Loading...
HomeMy Public PortalAbout1996.12.23 John & Teresa Carey MOU, addl docsDATE: December 23, 1996 PROJECT: 95053 PAGE: 1 of 3 DAVID JOHN & TERESA RAQUEL CAREY TO CITY OF McCALL A parcel of land being portions of Blocks 1, 2 and 12, together with portions of Lenora Street, Fourth Street and the existing Alley within Block 12, all in McCalls First Addition to the McCall Townsite according to the official plat thereof Recorded in Book 1, Page 28 of Plats, Valley County Records, City of McCall, Valley County, Idaho, more particularly described as follows: BEGINNING at a point on the easterly line of said Block 2 that bears, S.08°35'59"W., 49.91 feet from the northeasterly corner thereof, said point being on the northwesterly Right -of -Way line of future Railroad Avenue, (80.00 feet wide), said point also being on the southeasterly line of that certain Parcel of land as described in Special Warranty Deed, Recorded as Instrument No. 171271, Valley County Records; thence, along the exterior boundary of said Special Warranty Deed through the following courses: 1) S.08°35'59"W., 190.35 feet along the easterly line of said block 2 to the northeast corner of Lot 16 of said Block; thence, along the north line of said Lot, 2) N.81 °24'O1 "W. , 69.33 feet; thence, 3) S.27°53'36"W., 193.33 feet to a point in the northeasterly line of Lot 12 of Block 1; thence along the northeasterly line of said Lot and Block, 4) S .28 ° 15'51 "E. , 67.03 feet to the southeast corner thereof; thence, along the southeasterly line of Lots 12 through 15 of said Block, 5) S.61°43'00"W., 100.02 feet; thence, 6) S.27°53'36"W., 107.79 feet to a point in the northwesterly line of Block 12; thence along said northwesterly line, G:\95053\WPFILES\CAREYOI.LEG DATE: December 23, 1996 PROJECT: 95053 PAGE: 2 of 3 7) S . 61 °43' 00"W . , 20.48 feet to the northeast corner of Lot 7; thence, along the northeasterly line of said Lot, 8) S.28°19'22"E., 13.72 feet; thence, 9) S.27°53'36"W., 108.51 feet to a point in the northeasterly line of Lot 4 of said Block; thence along said northeasterly line, 10) S.28 ° 17'00"E. , 47.83 feet to the southeasterly corner thereof; thence, along the southeasterly line of Lots 1 through 4 of said Block, 11) S.61 °56'41' "W., 95.96 feet; thence, 12) S.27°53'36"W., 55.63 feet to the beginning of a tangent curve; thence, 13) along said curve to the left having a radius of 2900.79 feet, an arc length of 28.55 feet, a central angle of 00 ° 33' 50" , a chord bearing and distance of S.28°10'31"W., 28.54 feet to a point on the northeasterly Right -of -Way line of Third Street, (80.00 feet wide); thence, along said northeasterly Right -of - Way line, 14) N.11 °46' 14"W. , 95.35 feet to a point in the southwesterly line of Lot 1 of said Block; thence, 15) N.27°53'36"E., 245.91 feet to a point in the southeasterly line of said Block 1; thence along said southeasterly line, 16) S.61°43'00"W., 35.07 feet to the southwesterly corner of Lot 20; thence, along the southwesterly line of said Lot, 17) N.28 ° 17' 19' "W. , 6.59 feet; thence, 18) N.27°53'36"E., 164.20 feet; thence, leaving the exterior boundary as described in said Special Warranty Deed, 19) S.62°06'24"E., 22.35 feet to a point on a non -tangent curve; thence, G:\95053\WPFILES\CAREY01.LEG DATE: PROJECT: PAGE: December 23, 1996 95053 3 of 3 20) along said curve to the right having a radius of 42.50 feet, an arc length of 70.66 feet, a central angle of 95 ° 15'46", a chord bearing and distance of N.77 ° 33' 35 "E. , 62.80 feet; thence, non -tangent from said curve, 21) S.54°48'32"E., 11.03 feet to a point on a non -tangent curve in the above described northwesterly Right -of -Way line of future Railroad Avenue; thence, along said future Right -of -Way line through the following courses: 22) along said curve to the left having a radius of 520.00 feet, an arc length of 73.17 feet, a central angle of 08°03'44", a chord bearing and distance of N.33 °59'25 "E. , 73.11 feet; thence, tangent from said curve, 23) N.29°57'33"E., 377.82 feet to the POINT OF BEGINNING. CONTAINING 1.19 Acres, more or less. SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of Record. EXHIBIT "B" attached, and by this reference made a part hereof. G:\95053\WPFILES\CAREYOI.LEG PROJECT: 95053 DATE: DECEMBER 23, 1998 SHEET 1 OF 1 e 2 271261 ?5 1241 23 m 122 LiL /� 1 EXHIBIT • McCALLS FIRST ADDITION �\ \ \v' TOWNSITE OF McCALL �� \ I \ /. trelf PORTIONS OF LOTS 13 — 20 OF BLOCK 1, LOTS 7 — 19 OF BLACK 2, LOTS 1-7, 28 AND 29 OF BLACK 12, TOGETHER WITH PORTIONS OF LENORA ST., SECOND ST. AND THE ALLEY WITHIN BLOCK 12, ALL IN McCAL LT FIRST ADDITION TO McCAL.L TOWNSITE, RECORDED IN BOOK 1 OF PLATS AT PAGE 28, VALLEY COUNTY RECORDS, CITY OF MCALL., IDAHO. IS s TOOTHMAN—ORTON ENGINEERING COMPANY cONSULTLND ENGINEERS, SURVEYORS AND PLANNERS 9777 C141401 BOULEVARD 13O6E. 10403 8.1714-2OOe �� �taej �77J�-:399 %WA L llw un BB¢006 14CALL.1 308i as4iea� $.7 FAX toe ens --suss 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 fir of a suitable replat, and be subject to an easement for utilities in place. Dated: June 24, 1996 Attest: eClue, City Engineer Acting P & Z Clerk Richard McChrystal, Chairman FINDINGS AND CONCLUSIONS IN SUPPORT OF APPROVAL OF VACATION OF PUBLIC RIGHT-OF-WAY June 24, 19' ., page 1 TOOTHMAN-ORTON ENGINEERING COMPANY Consulting Engineers and Planners 300 DIENHARD LANE P. O. BOX 4240 McCALL, IDAHO 83638 PHONE: (208) 634-4863 FAX: (208) 634-4951 TO Mr. Edward Burton City Attorney City of McCall City Hall P.O. Box 986 McCall, ID 83638 =ER OF T RAN SRIGINAL DATE 01-06-97 JOB NO . 95053 A1IENTION Edward Burton RE: LEGAL DESCRIPTION OF CAREY PARCEL DEEDED TO THE CITY OF MCCALL WE ARE SENDING YOU El Attached El Under separate cover via El Shop drawings El Prints Li Plans ❑ Samples ❑ Specifications ❑ Copy of letter Ei Change the following items: COPIES DATE NO. DESCRIPTION 12-23-96 ORIGINAL SIGNED LEGAL DESCRIPTION OF CAREY PARCEL DEEDED TO THE CITY OF MCCALL THESE ARE TRANSMITTED as checked below: El For approval El Approved as submitted 11 Resubmit _ copies for approval 11 For your use 11 Approves as noted 11 Submit _ copies for distribution 0 As requested 11 Returned for corrections El Return _ corrected prints 11 For review and comment El El FOR BIDS DUE REMARKS: 1 PRINTS RETURNED AFTER LOAN TO US COPY TO SCOTT ACKER SIGNED: If enclosures are not as noted, kindly nohb us at once. 6 ORIGINAL MEMORANDUM 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. 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 Subject 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 'a • 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. 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 r 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) Quitclaim 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 information 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 of McCall 216 E. Park Street P. O. Box 986 McCall, ID 83638-0986 208-634-7142 208-634-3038 (facsimile) City Manager With a copy to: 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 e - 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. City of McCall by: D. ohn Carey, Millemann, Pittenger & McMahan P. O. Box 1066 McCall, ID 83638 208-634-7641 208-634-4516 (facsimile) by: Dean A. Martens, Mayor by: Atte State of Idaho ) ) ss. County of Valley ) On this W1L day of �C A , in the year 1995, before me, bbbrA, r404({,4,,s not public, personally appeared D. John Care known or identified to me to be the az'Y P � P Y PP Y� president, 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 corporation, and acknowledged to me that such corporation execute he same. ames H. Henderson;_ City Clerk State of Idaho ) ss. County of Valley Notary Public for Idaho My commission expires: On this , 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 d acknowledged to me that such City of McCall executed the same. �arY Public for Idaho � �vG y commission expires: l Memorandum of Understanding printed October 25,1995, 10:30 hours page 10 PARK 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 ("MGSI"), for and in consideration of the mutual promises herein contained. Background 1. 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 thier guests as public park and recreation land. 2. MGSI owns property in the vicinity which it intends to develop for residential uses. 3. 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. 4. 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 6. 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 Department 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. 7. Use and Benefit. 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 right 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 8. 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 right 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; 9. 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. 10. Design Review and Construction. The marina and upland improvements associated with it are subject to design review by the Parks & Recreation Committee, with right 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. 11. 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. 12. Maintenance and Insurance. MGSI shall maintain any such marina, and other improvements in a condition safe for public use, and otherwise in good maintenance and repair. MGSI 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 shall 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. 10. 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. 11. Removal of Improvements 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. 12. 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 waiver of a breach of a covenant, term or condition of this Lease shall not be deemed a waiver 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 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. 21. 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 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 permits) issued to a party. 22. 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. 23. Burden and Benefit. This Lease shall bind and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. 24. 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. 25. 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. 26. 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 Attorney City of McCall City of McCall 216 E. Park Street 216 E. Park Street P. O. Box 986 P. O. Box 986 McCall, ID 83638-0986 McCall, ID 83638-0986 208-634-7142 208-634-7142 208-634-3038 (facsimile) 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 D. John Carey, Pres. Attest: 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 shalt: (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 restrooms, 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 EDWARD G. BURTON, ESQ. City Attorney City of McCall P. O. Box 1065 McCall, ID 83638-1065 (208) 634-7142 (phone) (208) 634-3038 (facsimile) ciatty@cyberhighway.net (Internet) Attorney for Plaintiff Case Filed A.M.--p•M' P 81996 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF VALLEY CITY OF McCALL ) a municipal corporation ) ) Plaintiff ) -vs.- ) ) SAM KALMAN, as Trustee of, ) or the successor Trustee(s) ) of the SAM KALMAN TRUST, ) ) Defendant ) ) Case No. CV-96- 73 JUDGMENT AND DECREE IN EMINENT DOMAIN This matter came before the Court on the Complaint of the City of McCall in eminent domain to acquire all interests not already owned by it in the following described property, and upon subsequent Stipulation of the parties respecting the disposition of the action. Good cause appearing: IT IS ORDERED, ADJUDGED AND DECREED 1. Plaintiff City of McCall, an Idaho municipal corporation is authorized by Idaho Code 50-1030(c) ("this act" being S.L. 1967, Ch. 429, which included IC 50-303) and Idaho Code 7-701 to maintain an action in eminent domain to acquire the land described on Exhibit "A" for a public uses, including public parking, including parking associated with recreational uses. 2. Defendant Sam Kalman, Trustee, owns certain of the included lands, and claims an interest in other of the included lands, by reason of a deed from the Union Pacific Railroad as successor in interest to the Oregon Short Line Railroad. 3. Defendant Kalman purchased such lands subject to the rights -of -way of Railroad Avenue, McCall Avenue, and Fir Street, which rights -of -way have been in public JUDGMENT IN EMINENT DOMAIN page 1 x J possession for in excess of 15 years and have been used by the public in excess of 15 years and kept up at public expense in excess of 10 years. 4. The land described on Exhibit "A" is not the whole of the land belonging to or claimed by the defendant that is contiguous at the location in question. However, all of the land belonging to or claimed by the defendant that is contiguous to the land described on Exhibit "A" is under an executory contract of sale that excludes and severs the land described on Exhibit "A." Hence no severence damages are owing. The land is sought for a public parking lot. Plaintiff is entitled to obtain a fee simple absolute interest for "public grounds." So much of such land as lies within 60-foot rights -of -way for Railroad Avenue, and for Fir Street, and an 80-foot right-of-way for McCall Avenue, already belongs to Plaintiff in fee simple determinable for the use and benefit of the public; as to these lands Plaintiff is entitled to convert title to fee simple absolute. 6. The defendant Kalman does not reside in Valley County, and it was therefore not necessary to plead or prove the negotiations had with him. 7. The sum of $200,000.00 is just compensation for the property interests being taken in this action, as was determined in arms -length negotiations between the parties. 8. Judgment is entered in favor of Plaintiff and against Defendant vesting title in Plaintiff as set forth above. Defendant's having received and receipted for such $200,000 through Mountain Title and Escrow, Cascade, Idaho, the statement of such Mountain Title that such sum has been paid having been received by the Clerk as proof of such payment, this Judgment is effective immediately. Dated: March_, 1996 Approved as to form: Sam Kalman George . Carey District Judge City of McCall by: Edward G. Burton, City ttornpy JUDGMENT IN EMINENT DOMAIN page 2 CONDEMNATION PARCEL :s A parcel of land situated in Block 10 and 3 of the First Addition to the townsite of McCall, Valley County, Idaho, a portion of vacated McCall Avenue lying between Blocks 3 and 10 of said First Addition and a portion of vacated Fir Street, more particularly described as follows: Commencing at a point on the southerly boundary of Lot 1 Block 10 of the First Addition to the townsite of McCall, which point is the intersection of the northerly right of way line of Pine street and the easterly boundary of the right of way of the Idaho Northern Line of the Oregon Shortline railroad: Thence, northeasterly along the easterly boundary of such' right of way to a point which lies northerly a distance of 80 feet from the northerly right of way line of Pine Street measured along a line at right angles to such northerly right of way line of Pine Street, which point is the real point of beginning; Thence, westerly along a line which is parallel to the north right of way of Pine Street, to such line's intersection with the westerly boundary of such railroad right of way; Thence, northeasterly along the westerly boundary of such railroad right of way to its intersection with the centerline of McCall Avenue; thence northerly along the centerline of McCall Avenue to the northerly boundary of Fir Street; Thence, easterly along the northerly right of way line of Fir Street to its intersection with the easterly boundary of such railroad right of way; Thence, •southerly and westerly along the easterly boundary of said right of way to the real point of beginning. legals\condemnation February 16, 1996 (1:53pm) McCALL CITY ATTORNEY Edward G. Burton, Esq. FACSIMILE LETTER To: Gregory C. Pittenger Via fax #: 634-4516 Date: December 30, 1996 Re: Boulevard Deed of Dedication/ John Carey This facsimile Letter consists of this page and 4 additional page(s). If you experience any difficulty in receiving this transmission, please call (208) 634-7142, and ask for me. HARD COPY WILL _—_WILL NOT —X_ FOLLOW (unless requested) Please Note: This letter is confidential and privileged. If the reader of this letter is not the addressee, you are notified that any dissemination, distribution or copy of this letter is strictly prohibited. If you have received this facsimile letter by mistake, please let us know immediately by phone, and then mail the original letter to us at the below address. Thank you! 216 East Park Street • P.O. Box 986 • McCall, Idaho 83638-0986 • Tel.: (208) 634-7142 • Fax: (208) 634-3038 E.mail Internet ciatty@cyberhighway.net DEED OF DEDICATION This deed is given to further define a legal description in that certain deed recorded as Instrument No. 216700 on March 1, 1996 in the office of the Valley County Recorder, which legal description was set out (among others) in Exhibit A to such Instrument No. 216700 as "BOULEVARD PARCEL", which description is restated as shown on Exhibit A to this Deed. For value received, McCall Gas Station, Inc., an Idaho business corporation, Grantor, grants, bargains, sells, conveys and dedicates in fee simple absolute to the City of McCall, an Idaho municipal corporation, Grantee, the following described real property: See legal description, Exhibit A; See map, Exhibit B located in Valley County, Idaho. Subject to patent reservations and exceptions of record, if any. DATED: December , 1996. McCall Gas Station, Inc. by: D. John Carey President Stateof Idaho, ) (ss. County of Valley. ) On this day of December, 1996, before me, , notary public, personally appeared , known or identified to me to be the president, or vice-president, or secretary or assistant secretary, of the corporation 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. Notary Public for Idaho My commission expires: ACCEPTANCE OF DEED This is to certify that on , 1996, the City of McCall by action of its Mayor and Council accepted the foregoing deed. Dated: William M. Killen, Esq. Mayor Attest: James H. Henderson, City Clerk ©On' og J CC al.,L OFFDC E OF THE C DTY ATTORNEY Edward G. Burton, Esq. FACSIMILE COVER SHEET To: Annie Goodson . Legal Assistant From: Larraine Hawes Legal Assistant Re: Annexation agreement Via fax #: 634-4516 Date: January 6, 1997 This facsimile transmission consists of this page and _3_ additional page(s). If you experience any difficulty in receiving this transmission, please call (208) 634-7142, and ask for me. HARD COPY WILL __WILL NOT —X_ FOLLOW (unelss requested) Please Note: The information contained in this facsimile message is confidential and privileged. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this facsimile communi- cation by mistake, please immediately notify us by phone and return the original message to us at the below address via the U. S. Postal Service. Thank you for your cooperation. MESSAGE Annie, I blindly faxed the legal and drawing with the Deed of Dedication regarding the City and John Carey. Page 2 of the legal was inadvertently left out of the fax I received from Toothman- Orton. I am refaxing the complete legal . Please bring this to Greg's attention. Thank you. Post Office Box 1065, McCall, Idaho 83638-1065 Telephone: (208) 634-7142 Fax: (208) 634-3038 "Exhibit A" MCC 3-15-040 (B) provides in pertinent part 4. Private docks and piers shalt: (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 restrooms, 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 ("MGSI"), for and in consideration of the mutual promises herein contained. Recitals 1. MGSI simultaneouslywith 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: k)0\� D. John Carey, Pres. by: James H. Henderson, Clerk , Secretary DEC-30-1996 09:26 I-u G✓JO JGJ GJ77 1 . CJ1 Toothman-Orton Engineering Co. 9777 Chinden Boulevard Boise, Idaho 83714-2008 DATE: TO: COMPANY: FAX: SUBJECT: SENDER: OFFICE --- (208) 323-2288 FAX — (208) 323-2399 FAX TRANSMISSION COVER SHEET /2.3d-76- r-- �d+� (2 2Z' k-t 5 c r i /J-77 0 ti J CDC.Iti% LA) YOU SHOULD RECEIVE PACES IN FAX, INCLUDING THIS COVER SHEET. IF YOU Dt NOT RECEIVE ALL PAGES, PLEASE CALL (208) 323-2288. TRANSMITTING FACSIMILE. MACHINE IS A HEWLETT PACKARD FAX-900. COMMENTS: `F'µ E 012 t Cs r,J t t_, d7 S 6 ry T D CA 4� `�o+Y, o 2it'Z 6 -: MILLEMANN, PITTENGER & McMAHAN 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 December 4, 1996 Ted Burton McCall City Attorney P.O. Box 1965 McCall, ID 83638 RE: McCall Gas Station, Inc./City of McCall Dear Ted: TELEPHONE (208) 634-7641 FACSIMILE (208) 6344516 E-MAIL mpm@cyberhighway.net I have checked with the Valley County Assessor's Office and I am advised that the record owner, for tax assessment purposes, of that portion of the former Union Pacific Right -Of -Way which is behind City Hall is presently McCall Gas Station, Inc. As you will recall, the Assessor and the State Tax Commission objected to the legal description which we used in this transaction for purposes of transferring record ownership of this parcel from McCall Gas Station, Inc. to the City. The City was going to have the property in question surveyed so that a corrected deed could be prepared and filed. In your letter to me of May 31, 1996 (copy enclosed) you indicated that Joel Droulard had be requested to prepare a survey of the two parcels in question. Please contact me upon receipt of this letter and let me know the status of the legal description. McCall Gas Station, Inc. should not be paying real property taxes on the parcels in question and in no event should title remain in McCall Gas Station, Inc. by at the end of the year. Your prompt response is appreciated. GCP/ag Enclosure cc: Client brton Very truly yours, 4;- GREGORY C. PITTENGER McCALL Edward G. Burton, Esq. Internet: ciatty®cyberhighway.net May 31, 1996 CITY ATTORNEY JUN - 3199 , MILLEMANN, PITTENGrR & MeMAHAN Gregory C. Pittenger, Esq. Millemann, Pittenger & McMahon P. O. Box 1066 McCall, ID 83638 Re: Public uses of certain McCall Gas Station, Inc. property. Closing of transaction respecting property behind City Hall Survey Advance of funding to City Dear Greg: This letter will evidence the intent of the City that public use of the de facto roads in and around the boat storage area is not intended by the City to originate any new claims of rights -of -way in lands previously quitclaimed by the City to your client. We request permission to let the public use Railroad Avenue/McCall Avenue across the 80' foot deep parcel north of Pine Street, and Railroad Avenue across the lands north of Fir Street, unless and until one or the other of us undertakes construction inconsistent with that use. We propose to exchange the State Bike Trail grant for right-of-way acquisition behind City Hall for a warranty deed to that property (Bike Trail Parcel, Railroad Avenue Parcel). We understand Mr. Carey will return that money to the City or the Urban Renewal Agency as a grant toward the construction of the `Railroad Avenue Boulevard.' We need to have a solid legal description to the property behind City Hall soon, that no one can question. Earlier, we requested that Joel Droulard prepare a survey of the two Parcels there, and we will be `bugging' him about that. Very truly yours, CITY OF McCALL Edward G. Burton City Attorney and Prosecutor cc: Urban Renewal Agency Council 216 East Park Street • P.O. Box 986 • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-3038 -�, °ii7 Ramey.!). 11. inshaw sP Via1. � VALLEY COUNTY ASSESSOR col • P.O. Box 758 • CASCADE, IDAHO 83611 • •. AD -VALOREM (208) 382-4295 • DEPT. OF DIOTOR VEHICLE (208) 382-4247 • March 25, 1996 McCall Gas Station. Inc. C/O D. John Carey, President 13520 Peach Hill Road Saratoga, CA 95070 RE: Various parcels of land, located in the City of McCall Dear Mr. Carey, -.-- /11MHIRS IAAO 11111U11111 Neri MEMBER INTERNATIONAL ASSOCIATION OF ASSESSING OFFICERS I am writing you concerning the recent Special Warranty Deed, instrument # 216700, dated 3-1-96, to the City of McCall. Please be advised that certain legal descriptions contained within this deed are unplattable. For your convenience I have enclosed a copy of this deed with the problem areas hi -lighted. Until such a time a corrected deed is recorded in Valley County, ownership will remain in McCall Gas Station. If this office can be of further assistance, please feel free to contact us. Sincerely, Deedee White Deputy Assessor enclosure cc: Gregory C. Pittenger and c a r. SPECIAL WARRANTY DEED McCALL GAS STATION, INC., An Idaho Business Corporation (Grantor), in consideration of good and valuable -consideration — to it duly paid, the receipt whereof is herebyr'aoknbwledged, does hereby grant, bargin, sell and convey to the City of McCall, Valley County, Idaho, a municipal corporation, whose address is Post Office Box 986, McCall, Idaho 83638 (Grantee) and its assigns, forever, all of Grantor's right, title, interest, estate, claim and demand, both at law and in equity of, in, and to the real property situated in McCall, Valley County, State of Idaho, as more particularly described on Exhibit A which is attached hereto and by this reference incorporated herein. This deed is made subject to the following: a) Reservation of Minerals and Mineral Rights as to the property as set forth in Quitclaim Deeds of record in favor of Union Pacific Railroad Company. b) That certain Mineral Deed dated as of April 1, 1971, from Union Pacific Railroad Company to Union Pacific Land Resources Corporation wherein Union Pacific Railroad Company conveyed all its right, title and interest in and to all minerals and mineral rights of every kind and character now known to exit or hereafter discovered in and underlying the Property including, without limiting the generality of the foregoing, oil and gas and rights thereto, together with the sole, exclusive and perpetual right to explore for, remove and dispose of, said minerals by any means or methods suitable to Union Pacific Land Resources Corporation, its successors and assigns, but without entering upon or using the surface of said Property, and in such manner as not to damage the surface of said Property or to interfere with the use thereof by Union Pacific Railroad Company, its successors and assigns. c) All taxes and all assessments levied upon or assessed against the Property for any period of time prior to and including the date of this deed shall be payable by the Grantor; all taxes and all assessments levied upon or assessed against the Property described in Exhibit A for any period of time after the date of this deed shall be payable by the Grantee; and the Grantee assumes and agrees to pay, or to reimburse the Grantor for, if paid by it, all such taxes and assessments for the period of time after the date of this deed. d) Assessments or liens by Valley County for garbage collection as provided for by law. e) Waterway agreement filed for record in the office of the Recorder of Valley County, Idaho, in Book 3 of Miscellaneous at Page 77. f) Pipeline agreement filed for record in the office of the Recorder of Valley County, Idaho, in Book 1 of Miscellaneous at Page 523. g) Any claims, disputes or other matters regarding the past or present environmental condition of the Property. h) All other conditions, restrictions, conveyance, reservations, easements, encumberences or other matters effecting the property which are of record, which are in use or which would be disclosed by accurate survey of the property or which would be disclosed by inspection of the 'property. TO HAVE AND TO HOLD, subject to the aforesaid provisions, the said Property with all the rights and appurtenances thereunto belonging unto the said Grantee, its successors and assigns, forever; and the Grantor hereby covenants with the Grantee only that it will warrant and defend the title to said Property, except as hereinbefore mentioned, unto the Grantee, its successors and assigns, against the lawful claims of all persons claiming by, from or under Grantor, but against none other, and makes no other covenants or warranties whatsoever. IN WITNESS WHEREOF, the Grantor has caused this deed to be duly executed as of the r of koarck , 1996. McCall Gas Station, Inc. By: By: D. JOHN CAREY, Present GREG C. PITTEN R, attorney in fact or D. John arey. ATTORNEY IN FACT ACKNOWLEDGEMENT STATE OF IDAHO ( County of Valley. . On this I day of 7) 16v-c_ h , 1996, before me, r �`' r " 6- - , a Notary Public in and for said State, personally appeared GREGORY C. PITTENGER, known or identified to me to be the person(s) whose name is subscribed to the within instrument as the attomey - in fact of D. JOHN CAREY, and acknowledged to me that (s)he subscribed the name of D. JOHN CAREY thereto as principal and (her) his own name as attorney in fact. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. special 4_,,,-/e,,,_ sosu1emr�4 _ NOTARY PUBLIC FOR IDAHO f1 gBN L. ,' •q,4 Residing ai: L. �N;cr - iQ `` IP It '' `0e'$ My Commission Expires: 9 _O OTAft * .epos * PUBIA°\ifeep� ZTg N��:Q',�,• o. Cosmiaios Barka: 4•4•99 EXHIBIT "A" TO SPECIAL WARRANTY DEED MCCALL GAS STATION, INC. - GRANTOR CITY OF MCCALL - GRANTEE FIRST STREET LEGAL A tract of land, located in the Southeast quarter Southwest quarter of Section 9, Township 18 North Range 3 East, Boise Meridian, Valley County, Idaho lying 50 feet on either side of the center line of the Idaho Northern Railroad right of way. Such tract is located between the West line of the Southeast quarter of the Southwest quarter of Section 9, Township 18 North Range 3 East Boise Meridian and the northerly and southerly extensions of the East right of way line of First Street, City of McCall. Such center line being described as follows: Beginning at a point on the West line of the said Southeast quarter Southwest quarter and 803.5 feet north of the southwest corner thereof; thence, north 48° 28' east from said West line of the Southeast quarter Southwest quarter to the intersection of said center line with the East line of First Street. _ ATH��.[ -1 1GH Q tract of land situated in the Southeast quarter Southwest'-' quarter Section 9 township 18 North Range Boise Meridian, Valley County, Idaho more particularly described as follows: All that portion of the right of way of the Idaho Northern Railway which lies between the platted South boundary of Park Street, McCall, Idaho and the northerly and southerly extensions of the East right of way line of First Street, McCall, Idaho. Save and excepting therefrom that portion of the right of way which is by this deed being conveyed by Grantor to Grantee as the "Railroad Avenue" description. 2 ,tract of land situated in McCall, Valley County Idaho, 'rig within the boundaries of the Idaho Northern Railway. right of way of the Oregon Shortline Railroad, which such:49 right of way is located East of Third Street and South of`"°.j Pine Street. The parties acknowledge that the exact legal description of the real property located within the boundaries of the railroad right of way as above described has not yet been determined. The Tract is question is denoted as the Boulevard Parcel in that certain Memorandum of Understanding agreed to October 26, 1995 between Grantor and Grantee and shown on the maps designated Exhibit "A" to such Memorandum of Understanding, a copy of which is on fi +e at the offices of theC tyo ECal nd -va lab for public ection ;kr DAVIS AVENUE A tract of land situated in the northeast quarter northeast quarter Section 9, Township 19 North, Range 3 East, Boise p�Meridian Valley County, Idaho, said strip being more 92 particularly described as follows. That portion of an 80 foot right of way for Davis Avenue centered on the centerline of Davis Avenue, north of Hemlock Street that is within the boundaries of the right of way of the Idaho Northern Branch of the Oregon Shortline railroad. PAYETTE LAKES TRIAL SYSTEM, THIRD STREET - PARK STREET BIKE PATH A tract of land situated in McCall, Valley County, Idaho lying West and adjacent to Third Street and North of and adjacent to Park Street within the boundaries of the Idaho . Northern Railway right of way. The exact location and description of the real property to be conveyed by this deed shall be determine pursuant to Paragraph 11a6 of that certain Memorandum of Understanding made and entered into O� between Grantor and Grantee on October 26, 1995, for a '?j segment of the bike path around Payette Lake and its intersection with a bike path to Riverside Park. At such �p time as the parties have determined the exact location of a J' bike path to be located within the boundaries of the real G property described herein, an amended deed shall be executed between the parties. RAILROAD AME1N,NE A tract of land 30 feet in width situated in the Southeast quarter_Southwest quarter Section 9, Township 18 North, Range 3 East, Boise Meridian, Valley County, Idaho more particularly described as follows: Commencing at a point at the intersection of the Northerly and Southerly extension of the East right of way line of First Street in McCall, Idaho and the Southeasterly boundary of the right of way of the Idaho Northern Railway: Thence, Northerly along the East boundary of First Street to a point which lies a distance of 30 feet from the Southeasterly right of way line of the Idaho Northern Railway along a line at right angles to such Southeasterly right of way line. Thence, along a line which is 30 feet Northerly and Westerly and parallel to the Southeasterly boundary of the Idaho Northern Railroad right of way to a point, which point. corresponds to a point where a line 30 feet distant from and parallel to the Northerly edge of Railroad Avenue, as built, no longer lies within the Idaho Northern Railroad right of way. Grantor and Grantee agree that the legal description of real property being conveyed hereby shall be amended at time as an actual _metes �a (1,,,bounds description has been e ermine°. THE ROOSEVELT RIGHT OF WAY the such A tract of land situated in Lot 2, Section 9 Township 18 North, Range 3 East, Boise Meridian Valley County, Idaho, more particularly described as follows: That portion .of Roosevelt Avenue, according to the plat of McCalls First Addition to the Townsite of McCall lying between the North line of Spruce Street and the south line of Hemlock Avenue, and lying westerly of the easterly right of way line of, the Idaho Northern Line of the -Oregon Short Line railroad. DEED OF DEDICATION This deed is given to further define a legal description in that certain deed recorded as Instrument No. 216700 on March 1, 1996 in the office of the Valley County Recorder, which legal description was set out (among others) in Exhibit A to such Instrument No. 216700 as "BOULEVARD PARCEL", which description is restated as shown on Exhibit A to this Deed. For value received, McCall Gas Station, Inc., an Idaho business corporation, Grantor, grants, bargains, sells, conveys and dedicates in fee simple absolute to the City of McCall, an Idaho municipal corporation, Grantee, the following described real property: See legal description, Exhibit A; See map, Exhibit B located in Valley County, Idaho. Subject to patent reservations and exceptions of record, if any. DATED: December , 1996. State of Idaho, (ss. County of Valley. McCall Gas Station, Inc. by: D. John Carey President On this day of December, 1996, before me, , notary public, personally appeared , known or identified to me to be the president, or vice-president, or secretary or assistant secretary, of the corporation 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. Notary Public for Idaho My commission expires: ACCEPTANCE OF DEED This is to certify that on , 1996, the City of McCall by action of its Mayor and Council accepted the foregoing deed. Dated: Attest: James H. Henderson, City Clerk William M. Killen,Esq. Mayor " DEC-30-1996 09:27 T-0 EXHIBIT A DATE: Decaaiber.23., 1996 PROJECT: 95053 PAGE: 1 of 3 DAVID JOHN & TERESA RAQUEL CAREY TO CITY OF McCALL A parcel of land being portions of Blocks 1, 2 and 12, together with portions of Lenora Street, Fourth Street and the existing Alley within Block 12, all in McCalIs First Addition to the McCall Townsite according to the official plat thereof Recorded in Book 1, Page 28 of Plats, Valley County Records, City of McCall, Valley County, Idaho, more particularly described as follows: BEGINNING at a point on the easterly line of said Block 2 that bears, S.08�35'59"W., 49.91 feet from the northeasterly corner thereof, said point being on the northwesterly Right -of -Way line of future Railroad Avenue, (80.00 feet wide), said point also being on the southeasterly line of that certain Parcel of land as described in Special Warranty Deed, Recorded as Instrument No. 171271, Valley County Records; thence, along the exterior boundary of said Special Warranty Deed through the following courses: 1) S.08�35'59"W., 190.35 feet along the easterly line of said block 2 to the northeast corner of Lot 16 of said Block; thence, along the north line of said Lot, 2) N.81�24'01"W., 69.33 feet; thence, 3) S.27�53'36"W., 193.33 feet to a point in the northeasterly line of Lot 12 of Block 1; thence along the northeasterly line of said Lot and Block, 4) S.28�15'51"E., 67.03 feet to the southeast corner thereof; thence, along the southeasterly line of Lots 12 through 15 of said Block, 5) S .61 �43' 00"W . , 100.02 feet; thence, 6) 5.27�53'36"W., 107.79 feet to a point in the northwesterly line of Block 12; thence along said northwesterly line, G A 95053\MPFILEB\CAREY0I . LEG " DEC-30-1996 09:27 T-O. em; JCJ e...177 r.w ExHIBIT A, page_2 DATE: December 23, 1996 PROJECT: 95053 PAGE: 3 of 3 20) along said curve to the right having a radius of 42.50 feet, an arc length of 70.66 feet, a central angle of 95�15'46", a chord bearing and distance of N.77�33'35"E., 62.80 feet; thence, non -tangent from said curve, 21) S.54�48'32"E., 11.03 feet to a point on a non -tangent curve in the above described northwesterly Right -of -Way line of future Railroad Avenue; thence, along said future Right -of -Way line through the following courses: 22) along said curve to the left having a radius of 520.00 feet, an arc length of 73.17 feet, a central angle of 08�03'44", a chord bearing and distance of N.33�59'25"E., 73.11 feet; thence, tangent from said curve, 23) N.29�57'33"E., 377.82 feet to the POINT OF BEGINNING. CONTAINING 1.19 Acres, more or less. SUBJECT TO all Covenants, Rights, Rights -of -Way and Easements of Record. EXHIBIT "B" attached, and by this reference made a part hereof. GA95053\NPFILES\CAREYOI.LEG PMAIACT: ! DOM !!C1111111! !s. INS MOW 1 OF 1 i rr �rr/lalasr�.r�t� rrr , EXHIBIT If BOP \\ /,, McCALLS FIRST ADDITION <\ \ \ )t- TORNSITE OF McCALL 1 K ,\.�!► 2►' 20 ►v reams OF IMO W - OD OF BLOC= 1. LOTS 7 - 1! O/ 1ROCI1 L WU 1-7. II! •II! al !I AU= IL tOa111111 11111 POIM01111 OF 1 1MORA IT.. SOM. ST Mb Ts OYSY 11111111 MCI IL ALL. DI MACAW! MOT Yl111011 TO WCOLL lOtflMllR MOM) IN MOOS 1 OF MAI IT PO➢s /M MIST COMITY MICOM. CRT Or MILL BAND. • .• •\ TONSIMAN-ORTON iNGINSIMING COMPANY Otrums vssrs, soar r wv.val TOTAL P.04 McCALL CITY MANAGER January 24, 1996 Mr. Gregory C. Pittenger Millemann, Pittenger and McMahan Attorneys at Law Post Office Box 1066 McCall, Idaho 83638 Dear Greg: I received your letter dated today, and am very pleased to see that Mr. Carey has satisfied all of the contingencies in the Memorandum of Understanding. I will present your correspondence to City Council at their regular meeting tomorrow evening for their acknowledgement. This will negate any need for an extension of time to conclude negotiations with Kalman, as requested by Jack Marshall during Council's January 11, 1996 meeting. We are prepared to move forward with all due diligence to complete our responsibilities under the MOU now that your obligations are fulfilled. We would like to coordinate with you and the closing agent to conclude all transactions in as timely a manner as possible. It will necessarily take time to move through the legal process of condemnation. We look forward to a continued close working relationship with you. Should you have any questions regarding this matter, please feel free to contact me directly. Sincerely, Gary P. Shimun City Manager 216 East Park Street • P.O. Box cr • McCall, Idaho 83638 • (208) 634-7142 • FAX (208) 634-3038 Atm eCLjMirt 12/10/96 City of McCall William M. Killen, Mayor P. O. Box 986 McCall, ID 83638 REGARDING ROOSEVELT STREET ABANDONMENT I have recently experienced difficulty with my property located at 1617 Roosevelt when the City ceased snow plowing services. Mr. Shimun informed me that Roosevelt had been sold or traded to John Carey and that I should talk to Mr. Carey about snow removal and access. I will not be contacting Mr. Carey because I believe this is a City created problem. The enclosed plat shows Roosevelt to be a city street. All city services are located in that street and connect to my property. My deed shows no other access (such as easements etc) other than the city street . Until very recently the City has maintained, plowed and treated Roosevelt as a street. By your actions, my property has been adversely impacted. I expect Roosevelt to be returned to its original conditions or an agreement entered into between the city and Mr. Carey to maintain Roosevelt as a public access in perpetuity. If this can not be accomplished, I have been advised to seek redress, including a suit for the loss in value caused by the City of McCall's Inverse Condemnation of my property. I have already inured expenses for snow removal, which I expect the City or Mr. Carey to reimburse. Please respond by December 17, 1996. I wish to avoid the continuing cost of private snow removal and the engagement of legal counsel. G� erely,� Jean Odmark cc: Gary Shimun, Ted Burton McCall City Council Y.C.J?ar 238 ak Pall, Jdaho 8J6J8 263-6:34-5758 RDINANCE7''N�O' 65'' ':; > " :' '^ AN=ORDINANCE'ADOPTING-THE OFFICIAL•.STREET-AAP OP=;n THE:CITY-.OP•McCALLVALLEY.COUNTY;.::IDAHOt'ADOPTING-- THE"NAMES;OP'•THE.-ROADS; STREETS,'•BOULEVARDS,.DRIVESk LANES,`WAYS,'CIRCLES,':ALLEYS, LOOPS, HIWAYSTRAILS: ANDPUBLIC WAYS SHOWN:bN SAID MAP AND REPEALING AND. '"?:::" ? '•'dSUPERCEDING AMCONFLICTS WITH -SUCH NW.ESvAND IN ►,:ry„k =G�"-. STRUCTING :THE CLERK ;TO' FURNISH TO' CERTAIN . GOVERNMENTALl� ' }" ':r;AGENCIES: COPIES--THEREOP' WITHOUT CHARGE, • u.4ti. ;:tt• - � f.- •. •i4•.�'1 r ..-. r'n� � - - •-. ..NawD/•t��y •...\ •v.. ... ..:4 �••,it•{: �fY It-1 ..�:...:., �. • V•• ':'-:.:. n ...T �'�.W:r,. �t W'BE IT' ORDAINED BY ;THE MAYOR AND COUNCIL i0F '•CITY_:01"- McCALL,-•IDAHO, 'AS' FOLLOWS s • • ' • Section' 1. That certain map of the City of McCall, Idaho, .-dated May.1, 1978, and entitled Official Street trap of the - City of'McCall,-Valley County, -Idaho,' shall be and is hereby adopted as.the Official Street Map of the City of McCall, Idaho. ' - I Section 2. The names of the roads, streets,boulevards, drives tines, ways, circles, alleys, loops, hiway;s, trails, and public ways as shown on said map are hereby specifically adopted as the official names of such roads, streets, boule- vards, drives, lanes, ways, circles, alleys, loops, hiways, trails and public ways and any conflict therewith are hereby specifically repealed and superceded. Section 3. The city clerk is hereby instructed to fur- nish certified copies of said map and this ordinance without charge to the Valley County Recorder and Assessor and the Idaho State Tax Commission. Passed and approved this �t::Hay of i ATTEST: g 0 c o 2 b eo et =a �= 0 W C9 n 4.1 O r rr/L •/ �.ac.u=2—=' ?;tea -t CityPc Ar/ Rober j '. i /^ *R F�� �•044 r.. r • Got! ' I •+ t arlc COurse I'J 9- ro — — — 1 LAME I urea aLLL e ! /o l/ tl , •ofG : :....,e=. :. -u . :,•mr2, • ' �'{ l�rx;'�0" //: ' ,r"FL•�.,..t-.T•i ar"'1SiP:rc c` _x ^'+ rA;: :•:.t:y.. a�•.i.1'y f,.,p� I^ ?= jc a�j4, -,- �rs�-r* T-v. �--- -•, - , J+l /d /I // John Alden Road rr Kasper Street n, Knight Road - KrtowNsRwd • I /a . r.:•: w.hnLan. /„_ _- :s: s LogStreetE —_ LakeatreA AvW.enue _ .. —r LabvMw Awnw._ •_— 1 fI n----n a Drh—• . •r /// � Lei ••- t .. Lick Creek +-I . p n" Lowers Lana .... /i ,. p Ma'ar^o'&ley Road er — =y t -McBride Street , T i' �L v i/ i ••` I/ // �... li /: n. lr- -. ' 0 .. q 1 • : � = Ll+ll• J n An L`arr --n• i bor .•.�Y(S `laarknConRoed�_._• ..r :i'•w• e, ••• ;PMNeWenPlace .. . ytc ;c s Pineaueal . .yr •"..�r^aTMau Dh.•. • ,,!4,. l • • •:I!et- Plnenuist Blvd. r •' Plnetlarsaueat ., Plackt Street Plymouth Road "s..r"`_•. Ponderosa Sueel • •-• Quail Lane . `-,: Reamed Avenue �•• . Ralnbos) Lane Reedy Lane Ridge Lane Ridge Road Rim Orbs Ring& Street Rio Vista Blvd. /j 4 A w a A River Street Rocky Shore Drive T Romine Drive Roosevelt Avenue Rowland Street Ruby Street Seddlshorn Lane Simeon Trail Scenic Drive b7ev�"" McCan Avenue x�^^r.••' McGinnis Street . Meadows Reed ;'�; Memo Circle . '- Maas Slendlsh Road MITI Road - 77.7 ' Mission Street ' Neal Street . North Shore Drive ff • Norlhvlew Road aMM^-•• --n � njisodPote a!titt:r . i \\ Shady Lane \\� Smltty Avenue Spruce Way rsf Slate Street "Zr. Stibnite Street Stockton Drive Suitor Lane Sunset Street Syringe Way Tamarack Road The Chub The loop 1 Thompson Avsnur T num street Timber Circle Timm Street Tooting Um. . Turkey Len, Volley Rim Road Wanda Avenue--�•-- Ward Street ---- WMen Wagon Road wesntogton Su,N Wales imp Lane West Valley Reed • Wad HorseDMe Wad Rose Street. Wwwrnway .. • Weird), Olive r"7•v:yyyyaI anda Wlechery Road ' let Street 2nd Street 3rd Suess eth/ltree) - ' 1, . J. r - s •