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Easement Agreement with University Venture for Sewer Lift Station at Kennedy Commerical EASEMENT AGREEMENT - 1 Area above reserved for Recorder EASEMENT AGREEMENT CITY OF MERIDIAN & UNIVERSITY VENTURE DST FOR OPERATION AND MAINTENANCE OF PUBLIC SANITARY SEWER LIFT STATION UNDERGROUND INFRASTRUCTURE KENNEDY COMMERCIAL CENTER SUBDIVISION PORTION OF LOT 12, BLOCK1 THIS Easement Agreement (the “Agreement”) is made as of the ______ day of _________, 2016, between University Venture DST, a Delaware Statutory Trust, hereinafter referred to as "Grantor," and THE CITY OF MERIDIAN, an Idaho Municipal Corporation, as Grantee, hereinafter referred to as "CITY." Grantor and CITY may be referred to herein collectively as “the Parties.” WHEREAS, Grantor owns certain real property commonly known as 1422 S. Tech Lane, Meridian, Idaho, Ada County Parcel Number R1213346700 (the “Grantor’s Property”); and WHEREAS, Grantor’s Property was approved for development as the University of Phoenix project within the Kennedy Commercial Center Subdivision (the “Subdivision”) on October 29, 2008 pursuant to Meridian Certificate of Zoning Compliance (CZC) 08-106, which incorporated prior approvals, CUP-01-009, PP- 07-013, FP-07-036, and RZ-08-003; and EASEMENT AGREEMENT - 2 WHEREAS, as a condition of Final Plat 07-036, the lots in the Subdivision were required by Site Specific Condition #14 to “continue to be served by the existing private lift station and pressure main until the Black Cat Trunk is available to serve this area”; and WHEREAS, Grantor’s Property has been the site of the private sanitary sewer lift station that has served the Kennedy Commercial Center ( see Exhibit A); and WHEREAS, the property adjacent to the Grantor’s Property is commonly known as 1495 S. Tech Lane, Meridian, Idaho, and legally described as Lot 9, Block 1 of the Kennedy Commercial Center Subdivision and has been developed as a multi-family apartment building (the “Overland Park Apartments Property”); and WHEREAS, the City’s approval of the development of the Overland Park Apartments Property necessitated the replacement of the private lift station on the Grantor’s Property with a larger, publicly owned sanitary sewer lift station (the “New Lift Station”) that could serve the needs of the Subdivision until such time as the Subdivision can be connected to a gravity sanitary sewer line; and, WHEREAS, the Developer of the Overland Park Apartments Property, as a condition of its development approvals by City (including site specific condition 2.1.2 of CUP 14-009), was required to “work with the City and Kennedy Commercial Center Owner’s Association” to replace the private lift station with the New Lift Station, decommission the private lift station, and transfer ownership of the New Lift Station and its related components to the City at which time the New Lift Station will become part of the City infrastructure; WHEREAS, such transfer of ownership of the New Lift Station, the underground storage tank on Grantor’s property, four (4) manholes and any related components to the system will be accomplished by the City entering into letter agreements, acceptance for ownership, operations and maintenance agreement or EASEMENT AGREEMENT - 3 other applicable agreements with the respective property owners which shall accomplish the transfers to the City; and WHEREAS, the components of the private lift station identified for removal on Exhibit A have been removed in accordance with all applicable City, state, and federal regulations, and the New Lift Station has been constructed ( see Exhibit B); and WHEREAS, the New Lift Station is situated primarily on the Overland Park Apartments Property, as depicted on Exhibit D (See Parcel B and accompanying legend); and, WHEREAS, the portion of the New Lift Station’s infrastructure on the Grantor’s Property consists of the existing underground storage tank and a new pipe connecting it to the infrastructure on the Overland Park Apartments Property; and WHEREAS, before City can accept ownership of the New Lift Station, it must receive written permission from the owners of both parcels to allow the infrastructure to be operated and maintained on their respective properties; and WHEREAS, Grantor desires to grant an easement to City for the portion of the New Lift Station that is situated on Grantor’s Property so that the City can provide sanitary sewer utility services pursuant to City’s regulations and Ordinances and maintain the New Lift Station and its related components. NOW, THEFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. GRANT OF EASEMENT : Grantor hereby grants to City a non-exclusive easement on, over across, under, and through a portion of Grantor’s Property as legally described in the attached Exhibit “C” and depicted as Parcel A on the attached Exhibit “D”(the “Easement Premises”). City covenants and agrees that the Easement Premises shall be used EASEMENT AGREEMENT - 4 for the limited purpose of operating and maintaining the portions of the New Lift Station collection and storage system as identified on Exhibit B that are situated on Grantor’s Property. The grant of the easement includes a grant to City, its respective contractors, employees, and agents, a non-exclusive easement for ingress and egress, for maintenance purposes only, to and from the Easement Premises by way of the fire access road along the western boundary of Grantor’s Property. The Easement Premises shall not be used for any other purpose or purposes without the prior written consent of Grantor. City shall not permit the lien of any contractor, subcontractor, mechanic, labor or materialman, or any other lien of any kind or nature to be imposed upon the Easement Premises, and shall promptly cause the same to be removed if any lien is imposed. Grantor covenants and agrees that they will not place or allow to be placed any permanent structures, trees, brush, or perennial shrubs or flowers within the area described for this easement, which would interfere with the use of said easement, for the purposes stated herein. Grantor covenants that they are lawfully seized and possessed of the aforementioned and described Easement Premises, and that they have a good and lawful right to convey said easement. 2. MAINTENANCE: City shall, at City’s sole cost and expense, maintain the Easement Premises in as good condition as the same is in at the time this easement is granted to City, reasonable wear, tear and damage by the elements excepted. City shall, at City’s sole cost and expense, repair any damage caused to the New Lift Station, the storage tank on Grantor’s property and its related components. 3. COMPLIANCE WITH LAW: City agrees to comply with all municipal, state and federal laws, rules, regulations and ordinances and to do all things necessary to stay in compliance with the same. EASEMENT AGREEMENT - 5 4. UTILITIES: It is expressly agreed that during the full term of this Agreement, City shall furnish and promptly pay for any utilities required for the New Lift Station and related components on the Easement Premises at City’s own cost and expense, if any. 5. TAXES AND ASSESSMENTS: Grantor shall pay all real estate taxes and assessments of any kind levied against the above Easement Premises during the term of this Agreement and any extension thereof promptly as the same become due. 6. LIABILITY: Grantor shall not be liable for any injury or damage which may be sustained by any person or persons resulting from the condition of the Easement Premises, the New Lift Station, the old lift station or any parts thereof, or from any other source or cause whatsoever, nor shall the Grantor be liable for any defect in the structures on said Easement Premises, latent or otherwise, and City agrees to indemnify and hold harmless Grantor from such liability pursuant to Article 9 of this Agreement. City shall not disrupt any other portion of Grantor’s Property in connection with its operation and maintenance of the Easement Premises and New Lift Station and City agrees to indemnify and hold harmless Grantor from such liability pursuant to Article 9 of this Agreement. 7. LIABILITY INSURANCE: City shall maintain a comprehensive liability insurance policy covering the Easement Premises and the New Lift Station during the term of this Agreement with a responsible insurance company, all at the sole cost and expense of City in the sum of $500,000.00 single-limit coverage. 8. TERM AND TERMINATION : This Agreement shall continue in perpetuity and shall remain in effect until such time as the New Lift Station is no longer needed and the Subdivision is connected to a gravity sewer system as part of the City’s infrastructure, at which time City shall provide 90 days written notice to terminate. Time and the strict and faithful performance of each and every one of the conditions of this EASEMENT AGREEMENT - 6 Agreement are expressly made the essence of this Agreement. If default be made by the City in keeping, performing or observing any of the covenants and agreements herein contained and such default shall remain so for a period of 30 days after written notice shall have been sent to City as hereinafter provided, then in such event Grantor may, at Grantor's election, either in law or equity, declare said term and Agreement forfeited. 9. INDEMNIFICATION: During the term of this Agreement (and thereafter, for incidents occurring during any term of this Agreement), City shall indemnify, defend and hold harmless Grantor, its officers, employees, beneficial interest owners, property managers and agents (“Grantor Parties”), and all successors and assigns of Grantor or any Grantor Parties, to the extent allowed by law, against any and all claims, liabilities, damages, expenses (including reasonable attorney fees), judgments, proceedings and causes of action of any nature arising from: (i) injury to or death of any person, or damage to or loss of any property occurring on, in or around the Easement Premises, or (ii) growing out of connected with the use, condition or occupancy of the Easement Premises, or (iii) resulting from a breach of this provision of this Agreement. This obligation to indemnify shall only to the extent allowed by law, and shall be limited to the acts or omissions of City or its officers, contractors, licensees, agents, servants, employees, guests, invitees or visitors and not caused by the negligence or other wrongful act of omission of Grantor, or Grantor’s officers, employees, or servants. City’s obligation to indemnify shall survive the satisfaction or earlier termination of this Agreement. 10. ATTORNEY'S FEES: In the event an action is brought to enforce any of the terms or provisions of this Agreement, or enforce forfeiture thereof for default thereof by either of the parties hereto, the successful party to such action or collection shall be entitled to recover from the losing party a reasonable attorney's fee, together with such other costs as may be authorized by law. EASEMENT AGREEMENT - 7 11. NOTICES: All notices required to be given to each of the parties hereto under the terms of this Agreement shall be given by depositing a copy of such notice with an overnight carrier such as UPS or Federal Express, postage prepaid, to the respective parties hereto at the following address: Grantor: University Venture DST C/O Sandi Metz Inland Commercial Real Estate Services LLC 814 Commerce Drive, Suite 300 Oak Brook, IL 60523 CITY: City of Meridian City Clerk 33 E. Broadway Ave Meridian, ID 83642 City of Meridian Warren Stewart – City Engineer 33 E. Broadway Ave Meridian, ID 83642 or to such other address as may be designated by writing delivered to the other party. All notices shall be deemed completed as of the date of mailing except as otherwise expressly provided herein. 12. REPRESENTATIONS: It is understood and agreed by and between the parties hereto that there are no verbal promises, implied promises, agreements, stipulations, representations or warranties of any character excepting those set forth in this Agreement. 13. BINDING EFFECT: The provisions and stipulations hereof shall inure to the benefit of and bind the heirs, executors, administrators, assigns and successors in interest of the respective parties hereto. 14. SITUS: This Agreement is established and accepted by the parties under the laws of the State of Idaho, and all questions concerning its validity, construction and administration shall be determined under such laws. EASEMENT AGREEMENT - 8 15. HEADINGS: The bolded paragraph headings are for convenience only and are not a part of this Agreement and shall not be used in interpreting or construing this Agreement. 16. SEVERABILITY: If any portion or portions of this Agreement shall be, for any reason, invalid or unenforceable, the remaining portion or portions shall nevertheless be valid, enforceable and carried into effect, unless to do so would clearly violate the present legal and valid intentions of the parties hereto. IN WITNESS WHEREOF, the Grantor and City do execute this Agreement the day and year first above written. Grantor University Venture DST, a Delaware statutory trust By: University Exchange Venture, L.L.C. a Delaware limited liability company, its signatory trustee By: Inland Private Capital Corporation, a Delaware corporation, its sole member By: Its _______________________________________________ STATE OF _____________, ) : ss. County of ______________ ) On this __________ day of _________________________________, 2016, before me, the undersigned, a Notary Public in and for said State, personally appeared __________________, known or identified to me to be the __________________of Inland Private Capital Corporation, a Delaware corporation, the sole member of University Exchange Venture, L.L.C., a Delaware limited liability company, the signature trustee of University Venture DST, a Delaware statutory trust and who executed the instrument, and acknowledged to me that said company executed the same. (SEAL) _______________________________________ NOTARY PUBLIC FOR ____________________ RESIDING AT: __________________________ MY COMMISSION EXPIRES: ______________ EASEMENT AGREEMENT - 9 Grantee CITY OF MERIDIAN, IDAHO By: Tammy de Weerd, Mayor Attest: City Clerk STATE OF IDAHO, ) : ss. County of Ada. ) On this __________ day of __________________________________, 2016, before me, the undersigned, a Notary Public in and for said State, personally appeared Tammy de Weerd and Jaycee Holman., known to me to be the Mayor and City Clerk of the CITY of Meridian, Idaho, and who executed the within instrument, and acknowledged to me that the City of Meridian executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. _____________________________________ (SEAL) NOTARY PUBLIC FOR IDAHO RESIDING AT: _________________________ MY COMMISSION EXPIRES: _____________ EASEMENT AGREEMENT - 10 EXHIBIT A Location of Former Private Lift Station and Existing Storage Area EASEMENT AGREEMENT - 11 EASEMENT AGREEMENT - 12 EXHIBIT B Diagram of New Sanitary Sewer Lift Station Infrastructure EASEMENT AGREEMENT - 13 EXHIBIT C LEGAL DESCRIPTION OF LICENSED AREA EASEMENT AGREEMENT - 14 EXHIBIT D BILL OF CONVEYANCE University Venture DST, a Delaware Statutory Trust, does hereby irrevocably transfer and deliver to THE CITY OF MERIDIAN, an Idaho Municipal Corporation, all of its right, title, and interest in the personal property described as the “Existing 11,250 gallon storage”, four manholes, and related underground pipe as depicted in Exhibit A, attached hereto and incorporated by reference herein, in an “AS-IS” CONDITION, without making any representations as to the quality or fitness of said property for any purpose whatsoever. The City of Meridian hereby accepts the above-referenced personal property in an “AS-IS” CONDITION, after having examined said personal property and is relying upon its own judgment as to the suitability of the personal property for its intended use. To the extent allowed by law, the City of Meridian hereby agrees to indemnify and hold harmless the University Venture DST and its successors and assigns from any liability for any property damage or personal injury claim of any description arising out of the City of Meridian’s use of said personal property. This conveyance of personal property shall be effective on the date concurrent with the execution and recording of an Easement Agreement between the Parties regarding the location of said personal property. The date of recordation of said easement, as Ada County Idaho Instrument No. 2016-_____________ ,on the ______ day of April, 2016. University Venture DST, a Delaware statutory trust By: University Exchange Venture, L.L.C. a Delaware limited liability company, its signatory trustee By: Inland Private Capital Corporation, a Delaware corporation, its sole member By: Its _____________________________________________ CITY OF MERIDIAN, IDAHO, an Idaho Municipal Corporation By: Tammy de Weerd, Mayor EXHIBIT A