Pier Pressure Marine IA, Inc. - Collateral Assignment Copyright 2014
City of Dubuque Consent Items # 9.
ITEM TITLE: Pier Pressure Marine IA, Inc. - Collateral Assignment
SUMMARY: City Manager recommending approval of the Collateral Assignment of
Lease Agreement among Pier Pressure Marine IA, Inc., Lessee
(Borrower), City of Dubuque, Iowa, Lessor, and East Dubuque Savings
Bank, Lender.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
❑ Pier Pressure Marine IA, Inc.Collateral Assignment of Lease-MVM City Manager Memo
Memo
❑ Launspach Letter Supporting Documentation
❑ Collateral Assignment of Lease Agreement Supporting Documentation
THE CITY OF Dubuque
UBE I
erica .i
Masterpiece on the Mississippi 2007-2012-2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Pier Pressure Marine IA, Inc. Collateral Assignment of Lease Agreement
DATE: April 15, 2015
Steve Launspach of Pier Pressure Marine IA, Inc. requests City of Dubuque approval of
the Collateral Assignment of Lease Agreement among Pier Pressure Marine IA, Inc.,
Lessee (Borrower), City of Dubuque, Iowa, Lessor, and East Dubuque Savings Bank,
Lender. East Dubuque Savings Bank requires City of Dubuque approval of the
Collateral Assignment of Lease Agreement prior to approval of the loan for Pier
Pressure Marine IA, Inc. City Attorney Barry Lindahl has reviewed the Collateral
Assignment and approves the form.
I respectfully request Mayor and City Council approval of the Collateral Assignment of
Lease Agreement.
// JAI444
Micliael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Steve Launspach
April 14, 2015
Mike Van Milligen
City Manager
City of Dubuque
50 W. 13th Street
Dubuque, IA 52001
Dear Mr.Van Milligen:
This letter is in reference to the COLLATERAL ASSIGNMENT OF LEASE AGREEMENT form among Pier
Pressure IA, Inc., Lessee('Borrower),CITY OF DUBUQUE, Iowa ("Lessor"),and East Dubuque Savings
Banks ("Lender"). That document is in connection with the acquisition of Dubuque Marina by Pier
Pressure Marine, IA,and is required by Lender prior to loan approval.
We respectfully request your approval of the Collateral Assignment of Lease,and that it be placed on
the City Council agenda for their consideration and approval, in order that Lender can approve the loan
and we can move forward with this acquisition.
Respectfully Submitted,
teve Launspach
Prepared by: Brian J. Kane, Kane, Norby & Reddick, P.C., 2100 Asbury Road, Suite 2,
Dubuque, IA 52001 563/582-7980
SPACE ABOVE THIS LINE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS *OR ORAL
PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS
AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Re: See Exhibit "A" attached.
COLLATERAL ASSIGNMENT OF LEASE AGREEMENT
This Collateral Assignment of Lease Agreement ("Agreement") is effective
r ; ( d•C , 2015, among Pier Pressure Marine IA, Inc., an Iowa business corporation,
Les , ("Borrower"), CITY OF DUBUQUE, Iowa ("Lessor") and East Dubuque Savings Bank, an
Iowa corporation ("Lender").
1. Recitals. Borrower has leased from Lessor certain real property as described in that
certain Lease and Agreement between Borrower and Lessor dated October 29, 1956, as amended
October 26, 1956, December 25, 1957, June 11, 1973, October 3, 1988, and April 12, 1999 and
assigned to Borrower pursuant to an Assignment of Lease dated April 6, 2015 (hereinafter the
"Lease"). The Lender has authorized the making a loan to the Borrower by virtue of a Loan Agreement
executed by the Borrower and the Lender of even date herewith ("Loan"). The Loan is for the benefit
of both Borrower and Lessor insofar as funds from the Loan will be used for the benefit of the business
conducted on the leased premises. In consideration of the promises contained in this Agreement, and of
the disbursement of part or all of the Loan by Lender, Borrower, with the consent of Lessor, upon an
uncured default under the Loan Agreement collaterally assigns to Lender the Lease referred to above
during the remainder of its term, including all extensions and renewals, or the period during which
such uncured default is continuing, whichever is shorter. If any such default is thereafter cured, then
this Agreement shall remain in full force and effect. Upon payment of the Loan in full, Lender shall
provide to Borrower and to City in recordable form a cancellation of this Assignment.
2. Borrower and Lessor Further Covenant and Agree:
2.1. Neither Borrower nor Lessor is in default of any of the terms or
conditions of the Lease, and each is in compliance with all terms, conditions and provisions of
the Lease as of the Closing Date (as defined in that certain Asset Purchase Agreement dated as
of March 12, 2015, by and among Borrower, M & K Ltd., Keith Kann and Mary Kann);
Borrower and Lessor will each perform the covenants and conditions required of it by the Lease
for the term of the Loan and any extensions or renewals.
2.2 The current annual rent under the Lease is $ 3® .f4U, , and the
Lease will terminate on December 31, 2028, unless otherwise extended by the parties.
2.3. Borrower and/or Lessor will not modify or terminate the Lease without
the prior written consent of Lender which shall not unreasonably be withheld.
2.4. To the extent Lessor has the right (if any) to terminate the Lease if
Borrower defaults under the terms of the Lease, Lessor shall first give Lender sixty (60) days'
written notice of such default and the right, at the option of Lender, during such period, to cure
such default. During the sixty (60) day period, Lessor will take no action to enforce its claim
arising from such default without Lender's prior written consent.
2.5. If Borrower defaults in the performance of any of its material obligations
(in any event, all monetary defaults shall be considered "material") under the Loans, any
renewals or extensions, or of any related agreement, and such default continues beyond any
applicable cure period, then Lender, at its option, may, without notice except as may be required
under the Loan Agreement, using such force as may be necessary, enter said leased premises and
do any one or more of the following: (1) Remove all personal property of Borrower that is
pledged as collateral for the Loans; (2) Sell such personal property; (3) Transfer and assign the
Lease and Borrower's rights in it to parties satisfactory to Lender and Lessor and - upon
assignment the obligations of the Lease shall be binding on such transferees. In the event that
Lender undertakes the options provided in Subsections (1) or (2), it shall have no obligation to
Lessor other than payment of rent accruing during the period of its possession of the premises.
In the event that Lender transfers the Lease as provided in Subsection (3), Lender will cure all
defaults in said Lease, and its sole other obligation shall be the payment of rent which accrued
prior to the transfer of said Lease.
3. Subordination. Lessor subordinates any lien it has or may have on the personal
property of Borrower that is or may be security for the Loans to Lender's liens on Borrower's
property, and to Lender's rights under this Agreement. This subordination shall be effective
regardless of whether or not the collateral constitutes fixtures. For the purposes of this
Agreement, the term "liens" specifically includes any Landlord's Lien under Chapter 570, Code
of Iowa, as amended, to which the Lessor may be entitled.
4. Warranty of Title. Lessor warrants that title to the leased premises is held by it
in fee simple and that it has full power and authority to enter into this Agreement.
5. Notices. All notices under this Agreement shall be in writing and shall be
deemed delivered if delivered in person, if sent by certified mail (postage prepaid, return receipt
requested), telegraph or facsimile, as follows:
If to Lender:
If to Borrower:
If to Lessor:
East Dubuque Savings Bank
c/o Peter J. Schilling
475 Cedar Cross Rd.
Dubuque, IA 52003
Pier Pressure Marine IA, Inc.
C/O Steve Launspach
9234 Royal Wood Drive
Peosta, IA 52068
City of Dubuque
City Hall
50 West 13th Street
Dubuque, IA 52001
Attn.: City Manager
6. Applicable Law; Severability. This Agreement shall be subject to, construed
and enforced in accordance with the laws of the State of Iowa. If any provision of this
Agreement is held invalid under applicable Law, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision, and to this
end, the provisions hereof are severable.
7. Binding Effect; Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties. Neither Borrower nor Lessor
shall assign any of its rights or obligations hereunder without the prior written consent of
Lender, which consent shall not be unreasonably withheld. No such permitted consent shall
release any party from any of its obligations hereunder unless a separate written release thereof
is signed by Lender.
8. Interpretation; Headings. Words and phrases herein shall be interpreted and
understood according to the context in which they are used. The headings in this Agreement are
intended solely for convenience of reference, and shall be given no effect in the construction or
interpretation of this Agreement.
9. Entire Agreement; Counterparts; Remedies Cumulative. This Agreement,
including any Exhibits, all of which are incorporated by this reference, and the documents
executed and delivered pursuant hereto, constitute the entire agreement between the parties, and
may be amended only by a writing signed by each party. All agreements, instruments and
documents referred to in this Agreement are by this reference made a part of this Agreement for
all purposes. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute but one and the same
instrument. The parties shall have, in addition to the ripihts and remedies provided by this
Agreement, all those allowed by all applicable laws, all of which shall be in extension of and not
in limitation of those provided hereunder.
10. Waivers. Except as herein expressly provided, no waiver by any party of any
breach of this Agreement, or of any warranty or representation hereunder, shall be deemed to be
a waiver by the same party of any other breach of any kind or nature (whether preceding or
succeeding the breach in question, and whether or not of the same or similar nature).
10.1. No acceptance by a party of payment or performance after any such breach
shall be deemed to be a waiver of any breach of this Agreement or of any representation or warranty
hereunder, whether or not the party knows of the breach when it accepts such payment or
performance.
10.2. No failure by a party to exercise any right it may have under this Agreement
or under law upon another parry's default, and no delay in the exercise of that right, shall prevent
it from exercising the right whenever the other party continues to be in default. No such failure or
delay shall operate as a waiver of any default or as a modification of the provisions of this
Agreement.
11. Attorney's Fees. If any action at law or in equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees and costs of litigation from the other party. Such fees and
costs of litigation may be set by the court in the trial of such action or by the arbitrator, as the case
may be, or may be enforced in a separate action brought for that purpose. Such fees and costs of
litigation shall be in addition to any other relief which may be awarded.
Effective as of the date first written above.
PIER PRESSURE MARINE IA, INC. CITY OF DUBUQUE
Il
6 ( s
By: By:
Ryan Becker, President It'oy D. Bu r}—Maytrr
Karla A taig, Mayor Pro Tem
By: L-
Kein Fi nstahl, City`Clerk
EAST DUBUQUE SAVINGS BANK
By:
Peter J. Schilling, Its Authorized Officer
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2015, before me, a Notary Public in and for
the State of Iowa, personally appeared Ryan Becker, to me personally known, who being by me
duly sworn did say that he is the President of said corporation, that no seal has been procured by
the said corporation and that said instrument was signed on behalf of said corporation by
authority of its Board of Directors and the said Ryan Becker acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation, by it voluntarily executed.
Notary Public in and for
State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2015, before me, a Notary Public in and for
* the State of Iowa, personally app ared Roy -Dr -B.1101- and Kevin Firnstahl, to me personally
known, who being by me duly sworn did say that they are the Mr and City Clerk,
respectively, of the City of Dubuque, Iowa, executing the within and foregoing instrument, that
no seal has been procured by the City; that said instrument was signed on behalf of the City by
* authority of the City Council; and that and Kevin Firnstahl, asMayor-and City Clerk,
acknowledged the execution of said instrument tom- the voluntary act and deed of the City, by it
and by them voluntarily executed.
* Karla A. Braig, Mayor Pro Tem
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
Notary Public indi d for
State of Iowa
PAMELA J. McCARRON
Commission Number 772419
My Comm, Exp. _5 :-.20(6
On this day of , 2015, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared Peter J. Schilling, to me personally
known, who being by me duly sworn, did say that he is a duly elected officer of East Dubuque
Savings Bank executing the within and foregoing instrument; that the seal which appears below
is the seal of the corporation; that said instrument was signed on behalf of the corporation by
authority of its Board of Directors; and that Peter J. Schilling, as an authorized officer,
acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the
corporation, by it and by him voluntarily executed.
Notary Public
in and for State of Iowa
Exhibit A
See attached.
LEASE AND AGREEMENT
-X/0),'-i
This Lease and Agreement made and entered into this
29th day of October, 1956 by and between the CITY OF DUBUQUE,
IOWA, a municipal corporation of Iowa, through its duly authorized
Board of Dock Commissioners, hereinafter called "Lessor" and
Dubuque Marina Inc., an Iowa corporation, whose principal place
of business is 804 South Grandview Avenue, Dubuque, Iowa, herein-
after called "Lessee", providing for-the lease of the following
described real estate, hereinafter referred to as the "demised
premises", to-wit;✓
A tract of land located on the south side of the Pleasure
Boat Harbor in the City of Dubuque, Iowa, as outlined in
red on the attached sketch, together with the exclusive
right to moor boats and floats along the entire waterfront
of the Pleasure Boat Harbor and right of access in common
with the public to the harbor slopes,
WITNESSETH:
1. Lessor does hereby lease to Lessee the demised
premises hereinbefore described, to have and to hold the same
for a period of ten (10) years commencing with the lot day of
January, 1957 and ending on the 31st day of December, 1966.
2. Lessee is hereby granted the option of renewing
this lease for an additional period of ten (10) years oommencing
on the let day of January, 1967 and ending on the 31st day of
December, 1976 under the same terms and conditions as provided
herein, by giving Lessor written notice of its exercise of such
option at least sixty (60) days prior to the expiration of the
original term of this lease.
3• Lessee agraes to pay to Lessor as rental for said
premises annual rentals as follows;
(a) For the years 1957 to 1961, inclusive, an annual rental
equal to one per cent (1%) of the groan sales, as herein
defined, but not less than One .Thousand Dollars ($1,000) in
any one year;
(b) For the years 1962 and each year thereafter, during the .
term of this lease, or any renewal thereof, the °annual rental
shall be a bum equal to one-and one-half per cent (1 1/2%)
of the gross sales as herein defined, but not less than One
Thousand Dollars (1,000) in any one year; y
-2- '
(c) However, in any year during the term of this lease in
which the gross sales, as herein defined, shall equal or
exceed $200,000, the rental for such year shall be a sum
equal to two per cent (2%) of such gross sales.
4. The rentals herein provided for shall be due and
payable as followa:
(a) On January 2, 1957 Lessee shall deposit with Lessor the
sum of One Thousand Dollars ($1,000) to secure the payment
of the rental due under the terms of this lease;
(b) On or before January 30th of each year during the term
of this lease, or any extension thereof, commencing with
January 30, 1958 Lessee shall submit to Lessor a statement
certified by a certified public accountant showing the gross
sales as herein defined during the preceding year, together
with a remittance of the rental for such preceding year.
5. The term "gross sales" as used herein shall mean
and include all cash or accrued receipts from the sales of goods,
services, or merchandise by Lessee and shall include sales or
services made by any affiliate or sub-tenant of lessee which
originated in or were consumated through the operation of said
boat harbor, but shall not include sales of gasoline, diesel
fuels, or special motor fuels, or amounts received in payment of
State, Federal or Municipal sales, excise, admissions or enter-
tainment taxes.
6. In consideration of the lease of said property and
the covenants hereinafter not forth Lessee Agrees:
(a) Prior to June 1, 1957 to construct and install sufficient
floats to accomodate a minimum of one hundred (100) boats,
(b) Prior to August 1, 1957 to construct a service building
on the leased area. The service building shall contain toilet
and shower accomodations for men and women, a refreshment stand, '
a store and such other services and equipment as may be
necessary and incidental to meet the needs of the public in the
operation of a pleasure cra;M harbor. The building shall be a
permanent structure of masonry construction and built in
accordance with plans approved by lessor, of a minimum size of
22, x 60t.
(c) Prior to June 1st, 1957 to construct a boat maintenance
building in accordance with plans approved by lessor, provided,
however, that in the event Lessor shall require that such
building be of masonry construction, mutually agreeable pro-
vision shall be made for the purchase of said building by lessor
from leasee upon the termination of the lease.
(d) To construct, install and maintain from time to time during
the term of the lease, or any extension thereof, such additional
boat floats and mooring accomodations as the public demand may
from time to time require, which shall be safe, substantial and
orderly. No boat houses shall be permitted.
' R
-3-
(0) To construct, install and operate, during the term of this
lease, or any extension thereof, an approved gasoline and oil
float near the mouth of the harbor and to provide facilities
for furnishing potable water to boats.
(f) To use the premises only for the business of a marine or
pleasure boat harbor and lessee shall be diligent in the
prosecution of the business of a boat harbor operator and will
do those things necessary and proper to serve the public fairly-
and adquately and without discrimination.
(g) To exact reasonable rates and charges consistent with
the usual rates and charges for comparable facilities on the
Upper Mississippi River.
(h) Prior to September 1, 1957 to provide and install an
adequate hoist for hauling out boats and cruisers.
•(1) To maintain the buildings, grounds and harbor slopes in
a O&e, clean, neat and orderly condition at all times and
adequately lighted. This clause, however, shall not include
the duty to repair any damage to the harbor slopes not caused
by lessee or its agents or licensees. Lessor shall, within a
reasonable time, repair any damage to the harbor slopes which
substantially interferes with the full use and enjoyment of the
premises.
(j) Sb comply with all applicable State, Federal and Municipal
laws and regulations and use its best efforts to require the
tenants, patrona, licensees and suppliers to observe such laws
and regulations and to prevent any nuisance being oomaitted on
the harbor area.
(k) To provide insurance in companies authorized to do business
in Iowa, in such amounts as the Lessor may determine good
practice requires.
(1) To fence the service area on the land sides with an eight
foot cyclone type fence.
7. In consideration of the payment of the rentals here
reserved and the observance of the conditions herein to be performed
by lessee, lessor agrees;
(a) To provide suitable hard surface access roads in accordance
with the master plan heretofore adopted by the Dock Board.
(b) Prior to May 1st, 1957 to Provi4e a water inlet for a
boat hoist 16+ x 481 near the south side of the harbor mouth
at a point 200 feet east of Farragut iStreet.
(c) Prior to September 1, 1957 to extend City water service
to the area.
(d) To drive not more than fifteen (15) piles for boat floats
at points selected by the parties; provided, however, that
such selection shall be made all .at one time and not piecemeal.
(e) Prior to .June 1, 1957 to provide not less than 40,000
square feet of rook surfacing on the leased area for storing
boats.
(f) To arrange extension of electric service to the leased area.
(p) To dredge the harbor as often as may prove necessary to - e
provide reasonable use of the harbor by boats.
�1
8. Lessee agrees to make no permanent improvement or
installations, or changes in the buildings or permanent structures
without prior written approval of lessor.
9. All rents and charges due and payable hereunder shall
be delivered to the Dock Board at its office in Dubuque, Iowa, on
or before the due date specified herein.
10. Lessor agrees to pay all taxes and assessments,
general or special, that may be levied against the real estate;
lessee, however, agrees to pay all taxes levied or assessed
against the improvements placed upon said premised, or personal
property thereon, or the business conducted thereon.
11. During the term of this lease, or any extension
thereof, lessee shall have the right to sub-let or assign any or
all of its rights in and to the said premises, provided, however,
that any euch.'aub-lease or assignment shall have the prior written
approval of:the le8sor to.'the ;end that lessor's interests shall
be fully probooted...:^ '.It ;id*U.nderbtpod, .hone"ver, that the prov aiona
is
of this claiuseushallpoty'*p i` iLb a
spaces from year;.U,�
12. Upon`Vhe�.'.rn ttW
thereof, if option is' e�te
improvements erected on _t' o"z'demi'e0^
terms of this lease, except'•'the ,tica-. mai
and any equipment installed by Lessee tYis_
injury to the buildings or grounds, shalf.�b" o
the lessor and it is understood that this.`pro,*Je&
consideration for the granting of this lease by�lLessor' •? .8,xe
t...;=
shall have a period of sixty (60) days after the termination o3 •,.n , �`�
the lease to effect the removal of such property and the^Psi lu�•e .
to remove any of such improvements or other property within atohA��= *
sixty day period shall constitute an abandonment thereof, ung eey�wr
the partie a hereto otherwise- agree in writing.
13. If lessee shall make default in the payment .of.the. •.• R.
rentals hereunder, or any part thereof, or shall make default in-v:, .
the performance of any of the other covenants herein contained-
`gay.y
P
and such default shall continue for a period of thirty (30) days
after written notice thereof, mailed to lessee at its address
stated in the preamble hereof by United States Registered Mail, _
then it shall be lawful for lessor, at its election, to declare
the term of this lease exided and to re-enter upon the leased
premises, with or without process of law, and to expel and remove
lessee or any person or persons in or upon the same, using such
force as may be necessary under the circumstances; and if at any
time, by reason of such default of the lessee and the continuance
thereof for such period of thirty (30) days after written notice f
has been given said term shall be so ended, lessee hereby covenants If
and agrees to surrender and deliver up the leased premises peaceably
to the lessor.
14. It is agreed between the parties that the waiver by
lessor, or the lessee, of any breach of .any term, covenant or
condition herein contained, shall not be deemed to be a waiver of
any subsequent breach of the same, or any other term, covenant
or condition herein contained.
IN WITNESS WHEREOF the partly s hereto have caused the
I
i
due execution of this agreement, in duplicate, as of the day and
year first above written. .
CITY OF DUBUQUE, IOWA, Lessor,
By A. Y. McDonald, Chairman
Fred. Neyens, Secretary
Frank L. Wagner f
Its Board of Dock Commissioners
DUBUQUE MARINA INC., Lessee
By Georgey. Weber
T. B. Roshek
Glenna Weber
1 original lease is in Dock Board Book
1 original lease is with George Weber
s , s
LEASE AN11 AGREEMENT
L /
This Lease and Agreement made and entered into this
Y _ day of � ,w- ,1956 by and between
the CITY OF DUbUgUE, IOWA, a municipal corporation of Iowa,
through its duly authorized Board of Dock Commissioners, here-
inafter called "Lessortt and Dubuque Marina Inc., an Iowa cor-
poration, whose principal place of business is $04 South Grand-
view Avenue, Dubuque, Iowa, hereinafter called "Lessee", pro-
viding for the lease of the following described real estate,
hereinafter referred to as the "demised premises", to-wit:
A tract of land located on the south side of the Pleasure
Boat Harbor in the City of Dubuque, Iowa, as outlined in
red on the attached sketch, .together with the exclusive
right to moor boats and floats along the entire water-
front of the Pleasure Boat Harbor and right of access in
common with the public to the harbor slopes,
WITBESSMil
1. Lessor does hereby lease to Lessee the demised
premises hereinbefore described, to have and to hold the same
for a period of ten (10) years commencing with thelst day of
January, 1957 and ending on the 31st day of December, 1966.
2. Lessee is hereby granted the option of renewing
j this lease for an additional period of ten (10) years commenc-
ing on the 1st day of January, 1967 and ending on the 31st
day of December, 1976 under the same terms and conditions as
provided herein, by giving Lessor written notice of its exer-
cise of such option at least sixty (60) days prior to the ex-
piration of the original term of this lease.
3. Lessee agrees to pay to Lessor as rental for
said premises annual rentals as follows:
(a) For the years 1957 to 1961 inclusive, an
annual rental equal to one per cent 4%) of the gross
sales, as herein defined, but not less than One Thousand
Dollars ($1,000) in any one year;
(b) For the years 1962 and each year thereafter,
durig the term of this lease, or any renewal thereof, +:
the nnual rental shall be a sum equal to one and one-
half;
ne-half per cent (1 1/2%) of the gross sales, as herein de-
fined, but not -less than One Thousand Dollars ($1,000)
in any one year;
..2.r
(cl However, in any year during the term of this
lease in which the gross sales, as herein defined, shall
equal or exceed $200,000, the rental for such year shall
be a sum equal to two per cent (2%) of such gross sales.
4, The rentals herein provided. for shall be due and
payable as follows:
(a) On January 2, 1957 Lessee shall deposit with
Lessor the sum of One Thousand Dollars ($1,000) to secure
the payment of the rental due under the terms of this
lease;
(b) On or before January 30th of each year during
the term of this lease, or any extension thereof, commenc-
ing with January 30, 1958 Lessee shall submit to Lessor
statement certified by a_certified public accountant
showing the gross sales as herein defined during the pre-
ceding year, together with a remittance of the rental
or such preceding year.
5. The term "gross sales" as used herein shall mean
and include all cash or accrued rece5ipts from the sales of
goods, services, or merchandise by Lessee and shall include
-'s—ale's or services made by any affiliate or sub-tenant' of lessee
which originated in or were consumated through the operation
of said boat harbor, but shall not include sales of gasoline,
diesel fuels, or special motor fuels, or amounts received in
payment of State, Federal or Municipal sales, excise, admis-
sions or entertainment taxes.
6. In consideration of the lease of said property
and the covenants hereinafter set forth Lessee agrees:
(a) Prior to June 1, 1957 to construct and install
sufficient floats to accomodate a minimum of one hundred
(100) boats.
(b) Prior to August 1, 1957 to construct a service
building on the leased area. The service building shall
contain toilet and shower accomodations for men and women,
a refreshment stand, a store and such other services and
equipment as may be necessary and incidental to meet the
needs of the public in the operation of a pleasure craft
harbor. The building dhall be a permanent structure of
masonry construction and built in accordance with plans
approved by lessor, of a minimum size of 221 x 601.
(c) Prior to June lst, 1957 to construct a boat
maintenance building in accordance with plans approved by
lessor, provided, however, that in the event Lessor shall
require that such building be of masonry construction,
mutually agreeable provision shall be made for the pur-
chase of said building by lessor from lessee upon the
termination of the lease.
S
(d) To construct, install and maintain from time
to time during the term of the lease, or any-extension
thereof, such additional boat floats and mooring .accomo-
dations as the public demand may from time to time require,
which shall be safe, substantial and orderly.. No boat houses
shall be permitted.
(e) To construct, install and operateduring the
term of this leaser or any extension thereof, an approved
gasoline and oil float near the mouth of the harbor and
to provide facilities for furnishing potable water to boats.
(f) To use the premises only for the. business of a
marine or pleasure boat harbor and lessee shall be diligent
in the prosecution of the business of a boat harbor operator
and will do those things necessary and proper to serve the
public fairly and adquately and without discrimination.
(g) To exact reasonable rates and charges consistent
with the usual rates and charges for comparable facilities
on the Upper Mississippi River.
(h) Prior to September 1 1957 to provide and in-
stall an adjquate hoist for hauiing out boats and cruisers.
(i) To maintain the buildings, grounds and harbor
slopes in a safe, clean, neat and orderly condition at
all times andadequately lighted. This clause, however,
shall not include the duty to repair any damage to the
harbor slopes not caused by lessee or its agents or li-
censees. Lessor shall, within a reasonable time, repair
any damage to the harbor slopes which substantially inter
feres with the full use and enjoyment of the premises.
(3) To comply with all applicable State, Federal and
Municipal laws and regulations and use its best efforts to
require the tenants, patrons, licensees and suppliers to i
observe such laws and regulations and to prevent any nui-
sance being committed on the harbor area.
(k) To provide insurance in companies authorized to
do business in Iowa, in such amounts as the Lessor may de-
termine good practice requires.
(1) To fence the service area on the land sides with ►�
an eight foot cyclone type fence.
7. In consideration of the payment of the rentals
herein reserved and the observance of the conditions herein
to be performed by lessee, lessor agrees:
(a) To provide suitable hard surface access roads
in accordance with the master plan heretofore adopted by
the Dock Board.
(b) Prior to May 1st, 1957 to provide a water inlet for a
boat hoist 16, x 48t near the south side of the harbor mouth
at a point 200 feet .east of Farragut Street.
(c). Prior to September 1, 1957 to extend City water
service to the area.
(d) To drive not more than fifteen (15) piles for
boat floats at points selected by the parties; provided,
however, that such selection shall be made all at one
time and not piecemeal.
(e) Prior to June 1, 1957 to provide not less than
40,000 square feet of rock surfacing on the leased area
for storing boats.
(f) To arrange extension of electric service to tyle
leased area.
(g) To dredge the harbor as often as may prove neces-
sary to provide regsonable use of the harbor by boats.
8. Lessee agrees to make no permanent improvements
or installations, or changes in the buildings or permanent
structures without prior written approval of lessor.
9. All rents and charges due and payable hereunder
shall be delivered to the Dock Board at its office in
Dubuque, Iowa, on or before the due date specified herein.
10. Lessor agrees to pay all taxes and assessments,
general or special, that may be levied against the real estate;
lessee, however, agrees to pay all taxes levied or assessed
against the improvements placed upon said premises, or personal
property thereon, or the business conducted thereon.
11. During the term of this lease, or any extension
thereof, lessee shall have the right to sub-let or assign any
or all of its rights in and to the said premises, provided,
however, that any such sub-lease or assignment shall have the
prior written approval of the lessor to the end that lessorts
interests shall be fully protected. It is understood, however,
that the provisions of this clause shall not apply to the leas-
ing of boat storage spaces from year to year by lessee in its
usual course of business.
12. Upon the termination of this lease , (or
the renewal thereof, if option is exercised) for any cause
1'
}
e.,5+
all buildings and improvements erected on the demised area in
accordance with the terms of this lease, except the boat main-
tenance and repair building and any equipment installed by Les-
see that can be removed without injury to the buildings or
grounds, shall become the property of the Imsor and it is under-
stood that this provision is part of the consideration for the
panting of this lease by lessor. Lessee shall have a period
of sixty (60) days after the termination of the lease to ef-
fect the removal of such property and the failure to remove
any of such improvements or other property within such sixty
day period shall constitute an abandonment thereof, unless
the parties hereto otherwise agree in writing.
13. If lessee shall make default in the payment of
the rentals hereunder, or any part thereof, or shall make de-
fault in the performance of any of the other covenants herein
contained, and such default shall continue for a period of
thirty (30) days after written notice thereof, mailed to les-
see at its address stated in the preamble hereof by United
States Registered Mail, then it shall oe lawful for lessor, at
its election, to declare the term of this lease ended and to
re-enter upon the leased premises, with or without process
of law, and to expel and remove lessee or any person or persons
in or upon the same, using such force as may be necessary under
the circumstances; and if at any time, by reason of such de-
fault of the lessee and the continuance thereof for such peAOd
of thirty (301 days after written notice has been given said
term shall be so ended, lessee hereby covenants and agrees to
surrender and deliver up the leased premises peaceably to the
lessor.
1 �
14. It is agreed between the parties that the waiver
by lessor, or the lessee, of any breach of any term, covenant
or condition herein contained, shall not be deemed to be a
waiver of any subsequent breach of the same, or any other term,
covenant or condition herein contained.
IN WITNESS WHEREOF the parties hereto have caused
the due execution of this agreement, in duplicate, as of the
stay and year first above written.
CITY OF DUBUQUE, IOWA, Lessor,
By
� v
Its Bqfrd of Dock CommisSioners
DUBUQUE MARINA INC., Lessee
00
By .��`--
MODIFTCATION OF L2:ASI';
Whereas, the parties hereto, on October 29, 1956,
entered into a lease and. agreement concerning the leasing of
property therein described, and generally known as the "Pleasure
Boat Harbor"; and
Whereas, under the provisions of Paragraph 7b of said
Lease the Lessor agreed to provide a water inlet for a boat
hoist 16, x 4$, in size, near the south side of the harbor
mouth, prior to May 1st, 1957; and
Whereas, due to shortage of sheet steel piling Les s.r
wil be unable to provide said boat well prior to z d
195 '; and L�
Whereas in order %D '
said boat well Lessee desires provide
ooincrease the leased iarea sto 1u`�
include a strip forty-five feet (451) wide and two hundred feet
(2001) long, designated as Tract B on the attached plan; and
Whereas, the parties are desirous of entering into
an agreement to provide for the modification of said lease to
accomplish the above stated objectives;
NOW THEREFORE, IT IS 14UTUALLY AGRAED, between the
parties hereto as follows:
1. That the leased area under the lease described in the
preamble hereof shall include the tract of land two hundred
feet long (20011 and forty,-five feet (451 ) wide, designated as
Tract B on the attached plan;
2. That the time for the performance of Lessor's obliga-
tion uncj_er Clause 7b of said Lease and Agreement is extended
to --- 9, 195
Dated at Dubuque, Iowa, thisday of
A.D. 1957.
CITY OF DUnU E, IOWA, Lessor,
By
McDonald
( r Neyens)
A.
(Frank L. Wagner)
Its Board of Dock Commissioners
DubUQUEtARINA INC. Lessee,
B v
George V. eber
(T.B.Roshek)
(Glenna Weber)
.
+J. .•+f T`tai
A G R E E M E N T
This Agreement entered into by and between the CITY
OF DUtsUQU4, IOWA, through its Hoard ,of pock Commissioners, as -
First Party, and Dubuque Marina, Inc., as Seeded Party,
WITNL+ 9'SETB.
Whereas, the partie.a;hereto have heretofore entered
into a leaae and agreement fora tract of land located on the
south side of the Sea ure�Bo;at Harbor in the City of Dubuque,
which,lease is dated !'�`"`y 'G , 1956; and
Whereas, the said„l:ease provides .for a term of ten
(10); Rears,.• commencing January .l. �11957 and ending December 1,
1 6 ., with a.•ren,ewal opt on or an additional period of
TM years, coagtiie ciri'g :,on January 1. 1967 and ending on De�_em-
ber 31, �19?6,;,=:and
Whereas, Second Party, •desires to erect permanent
Improvements ou the demised premises with an anticipated
longevity great6r -tha)itwenty (20) years and have requested
an additional renewal option of thirty (30) years from Decem-
ber 31* 1976, to protect their investment in said permanent
improvements;. and '
Whereas, in consideration of the agreements herein-
aftrenewal optioer set forth.- 'the parties hereto desire to enter into such
NOW THEREFORE, IT IS AGREED by and oetween the par-
ties hereto'-as. follows:
1. That..it'the event Second Party has complied
-with all the terms and conditions of said Lease, and
shall not.be in default therein, and shall have exer-
cised the option granted in-Paragraph 2 of said Lease,
then and in that event Second. Party is granted the
option of renewing said lease for an additional period
of thirtyyears, commencing on the 1st day of January,
MIT an ending on the 1st day of=ecember� , —
by giving Lessor written notice of its exercise off` such
option at least sixty (60) days prior to December 31,
1976;
2. In the event Second Party shall exercise the
option granted in Paragraph 1 hereof the same terms
and conditions as provided for in the original.1ease
shall apply, except that commencing with the year
1977 the minimum annual rental shall be Two Thousand
D=o ars ($2,0001; —'
3. That effective immediately upon the execu-
tion of this Agreement, Paragraph 6(d) of the ori-
ginal Lease is amended to read aso lows:
r :
"6 (d) To construct, indall and maintain from
time to time during the term of the lease, or any
extension thereof, such additional boat floats and
mooring accomodations as the public demand may from
time to time require, which shall be safe, substan- j .
tial and orderly. No boat houses shall be permitted. d VJ
For the purposes of this paragraph the "public demand*
�G
I �
as used herein shall mean the public demand for boat
floats. and mooring. accomodations at reasonable rates
and charges as't he same exists on April 1 of each
year.^ E
Iii WIT14LSS WtitHEOF the parties hereto have caused the ''A'
4A'
due execution .of t hia Agreement in duplicate aR of the day and
year written opposite their names.
Dated: CITY OF UUuUQUE, IOWA, Lessor
Its Board Wf Dock Commissioners,
Dated: DUnUQUE MARIAA, IhU., Lessee,
By
ti
Dubuque,Iowa.
July 309 1958
BOARD OP DOCK COMMIBBIONERB
A.Y. MCDONALD. JR.. PRR.IDRHT
FRED E. NEYENB, BEUIETARV
FRANKL. WAGNER, CO-19.1-SRC.E.KIEBELE.MANAGER
Mr. George Weber,
% Dubuque Marina Inc.,
Eagle Point,
Dubuque,Iowa.
Dear George;
We enclose copy of Dock Board Ordinance No 1-58
establishing No Parking Areas on Stroets and property
under Dock Board Jurisdiction.
We deleted from Ordinance "e" of Section Ong
as follows; ^
"Both sides of Shiras Avenue. Extension from
the Water's edge northerly 379 feet", but at some time
later it would have to be corrected to No Parking,
because of it being a public street.
Please acknowledge for Dock Board records.
rel urs,
Dock Board
K- 2 yam.�' n
C. .K ele,Manager
Cv / �0
�
PSD � N
ER C
ESP c
RECREA TION AND PARK AREA
!. TRACT NO. 23
I
i
M
M
0
GRASS SLOPE 64" 90'
d
INDUSTRIAL AREA "
TRACT NO.22 p
Z ( WA TER
WORKS
W PARK W
W
W 80 80' TRACT NQ 24
m
Q
Z
W
Q S
W ry
N
� Z
Lki
e �n
/50" ~ v W
80' 6
CONc. '
MARKERS 105"
64". 90"
'^
95.
TRACT 200'
s' 90.
TRANSM/SSIaV r 300, RlPRAP SLOPE
TOWER 98'28' 80
72
0 0
TRACT"C` ^ N E ASOL/N£ N TRA
P/N lam• R'PRAP 5 PIER RAMP /
�J ATER' NEW LAKE PEOSTA CHANNEL 2
200 INLET
PLAT OF TRACT `D' & 'C'
LEASED TO DUBUQUE MARINA INC.
FOR THE BOARD OF DOCK COMMISSIONERS
/00 400 zoo
c/7r or vueuav£ /oyiA
SCAL E /=200' —�— ----
(fit#� of �uhuqur
T.H.NELSON,CITY SOLICITOR
R.M.CZIZEK,ASST.CITY SOLICITOR
FISCHER SLCQ.
DUBUQUE.IOWA
w
October 30, 1956
Mr. A. Y. McDonald,
McDonald Mfg.Co.,
Dubuque, Iowa.
Dear Andy:
Enclosed is the lease with Dubuque Marina,
Inc., properly executed, for filing in the records
of the Dock Board. A duplicate is held, by the tenant.
N:S Sincerely,
Enc,
T. H. NELSON --�
�' G
Ataaek:16,, 1457
DOCS 00lNI1B620NgB9^. .
oantlemepl
Z "solved a letter ri<aa-. AA Bartels the strip day in
refs"noe to the )A41107 oT-r' City for 1008" sua-
,taieed by boat& In the Pleasure Heat Barbar. Someone
had advised Bartels that the,Olty "a liable for lessen
of;this type.. ,
11 presented this eubjoat to Ol ty Bolloitor T. ff. Beleop _
g end asked him to shook up on a, and enalaeed please
ff . find hie "Ply.
The Desk Commission, through its manager, Br. &iseele,
1 . should asportaim if the-Dntuque marina has provided
C insuranee that opmplioa vith Am terar-outlined in ear:
lease With this-company., A so asking mr. giasele' to
do .this ant than "Adviae Us Dock. Omoeiesion the result
of:his ipvostigstion._.
_ SIAoerely yosre,
BOARD 00 DOCK OOKMISSIONERa
A. 1.'maDonald-
1 '' d�.r+^i'�'..^� ... yreeident
AYpbp�l§e
*at 0. T. Bartels
ool T.,$. Nelson -
•`z'l
August 14, 1957. :
Mr. A. Y. McDonald,
A. Y. McDonald Mfg. Co.,
P. 0. box .508,
Dubuque, Iowa.
Dear Andy:
You have forwarded to me Carl Hartele
letter regarding the liability of the City-for. 10.60
sustained by boats in the Goat Harbor, Y `
There is no contragt between the boat
owners and the City and consequently, any, claim.
against the City would arise in tort
..and .not,;in con--
tract. Tort liability arImbs, out of intentional
wrongs or negligent acts. There is no way that a'.
person or corporation can enter intoan agreement '.
which authorizes it to commit inte.Ational,wrongs
qr negligent acts. `.
Consequently, the.question as to the .lis-
bility of the City for, injury to theee 'b"As,would
depend upon whether the C ty had committed an.ih-
i t'entional wrong or a negligent act which „ccntriputad
approximately to the injuries'susta. nad','
As I read the lease io Dubuqus.,Marina and -
understand the situation, the City owes nd special
duty to the owners of these boats and .has th du
l- only to show them the same degree ,of care as,.. h owes `,. . .
to the other inhabitants of the City, ,T
*With regard to insuranoe, my copy of the-.
lease with Dubuque Marina,provides 'under Paragraph-,
6K that the tenant shall provide iasurancs in con- -i. , = �
panies authorized to do business in Idws in such
amounts as the Lessor may determine good pra4t4k,
requires. r•.
NO Sincerely, r. �
y
r
F_
I.
N_
JLE �v
�o �
Eo c
a
TION
o
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W
x
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Bo yK Y yc .rc 64 K
TQAc T No. 22
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No 24 4
6+ i
64
Trod:B" Booia` •« ;� �� "'
fooye QQ'
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.P/PREP SLoo� t
/YEW LA/YE .67 OS TA 1-1A/V/VE L
8-/6 S7 ,2evised �n /rnc/ude Trac�'B ��b e fei Abe Qaoid of Dock G'amnr
/nc/adeod wif/i /ease e} 4%,"64"94'aC/Y e �u6u ue lowi
MQr��'a• Lgor/e/s B McMobon Engineeiii
,pevi.rsd 8-/Z-S7 2/2-Z/4 Sfo�Pfe/II �/o✓y, Qubu;
,' /0-25- ✓olio. 7/95
AMENDMENT TO LEASE
THIS AGREEMENT entered into by and between City of Dubuque
Iowa, ghrough its Board of Dock Commissioners, as First Party,
and Dubuque Marina, Inc., as Second Party, do hereby amend the
written Lease entered into by and between theparties hereto,
dated October 29, 1956;
NOW THEREFORE for good and valuable consideration, receipt
whereof is herewith acknowledged by First Party from Second Party
and for and in consideration of the mutual convenants herein to be
kept and maintained by the parties hereto, said written Lease
Agreement bearing date of October 29, 1956 be and the same is hereby
amended in the following particulars:
1. That the preamble thereof be and the same is hereby
amended by adding the following, to-wit:
"Tract "C"and Tract "D" located in the easterly end
of the Pleasure Boat Harbor in the City of Dubuque,
Iowa and as outlined in red on the respective Exhibits
marked "B" and "C"."
2. "Lessor does hereby lease to Lessee the demised premises
hereinbefore described,to have and to hold the same for the period
of y>o years commencing with the _qday of
>� , 1913 and ending on the day of
r 19--?,-,? ."
3. Said Lease is hereby amended by striking Paragraph 2
thereof, and inserting in lieu thereof:
" 2. Lessee is hereby granted the option of renewing the
Lease for an additional period of 130 years Commending on the
/,ay day of _ , 19 _ and ending on the
day of do., 3�..,ro a under the same terms and
conditionsas provided herein by giving Lessor written notice of its
exercise of such option at least sixty (60) days prior to the ex-
piration of the original term of this lease."
IN WITNESS WHEREOF the parties hereto have caused the due
execution of this Agreement this &,r& day of rze_ 1973.
CITY OF DUBUQUE, IOWA, Lessor,
By:
Its oard of Dock Commissioners
DUBUQUE MARINA, INC., Le ee,
B
Doi r
1p.
&MEA TION AND AAW AREA
TA4cr No. 23
ac
O
GRASS SLOPE 64' go,
4:1
INDUSTRIAL AREA
TRACT NO.22
WA TER
WORKS
PARK
tTR4Ceo A10.24
T
ca
80,
01c
10
qi
Q WQQ
NZ 12,
L15
u. 0
� MAR A Si
105
N 64' 1
n 90'
95,
rRAcr'l r5 fW'
rRANSMISSIOV
TOWER 300, P SLOPE
W 7z JpMP SLOPE R
o
TRACr"C* 5 ope ASOUNE .4C 7 1 o
CONC.
R
PIN PIER '%RAMP
a_ .0
TER AEW LAKE PEOSFA CHANNEL 2a-e
/,Vl.C7'
PL A T OF TRACT "D' A le
LEASED TO DUBUOUE' MARINA INC.
/00 400 100 FOR THE BOARD OF DOCK COMMISSIONERS
SCALE 1'=200' CITY or DusuquE /0 WA
":,{{•: ...'�;f:::�;r:.y.' �ti-cy.'a:.'.-'t t.: y[' :e. ice.
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TRACT NO. 23 IZ
a
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O
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GRASS SLOPE 64' 90'
T/ans�*•ssi n �1�K
Tv GY \i
/NDUSMAL AREA 2 0
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TRACT' - 200'
TRANSMISSIOV .90.
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t� %5-RAC
TRACT'C` N .NOPEASOLINE T uJ
P/N R�PR�P 5 PIER Rco
AMP
'� r
TER MEW MEW LAKE PEOSTA CHANNEL
INLET
PLAT OF TRACT ''D" & 'C'
LEASED TO DUBUQUE MARINA INC.
/00 400 200 FOR THE BOARD OF DOCK COMMISSIONERS
a7r OF DUBUQUE /0 WA
.SCALE /'=200• .A� n a.c Acres. 11(x, so
7raeY B'� t,l 0.21 Acrey 9,00c,
Tract eG" =9a 0_33 A crus 1�'f0o a'
T,a t D� r= 0.34 A cies /5"840 p•
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Tract A ,
NEVI/Ado LfA.YE PE OS TA C/-/ANNE L
v2 ° PLAN OF ZDZZWSU,eE 30,,97
Jco% of Feef F02 OU6uauE, Tow
foi fhe Boord of Dock coni,"is.
C/y of (?u.6u ue, Iowa
' B 2Io/� M`cMo`.n Engi7eeiin9
pf B/oryy Oubuya
i io-25-J ✓onus. 7/956
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o Qc
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re.
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Trace � urn✓�.�
IK/P.QAP .SLOPE I I a�P( bier Quuyn ''r
/YEYV LA.YE O.5 TA Ch/FA/V/VE L
a Iwo
° OF I'OZZ/9SU,eE 130,97
.ScQ/e of Feef fO.¢ Qu6uauE, low
fer ;fie Board of Doc& Cam P"
C./y of �u.6u ue, Iowa
. . ' Borfe/r 8 M�Mollan Engineering
r �� 2/Z-2/4 Sfo��o.fe�' B/o�yy Oubugu
,'..�iw��r id-2S-3 ✓onuor 7/9.56
tJrX �
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TRACT Mo. 22
TAP/9CT Q
h h'I Q �' ` r No 24 4J Q
R" o Q o Z
n Q 480� n�, �80 �
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-
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L-wofc. !r„G/
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2 - ° PLAN DF �LEf/SU,2E �O7r-97
..sco/r of Fee/ Foy¢ UUQuatuE, 1 ow
. ,for f/ie Board of Ooc,e Corr�inis:
- C/y of Ou.6u ue, Iowq
Berle/s $ M�Mcbon Engineering
2/4 S�ainpfer B/dy, Oubuyu
i io-2S-6 ✓onuor 7/936
4
AMENDMENT TO LEASE
THIS AGREEMENT entered into by and between City of Dubuque
Iowa, ghrough its Board of Dock Commissioners, as First Party,
and Dubuque :farina, Inc., as Second Party, do hereby amend the
written Lease entered into by and between theparties hereto,
dated October 29, 1956;
NOW THEREFORE for good and valuable consideration, receipt
whereof is herewith acknowledged by First party from Second Party
and for and in consideration of the mutual convenants herein to be
kept and maintained by the parties hereto, said written Lease
Agreement bearing date of October 29, 1956 be and the same is hereby
amended in the following particularss
1. That the preamble thereof he and the same is hereby
amended by adding the following, to-wit:
"Tract "C"and Tract "D" located in the easterly end
of the Pleasure Boat Harbor in the City of Dubuque,
Iowa and as outlined in red on the respective Exhibits
marked "B" and "C"."
2. "Lessor does hereby lease to Lessee the demised premises
hereinbefore described,to have and to hold the same for the period
Of years commencing with the /.&L-day of
19and ending on the 3-e_4tZ' day of
19 ."
3. Said Lease is hereby amended by striking Paragraph 2
thereof, and inserting in lieu thereofs
" 2 . Lessee is hereby granted the option of renewing the
Lease fvr an additional period of _ Years
years Commending on the
,L day of 19 and ending on the 3/ate
day of ^�-ewe— D'a�3 under the same terms and
conditions as provided herein by giving Lessor written notice of its
exercise of such option at least sixty (60) days prior to the ex-
piration of the original term of this lease."
IN WITNESS WHEREOF the parties hereto hav caueed the due
execution of this Agreement this day of _ 1973.
CITY OF DUBUQUE, IOWA, Lessor,
By: 5� w
A t2,1-r
Its Board of Dock Commissioners
DUBUQMRINA, INC., Les e,
BYE
AMhNDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement is entered into this
3rd day of October , 1988 , between the City of
Dubuque, Iowa (City) , an Iowa municipal corporation, and American
Marine of Iowa, Inc. (American) .
WHEREAS, the City and Dubuque Marina, Inc. entered into
a Lease and Agreement, dated October 29, 1956 , which Lease and
Agreement was amended by amendments of October 26, 1956 ,
December 25, 1957, and June 11, 1973;
AND WHEREAS, Dubuque Marina, Inc. has assigned or will
assign all its interest in the Lease and Agreement, as amended,
to American, by an assignment to be effective December 31., 1988;
AND WHEREAS, the City and American now desire to further
amend the Lease and Agreement, as amended.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. This Amendment to Lease Agreement shall take effect
if and only if Dubuque Marina, Inc. assigns all its interest in
the Lease and Agreement dated. October 29, 1956, as amended, such
assignment to take effect on December 31, 1988.
2. The City hereby leases to American two additional
tracts of land identified on the attached Exhibit A as "Tract E"
and "Tract F, " upon the terms and conditions set forth herein.
3. Tracts E and F are subject to utility easements, shown
on attached Exhibit B, which are hereby preserved, and American
acknowledges and agrees to preserve such easements, and in addi-
tion, specifically agrees as follows:
(a) The City reserves a perpetual and assignable right
to enter upon Tracts E and F for the purpose of maintaining,
repairing, operating, patrolling and replacing the, existing flood
control levy and all appurtenances thereto, which shall include
the right to clear, cut, fill, remove and dispose of any and all
timber, trees , underbrush, buildings or other obstructions. Ameri-
can shall not construct any structure or operate any machinery on,
under or across the levy, nor excavate or make any changes in the
levy or on Tracts E or F without the prior written consent of the
U. S. Army Corps of Engineers and the City, which shall require
that any such construction, operation or alteration will not ad-
versely affect the functioning of the flood control levy. Ameri-
can shall submit a written request and plans to the Corps of Engi-
neers and the City for any such construction, operation or altera-
tion.
(b) The City reserves unto itself a 20 ' -wide easement
for the water line on Tract F, as shown on attached Exhibit A.
4. Prior to making any improvements in or on Tracts E
and F, American shall comply with all applicable local ordinances
and state and federal laws and regulations.
5. Paragraphs 3, 4 and 5 of the Lease and Agreement
dated October 29, 1956, as amended, are hereby deleted, and
the following are substituted in lieu thereof:
3. Beginning in 1989, the annual base rental paid by
American to the City shall be $15,000 for 1989,
1990, 1991 and 1992. The base rental shall be
increased or decreased annually beginning in 1990
by the increase or decrease in the Consumer Price
Index for Urban Wage Earners and Clerical Workers,
United States City Average, from August, 1.988 to
the anniversary date of the original Lease and
Agreement in each lease year, according to the
Schedule of Rental Payments, attached as Exhibit C.
4. Rental payments representing the base rental plus
adjustment for cost of living shall be due and
payable as follows:
For 1989: 1/2 on December 31, 1988
1/4 on April 1, 1,989
1/4 on July 1 , 1989
For 1990 and all subsequent years , quarterly, on
October 1, January 1, April 1 and July 1
Rental payments shall be made to the- City Treasurer,
City Hall, Dubuque, Iowa 52001.
5. In no event shall the rental payment for 1989,
1990, 1991 or 1992 be less than $15 , 000. In no
event shall the rental payment for any year after
1992 be less than $18, 000 if no building is
constructed as provided in the Schedule of Rental
Payments, nor less than $15, 000, if a building is
constructed as provided in the Schedule of Rental
Payments.
6. Paragraph 11 of the Lease and Agreement of October 29 ,
1956, as amended, is hereby amended by adding at the end thereof
the following:
-3-
Notwithstanding the foregoing, American shall have the
right to sublet the restaurant facility located on the leased
premises without the consent of the City.
7. This amendment shall take effect at midnight on
December 31, 1988 .
City of Dubuque, Iowa American Marine of Iowa, Inc.
Q�zby: �- byr ,tel
Jame . Brady, Mayor acid H. tas
its ,iu".r
'91 AUG 9 AM 10 06
RESOLUTION NO. 486- -90 cou!r T r r._ce _qDUBUQUE CO., 101'A FEES 0.0`
RESOLUTION APPROVING OF ASSIGNMENT
OF LEASE AND AGREEMENT BY AMERICAN MARINE OF IOWA, INC. , TO
ANDERSON MARINE OF IOWA, INC.
WHEREAS, the City of Dubuque, Iowa, and Dubuque Marina,
Inc. , entered into a Lease and Agreement dated October 29, 1956,
which Lease and Agreement has been amended by amendments of '
October 26, 1956, December 25, 1957, June 11, 1973, and October
3, 1988 ; and
WHEREAS, on October 3, 1988, Dubuque Marina, Inc. , with the
consent of the City of Dubuque, ' assigned all of its interest in
the Lease and Agreement as amended to American Marine of Iowa,
Inc. ; and
WHEREAS, American Marine of Iowa, Inc. , now desires to
assign its interest in the Lease and Agreement as amended to
Anderson Marine of Iowa, Inc. , a copy of which proposed
Assignment is attached hereto; and
IWHEREAS, the Lease and Agreement as amended provides for
such assignment, with the prior written approval of the City of
Dubuque; and
I WHEREAS, the City Council of the City of Dubuque has
determined that the interests of the City of Dubuque will be
fully protected and that the assignment should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. The City of Dubuque hereby consents to the
I assignment of the Lease and Agreement -as amended by American
Marine of Iowa, Inc. , to Anderson Marine of Iowa, Inc. , provided
Anderson Marine of Iowa, Inc. , executes and delivers to the City
an acceptance of such assignment, agreeing to comply with all of
` the provisions of the Lease and Agreement as amended.
ISection 2. The Mayor is hereby authorized and directed to
execute a Consent to Assignment on behalf of the City of Dubuque,
Iowa, to be delivered to Anderson Marine of Iowa, Inc. , upon
receipt of the acceptance by Anderson Marine of Iowa, Inc. , of
i the Asslgnment.
I
Section 3. The City Clerk is hereby authorized and directed
to record a certified copy of this Resolution in the office of
the City Assessor, Dubuque County Recorder and Dubuque County
Treasurer.
Passed, approved and adopted this 17th day of
December 1990.
es E. Brady
ayor
Attest:
'46ae W- '
I�lS��X��Btx�CfS X X
:puty City Clerk
2
LG
I
CONSENT TO ASSIGNMENT OF LEASE AND AGREEMENT
Pursuant to Resolution No. 486 -90, the City of Dubuque,
Iowa, hereby consents to the assignment of Lease and Agreement, a
copy of which assignment is attached hereto.
Dated this 17th day of December, 1990 .
es E. Brady
�ayor
IATTEST:
I x-UxxRaYixkxx Karen M. Chesterman
Deputy City Clerk
y�
AMENDMENT TO LEASE AND AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DUBUQUE MARINA, INC.
This Amendment to Lease and Agreement dated October 29, 1956, as amended,
between the City of Dubuque, Iowa(City) and Dubuque Marina, Inc. (Marina) is made
and entered into this 12 day of Amril, 1999.
WHEREAS, City and Marina entered into a Lease and Agreement dated
October 29, 1956, which Lease and Agreement have been amended from time to time,
u.cluuing an Amendmeu:to Lease dated October 29, 19156-which granted to Marina an �
option to extend the Lease and Agreement to December 31,2023;
AND WHEREAS, Marina has exercised its option to extend the Lease and
Agreement to December 31, 2023;
AND WHEREAS, City and Marina now desire to further amend the Lease and
Agreement as set forth herein.
NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS
FOLLOWS:
1. The term of the Lease and Agreement is hereby extended from December 31,
2023 to December 31, 2028.
2.For the period commencing on January 1,2024 and ending on December 31,
2028,the annual rent for the leased premises shall be at then current fair market rates as
agreed by the parties or as determined by the following process. If the parties cannot
agree to a fair market rental rate at least ninety(90) days prior to December 31, 2023,
they shall jointly appoint an MAI real estate appraiser to determine the market rent. If
rile parties cannot agree on an appraiser, each shall appoint its own MAI appraiser and the
two appointed by the parties shall select a third. The average of the fair market rent
determined by the three appraisers shall be the annual rent for the period commencing on
January 1, 2024 and ending on December 31,2028. The annual rent shall be paid in four
equal installments by not later than October 1 of each year and by not later than January
1,April 1 and July 1 of the following year,the first such installment being not later than
October i of 2024.
3. This amendment is conditioned upon and shall not take effect until the closing
of the purchase of the assets of Dubuque Marina,Inc.by Keith Kann and Mary Wilhelm
and after due execution and assignment of the Lease and Agreement by Dubuque Marina,
Inc,. to Keith Kann and Mary Wilhelm. In the event that the sale of the assets of
Dubuque Marina,Inc.to Keith Kann and Mary Wilhelm or the assignment of the Lease
and Agreement fails to close by the 1 st day of May, 1999,then this amendment shall be
of no force or effect.
4.All other terms and conditions of the Lease and Agreement, as amended, shall
remain in full.force and effect.
CITY ODUBUQ ,IO0WA D U A,INC.
By /,huB
TeEmce M.Duggan, or It OF IOVANNI
Attest
' .°' By
Mary A. avis, City Clerk Its
ASSIGNMENT OF LEASE
The undersigned, Sandpiper, Inc. , an Iowa corporation,
formerly known as Dubuque Marina, Inc. , an Iowa corporation, and
Joe Castrogiovanni, individually, and only if a party to the
leases individually does hereby sell, assign and transfer as part
of an asset sale to M & K, Ltd. , an Iowa corporation, all right,
title and interest in and to any and all leases, modifications and
extensions thereof of any form or nature which they own wholly or
partially naming them as tenants and the City of Dubuque, Iowa, as
landlord, for all property and property rights for rental and
utilization of the riverfront property at Eagle Point Ext. ,
Dubuque, Iowa, being utilized at this time as Dubuque Marina (this
assignment relates to all property rights and lease rights of any
form or nature owned by assignor for said real estate
utilization) . With this assignment, M & K, Ltd. does hereby agree
to assume all of the rights, duties and obligations under said
lease or leases, modifications and extensions thereof and agrees
to hold the Seller harmless for same. Buyer assignees, M & K,
Ltd. , and Keith Kann and Mary Wilhelm, personally and as
individuals, agree to be bound by the terms.
The consideration for this assignment is a dollar amount to
be allocated by Buyer's accountant to the subject matter of this
agreement from the overall sale price that M & K, Ltd. is paying
for the assets of Dubuque Marina, Inc.
Both parties will execute all documents and cooperate in all
respects sufficient to have this assignment approved by the City
of Dubuque so as to affectively convey and assign the leases,
modifications and extensions thereof.
Dated this 363day of 1999.
SANDPIPER, INC. , f/k/a Dubuque Marina, Inc.
"CAStT4D0GdIf0VAXN1 , President
M & K LTD. M & K LTD.
By:
KE HPresid nt MARY WI LM, Sec. /Tres
and personally and and per onally and
as an individual as an individual
MAY-20-99 THU 10:44 THOMAS J FREETHY PC FAX NO, 8159618932 P,03
Dated and effective o'clock P.M. this 30th day
of April, 1999.
M & K, LTD. M & K, LTD.
qAb
Buyer - EiTH , Pr eBi nt Buyer - Y WILHELM, Sec./Tres.
KEITH KAHN ani _ idual MARY HELM, an individual
INC. DP PER, YNC.
30 ASTROGIOVANXI, President CASTROGIOVANNI, an individual
The above agreement consented to by sole shareholders of
a er, Inc.
ler - JO GASTRODIOVAW.T spouse - SUE CAST IOVANNI
aL�ADj�-
Seller - AL C STROGIOVAMI spouse MARY CASTR IOVAM11
By: Joe Castrogiovanni By; Joe Castrogiovanni
Attorney-in-Fact Attorney-in-Fact
o
ller GARY LTNDENBERG
An In v+dual
PAGE TWO OF TWO PAGES
STATE OF IOWA, COUNTY OF DUBUQUE, ss:
On this 30th day of April, 1999, before me, the undersigned,
a Notary Public in and for said State, personally appeared Joe
Castrogiovanni, to me personally known, who being by me duly
sworn, did say that he is the President, respectively, of the
corporation executing the within and foregoing instrument, that no
seal has been procured by the corporation; that the instrument was
signed on behalf of the corporation by authority of its Board of
Directors; and that Joe Castrogiovanni as an Officer acknowledged
the execution of the foregoing instrument to be the voluntary act
and deed of the corporation, by it and by him voluntarily
executed.
No ary Public in and for said State
STATE OF IOWA, COUNTY OF DUBUQUE, SS:
On this 30th day of April, before me, the undersigned, a
Notary Public in and for the State of Iowa, personally appeared
Keith J. Kann and Mary J. Wilhelm, to me personally known, who
being by me duly sworn, did say that they are President and
Secretary/Treasurer, respectively, of the corporation executing
the within and foregoing instrument to which this is attached,
that no seal has been procured by the corporation; that said
instrument was signed on behalf of the corporation by authority of
its Board of Directors; and that Keith J. Kann and Mary J.
Wilhelm, as officers, acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of the corporation, by
it and by them voluntarily executed.
�� A-ZL�Qz h
Nota Public in and for Aid State
LANDLORD'S CONSENT TO ASSIGNMENT
The City of Dubuque, Iowa, hereby consents to the foregoing Assignment
of Lease.
Dated:
CITY OF DU;QUE, IOWA
BY•
Roy , Mayor
Attest:
*KevS. ns I, Assistan City Jerk
F:IUSERSItsteckleX indahllDubuque Marinalandlord'sConsentToAssignment 050608.doc
ASSIGNMENT OF LEASE AND AGREEMENT
Purchase Money Security Interest
See attached Legal Description at end of Document
This Assignment of Lease and Agreement made and entered into by and between M&K LTD.,an Iowa Corporation
D/B/A Dubuque Marina,(lessee-hereinafter called'Borrower")and the City of Dubuque,Iowa(hereinafter called"Lessor")
and East Dubuque Savings Bank(hereinafter called"Assignee');Witness:
WEtEREAS,Borrower has received an Assignment of a certain lease from Dubuque Marina,Inc.F/K/A Anderson Marine
of Iowa,Inc.,of its lease with the City of Dubuque,Iowa,on April 30,1999,on certain real property by lease dated October
29.1956,and subsequently amended on October 26,1956,December 25.1957,June 11,1973,October 3,1988, December 17,
1990,and April 5,1999.
AND,WHEREAS, Assignee has authorized the making of a loan to Borrower dated April 30,1999.
AND,WHEREAS, such loan is for the benefit of both Borrower and Lessor,in that the funds are to be used for the benefit of
the business conducted on the leased premises;
NOW, THEREFORE, for and in consideration of the premises and of disbursement of said loan or any part thereof,
Borrower,with the consent of Lessor,hereby assigns,transfers and conveys unto Assignee the Lease above described,to have
and to hold the same for and during the remainder of the term mentioned in the Lease,and 0 renewals and extensions of said
term.
A. Borrower and Lessor further covenant and agree:
1. Borrower is not now in default in the performance of the Lease;and Borrower and Lessor will each perform the
covenants and conditions required of them by said lease for the term of said loan and any extensions or renewals of
it.
2. Except as otherwise herein permitted,Borrower and Lessor will not,alone or by agreement between them,modify
or terminate said Lease without consent of Assignee.
3. In the event of default by Borrower under the terms of said Lease,Lessor shall have the right to terminate said
Lease in accordance with its terms,provided,however,Lessor shall first give Assignee 60 days written notice of
such default and the right,at the option of Assignee,during such period,to cure such default: and during such
period,Lessor will take no action to enforce its claim arising from such default without Assignee's consent.
4. In the event of any default by Borrower in the performance of any of the obligations of its notes to Assignee
evidencing the aforesaid loan, any renewal or extension thereof, or any other agreement made in connection
therewith,including its agreements herein,then,Assignee,at its option,may,without notice,using such force as
may be necessary,enter said leased premises and do any or more of the following:
a. Remove all property of Borrower therefrom that is hypothecated as collateral for its aforementioned loan.
b. Sell the property referred to in paragraph a.on said premises.
c. Transfer and assign said Lease and Borrower's rights therein to parties satisfactory to Assignee, and upon
assignment,the obligations of said Lease shall be binding on said transferees.
In the event Assignee shall only undertake the options provided in paragraph a.or b..it shall have no obligation
other than payment of rent accruing during the period of its possession of the premises. In the event Assignee
shall make transfer of said Lease as provided in paragraph c.,Assignee will cure all defaults in said Lease,and its
sole other obligation shall be the payment of rent which accrued prior to the transfer of said Lease.
5. None of the property required to by hypothecated as collateral for the aforesaid loan constitutes fixtures or real
property.
B. Lessor agrees to,and does hereby,subordinate any lien it may,now or hereafter,We on the property of Borrower,
that is now or hereafter security for the aforesaid loan,to Assignee's Tien or liens on said property and to Assigneeas
rights horelrl.
C. Lessor hereby represents and warrants that title to said leased premises is held by it in fee simple and that it has full
power and authority to enter into this Agreement.
I). TMs Agrdement shall be binding upon and inure to the benefit of the personal representatives,successors and assigns
of the parties hereto.
WITNESS OUR HANDS and seals this 30'"day of April,1999.
BORROWFRt M&K LTD.,ah Io Corporation DIB/ Dubuque Marina
B `
Y=
Keith J.Kann
Its: President ,
By.:%"L�L�_�_ 4�lilP L'ia
Mary ilhelm
Its: Secretary/Treasurer
L THE CITY OF DUBUQUE,IOWA - �
By--
errance M.Duggan
- a or
By:
Mary A.Davis
Its• City Clerk
STATE OF ILLINOIS )
JO DAVIFSS COUNTY j
On `day of 1999,4efore me, the undersigned,a Notary Public in and for the State of lllintits,
personally appetirdd Keith J.kann and Mary J Wilhelm,to me personally known,who being by me duly sworn,did say that
They are President and Secretary/Treasurer of the corporation executing the within and foregoing instnrment to whicli this is
attached,that no s6ol has been procuted by the corporation;that said instrument Was signed on behalf of the corporation by
authority of its Board of Directors:and that Keith J.Kann and Mary J Wilhelm,as officers,acknowledged the execution of the
foregoing instrument to be the voluntary act and deed of the corporation,by it and by them voluntarily executed.
'OFFICIAL_SEAL'
TLggtlf 4 OSIER
NotQW Ptibito,State at illinols
My Commisdion ExpiresOW06163 NotarT ublic n 4d for the State of Illinois
OF IOWA
DUBUQUE )
On this day of ,1999,before me,the undersigned,a Nota is in and for the State of Iowa,
personally appeared Terrance M.Du and Mary A.Davis to me personally kno v o,being by me duly sworn,did say
that th'by are the Mayor and the City Clerk, ctively,of the City of Dub ,Iowa.a municipal corporation;that the seal
affixed to the foregoing instrument is the corporate of the cc),
xi n,and that the instrument was signed and sealed on
behalf of the corporation,by authority of its City Council, aired in the Resolution adopted by the City Counsel,under
Resolution No. of the City Counsel on t of .1999,and that Terrance M.
Duggan and Mary A.Davis,acknowledged t ecution of the instrume be their voluntary act and deed and the voluntary
act and deed of the corporation,by it v knirarfly executed.
Notary Public in and for the State of Iowa
LESSOR: THE CITY OF DUBUQUE, IOWA
B 0Y• S.,/)---
Roy D uol, Ma or
By:
Kevin S. Firn ahl, Assistant CI y Clerk
STATE OF IOWA )
ss:
COUNTY OF DUBUQUE )
On this 19tbday of May , 2008, before me a Notary Public in and for
said County, personally appeared Roy D. Buol and Kevin S. Firnstahl to me
personally known, who being duly sworn, did say that they are the Mayor and
Assistant City Clerk, respectively of the City of Dubuque, Iowa, a Municipal
Corporation, created and existing under the laws of the State of Iowa, and that the
seal affixed to the foregoing instrument is the seal of said Municipal Corporation,
and that said instrument was signed and sealed on behalf of said Municipal
Corporation by authority and resolution of its City Council and said Mayor and City
Clerk acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
41- �S(4�
tary Public, State of owa
VOLEMY
=WINTERCOto
ASSIGNMENT OF LEASE
This Assignment of Lease (this "Assignment") is made and entered into as of
, 2015, by and between M & K Ltd. ("Assi or") and Pier Pressure
Marine IA, Inc. ("Assignee").
Recitals
A. Assignor and Assignee have entered into negotiations regarding the form of an
asset purchase agreement (the "Purchase Agreement'), pursuant to which it is contemplated
that Assignor will sell to Assignee and Assignee will purchase from Assignor substantially all
of Assignor's assets related to its operation of the Dubuque Marina.
B. Pursuant to the Purchase Agreement, Assignor has agreed to sell, assign, and
transfer to Assignee all right,title, and interest in and to, and Assignee has agreed to assume all
of Assignor's prospective obligations under, that certain Lease and Agreement between
Assignor and the City of Dubuque dated October 29, 1956, as amended October 26, 1956,
December 25, 1957, June 11, 1973, October 3, 1988, and April 12, 1999, with respect to all
property and property rights for the rental and utilization of the real property described therein
(the"Lease").
NOW THEREFORE, for good and valuable consideration received, Assignor and
Assignee agree as follows:
Section 1. Assignment
Subject to and simultaneously with the closing contemplated by the Purchase Agreement
(the"Closin '), and in consideration for the amounts and other consideration described in the
Purchase Agreement, Assignor hereby sells, assigns, and transfers to Assignee all of
Assignor's right,title, and interest in and to the Lease.
Section 2. Assumptions
Subject to and simultaneously with the Closing, Assignee assumes all of Assignor's
prospective obligations, duties,responsibilities, and liabilities under the Lease arising after the
Closing. For clarification purposes and avoidance of doubt, the parties hereto acknowledge
and agree that Assignee is not assuming any of Assignor's obligations, duties, responsibilities,
liabilities or commitments under the Lease to the extent such obligations, duties,
responsibilities, liabilities and commitments arise out of, relate to or are in respect of the
period prior to the Closing, all of which are expressly retained by Assignor.
Section 3. City of Dubuque Consent to Assignment
Notwithstanding anything to the contrary in this Assignment,this Assignment shall not
be effective unless and until the City of Dubuque has executed the Consent,Acknowledgment
and Agreement in the form attached hereto asExhibit A.
Section 4. Assignor's Covenants
Assignor covenants that: (a) it is in possession under the Lease; (b) the Lease is in full
force and effect; (c) there are no defaults under the Lease; (d) no acts or events have occurred
which with the passing of time or the giving of notice or both could later become defaults
under the Lease; and (e) the Lease has not been modified, amended, or otherwise changed in
writing or in any other manner.
Section 5.Indemnity
Assignor agrees to indemnify Assignee for any loss, cost or expense, including attorney's
fees and court costs, relating to the Lease and accruing on or before the date of the Closing.
Assignee agrees to indemnify Assignor for any loss, cost, or expense,including attorney's fees
and court costs,relating to the Leases and accruing subsequent to the date of the Closing.
Section 6. Successors
This Assignment shall be binding on and inure to the benefit of the parties to it, their
heirs, executors,administrators, successors in interest, and assigns.
Section 7. Severability
If any term or provision of this Assignment shall be held invalid or unenforceable, the
remainder of this Assignment shall not be affected.
Section 8.Waivers
No waiver or breach of any covenant or provision shall be deemed a waiver of any other
covenant or provision, and no waiver shall be valid unless in writing and executed by the
waiving party.
Section 9.Construction
Headings are solely for the parties' convenience, are not a part of this Assignment, and
shall not be used to interpret this Assignment. The singular form shall include plural and vice
versa. This Assignment shall not be construed as if it had been prepared by one of the parties,
but rather as if both parties have prepared it. Unless otherwise indicated, all references to
sections are to this Assignment.
Section 10.Counterparts
This Assignment may be executed in one or more counterparts, each of which shall be
deemed an. original and all of which taken together shall constitute one and the same
instrument.
2
Section 11.Amendment
This Assignment may not be amended or altered except by a written instrument executed
by Assignor and Assignee.
Section 12.Further Assurances
Whenever requested to do so by the other parry, each party shall execute, acknowledge,
and deliver any further conveyances, assignments, confirmations, satisfactions, releases,
powers of attorney, instruments of further assurance, approvals, consents, and any further
instruments or documents- that are necessary, expedient, or proper to complete any
conveyances, transfers, sales, and assignments contemplated by this Assignment. In addition,
each party shall do any other acts and execute, acknowledge, and deliver any requested
documents in order to carry out the intent and purpose of this Assignment including, without
limitation, any and all acts necessary or appropriate to have this Assignment approved by the
City of Dubuque in order to effectively convey and assign the Lease(together with any and all
rights thereunder)to Assignee.
Section 13.Third-Party Rights
Nothing in this Assignment, express or implied, is intended to confer upon any person,
other than the parties and their respective successors and assigns, any rights or remedies.
Section 14.Attorney's Fees
In the event of any litigation between Assignor and Assignee arising out of the
obligations of Assignor under this Assignment or concerning interpretation of any of its
provisions,the losing party shall pay the prevailing party's costs and expenses of the litigation,
including reasonable attorney's fees.
Section 15.Governing-Law
This Assignment shall be governed and construed in accordance with the laws of the
State of Iowa
3
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first
written above.
ASSIGNOR: ASSIGNEE:
M&K LTD. PIER PRESSURE MARINE IA,INC.
By: By:
eiKann,President Ryan Becker,President
4
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first
written above.
ASSIGNOR: ASSIGNEE:
M&K LTD. PIER PRESSURE MARINE IA,INC.
By: By:
Keith Kann,President ofyaiBecker,President
4
CONSENT,ACKNOWLEDGMENT AND AGREEMENT
OF CITY OF DUBUQUE
The City of Dubuque (the "CW') has executed this Consent, Acknowledgment and
Agreement (this "Consent") as of this 16& day'of April, 2015. Unless otherwise defined
herein, capitalized terms used in this Consent shall have the meanings ascribed.to such terms in
the foregoing Assignment of Lease dated as of March 2015 (the "Assi ent"), between
M&K Ltd. ("Assignor") and Pier Pressure Marine IA, Inc. ("Assignee"), to which this Consent
is attached and made a part thereof.
WHEREAS, Assignor and Assignee have entered into negotiations regarding the form of
an asset purchase agreement (the "Purchase Agreement"), pursuant to which it is contemplated
that Assignor will sell to Assignee and Assignee will purchase from Assignor substantially all of
Assignor's assets related to its operation of the Dubuque Marina.
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to sell, assign,
and transfer to Assignee all right, title, and interest in and to, and Assignee has agreed to
assume all of Assignor's prospective obligations under, that certain Lease and Agreement
between Assignor and the City of Dubuque dated October 29, 1956, as amended October 26,
1956,December 25, 1957,June 11, 1973, October 3, 1988, and April 12, 1999,with respect to
all property and property rights for the rental and utilization of the real property described
therein(the"Lease").
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged,the City hereby agrees with and certifies to.Assignee as follows:
1. A true, correct and complete copy of the Lease is attached hereto as Exhibit A,
which Lease is in full force and effect and has not been changed, modified, amended or
supplemented.
2. Neither the City nor Assignor is in default in the payment or performance of its
respective obligations under the Lease.
3. The City hereby: (a) consents to all of the terms and provisions set forth in the
Assignment; and (b)acknowledges and agrees that,upon the effectiveness of the Assignment, all
of the interests and rights of Assignor under the Lease shall be transferred to Assignee and that
the City, from and after the Closing, shall be bound to Assignee under all of the terms, covenants
and provisions of the Lease arising on or after the Closing.with the same force and effect as if
Assignee were an original party thereto. Notwithstanding the foregoing,the City acknowledges
and agrees that Assignee shall not be deemed to have assumed any of Assignor's obligations,
duties,responsibilities,liabilities or commitments under the Lease to the extent such obligations,
duties, responsibilities, liabilities and commitments arise out of, relate to or are in respect of the
period prior to the Closing, it being understood that Assignor remains solely liable for its
obligations thereunder.
4. If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the
fullest extent permitted by law: (a) the other provisions hereof shall remain in full force and
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effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of
the parties hereto as nearly as may be possible; (b) the invalid or unenforceable provision shall
be amended by the parties in order to carry out the intentions of the parties hereto as nearly as
may be possible; and (c) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction.
5. This Consent shall be governed by and construed according to the internal laws
(as opposed to conflicts of law provisions) of the State of Iowa.
6. The city hereby represents and warrants to Assignee that: (a)the making,
execution, delivery and performance of this Consent by it has been duly authorized by all
necessary municipal action; (b) the execution, delivery and performance of this Consent and the
transactions contemplated hereby are not and will not be subject to any approval, consent or
authorization by such party, any other party or any governmental authority, unless such consent
has been obtained prior to execution hereof; and (c) this Consent is the valid and binding
obligation of the City, enforceable against it in accordance with its terms.
CITY OF DUBUQE
B . 9,
y'
Name:
Title: M by n e
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