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HomeMy Public PortalAbout2020.05.21 Park Donation Agreement - Roosevelt Park Instrument # 429550 • VALLEY COUNTY,CASCADE,IDAHO 06-24-2020 14:11:07 No.of Pages:16 Recorded for:CITY OF MCCALL DOUGLAS A.MILLER Fee:$0.00 Ex-Officio Recorder Deputy:AMF Electronically Recorded by Simplifile PARK DONATION AGREEMENT This AGREEMENT, is entered into effective this 21 day of , 2020, by and between Dirk A.and Patricia J.Kempthorne,husband and wife,whose c ent address is 2081 S. White Pine Ln. Boise, Idaho 83706, (hereinafter referred to as"Kempthornes"), and the City of McCall, Idaho, whose current address is 216 East Park Street, McCall, Idaho 83638, (hereinafter referred to as "the City". Kempthomes and the City are collectively referred to as "Parties." RECITALS A. Kempthomes are the fee owners of the real property physically located at 1207 Roosevelt Ave, 1209 Roosevelt Ave., and 1210 Louisa Ave., McCall, Idaho 83638 and more particularly described as follows: McCall's First Addition, Lots 7, 8, 9, 10, 18, 19, 20 and 21, Block 15; McCall's First Addition, Lot 22, Block 15, less Tax No. 402; and, McCall's First Addition, Lot 23, Block 15, less Tax No. 402. B. Kempthomes filed an application with the City requesting vacation of a portion of the unnamed and unimproved City alley(the"Alley")which dissects the Kempthome Property (hereinafter"Kempthorne Application"). C. Roosevelt Park is a City park generally located on the corner of Roosevelt Avenue and Pine St., McCall, Idaho(hereinafter"Roosevelt Park"or the"Park"). D. Kempthomes propose to make a voluntary donation of$30,000.00 to the City to help fund improvements to Roosevelt Park which improvements are planned,as set forth herein,after final approval of the Kempthome Application. E. The McCall Area Planning and Zoning Commission issued Findings of Fact dated December 10,2019 which recommended that the Kempthome Application be approved by the McCall City Council subject to certain conditions as set forth in full in those Findings of Fact. F. Kempthomes and the City desire to memorialize the terms of their agreement. AGREEMENT WHEREFORE, Kempthomes and the City agree as follows: 1. Donation: Subject to final approval by the City of the Kempthome Application, PARKS DONATION AGREEMENT- 1 2020-4-30 r' and execution of an Ordinance vacating the Alley,Kempthornes will donate$30,000.00 to the City to be used solely to fund improvements to Roosevelt Park(the"Roosevelt Park Improvements"), as follows: a. Within thirty (30) days after final approval by the City of the Kempthorne Application and adoption of an Ordinance vacating the Alley,the Kempthornes will deposit$30,000 into a construction disbursement escrow account with First American Title, pursuant to an Escrow Agreement between the Kempthornes, the City and the Title Company that guarantees the City access to the funds to design and construct the Park, without further consent or approval from the Kempthornes. The proposed Escrow Agreement is attached hereto as "Exhibit A". b. The City will produce a preliminary design for the Roosevelt Park Improvements to Kempthornes for their review by no later than December 31, 2020. c. Kempthornes will provide their input on the preliminary design within 30 days after receiving the design. The City shall consider the input in good faith in its preparation of the final design for the Park. However,final discretion regarding the design and use of donated funds shall rest with the City. d. The City may periodically make requests to the Escrow Holder for disbursement of funds from the Escrow Account as needed to pay for the Roosevelt Park Improvements according to the terms of the Escrow Agreement. e. If the Roosevelt Park Improvements are not completed on or before December 31, 2021, the Kempthornes will be entitled to access and use the remaining available funds in the Escrow Account to complete the Roosevelt Park Improvements pursuant to the final design, or as much of the uncompleted Roosevelt Park Improvements as the remaining funds permit. The rights granted to the Kempthornes in this Para. 1, e shall not preclude the City from continuing to access and use the remaining funds in the Escrow Account for the construction of the Roosevelt Park Improvements pursuant to a plan which is presented to and approved by the Kempthomes. In such case approval shall not be unreasonably withheld. 2. Situs. This Agreement shall be construed under the laws of the State of Idaho. Venue for any dispute regarding this Agreement shall be Valley County. 3. Remedies. The parties acknowledge that the parties and their respective heirs, successors and assign, shall have all rights and remedies provided at law or in equity to enforce this Agreement. In the event of any judicial action arising from this Agreement, or attempting to enforce any right herein granted, the prevailing party in such judicial action shall be entitled to recover its attorneys fees and costs incurred. 4. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Agreement. PARKS DONATION AGREEMENT-2 2020-4-30 IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates below indicated. KEMPTHORNES: Dated: 7_, 2020 Dir A. Kempthome Dated: , 2020 Patricia J. Kempthorne MCCALL: Dated: , 2020 , Mayor ATTEST: Dated: , 2020 BessieJo Wagner, City Clerk ACKNOWLEDGEMENTS WkSLAA Al D C STATE OF \IIO, ) (ss. County of N A On this day of M a\ , 2020,before me, a Notary Public in and for said State,personally appeared Dirk A. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the PARKS DONATION AGREEMENT-3 2020-4-30 day and year in this certificate first above written. `••�P,............. .. '..y NOTAR PUBLIC FOR s We-LJ C APItY I%.sash Residing at: Ctrhp f u4v' Ave_ S W Vva soon r I rxr My Commission Expires: (VI ay 31 , 5-51-24• r d; a . i r•n.,t�,�rrl�S'r ''oa oaCT OF CC.`' .••'•�: STATE OF IDAHO, ) (ss. County of .) On this day of , 2020, before me, a Notary Public in and for said State, personally appeared Patricia J. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. NOTARY PUBLIC FOR IDAHO Residing at: My Commission Expires: STATE OF IDAHO ) (ss County of Valley ) On this day of ,2020,before me, a Notary Public, personally appeared , known or identified to me to be the Mayor of the City of McCall, Idaho, the municipality that executed the instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. PARKS DONATION AGREEMENT-4 2020-4-30 IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates below indicated. KEMPTHORNES: Dated: , 2020 Dirk A. Kempthome Dated: 4 , 2020 Patricia J. K m o e MCCALL: Dated: 4 �/ , 2020 6 t'1e , Mayor ATTEST: Dated: ,2020 BessieJo W er, Ci Clerk • " ACKNOWLEDGEMENTS "°'`' • STATE OF IDAHO, ) (ss. County of ) On this day of , 2020, before me, a Notary Public in and for said State,personally appeared Dirk A. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument,and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF. I have hereunto set my hand and affixed my official seal, the PARKS DONATION AGREEMENT-3 2020-4-30 day and year in this certificate first above written. NOTARY PUBLIC FOR IDAHO Residing at: My Commission Expires: STATE OF IDAHO, ) • (ss. q County of VA .) On this VA day of M v ,2020,before me,a Notary Public in and for said State, personally appeared Patrica J. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. , " v v Cam-_ ,,..',',�!!!llIp11111 VEW C "*.., NOTARY PUBLIC FOR IDAHO '�.•'tlo.20/ �'0'•, Residing at: (I o,st, Q !� ):* •1'' My Commission Exrlires: Iz//ro/zGr1U OTAR}- 6•41 ot sz- '4P .`. .I/Ia ffp ssssss. STATE OF IDAHO ) (ss County of Valley ) On this `)-\, day of ,2020,before me, Sp S O a Notary Public, personally appeared 9\0b 2r1, S. & , known or identified to me to be the Mayor of the City of McCall, Idaho, the municipality that executed the instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. PARKS DONATION AGREEMENT-4 2020-4-30 SARAH EDSON I NOTARY PUBLIC-STATE OF IDAHO NOTARY PUBLIC FOR IDAHO COMMISSION NUMBER 20200108 ^'�,,, on,MY COMMISSION EXPIRES 1-10-2026 Residing at: v p, QA,' ( My Commission Expires: l-10 -U U. STATE OF IDAHO ) (ss County of Valley ) On this 2,\_ day of 1\1\01, , 2020, before me, 60,�o%,\I\, C-&OY \ , a Notary Public, personally appeared Be§sieJo Wagner, known or identified to me to be the Clerk of the City of McCall, Idaho, the municipality that executed the instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. •SARAH EDSON NOTARY PUBLIC-STATE OF IDAHO NOTARY PUBLIC FOR IDAHO ' COMMISSION 20200108 g Residin at: v I �\ (� MY COMMISSION EXPIRES 1-10.202E �1 a` My Commission Expires: 1 - 10 •207-6 PARKS DONATION AGREEMENT-5 2020-4-30 r l EXHIBIT A ESCROW ACCOUNT AGREEMENT This ESCROW ACCOUNT AGREEMENT, is entered into effective this day of 2020, by and between Dirk A. Kempthorne and Patricia J. Kempthorne, husba and wife, whose current address is 2081 S. White Pine Ln. Boise, Idaho 83706, (hereinafter referred to as "Kempthornes"), and the City of McCall, Idaho, whose current address is 216 East Park Street, McCall, Idaho 83638, (hereinafter referred to as "the City"). Kempthomes and the City are collectively referred to as"Parties." RECITALS A. The Parties have entered into a Park Donation Agreement executed contemporaneously herewith which memorializes the Kempthomes' donation of$30,000.00 to the City to help fund improvements to Roosevelt Park. B. The Park improvements are planned subject to specific terms set forth in the Park Donation Agreement,which terms are incorporated herein as if fully set forth. AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and conditions hereof and other good and valuable consideration,the parties hereto agree as follows: DEPOSIT OF FUNDS 1. Initial Deposit: Subject to and within thirty (30) days after final approval by the City of the Kempthome Application and adoption of an Ordinance vacating the alley, the Kempthomes will deposit THIRTY-THOUSAND DOLLARS AND NO CENTS $30,000.00 with First American Title Company(hereinafter"Escrow Holder"),616 N. 3`d St.#101,McCall,Idaho 83638 to be held in a construction disbursement account and disbursed pursuant to the terms hereof (hereinafter"Escrow Account"). DISBURSEMENT OF FUNDS 2. Request for Disbursement of Funds: Requests for disbursements of funds may be made by the City to the Escrow Holder,without further consent of the Kempthomes,as the City completes design and construction of Roosevelt Park Improvements (the "Improvements"), subject to the following conditions: a. The City may periodically make requests to the Escrow Holder for disbursement of funds from the Escrow Account as needed to pay for the Improvements, which shall include, without limitation, design, engineering, construction and material costs. Copies of each such request shall be contemporaneously provided by the City to the following: ESCROW ACCOUNT AGREEMENT- 1 2020-4-30 M i. The Kempthomes,via e-mail at: dakempthorne(a�gmail.com and gamimama@gmail.com; and, ii. Steven J. Millemann, via e-mail at sjm(ii mpmplaw.com. iii. The copies shall be provided as aforesaid for informational purposes only. The consent of the Kempthornes to a requested disbursement shall not be required. b. The said disbursement requests shall include an itemization of the Park Improvement Project costs which will be paid from the disbursement. c. The Escrow Holder shall disburse the funds from the Escrow Account as requested by the City at any time after the elapse of five (5) days following the submittal of the request. d. If the Improvements have not been completed„as designed,on or before December 31, 2021, the Kempthornes shall be entitled to access and use the remaining funds held in the Escrow Account for the sole purpose of completing the Improvements pursuant to the final design, or as much of the uncompleted Improvements as the remaining funds permit. In such case, i. The Kempthomes shall submit a request(s)to the Escrow Holder for disbursement from the Escrow Account as costs are incurred by the Kempthomes for the completion of the Improvements. ii. Copies of each such request shall be contemporaneously provided by the Kempthomes to the City,by delivery to the City Clerk. The copies shall be provided as aforesaid for informational purposes only. The consent of the City to a requested disbursement under this Section 2, d shall not be required. iii. Each said request shall include an itemization of the Park Improvement Project costs which will be paid from the disbursement. iv. The Escrow Holder shall be required to disburse the funds from the Escrow Account as requested at any time after the elapse of five(5)days following the submittal of the request. e. Kempthomes and the City shall be entitled to receive statements confirming account balances and disbursements made from the Escrow Account, upon request made to Escrow Holder. f. Escrow Holder shall have no responsibility for obtaining,maintaining or having any involvement regarding lien releases related to the construction of the Roosevelt Park Improvements. g. Any costs and fees charged by Escrow Holder shall be paid from the Escrow Account funds, including the initial set-up fee of$500. h. Upon completion of the Improvements, the remaining balance, if any, of the Escrow Account funds shall be returned by check payable to Kempthornes or ESCROW ACCOUNT AGREEMENT-2 2020-4-30 1 as otherwise directed by Kempthornes. GENERAL TERMS 3. No liability of Escrow Holder. Kempthornes and the City acknowledge and agree that Escrow Holder,by holding such sums in trust as set forth hereunder,assumes no responsibility or liability under this Agreement or otherwise other than the responsibility to hold the sums paid to it in trust, and apply such sums as set out herein. Escrow Holder may terminate the Escrow Account at any time, after providing the parties with thirty (30) days advance written notice. In such case monies remaining in the Escrow Account shall be disposed of according to the joint instruction of Kempthomes and the City. 4. In case of controversy. If any controversy arises with regard to distribution of funds in the Escrow Account, Escrow Holder shall have the right to stop all proceedings in and performance of said escrow until satisfactory written evidence of settlement is provided, whether or not such controversy results in litigation brought by the parties, by a third person, or in an interpleader action brought by Escrow Holder. The parties hereto agree to pay all costs,damage;", j; judgments and expenses, including reasonable attorney's fees suffered or incurred by the Escrow Holder in connection with such controversy,or otherwise arising out of this Agreement,inc ' i' but without limiting a suit in interpleader brought by the Escrow Holder. •• " t �` rya 5. Solvency of Depository. Escrow Holder shall have no liability for the solvenc,`o ", - the institution in which said Funds are deposited nor the availability of funds on a certain date.jlaa.w.. parties agree to release Escrow Holder from and waive as to Escrow Holder any claim which may arise by reason of the designation of the depository. Escrow Holder is not responsible for performing any Municipal, State, or Federal tax withholding or reporting. 6. Situs. This Agreement shall be construed under the laws of the State of Idaho. Venue for any dispute regarding this Agreement shall be Valley County. 7. Remedies. The parties acknowledge that the parties and their respective heirs, successors and assign, shall have all rights and remedies provided at law or in equity to enforce this Agreement and in the event of any judicial action or proceeding in any way arising out of this Agreement, or attempting to enforce any right herein granted, the losing party shall pay the prevailing party's reasonable attorney fees and costs and Escrow Holder's reasonable attorney fees and costs. 8. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates below indicated. ESCROW ACCOUNT AGREEMENT-3 2020-4-30 KEMPTHORNES: Dated: ,2020 Dirk A. Kempthorne Dated: 416 , 2020 Patricia J. K p rn MCCALL: Dated: / , 2020 4 NI4;(k S. C�<\ES , Mayor 4o- a' ~C~',•�� A T: ated: 01,a l 2020 * SEAL s = BessieJo Wa ner, City Jerk L, IU �,•�`• irrrrm lotto APPROVED: ESCROW HOLDER First American Title Company By: Date: -ACKNOWLEDGEMENTS FOLLOW- ESCROW ACCOUNT AGREEMENT-4 2020-4-30 ACKNOWLEDGEMENTS STATE OF ,) (ss. County of .) On this day of ,2020,before me, a Notary Public in and for said State,personally appeared Dirk A. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. NOTARY PUBLIC FOR My Commission Expires: STATE OF n^A IA D , ) (ss. County of IA-0k .) On this ( ' day of Ct, , 2020,before me,a Notary Public in and for said State, personally appeared atricy J. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. /J NOTARY PUBLIC FOR St,,e. SD ,0••s1.....,,, My Commission Expires: 12 ktog 2v2-14 ' NOTq R• i l'Y:9 • ',Ct •#► •- �oti• • •••••y�••: 12/2b►••oo op'�a• ESCROW ACCOUNT AGREEMENT-5 2020-4-30 STATE OF IDAHO ) (ss County of Valley ) On this a.\ day of Vkit,%1 ,2020,before me, rah ( S 1/1O � , a Notary Public, personally appeared jo 4 S. C(ile5 , known or identified to me to be the Mayor of the City of McCall, Idaho, the municipality that executed the instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. SARAH EDSON C_(t��iNvl NOTARY PUBLIC-STATE OF IDAHO NOTARY PUBLIC FOR IDAHO COMMISSION NUMBER 20200108-1 -20 MY COMMISSION EXPIRES 1-10.2026 My Commission Expires: 1 -I 0 -ZO Z6 STATE OF IDAHO ) (ss County of Valley ) On this g4 day of M.6l,y , 2020, before me, Sxi okkk G SOr\ , a Notary Public, personally appeared BessieJo Wagner, known or identified to me to be the Clerk of the City of McCall, Idaho, the municipality that executed the instrument or the person who executed the instrument on behalf of said municipality, and acknowledged to me that such municipality executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. SARAH EDSON NOTARY PUBLIC-STATE OF IDAHO NOTARY PUBLIC FOR IDAHO COMMISSION NUMBER 20200108 My Commission Expires: 47 l b -20 Z.6 MY COMMISSION EXPIRES 1-10-2026 i J A, , ESCROW ACCOUNT AGREEMENT-6 2020-4-30 KEMPTHORNES: Dated: ©r -7_, 2020 Dirk A. Kempthome Dated: , 2020 Patricia J. Kempthome MCCALL: Dated: , 2020 , Mayor ATTEST: Dated: , 2020 BessieJo Wagner, City Clerk APPROVED: ESCROW HOLDER First American Title Company By: Date: -ACKNOWLEDGEMENTS FOLLOW- ESCROW ACCOUNT AGREEMENT-4 2020-4-30 ACKNOWLEDGEMENTS STATE OF IAcL v z (ss. County of N j A .) On this 1 day of M a , 2020, before me, a Notary Public in and for said State, personally appeared Dirk A. Ktmpthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. �0 BT rUr, . ... te •• , , Y G , i NOT RY PUBLIC FOR A-WA Q �'� B '• 11/\My Commission Expires: 31 a'-r S 2 Eatn iy i ''^T^c� 1 5-31-24 STATE OF , ) (ss. County of .) On this day of , 2020, before me, a Notary Public in and for said State, personally appeared Patricia J. Kempthorne, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. NOTARY PUBLIC FOR My Commission Expires: ESCROW ACCOUNT AGREEMENT-5 2020-4-30 KEMPTHORNES: Dated: ,2020 Dirk A. Kempthorne Dated: ,2020 Patricia J. Kempthome MCCALL: Dated: , 2020 ,Mayor ATTEST: Dated: ,2020 BessieJo Wagner,City Clerk APPROVED: ESCROW HOLDER First American Title Company dDate: c-Z/-w Gv -ACKNOWLEDGEMENTS FOLLOW- ESCROW ACCOUNT AGREEMENT-4 2020-4-30