HomeMy Public PortalAbout2013.11.25 McCall Mall Agreement with City and AddendumInstrument # 366438
VALLEY COUNTY, CASCADE, IDAHO
1-252012 12:01:11 No. of Pages: 1e
Recorded for : CITY OF MCCALL
ARCHIE N. BANBURY Feet
Ex-Officio Recorder
Index to. AGREEMENT
Agreement between Vicki Wade, dba McCall Mall and the City of McCall
Whereas, the City of McCall Urban Renewal Agency (Agency) has designed and
contracted for reconstruction of Legacy Park; and
Whereas, the McCall Mall has requested the use of City of McCall (City) property for
the purpose of providing an approved structure to be used to enclose waste receptacles;
and
Whereas, McCall Mall has applied for Design Approval of the waste enclosure (DR-08-
07); and
Whereas, the McCall Planning and Zoning Commission has expressed concerns about
the existing waste bin and propane tank enclosures; and
Whereas, the McCall Mall was invited to discuss the trash enclosure and related issues
with the Agency, and has done so; and
Whereas, the City contends that a portion of the McCall Mall building, waste enclosure
and related improvements are located on City property; and,
Whereas, An existing pathway runs along the north side of the McCall Mall property
close to the high water mark of Big Payette Lake and memorializing the existence of the
pathway by written license agreement would clarify the responsibilities of the property
owner and the public; and
Whereas, the City of McCall can issue license agreements for the use of City right's of
way and other city property; and
Whereas, the parties have identified a portion of city right of way or property as a
feasible location for the new trash enclosure; and
Whereas, the parties agree that if the current McCall Mall building is destroyed, as
defined herein below, then the new building could accommodate the trash enclosure
within the parcel's property boundaries, in which case, both license agreements
referenced herein below would, by their terms, terminate, except as provided to the
contrary herein below; and
Whereas, McCall Mall has historically used the formerly private, now public, property
(Legacy Park) to the East of the McCall Mall property to access the northern portion of
the McCall Mall property; and
Whereas, The City and/or Agency desire to replace this extension with a non -vehicular
approach to Legacy Park and are willing to reasonably accommodate McCall Mall's need
to limited vehicular access to the northern portion of the McCall mall property; and,
Agreement, Page 1 of 5
ADDENDUM
TO
AGREEMENT BETWEEN VICKI WADE, dba McCALL MALL
AND
THE CITY OF McCALL
THIS ADDENDUM TO AGREEMENT BETWEEN VICKI WADE, dba McCALL
MALL, and McCALL MALL, LLC, AND THE CITY OF McCALL ("Addendum") is made this
7 day of �tOK-r, 2013, by and between VICKI WADE and McCALL MALL, LLC, herein
the "Owner," and the CITY OF McCALL, an Idaho municipal corporation, herein the "City."
WITNESSETH:
WHEREAS, on November 13, 2008, Owner entered into an agreement with the City
wherein the parties agreed to perform and allow certain uses of the respective property of the
other and for the removal of encroachments; and
WHEREAS, the parties have not completed all the items contemplated to be performed
by each; and
WHEREAS, Owner and City desire to extend the time for completion of the remaining
terms of the Agreement to November 1, 2015.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Owner and City, the parties do hereby covenant and agree as
follows:
1. Extension. The Agreement is hereby amended to extend the date to November 1,
2015 by which date Owner and City must complete their respective obligations.
2. Incorporation Of Recitals. The above recitals are contractual and binding and are
incorporated herein as if set forth in full.
3. Terms. All other terms and conditions of the AGREEMENT BETWEEN VICKI
WADE, dba McCALL MALL AND THE CITY OF McCALL and the LICENSE
AGREEMENT are hereby reaffirmed.
4. Situs And Binding Effect. This Addendum shall be construed under the laws of
the State of Idaho. This Addendum shall inure to and bind the respective heirs, legal
representatives, successors and assigns of the parties.
IN WITNESS WHEREOF, the Owner and City do execute this Addendum the day and
year first above written.
ADDENDUM TO AGREEMENT - 1
OWNER: VICKI WADE &
McCALL MALL, LLC
OVA'
Vicki Wade
CITY: CITY OF McCALL
By:
Donald Bailey, Mayor
Attest:
BessieJo Wagner, City Clerk
STATE OF IDAHO )
:ss
County of c,itp. )
On this 2/s/ day of October, 2013, before me, the undersigned, a Notary Public in and
for said State, personally appeared VICKI WADE, known to me to be the person whose name is
subscribed to the within instrument, and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above
(SEAL)
ADDENDUM TO AGREEMENT - 2
otary Pubic for Idaho
Commission Expires: /
STATE OF IDAHO )
:ss
County of Valley )
d ��4eA._
On this 4,l4S day of-Oeteber, 2013, before me, the undersigned, a Notary Public in and
for said State, personally appeared Donald Bailey and BessieJo Wagner, the Mayor and City
Clerk, respectively, of the CITY OF MCCALL, known to me to be the persons whose names are
subscribed to the within instrument, and acknowledged to me that they executed the same on
behalf of the City of McCall and were so authorized to do so
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
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ADDENDUM TO AGREEMENT - 3
Notary Public
Commission Expires:
f.2/.//02 7
ATTACHMENT A
Whereas, the City and McCall Mall desire to resolve all outstanding issues related to
the aforesaid matters amicably and in a spirit of mutual cooperation.
Therefore, the parties agree as follows:
A. The City shall enter into a license agreement, for the purpose of allowing for the
construction, maintenance and operation of an approved waste container enclosure
upon City property adjacent to the east elevation of the McCall Mall building, and to
permit the continued existence of other alleged encroachments into City property by the
existing building, and, lower propane tank, if any, such license to be granted to the
current owner of the McCall Mall property for the area as shown on the Attachment A
hereto; and
B. Any construction of the waste container enclosure is subject to the prior design
review approval of the City of McCall Area Planning and Zoning Commission and, as
necessary, the McCall City Council; and
C. The McCall Mall owner shall grant to the City of McCall a license for a public
pathway in a mutually acceptable alignment, to connect the existing lakeside pathway
from the Park boundary to the adjoining private property located to the west of the
McCall Mall, as follows:
i. The pathway shall be equal in width to the existing pathway on the
aforesaid adjoining property located to the west of the McCall Mall property;
2. The pathway shall be improved, maintained, repaired and, as necessary,
reconstructed by the City of McCall;
3. The alignment, design and schedule and method of construction of the
pathway shall require the prior approval of the McCall Mall Owner, which approval shall
not be unreasonably withheld; and,
4. The City shall indemnify and hold the McCall Mall, and its agents and
lessees harmless regarding any claims relative to the public's use of the pathway.
D. At her own expense, the McCall Mall Owner shall remove the existing small propane
tank, which is located below the existing steps, and the waste enclosure fencing not later
than i December, 2008, and shall cease further use of the existing lower trash enclosure
area for the storage of trash; and
E. At her own expense, the McCall Mall Owner shall rotate the remaining propane tank
such that it is located solely on McCall mall property; and,
F. As part of the construction of the new trash enclosure, at her own expense, and by
not later than i December 2008, the McCall Mall Owner shall install a suitable hand
railing on the steps. The parties further agree that, during the term of the license
described in Section A above, the use of the stairs shall be restricted to access to and
from the new trash enclosure by the McCall mall, and its lessees; and
G. At her own expense, the McCall Mall Owner shall remove or relocate the existing
CATV utility located on City and/or Park property not later than i December, 2008; and
Agreement, Page 2 of 5
H. The City of McCall will grant to McCall Ma11 temporary access across the Park, using
the new vehicle access path, for the purpose of performing the above work and/or
reconstruction and landscaping of the existing waste and propane tank areas on the Ma11
property located adjacent to the Park; and
I. The City of McCall will grant to McCall Ma11 a license agreement allowing access
across the Park for vehicles required for emergency services, and building or equipment
maintenance, subject to the prior approval of the McCall Parks and Recreation Director,
except in the case of emergencies, in which case no prior permission shall be required.
This access shall not be used by the McCall mall as its primary construction access;
rather, it shall be available as aforesaid in cases in which alternative access is not
reasonably available.
J. The maximum vehicle weight for Park access shall be 65,000 pounds based on a
three axle truck.
K. Neither of the license agreements referred to herein shall be perpetual. Rather, both
license agreements shall terminate upon the earlier to occur of the following: (i) the
"destruction" of the McCall Mall building, as the same is currently defined in Section
3.11.06(E) of the McCall City Code; or (ii) any remodel of the building which has a total
construction cost equal to or greater than 50% of the replacement cost of the building,
effective the date of the commencement of the remodel; provided, the access license
described in Section I above shall survive the termination of the license agreements and
shall run in perpetuity with the McCall Mall property.
L. The final execution of this Agreement shall be contingent on the McCall Mall Owner
reaching a mutually acceptable agreement with the McCall Urban Renewal Agency
regarding the following:
1. The removal of a Cottonwood tree which is on or proximate to the
boundary between the properties;
2. The removal of the existing steps, which are lakeside of the existing lower
trash enclosure, as part of the construction and maintenance of the pathway;
3. The restoration of the portion of the McCall Ma11 property which is
affected by the aforesaid removal of the tree; and,
4. The screening and preservation of reasonable access to the lower propane
tank.
WHEREFORE, the parties have executed this Agreement on the dates indicated below.
Signatures on following page
Agreement, Page 3 of 5
UPDATED DECEMBER 29, 2011 TO ADD A NOTARY PAGE, THE ORIGINAL
DOCUMENT SIGNED IN 2008 IS ATTACHED AS ATTACHMENT B.
VICKI WADE
Dated: /- / 2
, 2012
THE HONORABLE Oofta►C
Mayor, City of McCall
Dated: / � , 2012
ATTEST:
City Clerk
Dated: p4,Lu..004, , 2012
STATE OF IDAHO, )
. ss:
County of Valley )
On this /02m— day of n(-2.rn ua.�� , 2012, before me, a
Notary Public, appeared VICKI WADE, known or identified to me to be the owner of
McCall Mall that executed the said instrument, and acknowledged to me that he/she
executed the same on behalf of the McCall Mall.
OzrA-
Notary Public for aho
Commission Expires: 0,3�/ /c .0/_3
Agreement, Page 4 of 5
STATE OF IDAHO, )
. ss:
County of Valley )
On this /3 day of , 2012 before me, a
Notary Public, appeared bonatA C• i t e,Y AND BESSIEJO WAGNER, known
or identified to me to be the Mayor and City Clerk, respectively of the City of McCall that
executed the said instrument, and acknowledged to me that they executed the same on
behalf of the City of McCall.
.�2 /).��
Notary Public for Ida
Commission Expires:
Agreement, Page 5 of 5
/3/4 //„. / 7
ATTACHMENT A
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in Zet..1,Jec .9, r /diK,R.3L,A.AC., ire the County ef.9eise,Statea/Idaho, demeandemeanorsndors
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in Wie SECONO A00/TION to the TOWNS/TA' of NB CALL.
♦ sul we de dy tAese presents'waist, release, peed!-eletm and forever
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On Mis?./2t.'day of Acne in the Veer/NS, Belere me, DeMe Rsdins,
a Iotary Pm Alec, persona lly apppeared9.8...td Cali an d lda.11Ce Call. Ausdandana wife,
and ✓. P..0M Call and Saner AMeal!, Asesdand and wife, -known es ma to ea eA a persons &Arse
names are s a dseri bed tons ne within insereemen e, and aeanetelede rd to me that they executed
the same. IN WITNESS •ItHLREOP I taus hereunto set •ny Aand and affixed my
official Baal, iA• day and year In We eortifieate first adore written. - e
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are se, sir Mid to Ma within instrument andachnewledyed to na that they executed Ms same.
IN WITNESS W/tEREOP lAaue Aereunea we my Arend and allied my
ej/Weisel seal, the day and year en 1q::, eart{fteatafirst aloud Item:,
,ayalatmissien exptrosliVIOrdA1_/9/ 1 1�t: %I. r)"""A^ 1�,
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round en Ms manner re, mired Bylaw. IN WITNESS WNEREOP!Arne." hereunto sot my Aare! at
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ATTACHMENT B
Agreement between 'Vicki Wade, dba McCall Mall and the City of McCall
Whereas, the City of McCall Urban Renewal Agency (Agency) has designed and
contracted for reconstruction of Legacy Park; and
Whereas, the McCall Mall has requested the use of City of McCall (City) property for
the purpose of providing an approved structure to be used to enclose waste receptacles;
and
Whereas, McCall Mall has applied for Design Approval of the waste enclosure (DR-08-
07); and
Whereas, the McCall Planning and Zoning Commission has expressed concerns about
the existing waste bin and propane tank enclosures; and
Whereas, the McCall Mall was invited to discuss the trash enclosure and related issues
with the Agency, and has done so; and
Whereas, the City contends that a portion of the McCall Mall building, waste enclosure
and related improvements are located on City property; and,
Whereas, An existing pathway runs along the north side of the McCall Mall property
close to the high water mark of Big Payette Lake and memorializing the existence of the
pathway by written license agreement would clarify the responsibilities of the property
owner and the public; and
Whereas, the City of McCall can issue license agreements for the use of City right's of
way and other city property; and
Whereas, the parties have identified a portion of city right of way or property as a
feasible location for the new trash enclosure; and
Whereas, the parties agree that if the current McCall Mall building is destroyed, as
defined hereinbelow, then the new building could accommodate the trash enclosure
within the parcel's property boundaries, in which case, both license agreements
referenced hereinbelow would, by their terms, terminate, except as provided to the
contrary hereinbelow; and
Whereas, McCall Mall has historically used the formerly private, now public, property
(Legacy Park) to the East of the McCall mall property to access the northern portion of
the McCall Mall property; and
Whereas, The City and/or Agency desire to replace this extension with a non -vehicular
approach to Legacy Park and are willing to reasonably accommodate McCall Mall's need
to limited vehicular aerpss to the northern portion of the McCall mall property; and,
Agreement, Page i of 4
ATTACHMENT B
Whereas, the City and McCall Mall desire to resolve all outstanding issues related to
the aforesaid matters amicably and in a spirit of mutual cooperation.
Therefore, the parties agree as follows:
A. The City shall enter into a license agreement, for the purpose of allowing for the
construction, maintenance and operation of an approved waste container enclosure
upon City property adjacent to the east elevation of the McCall Mall building, and to
permit the continued existence of other alleged encroachments into City property by the
existing building, and, lower propane tank, if any, such license to be granted to the
current owner of the McCall Mall property for the area as shown on the Attachment A
hereto; and
B. Any construction of the waste container enclosure is subject to the prior design
review approval of the City of McCall Area Planning and Zoning Commission and, as
necessary, the McCall City Council; and
C. The McCall Mall owner shall grant to the City of McCall a license for a public
pathway in a mutually acceptable alignment, to connect the existing lakeside pathway
from the Park boundary to the adjoining private property located to the west of the
McCall Mall, as follows:
1. the pathway shall be equal in width to the existing pathway on the
aforesaid adjoining property located to the west of the McCall Mall property;
2. the pathway shall be improved, maintained, repaired and, as necessary,
reconstructed by the City of McCall;
g, the alignment, design and schedule and method of construction of the
pathway shall require the prior approval of the McCall Mall Owner, which approval shall
not be unreasonably withheld; and,
4. the City shall indemnify and hold the McCall Mall, and its agents and
lessees harmless regarding any claims relative to the publics use of the pathway.
D. At her own expense, the McCall Mall Owner shall remove the existing small propane
tank, which is located below the existing steps, and the waste enclosure fencing not later
than 1 December, 2oo8, and shall cease further use of the existing lower trash enclosure
area for the storage of trash; and
E. At her own expense, the McCall Mall Owner shall rotate the remaining propane tank
such that it is located solely on McCall mall property; and,
F. As part of the construction of the new trash enclosure, at her own expense, and by
not later than 1 December 2oo8, the McCall Mall Owner shall install a suitable hand
railing on the steps. The parties further agree that, during the term'of the license
described in Section A above, the use of the stairs shall be restricted to access to and
from the new trash enclosure by the McCall mall, and its lessees; and
G. At her own expense, the McCall Mall Owner shall remove or relocate the existing
CATV utility located on City and/or Park property not later than 1 December, 2oo8; and
Agreement, Page 2 of 4
ATTACHMENT B
H. The City of McCall will grant to McCall Mall temporary access across the Park, using
the new vehicle access path, for the purpose of performing the above work and/or
reconstruction and landscaping of the existing waste and propane tank areas on the Mall
property located adjacent to the Park; and
I. The City of McCall will grant to McCall Mall a license agreement allowing access
across the Park for vehicles required for emergency services, and building or equipment
maintenance, subject to the prior approval of the McCall Parks and Recreation Director,
except in the case of emergencies, in which case no prior permission shall be required.
This access shall not be used by the McCall mall as its primary construction access;
rather, it shall be available as aforesaid in cases in which alternative access is not
reasonably available.
J. The maximum vehicle weight for Park access shall be 65,000 pounds based on a
three axle truck.
K. Neither of the license agreements referred to herein shall be perpetual. Rather, both
license agreements shall terminate upon the earlier to occur of the following: (i) the
"destruction" of the McCall Mall building, as the same is currently defined in Section
3.11.06(E) of the McCall City Code; or (ii) any remodel of the building which has a total
construction cost equal to or greater than 50% of the replaePment cost of the building,
effective the date of the commencement of the remodel; provided, the access license
described in Section I above shall survive the termination of the license agreements and
shall run in perpetuity with the McCall Mall property.
L. The final execution of this Agreement shall be contingent on the McCall Mall Owner
reaching a mutually acceptable agreement with the McCall Urban Renewal Agency
regarding the following:
1. the removal of a Cottonwood tree which is on or proximate to the
boundary between the properties;
2. the removal of the existing steps, which are lakeside of the existing lower
trash enclosure, as part of the construction and maintenance of the pathway;
3. the restoration of the portion of the McCall Mall property which is affected
by the aforPsa' d removal of the tree; and,
4. the screening and preservation of reasonable access to the lower propane
tank.
WHEREFORE, the parties have executed this Agreement on the dates indicated below:
Signatures on following page
Agreement, Page 3 of 4
ATTACHMENT B
4Pszt- 6d4de
VICKI WADE
Dated:
HONORABLE NORBERT KULESZA,
Mayor, City of M
Dated: l i � `i , 2008
ATTEST: �� re7z ! 11et 1 l
City Cleric
Dated: �///;
,2008
ADDENDUM
TO
AGREEMENT BETWEEN VICKI WADE, dba McCALL MALL
AND
THE CITY OF McCALL
THIS ADDENDUM TO AGREEMENT BETWEEN VICKI WADE, dba McCALL
MALL, and McCALL MALL, LLC, AND THE CITY OF McCALL ("Addendum") is made this
7 day ofJIc gc*.r, 2013, by and between VICKI WADE and McCALL MALL, LLC, herein
the "Owner," and the CITY OF McCALL, an Idaho municipal corporation, herein the "City."
WITNESSETH:
WHEREAS, on November 13, 2008, Owner entered into an agreement with the City
wherein the parties agreed to perform and allow certain uses of the respective property of the
other and for the removal of encroachments; and
WHEREAS, the parties have not completed all the items contemplated to be performed
by each; and
WHEREAS, Owner and City desire to extend the time for completion of the remaining
terms of the Agreement to November 1, 2015.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Owner and City, the parties do hereby covenant and agree as
follows:
1. Extension. The Agreement is hereby amended to extend the date to November 1,
2015 by which date Owner and City must complete their respective obligations.
2. Incorporation Of Recitals. The above recitals are contractual and binding and are
incorporated herein as if set forth in full.
3. Terms. All other terms and conditions of the AGREEMENT BETWEEN VICKI
WADE, dba McCALL MALL AND THE CITY OF McCALL and the LICENSE
AGREEMENT are hereby reaffirmed.
4. Situs And Binding Effect. This Addendum shall be construed under the laws of
the State of Idaho. This Addendum shall inure to and bind the respective heirs, legal
representatives, successors and assigns of the parties.
IN WITNESS WHEREOF, the Owner and City do execute this Addendum the day and
year first above written.
ADDENDUM TO AGREEMENT - 1
OWNER: VICKI WADE &
McCALL MALL, LLC
Vicki Wade
CITY: CITY OF McCALL
By:
Attest:
i
BessieJo Wagber, City Clerk
STATE OF IDAHO )
:ss
County of (,a-tc,/L )
Donald Bailey, Mayor
On this 2/s/ day of October, 2013, before me, the undersigned, a Notary Public in and
for said State, personally appeared VICKI WADE, known to me to be the person whose name is
subscribed to the within instrument, and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above
(SEAL)
ADDENDUM TO AGREEMENT - 2
otary Pubic for Idaho
Commission Expires: /
0-4n/ o
STATE OF IDAHO )
:ss
County of Valley )
On this olS day of-Oeteber, 2013, before me, the undersigned, a Notary Public in and
for said State, personally appeared Donald Bailey and BessieJo Wagner, the Mayor and City
Clerk, respectively, of the CITY OF MCCALL, known to me to be the persons whose names are
subscribed to the within instrument, and acknowledged to me that they executed the same on
behalf of the City of McCall and were so authorized to do so
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
.e0741%)E SAf/
4.
4
(SEA - p 4,0 Notary Public forrl��a.,
yea. Co «`� Commission Expires: //ow/ %
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ADDENDUM TO AGREEMENT - 3