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RECORDING REQUESTED BY AND AFTER RECORDING RETURN TO: Union Pacific Railroad Company Attn: Madeline Roebke, Attorney 1400 Douglas Street, Mail Stop 1580 Omaha, Nebraska 68179 12.'l· 027' · ltR t?:ac; HENRIANNE K. wesfifeRG LATAH COUNTY RDER FEE $ -69- BY; 4 (Above Space Reserved For County Recorder) TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this "Agreement11) is entered into as of the 3 day of 2 • 2016 by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Grantor"), and CITY OF MOSCOW, IDAHO, an Idaho political subdivision ("Grantee"). 1. Grant of Temporary Easement I Term. Grantor hereby grants unto Grantee, its successors and assigns a temporary easement ("Temporary Easement") upon, over, and across that certain real property in the City of Moscow, County of Latah, State of Idaho, legally described on Exhibit A attached hereto and made a part hereof (hereinafter the "Property" or "Temporary Easement Area") for the sole purpose of constructing sanitary sewer line improvements on adjacent property (the "Project"). Grantor retains all of its rights to the use and occupation of the Temporary Easement Area not inconsistent with the use by Grantee, its successors or assigns. This Temporary Easement shall commence on April 1, 2016 and shall automatically terminate eight months thereafter. Upon termination, Grantee agrees to execute a Quitclaim of its interest in this Temporary Easement to Grantor in recordable form. 2. Maintenance of Temporary Easement Area. Grantee, at its sole cost and expense and without any contribution whatsoever from Grantor, shall at all times during the term of this Agreement repair and maintain the Temporary Easement Area and any of Grantee's facilities thereon in good and clean condition and repair. Grantee shall restore any of Grantor's Prope11y which is damaged by Grantee's use to the same condition as existed immediately before such damage occurred. Grantor is not responsible for the removal/disposal of existing debris/rubble currently located within the temporary easement area. 4834-43 72-2794.4 ---PAGE BREAK--- 3. Release and Indemnification by Grantee. In exercising its rights and obligations under this Agreement, Grantee shall release and, to the extent allowable at law, indemnify, hold harmless and defend Grantor, its officers, directors and employees (collectively, the "Grantor Indemnified Parties") from and against any and all loss, cost, damage, liability and expense, (including reasonable attorneys' fees and expenses) for bodily injury to or death of persons, or damage to property of Grantor, to the extent caused by the negligence or intentional misconduct of Grantee, its officers, directors, employees, agents, guests, invitees, contractors, or subcontractors in connection with Grantee's use of the temporary easement rights granted pursuant to this Agreement. In addition, Grantee covenants and agrees to indemnify, hold harmless and defend the Grantor Indemnified Parties and the Grantor's Property from and against any and all loss, cost, damage, liability and expense (including reasonable attorneys' fees and expenses), on account of claims of lien of laborers, materialmen, or others, arising from or as a result of work performed or supplies furnished in connection with Grantee's use or occupancy of the temporary easement area. 4. Contractor's Right Of Entry Agreement - Insurance If Grantee will be hiring a contractor or contractors to perform any work involving the Project, Grantee shall require its contractor(s) and their subcontractors to execute the Railroad's Contractor's Right of Entry Agreement (which provides for flagging), and obtain the insurance coverage described therein; and (ii) provide the insurance policies, certificates, binders and/or endorsements to Grantor before allowing any of its contractor(s) and their respective subcontractors to commence any work in the Temporary Easement Area or on any other Grantor property. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 681 79 ATTN: - UP File Folder No. 495-87 If Grantee's own employees will be performing any of the Project work, Grantee shall provide the Grantor defense and indemnification at least equal to the defense and indemnification to which the Grantor would be entitled as an additional insured had Grantee purchased General Liability Insurance and Automobile Liability Insurance each in an amount of not less than TWO MILLION DOLLARS ($2,000,000) combined single limit per occurrence or claim and an aggregate limit of at least SIX MILLION DOLLARS ($6,000,000) for Bodily Injury and Property Damage. Nothing herein shall be deemed to insure Grantor against its sole negligence or willful misconduct. Grantee may self-insure, as customary under its risk management programs; provided its self-insurance retention is in keeping with its net worth and cash flows and is consistent with that of other grantees of its size and operation. 2 4834-4372-2794.4 ---PAGE BREAK--- 5. Mechanics' Liens. Grantee shall not permit any mechanics' or materialmen's liens of any kind or nature to be enforced against the Property for any work done or materials furnished thereon at Grantee's request. 6. No Warranty I Matters of Record. This Temporary Easement is limited to such rights as the Grantor may have in the Temporary Easement Area and is granted without warranty, express or implied. This Temporary Easement is also made SUBJECT TO all outstanding leases, licenses and other outstanding rights of record, including, but not limited to, those for pipelines, wirelines and roadways and the right of renewals and extensions of the same. 7. Compliance with Law. Grantee shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality in the construction, operation and maintenance of its facilities on Grantor's Property. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise from the Property as a result of Grantee's use, presence, operations or exercise of the rights granted hereunder, Grantee shall, at its expense, be obligated to clean all property affected thereby, to the satisfaction of Grantor and any governmental body having jurisdiction in the matter. 8. Notices. All notices, demands and other communications hereunder shall be in writing and delivered personally or by a nationally recognized overnight courier service or mailed (by registered or certified mail, return receipt requested, postage prepaid) or telecopied with a confirming notice, addressed to the respective parties, as follows: If to Grantee: City of Moscow, Idaho [Attn: M'IV\1 i\\:'>xrl P.O. Box 9203 Moscow, Idaho 83843 If to Grantor: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179 or such additional parties or other address as such party may hereafter designate. Any notice permitted or required to be given shall be deemed to have been given, and any item permitted or required to be delivered or furnished shall be deemed to have been furnished, when personally delivered or furnished, or one business day after delivery to a nationally recognized and reputable courier guaranteeing next-day delivery with delivery charges prepaid, or after delivery or first attempted delivery by the United States Post Office, after being properly addressed and with postage prepaid for delivery by United States registered or certified mail. 9. Binding Effect. All covenants contained herein shall be deemed to be covenants that run with the land, and shall be binding upon and inure to the benefit of the parties hereto and 3 4834-43 72-2794.4 ---PAGE BREAK--- their respective successors and assigns. All references to Grantor, Grantee or parties shall be deemed to include the respective patty's employees, invitees, agents, successors, and assigns. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement. 11. Captions. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define or limit the scope of any section. 12. Modifications. Any modifications or amendments to this Agreement shall be made in writŢng and be executed by all parties. 13. Waiver. The failure by any party to enforce any provision of this Agreement in a timely manner shall not be deemed a waiver of the right to enforce that provision, and any express waiver by any party of any breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach of that provision. 4 4834-43 72-2 794.4 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. GRANTOR: Attest: UNION PACIFIC RAILROAD COMPANY, a Delaware corporation The undersigned Grantee hereby accepts this Temporary Easement, and agrees for itself, its successors and assigns to be bound by the covenants and conditions set forth herein and to perform all obligations of Grantee set forth herein. GRANTEE: Attest: OS. C OF MOSCOW, IDAHO, ( :---a'Idaho political subdivision B ()abtO \ t: f 7 A I • . u 6 ] 'f>y: : CJ A \ioscbl..U.,. \d+.bo , and who is personally (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to in the within instrument, and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (Seal) 4834-4372-2794.4 ---PAGE BREAK--- EXHIBIT A Legal Description A 10 foot wide Temporary Construction Easement lying adjacent to a westerly of the above described Permanent Easement Tract, described as follows: A Strip of land across a portion of a certain parcel as described in Quitclaim Deed dated August 30, 1976, Recording No. 282431 records of Latah County, Idaho, being situated in the NE 1/4 of Section 18, Township 39 North, Range 5 West, Boise Meridian, City of Moscow, Latah County, Idaho, described as follows: Commencing at the northeast corner of said Section 18 (from which the No1ih 1/4 of said Section bears South 87°45'09" West, a distance of 2,673.56 feet), thence South 33°45'11" West, a distance of 1017. 07 feet, more or less, to the southeast corner of a parcel of land described in said Quitclaim Deed; thence along the south line of said Quitclaim Deed South 53°27'34" East, a distance of 10.86 feet to the POINT OF BEGINNING; thence continuing along said south line South 53°27'34" West, a distance of 10.00 feet; thence leaving said south line North 36°38' 11" West, a distance of 534.10 feet; thence South 53°23'20" West, a distance of 74.14 feet, more or less, to a point on the west line of said Quitclaim Deed; thence along said west line North 36°38'11" West, a distance of 10.00 feet; thence leaving said west line Nmih 53°23'20" East, a distance of 84.14 feet; thence South 36°38' 11" East, a distance of 544.12 feet to the POINT OF BEGINNING. The above Temporary Construction Easement contains 6,183 square feet, more or less. SUBJECT TO: Existing rights-of-way and easements of record and/or appearing on said above described tract. 4834-4372-2794.4 ---PAGE BREAK--- CERTIFICATION OF NON-FOREIGN STATUS Under Section 1445( e) of the Internal Revenue Code, a corporation, partnership, trust, or estate must withhold tax with respect to certain transfers of property if a holder of an interest in the entity is a foreign person. To inform the transferee, the City of Moscow, Idaho, that no withholding is required with respect to the transfer of a U.S. real property interest by UNION PACIFIC RAILROAD COMPANY, the undersigned hereby certifies the following on behalf of UNION PACIFIC RAILROAD COMP ANY: 1. UNION PACIFIC RAILROAD COMPANY is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); 2. UNION PACIFIC RAILROAD COMPANY is not a disregarded entity as defined in Section 1.445 .2(b )(2)(iii) of the Internal Revenue Code; 3. UNION PACIFIC RAILROAD COMPANY'S U.S. employer identification number is 94-6001323; and 4. UNION PACIFIC RAILROAD COMP ANY'S office address is 1400 Douglas Street, Omaha, Nebraska 68179, and place of incorporation is Delaware. UNION PACIFIC RAILROAD COMP ANY agrees to inform the transferee if it becomes a foreign person at any time during the three year period immediately following the date of this notice. UNION PACIFIC RAILROAD COMP ANY understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of pe1jury I declare that I have examined this Certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of UNION PACIFIC RAILROAD COMPANY. 4826-5394-8458.4 UNION PACIFIC RAILROAD COMPANY, a Delaware corporation By: = · al Estate