HomeMy Public PortalAboutMOU - w/escrowMEMORANDUM OF UNDERSTANDING
This Memorandum (sometimes called this "Agreement" in the rest of this Memoran-
dum) is agreed to October 26, 1995, by and between the City of McCall, an Idaho municipal
corporation ("City"), and McCall Gas Station, Inc., an Idaho business corporation ("MGSI"),
by D. John Carey, of Saratoga, California, its President, for and in consideration of the mutual
promises herein contained.
ORIGINAL
Recitals
1. City and its Benefited Parties. City enters into this Memorandum on behalf of itself, in part
for the use and benefit of the Urban Renewal Agency for the City of McCall ("Agency").
2. MGSI and Its Benefited Parties. MGSI enters into this Memorandum on behalf of itself,
and on behalf of any partners, partnerships, or corporations now existing in which it now
has an equity interest, or hereafter formed by it with or without others.
3. Kalman, the Railroad Entities, and Definition of "Kalman Deed Property." Samuel
Kalman, as trustee ("Kalman"), owns or claims to own certain property in McCall, Idaho,
formerly the right of way and McCall lumber mill rail yard of the Oregon Short Line Rail
Road, the successor of which was the Union Pacific Railroad (together, "UPRR"), under
a deed from the UPRR. The Union Pacific Land Resources Corporation owns the mineral
estate in the same lands ("UPLRC"). In the rest of this Agreement such deed from the
UPRR to Kalman together with its exhibits will be called the "Kalman Deed" and the real
property described therein as being conveyed to Kalman will be referred to as "Kalman
Deed Property."
4. City Lawsuit. City has in good faith filed a lawsuit against Kalman, UPRR, and UPLRC
alleging that substantial portions of the Kalman Deed Property in fact belong to City or
are encumbered by easements and other interests held by City. In addition to the interests
asserted in the lawsuit, City in good faith claims or could claim yet further interests for
trails and like public uses that further affect the Kalman Deed Property. This lawsuit and
these claims substantially affect the marketability of, and the availability of financing for
development of, the Kalman Deed Property.
5. Environmental Litigation. Portions of the Kalman Deed Property are involved in litigation
between Kalman and UPRR, and former lessees, having to do with the presence of
petroleum distillates and possibly other pollutants in the soils in the vicinity of the
intersection of Roosevelt Avenue, Railroad Avenue, and Spruce Street. Neither City nor
MGSI desire to acquire any liability in that regard.
6. City Objectives. Kalman has expressed an interest in selling the Kalman Deed Property
to MGSI. City is interested in acquiring clear title to portions thereof which are certain
street rights of way shown on the original plats prior to the construction of the railroad
(generally portions of the McCall Avenue and Fir Street rights -of -way). City is also
interested in quiet possession and ownership of the streets, trails, parking areas, snow
storage areas, sewer easements, water easements, and other public use areas within the
Kalman Deed Property. City desires to build two new roads improving access from
Highway 55 to the golf course, the east side of town, and to Ponderosa Park.
7. MGSI Objectives. MGSI desires to make the purchase and has entered into a preliminary
agreement with Kalman under which MGSI is involved in due diligence and in an effort to
resolve outstanding litigation. MGSI needs to know that the lawsuit and other claims can be
resolved on a reasonable basis before it will complete a purchase. MGSI also has a
developer's interest in seeing improved access to and through the property, as well as the
provision of public parking. MGSI intends to make improvements to real property owned
by it which improvements are important to City's ability to finance road construction.
Memorandum of Understanding
printed October 25, 1995, 10:30 hours page 1
8. Wherefore Clause. In the light of all these facts and circumstances, the parties
agree as follows.
Agreements.
9. Background Recitals True. The foregoing recitals are true.
10. MGSI Obligations in Making Purchase. In making a purchase from Kalman, MGSI will:
a. Purchase Kalman Deed Property. Purchase all of Kalman's interests in the
Kalman Deed Property, except as otherwise provided below in paragraph 11
A. 3) with respect to the Condemnation Parcel.
b. Obtain Assignment of Kalman Rights to UPRR Indemnity and Hold Harmless as
to Environmental Concerns. Obtain an assignment of all of Kalman's rights
against UPRR or others in connection with all pollution and contamination
situations affecting any portions of the Kalman Deed Property, and endeavor to
obtain an agreement of UPRR to indemnify, save and hold harmless MGSI and
any successors or assigns of MGSI with respect to the same.
c. Obtain Control of Lawsuit. Obtain control, for the benefit of MGSI, its
successors and assigns, of the Kalman side of the litigation between the City and
Kalman and others, Valley County Civil Case No. CV-90-184, including also any
rights of Kalman against the City or UPRR or any title company in connection
with the litigation.
11. After the Purchase by MGSI from Kalman is Made:
a. MGSI Obligations. Following the purchase, and contemporaneously with
its closing, and continuing as appropriate thereafter, MGSI will:
1) Convey the Boulevard Parcel (Rights -of -Way and Parking Lots Between
Third Street and Pine Street). Convey by deed to the City the Kalman
Deed Property indicated on the map drawing, Exhibit A, as for a road and
for parking lots between Third Street and Pine Street (outlined in black ink
on such Exhibit A with yellow fluorescent marker interior to such black
ink outline) (`Boulevard Parcel"). It is understood by the parties that
pending the actual construction of the roadway and parking lots, as to
which see paragraph 13, MGSI may have access to its property via the
former UPRR track embankment which the City has presently signed as
Depot Avenue, and may undertake such improvement to the area between
MGSI's property and the 80 foot right-of-way for the roadway shown on
Exhibit A, Sheet 2, as MGSI sees fit (other than buildings); provided that
such MGSI activity must not prevent fire, police, and other emergency
vehicles from using Depot Avenue, nor obstruct the drainage ditch to the
east of Depot Avenue.
2) Convey Subiect to Escrow the Bike Trail/Snow Storage Parcel (Between
Park Street and First Street). Enter into an escrow -purchase agreement with
the City respecting the Kalman Deed Property indicated on the map draw-
ing, Exhibit A, between Park Street and First Street, as more particularly
discussed below in paragraph 15 (outlined in black ink on such Exhibit A
with blue marker interior to such black ink outline) ("Bike Trail/Snow
Storage Parcel").
3) Cooperate in Condemnation of Condemnation Parcel for Street and
Parking Lot Purposes.
i. Cooperate with City's intent to acquire by eminent domain for
street and parking lot purposes so much of the Kalman Deed
Property as is located between the northerly right-of-way line of
Fir Street as shown on the original plat of McCall's First Addition,
Memorandum of Understanding
printed October 25,1995, 10:30 hours page 2
and a line parallel to and 80 feet north of the northerly right-of-way
line of Pine Street on such plat ("Condemnation Parcel") (which
parcel is outlined in black ink on such Exhibit A with blue and
green alternating marker interior to such black ink outline).
ii. It is anticipated that this action will be brought by City against
Kalman and UPRR, and to acquire both title to the property and
ownership of the warranties and indemnities given Kalman by the
UPRR in its sale to Kalman; that MGSI will not have been in title
to the Condemnation Parcel; and that there will be a stipulated
judgment in the Condemnation fixing $200,000 in cash as the
consideration to be paid for the taking. MGSI will obtain an
agreement from Kalman that the consideration to be paid through
condemnation will be a fixed sum of $200,000 to be set out in a
stipulated judgment in the condemnation. MGSI will obtain from
Kalman an acknowledgment that the existence of this Agreement
is in part just compensation for such condemnation; and a waiver
of any right to see an appraisal and waiver of any obligation of the
City to obtain any appraisal or to make any other or further offer to
Kalman. City intends to proceed on the basis that the value of the
private interest in the Condemnation Parcel is substantially reduced
because City already owns much of such property by reason of the
existence of statutory public roads.
iii. When applying for a building permit as to the land between the
Condemnation Parcel and Pine Street, MGSI will provide for a
walkway or alley between the Condemnation Parcel and Pine
Street.
4) Convey Davis Avenue and First Street Parcels. Convey by deed to the
City the Kalman Deed Property indicated on the map drawing, Exhibit A,
within a road right-of-way for Davis Avenue (80 feet wide east -west) and
for First Street (60 feet wide east -west) (outlined in black ink on such
Exhibit A with green marker interior to such black ink outline).
5) Convey Roosevelt Avenue Right -of -Way. Convey by deed to the City the
Kalman Deed Property indicated on the map drawing, Exhibit A, within
the road right-of-way as originally platted for Roosevelt Street south of
Hemlock Street.
6) Convey Bike Path Right -of -Way near Third and Park Streets. Convey by
deed to the City so much, if any, of the Kalman Deed Property as lies
within a right-of-way for a bike pathway west of Third Street and north of
Park Street. City shall endeavor in good faith to locate such path within
the Highway 55 right-of-way. The applicable design concerns are that the
pathway shall have a right-of-way ten feet wide, no portion of which lies
closer than five feet to the westerly paving line of Third Street after proper
re -design of the intersection, given the Boulevard contemplated by
paragraph 13 below. Along Park Street integration with the plans for the
Payette Lake Trail System bike path shall govern.
7) Convey Railroad Avenue Right -of -Way North of First Street. Convey by
deed to the City the Kalman Deed Property indicated on the map drawing,
Exhibit A, within a road right-of-way for Railroad Avenue northeast of First
Street (30 feet from the northerly edge of the traveled way) (outlined in
black ink on such Exhibit A with red marker interior to such black ink
outline).
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 3
8) Assign Indemnities, In each such deed assign to City any indemnities and
agreements to hold harmless obtained from UPRR respecting the property
being conveyed under this paragraph 11 from and against pollution and
contamination of soils.
9) Join in Dismissal of Lawsuit. Stipulate with City and UPRR for the entry of
an order approving this Memorandum of Understanding and dismissing
Civil Case No. CV-90-184. The Judgment in such action shall approve this
Agreement as a settlement, and dismiss the case with prejudice to all claims.
Claims dismissed with prejudice shall include claims of City or Agency
against Kalman, and/or UPRR, and/or UPLRC, including claims asserted or
which could have been asserted in the action, whether or not so asserted,
which arise out of or relate to the title or the right of possession to the
Kalman Deed Property or any part thereof. Claims dismissed with prejudice
shall include claims of Kalman, and of UPRR, and of UPLRC, or of any of
them or any combination of them, against the City or the Agency, either or
both, including claims asserted or which could have been asserted in the
action whether or not so asserted, which arise out of or relate to the title or
the right of possession to the Kalman Deed Property or any part thereof.
10) Develop Property. Proceed to develop the property belonging to it in the
area bounded by Highway 55, Pine Street, the Boulevard Parcel, and East
Lake Street, with at least 22,000 square feet of retail space and other uses
as appropriate and permitted by applicable zoning. MGSI also agrees to
petition for the rezoning to Zone "B" of all Kalman Deed Property north
of Hemlock Street not presently so zoned. City and MGSI have discussed
the concept of such development and City has assured MGSI that adequate
water and sewer will be available.
11) Negotiate Land Uses Northeast of Third Street. Enter in good faith
into the negotiations called for in paragraph 12. below.
Whenever in this paragraph 11 a. the term "convey by deed" appears, such deed
shall purport to convey a fee simple absolute, shall warrant that it passes the title
received by MGSI, shall assign warranties received by MGSI, but need not
warrant against acts of grantors prior to Kalman. MGSI shall share title informa-
tion received by it prior to or at its closing of its purchase from Kalman. City
anticipates purchasing title insurance for the property deeded to it, and MGSI
shall advise the title company of that fact and afford City the benefit of any
discount for again insuring the same tract within a short time frame.
b. City Obligations. Following the purchase, and contemporaneously with the
conveyances to City called for above, City will:
1) Join in Dismissal of Lawsuit. Stipulate with MGSI and UPRR and
UPLRC for the entry of an order approving this Memorandum of
Understanding and dismissing Civil Case No. CV-90-184, as above.
2) Ouitclaim to MGSI the Kalman Deed Property not being Conveyed to
City. Quitclaim to MGSI all Kalman Deed Property not affected by the
deeds required in paragraphs 11 a. 1) through 11 a. 7) above, excepting
also the Condemnation Parcel; and subject to easements for utilities in
place, which easements should be adjustable as utilities are moved or
abandoned, and easements for access to properties north of Hemlock
Street which are landlocked and currently accessed by the Roosevelt Street
Extension and along such Extension until such time as it is functionally
replaced by a new road as provided in paragraph 14. below.
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 4
3) Condemn Condemnation Parcel. Pursue with due diligence an action to
condemn the Condemnation Parcel as set out in paragraph 11 a. 3).
4) Pay a Certain Purchase Price. Commence payment of the purchase price
for certain property as discussed below in paragraph 15.
5) Negotiate Land Uses Northeast of Third Street. Enter in good faith into
the negotiations called for in paragraph 12. below.
12. Land Uses Northeast of Third Street. The parties will promptly after the conveyances to
the City meet to negotiate a development plan for certain property lying northeast of
Third Street and south of Hemlock Street according to the following principles. The
parties assume an obligation to negotiate with each other in good faith as to the
following, recognizing that City has a public planning process and that none of these
matters can be final until actions are taken by Council.
a. Addition of Land to Legacy Park. That portions of East Lake Street right-of-way
should be merged into Legacy Park, following construction of the road contem-
plated in paragraph 11 a. 1) above.
b. Pedestrian Uses. That portions of East Lake Street should be converted to local
traffic only and pedestrian use, following construction of the road contemplated in
paragraph 11 a. 1) above.
c. Marina Uses. That MGSI should receive a lease for marina purposes of an
appropriate quantity of land generally between Spruce and Hemlock Streets, as
more particularly described below. If such a lease is in fact agreed to, it shall
generally take the form set out in Exhibit B.
d. Land Assemblage. That the alleyway within Block 1, McCall's First Addition,
should be vacated subject to easements for utilities in place, which easements
should be adjustable as utilities are moved or abandoned.
13. Boulevard. A roadway is contemplated under existing Agency urban renewal plans, the
function of part of which the parties agree would be met by connecting Third Street to
Pine Street along the alignment of Railroad and Depot Avenues, within the Boulevard
Parcel. This paragraph addresses the manner in which such roadway will come about.
The parties assume an obligation to negotiate with each other in good faith as to the
following, recognizing that City has a public planning process and that agreements
cannot be final until action by Council.
a. The Roadway and Its Design. The new roadway and parking areas will be built
by or for, and at the expense of, City or of Agency as may be agreed between
them, to City's standard for arterial roads and parking lots, and generally in
accord with Exhibit A, Sheet 2. However, the designs on such Sheet 2 as to land
between the former Stationmasters House and the former Railroad Depot on the
northwest, and the 80-foot right of way for the roadway on the southeast, are not
final and are subject to further agreement between the parties in the light of
MGSI's designs for the use of its property and City's desire to preserve access
to points west of MGSI property. Designs for this area shall not become final
without MGSI's prior written consent which shall not be unreasonably withheld.
Final designs, and any interim work drawings for the balance of the Boulevard
Parcel as City's engineers in the exercise of good faith determine reflect a
conceptual departure from Exhibit A, Sheet 2, shall be referred to MGSI for
comment (which comment must be made, if at all, within ten days from the
making of the referral). If City or Agency, as the case may be, determines not to
implement a MGSI comment, the determination shall be communicated to
MGSI in writing and with a full explanation. Any design which materially alters
access to MGSI property from that shown in Exhibit A, Sheet 2, shall not
become final without MGSI's prior written consent which shall not be
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 5
unreasonably withheld; and any design which materially reduces the number of
parking spaces from that shown in Exhibit A, Sheet 2, shall not become final
without MGSI's and City's prior written consents, neither of which shall be
unreasonably withheld.
b. Excess Earth Materials. If excess earth materials are developed from excavation in
preparation of finish elevation of subgrade for the new road, such materials shall be
delivered to other Kalman Deed Property adjacent to the Boulevard Parcel, or to
MGSI property adjacent to such Kalman Deed Property, and at such reasonable
locations as may be designated by MGSI at the time. The value of any excess fill
developed and delivered to MGSI through the process of construction of the road
and parking lots shall be paid directly to City within 60 days after being invoiced to
MGSI at going rates for material delivered equivalent distances.
c. Construction Schedule. Construction shall be completed during or before the
1997 construction season, subject to any delay which may be occasioned by storm
water permitting processes and like problems, subject to the availability of
funding and the budget process. City assumes the obligation for City and Agency
staff diligently to pursue financing and to recommend appropriate budgets. City
anticipates that urban renewal agency bonding will be the primary funding
mechanism. City will begin the process of issuance of urban renewal bonds upon
the closing of the Kalman - City deed transactions and diligently pursue the same
to conclusion. City will not proclaim inability to fund this obligation without
considering all reasonable financial options.
d. Parking. Such plan provides for public parking at the southwesterly end of the
roadway, and at particular on and off -site lots along the westerly side of the road-
way. As the Boulevard Parcel is viewed by MGSI in significant part as a contri-
bution to City, and as this Agreement is part of a litigation settlement, it is under-
stood that such parking will fulfill pro tanto the mandatory parking requirement of
not to exceed 22,000 square feet of retail, office, and other ordinary permitted
uses in the Central Business District for property presently owned by MGSI
located northerly of the Boulevard Parcel, south and east of East Lake Street,
south of Pine Street, and east and northeast of Highway 55/Third Street. Staff will
support a variance request from MGSI as a back-up to this Agreement and for all
parking required by such number of square feet in the light of public parking
proximity and in light of the fact that City staff is expecting to prepare and
propose downtown parking revisions by way of Ordinance amendment and
possibly local improvement district.
14. Roosevelt - Davis Connector. A roadway is contemplated under existing Agency urban
renewal plans, the function of a portion of which the parties agree would be met by
connecting Roosevelt Street at Hemlock Street with Davis Avenue at Suitor Street,
through property presently owned by Agency, with a roadway to Collector or Arterial
Street standards. This paragraph then addresses the manner in which such roadway will
come about. The parties assume an obligation to negotiate with each other in good faith
as to the following, recognizing that City has a public planning process and that
agreements cannot be final until ratified by Council.
a. The exact alignment of the new roadway will likely be provided through
the platting process in connection with development of Kalman Deed
Land and other property of MGSI north of Hemlock Street.
b. The new roadway will be built by or for, and at the expense of, City or of Agency
as may be agreed between them, to City's standard for collector streets, and City
or Agency as may be agreed between them will install water and sewer lines
according to its then water and sewer master plans to the extent such lines
logically would be within the right-of-way of such new roadway.
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 6
c. If City or Agency desires to build such roadway at a time prior to the
development of the lands, City or Agency shall give notice to MGSI and the
parties shall meet to determine an appropriate alignment meeting road design
standards but otherwise preserving the utility of retained MGSI lands.
d. If MGSI desires to develop the land at a time prior to the City or Agency
construction of the road, MGSI shall give notice to the City. MGSI shall not do so
prior to April of 1997. Such notice being given, the parties shall meet to
determine an appropriate alignment meeting road design standards but otherwise
preserving the utility of retained MGSI lands. City shall have 18 months after
determining the alignment to complete the construction. City assumes the
obligation for City and Agency staff diligently to pursue financing and to
recommend appropriate budgets. City anticipates that urban renewal agency
bonding will be the primary funding mechanism. City will begin the process of
issuance of urban renewal bonds upon such notice's being given and diligently
pursue the same to conclusion. City will not proclaim inability to fund this
obligation without considering all reasonable financial options.
e. If MGSI chooses to do so, MGSI may undertake to build such road prior to April
of 1997, under a competitive bidding process for a lump sum contract, and
according to designs approved by City; provided that the same shall occur in an
alignment determined in accord with paragraph d. immediately above, for
reimbursement by the City and at the time the City would have incurred the
obligation under such paragraph d.
15. Bike Path/Snow Storage Parcel Escrow Agreement. City and MGSI shall enter into an
escrow -purchase agreement respecting the Bike Path/Snow Storage Parcel. The lease -
purchase agreement shall follow the form of a present deed to the City, an escrowed deed
back to MGSI, and a short statement of the payments and events necessary to prevent
delivery of the deed back to MGSI, namely payments of $200 each on or before each of the
first four anniversaries of the agreement, and a balloon payment of $199,200 on the fifth
anniversary of the agreement.
16. Soil Conditions. The parties shall cooperate in obtaining inforniation about the soil
conditions within the Kalman Deed; no expenditure of public funds is committed to by
this sentence, as an appropriation by the Council would be required for the same.
17. Events Creating Binding Effect; Time Period for Closing. This Memorandum of
Agreement shall bind MGSI, its successors, and assigns, as an irrevocable offer, once
signed by MGSI and by the City Manager. After signature by MGSI, the City Manager
shall have a reasonable time to seek the approval of this agreement by the City Council,
which approval shall constitute an acceptance of such offer binding the City. From and
after Council approval, this Memorandum of Agreement shall be a contract subject to
defeasance in the event that MGSI in fact does not close the purchase of the Kalman
Deed Property from Kalman. No defeasance of this Agreement and no breach of this
Agreement shall ever be held to work a forfeiture of land title by any party, nor in the
event of such defeasance shall this Memorandum be admissible in any proceeding to
determine title to land. At the option of City this Memorandum may be declared void and
of no further force and effect if as of January 25, 1996 the purchase by Carey from
Kalman has not been completed and closed.
18. Heirs, Successors, and Assigns. This agreement shall bind and inure to the benefit of the
heirs, successors and assigns of the parties.
21. Rule of Construction. This agreement shall be construed in accord with its evident
purposes to quiet title in the City as to certain property, and in MGSI as to other property,
and to facilitate the logical extension of the urban road system across the property in
accord with sound engineering practice not unnecessarily disruptive to development.
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 7
22. Dispute Resolution. Disputes among the parties shall be resolved as follows.
a. Any dispute between the parties respecting the interpretation or
implementation of this Agreement 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 Agreement not covered by the above
alternative dispute resolution clause 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 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 such
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 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.
23. Headings an Aid to Readers Only. 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.
24. Governing Law. This Agreement is governed by the law of Idaho, and Valley County,
Idaho is the proper venue.
25. Further Acts, Deeds, Documents Necessary to Purposes. 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 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 Agreement.
26. Time of the Essence. Time is of the essence with respect to the obligations of the parties
under this Agreement.
27. Default and Remedies. 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.
28. Limitation of Waiver. 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.
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 8
29. Force Majeure, Any prevention, delay or stoppage due to strikes, lockouts, labor disputes,
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 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. 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 City Code or other applicable 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.
30. Counterpart Execution. 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.
31. Burden and Benefit. 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.
32. Exhibits. and Other Writings: Merger. 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 and language in 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, unless this Agreement expressly identifies such other
written document or agreement and states that this Agreement supersedes such other
document or agreement.
33. Legal Representation and Rules of Construction. 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 of 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.
34. 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 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 City: City Manager With a copy to:
City of McCall
216 E. Park Street
P. O. Box 986
McCall, ID 83638-0986
208-634-7142
208-634-3038 (facsimile)
City Attorney
City of McCall
216 E. Park Street
P. O. Box 986
McCall, ID 83638-0986
208-634-7142
208-634-3038 (facsimile)
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 9
To MGSI: D. John Carey, Pres. With a copy to:
McCall Gas Station, Inc.
15320 Peach Hill Road
Saratoga, CA 95070
408-867-9262
208-634-7754 (McCall home)
McCall Gas Station, Inc.
by <elY„em-ti€411
D. o n Carey,
by:
City of McCall
Atte
Millemann, Pittenger
& McMahan
P. O. Box 1066
McCall, ID 83638
208-634-7641
208-634-4516 (facsimile)
Dean A. Martens,
Mayor
ames H. Henderson,
City Clerk
State of Idaho )
) ss.
County of Valley )
On this 2lefli day of OCA , in the year 1995, before me, bthrA,
notary public, personally appeared D. John Carey, known or identified to me to be the president,
PP Y
or vice-president, or secretary or assistant secretary, of the corporation that executed the
instrument or the person who executed the instrume t on behalf of said corp ration, and
acknowledged to me that such corporation execute he ame.
State of Idaho
) ss.
County of Valley
Notary Public for Idaho
My commission expires:
On this f , in the year 1995, before me,
notary public, personally appeared Dean A. Martens, known or identified to me to be the Mayor
of the City of McCall that executed the said instrum pd acknowledged to me that such City
of McCall executed the same.
Gyary Public for Idaho �✓y�
commission expires:
Memorandum of Understanding printed October 25, 1995, 10:30 hours page 10
ESCROW AGREEMENT
This Agreement is made November , 1995, by and between the City of
McCall ("City"), an Idaho municipal corporation, and McCall Gas Station, Inc., an Idaho
business corporation ("MGSI"), for and in consideration of the mutual promises herein
contained.
Recitals
1. MGSI simultaneously with execution of this Agreement conveyed to City the
property described on Exhibit A, and City simultaneously with execution of this
Agreement executed a Memorandum of Understanding of even date herewith with
MGSI, which furnishes consideration beyond the mutual understandings herein.
2. If City wishes to keep the property, certain funds need to be paid to MGSI.
However, the City cannot make a specific promise to pay.
Agreements
3. City is escrowing a quitclaim deed back to MGSI, affecting the property
described on Exhibit A.
4. Such quitclaim deed shall be escrowed with Mountain Title & Escrow, Main
Street, Cascade, Idaho ("Mountain Title").
5. Such quitclaim deed shall be delivered to MGSI by Mountain Title, after notice to
City and a 30-day period for cure, unless City makes the following payments to
Mountain Title for the benefit of MGSI on or before the following dates:
$200 on or before December 31, 1996.
$200 on or before December 31, 1997.
$200 on or before December 31, 1998
$200 on or before December 31, 1999
$199,200 on or before December 31, 2000
If City makes all such payments, the quitclaim deed shall be canceled by
Mountain Title and returned to the City.
6. Such payments shall be considered without interest. In no event shall City be
obliged to make payments in excess of the $200,000 set out in paragraph 5 above.
Should interest be imputed by any authority with respect to these payments, that
event shall be at the risk of MGSI.
7. However, promptly and periodically after the establishment of this Escrow the
parties shall in good faith renegotiate the amount of such payments in the light of
such good faith performance of the Memorandum of Understanding and good faith
in dealings on the part of City as will lead to donative intent and periodic reductions
in the payments then not yet made. Mere disagreement does not destroy "good
faith." Abuse of a position of power does destroy "good faith."
Dated:
City of McCall McCall Gas Station, Inc.,
by:
Dean A. Martens, Mayor
Attest:
by: o\Z\A9
D. John Carey, Pres.
by:
James H. Henderson, Clerk , Secretary