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AGREEMENT THIS AGREEMENT ("Agreement") is entered into this -?Zday of ' 1994, by and between Bennett Holdings, L.C., an Idaho limited liability company ("Bennett"), and the City of Moscow, a municipal corporation of the State of Idaho ("City"). RECITALS: A. Bennett owns the following described real property within the City of Moscow: A tract of land located Section 17, Township 3 9 Meridian, Latah County, described as follows: in the southeast quarter of North, Range 5 West, Boise Idaho, more particularly Beginning at the intersection of the northerly right-of way line of State Highway 8 and the easterly right-of-way line of Blaine Street; thence S 67. 48' E 23.00 feet, along said highway right-of-way line; thence N. ss· 32' 0711 W 23.54 feet, to a point on said Blaine Street easterly right-of-way line; thence S 22· 12' W 5.00 feet, along said Blaine Street right-of-way line to the point of beginning; (the "Easement Area"). B. city desires to construct, install and maintain utility improvements more particularly described in this Agreement within the Easement Area. c. Bennett will agree to grant an easement to the city on a portion of the Easement Area with regard to these utility improvements upon the City's acceptance of those terms and conditions set forth in the Grant of Easement attached hereto as Exhibit and incorporated by this reference and those additional terms and conditions set forth in this Agreement. AGREEMENT 1 94-36 ---PAGE BREAK--- NOW THEREFORE, Bennett and city agree as follows: 1. Grant of Easement. Bennett has concurrently delivered to City the original, duly executed Grant of Easement. City accepts the Grant of Easement and agrees to abide by all terms and conditions applicable to City as set forth in the Grant of Easement. 2. City's Obligations. city agrees, at City' s sole cost and expense, to perform the following in a workmanlike manner: A. Remove the existing "Moscow Mall" sign from the vicinity of the Easement Area and sod the vacated area. B. Replace andjor repair Bennett' s existing sprinkler system in the vicinity of the Easement Area as affected, if at all, by City' s utility improvements within the Easement Area. c. Install a sidewalk in accordance with City standards within the right of way of State Highway 8 from the southwest corner of the Easement Area thence S 67" 48' 00" E along a line parallel to the southerly boundary of Bennett' s real property a distance of thirty {30) feet. City' s obligations under this Agreement shall be undertaken concurrently with its construction of improvements under the Grant of Easement and shall be diligently processed to completion. 3. Failure to Comply. If either party fails to comply with any term of this Agreement, the other party shall be entitled to seek specific performance of this Agreement or take any other action available at law or in equity. AGREEMENT 2 ---PAGE BREAK--- 4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 5 . Attorney Fees. In the event of any controversy, claim or action being filed or instituted between the parties to this Agreement, the prevailing or non-defaulting party, as the case may be shall entitled to receive from the other party all costs and expenses, including reasonable attorney fees, incurred in such action. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. ATTEST: Elaine RusSel; cTty-clerk AGREEMENT BENNETT HOLDINGS, L. an Idaho limited liability company CITY OF MOSCOW By: y ( 2 Paul c. Agid×Mayor ---PAGE BREAK--- STATE OF IDAHO ss County of Latah On this day of , 1994, before me, the undersigned, a Notary PublicF and for said State, personally appeared Shelley L. Bennett, known to me to be a Member of Bennett Holdings, L.C., an Idaho limited liability company who executed the instrument on behalf of said company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the date last above written. Residing at: jl).ll.e:Jco My Commissio-nGEH xp I ir = J.Kj- L--MPO NO Pg STATE OF IDAHO ss County of Latah On this N day of , 1994, before me, the ' undersigned, a Notary Publ in and for said State, personally appeared Paul c. Agidius known to me to be the Mayor of the City of Moscow and Elaine Russell, known to me to be the City Clerk of the City of Moscow who executed the instrument on behalf of the City of Moscow and acknowledged to me that the city of Moscow executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the date last above written. AGREEMENT 4 ---PAGE BREAK--- 405348 GRANT OF EASEMENT For valuable consideration, Bennett Holdings, L.C., an Idaho Limited Liability Company (Grantor) , does hereby grant to the City P. 0. Box 9203, Moscow, Idaho 83843 of Moscow, a municipal corporation of the state of Idaho (Grantee) , its successors and assigns, for the purposes hereinafter set forth, a non-exclusive easement and right of way under, upon, across and over the lands of Grantor, described as follows: An easement located in the southeast quarter of Section 17, Township 39 North, Range 5 West, Boise Meridian, Latah County, Idaho, more particularly described as follows: Beginning at the intersection of the northerly right-of way line of state Highway 8 and the easterly right-of-way line of Blaine street; thence s 67" 48' E 23.00 feet, along said highway right-of-way line; thence N. ss· 32' 07" W 2 3. 54 feet, to a point on said Blaine Street easterly right-of-way line; thence S 22· 12' W 5.00 feet, along said Blaine Street right-of-way line to the point of beginning (hereinafter called "Easement Area" ) ; which Easement Area is depicted on the map attached hereto and made a part hereof as Exhibit The easement and right of way herein described shall be utilized by Grantee for the purposes of constructing, installing, laying, using, operating, maintaining, repairing, replacing inspecting and removing, at any times, underground electrical utility components servicing a traffic signal installation (including luminaries ) , as more specifically set forth on the approved plans and specifications on file with the City of Moscow Engineering Department. GRANT OF EASEMENT 1 ---PAGE BREAK--- 405348 Except as designated by the approved plans and specifications, or as expressly provided herein, or as approved in writing by the Grantor, no improvement or structure shall be installed by Grantee above the surface of the ground. Grantor retains the exclusive right to use the surface areas, and, to the extent such use is not inconsistent with Grantee's use of subsurface areas, the non-exclusive right to use the subsurface areas of the Easement Area in such manner as Grantor shall deem proper. In the event any of the facilities installed hereunder interfere with the use of the Grantor of the Easement Area, Grantee shall, within ninety (90) days after receiving written notice from Grantor to do so, at Grantor's own cost and expense, relocate the interfering improvements to a location on such real property owned by Grantor which is suitable for the uses of Grantee as granted by this easement and which is satisfactory to Grantor, provided that Grantor shall, as a condition of such relocation, grant to Grantee such rights in said new site as to allow Grantee to conduct its uses pursuant to this easement. In its use of this easement and right of way and in the installation of the improvements andjor equipment and in the performance of any of the work which Grantee is authorized to perform in the Easement Area, Grantee shall avoid any damage or interference with other improvements or operations in the vicinity of the Easement Area. Grantee shall have the right to reasonable ingress and egress to the Easement Area and shall protect, replace andjor restore GRANT OF EASEMENT 2 ---PAGE BREAK--- 405348 Grantor's improvements which are disturbed, damaged or destroyed by Grantee's uses pursuant to this easement, including the right to ingress and egress. Grantor shall place no building or structure of any type within the easement area. Grantee shall be liable for and indemnify Grantor against any and all loss and liability which may result to Grantor from any negligent act or omission of Grantee in the exercise of its rights hereunder and hold Grantor harmless against any such claims, including costs and attorneys' fees. In its use of the easement and right of way herein granted, Grantee shall not permit any claim, lien or other encumbrance arising from such use to accrue against or attach to said easement or right of way or the interests of Grantor in the lands over or under which this easement is granted. Grantee shall not have any right to expand the scope of this easement without the express written consent of Grantor. It is expressly intended that the burdens and restrictions shall run with the land and shall forever bind the Grantor, its heirs, successors and assigns. N WITNESS WHEREOF, this instrument is executed thday of 1 1994. G7 BENNETT HOLDINGS, L.C., an Idaho limited liability company GRANT OF EASEMENT 3 ---PAGE BREAK--- . This Grant of Easement, including its burdens and benefits, is hereby accepted by Grantee this {g a; day of J 1 1994. STATE OF IDAHO ) ) ss County of Latah ) CITY OF MOSCOW By : Paul c. Agidts Mayor On this day of , 1994, before me, the undersigned, a Notary Public Ô and for said state, personally appeared SHELLEY L. BENNETT, known to me to be a Member of Bennett Holdings, L.C., an Idaho limited liability company, who executed the instrument on behalf of said company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and notarial last above written. Residing at: f'YLe?C