POD Adams Development Partial Assignment DA for SecurityTHE CTTY OF Dubuque
AN-AmaicaCihl
DUB E
1
Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Port of Dubuque Adams Development, LLC/Partial Assignment of
Development Agreement for Security
DATE: August 28, 2008
In response to a request from Port of Dubuque Adams Development, LLC, City Attorney
Barry Lindahl is recommending consent to the assignment of the Development
Agreement as security for a loan with Liberty Bank.
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 CITY OF
DuB E
Masterpiece on the Mississippi
BARRY LIND
CITY ATTOR
To:
DATE:
RE:
MEMORANDUM
Van Milligen
Micl
City
August 15, 2008
Port of Dubuque Adams Development, LLC/Partial Assignment of
Development Agreement for Security
Brian Kane, attorney for Port of Dubuque Adams Development, LLC has requested the
City's consent to an Assignment of the Development Agreement as security for a loan
with Liberty Bank.
have reviewed the form of the Assignment and it appears to be in order.
I recommend that the Partial Assignment of Development Agreement for Security be
submitted to the City Council for consideration and approval.
BAL:tIs
Attachment
cc: Dave Heiar, Economic Development Director
F:IUSERS\tsteckle\Lindahl\Port of Dubuque Adams Development LLC\MVM_PartialAssignmentofDAForSecurity_081508.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
Brian J. Kane
Les V. Reddick*
Brad J. Heying
Todd L. Stevenson*
Kevin T. Deeny**
Bradley B. Kane
Joseph P. Kane
All admitted in Iowa
*Also admitted in Illinois
**Also admitted in Wisconsin
July 23, 2008
Honorable Mayor and
Members of the City Council of
the City of Dubuque, Iowa
City Hall
c/o Jeanne Schneider, City Clerk
50 West 13`h Street
Dubuque, IA 52001
Phone: (563) 582-7980
Facsimile: (563) 582-5312
E-mail:bkane@kanenorbylaw. com
Re: Port of Dubuque Adams Development, LLC / Partial Assignment of
Development Agreement for Security
Dear Mr. Mayor and Ladies and Gentlemen:
We are counsel for Port of Dubuque Adams Development, LLC. In connection with the
financing of the "Durrant Proj ect" as defined in the Development Agreement between our client and
the City dated January 23, 2006, Liberty Bank desires an assignment for security purposes of our
client's right to tax increment financing payments ("TIF") under the aforesaid Development
Agreement.
Enclosed please find a document entitled "Partial Assignment of Development Agreement
for Security" which we have prepared and which has been approved by Liberty Bank and our client.
We submit it to you to obtain your approval of this document so that our client and Liberty Bank can
conclude their financing arrangement in connection with the Durrant Project.
If you have any questions, or should you need any further information, please do not hesitate
to contact us directly.
We request that you place this action on the next applicable agenda for your regular council
meeting.
KANE, NORBY & REDDICK, P.C.
ATTORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IA 52001-3091
Of Counsel:
Gary K. Norby
Thank you.
KANE, NORBY &REDDICK, P.C.
July 23, 2008
Page 2
Best regards,
KANE, NORBY &REDDICK, P.C.
By
BJK:aId
Enclosure
cc: Mr. Wayne A. Briggs
Corporation Counsel, Barry A. Lindahl
Mr. David Heiar
City Manager, Michael VanMilligen
Mr. Scott Frost -Liberty Bank
G:\WPDOCS\Angie\CORRES\Mayor and City Council LET re Port of Dubuque Adams.wpd
Prepared by and return to: Brian J. Kane, Kane, Norby & Reddick, P.C., 2100 Asbury Road, Suite 2, Dubuque, IA 52001
563/582-7980
Address Tax Statement: N/A
PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENT FOR SECURITY
.~
This "Agreement" is entered into effective the ~ day of ~ ~ ~-~~ , 2008, by and
between PORT OF DUBUQUE ADAMS DEVELOPMENT, L.L.C. ("POD Adams"), THE CITY
OF DUBUQUE, IOWA ("City") and LIBERTY BANK ("Liberty").
RECITALS
A. POD Adams is a party to that certain Development Agreement with the City dated
for reference purposes the 23rd day of January, 2006, and Liberty is lender loaning funds (the
"Mortgage Loan") to POD Adams with respect to the "Durrant Project" as that term is defined in the
Development Agreement.
B. Liberty, as a condition of granting the aforesaid Mortgage Loan, has required the
execution of this Agreement by POD Adams.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Assignment for Security. Effective upon an uncured default under the Mortgage
Loan, POD Adams does hereby sell, assign, transfer and set over under Liberty all rights under the
Development Agreement related to the Durrant Project (but specifically excluding all rights and
responsibilities related to the "Multi Use Project"), including rights to receive the economic
development grants pursuant to Section 11 of the Development Agreement. Liberty acknowledges
that its rights to receive economic development grants for the Durrant Project under the
Development Agreement are subject to all ofthe terms and conditions contained in the Development
Agreement as well as subject to the rights of the Durrant Group, LLC to receive a portion of the
economic development grant pursuant to its lease with POD Adams (all as described in said lease,
a copy of which has been provided to Liberty).
2. Effective upon the foregoing assignment, POD Adams hereby authorizes Liberty by
its employees or agents, at its option, to enter upon the Durrant Project premises, to take over and
assume the Development Agreement as provided herein and perform all acts necessary and proper
and to expend such funds as may be needful in connection therewith, in the same manner and to the
same extent as POD Adams might do.
3. This Agreement shall remain in full force and effect as long as the Mortgage Loan
debt to Liberty remains unpaid in whole or in part and shall, automatically terminate upon payment
in full. Liberty agrees to promptly execute a release of this Agreement upon payment of the
Mortgage Loan in full.
4. This Agreement shall be binding upon and enure to the benefit of the parties'
representatives, successors, heirs or assigns. This Agreement shall be governed by and construed
in accordance with the laws of the State of Iowa.
5. The City of Dubuque provides consents to this Agreement between POD Adams and
Liberty and the partial assignment of Development Agreement as described herein.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as ofthe date
and year first above written.
By:
By:
By:
By:
PORT OF DUBUQUE ADAMS
Roy D. Buol, Mayor
THE CITY OF DUBUQUE, IOWA
Jeanne F. Schneider, City Clerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
D~
On this ~~ day of ~ ~~ `f , 2008, before me, a Notary Public in and for the
State of Iowa, personally appeared Wayne A. Briggs, to me personally known, who being by me
duly sworn did say that Wayne A. Briggs is the President of said limited liability company and that
said instrument was signed on behalf of said limited liability company by authority of its members
and the said Wayne A. Briggs acknowledged the execution of said instrument to be the voluntary
act and deed of said limited liability company, by it voluntarily executed.
~~,~ BRIAN J. KANE
*~* Commission Number 125603
MY COMMISSION EXPIRES
~* JANUARY 12, 2010
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
Notary Public in a for
State of Iowa
On this day of , 2008, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne F. Schneider, to
me personally known, who being by me duly sworn did say that they are the Mayor and City Clerk,
respectively of the City of Dubuque, a Municipal Corporation, created and existing under the laws
of the State of Iowa, and that the seal affixed to said 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.
Notary Public in and for
State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
This instrument
J~cY
LIBERTY BANK.
was acknowledged before me on this
2008, by S l~7 /LI • ~i~D37 as V • P
BRIAN J. -tANE ~
* ~µNl{SSION PIRES -
,~,, JANUARY t2, 2olO Notary Public in for
State of Iowa
o? ~~day of
of
G:\WPDOCS\MARY\Brad\Port of Dubuque Adams (Liberty Bank) Partial Assignment of Dev Agr.wpd