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HomeMy WebLinkAboutEstoppel CertificateOffice of the City Attorney To: Mayor Corrie From: Bill Gigray, City Attorney Re: Cherry Lane Recreation, Inc. Date: August 18, 1999 200 E. Carlton Ave. Suite 31 PO Box 1150 Meridian ID 83680-1150 Phone: 288-2499 Fax: 288-2501 E-mail: wfg@wppmg.com -~_., AUG 1 9 1999 I am enclosing a copy of a letter from Mr. Insinger on behalf of his client, Cherry Lane Recreation, Inc., with the enclosed Estoppel Certificate which they request be executed by the City. note that the letter poses complex questions that I do not want to respond to until we confer and I receive further direction from you and staff. It is my recommendation that the request for the extension of time on the conditional use permit is a change in terms, and they will have to file an application for the amendment of the conditional use permit to include the terms they propose. As for the Estoppel Certificate, I recommend that you have all the relevant department heads review the lease agreement, and the facts relative to the Cherry Lane Recreation, Inc. lease agreement. This review should be followed by a date certain, which reports should concern performance of whether or not the Estoppel Certificate could be recommended to be executed. I recommend authorization be by Council action. In review of the Estoppel Certificate, I note that item 1 would need clarification as to the property description for the new 9 holes which relates to item 2. Item numbers 3, 4, and 7 will need thorough review. await your direction in this matter. msgIZ:lWorklMlMeridian 15360M1CherryLane land ExchangelMayor981899.Mem The City of Meridian -Idaho's Initial Point of Beginning JAMES E. RISCH DAVID D. GO55 R.JOHN INSINGER W. JOHN TMIEL MATTHEW J. GU STAVEL LAW OFFICES RISCH. GOSS & INSINGER 407 WEST JEFFERSON STREET BOISE. IDAHO 83702 August 13, 1999 VIA FAX: 466-4405 AND FIRST CLASS MAIL Mr. William F. Gigray III WHITE, PETERSON, PRUSS, MORROW & GIGRAY P.O. Box 247 Nampa, Idaho 83653 RE: City of Meridian and Cherry Lane Recreation, Inc. Conditional Use Permit and Estoppel Certificate Dear Bill: TELEPHONE (2081 345-9974 TELEFAX (2081 3a5-9982 RFCE~~Ep AUC ~ ~ ,~~g WHITE, p~._ . ,-. ,. , , Mon~o~,~ra~cic'~. ~,4uss H.4Y, P.a. ' I transmit these documents to you as Meridian City attorney, on behalf of my client, Cherry Lane Recreation, Inc. Our client is in the process of finalizing a substantial financing package to complete the improvements subject of Conditional Use Permit No. 99-009. Its lender and insurers want further confirmation of the validity of the lease, and therefore are requiring the Estoppel Certificate transmitted herewith to be executed by the City. We ask that this be reviewed and executed as soon as possible so that the financing package can be completed. Additionally, our client's lender has concerns whether the work can be fully completed in February (7 months from the issuance of the conditional use permit). It seems far more realistic in light of the delays since the Permit was issued (in part attributable to the City itself) that the completion date under the Permit be extended to approximately March 20, and this letter is to serve as a formal request for such an extension to be granted. Again, we would hope that the City can consider this request and grant such an extension as soon as possible. Our client's lender's final concern is with regard to the letter of credit it will provide pursuant to the Permit. Obviously if the improvements can be completed in the present Permit time frame this is a non-issue. However, particularly if the completion date under the permit is not extended into mid- March, the bank and our client are looking to some assurance that the City will look at any delays reasonably under all the circumstances. For example, if the project is 90% completed with completion being diligently pursued it would seem to make little sense under that circumstance to actually draw on the letter of credit or take over completion of the project. Amore reasonable approach would be to either extend the letter of credit to a reasonable time or draw on it only in an Mr. William F. Gigray III August 13, 1999 Page 2 amount reasonably required to complete the improvements from that point, holding these funds pending completion by our client. If the completion date under the permit can be extended into mid- March, from a practical standpoint this should be anon-issue. I would appreciate your immediate review on these matters and a timely response in hopes that we can all move this project forward cooperatively and in the best interests of all concerned. Thank you. RJI: min Enclosure Very T Yours, y/ .JOHN SINGER cc: Cherry Lane Recreation, Inc. Idaho Independent Bank LESSOR'S ESTOPPEL CERTIFICATE The City of Meridian, a municipal corporation of the State of Idaho, the Lessor under that certain Agreement ofLease dated October 30, 1978 (hereafter the "Lease"), by and between the City of Meridian as the Lessor (hereafter "Lessor") and Cherry Lane Recreation, Inc., an Idaho corporation as Lessee (hereafter "Lessee"), which Lease concerns the real property (the "Propert}~') which is described and set forth on Exhibit A attached hereto and incorporated herein, hereby certifies all the following: 1. The October 30, 1978 Lease is in full force and effect, with no subsequent amendments or modifications thereto and remains fully enforceable; and has been amended in effect by the addition of the second nine (9) golf holes (which now total eighteen (18) holes on the Property) by Lessee with Lessor's consent and approval. All the real property associated with the said second nine (9) holes has been made and is a part of the Property subject of the Lease as originally executed. As so amended by the additional nine holes property, the Lease remains fully enforceable and has not been otherwise amended or modified. 2. All the Property subject of the Lease upon which all eighteen (18) golf holes and the related golf course facility operated by Lessee has been duly annexed into the City of Meridian. A complete legal description of the Property subject of the Lease is attached hereto and incorporated herein by reference. 3. The Lessee has fully performed all of its obligations under said Lease, is not in default under any provision thereof, and as of this date is current in all its financial obligations under said Lease; 4. Lessor is unaware of any reason or basis for any assertion or claim by Lessor that the Lessee is or maybe in default of any term or provision of the said lease; and, Lessor has not made, and does not now make any such claim or assertion. 5. The Lessee is exclusively entitled to all the rights and subject to all obligations of the Lessee under the Lease, consistent with all terms and conditions therein. Any and all agreements with Nu Pacific or any other person or entity which might otherwise impact or impair Lessee's interest in the Lease or the property subject thereof have been terminated, no person or entity other than Lessee has rights or ability to secure or obtain any title or interest in the Lease or the Property except with Lessee's consent, which shall be at Lessee's sole discretion. 6. Lessor has not transferred, assigned or pledged its interest as landlord in the said Lease, and is the sole person or entity holding the Lessor's interest in the Lease and the subject real property; 7. Lessor presently makes no claims against Lessee for any indemnification and is aware of no matters or circumstances which would be a basis for any claim against Lessor or Lessee which would be a basis for Lessor's claim of indemnification by Lessee. 8. Lessee and its officers, directors, agents, attorneys, insurers or lenders shall have the right to rely on all matters certified to herein as of this date, and Lessor shall be estopped from subsequently asserting any contrary position except as to events which may occur hereafter. Dated this day of August, 1999. Attest: CITY OF MERIDIAN by City Clerk ROBERT CORRIE, Mayor STATE OF IDAHO ) :ss County of Ada ) On this day of August, in the year 1999, before personally appeared Robert Corrie, known or identified to me to be the Mayor of the City ofMeridian that executed the said instrument, and acknowledged to me that such he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public for Idaho Residing at My Commission Expires: