Collection of Fee - 2011 - CWI Fee Waiver Agrt Amendment - 8/9/2011AMENDMENT TO FEE WAIVER AGREEMENT
WHEREAS, the City of Eagle and College of Western Idaho ( "CWI ") entered into a Fee Waiver
Agreement on August 9, 2011 (attached hereto as Exhibit "A');
WHEREAS, CWI assigned all of its rights and responsibilities under said Fee Waiver Agreement
to Eagle River LLC ("Eagle River "), an Arizona limited liability company on August 16, 2011
(attached hereto as Exhibit "B "); and
WHEREAS, the City and Eagle River desire to amend the Fee Waiver Agreement to allow Eagle
River to apply part of the remaining redemption balance towards as an offset of the cost for
building a public pathway as required by the City.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the City and Eagle River agree:
1. The following provisions of the Fee Waiver Agreement shall be amended as follows:
Section 2(a) shall be amended and replaced to state:
The Fee Waiver may be redeemed in accordance with Section 3 or used as an
offset to public infrastructure or public works required by the City, including but
not limited to a public pathway, during the term of this Agreement but unused
fees shall expire pursuant to paragraph (b) below.
2. The remaining provisions of the Fee Waiver Agreement shall apply to the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement dated this / day of
June, 2015.
CITY OF EAGLE
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J es D. Reynolds, ayor
ATTEST:
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EAGLE RIVER, LLC
Chuck Carlise, Manager
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ASSIGNMENT,ASSUMPTION AND NOTICE
THIS ASSIGNMENT, ASSUMPTION AND NOTICE ("Assignment") is made this 14, day of
August, 2011, by and between College of Western Idaho ("CWI"), 6056 Birch Lane, Nampa,
Idaho, 83687, ("Assignor") and Eagle River, LLC, an Arizona limited liability company
("Assignee") the same to be effective upon the full execution hereof.
RECITALS:
A. Assignor is a party to that Fee Waiver Agreement with the City of Eagle, Idaho, a
copy of which is attached hereto as Exhibit A.
B. Section 4 of the Fee Waiver Agreement permits the assignment of Assignor's
interest in the Fee Waiver Agreement upon notice of the assignment to the City of Eagle and
Assignee's assumption of Assignor's duties and obligations thereunder. Assignor desires to
assign all of Assignor's duties, rights and obligations in and under the Fee Waiver Agreement to
Assignee.
C. Assignor has the authority to assign the Fee Waiver Agreement for like kind
consideration in conformance with Idaho Code § 33-2107 and Idaho Code § 33-601(b).
D. Assignee desires to assume all of Assignor's duties, rights and obligations in and
under the Fee Waiver Agreement from Assignor.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged Assignor and Assignee agree as follows:
1. Assignment and Assumption. In conformance with the provisions of Section 4
of the Fee Waiver Agreement, Assignor does hereby assign to Assignee, and Assignee does
hereby assume all of Assignor's duties, rights and obligations in and under the Fee Waiver
Agreement. Assignor has taken the requisite action necessary to facilitate the assignment of the
Fee Waiver Agreement to Assignee. Assignee specifically agrees to be bound by and assume the
duties, rights and obligations of Assignor under the Fee Waiver Agreement, including but not
limited to all of indemnity obligations of Assignor thereunder.
2. Notice to City. Consistent with Section 4 of the Fee Waiver Agreement,
Assignor and Assignee do hereby provide notice to the City Clerk sufficient to identify the
Assignee:
ASSIGNMENT,ASSUMPTION
AND NOTICE-1
45155.0004 2504518.2
Assignee: Eagle River, LLC
Address: 485 E. Riverside Drive
Suite 100
Eagle, Idaho 83616
Telephone: 44e74 ---- ! 35?— q2-70
3. Definitions. Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Fee Waiver Agreement.
4. No Amendment/No Modification. Except as set forth herein, this Assignment
neither amends nor modifies the Fee Waiver Agreement.
5. No Third Party Beneficiary Rights. This Assignment is not intended to create,
nor shall it be in any way interpreted or construed to create, any third party beneficiary rights in
any person not a party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
ASSIGNOR:
COLLEGE OF WESTERN IDAHO
Al II\
:ert land , Prudent
ASSIGNEE:
EAGLE RIVER, LLC
By:
Name: rT eA7 I$ 4t
Title: 5 C. (?
Date: 164 zorc
ASSIGNMENT,ASSUMPTION
AND NOTICE-2
45155 0004.2504518.2
EXt41 014-
FEE WAIVER AGREEMENT
THIS FEE WAIVER AGREEMENT("Agreement") to waive certain fees charged by the
City of Eagle, Idaho ("City"), 660 E. Civic Lane, Eagle, Idaho, 83616 to the College of Western
Idaho ("CWI"), 6056 Birch Lane, Nampa, Idaho, 83687, is made and entered into this 96 day
of August,2011. City and CWI may collectively be referred to herein as"Parties."
WHEREAS, the Idaho Constitution provides for broad powers of cities to "make and
enforce within its limits, all such local police, sanitary and other regulations as are not in conflict
with its charter or with the general laws." Article XII, Idaho Const.; and,
WHEREAS, the City is a municipal corporation duly formed under the laws of the State
of Idaho and has the authority to enter into contracts pursuant to Idaho Code §50-301; and,
WHEREAS, the City has the authority "to make ordinances, bylaws, rules, regulations
and resolutions, not inconsistent with the laws of the State of Idaho, as may be expedient, in
addition to the special powers in this act granted, to maintain the peace, good government and
welfare of the corporation and its trade,commerce and industry...."Idaho Code§50-302;and,
WHEREAS, pursuant to Idaho Code §67-2322, the City is authorized to make certain
transfers to other units of government when such transfers are in the best interest of the public;
and
WHEREAS, CWI is an educational institution of higher learning duly formed under the
laws of the State of Idaho; and
WHEREAS, CWI has the authority to enter into contracts and agreements related to the
operation of their facilities as well as to accept grants of money from other governmental
agencies on such terms as may be established and imposed by the grantor in furtherance of
CWI's statutory mission pursuant to Idaho Code §33-2107; and
WHEREAS, the City and CWI enter into this Agreement having complied with their
respective statutory duties and obligations; and
WHEREAS, in order to encourage the establishment of public higher education or
training programs within the City the City intends to waive fees that the City would otherwise be
permitted to charge CWI, now or in the future as set forth herein, for certain land use •
applications, as well as the fees the City would otherwise be permitted to charge CWI for
inspections and building permits.
NOW THEREFORE, the City of Eagle and CWI do hereby mutually agree to the
following conditions:
FEE WAIVER AGREEMENT-1
45155.0001.2482681.6
Section 1: Waiver of Building Permit Fees‘ Inspection Fees. and Certain Land Use
Application Fees.
(a) Calculation of Fee Waiver. It is anticipated that CWI will lease 7,930 leasable
square feet of space within the boundaries of the City (the"Leased Premises"). In consideration
for CWI's leasing of space within the boundaries of the City for the provision of educational or
training programs, the City shall waive certain fees as set forth herein to facilitate CWI leasing
space within the City. From and after August 1,2011, a fee waiver shall accrue in the amount of
$15,860.00 ($2.00 per leasable square foot of space leased by CWI within the City) in the
periods from September I, 2011 to June 30,2012,July 1, 2012 to June 30, 2013 and July 1, 2013
to June 30, 2014 up to a maximum amount of waived fees of$47,580.00 during the term of this
Agreement (the "Fee Waiver"). The portion of the Fee Waiver accruing for each such period
shall be vested if CWI is in possession of the leased space as of the first day of each period. In
the event the Leased Premises decreases in size, the fee waiver shall accrue at$2.00 per leasable
square foot of space actually leased by CW1 up to a maximum amount of waived fees of
$47,580.00.
(b) Fees Included in Fee Waiver. The City does hereby agree to waive the
assessment and collection of building permit,building inspection and certain land use application
fees to CWI upon CWI renting space within the City in the amount of the Fee Waiver.
(c) Fees Excluded from Fee Waiver. Third party professional fees (engineering,
legal, inspection, etc.) incurred by the City in processing such land use application fees are
excluded from the Fee Waiver included in this Agreement. Moreover, impact fees assessed by
the City related to development are excluded from the Fee Waiver included in this Agreement.
Section 2: Limitation on Application of Fee Waiver and Expiration of Agreement.
(a) Limitation on Claiming of Fee Waiver. The Fee Waiver may be redeemed
annually in accordance with Section 3 below and applied to the payment of fees in an amount not
to exceed one half of the annually accrued Fee Waiver in any fiscal year of the City. "Fiscal
Year" is defined herein as the twelve month period commencing on October 1 of each year and
concluding on September 30 of the following year.
(b) Expiration. The Fee Waiver shall expire on September 30, 2018, and any
amount of the Fee Waiver not utilized by that date shall expire and this Agreement shall
terminate as of that date. In the event the Fee Waiver expires, there shall be no cash
reimbursement due and owing thereafter.
Section 3: Redemption of Fee Waiver:
When CWI, or an assignee, redeems any portion of the Fee Waiver then accrued, CWI,or
such assignee, shall submit a written request for redemption of the Fee Waiver with the Eagle
City Clerk and an accounting of the Fee Waiver shall be made by the City. The City shall
approve a request for redemption within thirty (30) days of submission or as soon as reasonably
FEE WAIVER AGREEMENT-2
45155.0001.2482881.8
practical thereafter, subject only to the limitations set forth in Section 2 above. CWI shall
confirm annually in writing to the City that it continues to lease the Leased Premises. The City
shall provide'an annual accounting to CWI, or an assignee, of the amount of the Fee Waiver that
has accrued and the amount of the Fee Waiver available for redemption subject to the provisions
of Sections 1 and 2 of this Agreement.
Section 4. Assignment of Fee Waiver.
The City acknowledges and intends that CWI shall have the absolute and unlimited right
to assign its duties, rights and interests under this Agreement, including the accrued portion of
the Fee Waiver and all future rights to the Fee Waiver. CWI's assignment of such shall be
effective upon written notice ("Notice of Assignment")to City Clerk identifying the assignee of
CWI's rights hereunder and evidencing the assignee's assumption of the duties, rights and
obligations under this Agreement. The form of the Notice of Assignment is set forth in Exhibit
A, attached hereto. Upon the assignment of this Agreement, CWI's assignee shall have the right
to exercise all rights under this Agreement, including the redemption of the Fee Waiver on the
same terms and limitations as CWI asset forth in this Agreement. Upon receipt of the Notice of
Assignment, the mayor and the city clerk are hereby authorized to sign and return to CWI and
the assignee the Acknowledgement of Assignment in the same form as attached hereto as Exhibit
B, attached hereto. Upon assignment,the assignee is bound by the terms of this Agreement.
Section 5: General Provisions
A. Automatic Termination.
This Agreement shall automatically terminate with respect to any unaccrued fee
waiver if CWI no longer has any of its educations or training programs within
Eagle City limits. Any portion of the Fee Waiver that has accrued prior to the
automatic termination may be utilized until September 30, 2018, but no Fee
Waiver shall accrue after the automatic termination provided herein. CWI agrees
to notify City within fifteen(15)days of the relocation out of the City limits.
B. Severability.
In the event that any provision or section of this agreement conflicts with
applicable law, or is otherwise held to be unenforceable, the remaining portions
shall nevertheless be enforceable and shall be carried into effect.
C. Modification.
This Agreement may be modified or amended only by a writing duly executed by
both parties.
FEE WAIVER AGREEMENT-3
45155.0001.2482681.5
D. Attorney Fees.
Should either party find it necessary to employ an attorney for representation in
any action seeking enforcement of any of the provisions of this Agreement, or to
protect its interest in any matter arising under this Agreement, or to recover
damages for the breach of this Agreement, or to resolve any disagreement in
interpretation of this Agreement, the unsuccessful party in any final judgment
entered therein agrees to reimburse the prevailing party for all reasonable costs,
charges and expenses, including attorneys' fees, expended or incurred by the
prevailing party in connection therewith and in connection with any appeal, and
the same may be included in such judgment.
E. Agreement to Cooperate. Indemnification and Hold Harmless.
The Parties agree to cooperate and exercise good faith to achieve the purposes of
this Agreement. In the event any legal or equitable action or proceeding is
instituted by a third-party challenging the validity or enforceability of any
provision of this Agreement, the Parties agree to cooperate in the defense of such
action. CWI, to the extent allowed by law, or its assignee shall defend,
indemnify, and hold City harmless from any and all tort claims or lawsuits,
including attorney fees and damages assessed thereby challenging any aspect of
this Agreement or subsequent assignment. In the event CWI or its assignee elect
in writing to the City not to defend a tort claim or lawsuit filed challenging the
Agreement or a subsequent assignment, the fee waiver accrued and not redeemed
is terminated and no further accrual will be allowed thus terminating this
Agreement.
F. Authorization.
The individuals executing this Agreement on behalf of the Parties are authorized
and empowered to bind the party on whose behalf each individual is signing.
CITY OF EAGLE COLLEGE OF WESTERN IDAHO
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Sharon Bergmann, City Cl;r .fe tiler /Lilt Secretary 4'ti OF o`'�
FEE WAIVER AGREEMENT-4
45155.0001.2482681,8
EXHIBIT A
Form Notice of Assignment
FEE WAIVER AGREEMENT-5
45155.0001.2482681.8
Exhibit B
Acknowledgement of Assignment
The City of Eagle hereby acknowledges the attached assignment of CWI's rights, duties
and obligations under the Fee Waiver Agreement between the City of Eagle and The College of
Western Idaho to the Assignee referenced therein pursuant to the terms thereof.
Dated this day of , 20__
CITY OF EAGLE
James D. Reynolds,Mayor
Attest:
Sharon Bergmann,City Clerk/Treasurer