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2007-59RESOLUTION 2007 - 59 COUNCILMEMBER ABBOTT INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS the City of Blair, Nebraska has been presented with a Developer's Agreement between the City of Blair, Nebraska, and Hayden Place Development, LLC to develop the subdivision of Hayden Place (Lots 1 through 8, Outlot A and Outlot B) being platted of that part of Tax Lots 267 in the SW 1/4 of the SE 1/4 and part of the SE 1/4 of the SE 1/4 of Section 14, Township 18 North, Range 11 East of the Sixth P.M., Washington County, Blair Nebraska, and known as "Hayden Place Subdivision". WHEREAS, the terms and conditions of the Developer's Agreement are acceptable to the City of Blair, Nebraska. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA, that the Developer's Agreement attached hereto, marked Exhibit "A" and by this reference made a part hereof as though fully set forth herein, which has been presented to the City Council, is hereby accepted and adopted by the City of Blair, Nebraska, and that the Mayor and the City Clerlc of Blair, Nebraska, are hereby authorized and directed to execute said Developer's Agreement on behalf of the municipality. COUNCIL MEMBER ABBOTT MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER BIFFAR. UPON ROLL CALL, COUNCIL MEMBERS STEWART, SCHEVE, SHOTWELL, ABBOTT, CHRISTIANSEN, WOLFF AND BIFFAR.. VOTING "AYE", AND COUNCIL MEMBERS NONE VOTING "NAY, THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 23RD DAY OF OCTOBER, 2007. CITY OF BLAIR, NEBRASKA JA ~ E. REALPH, MAYOR ATTEST: ~~ ~~~-~ BRENDA R.WHEELER, CITY CLERK (SEAL) STATE OF NEBRASKA ) :ss: WASHINGTON COUNTY ) BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed and adopted at a regular meeting of the Mayor and City Council of said City held on the 23rd day of October, 2007. ,~% r Gel/ i B A R. WHEELER, CITY CLERK DEVELOPER'S AGREEMENT THIS AGREEMENT made this day of ~~~ , 2007, by and between the City of Blair, Nebraska, a Municipal corporation (hereinafter referred to as "City"), and Hayden Place Development LLC, a Nebraska limited liability company (hereinafter referred to as "Developer"). WHEREAS, the Developer warrants and represents that it owns all legal and beneficial rights to the tract of land legally described in the surveyor's certificate portion of the final plat attached hereto as Exhibit "A" (which parcel of land is herein referred to as the "Subdivision"). WHEREAS, Developer has proposed a final plat for the Subdivision to be known as "HAYDEN PLACE"; and WHEREAS, Developer proposes to install and construct certain public improvements in and serving the Subdivision and has requested the City to approve Developer's final plat and plans for developing the Subdivision; and WHEREAS, except as otherwise provided for in this agreement, the Developer has elected to use its personal financing for the construction of those improvements to be installed and constructed by Developer, with such infrastructure, utilities and other improvements to be paid for by Developer without the use of a sanitary improvement district, City or other public funds; and WHEREAS, the City has agreed to install, construct and pay for certain public improvements as set forth herein; and WHEREAS, the parties wish to agree upon the manner and to the extent to which paving, storm sewers, sanitary sewers, vehicular and pedestrian access and movement, utility distribution systems and other aspects of the infrastructure of the Subdivision shall be constructed and other issues that are to be resolved; and WHEREAS, Developer desires to provide for the flow and handling of sewage collected in or flowing into the sanitary sewer system to be constructed within the Subdivision, and has requested City to issue the necessary connection permits therefor. NOW, THEREFORE, 1N CONSIDERATION OF THE MUTUAL COVENANTS AND BENEFITS TO EACH PARTY AS SET FORTH HEREIN, IT IS AGREED AS FOLLOWS: 1. Construction/Installation of Public Improvements by Developer. Except as otherwise set forth herein, the Developer covenants and agrees that the Developer shall, within Two Hundred Seventy (270) days after the filing of the plat for the Subdivision, present to the City Cleric binding contracts in full force and effect calling for the timely and orderly installation of the following public improvements at the Developer's expense: (a) Paving. Concrete paving not less than seven inches (7") in depth with integral curb, and of a width as shown on the paving plan for the Subdivision (Exhibit "B" attached -1- hereto), and which paving shall be constructed in dedicated street right-of--way per the plat (Exhibit "A"). (b) Traffic Control Signals and Highway Improvements. All improvements required by the Nebraska Department of Roads at the following intersections (Exhibit "C"): (1) Kellie Street and Highway 30. (2) Highway 30 and Hollow Road: If the Developer or any owner of property within the Subdivision requests the improvement of the Highway 30 and Hollow Road intersection before such intersection is warranted by the State of Nebraska Department of Roads. However, if the improvement of the Hollow Road and Highway 30 intersection becomes warranted as determined by the State Department of Roads, then the City shall be responsible for the design, construction and cost of the intersection. It is understood and agreed that the Developer shall not be responsible for any design, construction or operational costs associated with traffic signalization of Hollow Road and Highway 30 if such request is made by an owner of property within the Subdivision other than the Developer. (3) Holly Street & Highway 30 (no traffic signalization will be allowed). (c) Sanitary Sewers. All sanitary sewer mains, manholes, and related appurtenances to be constructed within or serving the Subdivision, which shall be constructed in street right-of- way as more fully shown on the Utility Improvements Concept plan attached hereto as Exhibit «D» (d) Storm Scwcrs. Storm sewers, inlets, manholes, and related appurtenances to be designed based upon the storm water studies done by Schemmer Associates (Exhibit "E") and Olson Associates (Exhibit "F") and to be constructed in dedicated street right-of--way and within storm sewer easements as shown on final plat (Exhibit "A") and on the Utility Improvements Concept plan for the Subdivision (Exhibit "D" hereto). (e) Water. Water service from the City of Blair, including domestic and firefighting flows, to serve all lots within the Subdivision shall be installed within the right-of--ways of the Subdivision. (f) Gas. Gas mains to serve all lots to be constructed within the right-of--ways. (g) Power. Underground electrical power to serve all properties within the Subdivision. (h) Street Lighting. Street lighting of a height, illumination and design to be approved by the City and as determined by City to be necessary. -2- 2. The plans and specifications for and location of each improvement shall be in accordance with established City requirements and are to be approved by City's Engineer prior to starting construction or installation of each said improvement. 3. Private Financing of the Public Improvements. Except as otherwise provided for in Section 1(b)(2), the parties agree that the entire cost of all public improvements set out in Section 1 herein shall be paid by the Developer. The Subdivision shall not be included within the boundaries of any sanitary improvement district and no other form of public financing shall be utilized in construction of the improvements for the Subdivision, except as otherwise approved by City. 4. Obligations of the City. The City shall be obligated to complete the following in accordance within the schedule set forth herein: (a) Right-of-Way Tract Acquisition. The City shall, at its sole cost and expense, purchase or acquire utility and grading easements on the property legally described on Exhibit "G" for the purposes of grading the future public right-of--way (hereinafter referred to as the "Right-of--Way Tract"). Upon purchase or acquisition of the easements by the City, the Developer shall have the right and obligation to enter upon the Right-of--Way Tract to grade the Right-of--Way Tract for a maximum distance of approximately eight hundred (800') feet in accordance with the approved grading plans prepared by The Schemmer Associates Inc. (the "Site Grading and Erosion Control Plan"). The Developer shall, at its sole cost and expense, grade the Right-of--Way Tract in a good and workmanlike manner, lien-free and in accordance with the Site Grading and Erosion Control Plan. (b) Relocation of Natural Gas Line. The City has entered into a legally binding agreement with Aquila calling for the timely and orderly relocation of the natural gas line and related facilities owned and operated by Aquila (the "Gas Line") as shown on Exhibit "H" attached hereto. The City shall be responsible for obtaining all contracts, agreements, permits and approvals required for the relocation of the Gas Line. The City shall have the right to enter upon the property owned by the Developer to relocate the Gas Line at its expense. Such construction shall proceed in accordance with the approved relocation plans approved by the parties hereto and Aquila and in accordance with all applicable laws, rules and regulations. The City shall furnish written notice to the Developer upon completing the relocation of the Gas Line. The City shall relocate the Gas Line in a good and workmanlike manner, lien-free, and in conformance with approved plans and specifications. The agreement with Aquila for the Gas Line relocation shall provide for the release and termination of all existing easements being vacated as part of the Gas Line relocation. The City shall not agree to any amendment or modification of the agreement with Aquila without the prior written consent of the Developer, which consent shall not be unreasonably withheld or delayed. (c) Highway Improvements. The City has entered into a legally binding agreement with the State of Nebraska Department of Roads calling for the timely and orderly construction of certain paving improvements as described on Exhibit "I" attached hereto. The City shall be responsible for obtaining all contracts, agreements, permits and approvals required for the -3- installation of the Highway Improvements and all costs associated with the design and installation of the US-30 and South Street improvements and the US-30 and Washington Street improvements. The City shall not agree to any amendment or modification of the agreement with the State of Nebraska Department of Roads without the prior written consent of the Developer, which consent shall not be unreasonably withheld or delayed. (d) No Special Assessments. The City shall not levy special assessments or any other assessment against any of the property within the Subdivision, or against the improvements located thereon, to pay for the original construction of any of the public improvements contemplated herein. (e) Completion of City Obligations. The City agrees to perform its obligations under Sections 4(b) and 4(c), above, as soon as practicable and shall complete such undertakings on or before September 1, 2008. 5. Construction Specifications, Testing, Etc. The Developer covenants and agrees that it will abide by and incorporate into all of its construction contracts the provisions required by the regulations, and policies and procedures of the City pertaining to the construction of public improvements in subdivisions and testing procedures therefor. 6. City Approval of Plans and Specifications. All improvements will be constructed in accordance with plans and specifications and locations approved in writing by City's Engineer and in accordance with the City's policies and minimum standards and requirements of construction and testing procedures therefor, and directions of City Engineer, and that upon completion of construction thereof, Developer shall furnish to City a certificate from its consulting engineer so certifying. 7. Construction Inspection/Testin~. Developer shall ensure that a qualified inspector is on site whenever any work is being done for all such improvements that shall be constructed within the area to be developed that will be furnished to the City. Developer shall cause appropriate testing of materials and work finished in respect to the construction of improvements and shall furnish City's engineers with copies of test results. City's engineers may order additional paving core tests, sewer televising or other tests, the cost of which shall be paid by Developer to the party performing the testing procedures, which additional testing costs shall also be a cost of the improvement. Neither the Developer nor any other party shall be entitled to rely upon any inspections made by the City for any purpose whatsoever. The sole responsibility for proper inspection and certification as to completion remains with the Developer and Developer's engineers. 8. Construction Record Drawings. Developer shall cause "Construction Record Drawings", in reproducible from, and specifications for all such improvements that District shall have heretofore or hereafter constructed within the area to be developed to be furnished to City, in triplicate, promptly and without cost to the City. All such plans shall be submitted on paper and in an electronic format acceptable to the City to be incorporated into the City's GIS, except where the City agrees otherwise. -4- 9. Compliance with Laws, Ordinances, Etc. All such improvements shall comply with all applicable federal and state laws and regulations in general and with all applicable ordinances and regulations of the City in reference to construction use, operation and maintenance. 10. Corrective Action. In the event that City's Engineer determines that there is anything in the construction, maintenance or operation of any such improvements which will, in the opinion of City's Engineers, be detrimental to any other improvement or utility constructed or to be constructed in the same street right-of--way or easement way, Developer will, on notice thereof, promptly cause its engineers to jointly review and evaluate the problem with City's engineer and formulate a plan for corrective action which shall be implemented by Developer and/or Developer's Engineer at no cost to City. 11. Construction Bonds. Developer shall require each contractor to furnish atwo-year performance and maintenance bond, with Developer and City as joint and several obligees thereon, which bond shall be satisfactory to the City as to surety, form and terms. 12. Easements. Prior to commencement of construction of improvements, the Developer will obtain and file of record permanent easements for all water, gas, sanitary and storm sewer lines authorized by this Subdivision Agreement, which are not situated and dedicated street right-of--ways. Said easements shall be in form satisfactory to the City. 13. Utility Connections. All costs and permits associated with connection to utilities will be the responsibility of the Developer and individual property owners, and not the City. 14. Third-Party Rights. The Developer shall be primarily liable to the City for the construction aid installation of the foregoing improvements. However, such primary obligation to the City is not intended to preclude the property owners within the Subdivision from, as among themselves, agreeing to bear such costs as between themselves in such manner upon which they may agree. The reaching of such an agreement, as among property owners, or the absence thereof, does not in any way diminish or change the City's right to look to Developer for full performance of the obligation to construct and install improvements. 15. Maintenance and Repair of Infrastructure Improvements. Except for any infrastructure improvements that are maintained by the State of Nebraska Department of Roads, the City will assume responsibility for repair and maintenance of the following infrastructure from the time of the City's acceptance of the project engineer's certification of completion of same: (a) Sanitary sewer intended for public use. (b) All paving (inclusive of median and median improvements) and storm sewer intended for public use; -5- (c) Public water system intended for public use; (d) OPPD charges for maintenance and energizing of street lighting and traffic signalization; (e) The Right-of--Way Tract; (f) US-30 and South Street; (g) US-30 and Washington Street; (h) Holly Street; and (i) Hollow Road. Except for the foregoing improvements, the obligation to repair, maintain and reconstruct improvements shall be that of the Developer. 16. Sanitary Sewer System. As regards to the sanitary sewer system, which shall be constructed by Developer, the parties agree as follows: (a) City to Talce Ownership of and Maintain Sewers. Upon the completion of the sanitary system within any dedicated public easements and the City's acceptance of the engineer's certificate of completion thereof, the City shall be granted and the City shall accept control and operation of such sanitary sewer system. The Developer shall convey by proper legal instrument all of its rights, easements, title, and interest in such sanitary sewer and easements therefor, to the City. The acquisition shall be upon City approved forms. (b) Connection. Subject to the conditions and provisions hereinafter specified, the City hereby grants permission to the Developer to connect the Subdivision sewer system in such manner and at such place or places designated on plans submitted by the Developer and approved by the City. (c) Connection of External Sewers. Without prior written approval by the City, the Developer shall not permit any sewer lines or sewers serving areas outside of the Subdivision or transporting sewage from outside the Subdivision, to be connected to any of the following: (1) the sewer or sewer lines within the Subdivision; (2) any sewer flowing directly, or indirectly, into sewers of the City; (3) any outfall sewer of the City; or (4) any sewage treatment plant of the City or any plant treating sewage of the City. The City shall have exclusive right to collect sewer connection fees and sewer use fees in respect to connections to the Subdivision sewer system, whether emanating from within or without the boundaries of the Subdivision. The Developer shall not collect connection charges or sewer use fees on account of any connections to any sewer. -6- (d) Sewage Discharge to be in Conformity with Laws. At all times all sewage emanating from or transported through the Subdivision into the City sewer system shall be in conformity with laws, ordinances, rules and regulations applicable to City sewers as now in force and as from time to time may be amended. (e) Cit~ght of Disconnection. City retains the right to disconnect any sewer or sewer connection within or without the Subdivision which has been connected without benefit of properly issued City sewer connection permit, or for which the City has not received the applicable connection fee or which is discharging into the sewer system in violation of the terms of this Agreement or of any applicable law, ordinance, statute, rule, or regulation. 17. Compliance with Cit~~ulations, Etc. The Developer expressly agrees that it and the properties within the Subdivision are and shall be: (a) Bound by and to any provisions of any ordinances, rules and regulations now or hereafter adopted by the City applicable to subdivisions whose sewers are owned or maintained by City or which connected directly or indirectly with or into sewers or sewage systems owned or maintained by the City; and (b) Bound by any terms and provisions which by ordinance, resolution, or rule of the City shall hereafter adopt or provide as being applicable to or required in contracts with Developers or in order to permit or continue the discharge of any sewage from a subdivision to flow into or through any part of the sewer or sewage system of the City. 18. Connection Permit and Fees. Before any connection from any premises to the sewer system may be made, a permit shall be obtained for said premises and its connection from the proper department of the City, it being expressly understood that the City reserves the right to collect all connection charges and fees as required by City ordinances, rules or regulations now or hereafter in force; all such connections shall comply with minimum standards prescribed by the City. 19. Separate Metering/Monitoring. The City, by reason of potential volume of flow or type of or character of discharge from a property, or in order to bring the property's use of sewer into compliance with federal, state or City laws or regulations, may require sewage flow from a property to be separately metered and/or monitored, in which event the affected property owner shall, at such property owner's expense, install the required metering/monitoring equipment. 20. City Sewer Tap, Inspection and Use Fees to be Paid. In respect to properties connecting to the sewer system, the City may collect the City's sewer tap and inspection and permit fees, and its sewer use fees as now or hereafter existing. 21. Maintenance and Ownership of Outlot "A". Subject to the terms and conditions of the Permanent Slope Easement attached hereto as Exhibit "J", it is understood and agreed that -7- Outlot "A" shall be owned and maintained by the lawful owner of Lot 1, at that owner's sole cost and expense. 22. Easements and Right-of-WaX. The Developer, at no cost to City, shall provide easements and right-of--way in favor of City as may be needed for installation or improvements not adequately provided for in the final plat or plats, should there be need for such easements or right-of--way. 23. Miscellaneous Provisions. Developer further agrees: (a) En ig neers. City may employ its regular engineers or independent engineers, as it may choose for different matters or issues pertaining to the Subdivision, and as used herein, "City's Engineer" shall mean the Director of Public Works or the engineer or engineering firm so employed by City in respect to the particular review, matter or issue. (b) Covenants Running with the Land. This Subdivision Agreement and the agreements and understandings herein constitute covenants running with the land and shall be binding upon .the Developer, its successors, assigns, heirs, lenders, mortgagees and others gaining or claiming an interest or lien in the subdivision tract or a part thereof. 24. Remedies. That in addition to whatever rights of enforcement of the terms hereof are herein granted to any party, each party may avail itself of all other remedies it may have to enforce the terms hereof at law or equity. By way of specification and not by way of limitations, each of the parties expressly reserve to and right to specifically enforce full compliance of the terms and conditions of this agreement by mandatory or prohibitory injunction. 25. C~overnin~ Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska. This Agreement is made and entered into in Blair, Washington County, Nebraska and is being performed in Washington County, Nebraska. The parties hereby agree that any action to enforce the terms of this Agreement, or for any other remedy arising out of said Agreement, shall be brought solely in a Washington County state court or federal court in the State of Nebraska, and in no other court, and each party specifically acknowledges and submits to the personal jurisdiction of said court, and waives as to any such court any defense of inconvenient forum or improper venue. 26. Exhibit Summary. The Exhibits proposed by The Schemmer Associates, engineers for Developer, are attached hereto and made a part hereof are as follows: Exhibit "A" -Final Plat Exhibit "B" -Pavement Improvements Exhibit "C" -Highway Improvements -8- Exhibit "D" - Utility Improvement Concepts Exhibit "E" -Storm water study done by Schemmer Associates Exhibit "F" -Storm water study done by Olsson Associates Exhibit "G" -Right-of--Way Tract Exhibit "H" - Aquila Gas Line Relocation Agreement Exhibit "I" - Highway Improvements Exhibit "J" - Permanent Slope Easement IN WITNESS WHEREOF, we the parties hereto, by our respective duly authorized agents, hereto affix our signatures the day and year first written above. CITY OF BLAIR, NEBRASKA B J e E. Realph, Mayor City of Blair ATTEST: ~ ~~~- By: Brenda Wheeler, City Clerk STATE OF NEBRASKA ) ss: COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me on the ~~~'~day of October 2007, by James E. Realph, Mayor of Blair. ~~ ~`' ERAL I~TARY -State Of ~ ~ ~ ~~ ~ ~' GEN KATHERI!!E D. ~OUDNE Notary Public r~... My Comm. ExP. June 17, 20 -9- HAYDEN PLACE DEVELOPMENT, LLC, Nebraska limited liability company, Mary Berg, Member STATE OF NEBRASKA ) ss: COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me on the day of October, 2007, by Mary Berg, Member of Hayden Place Development, LLC, a Nebraska limited liability company, on behalf of said limited liability c~mnanv. -10- HAYDEN PLACE BEING A PLAT77NG OF PART OF TAXLOT 267 IN THE SOUTHWEST ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER AND PART OF THE SOUTHEAST ONE-QUARTER OF THE SOUTHEAST ONE-QUARTER OF SECTION l4, TOWNSHIP 1B NORTH, RANGE tl EAST TOGETHER WITH PART OF TAXLOTS Y AND 39 IN THE NORTHWEST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SECTION 23, TOWNSHIP 78 NORTH, RANGE ii EAST OF THE 6th. P.M., WASHINGTON COUNTY, NEBRASKA. 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E°~~°~~~ „_ „„,.,.m a'"„° n ~: ~~`w' K `"°'"" RELOCATION AND CONSTRUCTION AGREEMENT DATED: September _, 2007 BETWEEN: City of Blair, Nebraska and Aquila, Inc. d/b/a Aquila Networks 20 West Ninth Street Kansas City, MO 6410-1704 (Hereinafter called "Aquila") for the Project: Relocation and Construction of gas main pipeline. (Hereinafter called the "Project") The City of Blair, Nebraska ("City") and Aquila agree in this Relocation and Construction Agreement ("Agreement") as set forth below: 1. Construction and Ownership of the Project. Subject to satisfaction of all conditions precedent, Aquila shall use best commercial efforts to commence construction of the Project within sixty (60) days written notice from the City that all such conditions have been satisfied. Construction of the Project shall be completed with all reasonable expedition, subject to such delays as may be caused by Force Majeure or other unforeseen circumstances. Aquila shall construct the Project pursuant to industry standards. The Project and all permits, licenses, authorizations, approvals, easements and rights-of-way acquired in connection with the construction and operation of the Project shall be owned by Aquila. 2. Pricing; Payments. The City agrees to pay the actual cost of construction for the Project. The preliminary estimated project cost is Three Hundred Sixty One Thousand and No/100 Dollars ($361,000.00). The City hereby agrees to pay the actual cost of construction of the Project upon invoice from Aquila for the pipeline relocation including all engineering costs. 3. Permits, Rights-of-Way, Etc. With the exception of digging permits and one call notification which shall be Aquila's responsibility, the City, at its sole expense, shall provide and/or secure all necessary authorizations, approvals, easements and rights-of-way required for the construction of the Project that are required by Aquila. The City shall secure easements not less than thirty (30) feet wide for the Project and in locations acceptable to Aquila. The City shall cause its surveyors to mark the center of the easement area as well as the outer limits of the same prior to Aquila's commencement of work on the Project. Subject to Aquila's inspection and approval, the City shall lawfully assign all necessary permits, licenses, authorizations, approvals, easements and rights-of-way to Aquila for no cost by an assignment similar in form to that attached hereto as Exhibit "A." Aquila shall have no obligation to commence construction of the Project until all requisite permits, licenses, authorizations, approvals, easements and rights-of way have been rightfully obtained and assigned to Aquila. 4. Release of Current Easements. Upon the completion of the Project, Aquila hereby agrees to release the necessary portion of the existing easement (the "Easement") by executing the release and termination of easement attached hereto as Exhibit "B". The pipeline currently located on the subject property, which will be relocated as part of the Project, was placed thereon pursuant to the foregoing easement. Concurrent with the release of the Easement, the City or the governing municipality shall provide Aquila with a dedicated easement in a form similar to that attached as Exhibit "C" for the construction, repair, replacement and maintenance of the relocated pipeline. The Parties acknowledge that Aquila will, if reasonably possible, utilize the City right-of-way during construction and future maintenance of the pipeline. ~. Right of Way. As a result of the Project, a portion of the pipeline formerly located in private easement will be located in public right-of-way along the Blair by-pass. The City agrees to pay any future relocation expenses of that portion of the pipeline due to expansion of the right-of-way or any other construction activities that mandate its relocation as requested by either the City or the State of Nebraska. 6. Force Majeure. (a) In the event of Aquila being rendered unable, wholly or in part, by Force Majeure Event to carry oLtt its obligations under this Agreement, it is agreed that on Aquila giving notice and a reasonable description of such Force Majeure Event to the City in writing within a reasonable time after the occui~•ence of the same, then the obligations of Aquila, so far as affected by such Force Majeure Event, shall be suspended during the continuance of any inability so caused, but for no longer period, and such cause shall so far as possible be remedied with all reasonable dispatch. (b) The term "Force Majeure Event" shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, high water, washouts, arrests and restraints of governments and people, civil disturbances, explosions, breakage or accident to machinery or lines of pipe, the necessity for making repairs, tests or alterations to machinery or lines of pipe, freezing of wells or lines of pipe, partial ox entire failure of wells, the inability to acquire (or delays in acquiring), at reasonable cost and after the exercise of reasonable diligence, necessary permits, licenses, authorizations, approvals, easements, rights-of-way, materials or supplies, and any other causes, whether of the kind herein enumerated or otherwise, not at the time involved reasonably within the control of Aquila. 7. Insurance. (a) The City shall be responsible for purchasing and maintaining the City's own liability insurance and, at its option, may maintain such insurance as will protect the City against claims which may arise from operations under the Agreement and which are not covered by the indemnification set forth in Section 8 below. (b) Aquila and the City waive all rights against each other including rights of subrogation for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Agreement or any other property insurance applicable to the Project. 2 8. Indemnification. Each party (the "Indemnitor") shall indemnify, defend and hold harmless the other party and its employees, agents, representatives, officers, directors, shareholders, insurers, successors and assigns (each an "Indemnitee" and, collectively, the "Indemnities") from all claims, liabilities, suits, proceedings, costs, and expenses, including reasonable attorneys' fees for any damage, injury, death, loss or destruction of any kind, including but not limited to loss or damage to any property or injury to or death of any person, including but not limited to personnel of Aquila or the City to the extent such damage, injury, death, loss or destruction results or allegedly results from the negligence, willful misconduct, breach of this Agreement or of any representation contained in this Agreement, on the part of the Indemnitor or any of its agents, servants, representatives or employees, as adjudged under comparative fault or similar rules. The obligations of an Indemnitor to indemnify an Indemnitee are subject to the following conditions precedent: (i) Indemnitee must promptly notify Indemnitor in writing of any claim subject to indemnification under this Agreement and provide Indemnitor with the information, assistance and cooperation reasonably necessary to defend against any such claim; and (ii) Indemnitee must not make any admissions without Indemnitor's prior written consent and must grant Indemnitor sole authority to defend or settle such claim using legal counsel selected by Indemnitor in its sole discretion. 9. Limitation of Liability. No party shall be liable to another for any special, indirect or consequential damages, including, without limitation, loss of profit, and loss of use, arising out of the performance of this Agreement, except in a case of gross negligence by a party. 10: Liens. If any construction lien is filed against the City in connection with any work performed by or for Aquila that is directly caused by Aquila or its agents, Aquila agrees to promptly take such action as is necessary to have the lien discharged of record and Aquila shall be responsible for all costs and fees carrying out this obligation.. 11. Notices. Unless otherwise specified herein, any notice, request, demand, statement, bill or payment provided for in this agreement, or any notice which either party may desire to give to the other, shall be in writing and shall be considered as duly delivered when mailed by registered or certified mail as follows: Aquila, Inc. d/b/a Aquila Networks 501 West 6` Street Papillion, NE 68046 Attn: Kevin Jarosz City of Blair Attn: Allen Schoemaker 218 South 16t~' Street Blair, NE 68008 12. Relationship of the Parties. The duties, obligations and liabilities of the parties are intended to be separate and not joint or collective, and nothing herein contained shall be construed to create a joint venture, association or partnership, duty, obligation or liability with respect to the parties. 13. Severability. In the event that any provision of this Agreement is deemed to be void, voidable, unenforceable, or invalid, the parties agree that the other provisions of this Agreement will remain in full force and effect, and the validity and enforceability thereof shall not be affected by any such finding. 14. Entire Agreement. This Agreement, including the exhibits hereto, constitutes the complete agreement between the parties with respect to the Project and no modification, alteration or change in the terms hereof shall be effective unless made in writing and signed by both parties. 15. No Assignment. The City shall not assign this Agreement by operation of law or otherwise without the prior written consent of Aquila. 16. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska without regard to its conflict of laws principles. 17. Legal Forum. Any legal dispute involving this agreement shall be limited to the jurisdiction of the District Court of Washington County, Nebraska or County Court of Washington County, Nebraska. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. Authorized Representative of: A B N T: City of Blair, Nebraska B y: ~---~ Name. 5cc.mes 2eal..~h Title: .~ au a 2- 4 Authorized Representative of: EXHIBIT A ASSIGNMENT OF EASEMENTS THIS assignment of easements (this "Assignment") is made this day of 200_, by (the "Assignor") for the benefit of Aquila, Inc. ("Assignee") and its successors and assigns. Whereas, Assignor and the grantors reflected on the easement documents (collectively, the "Grantor") did enter into easements for utility purposes (collectively, the "Easement Agreements"), copies of which are attached hereto as Exhibit "A", pertaining to certain real property owned by Grantor and more particularly identified in the Easement Agreements. Whereas, Assignor desires to assign all of its rights, title and interest in the Easement Agreements to Assignee, and Assignee desires to take an assignment of all such right, title and interest from Assignor, upon the terms and conditions contained herein. Assignor hereby assigns to Assignee all its rights, title and interest in and to the Easement Ab eements. Assignor warrants that the Easement Agreements attached hereto as Exhibit "A" are a true and complete copy of the Easement Area that was filed of record in Washington County, Nebraska and that there are no modifications or amendments to the Easement Agreements. IN WITNESS WHEREOF, the Assignor and Assignee have executed this Assignment to be effective as of the day first written above. Authorized Representative of CITY OF BLAIR, NEBRASKA. By:_ Name: Title: Authorized Representative of AQUILA, INC. By:_ Narne: 5 EXHIBIT B RELEASE AND TERMINATION OF EASEMENT WHEREAS, Hayden Place Development is the current owner of a certain parcel of real estate located in Washington County, Nebraska (the "Hayden Place Parcel"), which is more particularly described in the attached "Exhibit A". WHEREAS, a gas line easement on, over, under and through the Hayden Place Parcel was granted to Peoples Natural Gas Company, Division of Utilicorp United Inc. by instrument dated May 9, 1994 and recorded June 26, 1994 in Book at Page 160 of the Miscellaneous Records of registrar of deeds office in Washington County, Nebraska (the "Easement"). WHEREAS, Utilicorp United, Inc. changed its name to Aquila, Inc. ("Aquila") on March 18, 2002, and Aquila is now the sole benefiting party under the Easement. WHEREAS, to accommodate the development of the Hayden Place Parcel, Aquila has agreed to release and terminate a portion of the Easement as defined on Exhibit "B" attached hereto and incorporated herein by this reference. NOW, THEREFORE, the undersigned, its successors and assigns, for good and valuable consideration, the receipt of which is hereby acknowledged, set forth the following: 1. The undersigned does hereby release, waive and terminate forever all rights and privileges acquired to them respectively, pursuant to its ownership of the Easement described above and declare said Easement terminated, extinguished and void. [Signatures Appear o~2 Next Page] 6 IN WITNESS WHEREOF, the undersigned, has executed this instrument, as of the below date. Authorized Representative of AQITILA, INC. Executed this _ day of , 2007 By: _ Name: Its: ACKNOWLEDGEMENT STATE OF ) )ss. COUNTY OF ) On this _ day of 2007, before me a Notary Public within and for said County and State, personally appeared , to me personally known, who, being by me duly sworn did say that he/she is the of Aquila, Inc., the corporation named in the foregoing instrument, and that the instrument was signed on behalf of the corporation and acknowledged the instrument to be the free act and deed of the corporation. Notary Public _ My Commission: County 7 EXHIBIT C EASEMENT FOR GAS LINES AND APPURTENANCES THIS EASEMENT, made and entered into this "GRANTOR", and a After recording mail to: day of , 2007, by and between "GRANTEE". KNOW ALL MEN BY THESE PRESENTS: That the "GRANTOR", in consideration of the sum of One Dollar ($1.00) and other valuable consideration, the receipt of which is hereby acknowledged, hereby grants, bargains, sells and conveys to Grantee, its lessees, licensees, successors and assigns, the right, privilege and perpetual easement to enter .upon the lands of Grantor to survey, construct, operate, patrol, inspect, maintain, alter, add wires, cables, conduits, and pipes, repair, rebuild and remove, on, under and over said lands and in and upon all streets, roadways or highways abutting said lands, now or at any future time, lines for the transmission and distribution of gas and all appurtenances and. appliances necessary in connection therewith, together with the right of ingress and egress to and from the said lines of Grantee over the lands of Grantor so that Grantee may go to and from said lines from the public. roads adjacent to Grantor's lands, which said lands of Grantor, situate in the County of Washington, in the State of Nebraska further described on Exhibit A attached hereto and incorporated herein by this reference. Grantee may erect and use gates in all fences which cross or which shall hereinafter cross the route of said lines. Grantee is given the right to trim, cut and clear away any trees; limbs and brush on or adjacent to the above described easement whenever, in its judgment, such will interfere with or endanger the construction, operation or maintenance of said lines. In exercising its rights of ingress and egress Grantee shall, whenever practicable, use existing roads or lanes and shall repair any damage caused thereby. It is the intention of the parties hereto that Grantor is hereby conveying the uses herein specified without divesting himself, his heirs or assigns, of the right to cultivate, use and enjoy the above described premises: PROVIDED, however, such use shall not, in the judgment of said Grantee, interfere with or endanger the construction, operation or maintenance of said lines, and provided further that no building shall be constructed on the easement without written permission from Grantee. Grantee, its successors and assigns, agrees to pay for any damage caused to land, growing crops, fences, livestock or other personal property of Grantor from the construction, operation or maintenance of said lines. Title to said lines shall be and remain in said Grantee. TO HAVE AND TO HOLD said easement and rights aforesaid with all and singular, the rights, privileges, appurtenances, and immunities thereto belonging or in anyway appertaining unto Grantee its lessees, licensees, successors or assigns forever. This easement shall run with 8 the land and shall be binding upon Grantor and Grantor their heirs, personal representatives, successors and assigns. Grantor hereby covenants that Grantor is the owner(s) of the above- describedland, subject to the existing liens andright-of-way easement of record. IN WITNESS WHEREOF, the said GRANTOR has set hand(s) the day and year first above written. Bv: Authorized Representative of STATE OF NEBRASKA ) )ss: COUNTY OF _) On this day of , 2007, before me personally appeared , to me personally known, who being by me duly sworn (or affirmed), did say that he is the of of a and that said instrument was signed on behalf of said 1N TESTIMONY WHEREOF I have hereunto set:my hand and affixed my official seal at my office in said county and state the day and year last above written. Print Name Notary Public in and for said County and State My commission expires 9 I~ ~ it AGREEMENT CITY OF GLAIR STATE OF NEBRASKA, DEPARTMENT QF RQADS US-30 IN GLAIR - WAL-MART DEVELgPMEtVT THIS AGREEMENT, made and entered into this _,_,_ day of , 2007, by and between the City of Blair, a municipal corporation of the State of Nebraska,. hereinafter referred to as the "City," and the State of Nebraska, Department of Roads, hereinafter referred to as the "State," and sometimes collectively referred to as the "parties." WITNESSETH: WHEREAS, the City of Blair has plans for improvements to Highway US-30 in Blair due to a commercial development, hereinafter referred to as "Developer," to be located between Hollow Road and Kellie Street, a$ shown in Exhibit "A", attached hereto, and hereby made a part of this agreement, and WHEREAS, based on a Traffic Impact Study prepared by Olsson Associates, improvements are required at the US-30 intersections of Kellie Street, Holly Street, Hpliow Road; South Street end Washington Street, as shown in Exhibit "A," and WHEREAS, both parties have agreed that the required improvements will include the signalization of US-30 at Kellie Street and US-30 at Hollow Road, and WHEREAS, all costs incurred for the improvements to Highway US-30 will be the City's, and at no costs to the State. NOW THEREFORE, in consideration of these facts, the parties hereto agree to the following improvements: SECTION 1. The City or Developer must have all plans approved through the State's Right-of-Way permit process. SECTION 2. The City agrees; at its pwn expense, to maintain, operate and' keep in good repair, the entire signal installation with the exception of the equipment within the controller cabinet which the State agrees to maintain at its cost and at no cost to the City. The City further agrees to bear solely the Cost of electrical power required to operate said signals. SECTION 3. The City further agrees that the cgst of the following improvements will be at the City cost and at no cost to the State. It will be the.responsibility of the Gity to go into an agreement with the Developer to establish financial responsibilities between the City and the Develgper. a. US-30 and Kellie Street -The access costs, design and construction of this access, street, and new traffic signal. b. US-30 and Holly Street -The access costs, design and ponstruCtion of this access, street. The parties agree that this intersection will never be a signalized due to the traffic signal spacing requirements for traffic progression along US-30. c. US-30 and Hollow Road -The access costs, design and construction of this aece$s and street, and new traffic signal. This will be a future signalized inters ctio for ac ess to h' o e n c t is devel pment and a possible future Blair bypass. This tra(fiq signal, intersection and access to the development will be constructed when warrants. are met for safety or capacity. This agreement does not preclude the City from seeking additional funding for a future bypass. d. US-30 and South Street -The design and construction of a northbound US-30 to eastbound South Street right-turn lane when warrants are met for safety or capacity. e. US-30 and Washington Street -.The design and construction of a northbound Uv~-30 (Lincoln Street) to eastbound US-30 (Washington Street) right-turn lane. The..parties agree that this construction, will be prior to the businesses opening in the new development. City of Blair. -2- US-30 in Blair - Wal-Mart Development IN WITNESS WHEREOF, the parties hereto have Geused these pre$ents to be executed by their proper officials thereunto duly authorized as of the dates below indicated. EXECUTED by the City this day of , 2007. ATTEST: Clerk CITY OF EI~AIR Mayor EXECUTED by the State this day of , 2007. STATE OF NEBRASKA DEPARTMENT OF ROADS RECOMMENDED: istrict E ineer AGRC4-ZI Traffic Design Engineer City of Blair ~ -3- US-30 in Blair-Wal-Mart Development t?lE=J'1 ~~~ ~ ' I i i i i i ~ i ~'I.~JI i ~~ i i $~al~ u, ,. i i ~ i i •r~ ~ i ~, i i i i i i i I.. ~ ~, ./ ~. ~;. ~VaShington 5f ~ ~otith 'St Nohow R~1 ~~ J~ / S ltd 11.9-30 C,d; \~~ • ~. PY LEGEND ~ ~ -Study Iritersectlon w - ExiStirtd Roadway z City of Blair EXHIBIT "A" US-30 in Blair - Wal-Mart Development Sheet 1 of 2 I-iddlov;! Fed brr[Nnbx: PdNO Fiifur~ B~+pass 1, 1;'~ tom' O p7 ~ ,AV.i~l '1 ' ~" (t0,79 AKj ~iiEute; F~~~eSS: Hgllj+ ~tr•eet OEfC SON I Hf P00tNEflA ~~~ OVILAi 01`ATIICAS (19:76 A~-) AfO~ PS (t0.7s h.) Aun;ot cY ofU565 OViLOi sr o7xEns (tile Fk-) Keilie Street UUA.O~. dv pnit9s oun oT 9Y ~A,THE99 c}7.~8 kr City of Blair EXHIBIT "A" US-30 in Blair - Wal-Mart Development Sheet 2 of 2 ~YI..1 ~' When recorded return to: Erin M. O'Gara, Esq. Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102-2186 (402) 346-6000 Blair, NE Store No. PERMANENT SLOPE EASEMENT THIS PERMANENT SLOPE EASEMENT (this "Easement") is made as of this day of 2007, by HAYDEN PLACE DEVELOPMENT, LLC ("Grantor") and WAL-MART REAL ESTATE BUSINESS TRUST (together with its successors and assigns, "Wal-Mart"). PRELIlVIINARY STATEMENTS Grantor is the fee simple owner of the real properly described in Exhibit A attached hereto and incorporated herein (the "Grantor Property"), which includes that portion of the Grantor Property legally described and depicted as the "Slope Blanket" on Exhibit B attached hereto (the "Slope Easement Area") and the "Permanent Maintenance Area" on Exhibit B attached hereto (the "Maintenance Easement Area"). Wal-Mart is the fee simple owner of the real property described in Exhibit C attached hereto (the "Wal-Mart Property"). Subject to the terms and conditions hereinafter set forth, Grantor desires to grant to Wal-Mart a permanent exclusive easement for the maintenance of a suitable slope or grade at a prescribed elevation for lateral stability and drainage purposes upon the Slope Easement Area, which shall include the right to enter upon the Slope Easement Area and the Maintenance Easement Area in order to grade, re-grade, repair, replace and maintain the same, subject to the terms and conditions set forth in this Easement. AGREEMENT For and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Wal-Mart hereby agree as follows: 1. Grant of Permanent Slope Easement. Grantor has constructed a slope of a prescribed grade and elevation upon the Slope Easement Area pursuant to the plans and specifications set forth in that certain Purchase Agreement dated 2007 between Wal-Mart and Grantor and in accordance with the requirements of any governmental entities with purview over the same (collectively, the "Plans"). Grantor hereby grants to Wal-Mart for the benefit of the Wal-Mart Property a permanent exclusive easement upon the Slope Easement Area for the establishment and maintenance of a slope for lateral stability at the grade and elevation set forth in the Plans and the installation and maintenance of a storm water drainage system that will manage the storm water entering the Slope Easement Area (collectively, the "Drainage Facilities"), which shall include the right to enter upon the Slope Easement Area and the Maintenance Easement Area in order to grade, re-grade, repair, replace and maintain the 4837-8474-4193.2 Slope Easement Area and the Drainage Facilities located thereon, subject to the terms and conditions set forth in this Easement. 3. Maintenance. From the date of this Easement to one year following Grantor's delivery of the Notice of Termination (NPDES Form CSW-END Notice of Completion of Construction Activity) (the "Grantor Maintenance Period"), Grantor or its agents shall, at its sole cost and expense, maintain the Slope Easement Area, including the Drainage Facilities and all other facilities located thereon, in full compliance with the Plans, including without limitation, maintaining the grade, elevation and condition of the Slope Easement Area as set forth in the Plans at all times. If at any time during the Grantor Maintenance Period, Grantor or its agents fail to maintain the Slope Easement Area, the Drainage Facilities and any other facilities located thereon in full compliance with the Plans, then Wal-Mart may enter upon the Slope Easement Area and the Maintenance Easement Area and perform such maintenance on behalf of Grantor and Grantor shall promptly reimburse Wal-Mart for all costs and expenses associated therewith. Following the expiration of the Grantor Maintenance Period, Wal-Mart shall maintain the Slope Easement Area and the Drainage Facilities at its own expense. 3. Access; Improvements. No buildings, improvements or other structures or embanltment work shall be placed upon the Slope Easement Area or the Maintenance Easement Area at any time by Grantor. No dirt, fill or fill material shall be placed upon the Slope Easement Area or the Maintenance Easement Area by Grantor at any time unless the placement of such material is required in accordance with Grantor's maintenance obligations set forth in Section 2 herein. Notwithstanding the foregoing, Grantor shall take no action or allow such action to be taken at any time that would result in a change in the condition, slope, grade or elevation of Slope Easement Area as constructed pursuant to the Plans or would compromise the function of the Drainage Facilities without the express written approval of Wal- Mart, which Wal-Mart may withhold in its sole discretion. Following the Grantor Maintenance Period, Grantor shall not enter the Slope Easement Area (or permit anyone to enter the Slope Easement Area) without Wal-Mart's written consent, which may be withheld in its sole description. Following the Grantor Maintenance Period, Wal-Mart shall have the sole, exclusive right to maintain, grade and re- grade (if necessary) the Slope Easement Area and maintain, repair and replace the Drainage Facilities, and otherwise improve the Slope Easement Area. 4. Indemnification. Grantor and [insert names of Grantor principals] (collectively, the "Indemnitor") ,hereby indemnify Wal-Mart and its affiliates and its and their respective directors, stockholders, members, managers, officers, employees, agents, consultants, representatives, successors, transferees and assigns (collectively, the "Indemnitee"), by counsel reasonably acceptable to Indemnitee, against all claims, liabilities, losses, costs, expenses (including all attorney's fees, costs and expenses related thereto) and damages incurred by Wal-Mart in connection with, related to or in any manner arising from (i) Grantor's use, construction, grading, maintenance and other activities within the Slope Easement Area, (ii) Indemnitor's exercise the rights and obligations granted herein or (iii) the breach by Indemnitor of its obligations hereunder. The indemnification obligations set forth in this Section are (a) independent of and will not be limited by damages or benefits payable under workers compensation or other statute, (b) not diminished or limited in any way by any insurance carried by Wal-Mart, which shall in all cases function in excess of these indemnification obligations and (c) will survive the Grantor Maintenance Period until all maters covered by this indemnity are fully and finally barred by applicable law. 5. Insurance. Grantor further agrees that Grantor will, at all times maintain and pay for comprehensive general liability insurance affording protection to Wal-Mart and Grantor for a combined bodily injury and property damage limit of liability not less than $5,000,000 for each occurrence. Such insurance maybe written by additional premises endorsement on any master policy of insurance carried by Grantor which may cover other property in addition to the property covered by this Easement. Such insurance shall not be canceled without thirty (30) days' prior written notice to Wal-Mart. Grantor further 4837-8474-4193.2 2 agrees, upon request to deliver to Wal-Mart a certificate from an insurance company satisfactory to Wal- Mart evidencing the existence of such insurance. 6. Binding Upon Property. The easement, rights and obligations created pursuant to the terms of this Easement shall be appurtenant to the Slope Easement Area and the Maintenance Easement Area in perpetuity and run with and be binding upon the Slope Easement Area and the Maintenance Easement Area, including future subdivisions and/or reconfigurations of such properties, and shall be binding on all entities having or acquiring any right, title or interest in such properties and shall inure to the benefit of each owner, tenant, subtenant, employee or invitee thereof. 7. No Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Slope Easement Area or the Maintenance Easement Area to the general public, or for any public use, or purpose whatsoever. Except as herein specifically provided, no rights, privileges or immunities of any party hereto shall inure to the benefit of any third party, nor shall any third-party be deemed to be a beneficiary of any of the provisions contained herein. 8. Title. Grantor confirms with Wal-Mart that Grantor is seized in fee of the Slope Easement Area and the Maintenance Easement Area and that it has the right to grant and convey the easement and rights granted herein, and that it will warrant and defend such easement and rights to Wal- Mart against the lawful claims and demands of all persons. jRemainder of page left intentionally blank -signature page follows 4837-8474-4193.2 3 IN WITNESS WHEREOF, Grantor and Wal-Mart have caused the authorized execution hereof, the day and year first above written. By: Name: Its: STATE OF ) SS. COUNTY OF ) HAYDEN PLACE DEVELOPMENT, LLC On this day of , 2007, before me, a notary public in and for said county and state, personally appeared , to me personally known, who being by me duly sworn, did say that (s)he is the of Hayden Place Development, LLC, a limited liability company and acknowledged to me that (s)he executed the same on behalf thereof. (SEAL) Expires: County, Notary Public My Commission 4837-8474-4193.2 4 10;18/20U7 t~9: ~$ FAg 4~2 8.34 t~815 FULLENKAhrP D~YLE Jt1F1EUN .~~ ,= r'' C~j Ot72 d~ • `- be~nefthe ~P,rope~ , •provided ,that #fie .~Slaping Eant .may be -~' a currerrt legal desar~p#ranscrF'the~(ands.t~enef~ted arad~~turdeneat~therQby entl~ the then •GUrrent property ,owner's names. Selier:~sbaH',ooriv',ey. the Slape'fJtrtlot to:'BUyer ~at no t~st'upon expir~tian•~.o~ the Grantor Maintenanrx~ Period (es defined in 51t~Pml~:.~Easemegt~ •taY general warm enCt~rxtt}ran~es aRP+~veal by Buyer, °in w t~n~ ~ ~ tl~J ~ only to Lamed°). ~ At~ ~lasirrg;<~~Seller,shall ~de p ~asern~nt w~~'~Escrow' p~~''the ,Bi4 .e >waseanent Deed Herat .with' instructions ~ta.:recorcl, the gl~, Easement [mod. upon the expiration •-caf th~ Gcar~tar Nlaintenence Period. I~p~on • sucta~ ~nueyant~, .the ~Slaping. 1=$s~ement shall 'tem~inate. as tv the Slope' I~ut~at•+only aid'-.Seller shat( have nibfurther liabilitaes or obligations with respect eta tbe, Siape 4utlat, except those iiaai(ifses and-obligations that expressly survi~re termination. •, r ' L ,t r ,' ~ . r^ T ~~