HomeMy WebLinkAboutItem VI(B)1,2,3 Forest Lake Golf of Ocoee 05/28/93 10:42 $407 648 1743 FOLEY & LARDNER [ io02;008
AGENDA 6-1-93
Item VI B 1,2,3
MEMORANDUM
TO: The Honorable Mayor and City Commissioners of the City ofofOcoee
FROM: Montye Beamer, Administrative Services Director 7�`
DATE: May 28, 1993
RE: Ground Lease with Riverbend Golf Group, Inc. dated
Deramber 3. 1991. as ned the " "
The Lessee under the Lease is scheduled to close on its financing for construction
of a golf course and effluent disposal and re-use system (the "Golf Course") in the first week
of June. In connection with that financing and the project itself the City has been asked to
execute certain documents as described below.
1. Lessor's Estoppel Certificate. The City has been requested to execute a
Lessor's Estoppel Certificate (the "Certificate"), a copy of which is attached hereto as Exhibit
"A". In the Certificate, the City confirms to Lessee's mortgage lender, First Union National
Bank of Florida (the "Bank"), that the Lease is in full force and effect, and that various
approvals which Lessee is required to obtain in order to construct the Golf Course have been
obtained. Although the Lease currently provides that the City may terminate the Lease if Lessee
is unable to obtain suitable financing or the development approvals and permits necessary to
construct and operate the Golf Course by June 1, 1993, or if they may be obtained only upon
terms and conditions which in the reasonable judgment of the City render the development and
operation of the facilities economically unfeasible, the City would agree in the Certificate that
the City will not terminate the Lease under the terms of that provision so long as Lessor has
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obtained its financing for the Golf Course by June 15, 1993. In addition, the City would agree
that the Construction Phase of the Lease shall commence upon the closing of such financing even
though certain approvals required under the Lease have not yet been obtained, such as approval
of final plans for the clubhouse, the cart storage barn and the maintenance barn and approval
by Orange County of a curb cut onto Clarcona-Ocoee Road, Further, the Certificate confirms
that the City consents to a leasehold mortgage and security agreement in favor of Bank. (You
previously consented to the leasehold mortgage). The City would not subordinate any of its
rights under the Lease to such leasehold mortgage and security agreement.
2. Agreement with Respect to Purchase of Materials for Construction of Golf
curse (the "Mater als A ment" . Lessee is required under the terms of the Lease to provide
the City with a surety payment bond in the amount of the cost of constructing the Golf Course.
Lessee will be purchasing certain materials to be used in such construction which will not be
purchased through its contractors and has suggested an alternative mechanism for ensuring
payment of suppliers of such materials.
The Materials Agreement provides that the penal sum of the surety payment bonds
required to be furnished by Lessee under the Lease shall not be required to include the cost of
the materials purchased directly by Lessee in the amount of approximately $620,000. In order
to ensure that the suppliers of such materials receive payment, the Materials Agreement confirms
that the Bank has allocated loan proceeds in an amount sufficient to pay for such materials, that
the Bank will not release such funds except for the payment of such materials in the amounts and
to the suppliers listed on Exhibit "A" to the Materials Agreement (unless the cost of the various
items is less than the amount specified), and unless and until (i) it has been confirmed to Bank
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by its inspector that the materials to be paid for have been delivered to the project site and (ii)
Bank has been provided with a release of lien from the individual or firm which is being paid
for such materials. A copy of the Materials Agreement is attached hereto as Exhibit "B".
3. onse Assi m nt. On April 6, 1993, you approved an assignment
of the Lease from Riverbend Golf Group, Inc. ("Riverbend"), currently owned by Ken Ezell,
Lloyd Clifton and George Clifton, to a new entity. The new entity will be called Forest Lake
Golf Club, Ltd. ("Forest Lake"). The general partner of the new entity will be a corporation.
The shareholders of Riverbend will own 30% of the shares of the corporation and have 50% of
the voting control; the remaining 70% of the shares of the corporation and 50% of the voting
control will be held by Wayne Rich, Ed Meyer and Dick McDonald. Following such
assignment, Forest Lake will assume the obligations of Lessee under the Lease and Riverbend
will be released from any liability under the Lease for acts or omissions occurring subsequent
to the date of the assignment. You are requested to specifically authorize execution of an
instrument approving such assignment, subject to approval of the assignment documents by legal
counsel.
It is respectfully requested that the City Commission (i) approve the Lessor's
Estoppel Certificate in substantially the form attached hereto authorizing execution thereof by
the Mayor and City Clerk; (ii) approve the Materials Agreement in substantially the form
attached hereto authorizing execution thereof by the Mayor and the City Clerk; and (iii) approve
the assignment of the Lease to Forest Lake as described herein and authorize the Mayor and City
Clerk to execute an instrument approving such assignment, subject to review of the assignment
documents by legal counsel.
CAWPS11D0(S000E O1FCOISI '931 REM3MCE-v
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SENT BY:L 0 0 K & R ; 5-28-93 ; 11 :04AM 4074252429-' 407 656 5725;# 2
LESSOR'S ESTOPPEL CERTIFICATE
THIS LESSOR'S ESTOPPEL CERTIFICATE is made as of this day of June,
1993 by as the
of the City of Ocoee to and for the benefit of First Union National Bank of Florida ("First
Union").
In contemplation of the $2,620,000.00 leasehold mortgage loan to be made by First
Union in favor of Forest Lake Golf Club, Ltd. ("Forest Lake"), the undersigned hereby certifies
and agrees for the benefit of First Union as follows:
1. The facts and information set forth in this Estoppel Certificate are made to the
best knowledge and belief of the undersigned. All understandings and agreements set forth in
this Estoppel Certificate are made with the intent to bind the City, and the undersigned has the
authority to bind the City.
2, The City entered into a Ground Lease Agreement with Riverbend Golf Group,
Inc. dated December 3, 1991, as amended by a First, Second and Third Amendment thereto
dated December 17, 1992, March 16, 1993 and April 6, 1993 (as amended, the "Lease"). The
Lease is in full force and effect as of the date of this Certificate and represents a valid and
binding obligation of the City.
3, The Lease has not been modified except as described in Paragraph 2 above, and
will not be further modified without the prior written consent of First Union for so long as First
Union is a Leasehold Mortgagee with respect to the Lease. No consent is required for any
waiver by the City of Lease requirements. There are no side agreements, oral or written,
modifying the Lease, except an Agreement With Respect to Purchase of Materials .
4. Forest Lake has been delivered possession of the property pursuant to the terms
of the Lease, and the "Construction Phase" identified in Section 2.1.3 of the Lease shall
commence as of the closing of Forest Lake's loan with First Union. The "Operational Phase"
of the Lease begins upon the earlier of the completion of the Construction Phase Improvements,
or one year after the commencement of the Construction Phase. Subject to the terms and
conditions of Section 1.2(a) and (b) of the Lease, the Lease term consists of a minimum of fifty
(50) operational years and may be extended for an additional twenty-five (25) years.
5. The City hereby consents to a leasehold mortgage and security agreement to be
made by Forest Lake in favor of First Union, subject to the terms of Section 9.1 of the Ground
Lease. The City does not subordinate any of its rights under the Lease to such leasehold
mortgage and security agreement. Without further notice from First Union, pursuant to Section
9.1 of the Lease, the City agrees that the City will serve First Union by certified or registered
mail at the latest address furnished by First Union a copy of every notice of default or demand
served by the City upon Forest Lake under the terms of the provisions of the Lease so long as
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SENT BY:L D D K & R ; 5-28-93 ; 11 :05AM ; 4074252429-► 407 656 5725;# 3
First Union's mortgage is in effect, and that First Union shall have all of the rights of a
Mortgagee as set forth in the Lease. The address of First Union for this purpose shall be as
follows:
First Union National Bank of Florida
20 North Orange Avenue
Post Office Box 1000
Orlando, Florida 32802-1000
Attn: Mr. Randy Koporc (Re: Forest Lake Loan)
6. If the financing contemplated by this Certificate including the $1,000,000 equity
funding required as a condition for closing the loan, is closed on or before June 15, 1993, then
the City shall not exercise its right to terminate the Lease pursuant to Paragraph 1 of the Second
Amendment to the Ground Lease,
7. The City has received and approved:
(a) the Master Development Plan for the Facilities (except for "Verticals" as
described below), together with the irrigation and effluent disposal plan, in
accordance with the requirements of Section 2,1.1 of the Lease;
(b) the detailed engineering plans and specifications for the Facilities as described
in Section 2.2(d) of the Lease (except for "Verticals" as described below); and
(c)the final plans for the Construction Phase Improvements as well as all permit
applications with respect to the construction of the Facilities (except for
"Verticals" as described below);
(d) all permit applications and pertinent information with respect to the Effluent
Disposal and Reuse System.
Notwithstanding the foregoing, the Orange County Right of Way Utilization Permit for curb-cut
onto Clarcona-Ocoee Road must still be obtained by Forest Lake. A listing of the approved
drawings is attached as Exhibit "A" to this Certificate,
8, A Certificate of Concurrency has been issued, negating the need for any further
traffic report study as required by Section 2.1.1 of the Lease.
9, The City's Development Review Committee, Planning and Zoning Commission,
and City Commission have performed review and approval functions with respect to the
engineering plans and specifications for the Facilities as described in Section 2.2(d) of the Lease.
Review of the engineering plans and specifications by the Golf Course Selection Committee
contemplated by Section 2.2(d) of the Lease shall not be required.
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10. Notwithstanding the City's agreement to allow Forest Lake to enter the
Construction Phase, the City reserves the right to review and approve all plans, specifications
and governmental permits required in connection with the vertical construction(clubhouse , cart
storage barn and maintenance barn) proposed by Forest Lake as part of the Construction Phase
Improvements and, except as specifically set forth herein, the City does not waive or modify any
of the requirements of the Lease by execution of this Lessor's Estoppel Letter.
11. The name selected for the golf course facility shall be Forest Lake Golf Club of
Ocoee, in accordance with Section 4.7 of the Lease.
12. This Estoppel Certificate is given by the City with the understanding that First
Union will rely upon the information and the Agreement set forth in this Certificate in
connection with its granting of a $2,620,000 loan to the Forest Lake,
WITNESSES: CITY OF OCOEE, a Florida
municipal corporation
By:
Name: S. Scott Vandergrift, Mayor
Attest:
Name: Jean Grafton, City Clerk
Executed on:
(SEAL)
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY
BY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON , 1993,
LEGALITY: UNDER AGENDA ITEM
THIS DAY OF , 1993
FOLEY & LARDNER
BY:
City Attorney
300551GAIWIAVM 3
SENT BY:L D D K & R ; 5-26-93 ; 11 :06AM ; 4074252429-► 407 656 5725;# 5
ATTACHMENT: Exhibit A - List of approved Plans(to be completed)
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05/28/93 10:43 $407 648 1743 FOLEY & LARDNER al005%008
AGREEMENT WITH RESPECT TO PURCHASE OF
MATERIALS FOR C NQ STRUCTION OFLF CO E
THIS AGREEMENT is made and entered into this day of
1993, by and among FOREST LAKE GOLF CLUB, LTD., a Florida limited partnership
("Forest Lake"), FIRST UNION NATIONAL BANK OF FLORIDA, a national banking
association (the "Bank") and the CITY OF OCOEE, a Florida municipal corporation (the
"City").
rYII �TESSEIH:
WHEREAS, the City and Forest Lake are parties to a Ground Lease Agreement,
dated December 3, 1991, as amended (the "Ground Lease"), pursuant to which Forest Lake has
leased from the City approximately 230 acres of land in the City (the "Project Site") for the
development of a public golf course which can also be used for effluent transmission, disposal
and re-use (the "Golf Course"); and
WHEREAS, Forest Lake has arranged to borrow funds from the Bank in order
to construct the Golf Course; and
Forest Lake is required under the terms of the Ground Lease to
provide the City with a surety payment bond in the amount of the cost of constructing the Golf
Course; and
WHEREAS, Forest Lake will be purchasing certain materials to be used in such
construction which will not be purchased through its contractors; and
WHEREAS, Bank has hired an independent inspector to ensure that payment for
such materials is not made until the materials have been delivered to the Project Site; and
05/28/93 10:44 '8`407 648 1743 FOLEY & LARDNER Z006/008
WHEREAS, the City wants to be assured that such materials as will be purchased
by Forest Lake and used in the construction of the Golf Course are fully paid for;
NOW,THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
1. The penal sum of the surety payment bonds required to be furnished by
Forest Lake under the Ground Lease shall not be required to include the cost of the materials
listed on Exhibit "A" hereto which shall be purchased directly by Forest Lake (the "Exhibit A
Materials").
2. Forest J ake and the Bank represent to the City that Bank has allocated loan
proceeds in the amount of $ to be used to pay for the Exhibit A Materials, and
that such funds will not be used for any other purpose, subject to the terms and conditions of
the Construction Loan Agreement permitting the Bank to withhold disbursements in the event
of a default by Forest Lake.
3. Except as otherwise agreed to in writing by the parties hereto, Bank will
not release funds for the payment of any of the Exhibit A Materials except to the persons and
in the amounts listed on Exhibit "A" hereto, and unless and until the following conditions have
been satisfied:
(a) It has been confirmed to the Bank by its inspector that the materials
to be paid for have been delivered to Forest Lake at the Project Site; and
(b) Bank has been provided with a release of lien in recordable form
from the individual or firm which is being paid for such materials. (Bank agrees to
provide the City with a copy of any such lien waiver upon the City's request.)
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4. Notwithstanding any other provision hereof; (i)funds specified to be used
for purchase of an item listed on Exhibit "A" may be reallocated to the purchase of other items
listed on Exhibit "A" in the event the cost of any item listed on Exhibit "A" is less than the
specified amount; and (ii) after the cost of each item listed on Exhibit "A" has been paid in full
in accordance with the provisions of this Agreement, any portion of the funds allocated to the
purchase of Exhibit A Materials which has not been used to purchase Exhibit A Materials may
be used by Forest Lake for other purposes.
5. This Agreement is solely for the benefit of the parties hereto. No third
party shall have any right or claim hereunder.
6. Except as provided herein, the Ground Lease shall remain in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
WITNESSES: FOREST LAKE GOLF CLUB, LTD.,
a Florida limited partnership
By:
, General Partner
Executed on:
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05/28/93 10:44 $407 648 1743 FOLEY & LARDNER 2008/008
TILE CITY OF OCOEE, a Florida
municipal corporation
By:
S. Scott Vandergrift, Mayor
Attest:
Jean Grafton, City Clerk
Executed on:
(SEAL)
FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY
BY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND ON , 1993, UNDER
LEGALITY: AGENDA ITEM
THIS DAY OF , 1993
FOLEY & LARDNER
By:
City Attorney
WITNESSES: FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking
association
By:
Title:
Executed on:
(SEAL)
c:wwranaoarocommcxrwrni cEI512/93III OO Massa
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