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
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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
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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.
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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
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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
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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
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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
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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,
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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
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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)
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{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
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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
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