Collateral Assignment of Development Agreement with Metx, LLCCity of Dubuque
City Council
CONSENT ITEMS # 14.
Copyrighted
October 21, 2024
ITEM TITLE: Collateral Assignment of Development Agreement By and
Between the City of Dubuque and Metx, LLC
SUMMARY: City Manager recommending City Council approval of a
collateral Assignment of the Development Agreement by and
between the City of Dubuque and Metx, LLC for the
rehabilitation of 1690 Elm Street, dated for reference October
12, 2017, as amended, in favor of Bankers Trust Company.
RESOLUTION Approving City Consent To Collateral
Assignment Of Development Agreement By And Between
The City Of Dubuque, Iowa And Metx, LLC From Metx, LLC
To Bankers Trust Company
SUGGUESTED Receive and File; Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
1. MVM Memo
2. Staff Memo
3. Collateral Assignment Agreement
4. Resolution of Approval
Page 305 of 1713
Dubuque
THE CITY OF
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Masterpiece on the Mississippi zoo�•*o
rP PP 2017202019
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Collateral Assignment of Development Agreement By and Between the
City of Dubuque and Metx, LLC
DATE: October 16, 2024
Economic Development Director Jill Connors is recommending City Council approval of
a collateral Assignment of the Development Agreement by and between the City of
Dubuque and Metx, LLC for the rehabilitation of 1690 Elm Street, dated for reference
October 12, 2017, as amended, in favor of Bankers Trust Company.
Metx, LLC has undertaken the rehabilitation of the property at 1690 Elm Street, creating
a facility that has allowed the Crescent Community Health Center to expand its
operations.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jill Connors, Economic Development Director
Page 306 of 1713
Dubuque Economic Development
Department
THE CITY OF 1300 (wain street
All•Ameria10V Dubuque, Iowa 52001-4763
UB E I k"I""`"I""q Office (563) 589-4393
1 I I TTY (563) 690-6678
I® http://www.cityofdubuque.org
2007-2012*2013
Masterpiece on the Mississippi 2017*2019
TO: Michael C. Van Milligen, City Manager
FROM: Jill M. Connors, Economic Development Director
SUBJECT: Collateral Assignment of Development Agreement By and Between
the City of Dubuque and Metx, LLC
DATE: October 16, 2024
INTRODUCTION
The purpose of this memorandum is to request City Council approval of a collateral
Assignment of the Development Agreement by and between the City of Dubuque and
Metx, LLC for the rehabilitation of 1690 Elm Street, dated for reference October 12, 2017,
as amended, in favor of Bankers Trust Company.
BACKGROUND
Metx, LLC has undertaken the rehabilitation of the property at 1690 Elm Street, creating
a facility that has allowed the Crescent Community Health Center to expand its
operations.
DISCUSSION
Metx, LLC is now refinancing the project and desires to assign the collateral of the
development agreement, namely the tax increment financing rebates, to the lender,
Bankers Trust Company.
The purpose of the collateral Assignment is to allow Bankers Trust Company to step into
the shoes of Metx, LLC in the event of a default under the loan documents. In short, if
such a default occurred, Bankers Trust Company could then acquire the property through
enforcement of its rights under the loan documents and then would have the same rights
as Metx, LLC under the Development Agreement.
The attached agreement is the City's consent to this collateral assignment.
Page 307 of 1713
RECOMMENDATION
I recommend the City Council adopt the attached resolution approving the Assignment of
the Development Agreement by and between the City of Dubuque and Metx, LLC in favor
of Bankers Trust Company.
Page 308 of 1713
CONSENT OF CITY TO COLLATERAL ASSIGNMENT OF
DEVELOPMENT AGREEMENT
THIS CONSENT OF CITY TO COLLATERAL ASSIGNMENT OF DEVELOPMENT
AGREEMENT (the "Consent") is made as of October 14, 2024, by the City of Dubuque, Iowa
("City"), in favor of BANKERS TRUST COMPANY, an Iowa banking corporation ("Bank").
RECITALS
A. Pursuant to that certain Loan Agreement dated October 14, 2024 by and among METX,
LLC, a Iowa limited liability company (the "Developer"), and Bank (collectively, the
"Loan Agreement"), Bank has required that Developer assign, transfer and set over to
Bank, and Developer has agreed to assign, transfer and set over to Bank, all right, title and
interest of Developer in, to and under, among other collateral, the Development Agreement
and the Grant Payments (as those terms are defined in that certain Collateral Assignment
of Development Agreement, between Developer and Bank, a copy of which is attached
hereto (the "Assignment")) as a first priority security and collateral for the payment and
performance by Developer of the Loan (as such term is defined in the Assignment) and all
of Developer's obligations under the documents entered by Developer in connection
therewith.
B. City, as a parry to the Development Agreement, desires to consent to the Collateral
Assignment of the Development Agreement and acknowledge that Bank is relying on this
Consent in making the Loan to Developer.
NOW, THEREFORE, for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, City, for the benefit of Bank and its
successors and assigns, hereby:
1. Certifies a true, correct and complete copy of the Development Agreement entered into by
Developer and City on October 12, 2017, which agreement was amended by that certain
Amendment to Development Agreement entered into on October 21, 2019 by the City and
Developer, and which was further amended by that certain 2nd Amendment to Development
Agreement entered into on March 16, 2020 by the City and Developer (collectively, the
"Development Agreement"), is attached hereto as Exhibit "A" and evidences the entire
agreement between City and Developer with respect to the development of the Project (as
defined in the Assignment). The Development Agreement has not otherwise been
amended, supplemented or otherwise modified as of the date hereof.
2. Acknowledges that Developer is assigning and granting a security interest in all of
Developer's right, title and interest in and to the Development Agreement to Bank as
further security for the Loan, including, any and all other Collateral rights related thereto.
3. Agrees that the assignment of the Development Agreement pursuant to the Assignment is
expressly permitted and shall not constitute a Default or Event of Default under the
Development Agreement.
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4. Represents and warrants to Bank that: (i) the Development Agreement is currently in full
force and effect; (ii) City has not given any notice of default to Developer; (iii) the
Development Agreement constitutes the valid and binding agreement of City, enforceable
in accordance with its terms; and (iv) City has the full authority under all applicable state
and local laws and regulations, to perform all of its obligations under the Development
Agreement.
5. States that it has no knowledge of any notice of any prior assignment, sale, hypothecation
or pledge of Developer's interest under the Development Agreement.
6. Upon an Event of Default, agrees to make any future payments, including the Grant
Payments, due to Developer under the Development Agreement, if any, to Bank. Upon the
occurrence and continuation of any Event of Default, City shall issue payments to the Bank
at the address set forth in Section 12, below, or if payment is made by wire transfer, the
funds shall be wired to Bank by instructions given by Bank to City.
7. Upon receipt of demand of Bank during an Event of Default, agrees to yield to the direction
of or action of Bank on behalf of Developer under the Development Agreement.
8. Agrees that unless Bank declares an Event of Default under the Loan Agreement and
assumes the Developer's obligations under the Development Agreement, Bank neither
assumes nor has any obligations to City to exercise Developer's rights as provided in the
Assignment or to declare an Event of Default (as defined in the Assignment), but that the
option to exercise such rights or declare an Event of Default rests in the sole and absolute
discretion of Bank.
9. Represents that as it relates to the Project, it has no counterclaim, right of set-off, defense
or like right against Developer except for those rights contained within the Development
Agreement or provided at law.
10. Agrees that it will provide Bank with a copy of any notice of default required under the
Development Agreement at the same time and in the same manner as it is to be provided
to Developer pursuant to the Development Agreement, and that Bank shall have the right,
but not the obligation, to cure any such default on behalf of Developer within the cure
periods in favor of Developer set forth in the Development Agreement.
11. Agrees that it will not terminate any portion of the Development Agreement or cease to
perform its obligations thereunder for any reason, including Developer's failure to make
any payments to City, without giving written notice as provided in the Development
Agreement and thirty (30) days' prior written notice to the Bank as is provided in this
Consent to Bank of such intention to terminate or cease performing its obligations and
allowing Bank to cure any defaults.
12. Agrees that all notices, requests and demands required hereunder or as may be desired to
be given from one party to the other shall be in writing and shall be deemed to have been
validly served, given or delivered upon the earlier of (a) personal delivery to the address
set forth below, (b) in the case of electronic or facsimile transmission, when transmitted,
and (c) in the case of mailed notice, three (3) days after deposit in the United States mail,
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with proper postage for certified mail, return receipt requested, prepaid, or in the case of
notice by Federal Express or other reputable overnight courier service, one (1) business
day after delivery to such courier service when sent to the following addresses:
Each notice to Bank shall be addressed as follows:
Bankers Trust Company
453 7th Street
Des Moines, Iowa 50309
Attention: Erin Allen
With a copy to:
Bankers Trust Company
453 7th Street
Des Moines, Iowa 50309
Attention: Emily Stork, General Counsel
If to City:
City Manager
City of Dubuque, Iowa
50 W 13th Street
Dubuque, Iowa 52001
or at such other address as the party may designate in writing given to all other parties.
13. Agrees, upon request from Bank and at Bank's sole cost, to furnish Bank with copies of
such information as Developer is entitled to receive under the Development Agreement.
14. Agrees the statements herein made shall be binding upon and inure to the benefit of City,
its successors and permitted assigns, and shall be binding upon and inure to the benefit of
Bank and Bank's successors and assigns.
15. Agrees the person executing this Consent on behalf of City is duly empowered to do so on
behalf of City.
16. AGREES THIS CONSENT SHALL BE GOVERNED BY, AND INTERPRETED AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF IOWA,
WITHOUT REGARD TO CHOICE OF LAW PROVISIONS. ANY ACTION
BROUGHT IN CONNECTION WITH THIS CONSENT SHALL BE BROUGHT IN
THE IOWA FEDERAL OR STATE DISTRICT COURT SITTING IN POLK COUNTY,
IOWA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CITY HEREBY
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE
OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION AND
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND
UPON THE ADVICE OF COMPETENT COUNSEL, SUBMITS TO PERSONAL
I
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JURISDICTION AND VENUE OF SUCH IOWA COURTS AND AGREES NOT TO
BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM.
NOTHING HEREIN SHALL AFFECT BANK'S RIGHT TO (I) COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE SUE CITY IN ANY OTHER COURT HAVING
JURISDICTION OVER CITY; OR (II) SERVE PROCESS ON CITY IN ANY MANNER
AUTHORIZED BY THE LAWS OF SUCH JURISDICTION, UNLESS CITY AND
BANK HAVE AGREED OTHERWISE.
17. Agrees all terms not otherwise defined herein shall have the respective meanings given to
such terms in the Assignment.
18. Agrees, upon termination or expiration of the Development Agreement or payment in full
of the Loan by Developer, City's obligations under this Consent will terminate.
This Consent is executed by City, intending reliance hereon by Bank and its successors and
assigns.
IN WITNESS WHEREOF, City, intending to be legally bound hereby, has executed this
Consent as of the day and year above written.
[One Signature Page Follows]
W
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CITY OF DUBUQUE, IOWA
By:
Brad 9F Cavana a or
ATTEST:
By:
Adrienne N. Breitfelder, Ci y Clerk
EXHIBIT "A"
[ATTACH COPIES OF DEVELOPMENT AGREEMENT]
Page 314 of 1713
Prepared by Ian C. Hatch, Assistant Economic Development Director, 1300 Main Street Dubuque IA 52001 (563) 589-4105
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13" St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 331-24
RESOLUTION APPROVING CITY CONSENT TO COLLATERAL ASSIGNMENT OF
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA AND
METX, LLC FROM METX, LLC TO BANKERS TRUST COMPANY
Whereas, The City of Dubuque, Iowa (City) and Metx, LLC (Developer) entered into a
Development Agreement dated for reference purposes October 12, 2017, as amended (the
Agreement); and
Whereas, the Agreement provides for certain rights and obligations for Developer; and
Whereas, Developer desires to assign its rights and obligations to Bankers Trust Company
as collateral pursuant to the Collateral Assignment of Development Agreement attached hereto
subject to City consent; and
Whereas, City, as a party to the Agreement, desires to consent to the Collateral Assignment
of Development Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA THAT:
Section 1. The City consents to the attached Collateral Assignment of Development
Agreement.
Section 2. The Mayor is hereby authorized and directed to sign the Consent of City to
Collateral Assignment of Development Agreement on behalf of the City of Dubuque.
Passed, approved, and adopted this 21 st day of October, 2024.
F
rad��an_agh, Mayor
Attest. -
Adrienne N. Breitfelder, City Clerk