HomeMy Public PortalAboutPark Land Lease- MarinaPARK LAND LEASE FOR MARINA PURPOSES
This Lease is made ,199 , by and between the City of McCall, an Idaho
municipal corporation ("City"), and McCall Gas Station, Inc., an Idaho business
corporation, of McCall, Idaho CMGSI"), for and in consideration of the mutual promises
herein contained.
Background
City is the owner in fee simple of the land described on Exhibit "B" ("Subject
Property") located between East Lake Street and the high water mark (as defined for
puposes of title) of Payette Lake, and holds it for the use of the people of McCall and
thief guests as public park and recreation land.
MGSI owns property in the vicinity which it intends to develop for residential uses.
MGSI desires to construct a marina and to attach it to the Subject Property, to
build one or more pathways from the developed street to the marina, and
generally to make landscape improvements upland from the marina.
City views the marina as an extension of the park and recreation use of the
Subject Property, providedthat 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
Authorization of Use. City leases to MGSI, and MGSI leases from City, the
property described on Exhibit "B. "Pursuant to this Lease, MGSI 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 Dep. artment of Lands, and MGSI shall obtain that approval before
commencing any construction of such marina. Such marina shall comply with the
Shorelines and Rivers Environs zoning restrictions, MCC 3-15-040 (B) 4, an
excerpt of which is set out on page 4 of this lease as Exhibit "A." While the
number of slips is ultimately regulated by the State, City will not object to a
request for up to 100 slips.
Use and Ben~fit, The marina must exists for the use and benefit of the people of
McCall, permanent or seasonal. Occupants of dwellings within the real property
described in the deed from Samuel Kalman as Trustee to MGSI, Instument
No. recorded in Valley County, Idaho, to which dwellings
such right is made appurtenant by MGSI, and occupants of dwellings on land
adjacent to such property and west of Davis Avenue claimed by, through,' or under
MGSI, and to which dwellings such fight is made appurtenant by MGSI, may be
preferred. Guests in a hotel built upon such property shall be considered residents
for such purposes. 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.
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 1
City and MGSI, printed October 25, 1995, 10:42 hours
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Percentage Rent. MGSI shall pay percentage rent to City in the amount of 5% of
the gross receipts of such marina, and City has the fight to audit records to
determine whether the gross receipts have been accurately stated. Such rent shall
be payable annually on November 1 of each year. "Gross receipts" for these
purposes shall include not only cash received, but also the fair market rental value
of any slips the use of which is appurtenant to real property;
Slips for Emergency Services Use. A reasonable number of slips (but not less than
three) shall be provided for use by the McCall Police Department and/or the McCall
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.
Design Review and Construction. The marina and upland improvements
assodiated with it are subject to design review by the Parks & Recreation
Committee, with fight of appeal to the City Council, which approval must be
received prior to construction. Once MGSI undertakes construction, 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 execessive
time.
Term, and Renewal. The initial term of this Lease shall be ten years. This Lease
may be renewed for additional ten year term for so long as the rent and other
conditions of the Lease are faithfully adhered to. If MGSI determines that it does
wish to renew this Lease, it shall give notice of that fact during the last six months
of the expiring term.
Maintenance and Insurance. MGSI shall maintain any such marina, and other
imp. rovements in a condition safe for public use, and otherwise in good
maintenance and repair. MGS! 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 $300,000, 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 1995 values, it shah 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.
Termination for Cause. This Lease may be terminated by the City in the event of
a breach by MGSI, by giving thirty days written notice. City shall not terminate
this Lease by reason of a non-monetary breach of this Lease if MGSI 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.
Removal of ImprovCmcnt~ after Termination. Unless MGSI obtains the prior
written consent of City to some other action, MGSI 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 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 MGSI.
Heirs, Successors, and Assigns. This Lease shall bind and inure to the benefit of the
heirs, successors and assigns of the parties.
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 2
· City and MGSI, printed October 25, 1995, 10:42 hours
13. Rule of Construction, This Lease 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.
14. Dispute Resolution. 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 inadmissable in any subsequent
litigation.
b. If any legal action or proceeding related to this Lease not covered by the above
alternative dispute resolution clause is begun by any party to this Lease, 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.
15. Headings an Aid to Readers Only. The headings of paragraphs and articles of this Lease
are provided as a guide to the reader, and shall not in any way affect the meaning or
interpretation of this Lease.
16. Governing Law. This Lease is governed by the law of Idaho, and Valley County, Idaho
is the proper venue.
17. Further Acts, Deeds, Documents Necessary to Purposes. 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 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 Lease.
18. Time of the Essence. Time is of the essence with respect to the obligations of the parties
under this Lease.
19. Default and Remedies. In the event of any default under this Lease, 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 Lease, 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.
20. 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 Lease. Any
wm.'vet of a breach of a covenant, term or condition of this Lease shall not be deemed a
wmver of any other breach of the same or any other covenant, term or condition of this
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 3
City and MGSI, printed October 25, 1995, 10:42 hours
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Lease. Acceptance of overdue performance of a covenant, term or condition of this Lease
shall not constitute a waiver of the breach existing prior to the performance, unless so
agreed in writing by the recipient of the performance.
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, lure 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 Lease 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.
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 long as each party hereto
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.
Burden and Benefit. This Lease shall bind and inure to the benefit of the parties and their
respective heirs, legal representatives, successors and assigns.
Exhibits, and Other Writings; Merger All 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 conflict
between language 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 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 Lease;
provided, however, that nothing in this Lease shall be held to merge into this Lease any
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.
Legal Representation and Rules of Construction. All parties 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.
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 Ci~:
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)
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 4
City and MGSI, printed October 25, 1995, 10:42 hours
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)
Millemann, Pittenger
& McMahon
P. O. Box 1066
McCall, ID 83638
208-634-7641
208-634-4516 (facsimile)
Either party may change its address for notice by written notice.
Dated:
City of McCall
McCall Gas Station, Inc.,
by: by:
Dean A. Martens, Mayor
Attest:
D. John Carey, Pres.
James H. Henderson, Clerk
by:
, Secretary
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 5
.. City and MGSI, printed October 25, 1995, 10:42 hours
"Exhibit A"
MCC 3-15-040 (B) provides in 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 boats.
(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 part by or in association with
excavation or dredging, unless a conditional use permit has first
been issued.
5. Public or commercial marinas, docks and piers are a conditional use and
shall meet all requirements in 3-15-040(a) and in addition shall:
(a) Provide an Environmental Assessment which addresses the issues
identified by the Planning Commission upon initial inquiry by a person
who proposes to become an applicant for such conditional use.
(c) Have resn'ooms, pump-out facilities for boat sewage receptacles, and trash
receptacles for other boat wastes, on or near and accessible from such
facilities.
(d)Meet all other building code and environmental requirements.
FORM LEASE OF PARK LAND FOR MARINA Exhibit "B" to Memorandum of Understanding page 6
City and MGSI, printed October 25, 1995, 10:42 hours
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 CMGSI''), 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
xn 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
by:
Dean A. Martens, Mayor
Attest:
McCall Gas Station, Inc.,
by:
D. John Carey, Pres.
James H. Henderson, Clerk
by:
, Secretary
CITY OF McCALL
PLANNING AND ZONING COMMISSION
FINDINGS AND CONCLUSIONS IN SUPPORT OF
APPROVAL OF VACATION OF PUBLIC RIGHT OF WAY
The Commission finds that:
1. A petition for approval of vacation of a public right-of-way was presented for
public hearing on May 7, 1996 by Jack Marshall on behalf of McCall Gas Station,
Inc., as owner of or with the consent of the owners of all parts of Block 1,
McCall's First Addition to the Townsite of McCall, fronting on the alley.
2. The necessary notice was given to the public and to other public agencies and
entities.
3. The land in question is in Zone CB, as is all the surrounding property. The alley in
question extends east-northeast from Third Street (Highway 55) to a dead end at
the former railroad right-of-way.
4. The alleyway is not needed for transportation purposes; the petitioner proposes to
re-plat the area to facilitate development of a Planned Unit Development.
5. The alley right-of-way goes up a very steep hill toward its northeasterly terminus,
and has never been built beyond the part of it on the flat land toward the highway.
The Commission concludes that:
6. The proposed vacation meets the.purposes of IC 50-311 and the standards of
MCC 3-21-310 (C) as a matter of law, provided a necessary condition of approval
is met.
7. The proposed vacation is appropriate. ,
8. The approval of the vacation should be granted pursuant to MCC 3-21-310 (C),
subject to the following condition of approval required by the Idaho or City Code,
that the vacation be effective upon the ill,of a suitable replat, and be subject to
an easement for utilities in place. ~ )/~ ,O /1
Dated: June 24, 1996 /,...~//~/~L~. ,. ~~/ ~
'chard McChrystal, /
A ac _~DeClue, City Engineer
cting P & Z Clerk
FINDINGS AND CONCLUSIONS IN SUPPORT OF
APPROVAL OF VACATION OF PUBLIC RIGHT-OF-WAY
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