HomeMy Public PortalAbout1999.04.09 M Resorts Pump Station AreaMILLEMANN, PITTENGER & McMAHAN, LLP
ATTORNEYS AT LAW
706 NORTH FIRST
POST OFFICE BOX 1066
MCCALL, IDAHO 83638
STEVEN J. MILLEMANN
GREGORY C. PITTENGER
BRIAN L. McMAHAN
AMY N. PEMBERTON
April 9, 1999
Cherry Woodbury, City Clerk
City of McCall
P. O. Box 986
McCall, ID 83638
Re: Easement Agreement
Dear Cherry:
TELEPHONE: (208) 634-7641
FACSIMILE: (208) 634-4516
EMAIL: mpm@cyberhighway.net
Pursuant to your request, enclosed please find a copy of the recorded Easement
Agreement between the City of McCall and M Resorts. Please note that the recordation
information (which usually appears on the last page of a document) is actually located on the last
page of Exhibit `B". Exhibit "C" follows thereafter. I checked with the Recorder to make sure
that the entire Agreement did, in fact, get recorded. It was recorded and the scanner picked it up
in its entirety (including Exhibit "C").
Sincerely,
DEBRA MARTENS,
Legal Assistant
/dm
Enc.
1,„
MILLEMANN, PITTENGER & McMAHAN, LLP
ATTORNEYS AT LAW
706 NORTH FIRST
POST OFFICE BOX 1066
McCALL, IDAHO 83638
STEVEN J. MILLEMANN
GREGORY C. PITTENGER
BRIAN L. McMAHAN
AMY N. PEMBERTON
November 19, 1998
Brian Olson, Manager
City of McCall
P. O. Box 986
McCall, ID 83638
Re: M Resorts Pavilion Site
Dear Brian:
TELEPHONE: (208) 634-7641
FACSIMILE: (208)634-4516
E-MAIL: mpm@cyberhighway.net
Pursuant to our conversations, enclosed for your review is a proposed Easement
Agreement between M Resorts and the City. This document has not yet been reviewed by my
clients; however, I would expect any changes they might want to be minimal. Our hope is that
we can bring this Agreement to a point of being mutually acceptable to you, Dave Bieter and us
in time to present it for City Council approval on December 3. Thank you for your continuing
cooperation and assistance.
Sincerely,
STEVEN ' MILLEMANN
SJM/dm
Enc.
cc: Clients
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT is entered into by and between M RESORTS,
LTD., an Idaho limited partnership, whose address is (hereinafter
referred to as "M Resorts") and the City of McCall, a municipal corporation (hereinafter referred
to as "the City").
RECITALS
M Resorts owns certain property, located within the City of McCall, Valley County,
which property is more particularly described as follows (hereinafter referred to as "the M
Resorts Property"):
Lots 1 through 8 of the Shellworth Park Subdivision, as the same is
platted with the Office of Recorder of Valley County, Idaho.
M Resorts acquired the M Resorts' property from the Shore Club Lodge, Inc.
The City owns certain property, which adjoins the M Resorts property and which is more
particularly described in the attached Exhibit "A" (hereinafter referred to as "Gift Deed Parcels").
The Gift Deed Parcels were acquired by the City from the Shore Club Lodge, Inc. by means of a
Gift Deed dated August 22, 1983. The Gift Deed was filed with the Office of Recorder of Valley
County on July 9, 1983 as Instrument No. 130387. The purpose of the Gift Deed was to provide
the City with ingress and egress to a water pumping facility which was located between the Gift
Deed Parcels and Big Payette Lake.
On or about February 11, 1983, the Shore Club Lodge, Inc., granted to the City an
easement to the easterly portion of Lot 8 of the Shellworth Park Subdivision, as the same is
platted of record with the office of Recorder of Valley County, Idaho. The easement was to
allow for the construction by the City of a water pumping station. The parties entered into an
Easement Agreement documenting said easement, which was filed with the office of Recorder of
Valley County, Idaho, on March 14, 1983, as Instrument No. 126501. A copy of the aforesaid
Easement Agreement is attached hereto as Exhibit `B" and is hereinafter referred to as "the
Easement Agreement". The easement allowed the City to construct and maintain a " ... one
story flat roofed frame or brick building approximately sixteen feet by thirty feet (16' x 30') to
house water pumps and motors, chlorinating equipment therefor, a water intake device connected
EASEMENT AGREEMENT - 1
to a water pipe extending into Big Payette Lake, controls for all such equipment and stand by
emergency electrical power supply ....". The property referred to in the Easement Agreement
is hereinafter referred to as "the Easement Parcel."
The City has discontinued its use of the water pumping station, except for the housing of
booster pumps associated with the City's potable water distribution system.
The Gift Deed Parcels consist of two parcels, which are described in the attached Exhibit
"A", and which are depicted on the attached Exhibit "C". The Gift Deed provides that:
The property described on Exhibit "A" and conveyed by this Gift Deed is
appurtenant to the property described in that certain Easement recorded as
Instrument No. 126501, records of Valley County, Idaho (hereinafter
"Easement"), and Grantor reserves unto itself, its successors and assigns,
all rights and uses attendant to the property, which rights and uses are not
in conflict with Grantee's ingress and egress to the property described in
said Easement. In the event of a termination of Grantee's rights under the
Easement, the exclusive right to use the property conveyed shall revert to
Grantor its successors and assigns."
Pursuant to the City's approval of the Shore Lodge Planned Development, M Resorts
intends to construct a pavilion with associated improvements, appurtenances, and amenities
(hereinafter "the Pavilion"), as depicted and described in M Resorts' Shore Lodge PUD/PD
submittals and as further described and defined in the documents being submitted and to .be
submitted by M Resorts in support of its application for a building permit for the facility. The
Pavilion will overlay the M Resorts property, the Easement Parcel, and the Gift Deed Parcels.
As part of its construction of the pavilion, M Resorts has agreed to construct a new facility for
the City booster pumps, together with a new non -portable water line and pumping facility, for the
City's use, should the City elect in the future to pump water from Big Payette Lake at the Shore
Lodge site. All of the aforesaid construction will be performed by M Resorts, at M Resorts'
expense, and pursuant to plans and specifications, a time table, and in a manner acceptable to the
City.
The parties desire to clarify M Resorts' entitlement to construct the pavilion, in
compliance with the terms of the City's approval of the Shore Lodge PUD/PD and in conformity
with all applicable federal, state and local statutes, codes and regulations.
NOW, THEREFORE, for the mutual covenants, conditions and considerations recited
herein, the parties agree as follows:
EASEMENT AGREEMENT - 2
1. THE CITY'S CONSENT TO CONSTRUCTION ON "THE EASEMENT
PARCEL": The City hereby agrees that M Resorts' construction of the pavilion, in part, on the
Easement Parcel does not constitute any interference with the City's Easement rights. The City
hereby waives and releases M Resorts from any claim that the construction, maintenance, repair
or replacement of the pavilion constitutes any breach by M Resorts of the Easement Agreement,
or constitutes any interference with or damage to the rights held by the City under the Easement
Agreement.
2. THE CITY'S GRANT OF EASEMENT TO GIFT DEED PARCELS: The
City hereby grants to M Resorts a permanent, perpetual and exclusive easement to and in the Gift
Deed Parcels for the purposes of M Resorts' construction, maintenance, repair and replacement
of the pavilion. This Easement shall constitute a permanent, perpetual and exclusive covenant
benefiting M Resorts' property and burdening the Gift Deed Parcels in perpetuity. The
characterization of this Easement as an "exclusive easement" shall not preclude the City's
continued use of the parcels for maintenance of its booster station, ingress and egress thereto, and
ingress and egress to the new, non -portable water line and pumping facility to be constructed by
M Resorts as described below.
3. M RESORTS' RELOCATION OF BOOSTER PUMP FACILITY: As part
of the pavilion construction project, M Resorts shall construct a new building to house the City's
aforesaid booster pumps. M Resorts shall relocate the booster pumps to the new facility and
shall be responsible for the construction and installation of all associated necessary lines,
plumbing and fixtures. The booster pump facility shall be constructed in a location acceptable to
the City and shall in all respects be constructed according to a time table and according to plans
and specifications which are acceptable to the City and which shall be approved by the City in
advance of the construction. To the extent that the booster pump facility is, in whole or in part,
located off of the parcels of property described in the Gift Deed, then, upon completion, M
Resorts shall provide to the City a recordable, permanent easement in a form and substance
acceptable to the City, allowing for the City's maintenance, repair and replacement of 'and
ingress and egress to the booster pump facility, in perpetuity.
4. M RESORTS CONSTRUCTION OF NEW WATER INTAKE LINE AND
PUMPING SYSTEM: M Resorts shall construct a new non -portable water line from the City's
EASEMENT AGREEMENT - 3
current intake line in Big Payette Lake to the M Resorts Property which has been preliminarily
platted as the Whitetail PUD. The line shall be utilized by M Resorts to deliver non -potable
water from Big Payette Lake to the Whitetail Property. As part of the construction, M Resorts
will construct a separate pumping facility on the line for the City's exclusive use, for the purpose
of the City's transport of water from Big Payette Lake to the west side of McCall. Upon
completion, the entire new delivery system shall be dedicated to the City and an easement
providing for access to the delivery system for maintenance, repair, and replacement shall be
granted to the City. Upon approval by the City of the plans and specifications for this entire
delivery system, M Resorts shall prepare and tender for City approval an agreement specifying
the respective rights and responsibilities of the parties regarding the construction and future use
of this delivery system.
5. SUCCESSION: This Agreement shall be binding on and shall inure to the
benefit of the successors, assigns and representatives, of the parties hereto.
SO AGREED AND COVENANTED the date first hereinabove noted.
M RESORTS, LTD. by
M RESORTS, INC., General
Partner of M Resorts, Ltd.
CITY OF McCALL
By: By.
DOUGLAS F. MANCHESTER, KIRK EIMERS, Mayor
President
ATTEST:
By:
, City Clerk
EASEMENT AGREEMENT - 4
STATE OF ,)
(ss.
County of .)
On this day of , 1998, before me,
a Notary Public in and for said State, personally appeared DOUGLAS F. MANCHESTER,
known or identified to me to be the President of M RESORTS, INC. as General Partner for M
RESORTS OF IDAHO, LTD. that executed the instrument or the person who executed the
instrument on behalf of said corporation, and acknowledged to me that such corporation executed
the same.
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
Residing at:
My Commission Expires:
EASEMENT AGREEMENT - 5
- •21
EXHIBIT "A"
SHORE CLUB LODGE, INC., a corporation duly organized and
existing under the laws of the State of Idaho, Grantor, In order to aid and
encourage the improvement and extension of the municipal water supply system
and to Improve fira protection for the benefit of the City and its residents and
visitors, does hereby convey, release, remise and forever quitclaim unto the
CITY OF McCALL, a municipal corporation of the State of Idaho, Post Office Box
1065, McCall, Idaho 83638, Grantee, and Its successors, those certain pieces or
parcels of real property more particularly descrihed on Exhibit A attached
hereto and trade a part hereof by this reference, sai�� property to be
devoted to and uses-exaTusTveT for the benefit of the public.
TO HAVE AND TO FtOLD the said premises, with its appurtenanzes,
unto said Grantee, and lts successors forever, without warranty of title. The
property is conveyed subject to taxes, assessments, and all easements,
restrictions, reservations, encumbrances and other exceptions to title, whether
or not of record.
The property described on Exhibit A and conveyed by this Gift teed
is appurtenant to the property described in that certain. Easement recorded as
instrument No. 126501, recnrds of Valley County, Idaho (hereinafter
"Easement"), and Grantor reserves unto itself, its successurs and assigns all
rignts and uses attendant to the property, which rights and user: are nut in
conflict with Grantee's ingress and egress to the property described in said
Easement In the event of d termination of Grantee's rights under :he
Easement, the exclusive right to use the property conveyed ;hall revert to
Grantor. its successors and assigns.
"
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