Loading...
HomeMy Public PortalAbout1996 Park Land lease for Marina05-02-05 13:04 From-FAIRFIELD & FREEMAN 6056431094 T-240 P.02/07 F-623 Iz I Er, E-5 PARK LAND LEASE FOR MARINA PURPOSES �G This Lease is made March 1996, by and between. the City of McCall, an Idaho municipal corporation ("City"), and Sta-Bax, Inc., an Idaho business corporation, of McCall, Idaho ("SI"), for and in consideration of the mutual promises herein contained. Ba4voupd 1 r � 0s 1. City is the owner in fee simple of the land described on Exhibit " 13" ("Subject Property") located between East Lake Street and the high water mark (as defined for purposes of title) of Payette Lake, and holds it for the use of the people of McCall and their guests as public park and recreation land. 2. SI leases submerged property adjacent to the west from the state Department of Lauds. 3. SI owns a marina built on this submerged property in connection with which concrete pads and paving have been constructed on the Subject Property, and has used the Subject property for storage and for access and parking; buried pipelines lie under the property for the delivery of fuel to the marina. 4, City views the marina as an extension of the park and recreation use of the Subject Property, provided that is not administered to exclude the people of McCall. City prohibits under its generally applicable ordinances any commercial use of the parks without prior consent of Council, which has been obtained, Leases 6. Authorization of Ilse. City leases to ST, and SI leases from City, the property described on Exhibit "B. " Pursuant to this Lease, SI is authorized by this Lease to attach a marina to the Subject Property and to make use of the Subject Property for access to the high water mark and the marina. The placement of and plans for such marina are subject to approval by the State of Idaho Department of Lands, and SI shall obtain that approval before commencing any additional construction of such marina. Such marina shall comply with the Shorelines and Rivers Environs zoning restrictions, MCC 3-15-040 (I3) 4, an excerpt of which is set out on page 4 of this lease as Exhibit "A." 7. Use and_Beneftt. The marina must exist for the use and benefit of the people of McCall, permanent or seasonal. The right to use the marina or any slip therein may not be sold or limited for more than one summer season to persons not having a dwelling nexus with McCall. If made available to persons not residing as indicated above, such availability shall be on an open market basis and for one season or less. The reasons for this provision are that the amount of publicly owned waterfront within the,City of McCall is severely limited, the health and welfare of the residents of McCall requires recreational access to the Lake (the Lake being a reason why they reside in McCall), and the land in question is public park land which shall not be shut off from use by residents of McCall. Nothing herein shall be construed to prevent SI from honoring existing commitments to its existing customers, 8. Rent., Until April 6, 2404, rent shall be payable in the amount of $1.00 per annum, on or before April 7 of each year. As this Lease creates for the first time a right of possession in SI after April 6; 2004, rent due April 7, 2004 and thereafter shall be subject to negotiation, and shall reflect concepts such as rent for exclusive occupancy of the Subject Property, less the value of use restrictions, and/or percentage rent as to the gross receipts of such marina, and City should have the LEASE OF PARK LAND FOR MARINA City and SE printed March 1, 1996 approved by Council, Febrna•v 74 IQQ6 page 1 EML4311 L , STATHIS 0643 t 05-02-05 13:04 From-FAIRFIELD & FREEMAN 8058431094 7-240 P.03/17 F-623 right to audit records to determine whether the grsreceipts f epts haveach been cs accurately stated. Such rent shall be payable annually on April receipts' for these purposes would include not only cash received, but also the fair y market rental value of any slips the use of which is appurtenant to real property; 9. Slip&foLguergeMlerekease, A reasonable number of slips (batand/or not thless McCallss n. two) shall be provided for use by the McCall Police Department Fire Department/McCall Rural Fire District/McCall Ambulance, for boats, fireboats, and jet skis officially used by such agencies, without consideration other than the execution of this Lease. 10. eview an C ns ctlate Any physical change in the marina and upland improvements associated with it are subject to design review by the Parks & Recreatiou Committee, with right of appeal to the City Council, and to zoning approval by the Planning & Zoning Commission, both of which approvals must be received prior to construction. Once SI undertakes consauctiou, it shall be pursued with due diligence toward a timely completion and finished appearance, in order that park land not be encumbered by work in progress for an excessive time. Tertrl. ardRenewal. The initial term of this Lease shall be until and including April 6, 2004. This Lease may be renewed for one or more, but not exceeding three, additional ten year terms for so long as the rent and other conditions of the Lease are faithfully adhered to, and subject to completion of renegotiation of rent prior to the commencement of each such term. If SI determines that it does wish to renew this Lease, it shall give notice of that fact during the last six months of the expiring tern. 12. Use Maintenas nceInsurance. The Subject Property shall be used solely for access to such marina, and for reasonable parking not obstructing the below - discussed pathway. SI shall maintain any such marina, and other improvements in a condition safe for public use, and otherwise in good maintenance arid repair. SI is encouraged to install reasonable landscaping on Subject Property, and after April 6, 2004 may be required to do so. SI shall screen any dumpster from public view, and shall not store inventory on Subject Property. SI shall encourage its customers not to park on the paint -marked sidewalk or path, and shall not itself park or store anything within the confines of such pathway. SI shall provide insurance against personal injury and property damage occurring on or near such marina and improvements, or on the Subject Property, in the amount of not less than $1,000,000, and shall cause the City to be an additional named insured. Should inflation or developments in the law of personal injury liability make the true value of that amount of such insurance inadequate as compared with 1996 values, it shall be increased to a commercially reasonable level. Certificates of such insurance shall be filed with the City Clerk annually with the payment under paragraph 8 above. 10. Termination for Cause. This Lease may be terminated by the City in the event of a breach by SI, by giving thirty days written notice. City shall not terminate this Lease by reason of a non -monetary breach of this Lease if SI in response to such notice and within such 30 days both gives notice to City that it intends to, and in fact does, commence and diligently pursue a cure of such non -monetary breach to the point of actual cure. 11. Removal of Imoyements a terlerminatian, Unless SI obtains the prior written consent of City to some other action, SI shall have sixty days after termination by the City to remove the marina and any other structure extending above the surface of the ground; such period of time shall be computed excluding times when the ground is covered by snow. Any such marina or other structure after the expiration page 2 11. LEASE OF PARK LAND FOR MARINA City and SI, printed March I, 1996 approved by Council, February 29,1996 STATFIIS 0644 05-02-05 13:05 From-FAIRFIELD & FREEMAN 0056431004 T-240 P.04/07 F-623 of such sixty days, shall at the option of the City become the property of the City. Any such left structure which in the opinion of the City is not of value, may be removed and disposed of by the City for the account of SI, 12. Beirs, Successors and Assign This Lease shall bind and inure to the benefit of the heirs, successors and assigns of the parties. 13. Rule of Cans 'on. This Lease shall be construed in accord with its evident purposes_, to facilitate the logical extension of the urban road system across the property in accord with sound engineering practice not unnecessarily disruptive to development, and to compensate the City and the public for granting near exclusive use of park land and access from park land CO the water. 14. Dispute Resob tion. Disputes among the parties shall be resolved as follows. a. Any dispute between the parties respecting the interpretation or implementation of this Lease shall be submitted to alternative dispute resolution as a pre -condition to any litigation. Such alternative dispute resolution shall be non -binding and inadmissible in any subsequent litigation. b. If any legal action or proceeding related to this Lease not covered by theabove alternative dispute resolution clause is begun by any parry to this I ease, the prevailing party shall be entitled to recover its costs, damages, and expenses, including commercially reasonable attorneys fees and witness and expect witnc fees, incurred to prosecute or defend the same, whether or not such action or proceeding is litigated or prosecuted to judgment. The City shall be entitled to sup:t, fees, if the prevailing party, notwithstanding the fact that the City Attorney is salaried. The prevailing party will be that party who was awarded judgment as .i result of trial or arbitration, unless the dispute was only as to the amount of a cla: conceded to exist, in which case the finder of fact shall determine the identity of he prevailing party. 15, Headings an Aid to Reader Only,,, The headings of paragraphs and articles of this Lean are provided as a guide to the reader, and shall not in any way affect the meaning or interpretation of this Lease. 16, Cxoverni.g Law. This Lease is governed by the law of Idaho, and Valley County, Idahc is the proper venue, 17. Further Acts Deeds Documents Necessary to Fu_ ,pries._ Except as otherwise provided herein, in addition to the acts and deeds recited in this Lease and contemplated to be performed, executed and/or delivered by the parties, the parties hereby agree to perfori n execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as any party hereto may reasonably require to consummate the transactions contemplated under this Lease. 18. [,ime of the Essence. Time Ls of the essence with respect to the obligations of the part .e ; under this Lease. 19. Default and Remedies. In the event of any default under this Lease, the ncit-defaulting party shall be entitled to all rights, powers and remedies available at law or in equity, including, without limitation, damages and equitable relief, and/or resort to any securi Any rights, powers and remedies stated in this Lease, or now or hereafter existing in at equity, by statute, or otherwise are cumulative and concurrent, and shall each be in addition to, and not in lieu of, all the others. The exercise or the beginning of the exer:i or the forbearance of exercise by,any patty of any orie or more of such rights, powers a .c remedies shall not preclude the simultaneous or subsequent exercise by such party of u or ail of such other rights, powers and remedies. LEASE OF PARK LAND FOR MARINA City and SI, printed March 1, 1996 approved by Council, February 29, 1996 STA'S.4645 page 3 UD-U -US 13:05 From-FAIRFIELD & FREEMAN 8056431094 T-240 P.05/07 F-623 i I J 20. Ljgiitatien of Waiver. The neglect of any party to enforce its rights, powers or rernedie:, at any particular times or upon any particular occurrences shall not preclude resort to those rights, powers or remedies at any other time or with respect to any other occurrences. Any waiver of any right, power or remedy must be done in a writing executed by the party to be charged with such waiver, and executed with no fewer or different formalities and approvals than were attendant upon execution of this Lease. Ar, waiver of a breach of a covenant, term or condition of this Lease shall not be deemed a waiver of any other breach of the same or any other covenant, term or condition of this Lease. Acceptance of overdue performance of a covenant, term or condition of this Lcft. shall nor constitute a waiver of the breach existing prior to the performance, unless so agreed in writing by the recipient of the performance. 21. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor dispue:: acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, government controls, enemy or hostile government action, civil cotrunotion, fire or other casualty, and other causes been; n the reasonable control of the parry obligated to perform, shall excuse the performance lye, such party for a period equal to any such prevention, delay or stoppage. The term "governmental restrictions, governmental regulations, government controls, ... [and] hostile government action" shall not be construed to have any reference to City enforci e, this Lease or any other agreement between the City and any other parry, nor the City enforcing the City Code or other applicable law, nor any other government enforcing a agreement with a party or the conditions on the issuance of its permit(s) issued to a par y 22_ Counterpart Execution_ This Lease may be executed in any number of counterparts. No single counterpart need be signed by all parties to this Lease; so Iong as each party hen .t has executed at least one such counterpart, this Lease shall be considered fully executed. Each such counterpart shall be deemed to be an original instrument; and all such counterparts together shall constitute but one Lease. 23. Burden and Benefit,, This Lease shall bind and inure to the benefit of the parties and the respective heirs, legal representatives, successors and assigns. 24. 'bite and Other Writings• Merger Alt exhibits and other attachments, if any, to this Lease are a part of this Lease, as if set out again in this Lease. In the event of any confer : between Ianguage in an exhibit and language in this Lease, the language of this Lease shall govern. This Lease constitutes the entire agreement between and among the parrie s as to the matter set out in it, and all prior negotiations and discussions, memoranda, correspondence, and communications are merged into and extinguished by this Lease; p vidcd.,iowever, that nothing in this Lease shall be held to merge into this Lease anti other written document described in this Lease, unless this Lease expressly identifies such other written document or agreement and states that this Lease supersedes such other document or agreement. 25. Legal Representation and Rules of Construction. All parries to this Lease have been represented by legal counsel at all stages of the negotiations for and the preparation of this Lease, including during the proceedings relating to the approval of this Lease; accordingly, in all cases, the language of this Lease will be construed simply, according to its fair meaning, and not strictly for or against any party. 26. Notice. Notices between the parties may be made by personal delivery or by United States mail, postage pre -paid, registered or certified, with return receipt requested, or b2- telegram, facsimile transmission or mail-o-gram or by recognized courier delivery (e. g Federal Express, IJFS, DHL, etc.) addressed to the parties, as the case may be, at the address set forth below or at such other addresses as the parties clay subsequently designate by written notice given in the manner provided in this section: LEASE OF PARK LAND FOR MARINA City and Sl, printed March 1, 1996 approved by Council, February 29, 1996 STATH.IS 0646 page 4 06-02-06 12:00 From-FAIRFIELD & FREEMAN 8058431094 i-240 P.06/0T F-623 i r To Ciry: City Manager With a copy to: City of McCall 216 E. Park Street P, O. Box 986 McCall, II3 83638-0986 208-634-7142 208-634-3038 (facsimile) To SI: Harry S tathis Pres. With a copy to: Sta Bax, Inc. P. O. Box McCall, lD 83638 208-634- ,(phone) 208-634- (facsimile) City Attorney City of McCall 216 E Park Street P. O. Box 986 McCall, ED 83638-0986 208-634-7142 208-634-3038 (facsimile) Miliemann, Pittenger & McMahon P. O. Box 1066 McCall, ED 83638 208-634-7641 208-6344516 (facsimile) Either patty may change its address for notice by written notice. .Dated: City of McCall by: William, M. Killen, Mayor Attest; Janes H. Henderson, Clerk LEASE OF PARK LAND FOR MARINA City and SI, printed March 1. 1996 approved by Council, February 29, 1996 Sta-Bax, Inc., by: Harry Statiiis, Pres. by: , Secretary STATHIS 0647 05-02-05 13:06 From-FAIRFIELD t FREEMAN 8066431064 T-240 P.07/07 F-623 "Exhibit A" MCC 3-15-040 (B) provides is pertinent part 4. Private docks and piers shall: (a) Require a building permit from the City in addition to the permits required by the State Department of Lands, or other authorities having jurisdiction. (b) Be used to provide access to beats. (c) Be floating or held on pilings. (d) Be built with chemically inert materials; and foam materials shall be fully enclosed. (e) Not be constructed in whole or pan by or in association with excavation or dredging, unless a conditional use permit has first been issued. S, Public or commercial marinas, docks and piers are a conditional use and shalt meet all requirements in 3-15-04O(a) and in addition shall: (a) Provide an Environmental Assessment which addresses the issues identified by the Planning Commission upon initial inquiry by a persc�r, who proposes to become an applicant for such conditional use. (c) 'Have restrooms, pump. -out facilities for boat sewage receptacles, and tr, ti a receptacles for other boat wastes, on or near and accessible from such facilities. (d) Meet all other building code and. environmental requirements. LEASE OF PARK LAND FOR MARINA City and sI. Printed March I, 1996 approved aY Council, ,February 29. 1996 STA77f2 0648 page 6