Loading...
HomeMy Public PortalAboutResolution 31-93 Amendment to an agreement between the City and Spring Mountain Ranch RESOLUTION NO. 31-93 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF McCALL, IDAHO, APPROVING AND AUTHORIZING THE EXECUTION OF AN AMENDMENT TO AN AGREEMENT BETWEEN THE CITY AND SPRING MOUNTAIN RANCH PARTNERSHIP ENTITLED "AGREEMENT FOR THE ACQUISITION OF IMPROVEMENTS,"WHICH AMENDMENT IS ENTITLED "AMENDMENT TO AGREEMENT FOR THE ACQUISITION OF IMPROVEMENTS". BE IT RESOLVED by the Mayor and Council of the City of McCall that: Section 1. The document entitled"AMENDMENT TO AGREEMENT FOR THE ACQUISITION OF IMPROVEMENTS," a copy of which Amendment is annexed hereto as Exhibit"A"is approved, and the Mayor and City Clerk are authorized to execute the same on behalf of the City. Section 2. This resolution shall take effect and be in force immediately upon its passage and approval. Passed and approved August 12, 1993. Laurence A. Smith, Jr. Mayor ATTE T: Arthur J. hmidt, City Cler E o , -n 0 ? r Ca - 0 m w › r ) Gv - • r, REEMENT FOR THE ACQUISITION OF IMPROVEMENTS T, iTAIN RANCH LOCAL IMPROVEMENT DISTRICT O )CAL IMPROVEMENT DISTRICT NO. 3) 'C1 \ , McCall, Idaho +k°` 1 NTDMENT is made this 12th day of August, 1993 , CITY OF McCALL, an Idaho municipal corporation K D` lg on behalf of the Spring Mountain Ranch Local !T.' m ct ( "Local Improvement District No . 3 " ) , and \.Q., 4. 4. o? ►NCH LIMITED PARTNERSHIP, an Idaho limited �J .� t`d V Developer" ) , and FIRST SECURITY BANK OF IDAHO, N.A. 0 1 i')i' RECITALS o 0 p . 0 O Q 0 ,�,n -‹,� 4 , -r; -< -o • and Developer entered into an Agreement for o °0 0 :c- 00- - °oImprovements dated May 13 , 1993 , in connection z ©W, om 0-3 Q 0 'ent District No . 3 , hereinafter referred to as -F C Q O =0. 0 Q has provided Developer with a loan commitment for construction of most of the improvements to be purchased under the Agreement . C . The purpose of this Amendment is to direct • disbursement of the Purchase Price due under the Agreement and to otherwise modify and amend the Agreement as set forth herein. COVENANTS In consideration of the mutual promises and covenants set forth herein, and for other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows : 1. Recitals. Each of the parties hereto represents and warrants to each other that the above recitals are true and correct and incorporated herein by reference. The Agreement and all definitions therein are incorporated herein by reference . To the extent this Amendment may be inconsistent with the Agreement, this Amendment will control . 2. Conditions Precedent. This Amendment will have no force and effect until the following conditions precedent are met : (a) The bonds for Local Improvement District No. 3 are properly issued, and sold and that all bond proceeds, less issuance costs, reserve funds and capitalized interest (the "Bond Proceeds" ) are held in an account controlled by City. • AMENDMENT TO AGREEMENT-1 - 081293 0830 SPRING-MC CALL/JSG/AMEND-AGR/F a-- (b) All of the loans committed by Bank to Developer close and Developer complies with all terms and conditions of Bank in those loans . (c) Developer assigns to Bank as security in a form acceptable to Bank all of Developer' s right, title, and interest to the Purchase Price . 3. Distribution of Proceeds. Pursuant to paragraph 5 of the Agreement, interim payments of the Purchase Price using Bond Proceeds will be made by the City to Developer to acquire each of the items or portions of the items of the Improvements as described on Exhibit C . When Developer submits a portion of an Improvement for inspection and purchase, the Developer shall also notify Bank at the same time. City shall notify Bank of all inspections of the Improvements made pursuant to paragraph 5b of the Agreement . City shall notify Bank and Developer when the Improvements are approved. At that time, Bank and Developer will advise City what portion of the Purchase Price being paid by the City is to be paid directly to Bank and what portion of the Purchase Price is to be paid directly to Developer. Bank and Developer agree that out of the Purchase Price, Bank will be reimbursed for all Improvements constructed with loan proceeds up to the amount of the advance plus any accrued interest, costs, or fees owed to Bank by Developer in connection therewith. City will have no liability to Bank or Developer if the City follows Bank' s and Developer' s mutual written instructions as to the disbursements . City shall not be obligated to disburse any money if Bank and Developer fail to provide mutual instructions . The City, Bank and Developer acknowledge that Exhibit C to the Agreement allocates the aggregate Purchase Price for various discrete portions of the Improvements . The City, Bank and Developer also acknowledge that since the execution of the Agreement, plans and specifications for portions of the Improvements have progressed or been completed and the cost for the various items or portions of the Improvements as shown on Exhibit C have been and will, as plans and specifications are completed and approved, be refined. Consequently, the City, Bank, and Developer agree that the actual Purchase Price for each item or discrete portion of an item of the Improvements may vary from Exhibit C and shall be based on the actual cost of the Improvements, completed pursuant to the approved plans and specifications all as set forth in the Agreement . Attached hereto is a revised Exhibit C, page 1 of 5, which replaces Exhibit C, page 1 of 5, attached to the original Agreement . The City, Bank and Developer agree that to the extent the actual cost of any particular discrete portion of the Improvements as identified on Exhibit C is less than the amount shown on Exhibit C, such cost saving shall be reallocated to the AMENDMENT TO AGREEMENT-2 - 081293 Contingency Fund and may be used for the payment of the actual costs associated with other discrete portions of the Improvements . In no event shall the total Purchase Price exceed the Bond Proceeds . Bank shall have no right to receive any portion of the Purchase Price once the loan has been paid in full . 4. Nonacceptable Work. In the event the City rejects any of the Improvements, City shall provide Bank and Developer with a written statement of why the Improvements are not accepted. Once the defect is remedied, Developer shall resubmit the Improvements following the procedure set forth in paragraph 3 above . 5. Obligation of Bank. By entering into this Agreement Bank assumes no obligation to City for construction of Improvements . However, in the event Bank declares a default and substitutes itself or its assignee in the place of Developer after Developer fails to cure default, the City will accept performance by Bank or its assignee in lieu of Developer in such a default situation, and the Purchase Price in such case shall be paid to Bank or as directed by Bank. In the event Bank proposes an assignee, prior to performing any work, City shall have an opportunity to approve such assignee, which approval will not be unreasonably withheld or denied by City. 6. Notice. All notices hereunder shall be in writing as specified in the Agreement . Notices to Bank shall be at Post Office Box 7069 , Boise, Idaho 83730, Attention: Income Property Finance Department . 7. Binding Effect. This Agreement is binding upon the parties hereto, their heirs, successors and assigns and may not be amended, modified or changed in any manner unless in writing signed by all parties . 8. Approval. All parties to this Agreement have obtained appropriate approvals and this Agreement may be executed in counterparts, each of which shall be deemed an original . IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. CITY: CITY OF McCALL,for itself and on behalf of Spring Mountain Ranch Local Improvement District (Local Improvement District No.3) By Laurence A. Smith, Jr. , Mayor AMENDMENT TO AGREEMENT—3 081293 d ATTEST: Arthur J. Schmidt, City Clerk APPROVED AS TO FORM: Edward G. Burton, City Attorney DEVELOPER: SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP, an Idaho limited partnership, By O'Neill Enterprises Inc.,General Partner By Peter S . O'Neill, President BANK: FIRST SECURITY BANK OF IDAHO,N.A. By Its AMENDMENT TO AGREEMENT-4 - 081293 M STATE OF IDAHO ss . County of On this day of August, 1993 , before me, a notary public in and for said county and state, personally appeared LAURENCE A. SMITH, JR. and ARTHUR J. SCHMIDT, respectively known to me to be the Mayor and City Clerk of the CITY OF MCCALL, the entity named in the above instrument, and acknowledged to me that they executed the same on behalf of such entity. 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 My Commission Expires STATE OF ) ss . County of On this day of August, 1993 , before me, a notary public in and for said county and state, personally appeared PETERS. O'NEILL, known to me to be the President of O'NEILL ENTERPRISES INC., the general partner of SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP named in the above instrument, and acknowledged to me that he executed the same on behalf of the above-named partnerships . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. NOTARY PUBLIC for Residing at My Commission Expires AMENDMENT TO AGREEMENT-5 - 081293 STATE OF IDAHO ) ss . County of On this day of August, 1993 , before me, a notary public in and for said county and state, personally appeared known to me to be the of FIRST SECURITY BANK OF IDAHO, NA., the corporation named in the above instrument, and acknowledged to me that he executed the same on behalf of such corporation. 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 My Commission Expires AMENDMENT TO AGREEMENT-6 - 081293 9 ;o t e£oed 000'006'9 S tepuog axe/ ;o tagoy pugs° 000`085 6nTouguT3 tagoy 'ESL AouebuTguo0 loop bu1ouauT,ff (99S'eL) gunoaag pun uoTganageuc0 uo e51Tuaeg geeaalux 000'g6Z Beau guemeostg puog 866'492 eeapeog e3Tnaeg ggea 8£0'0t7 gunooaTa °nee/ TauT6'a0 t9L'49V geax® . I lueaaeyy pazTtegTdsO c6uTouvu puog (9 000'OZZ'u Aoua6uT4uo3 t(gTM eguewenoadwi oTTana Taw/ 000'0TZ /[oueDuTguoa teaeue° (g 000'Q10't eguewenoadmI oTTgna Talo 000'E9Z ueoa guewdotenea w pelux - 5u7oueuT,1 (t 000'611 Aou®bupluop gu®wenoadmi oTtgnd 2 Beano° ;Too (£ 000'961'T eguemenoadtui uommo0 oTtcgnd Tows, 000'00Z emel®dg xogmBly 2 aemog 000'09C opeog egTeup 000'L6t epeog eriS;;O 000''x(. buTouea 000'5(.6 egeo0 uoTgonagsuo3-bad c alueuaenoadmi uommoo oTZctnd (z 000'Ut'z eeano0 ;to Tag0x 000'459'1 uoTaonagauop aeznoo 000190 pupa 000'66Z $ sloop uoTganageuoa..ead ceeano0 ;Tog og uoT;Tppy °Tog euTH (T Aaawwng 4a6png guotuenoadvL I oTTgng uoueg uT unof 6uTad9 „ 0 u IIflIHXa 08z3TQOw '9 d Kam SINgiinO WI ao MoIdfambo5T gFix uoa ZAumgaupli =. r LAW OFFICES DEBRA ALSAKER-BURKE REBECCA W.ARNOLD GIVENS PURSLEY & HUNTLEY JOSEPH H. BAIRD NANCY A.BASKIN SUITE 200, PARK PLACE JAMES A.MCCLURE CHRISTOPHER J.BEESON 277 NO. 6TH STREET OF COUNSEL JOANNC. BUTLER C.CREAMER POST OFFICE BOX 2720 DAVID E.MABE MICHAELLEGISLATIVE SPECIALIST JEFFREY C. FEREDAY BOISE, IDAHO 83701 JULIE KLEIN FISCHER RAYMOND D.GIVENS JUDITH K.HOLCOMBE TELEPHONE ROBERT C. HUNTLEY,JR. (208)342-6571 DAVID R.LOMBARDI KENNETH R. MCCLURE CHRISTOPHER H.MEYER FACSIMILE L.EDWARD MILLER (208)343-9492 PATRICK J. MILLER (208)342-8920 TERRY L. MYERS STEVEN L.OLSEN KENNETH L.PURSLEY August 16, 1993 CONLEY WARD STEPHANIE C.WESTERMEIER - VIA HAND DELIVERY — — y_ -- Jon S. Gorski, Esq. Moffatt Thomas Barrett Rock & Fields 911 W. Idaho, Ste 300 Boise, Idaho 83701 Re: Spring Mountain Ranch/Amendment to Acquisition Agreement GP&H File: 2675-6 Dear Jon: Here are four originals of the Amendment to Agreement for the Acquisition of Improvements, Spring Mountain Ranch Local Improvement District (Local Improvement District No. 3), McCall, Idaho, that have been executed by the City of McCall and by Spring Mountain Ranch. Please have the bank execute all four copies and retain one for your client. I would ask that you return two originals to me and send the fourth original to Bud Schmidt in McCall. Delivery of these documents to you is specifically conditioned upon the various loans closing. If the loans fail to close, you are to return the original documents to this office and they are null and void as they relate to First Security. Very truly yours, /• L. :ward Miller LEM:je Encclosures cc: Peter S. O'Neill w/o enclosures 'Bud Schmidt w/o enclosures Ted Burton w/o enclosures c 1 AMENDMENT TO AGREEMENT FOR THE ACQUISITION OF IMPROVEMENTS SPRING MOUNTAIN RANCH LOCAL IMPROVEMENT DISTRICT (LOCAL IMPROVEMENT DISTRICT NO. 3) McCall, Idaho THIS AMENDMENT is made this 12th day of August, 1993 , by and between _the CITY OFMcCALL, an Idaho municipal corporation (the "City" ) , acting on behalf of the Spring Mountain Ranch Local Improvement District ( "Local Improvement District No . 3 " ) , and SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP, an Idaho limited partnership (the "Developer" ) , and FIRST SECURITY BANK OF IDAHO, N.A. (the "Bank" ) . RECITALS A. City and Developer entered into an Agreement for the Acquisition of Improvements dated May 13 , 1993 , in connection with Local Improvement District No . 3 , hereinafter referred to as the "Agreement . " B. Bank has provided Developer with a loan commitment for -construction of most of the improvements to be purchased under the Agreement . C. The purpose of this Amendment is to direct disbursement of the Purchase Price due under the Agreement and to otherwise modify and amend the Agreement as set forth herein. COVENANTS In consideration of the mutual promises and covenants set forth herein, and for other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows : 1. Recitals. Each of the parties hereto represents and warrants to each other that the above recitals are true and correct and incorporated herein by reference. The Agreement and all definitions therein are incorporated herein by reference . To the extent this Amendment may be inconsistent with the Agreement, this Amendment will control . 2. Conditions Precedent. This Amendment will have no force and effect until the following conditions precedent are met : (a) The bonds for Local Improvement District No . 3 are properly issued, and sold and that all bond proceeds, less issuance costs, reserve funds and capitalized interest (the "Bond Proceeds" ) are held in an account controlled by City. AMENDMENT TO AGREEMENT—1 081293 0830 SPRING—MCCALLIJSG/AMEND—AGR/F (b) All of the loans committed by Bank to Developer close and Developer complies with all terms and conditions of Bank in those loans . (c) Developer assigns to Bank as security in a form acceptable to Bank all of Developer' s right, title, and interest to the Purchase Price. 3. Distribution of Proceeds. Pursuant to paragraph 5 of the Agreement, interim payments of the Purchase Price using Bond Proceeds will be made by the City to Developer to acquire each of the items or portions of the items of the Improvements as described on Exhibit C .__ When Developer submits a portion of an Improvement for inspection and purchase, the Developer shall also notify Bank at the same time. City shall notify Bank of all inspections of the Improvements made pursuant to paragraph 5b of the Agreement . City shall notify Bank and Developer when the Improvements are approved. At that time, Bank and Developer will advise City what portion of the Purchase Price being paid by the City is to be paid directly to Bank and what portion of the Purchase Price is to be paid directly to Developer. Bank and Developer agree that out of the Purchase Price, Bank will be reimbursed for all Improvements constructed with loan proceeds up to the amount of the advance plus any accrued interest, costs, or fees owed to Bank by Developer in connection therewith. City will have no liability to Bank or Developer if the City follows Bank's and Developer' s mutual written instructions as to the disbursements . City shall not be obligated to disburse any money if Bank and Developer fail to provide mutual instructions . The City, Bank and Developer acknowledge that Exhibit C to the Agreement allocates the aggregate Purchase Price for various discrete portions of the Improvements . The City, Bank and Developer also acknowledge that since the execution of the Agreement, plans and specifications for portions of the Improvements have progressed or been completed and the cost for the various items or portions of the Improvements as shown on Exhibit C have been and will, as plans and specifications are completed and approved, be refined. Consequently, the City, Bank, and Developer agree that the actual Purchase Price for each item or discrete portion of an item of the Improvements may vary from Exhibit C and shall be based on the actual cost of the Improvements, completed pursuant to the approved plans and specifications all as set forth in the Agreement . Attached hereto is a revised Exhibit C, page 1 of 5, which replaces Exhibit C, page 1 of 5, attached to the original Agreement . The City, Bank and Developer agree that to the extent the actual cost of any particular discrete portion of the Improvements as identified on Exhibit C is less than the amount shown on Exhibit C, such cost saving shall be reallocated to the AMENDMENT TO AGREEMENT-2 081293 Contingency Fund and may be used for the payment of the actual costs associated with other discrete portions of the Improvements . In no event shall the total Purchase Price exceed the Bond Proceeds . Bank shall have no right to receive any portion of the Purchase Price once the loan has been paid in full . 4. Nonacceptable Work. In the event the City rejects any of the Improvements, City shall provide Bank and Developer with a written statement of why the Improvements are not accepted. Once the defect is remedied, Developer shall resubmit the Improvements following the procedure set forth in paragraph 3 above. 5. Obligation of Bank. By entering into this Agreement Bank assumes no obligation to City for construction of Improvements . However, in the event Bank declares a default and substitutes itself or its assignee in the place of Developer after Developer fails to cure default, the City will accept performance by Bank or its assignee in lieu of Developer in such a default situation, and the Purchase Price in such case shall be paid to Bank or as directed by Bank. In the event Bank proposes an assignee, prior to performing any work, City shall have an opportunity to approve such assignee, which approval will not be unreasonably withheld or denied by City. 6. Notice. All notices hereunder shall be in writing as specified in the Agreement . Notices to. Bank shall be at Post Office Box 7069 , Boise, Idaho 83730, Attention: Income Property Finance Department . 7. Binding Effect. This Agreement is binding upon the parties hereto, their heirs, successors and assigns and may not be amended, modified or changed in any manner unless in writing signed by all parties . 8. Approval. All parties to this Agreement have obtained appropriate approvals and this Agreement may be executed in counterparts, each of which shall be deemed an original . IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. CITY: CITY OF McCALL,for itself and on behalf of Spring Mountain Ranch Local Improvement District (Local Improvement District No.3) By / FAT, Lau nce . Smith, Jr. , M.. or AMENDMENT TO AGREEMENT—3 081293 ATTEST: /41.Pir Arthur J Schmidt, City Clerk APPROVED AS TO FORM: Edward G. Burton, - City Attorney — DEVELOPER: SPRING MOUNTAIN RANCH UNITED PARTNERSHIP, an Idaho limited partnership, By O'Neill Enterprises Inc.,General Partner B sL7�1 Y Peter S . O'Neill;' President BANK: FIRST SECURITY BANK OF IDAHO,N.A. By Its AMENDMENT TO AGREEMENT-4 081293 STATE OF IDAHO ,I ) ss . County of 1171y- ) U -� On this r3 day of August, 1993 , before me, a notary public in and for said county and state, personally appeared LAURENCE A. SMITH, JR. and ARTHUR J. SCHMIDT, respectively known to me to be the Mayor and City Clerk of the CITY OF MCCALL, the entity named in the above instrument, and acknowledged to me that they executed the same on behalf of such entity. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate _ first above written. _ fl�yl NOT Y gUBLI PUBLIC Idaho Residin at My Commission Expires ,y/ /93 STATE OF igAo ) ss . County of //,- ) On this /3 — day of August, 1993 , before me, a notary public in and for said county and state, personally appeared PETERS. O'NEILL, known to me to be the President of O'NEILL ENTERPRISES INC., the general partner of SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP named in the above instrument, and acknowledged to me that he executed the same on behalf of the above-named partnerships . IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. eIo — AUDI NO-75,4c• PU LI for Residing at /KC-'a// My Commission Expires '7i/Q7 AMENDMENT TO AGREEMENT-5 081293 STATE OF IDAHO ss . County of On this day of August, 1993 , before me, a notary public in and for said county and state, personally appeared known to me to be the of FIRST SECURITY BANK OF IDAHO, N.A., the corporation named in the above instrument, and acknowledged to me that he executed the same on behalf of such corporation. 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 My Commission Expires AMENDMENT TO AGREEMENT-6 081293 AGENT FOR THE ACQUISITION OF IMPROVEMENTS AMENDED & MODIFIED EXHIBIT " C " spring Mountain Ranch Public Improvement Budget Summary 1) Nine Hole Addition to Golf Courses Pre-Canatruction Costs $ 299,000 Land 476,000 Course Construction '1,657,000 Total Golf Course 2,432,000 2) Public Common Improvementcs Pre-Construction Coate 275,000 Fencing 74;000 Offsite Roads 197,000 Onsite Roads 360,000 Sewer & Water Systema 290,000 Total Public Common Improvements 1,196,000 3) Golf Course & Public Improvement Contingency 119,000 4) Financing - Interim Development Loan 263,000 Total Public Improvements 4,010,000 5) General Contingency 210,000 Total Public Improvements with Contingency 4,220,000 6) Bond Financings Capitalized Warrant Interest 467,781 original Toone Discount 40,038 Debt Service Reserve 257,998 Bond Placement Fees 292,000 Interest Earnings on Construction Punds Account (78,568) Financing Cost Contingency 751 Total Financing 980,000 Grand Total of LID Bonds $ 6,200,000 Pike 1 of 6