Dubuque Marina Assignment of LeasesTO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Marina Lease
DATE: May 13, 2008
City Attorney Barry Lindahl is recommending approval of two leases related to Dubuque
Marina. The first assignment is the assignment from Dubuque Marina, Inc. to M & K,
Ltd., and the second assignment is between M & K, Ltd. and East Dubuque Savings
Bank as security for a loan.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
THE CTTY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Michael C. Van Milligen
City Manager
DATE: May 12, 2008
RE: Dubuque Marina Lease
In 1999, M & K, Ltd. purchased the assets to the Dubuque Marina from Dubuque
Marina, Inc., including the lease for the Dubuque Marina between the City of Dubuque
and Dubuque Marina, Inc. Attorney Robert Klauer, on behalf of M & K, Ltd., requested
that the City Council consent to the Assignment of the Lease from Dubuque Marina, Inc.
to M & K, Ltd.
I have recently discovered that the Consent to the Assignment was never submitted to
the City Council for approval.
M & K, Ltd., owned by Keith Kann and Mary Wilhelm, has operated the Dubuque Marina
since 1999. To my knowledge, they are not in violation of any of the provisions of the
lease and have regularly paid the lease payments required to the City since that time.
Two assignments are enclosed. The first assignment is the assignment from Dubuque
Marina, Inc. to M & K, Ltd., which requires the City's consent.
The second assignment is between M & K, Ltd. and East Dubuque Savings Bank as
security for a loan to M & K, Ltd. by East Dubuque Savings Bank.
I recommend that the two assignments be submitted to the City Council for
consideration and approval.
BAL:tIs
Enclosure
cc: Keith Kann
F:\USERS\tsteckle\Lindahl\Dubuque Marina\MVM_ConsentToAssignment_051208.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 3OO MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
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 wil'1 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 3 U day of 1999.
SANDPIPER, INC., f/k/a Dubuque Marina, Inc.
Y
B .
CASTROGI ANNI, President
M & K LTD. M & K LTD.
By: By:
~~
E H President MARY WIL LM, Sec./Tres.
=.~d oersonali., ^n~. =-,~ .. _,~~.-,n_~1,., _~a
as an individual as an individual
MAY-20-99 THU 10. X14 Tf~OMA5 J FREETf1Y PC FAX N0. 8159618932 P. 03
Dated and effective ~t~~~ ~ o'clock P.M. this 30th day
of April, 1999.
M & K, LTD.
f
Buyer - fiITH PYesi nt
KEITH XANN do i ~_vidual
M & K, LTD.
Buyer - Y WILH.LM, Sec.lTre3.
MAFcY W HELM, an individual
INC. AP PER, YNC.
.\
JO ASTROGIOV I, Presider_t CASTROGSO I, an individual
The above agreement consented to by sole s'r_areholders ~f
a er, Inc.
ler - JO CASTROGIO~IAhTTi Sp use - SUE CAST GIOVAwfit;
~o.~ `~~
Seller - AL C STROG:iOvANtvI Spouse MARY C.ASTR GIOVAN`J2
By: Joe CaStrogiovail.*ii $y: Joe Cascrogicuanni
Attorney-in-Fact Attorney-in-Fact
P ,
~~
e11er GARY LtNDENBERG
An In ivid~aal
PAGE TWO GF TTaO 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.
Public in and i~br said State
STATE OF IOWA, CO~NTY 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.
Notafv Public in and for chid State
LANDLORD'S CONSENT TO ASSIGNMENT
The City of Dubuque, Iowa, hereby consents to the foregoing Assignment
of Lease.
Dated: Jt--
CITY OF DU UQUE, IOWA
B D.
Y
Roy . B I, Mayor
Attest: /"
Kev'n S. Firns hl, Assistant City Jerk
F:\USERS\tsteckle\Lindahl\Dubuque Marina\Landlord'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
DBlA Dubuque Marina, (lessee -hereinafter called "Borrower") and the City of Dubuque, Iowa (hereinafter called "Lessor")
and East Dubuque Savings Bank (hereinafter called "Assignee"); Witness:
WHEREAS, 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 all 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, have 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 fo Assignee's
rights herein.
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 tc enter into this Agreement.
D. This Agreement 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.
BORROWERr M & K LTD., an Io Corporation DB/ Dubuque Marina
By:
Keith J. Kann
Its: President , ~ ~ ~
By: ~ ~ ~ `~u.~l 7r1.0,1~a
Mary ilhelm
Its: Secretary(Treasurer
L THE CITY OF DUBUQUE, IOWA _~=-
By:
e nce M. Duggan
By:
Mary A. Davis
Its; City Clerk
STAT'1: OF ILLINOIS
JO DAVIESS11COUNTY )
On tfiiso~~t"day of ~ 1,999, )Zefore me, the undersigned, a Notary Public in and for the State of Illinois,
personally appeared Keith J. nn and Mary J Wilhelm, to me personally known, who being by me duly sworn, did say that
they are President and SecretaryrTreasurer 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 execuied.
OFFICIAL SEAL' r~1
TRAGY L. oSTER / I j
Notary Public, State of Illinois r
lJry Commission Expires t)3R~51o3 Notar ublic n ~d for the State of Illinois
DUBUQUE
On this day of , 1999, before me, the undersigned, a Notarv is in and for the State of Iowa,
personally appeared Terrance M. Du and Mary A. Davis to me personalty kno ho, being by me duly sworn, did say
that they 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 co~~'on, and that the instrument was signed and sealed on
behalf of the corporation, by authority of its City Council, afffained in the Resolution adopted by the City Counsel, under
Resolution No. of the City Counsel on th 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 anly executed.
Notary Public in and for the State of Iowa
LESSOR:
STATE OF IOWA )
ss:
COUNTY OF DUBUQUE )
THE CITY OF DUBUQUE, IOWA
B
Y•
Roy D. uol, Ma or
By:
Kevin S. Firn ahl, Assistant CI y Clerk
On this 19thday of rsay , 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.
r--- -.._..,~
tary Public, State of Iowa
o4RFi"~ a~, SUSAN M. WINTER
z ~
,. COMMISSION N0.183274
_' MY COMMISSION EXPIRES
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