HomeMy Public PortalAboutT18NR3ES10_GolfDrivingRangeLaw Offices
.KILLEN, PITIENGER & KERRICK, P.A.
200 East Park St.
PO. Box A.O.
McCall, Idaho 83638
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Law OHices of
KILLEN & KERRICK, P.A.
200 East Park St.
P.O. Box A.O.
McCall, Idaho 83638
William M. Killen Telephone: (208) 634-7118
Carl 8. Kerrick FAX (208) 634-5880
September 8, 1992
Bryce H. Neff, Esq.
suite 126 Woodland Plaza
21243 Ventura Boulevard
Woodland Hills, California 91364
Dear Mr. Neff:
I was present at the McCall city Council Meeting on August
27th, at which time my letter to the City regarding the
Driving Range was discussed. One of the Councilman
inquired as to whether the Key Bank would be willing to
permit the city, should they desire, the opportunity to
secure a release of the Driving Range property on the same
terms as offered to the current owners, namely, the payment
of the sum of $20,000.00 plus for a partial release.
I contacted Mr. Brett Tinker at Key Bank on Thursday,
September 3rd for the purpose of exploring that possibility.
He indicated the Bank would be willing to consider it but
that obviously any final decision would be contingent on the
current owners agreeing. The purpose of this letter is to
advise you of the foregoing and solicit your response.
In essence, my interpretation of the City's position is that
if the present owners fail to clear title when the note
falls due in 1993, they wish to be positioned to obtain a
release for the Driving Range property in the event worse
case situation should arise, namely, the note is not paid
and a foreclosure were to result.
Please advise as to your willingness to cooperate in the
forgoing. Obviously, we need to have some written
documentation if everyone is agreeable; I believe we could
Bryce H. Neff Page 2 September 8, 1992
take care of that at this end, or perhaps the City Attorney
would handle it. In any event, your earliest response is
requested.
Best regards,
KI~di:Jil
William M. Killen
WMK/jd
cc: McCall Golf Foundation/Atten: Dan Hormeachea
Ted Burton, McCall city Attorney
Brett Tinker, Key Bank -Boise, Idaho
City 0/McCall
OFFICE OF THE CLERK
BOX 1065
McCALL. IDAHO 83638
September 3, 1992
Bill Killen,
Killen & Kerrick,P.A.
P.O. Box AO
McCall, ID 83638
Dear Bill,
On August 27, the McCall City Council took up your letter
dated August 11 regarding the driving range property
written on behalf of the McCall Golf Course Foundation.
The Council expressed its preference for a deed to the
property. We understand that this deed will be encumbered
with a mortgage. To mitigate the city's exposure the
Council will ask for a document from Whiteman, Neff et.
al. assuring the city that the mortgage will be paid in
full as outlined in your letter. In addition, the city
asks that a back-up agreement from the lending institution
be executed to the effect that, if the mortgage is not
paid, the city's exposure for payoff of the mortgage is
limited to $25,000. which is the amount which they asked
to receive in order to release this portion of the Spring
Mountain property from the mortgage obligation.
You attended that meeting and I trust this is concurrent
with your understanding of the Council direction. If not,
let me know. Otherwise, please proceed to prepare the
deeds and agreements and work with Attorney Burton to see
that these meet the City's
them, please provide me with
council for approval.
needs.
copies
When he
to submit
has
to
approved
the city
Thank you for your good help
this resolved yet.
in this matter. We may get
,~1
(,
Arthur J. Schmidt,
City Administrator
Law Offices of
KILLEN & KERRICK, P .A.
200 East Park St.
P.O. Box A.D.
McCall, Idaho 83638
William M. Killen Telephone: (208) 634-7118
Carl B. Kerrick FAX (208) 634-5880
September 24, 1992
Bud Schmidt, Administrator
City of McCall
P. O. Box 1065
McCall, Idaho 83638
Re: Golf Course Driving Range
Dear Bud:
Please find enclosed a copy of a response from Bryce Neff to
my letter of September 8, 1992. Following receipt of that
letter I called Brett Tinker at Key Bank to confirm the
banks position. He requested that I fax a copy of Neff's
letter to him, which I have done. He indicated he will
formally present the request and the concurrence of the
owner to the appropriate bank committee for formal approval.
Though nothing is certain, my impression is that it should
be fairly straight forward from this point on.
I would appreciate it if you would pass this information
along to the Mayor and Council and determine whether or not
they wish any further assistance on this or if they would
prefer that Mr. Burton deal with it from here on.
Please advise.
Best regards,
K~?L
William M. Killen
WMK/ch
enc.
cc: McCall Golf Course Foundation
Bryce H. Neff
LAW OFFICES
BRYCE H. NEFF
A PROFESSIONAL CORPORATION
SUITE 126 WOODLAND PLAZA
21243 VENTURA BOULEVARD
WOODLAND HIllS, CALIFORNIA 91364
AREA CODE 1818 1
704-1555
September 17, 1992
Killen & Kerrick, P.A.
200 East Park Street
P.O. Box A.O.
McCall, Idaho 83638
Dear Mr. Killen:
This will acknowledge receipt of your letter of September
8th, 1992. We are in agreement with the proposal in your letter,
and we wish you good luck in working out something with Key Bank.
truly yours,
H.~¥
BHN:s
City 0/McCall
OFFICE OF THE CLERK
BOX 1065
McCALL. IDAHO 83638
September 5, 1991
TO: Bud Schmidt, City Administrator
FROM: Charlie Denham, Golf Superintendent
The driving range at the McCall Golf Course is now in acceptable
condition. The work required to upgrade the condition is
complete and satisfactory. Hillside Nursery installed the new
clock and ran 7 new wires to split station in half to allow the
pump to keep up pressure. They also filled in low areas where
seed did not take and reseeded them. We will accept the driving
range but there will be further upgrading to the irrigation
system that will be preformed by my crew members. The final
upgrade will be to replace small 1/2" risers, from supply line
to head, with 1" swing joint risers. This will bring the volume
of water required for proper performance of the heads.
Sincerely, (}}oA~ SJ.vv,~tOvv/)
Charles Denham
Citp 0/ McCall
OFFICE OF THE CLERK
BOX 1065
McCALL . IDAHO 83638
September 5, 1991
TO: BUG Schmidt, City Administrator
FROM: Charlie Denham, Golf Superintendent
The driving range at the McCall Golf Course is now in acceptable
condition. The work required to upgrade the condition is
complete and satisfactory. Hillside Nursery installed the new
clock and ran 7 new wires to split station in half to allow the
pump to keep up pressure. They also filled in low areas where
seed did not take and reseeded them. We will accept the driving
range but there will be further upgrading to the irrigation
system that will be preformed by my crew members. The final
upgrade will be to replace small 1/2" risers, from supply line
to head, with 1" swing joint risers. This will bring the volume
of water required fer proper performance of the heads.
Sincerely,
(Jv.v\. £,lj ~v...,,_t"<'>v"·'·l
Charles Denham
" . . . . . . . . . � " " " - - " " " " " " " " " " " " " _ _ . . . . . - - - . . . . . . . . - . . . . . . . . . . . - - . . _ _ _ _ _ _ _ w _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - _ _ "
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I-~!)Hlilltel-Institutional Series Gear-Driven Sprinkler
ratcheting noise when adjusted to the
maximum arc (360°).
4. Adjust to any arc between 40° and 3600
To Decrease Arc
1. In sert the key end of the Hunter wrench
into the adjustment socket (Fig. 2 & 3).
2. Whil e ho lding the nozzl e turret at the right
stop, turn the wren ch co unterclockwi se.
Each 360 0 turn of the wrench decreases
a rc 45°
3 . Wren c h will s top turning or there will be a
ratcheting noise when ad ju sted to the
minimum arc (40 °).
4. Adjust to any arc between 40° and 360 0
.
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ARC ADJUSTMENTS All 1-25 adjustab le
heads are preset a t approximate ly 1800
Sprinklers may be adj usted with water on or off .
It is recommended that initi a l adjustme nt be
made before installation.
1. Using the palm of your hand , rotate the
noz zle turret counterclockwise to left stop
(Fig . 1).
2. Now, rotate the nozzle turret clockwise to
right stop. This is th e fixed side of the arc .
The nozzle turret mu st be held in this
position for all arc adjustme nts .
To Increase Arc
1 In se rt the key end of the Hunter wre nch
into the adjustment socket (Fig. 2 & 3).
2. While holding th e nozzle turret at the
right stop, turn the wrench clockwise .
Each 3600 turn of the w ren c h in c reases
arc 45°
3. Wrench will stop turning or there will be a
,/
F!g. 2
·,
WARRANTY DEED OF GIFT
For value received, W.N.L . W. , Inc., an Idaho
corporation, Grantor, grants, bargains, sells, and conveys to
the City of McCall, an Idaho municipal corporation, Grantee,
the following described real property:
That certain parcel of land, located in the NE 1 / 4 of the
NW 1 / 4, Section 10, T. 18 N., R. 3 E., B. M., more
particularly described as follows:
Commencing at the NW 1 / 16th corner of Section 10,
T. 18 N., R. 3 E . , B. M., Valley County, Idaho, a
5 / 8 inch rebar;
Thence N. 0° 09' 08" E. a distance of 35.00 feet
along the west 1 / 16th line of such Section to the
real point of beginning;
Thence continuing N. 0° 09' 08" E. a distance of
915 feet;
Thence due East a distance of 335.00 feet to a 5 / 8
inch rebar;
Thence S. 36° 18' 00" E. a distance of 229 feet to
a 5 / 8 inch rebar;
Thence S. 24° 36' 32" W. a distance of 732.68 feet;
Thence S. 0° 09' 08" W. a distance of 65 feet to a
point which lies 35.00 north of the north 1/16th
line of such Section;
Thence N. 89° 45' 52" W. a distance of 167.73 feet
to the point of beginning;
containing 6.841 acres, more or less, bearings
being based on State Plane Grid Azimuth.
located in Valley County, Idaho;
Subject to easements, reservations and exceptions of record,
and subject to that certain mortgage recorded in Valley County
as Instrument No. 161012 on April 25, 1988, and re-recorded
as Instrument No. 161024 on April 27, 1988, but with the
benefit of that certain Partial Release Agreement between the
parties and Key Bank of even date herewith.
.'...... ..
And the Grantor covenants that it is the owner in fee
simple of the described real estate, and that it is free of
all encumbrances not above-described, and that it will
warrant and defend the same from all lawful claims
whatsoever.
DATED: AprilS, 1993
W. N . L . W., Inc.
by: k fVA----J
')
State of (14~;A.--
ss.
County of ~~~5
On this /tfIL.. . day of dYj/.i ,in the year 1993,
before me, !lflfrVDf£ );il'oh(ft{ ::":".Ef-;-notary public, personally
appeared BR.yer; H:NEFF ,known or identified to me to bei
the president, or vice-president, or secretary or assistant
secretary, of the corporation that executed the instrument or
the person who executed the instrument half of said
corporation, and acknowledged to me hat such corporation
executed the same.
~......
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STATE OF IDAHO )
) ss.
County of Ada )
On this 5th day of April, 1993, before me, the undersigned, a Notary Public in
and for said State, personally appeared MARVIN E. WHITEMAN, JR., known or
identified to me to be the President of WNLW, INC., 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public for Idaho
Residing at (b0Jlt. .\t.. :@~
My commission expires: C,\1\1t..
Law Offices of
KILLEN & KERRICK, P.A.
200 East Park St.
P.O. Box A.O .
MeCa", Idaho 83638
William M. Killen Telephone: (208) 634-7118
Carl B. Kerrick FAX (208) 634-5880
August 11, 1992
Bud Schmidt, Administrator
city of McCall
P. O. Box 1065
McCall, Idaho 83638
Re: Driving Range property
Dear Bud:
I met Tuesday morning the 11th with Bryce Neff, one of
Whiteman's partners on the Driving Range property, together
with Sam Alacano and Rich Hormaechea from the Golf
Foundation. The Foundation had suggested the meeting in an
attempt to resolve the current impasse over the provision of
the contemplated deed to the City for the Driving Range
property. As you probably recall on behalf of the
Foundation I contacted Whiteman and Mr. Neff last fall in an
attempt to obtain the deed to position the Foundation to
convey the property to the City when it came to light that
there was a blanket encumbrance on the property, things
ground to a halt. We were somewhat reluctant to accept a
deed which was not free and clear , it being my perception
that the City intended the title to be property to be in
that condition.
For what its worth I went back and reviewed a copy of the
agreement between the Foundation and Whiteman and it is
somewhat ambiguous. As I understand it was drawn by Mr.
Udell on behalf of Whiteman. Be that as it may, at the
present time the owners of record are ready and willing to
provide a deed to the City subject to the existing
encumbrance which I am advised is scheduled to he paid off
in 1993. Mr. Neff indicated he would provide a written
confirmation of that timetable. If the City is reluctant to
accept a deed with that condition at this time another
alternative would be to have the owners of record simply
lease the property to the City for a nominal charge, say
$1.00 and good and valuable consideration, coupled with a
specific agreement to convey free and clear following the
1993 payoff.
I
Bud Schmidt, Administrator Page Two August 11, 1992
From my recollection of how the City's insurance policy is
setup this would provide a simple mechanism for bringing the
property within the scope of the city's liability coverage
which, as I understand it, is a matter of some concern to
the council, and simply defer the formal conveyance of title
until next year.
While other alternatives are being explored at the present
time these are the only two that were immediately obvious.
Please advise as to whether either of these two alternatives
are satisfactory to deal with the current situation and, if
so, whether or not the city has any particular preference as
to the form of deed or lease. For what its worth we had
contemplated a gift deed.
will await your response.
Best regards,
K~I)t:L
William M. Killen
WMK/ch
cc: McCall Golf Foundation
Mr. Neff
Frank Brown, Golf Course Advisory Committee
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A G R E E M E N T R E G A R D I N G D R I V I N G R A N G E
T H I S A G R E E M E N T , m a d e a n d e n t e r e d i l l t o a s o f t h i s 7 t h d a y
o f S e p t e m b e r , 1 9 8 9 , b y a n d b e t w e e n M A R V I N E . W H I T E M A N J R . ,
h e r e i n a f t e r r e f e r r e d t o a s " O w n e r " a n d t h e M C C A L L G O L F C O U R S E
F O U N D A T I O N , I N C . ~ a n o n - p r o f i t c o r p o r a t i o n a u t h o r i z e d t o o p e r a t e
a n d e x i s t i n t h e S t a t e o f I d a h o , h e r e i n a f t e r r e f e r r e d t o a s
" D e v e 1 ( , p e r . N
W I T N E S S E T H :
W H E R E A S , O w n e r p r e s e n t l y o w n s r e a l m o r e
p a r t i c u l a r l y d e s c r i b e d a s f o l l o w s :
A p a r c e l o f l a n d s i t u a t e i n t h e N E 1 / 4 o f t h e N W 1 / 4 o f
S e c t i c l n 1 1 2 1 o f t h e T . 1 8 N . , R . 3 E . B . M . , V a l l e y C o u n t y , I d a h o
m o r e p a r t i c u l a r l y d e s c r i b e d a s f o l l o w s :
C o m m e n c i n g a t t h e N W 1 / 1 6 c o r n e r o f S e c t i o n
1 1 2 1 � T . 1 8 N . , R . 3 E . , B . M . V a l l e y C o u n t y ,
I d a h o a 5 / 8 N r e b a r ;
T h e n c e , N . 1 2 1 d e g r e e s 0 9 ' 0 8 " E . 3 ~ . 1 2 1 1 2 1 f e e t
a l o n g t h e w e s t e r l y b o u n d a r y o f s a i d N E 1 / 4 o f
t h e N W 1 / 4 t o t h e R E A L P O I N T O F B E G I N N I N G ;
T h e n c e , c o n t i n u i n g N . 0 d e g r e e s 1 2 1 9 ' 1 2 1 8 " E a s t
9 1 5 . 1 2 1 1 2 1 f e e t t h e n c e , E . 3 3 5 . 0 1 2 1 f e e t t o a 5 / 8 "
r e b a r ;
T h e n c e , S . 3 6 d e g r e e s 1 8 ' 1 2 1 1 2 1 " E . 2 2 9 . 1 2 1 1 2 1 f e e t
t o a 5 / 8 " r e b a r ;
T h e n c e , S . 2 4 d e g r e e s 3 6 ' 3 2 " W . , 7 3 2 . 6 8
f e e t ,
T h e n c e , S . 1 2 1 d e g r e e s 1 2 1 9 ' 1 2 1 8 " W . , 6 5 . 1 2 1 1 2 1 f e e t
t o a p o i n t 3 5 . 1 2 1 1 2 1 f e e t n o r t h e r l y o f t h e
s o u t h e r l y b o u n d a r y o f s a i d N E 1 / 4 N W 1 / 4 , .
T h e n c e , N . 8 9 d e g r e e s 4 5 ' 5 2 " W . , 1 6 7 . 7 3
f e e t , t o t h e P O I N T O F B E G I N N I N G c o n t a i n i n g
6 . 8 4 1 a c r e s m o r e o r l e s s . B e a r i n g s b a s e d o n
S t a t e P l a n e G r i d A z i m u t h .
S u b j e c t t o e a s e m e n t s , r e s t r i c t i o n s ,
r e s e r v a t i o n s a n d e n c u m b r a n c e s o f r e c o r d o r
a p p e a r i n g o n t h e p r e m i s e s .
A g r e e m e n t R e g a r d i n g D r i v i n g R a n g e - 1
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WHEREAS, Owner, as part of the Whispering Forest
Planned-Unit Development, desires to deed the above-described pr~perty to the City of McCall for use as a driving range in
conjunction with the McCall City Golf Course;
WHEREAS, Developer has funds available and desires to
develop and improve the real property hereinbefore described
above by constructing a golf driving range, which improvements
a 1 ~. c. wi 1 1 bed e die ate d t (. the Cit ..... .:. f M': Ca 1 1 ;
NOW, THEREFORE, for and in consideration of the mutual
promises herein contained, the parties agree as follows:
That the Developer, at its sole cost and expense, wi 1 1
improve the real property hereinbefore described by constructing
the r' e c. nag"1 f d r i v i n g r'a r, g e w h i c h , u pc, nco m p 1 e t ion, wi 1 1 be
dedicated to the City of McCall; and
That said Devel~per shall construct the golf driving
range improvements in a fashion acceptable to the City and in a
fashion which is compatible to the overall golf course
development plan of Owner and, in doing so, will confer with Tom
Kerr, or any other designees of Owner, to make sure that the
improvements are done in a fashion compatible ~ith the Whispering
Forest Planned-Unit Development golf course plan and in a fashion
which is acceptable to Owner; and
.
That the parties hereby agree that they are not acting as
master/servant or employer/employee and that there is no business
association or business relationship whatsoever and that
Developer is solely responsible for anything in anywise related
to the procurement, construction and development of the golf
course driving range upon Owner's land.
Developer, by execution of this document, accepts all
financial responsibility and all liability resulting from the
improvement of the property ~bove described and shall enter into
or include in any agreement with employees or contractors
p r c· v i din g 1 a to c. r , IT, ate r' i a 1 ::. 0 rim p r' CI ve 0'1 e n t s , t hat the sa i oj
Developer i~. re~.pon::·ible and liable, nClt Owner, arid' fUrther, that
the employee, contractor, supplier or anyone else . providing
gc.ods, ~.ervice~. and rrlaterial;., ::.~,all lClok solely tel the Develclper'
and waives any and all lien rights or any rights of or to
paYment, whichever is appropriate, against Owner, any of his
associates or the Whispering Forest Planned-Unit Development,
that they may otherwise have.
Developer agrees that the improvements in the form of a
golf driving range to Owner's land shall be fully completed and
accepted by the City of McCall within one year from the date
hereof. Owner hereby agrees, ' upon completion of all the terms of
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this agreement and upon completion within the time frames ~. e t
forth herein of the golf driving rarige improvements and in a
manner acceptable to the City of McCall and in conformance with
the' Whi::.pering For·es.t Planned-Unit Development g.:olf cour's.e plan
and acceptable to Owner, to deed the above-described real
propert y to the Cit v of McCall.
Time i~. 0 f the essence of this agreement and IT IS
EXPRESSLY UNDERSTOOD AND AGREED that any delay in enforcing the
performance of any provisions of this agreement shall not operate
to Waive, or be a waiver of, the right of either party to enforce
any of the provisions of this agreement, in accordance with its
terrrl~.•
IT IS FULLY UNDERSTOOD that Developer fully indemnifies
Owner for injuries, damages and any payments or liabilities
involving goods, labor and services contributed to and the
developmen~ or ~he golf driving range, including attorney fees
and C(,sts..
In the event dispute arises between the parties hereto
for interpretation or enforcement of this agreement, the
prevailing party shall be entitled to reasonable attorne y fees
and costs. In the event that a third party names the Owner in
any proceedings, Developer hereby agrees to defend and indemnify
Owner in all respects, including attorney fees and costs.
The parties hereto do further agree to promptly execute
any and all documents necessary to carry out the intent, purpose
and specific provisions of this agreement.
Thi~. agreement shall be binding upon the heir~" per'sonal
representatives, successors and assigns of th~ parties hereto.
This agreement shall be interpreted in accordance with
the laws of the State of Idaho.
Developer shall hoid a special meeting wherein the
members thereof shall accept the terms of this agreement and
authorize the execution thereof.
IN WITNESS WHEREOF, the parties have hereunto set their
hands of the day and year first above written.
DEVELOPER:
MC CALL GOLF COURSE FOUNDATION, INC.
Agreement Regarding Driving Range -3
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8 'd• I '•
OWNER:
-~~~~~~----------Marvin E. Whiteman, Jr.
STATE OF IDAHO,
( ~.~..
Coun~Y of Valley. )
On thi::. _2~ day (If September. 1989, befc.re ITle, the
undersigned, a Notary Public in and for said State, personally
appeared ENES SAM ALACANO, known to me to be the person whose
name is
acknowle
subscribed to
dged to me that
the
he ex
within and
ecuted the
foregoing instrument,
same.
and
affixed
IN
by
WITNESS
official
WHEREOF,
seal the
I have
day and
hereunto set
year last above
my hand
written.
and
Notary Public for Idaho
Re::.iding at:
My commission expires:
STATE OF IDAHO, )
( s::· •
County of Valley.
On this _.U~~da ...·· of September, 1989. before me, the
undersigned, a Notary Public in and for said State, personal,y
appeared MARVIN E. WHITEMAN, JR •• known to me to be the person
whose name is subscribed to the within and foregoing instrument,
and acknowledged to me that he executed the same.
IN WITNESS WHEREOF. I have hereunto set my hand and
affixed by official seal the day and year last above written.
__c=;t~__Q~__~____ _
Notary Public for Idaho
Re::.iding at: ~~.s~ c :YO
My cOlTlrrd~.::.ion e>,~pire::.: ~t\RC.tt I&-, I<\<i'l
Agreeme~tReg~~dih9 Driving Range -4
CITY of McCALL
POST OFFICE BOX 1065
McCALL. IDAHO 83638·1065
LAURENCE A. SMITH, Mayor
ARTHUR J. SCHMIDT, City Clerk and Administrator
EDWARD G. BURTON, City Attorney and Prosecutor
208-634-7142 ~voice)
208-634-3038 (fax)
FACSIMILE TRANSMISSION
To: Ed Miller Via fax #: 1 (208) 343-9492
From: Ted Burton Date: March 22, 1993
Re: Partial Release
This facsimile transmission consists of this page and 4 additional pagers). If you experience any
difficulty in receiving this transmission, please call (208) 634-7142, and ask for me or Sheryl Brewer.
HARD COpy WILL WILL NOT X FOLLOW
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 communication by mistake, please immediately notify us by
phone and return the original message to us at the above address via the U. S. Postal
Service. Thank you for your cooperation.
MESSAGE
Ed:
Behind this page, the draft Release form, 4 pages, ~
reviewed by Mayor or Councilor Golf Committee.
The May 1, 1993 drop dead date is based on Neff's lette
to us of August 6, 1992, copy submitted as page 5 of the fol
lowing. The November 3, 1992 date is based on Mr. Tinker's
letter to Killen of November 3, 1992, quoting $17,000.
We remain open to constructive suggestions.
So you sent Webb off to NWPC? Or is there some other
reason for Givens, Pursley, Webb& Huntley?
Cheers.
Ted
CITY of McCALL
POST OFFICE BOX 1065
McCALL. IDAHO 83638-1065
LAURENCE A. SMITH, Mayor 208-634-7142.(voice)
ARTHUR J. SCHMIDT, City Clerk and Administrator 208-634-3038 (fax)
EDWARD G. BURTON, City Attorney and Prosecutor
FACSIMILE TRANSMISSION
To: Bret Tinker Via fax #: 1 (208) 334-7137
From: Ted Burton Date: March 22, 1993
Re: Partial Release
This facsimile transmission consists of this page and _5_ additional page(s). If you experience any
difficulty in receiving this transmission, please call (208) 634-7142, and ask for me or Sheryl Brewer.
HARD COpy WILL WILL NOT X FOLLOW
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 communication by mistake. please immediately notify us by
phone and return the original message to us at the above address via the U. S. Postal
Service. Thank you for your cooperation.
MESSAGE
Bret:
Behind this page, the draft Release form, 4 pages, ~
reviewed by Mayor or Councilor Golf Committee.
The May 1, 1993 drop dead date is based on Neff's lette
to us of August 6, 1992, copy submitted as page 5 of the fol
lowing. The November 3, 1992 date is based on your letter t
Killen of November 3, 1992, quoting $17,000.
We remain open to constructive suggestions.
Thank you for your help.
Ted
PARTIAL RELEASE AGREEMENT
This Agreement is made March 22, 1993, by and between
the City of McCall, an Idaho municipal corporation ("City"),
Key Bank of Idaho, a KeyCorp bank, of Boise, Idaho ("Bank"),
Bryce H. Neff and Susanne N. Neff, husband and wife, of
Woodland Hills, California ("Neffs"), Marvin E. Whiteman,
Jr., of Boise, Idaho ("Whiteman"), and W.N.L.W., Inc., an
Idaho corporation ("Owner"), as part of the giving of a deed
by Owner to City for the real property described below.
1. Whiteman and McCall Golf Course Foundation, Inc. entered
into an Agreement Regarding Driving Range dated
September 7, 1989. Pursuant to the approvals of the
Whispering Forest Planned-Unit Development, the
approvals of the Spring Mountain Ranch Planned-Unit
Development, and pursuant to that Agreement Regarding
Driving Range, Owner is obligated to deed the golf
driving range property to City, without payment. In
reliance on that Agreement Regarding Driving Range, and
in reliance upon Owner's obligations under such
approvals, such Foundation has constructed a driving
range upon the property. The property is described as
follows, and is called the "driving range" in the rest
of this Agreement:
Commencing at the NW 1/16th corner of Section 10,
T. 18 N., R. 3 E., B. M., Valley County, Idaho, a
5/8 inch rebar;
Thence N. 0° 09' 08" E. a distance of 35.00 feet
along the west 1/16th line of such Section to the
real point of beginning;
Thence continuing N. 0° 09' 08" E. a distance of
915 feet;
Thence due East a distance of 335.00 feet to a 5/8
inch rebar;
Thence S. 36° 18' 00" E. a distance of 229 feet to
a 5/8 inch rebar;
Thence S. 24° 36' 32" W. a distance of 732.68 feet;
Thence S. 0° 09' 08" W. a distance of 65 feet to a
point which lies 35.00 north of the north 1/16th
line of such Section;
Thence N. 89° 45' 52" W. a distance of 167.73 feet
to the point of beginning;
containing 6.841 acres, more or less, bearings
being based on State Plane Grid Azimuth.
2. Neffs and Whiteman are indebted to Bank upon a loan,
payment of which is secured by a mortgage of real
property of which the driving range is but a part, which
PARTIAL RELEASE AGREEMENT page 1
mortgage is recorded in Valley County as Instrument No.
3. The parties all wish to provide a mechanism whereby the
driving range can now be conveyed to the City, subject
to the mortgage, but without exposing the City to a
foreclosure in the event of default under the mortgage,
with the attendant risk of having to pay unknown
amounts of the loan to protect the driving range.
4. Bank agrees with City, and Neffs, Whiteman, and Owner
consent to the making of such agreement, that Bank will
satisfy the mortgage as to the driving range, and
release the driving range from the lien of the mortgage,
upon the first to occur of the following three events:
a. Reduction of the principal amount of the loan
secured by the mortgage, by a sum of $17,000.00
since November 3, 1992, disregarding for these
purposes any further advance since that date
("future advances"), or
b. A default under the mortgage, or
c. The arrival of May 1, 1993, with or without any
such payment or default.
Such an event is called "event" and such satisfaction
and release is called "release" in the rest of this
Agreement
5. Any party believing that an event has occurred shall
give written notice of the occurrence to the other
parties to this Agreement, by certified mail, return
receipt requested. Thereafter Bank shall have 30 days
within which to prepare and deliver to City the
necessary documents for the release. The occurrence of
an event shall not preclude considering a later event a
separate, cumulative cause for a release.
6. If the event is exclusively a default, in order to
obtain the satisfaction of the mortgage as to the
driving range, and the release of the driving range from
the lien of the mortgage, City shall pay Bank a sum
computed by subtracting from $17,000.00 the aggregate of
all principal amounts paid upon or credited against the
loan secured by the mortgage after November 3, 1992,
disregarding for these purposes any future advances.
The making of such a payment by City shall give rise to
a corresponding obligation of Owners to reimburse the
City within 90 days after City makes payment.
7. Neffs, Whiteman, Owner and Bank agree that City is
entitled to obtain from Bank from time to time and on
City's request, a report as to the then present
principal balance upon the loan, as to any future
PARTIAL RELEASE AGREEMENT page 2
advances, and as to the existence or non-existence of a
default.
8. Neffs, Whiteman, Owner and Bank acknowledge that City is
accepting a deed to the driving range, and will expend
City funds with respect to the driving range, in
reliance upon this Agreement.
9. The parties' addresses for notice shall be:
City of McCall Key Bank of Idaho
P. O. Box 1065 P. O. Box 2557
McCall, ID 83638 Boise, ID, 83701
Attn.: Arthur J. Schmidt Attn.: Bret A. Tinker
City Clerk Commercial Banking
Mr. & Mrs. Bryce H. Neff Mr. Marvin E. Whiteman, Jr.
Suite 126 Woodland Plaza 2254 Braniff Street
21243 Ventura Blvd. Boise, ID, 83706
Woodland Hills, CA 91364
W.N.L.W., Inc.
Marvin E. Whiteman, Jr., Pres.
2254 Braniff Street
Boise, ID, 83706
10. If any legal action or proceeding related to this
Agreement is begun by any party to this Agreement, the
prevailing party shall be entitled to recover its
commercially reasonable attorneys fees and witness and
expert witness fees, incurred in prosecuting or
defending the same. The City shall be entitled to such
fees, if the prevailing party, notwithstanding the fact
that the City Attorney is salaried.
11. This Agreement is governed by the law of Idaho, and
Valley County, Idaho is the proper venue.
12. Time is of the essence with respect to the obligations
of the parties under this Agreement.
13. Any rights and remedies stated in this Agreement are
cumulative.
14. The neglect of any party to enforce its rights at any
particular times or upon any particular occurrences
shall not preclude resort to those rights at any other
time or with respect to any other occurrences. Any
waiver of any right 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. If City notifies Bank that it intends to
make payment as provided for in the event of a default,
Bank shall afford City adequate time to pursue its
budget process for the appropriation of such sum.
PARTIAL RELEASE AGREEMENT page 3
15. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, successors and
assigns.
16. 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; this Agreement shall
survive the giving of the deed to the driving range to
the City.
DATED: March 22, 1993
City of McCall
Laurence A. Smith, Jr.,
Mayor
Attest:
Arthur J. Schmidt,
City Clerk
Key Bank of Idaho W.N.L.W., Inc.
by: by:
Its Its President
by: by:
Its Its Secretary
Bryce H. Neff Marvin E. Whiteman, Jr.
Susanne N. Neff
PARTIAL RELEASE AGREEMENT page 4
A~G-7-92 FRI 7:13
i i III :
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LAW OF"fICES I : I
BRYCE H. NEFF I! l, I &~
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iAugust 6, 1992
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,
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I i I~illen , Kerrick, P.A. ~ ! , ,
Iwilliam M. Rillen , I '
:P.O. Box. A.O.
Mccall, Idaho 83638
I ,Re: McCall Driving Range
II I ,
I , I , IDear Mr. Killen: I ' I
I I
I am Faxing to you a copy of the ag. F n
I t~
'
I
driving range and a copy of the Gift Deecl~i i
: I
Marvin Whiteman and I have a persona~ 1
, connection with the 120 acres parcel out ~~w·~h
is dedicated for driving range purposes. : I
I ; i
We do not wish to accelerate the te~ ~ f
are not to interested in coming up with ~I~~ 0
in time to clear title with the lien holA ~-'" ~
due and payable the end of April, 1993. ,i
We, ie Marvin Whiteman and myself aleI ;
1
deed to this parcel executed by W.N.L.W.,! P I
which presently holds title to the 120 ac!~
the McCall Golf Course Foundation, Inc. '""'I~"4I'"'I~
only to the extent that Marvin E. Whi teme rI, r
President of W.N.L.W., in this Quitclaim In~II~~~e
II i Very t il
! I
: IBRYCE i ' lfE
: 11 IBHN:s Ii :I I
~ i A~~?'"Y1-~ i/ 1fJt~.,'
! , ,'72 Yr!cv t I I
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P.0
E Ize WOOOL.ANO f'L~Z~
3 VENTURA aOULe:VARO
'NO HilLS, CALI FORNI" 91364
AR'!:... coc>£ tal al
704-I!lSS
:
i , egard~ng the
:you prepared.
tion in
this 6.8 acres
is note and we
o at this point
whole thing is
9 to have a gift
,0 Corporation
ur Gift Deed to
e to be modified
:ould sign as the
ceo
'rs,
CITY of McCALL
OFFICE OF THE CITY ATTORNEY
POST OFFICE BOX 1065
McCALL . IDAHO 83638-1065
EDWARD G. BURTON, Esq.
City Attorney and
City Prosecutor
208-634-7142 (voice)
208-634-3038 (fax)
December 16, 1992
Mr. Bret A. Tinker
Vice President
Commercial Banking Center
Key Bank of Idaho
P. O. Box 2557
Boise, Idaho 83701
Re: Whiteman, Neff (McCall City Golf Course Driving Range)
Dear Sir:
Bill Killen (as an appreciated volunteer) has been in
touch with you about reaching an agreement for partial
release of the golf driving range from the lien of your
mortgage interest in that and other property. This office
has been instructed by the City Council to pursue these
discussions to agreement, if possible. I understand that
the owners of the golf driving range are willing to deed it
to us now, subject to such lien. We need some assurance
that if their world collapses and they are unable to meet
their obligations, our ability to secure the property free
of the resulting foreclosure will exist, and the associated
liability will have been earlier quantified.
We would propose, if it is satisfactory to yourself,
to draft an agreement for partial release, which may be
invoked by the City at any time prior to a sale upon
foreclosure by the Bank, in exchange for then payment by the
City to the Bank of $17,000 or such lesser sum as then has
the same percentage relationship to the sums owing under
such obligation as $17,000 has to the present obligation.
We envision such an agreement would be signed by the City,
the Bank, the present obligors upon the debt to the Bank,
and the present owners of the property (if different) .
Possibly the execution of this agreement would be
simultaneous with the delivery of the deed to the City.
If you have any concerns or suggestions, please let us
know.
Very truly yours,
--z:;;f~~
Edward G. Burton
City Attorney and Prosecutor
Law Offices of
KILLEN & KERRICK, P.A.
200 East Park St.
P.O. Box A.D.
McCall, Idaho 83638
William M. Killen Telephone: (208) 634·7118
Carl B. Kerrick FAX (208) 634·5880
April 10, 1992
McCall Golf Course Foundation
Dan Hormeachea, Secretary
P. O. Box 187
McCall, Idaho 83638
Re: McCall Driving Range
Dear Dan:
Just a brief note to bring you current. I have been in
touch off and on over the course of the winter with Mr.
Bryce Neff, an attorney from Southern California, who is a
partner with Whiteman on the land adjoining the golf course.
I had been referred to him by Marv Whiteman last fall when I
was making inquiry regarding the status of the deed on that
property. I last spoke with him on April 1st of this year.
As of the present time the partnership is basically at an
impasse on the matter since the lender involved, namely Key
Bank, is not particularly willing to release the driving
range parcel without some reduction in the debt secured by
the overall land holdings. For obvious reasons the
partnership is not particularly desirous of fronting any
additional money at the present time. It is my under
standing that it is somewhere in the neighborhood of
$25-30,000.00.
What, if anything, the Foundation wishes to do to encourage
them to follow through on their commitment is something the
Foundation Board may wish to discuss at their next meeting.
I know the City is interested in completing the acquisition
but whether they would be willing to accept a deed subject
to the encumbrance is questionable. As I read the agreement
entered into in September of 1989 it would appear that the
Foundation, as the developer, has fully performed their end
of that agreement, and that the city, at least by inference
stands ready, willing and able to accept the improvements
and land as completed in conformance with their require
ments; the only thing left to do is the execution and
transfer of a deed by the owner.
McCall Golf Course Foundation Page Two April la, 1992
I have enclosed a copy of that agreement in the event you no
longer have yours. Let me know if you wish anything
further.
Best regards,
K~).
William M. Killen
WMKjch
enc.
cc: Bud Schmidt, City Administrator
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