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HomeMy Public PortalAboutOwner Part Agmnt - BlankOWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE MCCALL URBAN RENEWAL AGENCY AND {DATE} RAILROAD AVENUE URBAN RENEWAL PROJECT URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Agency Improvements on Private Property Page - 1 LIST OF ATTACHMENTS Attachment 1 Map of Private Site Attachment 2 Description of Site Attachment 3 Map of the Relevant Urban Renewal Project Attachment 4 Site Plan of Improvements to Private Site Attachment 5. Anticipated Schedule Attachment 6 Agreement to Be Recorded Affecting Real Property URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Agency Improvements on Private Property Page - 2 OWNER PARTICIPATION AGREEMENT THIS AGREEMENT is made , by and between the McCall Urban Renewal Agency (the "Agency") and (PARTICIPANT) (the "Participant") for and in consideration of the mutual promises in it. BACKGROUND 1. The City Council of the City of McCall, Idaho (the "City"), after notice duly published, on December 13, 1990, conducted a public hearing on the Railroad Avenue Urban Renewal Project (the "Urban Renewal Plan"); 2. Following that public hearing, the City Council adopted its Ordinance No. 578 on December 13, 1990, approving the Urban Renewal Plan and making certain findings; and on July 11, 1996, by Ordinance No. 699, approved Amendments to such Plan, thus creating the Amended Urban Renewal Plan; 3. Under the terms of the Amended Urban Renewal Plan, the Participant is subject to the provisions of the Amended Urban Renewal Plan, which provisions grant to the Agency the right to enter into an Owner Participation Agreements with property owners who seek assistance from the Agency, or whose involvement in the Project is otherwise required; 4. Participant is the owner of the Private Site (as defined below); 5. Under the provisions of the Amended Urban Renewal Plan, the Agency will be making certain street improvements, contingent upon bond financing, including drainage improvements, stormwater treatment improvements, parking lot improvements, and landscaping improvements (the "Railroad Avenue Project"), which improvements will occur on public property (the "Public Site"), on the Private Site, and on other privately owned sites; 6. As a result of the Participant's commitment to make the Private Site available for construction of certain of the Railroad Avenue Project through grant of an easement for parking and access, and the Agency's commitment to construct the improvements in compliance with the Amended Urban Renewal Plan, the parties deem it necessary to enter in a Participation Agreement to define their respective obligations; and 7. By entering into this Agreement and complying with its terms, the Agency finds that the Participant has complied with the provisions and requirements of the Amended Urban Renewal Plan. URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 3 Agency Improvements on Private Property AGREEMENTS 8. Purpose of this Agreement The purpose of this Agreement is to effectuate the Amended Urban Renewal Plan and a portion of the Railroad Avenue Project by providing for: 1. The improvement of the Private Site; 2. The acquisition, construction, extension, and improvement of parking; and 3. The construction of an arterial roadway which abuts the Site. The improvement of the Private Site pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best economic and social interest of the City and the health, safety, morals, and welfare of its residents and are in accordance with the public purposes and provisions of applicable federal, state, and local laws and requirements. Implementation of this Agreement will further the goals and objectives of the Amended Urban Renewal Plan. 9. The Urban Renewal Plan This Agreement is subject to the provisions of the Amended Urban Renewal Plan. 10. The Project Area The Project Area is located in the City, and the exact boundaries of the Project Area are specifically described in the Amended Urban Renewal Plan. 11. The Site The Private Site is that portion of the Project Area shown on the "Map of the Site", attached to this Agreement as Attachment 1 and incorporated herein by reference, and as more particularly described in the "Description of the Site", attached hereto as Attachment 2 and incorporated herein by reference. 12. Parties to this Agreement A. The Agency The Agency is an independent public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Urban Renewal Law of the State of Idaho, Title 50, Chapter 20, Idaho Code. The office of the Agency is located at 216 East Park Street, P.O. Box 986, McCall, Idaho, 83638. "Agency", as used in this Agreement, includes the Urban Renewal Agency of McCall, Idaho, and any assignee of or successor to its rights, power, and responsibilities. B . The Participant The Participant is . The principal address of the Participant is to the attention of . Whenever the term "Participant" is used herein, such term shall include any permitted nominee, assignee, or successor in interest as herein provided. The Participant qualifies as an URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 4 Agency Improvements on Private Property "participant" as that term is used in Section 303 of the Amended Urban Renewal Plan. 13. Public Improvements by the Agency As a result of the various proposed and undertaken private developments in the Project Area, in order to improve traffic conditions between Third Street and the northerly part of McCall's First Addition, and points east and north, and to provide for greater safety for the traveling public, bicyclists, and pedestrians, the parties collectively agree to the Railroad Avenue Project. The Agency finds that the Railroad Avenue Project shall be funded by the Agency. The Agency finds that the Railroad Avenue Project is in the best public interest, will improve safety and traffic access, and provides for enhanced development of both the Private Site and the balance of the Urban Renewal Area. 14. Grant of Easement and Rights of Access During Construction. Participant has granted Agency a non-exclusive easement in perpetuity for parking, for construction and maintenance of parking and adjacent landscaping, and for access to and from the public roads and adjacent properties, in accord with the drawing, Attachment 4. Representatives of the Agency and of the City, including without limitation its Engineers and Contractors, shall have the reasonable right of access to the Private Site and other of Participant's property adjacent thereto without charges or fees, at normal construction hours, during the period of construction for the purposes of this Agreement, including, but not limited to, construction of parking facilities, underground utilities, draingage, and incidental retaining walls and landscaping, and for the inspection of the work being performed by Agency or Participant in rehabilitating and/or constructing the improvements. 15. Agreement to Be Recorded Affecting Real Property Concurrent with this Agreement, the Participant and the Agency have executed an "Agreement to Be Recorded Affecting Real Property", attached hereto as Attachment 6 and incorporated herein by reference, which provides for certain covenants and agreements on the part of the Participant consistent with the terms and purposes of this Agreement and by which the Agency agrees to waive its legal right to acquire the Site by eminent domain. The Agency is authorized to record and shall record this document. Concurrent with this Agreement, the Participant and the Agency have executed a "Grant of Easement." The Agency is authorized to record and shall record this document. 16. Use Of the Site The Participant agrees and covenants to devote the Participant's property adjacent to the Private Site to Commercial uses as specified in the URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 5 Agency Improvements on Private Property Amended Urban Renewal Plan and to comply with all other provisions and conditions of the Amended Urban Renewal Plan for the period of time the Amended urban Renewal Plan is in force and effect. 17. Effect and Duration of Covenants The covenants contained in Section 16 of this Agreement shall remain in effect until the termination date of the Urban Renewal Plan. The easements and covenants contained in Section 14 of this Agreement and in the Grant of Easement shall remain in effect in perpetuity. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the part of the Participant and any successors and assigns to the Site or any part thereof, and the tenants, lessees, sublessees, and occupants of the Site, for the benefit of and in favor of the Agency, its successors and assigns, the City, and any successor in interest thereto. 18. Conflicts of Interest No member, official, or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee participate in any decision relating to this Agreement which affects his personal interest or the interests of any corporation, partnership, or association in which he is directly or indirectly interested. Participant warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. 19. Nonliability Of Agency Officials And Employees No member, official, or employee of the Agency shall be personally liable to the Participant in the event of any default or breach by the Agency or for any amount which may become due to the participant or on any obligations under the terms of this Agreement. 20. Memorandum of Agreement and Recording. It is agreed by both of the parties that this Agreement shall be recorded in Valley County, Idaho. It is further agreed by both the Agency and the Participant that, in lieu of the entire Agreement, a memorandum or short form of this Agreement may be prepared and be recorded in the records of Valley County, Idaho. 21. Severability. In case anyone or more of the provisions of this Agreement shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement, but this Agreement shall be construed and enforced as if such illegal or invalid provisions had not been contained herein. 22. Dispute Resolution. In the event that a dispute arises between Agency and Participant regarding the application or interpretation of any provision of this URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 6 Agency Improvements on Private Property Agreement, the agrrieved party shall promplty notify the other party to this Agreement of the dispute wihtin ten (10) days after such dispute arises. If the parties sahll have failed to resolve the dispute wihtin thirty (30) days after delivery of such notice, each party shall, within ten (10) days thereafter, nominate a senior officer of its management to meet at a mutually agreed upon location to resolve the dispute. Shuld the parties be unable to resolve the dispute to their mutual satisfaction within thirty (30) days after such nomination, each party shall have the right to pursue any rights or remedies it may have at law or in equity under this Agreement. 23 Time for acceptance of Agreement by Agency. This Agreement, when executed by the Participant and delivered to the Agency, must be authorized, executed, and delivered by the Agency within thirty (30) days after the date of signature by the Participant or this Agreement shall be void, except to the extent that the Participant may consent in writing to further extensions of time for the authorization, execution, and delivery of this Agreement. The effective date of this Agreement shall be the date when this Agreement has been signed by the Agency. 24. If any legal action or proceeding related to this Agreement is begun by any party to this Agreement, the prevailing party shall be entitled to recover its costs, damages, and expenses, including commercially reasonable attorneys fees and witness and expert witness fees, incurred in prosecuting or defending the same, whether or not such action or proceeding is litigated or prosecuted to judgment. The Agency shall be entitled to such fees, if the prevailing party, notwithstanding the fact that the Attorney acting for the Agency is salaried by the City and made available on loan to the Agency. The prevailing party will be that party who was awarded judgment as a result of trial or arbitration, unless the dispute was only as to the amount of a claim conceded to exist, in which case the finder of fact shall determine the identity of the prevailing party. 25. This Agreement is governed by the law of Idaho, and Valley County, Idaho is the proper venue. 26. The headings of paragraphs and articles of this Agreement are provided as a guide to the reader, and shall not in any way affect the meaning or interpretation of this Agreement. 27. Except as otherwise provided herein, in addition to the acts and deeds recited in this Agreement and contemplated to be performed, executed and/or delivered by the parties, the parties hereby agree to perform, execute and/or deliver or cause to be URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 7 Agency Improvements on Private Property performed, executed and/or delivered any and all such further acts, deeds and assurances as any party hereto may reasonably require to consumate the transactions contemplated under this Agreement. In particular, Agency and Participant agree to mutually consider reasonable requests for amendments to this Agreement and any attachments hereto which may be made by any lending institutions, bond counsel, financial consultants, or underwriters to the Agency, provided said requests are consistent with this Agreement and would not alter the basic business purposes included herein or therein. All amendments hereto must be in writing and signed by the appropriate authorities of the Agency and Participant. 28. Time is of the essence with respect to the obligations of the parties under this Agreement. 29. In the event of any default under this Agreement, the non -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 security. Any rights, powers and remedies stated in this Agreement, or now or hereafter existing in law, 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 exercise or the forbearance of exercise by any party of any one or more of such rights, powers and remedies shall not preclude the simultaneous or subsequent exercise by such party of any or all of such other rights, powers and remedies. 30. The neglect of any party to enforce its rights, powers or remedies 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 Agreement. Any waiver of a breach of a covenant, term or condition of this Agreement shall not be deemed a waiver of any other breach of the same or any other covenant, term or condition of this Agreement. Acceptance of overdue performance of a covenant, term or condition of this Agreement shall not constitute a waiver of the breach existing prior to the performance, unless so agreed in writing by the recipient of the performance. 31. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 8 Agency Improvements on Private Property governmental restrictions, governmental regulations, government controls, enemy or hostile government action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform, shall excuse the performance by such party for a period equal to any such prevention, delay or stoppage; provided, however, that this clause shall not bar resort by City to any security applicable to the furnishing of such performance under circumstances in which City acting to obtain alternative performance would not be subject to such force majeure. The term "governmental restrictions, governmental regulations, government controls, ... [and] hostile government action" shall not be construed to have any reference to City enforcing this Agreement or any other agreement between the City and any other party, nor the City enforcing the law, nor any other government enforcing an agreement with a party or the conditions on the issuance of its permit(s) issued to a party. 32. This Agreement may be executed in any number of counterparts. No single counterpart need be signed by all parties to this Agreement; so long as each party hereto has executed at least one such counterpart, this Agreement 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 agreement. 33. This Agreement shall bind and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. This Agreement shall survive the completion of all acts contemplated herein, and shall remain in full force and effect thereafter. All covenants and conditions set forth herein shall be appurtenant and shall run with the land and shall be binding upon Participant's heirs, successors, and assigns. 34. All exhibits and other attachments, if any, to this Agreement are a part of this Agreement, as if set out again in this Agreement. In the event of any conflict between language in an exhibit as this Agreement, the language of this Agreement shall govern. This Agreement constitutes the entire Agreement between and among the parties 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 Agreement; provided, however, that nothing in this Agreement shall be held to merge into this Agreement any other written document described in this Agreement, nor any Subdivision or Development Agreement among any of the parties, unless this Agreement expressly identifies such other written document or URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 9 Agency Improvements on Private Property agreement and states that this Agreement supersedes such other document or agreement. 35. All parties to this Agreement have been represented by legal counsel at all stages of the negotiations for and the preparation of this Agreement, including during the proceedings relating to the approval and the conditions of approval of any project or development which approval or conditions gave rise to this Agreement; accordingly, in all cases, the language of this Agreement will be construed simply, according to its fair meaning, and not strictly for or against any party. 36. 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 by telegram, facsimile transmission or mail-o-gram or by recognized courier delivery (e. g. Federal Express, UPS, 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 may subsequently designate by written notice given in the manner provided in this section: To Agency: With a copy to: To Participant: With a copy to: Executive Director McCall Urban Renewal Agency 216 E. Park Street P. O. Box 986 McCall, ID 83638-0986 208-634-7142 208-634-3038 (facsimile) General Counsel McCall Urban Renewal Agency 216 E. Park Street P. O. Box 1065 McCall, ID 83638-1065 208-634-7142 208-634-3038 (facsimile) URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 10 Agency Improvements on Private Property {Date} URBAN RENEWAL AGENCY of McCALL { Date } By: Chairman of the Board By: Secretary By: Chariman By: Secretary ACKNOWLEDGMENTS STATE OF IDAHO, ) (ss. County of ) On this day of , 199_, before me, , the undersinged notary public in and for said county and state, personally appeared , known or identified to me to the be the Chairman, and , known or identified to me to be the Secretary, repsectively of the McCall Urban Renewal Agency, the public body coprorate and politic, that executed the within instrument, and known to me to the persons that executed the within insstrument on behalf of said Agency and acknowledge to me that such Agency executed the same fo the purposes herein contained. 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 Commission Expires STATE OF IDAHO, ) (ss. County of . ) On this day of , 199_, before me, , the undersinged notary public in and for said county and state, personally appeared , known or identified to me to the be the Chairman, and , known or identified to me to be the Secretary, repsectively of the McCall Urban Renewal Agency, the public body coprorate and politic, that executed the within instrument, and known to me to URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Page - 11 Agency Improvements on Private Property the persons that executed the within insstrument on behalf of said Agency and acknowledge to me that such Agency executed the same fo the purposes herein contained. 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 Commission Expires URBAN RENEWAL OWNER PARTICIPATION AGREEMENT Agency Improvements on Private Property Page - 12