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HomeMy Public PortalAbout2022.08.30 License Agreement Chubby Squirrel LLCInstrument # 452354 VALLEY COUNTY, CASCADE, IDAHO 08-30-2022 10:46:32 No. of Pages: 13 Recorded for: CITY OF MCCALL DOUGLAS A. MILLER Fee: $0.00 Ex -Officio Recorder Deputy: AMF Electronically Recorded by Simplifile When recorded, return to: Chubby Squirrel, LLC 350 N. 9th Street, Suite 200 Boise, Idaho 83702 Attn: Tracy V. Vance, Esq. TEMPORARY LICENSE AGREEMENT THIS TEMPORARY CENSE AGREEMENT (the "Agreement") is made and entered into this 3(j day of US -F— , 2022, by and between Chubby Squirrel, LLC, an Idaho limited lia ility company ("Licensor") and The City of McCall (the "City"). RECITALS A. Licensor owns the real property located west of 3rd Street (Highway 55) and south of Deinhard Lane, in the City of McCall, Valley County, Idaho, depicted as "Parcel A" in Exhibit A and more particularly described on Exhibit B, both exhibits attached to and made a part of this Agreement (the "Property"). B. The City desires a license to use the portion of the Property located adjacent to 3rd Street (Highway) depicted as "Proposed License Area" on Exhibit C and more particularly described in Exhibit D, both exhibits attached to and made a part of this Agreement (the "Licensed Property"), for the limited purposes set forth in this Agreement. Licensor is willing to extend such license to the City, upon the terms set forth in this Agreement. C. This Agreement shall not be operated or be construed in any way to revoke, alter or amend any existing easements in favor of the City or the Public over, through or across the Property. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual representations, covenants and agreements set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement do hereby covenant and agree as follows: 1. License; License Not Exclusive. 1.1 On the terms and conditions set forth in this Agreement, Licensor hereby extends to the City a license on, over, across and under the Licensed Property for the following uses and purposes ("Authorized Use") and no others: LICENSE AGREEMENT — CITY OF McCALL 1 License_Agreement.McCall 3rd Street.CL.2022.05.10.D.TVV When recorded, return to: Chubby Squirrel, LLC 350 N. 9th Street, Suite 200 Boise, Idaho 83702 Attn: Tracy V. Vance, Esq. TEMPORARY LICENSE AGREEMENT THIS TEMPORARY CENSE 4GREEMENT (the "Agreement") is made and entered into this SO day of ut , 2022, by and between Chubby Squirrel, LLC, an Idaho limited lia ility company ("Licensor") and The City of McCall (the "City"). RECITALS A. Licensor owns the real property located west of 3`d Street (Highway 55) and south of Deinhard Lane, in the City of McCall, Valley County, Idaho, depicted as "Parcel A" in Exhibit A and more particularly described on Exhibit B, both exhibits attached to and made a part of this Agreement (the "Property"). B. The City desires a license to use the portion of the Property located adjacent to 3rd Street (Highway) depicted as "Proposed License Area" on Exhibit C and more particularly described in Exhibit D, both exhibits attached to and made a part of this Agreement (the "Licensed Property"), for the limited purposes set forth in this Agreement. Licensor is willing to extend such license to the City, upon the terms set forth in this Agreement. C. This Agreement shall not be operated or be construed in any way to revoke, alter or amend any existing easements in favor of the City or the Public over, through or across the Property. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual representations, covenants and agreements set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement do hereby covenant and agree as follows: 1. License; License Not Exclusive. 1.1 On the terms and conditions set forth in this Agreement, Licensor hereby extends to the City a license on, over, across and under the Licensed Property for the following uses and purposes ("Authorized Use") and no others: LICENSE AGREEMENT — CITY OF McCALL 1 License Agreement.McCall_3rd Street.CL.2022.05.10.D.TVV The City shall have access to the Licensed Property for the purpose of reasonable maintenance of the landscaping identified on Exhibit C ("Improvements'), which maintenance shall include maintaining, certain features consisting of grass, trees, perennials, and landscape irrigation system in accordance with standard City requirements for other similarly situated sidewalk and improvements located in the City of McCall and along 3rd Street (Highway 55). City shall not be responsible for the replacement or repair of any damaged Improvements that is not caused by City's maintenance of the Improvements. The City may also access and enter upon the Licensed Property for the purpose of removal of snow as required by the City for other similarly situated sidewalk and improvements located in the City of McCall and along 3rd Street (Highway 55). 1.2 This Agreement does not extend to the City the right to use the Licensed Property to the exclusion of Licensor to the extent authorized by law. The City's Authorized Use is subject to Licensor's rights to use the Licensed Property provided Licensor's use does not severely impact or materially impair the City's Authorized Use. The City's Authorized Use is also subject to the rights of holders of easements of record or obvious on inspection of the Licensed Property. In addition, this Agreement it is not intended to, and shall not, preclude or impede the ability of Licensor to enter into other similar agreements in the future allowing third parties to also use the Licensed Property provided said use does not impact or impair the City's Authorized Use. 2. Construction or Installation of Improvements. Any repairs or maintenance of the Improvements shall be as required to satisfy applicable laws, the City's policies and good engineering practices. 3. Waiver and Estoppel Statement by the City. The City acknowledges and agrees that the license granted herein is temporary, non -transferable, andmerely a permissive use of the Licensed Property pursuant to this Agreement. The City hereby waives and estops itself from asserting any claim that the license is in any way irrevocable because the City has expended funds on the Improvements. 4. Term. The term of this Agreement will commence upon the date of this Agreement and will continue thereafter. Either the Licensor or the City may terminate this Agreement, with or without cause, which termination shall be effective following 30 -days advance written notice of termination given to the other party. 5. Fee. There is no fee for the City's Authorized Use of the Licensed Property under this Agreement. LICENSE AGREEMENT — CITY OF McCALL 2 6. Maintenance, Failure to Maintain, Relocation of Utilities. 6.1 Licensor, at its sole cost and expense, shall construct and install the Improvements, and within Two Hundred (200) days of written notice, provide any plant material or landscaping replacement reasonably required to maintain the Licensed Property Improvements consistent with the Landscaping Plan at Exhibit D. 6.2 At its sole cost and expense, the City shall conduct the Authorized Use according to all applicable laws, ordinances, and the standard policies of the City along 3rd Street and sound engineering practices. The City shall have access over, across and under the Licensed Property for the purposes of accomplishing such snow removal, repair and maintenance. 6.3 If any of the remainder of Licensor's Property adjacent to the Licensed Property is damaged as a result of the performance by the City of the Authorized Use, the City, at its sole cost and expense, shall correct such damage and restore the Property and the Licensed Property to the same condition it was in prior to the occurrence of such damage. 6.4 Notwithstanding the provisions of section 6.2, should an emergency exist related to the City's use of this license which threatens the stability or function of the Property or the Licensed Property or the safety of the public use thereof, Licensor shall have the right to immediately perform emergency repairs. 7. Permit. If any proposed reconstruction, relocation or maintenance of the Improvements requires the City to obtain a permit or approval from the Idaho Department of Transportation ("ITD"), the City shall first obtain such permit or approval before commencing such work, and otherwise comply with the conditions set forth therein. 8. No Title in the City. The City shall have no right, title or interest in or to the Licensed Property other than the right to temporarily use the same pursuant to the terms of this Agreement. 9. Restoration on Termination. The City may terminate its use and occupancy of the license herein granted at any time in accordance with section 4 above. Upon termination of this Agreement, the City shall vacate and cease to access and use the Licensed Property leaving the same in similar condition as presented to the City normal wear and tear excepted, and excepting any damage caused or proximately caused by Licensor. 10. Indemnification. Only to the extent permissible under Idaho law, including but not limited to the provisions of Idaho Constitution Article VIII Sect. 4, the City hereby indemnifies and holds Licensor harmless from and against any and all claims or actions LICENSE AGREEMENT — CITY OF McCALL 3 for loss, injury, death, damages, mechanics and other liens, arising out of the failure or neglect of the City, the City's employees, contractors and agents, to properly and reasonably make Authorized Use of the Licensed Property or properly repair or maintain the Improvements thereon, and including any attorney fees and costs that may be incurred by Licensor in defense of such claims or actions indemnified against by the City hereunder. Only to the extent permissible under Idaho law, including but not limited to the provisions of Idaho Constitution Article VIII Sect. 4, for claims or actions arising out of failures or neglects occurring during the term of this Agreement, the City's obligations pursuant to this section shall survive the termination of this Agreement. 11. Compliance with Law; Waste and Nuisances Prohibited. In connection with the City's use of Licensed Property, throughout the term of this Agreement the City covenants and agrees to: (i) comply and observe in all respects any and all, federal, state and local statutes, ordinances, policies, rules and regulations, including, without limitation, those relating to traffic and pedestrian safety, (ii) obtain any and all permits and approvals required by any other unit of government; and (iii) commit no waste or nuisance on the Licensed Property. These covenants shall survive the termination of this Agreement. 12. Assiinment. The City shall not sell, assign or otherwise transfer this Agreement, the license herein extended, or any of its rights hereunder except with the prior written consent of Licensor, which consent will not be granted unless the assignee assumes all obligations, warranties, covenants and agreements of the City herein contained. 13. Attorneys' Fees. In any suit, action or appeal therefrom to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees. 14. Notice. Any notice under this Agreement shall be in writing and be delivered in person, or by United States Mails, postage prepaid, or by public or private 24 -hour overnight courier service (so long as such service provides written confirmation of delivery), or by verified electronic transmission. All notices shall be addressed to the party at the address set forth below or at such other addresses as the parties may from time to time direct in writing by notice given the other. Any notice shall be deemed to have been given on (a) actual delivery or refusal, (b) three days following the day of deposit in the United States Mail, (c) the day of delivery to the overnight courier, or (d) the day of verified electronic transmission. Licensor: Chubby Squirrel, LLC 350 N. 9th Street, Suite 200 Boise, Idaho 83702 Attn: Michael N. Fery LICENSE AGREEMENT — CITY OF McCALL 4 The City: City of McCall 216 E. Park St. McCall, ID 83686 Attn: Parks Department 15. Successors and Assigns. This Agreement, the license herein extended, and the covenants and agreements herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and, if consented to by Licensor under Section 12, Licensor's assigns. 16. Exhibits. All exhibits attached hereto and the recitals contained herein are incorporated herein as if set forth in full herein. 17. Recordation. This Agreement may be recorded by either party upon execution in the official real property records of Valley County, Idaho. 18. Warranty of Authority to Execute. 18.1 The person executing this Agreement on behalf of the City represents and warrants due authorization to do so on behalf of the City, and that upon execution of this Agreement on behalf of the City, the same is binding upon, and shall inure to the benefit of, the City. 18.2 The person executing the Agreement on behalf of Licensor represents and warrants due authorization to do so on behalf of Licensor, and that upon execution of this Agreement on behalf of licensor, the same is binding upon, and shall inure to the benefit, of Licensor. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed the day, month and year first set forth above. LICENSE AGREEMENT — CITY OF McCALL 5 CHUBBY SQUIRREL: dChubby Squirrel, LLC, an Idaho limited liability company By: Michael ery, its Manager STATE OF IDAHO ) ) ss. County of Ada ) The foregoing instrument was acknowledged before me on Michael N. Fery, as the Manager of Chubby Squirrel, LLC, liability company. 0 TRACY V. VANCE COMMISSION #31149 NOTARY PUBLIC STATE OF IDAHO MY COMMISSION EXPIRES 12/16/2022 , 2022 by Idaho limited y c fission Expires: l2-/-1s)21- LICENSE AGREEMENT — CITY OF McCALL 6 CITY: City of McCall By: ' o er S. C, i eS Its: (*sup( STATE OF IDAHO ) ) ss. County of Ada ) The foregoing instrument was acknowledged before me n 30 20_22 by , as the W4.y0 r- of e �t� c� eCcik BESSIEJO WAGNER COMM NO. 52467 NOTARY PUBLIC STATE OF IDAHO MY COMMISSION EXPIRES. JULY 24, 2026 LICENSE AGREEMENT — CITY OF McCALL 7 EXHIBIT A RECORD OF SURVEY JVR ROB COT,LINS LOCATED IN LOC.-IA V IN THE Ir 1/2 OF 77-fE S I/2 OF Sht'Ii0N 16, T.IBA+, E3 , RA, CITY OF YeC(LL VALLEY. COUNTY IDAHO 11ARC1I 2005 DANIIARA UK' 1 Ii R1ND /Y 6L4.�6 \TM. C f/r sccx av r6 RICOh POSMN `ca2v. w e 256'142 YEOISlIa'Nt .ANC J11.1 5 Et#YEMf ➢FSI. E75pi2I 2Ar a s .0G COMIC' t airs'. owd9. r ' YJ[ N.uq } \ L".dSlr Y2$ Si \ NNF i?$T 871725 11 �t aw-eL z's 58e SVAVE 3!3.19' fuulry VZ. >•FOAn re r 1./.1 lasN1±7 arn;x IF 5Sr/6V/1 LICENSE AGREEMENT — CITY OF McCALL 8 EXHIBIT B Description of Premises A PARCEL OF LAND LOCATED IN THE NORTH 1/2 OF THE SOUTH 1/2 OF SECTION 16, TOWNSHIP 18 NORTH, RANGE 3 EAST, BOISE MERIDIAN, MCCALL, VALLEY COUNTY, IDAHO, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH 1/4 CORNER OF SAID SECTION 16; THENCE, NORTH 00° 36' 00" EAST A DISTANCE OF 2047.38 FEET TO THE EAST RIGHT OF WAY OF STATE HIGHWAY 55; THENCE, NORTH 16° 46' 22" WEST A DISTANCE OF 50.22 FEET TO THE POINT OF BEGINNING; THENCE, NORTH 16° 46' 22" WEST A DISTANCE OF 210.05 FEET; THENCE, DEPARTING SAID RIGHT OF WAY SOUTH 89° 35' 40" EAST A DISTANCE OF 477.22 FEET; THENCE, SOUTH 00° 35' 42" WEST A DISTANCE OF 198.10 FEET; THENCE, NORTH 89° 57' 05" WEST A DISTANCE OF 414.53 FEET TO THE POINT OF BEGINNING. LICENSE AGREEMENT — CITY OF McCALL 9 EXHIBIT C Proposed License Area [on following page] LICENSE AGREEMENT — CITY OF McCALL 10 > .1 �E r BEGIN PROJECT Sta. 494+ 42.32, 11.00' ICJ p 00 N. 1177303.72 ________ E. 2535042. 00, w 1 W' I w4 R tW / F Jnlb^ a-0 o �o - - - 0 ✓o 00 \ E \ a 0 IW I31 k 4. `Dw —494\_ EASEMENT INSTRUM ENT NO . 160239 BURIED TELEPHONE (CONTINENTAL TE LEPHONE OF THE WEST) • RPM00000168060 R & S HOTELS LLC 211 S. 3RD ST MCCALL, ID 83638 -9 i SH55 --119.6 _ air/ —1 P— — P — P" 2 0, 0' — P— _ _ P — _ — . — _ — P— _ •.— _ P _ p _ _ — p— _ — . — , _ J EASEMENT INSTRUMENT NO, 288420PERMANENT LANDSCAPING, PEDESTRIAN, AND UTILITY ro EA SEM ENT (Hatched Blue Area • RPM00000168022 CHUBBY SQUIRRELL LLC 209 S. 3RD ST MCCALL, ID 83638 = Prop osed License Ar ea ro • RP 9400000167960 LN REAL ESTATE LLC 400 E. DEINHARD LANE MCCALL, ID 83638 R EVISIO N BY DATE DESIGN E. DETERS DRAWN J. STURM CHECKED IC OIR11L7SON A PPRO VED HCAR TER HORROCKS 0E/GINGERS 2775 W. Navigator Dr. So lle 210 M erldlen, ID 83642 (208)-895-2520 City of McCall PUBLIC WORKS DEPARTMENT 815 N. SAM SO N TRAIL M CCA LL, IDAHO 83638 208.634.8943 Parcel Parcel ID Na . 10Numb er In40400016.032 C RP MOS000167960 UN REAL RP M00000164]20 VIC VILL AGE McC ALL C AR.000001 64715 I II. SIMPL OT C OMPANY LL R .a6,d oweer RP M00000161645 5TA :,I DAHO RPN0000 01614]5 RPN0600036163D CITY OF McCALL VALLEY COUNTY, IDAHO DEINHARD LANE, SH-55 TO SA MSON TRAIL SH-55 RIGHT OF WAY SHEETS PAW VERIFY SCALE PROJECT OLa rwes d ream., DATE FIENOTE DRAWING N O, SHEET N0 . 3 OF 6 EXHIBIT D Landscaping Plan [on following page] LICENSE AGREEMENT — CITY OF McCALL 11 General Notes AR ANNO R P REV ENT TH E ram eraF IWE RTAr RARE R CINCH TIE EVERitfil .E.VEMEEINEPSZEV ARALLEL a R «PPPTEPT!P R TER TREE PLA NTI NG DETAIL CLIMERCILL St. R ELE ASE FERTILIZE R TABLETS SIDES Of HOLE ROUGH • IJNEIEN °C:E C®N SLEn N'e°`: F'BShP er Al & °'d'O�",:;«". oo � N�';4& �a# .,:OIL NTS Pla nt Sched ule S COmmON NW. BOT ANI CAL RE » .. E wT ® T<LL OREG ON PRoE BERBER'S SPOOL • HAW W N . su N.P me SPIRE OEBSELORNAR 'GALLON t. N x E S, R.ET A SNLI�BNVAOOGELLINL 'GALLO N eHx.. 5::B 4�T BEiLL A PAR,RPER . SCALPE R a N XSS• E, 1o, ►` ON o .-.R PSELBOTS,S. MENZIES., B SP N x SO , Exi9inW LIVE TREE 'OREr u.N Ex¢TINB ExTIN. � �Exmi�N�c po�� oSTER a 3 LANDSCAPE PLAN REVISION. FILE NO . PROJECT NO: DRAWING' U .0 LANDSC APE PLAN