation, reasonable attorneys fees, in connection with damages, losses, injuries, and/or death to persons which may be asserted against Grantor, Grantor s officers, employees, representatives and/or agents, and their successors and assigns, arising out of or in relation to the use of the easement by Grantee or the public, except to the extent (if any) such liabilities, costs or expenses are caused by, arise out of, result from or relate to Grantor s own negligence or intentional misconduct. 5.2 By Grantor. Grantor hereby agrees to protect, defend, indemnify and hold harmless Grantee, Grantee s officers, employees, representatives and/or agents, and their successors and assigns, for, from, and against any and all liabilities, costs and/or expenses including, without limitation, reasonable attorneys fees, in connection with damages, losses, PERMANENT EASEMENT AGREEMENT - 3

4 injuries, and/or death to persons which may be asserted against Grantee, Grantee s officers, employees, representatives, and/or agents, and their successors and assigns, arising out of or in relation to the use of the easement by Grantor, except to the extent (if any) such liabilities, costs or expenses are caused by, arise out of, result from or relate to Grantee s own negligence or intentional misconduct. 6. GENERAL PROVISIONS. 6.1 Attorney Fees and Costs. If a suit, action, or other proceeding arising out of or related to this Agreement instituted by any party to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, expert witness fees, and costs incurred in prosecuting or defending any suit, action, or other proceeding, including any appeal thereof. This section shall survive and remain enforceable notwithstanding any rescission of this Agreement or a determination by a court of competent jurisdiction that all or any portion of the remainder of this Agreement is void, illegal, or against public policy. 6.2 Governing Law, Jurisdiction, and Venue. Notwithstanding any claim or cause of action, the liability of Grantee is at all times herein strictly limited and controlled by the provisions of the Idaho Tort Claims Act, as now or hereinafter amended. Nothing herein shall be deemed a waiver of any privilege, immunity, protection or defense afforded the City of Eagle as a political subdivision of the State of Idaho, under the Idaho Constitution, the Idaho Tort Claims Act, or any other applicable law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho shall have exclusive jurisdiction and agree that Ada County is the proper venue. 6.3 Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Agreement. 6.4 Successors and Assigns. This Agreement, the permanent easement herein granted, and the covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. 6.5 Recordation. This Agreement shall be recorded in the Official Real Property Records of Ada County, Idaho. 6.6 Entire Agreement. All Exhibits to this Agreement constitute a part of this Agreement. This Agreement, together with the accompanying Exhibits, constitutes the entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations and negotiations. IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the dates set forth below. [signatures on next page] PERMANENT EASEMENT AGREEMENT - 4

5 GRANTOR: STAKER & PARSONS COMPANIES By: Name: Its: GRANTEE: CITY OF EAGLE, IDAHO By: Stan Ridgeway, Mayor ATTEST: Sharon K. Bergmann, City Clerk/Treasurer PERMANENT EASEMENT AGREEMENT - 5

6 STATE OF IDAHO ) ) ss. County of Ada ) On this day of, 2015, before me,, a Notary Public in and for the said state, personally appeared James D. Reynolds, known or identified to me to be the Mayor of the City of Eagle and the person who executed the foregoing instrument on behalf of said City and acknowledged to me that the City executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public for Idaho Residing at: Commission Expires: STATE OF UTAH ) ) ss. County of ) On this day of, 2015, before me,, a Notary Public in and for said state, personally appeared, known or identified to me to be the of Staker & Parsons Companies, a Utah corporation, who subscribed said company name to the foregoing instrument, and acknowledged to me that he executed the within instrument on behalf of said Staker & Parsons Companies. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public for Utah Residing at: Commission Expires: PERMANENT EASEMENT AGREEMENT - 6

9 Exhibit B

TEMPORARY ACCESS AND EASEMENT AGREEMENT

TEMPORARY ACCESS AND EASEMENT AGREEMENT This Temporary Access and Easement Agreement (this Agreement ) is made effective this day of, 2017, by and between the Joint School District No. 2, doing business