Amendment to UDAG Loan - River Nursery & LandscapingT®: The Honorable Mayor and City Council Members
FR®M: Michael C. Van Milligan, City Manager
SUBJECT: Amendment to UDAG loan for Dubuque Nursery and Landscaping
®ATE: May 13, 2009
Economic Development Director Dave Heiar is recommending an extension of the
$20,000 loan balance payment due from Dubuque Nursery and Landscape to
December 2009.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
1~
Michael C. Van Milligan `'
t
MCVM:Iw
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Dave Heiar, Economic Development Director
Abu{=;r~
1
~:li~i';ii~:';, ic;~ ~i:y
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2007
May 12, 2009
TO: Michael Van Milligen, City Manager
~`'E,,,
FROM: David J. Heiar, Economic Development Director` ~ ~`~~
SUBJECT: Amendment to UDAG loan for Dubuque Nursery and Landscaping
BACKGROUND
In April, 2004, Greg Schmidt and Wayne Klostermann submitted a business plan to the
City and local lenders in an attempt to finance an upscale residential landscaping and
nursery business. The company planned to be a "one of a kind" in the trade area and
compete with the market currently lost to Davenport, Cedar Rapids, and Madison
companies.
The company received a written commitment from American Trust and Savings Bank
for the financing of the purchase and renovation of the real estate. The bank's
commitment was contingent upon the securing of an additional $20,000 in capital to
fund inventory and cash flow needs for the first few months of operation. The City
agreed to fill this gap in funding for the company with a UDAG loan.
The property on Jackson Street was in a run-down condition, and was a blighting
influence on the neighborhood. The proposed new business was the only full service
landscape garden center located in the "North end" of the City. A UDAG loan agreement
was approved in the amount of $20,000. The loan was for afive-year term, at 3%
interest, with interest only payments due for the term, and a balloon payment due at the
end of the loan period. The City required security of a second mortgage on the property
and personal guarantees of Gregory W. Schmidt and Wayne C. Klostermann. The
balloon loan payment was due in March of 2009. Due to the current economic
conditions, the company is requesting an extension on the repayment of the loan. The
company would continue to make interest payments until June 2009 at which time they
would make monthly principal and interest payments of $2,000 with a balloon payment
of the loan balance in December 2009.
RECOMMENDATION
Based on the national economy, I concur with this request.
ACTION REQUIRED
The City Council is requested to approve the attached resolution approving an
amendment to the loan agreement with Dubuque Nursery and Landscape.
F:\USERS\DHeiar\memo on UDAG loan amendment to Dubuque Nursery and Landscaping.doc
RESOLUTION NO. 154-09
AMENDING LOAN AGREEMENT WITH DUBUQUE NURSERY AND
LANDSCAPE
Whereas, Dubuque Nursery and Landscape operates a business at 2813
Jackson Street, and
Whereas, the City of Dubuque approved an Urban Development Action Grant
(UDAG) loan to Dubuque Nursery and Landscape on April 5, 2004;
Whereas, the Company has requested an extension on repayment of the loan;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the amendment to the Loan Agreement by and between the
City of Dubuque, and the Dubuque Nursery and Landscape attached hereto is hereby
approved.
Section 2. That the City Manager is authorized to execute, on behalf of the
City of Dubuque, Iowa, said Loan Agreement in substantially the form attached hereto;
but with such changes as the City Manager, with the assistance of the Corporation
Counsel, find to be appropriate, the City Manager's execution thereof to constitute this
City Council's approval of said Loan Agreement.
Passed, approved and adopted this 18th day of May, 2009.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
River Valley Nursery & Landscape
2811 Jackson Street
Dubuque, IA 52001
Phone (563) 582-1296
Fax (563) 582-4481
May 7, 2009
Mr. David J Heiar
Economic Development Director
Economic Development Dept
50 West 13`h Street
Dubuque, IA 52001-4864
Dear Mr. Heiar,
RE: UDAG Loan
We are requesting an extension of the above loan for 8 months from this date. We would
also propose to make principal and interest payments of $2,000 per month with a balloon
payment due in December 2009. Payments would be made starting June 25, 2009
If you have any questions, please contact Wayne at 563-582-1296.
Thank you,
Wayne Klostermann
River Valley Nursery & Landscape
THE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
Finance Department
50 West 13th Street
Dubuque, Iowa 52001-4805
Office (563) 589-4133
Fax (563) 690-6689
TTY (563) 690-6678
finance@cityofdubuque.org
www.cityofdubuque.org
October 20, 2008
LOAN PAYMENT REMINDER
COPY
River Nursery and Landscape, Inc.
2813 Jackson
Dubuque, Ia 52001-1962
the $20,000.00 principal payment on your UDAG is due 4/15/2009.
Please main the payment to:
Cheryl Pregler
City of Dubuque
Finance Department
50 W 13th St.
Dubuque, IA 52001
(563) 589-4140
Principal balance $20,000.00 (Final payment)
Payment amount to be applied to principal $20,000.00
Payment amount to be applied to interest $
Please attach lower portion with your payment:
River Nursery and Landscape, Inc.
UDAG265
April
26410265 48105 $
2651265 43405 $20,000.00
(Final Payment)
Loan Agreement
RIVER VALLEY NURSERY AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
AND LANDSCAPE)
Page 1
CITY OF DUBUQUE, IOWA
ECONOMIC DEVELOPMENT LOAN PROGRAM
RIVER VALLEY NURSERY AND LANDSCAPE, INC.
(AKA DUBUQUE NURSERY AND LANDSCAPE)
LOAN AGREEMENT
NUMBER: UDAG#1-04
This AGREEMENT, dated as of the 27th day of April, 2004, is entered
into by and between the CITY OF DUBUQUE, IOWA, a municipal corporation
organized and existing under the laws of the State of Iowa (hereinafter referred to as
the "City") and RIVER VALLEY NURSERY AND LANDSCAPE, INC. (also know as
(AKA) DUBUQUE NURSERY AND LANDSCAPE) a Iowa Corporation with its principal
place of business in Dubuque, Iowa (hereinafter referred to as the "Company").
WITNESSETH:
WHEREAS, City has funded an economic development loan program to support
the growth and expansion of new and existing businesses; and
WHEREAS, Company has requested a loan to offset the costs associated with
the acquisition and operation of a nursery and landscaping business located at 2813
Jackson Street, Dubuque, Iowa; and
WHEREAS, City has considered said proposal and has determined that it will
improve the Jackson Street neighborhood and contribute to the local economy through
the creation of jobs for area residents.
NOW THEREFORE, in consideration of the promises and respective covenants,
agreements and representations hereinafter set forth, the parties agree as follows:
1. SOURCE OF LOAN FUNDS. City has sufficient Urban Development Action
Grant (UDAG) funds to carry out its obligations under this Agreement.
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 2
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
2. LOAN TERMS. City agrees to provide a loan to Company in the amount of
twenty thousand dollars ($20,000.00). The term of the loan shall be five (5) years.
Interest shall accrue at the rate of three percent (3%) per annum. Payments of interest
shall be made quarterly during the term of the loan, and the entire amount of principal
shall be due and payable on April 15, 2009. On or before the date of the first
disbursement of loan funds to Company, Company shall execute its Promissory Note in
the form attached hereto as Exhibit A payable to the order of City in the principal
amount of twenty thousand dollars ($20,000.00).
3. DISBURSEMENT AND USE OF LOAN FUNDS: Loan funds shall be
disbursed for the benefit of Company by City for Qualifying Project Expenses up to
twenty thousand dollars ($20,000.00). Company shall furnish to City written request for
disbursement of loan funds. It is expressly understood that all funds advanced under
this Agreement shall be specifically earmarked and used by Company only for the
purpose of paying the Qualifying Project Expenses listed in the applicable written
request and as defined in Section 26(b). Company shall complete the Project as
defined in Section 26(a) in accordance with the terms of this Agreement within twelve
(12) months of the date of this Agreement. City shall not be obligated to pay any funds
not drawn by Company as of said date and any undrawn funds shall be credited against
the balance due on the Promissory Note.
4. SECURITY. This loan shall be secured by Personal Guarantees from
Gregory W. Schmidt and Wayne C. Klostermann, and a second mortgage on the real
estate located at 2813 Jackson Street.
5. STATUS OF COMPANY. Company represents that it is a corporation duly
organized and existing under the laws of the State of Iowa; that it is authorized to
borrow under this Agreement, to execute and deliver the Note and otherwise perform
the obligations of this Agreement; that is has corporate authority and power to own its
property and conduct its business as it is currently carried on; that the performance of
its obligations under this Agreement and the issuance of any note under it will not
conflict with any provision of law, the Articles of Incorporation or the Bylaws of
Company, or any agreement binding on it; and that, except as disclosed in writing to
City, it is not a party to any pending or threatened litigation or to any proceeding or
action for the assessment or collection of additional taxes, and that it knows of no
known contingent liabilities not provided for or disclosed in the financial statement
provided City.
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 3
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
6. CONDITIONS OF BORROWING. On the date on which any sum is to be
borrowed, Company, in addition to the Note, shall deliver to City such other papers and
documents as may be required to comply with the conditions of this Agreement, as
counsel for City may reasonably request.
Company shall be required at the closing date to comply, or establish compliance,
as follows:
(a) That the representations and warranties of Company are correct on
the closing date, as well as on the date of execution of this Agreement;
(b) That Company has fully complied with the covenants and agreements
to the extent required before the closing date;
(c) That no default or event which might mature into a default has
occurred or continues to the closing date;
(d) That no litigation or proceeding is pending against Company which
might result in any change in the business or adversely affect the properties of
Company, taking into account the entire assets and overall business of Company;
(e) That since the date of execution of this Agreement and to the closing
date there has been no material adverse change in the financial condition of
Company;
(f) That since the date of execution of this Agreement no fire or casualty
has occurred in any building or to any inventories or property of Company that
might substantially, adversely affect the conduct of its business;
(g) That it will furnish to City on the closing date with the opinion of
Company's counsel that Company is a corporation duly organized, existing and in
good standing under the laws of the State of Iowa; that it has corporate power to
own its properties and conduct the business in which it is then engaged; that
Company is not in violation of any law, ordinance or regulation of any
governmental authority as to its business, premises or assets; that Company has
full power to execute and deliver this Agreement, to execute and deliver the Note
that evidences the sum borrowed, to borrow moneys under this Agreement, and
to perform its obligations under this Agreement and the Note; that such actions
have been duly authorized by all necessary corporate actions and are not in
conflict with any agreement binding on Company known to counsel; and that this
Agreement and the Note when executed and delivered by Company will be a valid
and binding obligation of Company in accordance with its terms.
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 4
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
9. COVENANTS OF COMPANY. Company covenants that until any sums
borrowed under this Agreement are paid in full, it will, unless City agrees in writing to a
modification or otherwise stated herein:
(a) Take all actions necessary and required to create a minimum of eight
(8) new permanent full-time job equivalents with Company in Dubuque, Iowa by
April 15, 2009. Company shall use its best efforts to hire local area residents
whenever practicable and not otherwise in conflict with nondiscrimination
provisions herein stated.
(b) Furnish City within ninety (90) days after the end of each fiscal year
with a copy of its annual report, which shall be prepared in conformity with
generally accepted accounting principles consistently applied, and, within thirty
(30) days after the end of each quarter of its fiscal year, with a copy of its financial
statement similarly prepared and, from time to time, such other financial
information as City may reasonably request. City reserves the right to request
audited annual reports, certified by the accountants that supplied the statements
at the execution, or such other accountants satisfactory to City as may be retained
by Company, which shall be prepared in conformity with generally accepted
accounting principles consistently applied. Reports shall be supplied at the
expense of Company;
(c) Pay when due all rent, taxes, assessments and other liabilities, except
those contested in good faith where notice of such contest has been given to City;
(d) Not create or permit to exist any mortgage, pledge, security interest,
lien or other encumbrance on the security for this Loan Agreement provided in
Section 4 above and the Note provided pursuant to this Loan Agreement without
written consent of City. City approval of such written consent will not be
unreasonably withheld;
(e) Not become a party to any merger, consolidation or sale of Company;
not sell, transfer, convey or lease all or any part of its property except in the
ordinary course of business;
(f) Not cause, suffer or permit any of its subsidiaries to do any of the
things prohibited to Company in this Agreement;
(g) Not change the general character of its business as conducted at the
date hereof, engage in any-type of business not reasonably related to its business
as normally conducted, or relocate Company's project operations outside the city
limits of the City of Dubuque;
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 5
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
(h) Give prompt notice in writing to City of any adverse development,
financial or otherwise, which would materially affect its business, properties or
affairs, or the ability of Company to perform its obligations under this Agreement
or the Promissory Note executed pursuant to the terms of this Agreement;
(i) Use loan funds only for purposes authorized herein;
(j) Pay all fees, expenses and charges in respect to this Agreement or its
making in any way connected therewith including, but not limited to, legal fees,
abstract continuation, recording and filing fees, mortgage taxes, documentary
stamps, and any other taxes, fees and expenses payable in connection with this
transaction.
10. DEFAULT. Company shall be in default if:
(a) It fails to pay any instillment of principal or interest on any note
(whether to City or any other public or private lender) when due or within ten (10)
days thereafter;
(b) It becomes insolvent or admits in writing its inability to pay its debts as
they mature; or applies for, consents to or acquiesces in the appointment of a
trustee or received for any of its property; or in the absence of an application for
consent, or acquiescence, a trustee or receiver is appointed for it or a substantial
part of its property and is not discharged within ten (10) days; or it otherwise
commits an act of bankruptcy; or any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is instituted by or against it and if instituted is
consented to or acquiesced in by it or remains for ten (10) days undismissed;
(c) It fails in the performance of the terms and conditions of this
Agreement (other than the payment terms referred to in (a) above) and such non-
performance continues for ten (10) days after notice thereof from City or from the
holder of a note;
(d) Any warranty made by Company is untrue in any material respect, or
any schedule, statement, report, notice or writing furnished by Company to City is
untrue in any material respect on the date as of which the facts set forth are
stated or cerkified;
(e) Any government board, agency, department, commission or public or
private lender takes possession or control of any substantial part of the property
of Company and such possession or control continues for ten (10) days.
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 6
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
11. ACCELE TION AT OPTION OF CITY. If any default occurs, City may
declare the Note immediately due and payable, at which time all unpaid principal and
interest shall immediately become due and payable. City shall promptly advise
Company in writing of any acceleration under this section, but the failure to do so shall
not impair the effect of such declaration.
12. MAINTENANCE OF RECORDS AND RIGHT TO INSPECT. Company will
keep and maintain all normal business books and records and all other documents,
invoices and receipts relating directly to the receipt and disbursement of loan funds and
job creation; and any duly authorized independent accounting representative of City
shall at all reasonable times have access to and the right to inspect, copy, audit and
examine all such books and other documents of Company pertaining to the project until
the completion of all closeout procedures respecting City's loan and the final settlement
and conclusion of all issues arising out of said loan.
13. ADDRESS. Cornpany's.initial business address is:
RIVER VALLEY NURSERY AND LANDSCAPE, INC. (AKA DUBUQUE
NURSERY AND LANDSCAPE)
2813 Jackson
Dubuque, Iowa 52001
Company shall promptly give City written notice of any further change in its
principal office address. City's address is:
Economic Development Department
City Hall
50 West 13th Street
Dubuque, IA 52001
14. ACCESS TO PROJECT. Company agrees that any duly authorized
representative of City shall at all reasonable times have access to any portion of the
project, for monitoring purposes, until the completion of all closeout procedures
respecting this loan.
15. LIMITATION OF CITY'S LIABILITY FOR PROJECT ACTIVITIES. City shall
not be liable to Company, or to any party, for the completion of, or the failure to
complete, any activities that are part of the project, except as may be specifically
provided in this Agreement. Company agrees to indemnify, hold harmless and defend
City from any such claims against City for which liability is limited hereunder.
Loan Agreement
RIVER VALLEY NURSERY
AND LANDSCAPE)
Page 7
AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
16. CONFLICT OF INTEREST'. Company agrees that no member, officer or
employee of City, or its designees or agents, nor any consultant or member of the
governing body of City, and no other public official of City who exercises or has
exercised any functions or responsibilities with respect to the project during his or her
tenure, or who is in a position to participate in a decision making process or gain inside
information with regard to the project, shall have any interest, director indirect, in any
contract or subcontract, or the proceeds thereof, for work to be performed in connection
with the project, or in any activity, or benefit therefrom, which is part of this project at
any time during or after such person's tenure.
17. NONDISCRIMINATION. In carrying out the project, Company shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, national origin, age or disability. Such action shall include, but not
be limited to, the following: employment upgrading, demotion or transfer; recruitment or
recruitment adverkising; layoff or termination; rate of pay or other forms of
compensation; and selection for training, including apprenticeship.
18. DISCLAIIVIER OF RELATIONSHIPS. Nothing contained in this Agreement
between the parties, riot any act of City or Company shall be deemed or construed by
any of the parties, or by any third persons, to create any relationship of third party
beneficiary, principal or agent, limited or general partnership, or joint venture, or of any
association or relationship involving the United States.
19. NOTICE. Any notice, if mailed by United States cerkified mail, shall be
deemed given when mailed, postage prepaid, addressed to Company at its address
shown above, or at any other address subsequently designated to City by Company.
20. SUCCESSORS AND ASSIGNS. All covenants, representations, warranties
and agreements herein set forth shall be binding upon Company, and its legal
representatives, successors and assigns. This Agreement may not be assigned by City
or Company without the express written consent of the other party.
21. LEGALITY. If any provision of this Agreement shall, for any reason, be held
to be invalid or unenforceable, such invalidity or unenforceability shall not affect any
other provision hereof, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
22. GOVERNING LAW. This Agreement and all rights and duties hereunder,
including but not limited to, all matters of construction, validity and performance shall be
governed by the laws of the State of Iowa.
Loan Agreement
RIVER VALLEY NURSERY AND LANDSCAPE, INC. (AKA DUBUQUE NURSERY
AND LANDSCAPE)
Page 8
23. SURVIVAL OF REPRESENTATIONS. All representations or warranties of
Company shall survive the execution and delivery of this Agreement and any notes
executed and delivered under it, and no investigation by City nor any closing shall affect
the representations or warranties or the right of City to rely on and enforce them.
24. DELAY. No delay on the part of City or the holder of any note in the
exercise of any right shall operate as a waiver, nor shall any single or partial exercise of
any right preclude other or additional exercise of any right.
25. DEFINITIONS.
(a) "Project" shall mean those activities to be carried out by Company for
the expansion of Company in Dubuque, Iowa.
(b) "Qualifying Project Expenses" shall mean those expenditures or
expenses incurred by Company during and for the Project for the acquisition of
needed inventory and for working capital.
(c) "Full-Time Job Equivalent" shall equal a total of forty hours of labor per
work week. Such hours may be accrued by single individuals or divided among
two or more Company employees.
IN WITNESS WFIEREOF, City has caused this Loan Agreement to be executed
by the City Manager. The Company has executed this Loan Agreement in its
corporate name by its duly authorized officer. All of the above occurred as of the
27th day of April, 2004.
CITY OF DUBUQUE, IOWA
RIVER VALLEY NURSERY AND
LANDSCAPE INC. (AKA DUBUQUE
BURSERY AND LANDSCAPE)
Michael C. Van Milligen
City Manager
Wayne C. Klosermann
President and Secretary
Gregory W. Schmidt
Vice President and Treasurer
Exhibit A
PROMISSORY NOTE
RIVER VALLEY NURSERY AND LANDSCAPE, INC.
Economic Development Lan Program
UDAG #1-04
Value: $20,000
FOR VALUE RECEIVED, River Valley Nursery and Landscape, Inc (also known as
Dubuque Nursery and Landscape) ("Company") promises to pay to the order of the CITY
F ®UEUQUE, I®VVA-, a municipal corporation ("City"), the principal amount of twenty
thousand dollars ($20,000) from the date said monies~are disbursed by City suant to the
terms of the attached Loan Agreement dated the 27 day of April 27th 2004,
("Loan Agreement") which interest shall be at the rate of three percent (3%) per annum.
All payments hereunder shall be made in lawful money of the United States at the
administrative offices of the Finance Department of City, or at such other place as City may
from time to time in writing designate.
Company may, from time to time, prepay all or any portion of the principal balance due
hereunder without penalty and without consent of City. All such payments of principal shall
be applied to principal installments in reverse order of maturity and which last come due
under the terms of this Promissory Note.
This Promissory Note is made, executed and delivered in accordance with and subject to
all of the terms and provisions of the Loan Agreement, entered into and between
Company, as borrower, and City, as lender, which is incorporated herein by reference.
This Promissory Note is secured by Personal Guarantees of Gregory W. Schmidt and
Wayne C. Klostermann.
PERSONAL GUARANTY
In Consideration of financial accommodations given or to be given to River Valley Nursery and
Landscaping, Inc ("Business") by the City of Dubuque, Iowa ("City of Dubuque, Iowa") the
undersigned irrevocably and unconditionally guarantees to the City of Dubuque, Iowa, payment
when due, whether by acceleration or otherwise, of any and all liabilities of the Business to the
City of Dubuque, Iowa, in connection with a $20,000 loan ("the Loan") together with all interest
thereon; all attorneys' fees, costs and expenses of collection incurred by the City of Dubuque,
Iowa in enforcing any of such liabilities related to the Loan; and all attorneys' fees, costs and
expenses incurred by the City of Dubuque, Iowa in foreclosing, preserving, protecting, retaking,
holding and selling of collateral as a result of the enforcement or foreclosure of any security
interest given by Business to City of Dubuque, Iowa.
The term "Liabilities of the Business" shall include all liabilities related to the Loan, director
contingent, joint, several or independent, of the Business incurred for any purpose whatsoever,
or hereafter existing, due or to become due to, or held or to be held by, the City of Dubuque,
Iowa whether created directly or acquired by assignment or otherwise.
The undersigned waive notice of acceptance of this guaranty and notice of any liability to which
it may apply, and waive presentment, demand of payment, protest, notice of dishonor or
nonpayment of any such liabilities, suit or taking other action by the City of Dubuque, Iowa
against, and any other notice to, any party liable thereon (including the undersigned).
The City of Dubuque, Iowa may at any time and from time to time without the consent of, or
notice to the Undersigned, without incurring responsibility to the undersigned, without impairing
or releasing the obligations of the undersigned hereunder, upon or without any terms or
conditions and in whole or in part;
(1) consistent with that certain Loan Agreement No, 01-04 dated /~~~'~ ~ ~ ~, 2004 by and
among the Business ,and City of Dubuque, Iowa change the manner, rate of interest, place or
terms of payment, and/or change or extend (for a period less than equal to or longer than the
original period) the time of payment of, renew or alter, any liability of the Business, any security
therefor, or any liability incurred directly or indirectly in respect thereof, and the guaranty herein
made shall apply to the liabilities of the Business as so changed, extended, renewed or altered;
(2) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the liabilities hereby guaranteed or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(3) exercise or refrain from exercising any rights against the Business or others (including the
undersigned) or otherwise act or refrain from acting;
(4) settle or compromise any liability hereby guaranteed, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect thereof or hereof,
and may subordinate the payment of all or any part thereof to the payment of any liability
(whether due or not) of the Business to creditors of the Business other than the City of
Dubuque, Iowa and the undersigned; and
(5) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities
(regardless of the origin thereof) of the Business to the City of Dubuque, Iowa, regardless of the
nature of the liabilities of the Business which remain unpaid and regardless of Business'
application or use of the consideration, if any, received in connection with such liability or
liabilities.
No invalidity, irregularity or unenforceability of all or any part of the liabilities hereby guaranteed
or of any security therefor shall affect, impair or be a defense to this guaranty, and this guaranty
is a primary obligation of the undersigned.
This guaranty is a continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance hereon. As to
each of the undersigned, this guaranty shall remain in full force and effect until all liabilities of
the Business have been paid in full.
If claim is ever made upon the City of Dubuque, Iowa for repayment or recovery of any amount
of amounts received by the City of Dubuque, Iowa in payment or on account of any of the
liabilities of the Business and the City of Dubuque, Iowa repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body having
jurisdiction over the City of Dubuque, Iowa or any of its property, or (b) any settlement or
compromise of any such claim affected by the City of Dubuque, Iowa with any such claimant
(including the Business), then and in such event the undersigned agree that any such
judgment, decree, order, settlement or compromise shall be binding upon the undersigned,
notwithstanding any revocation hereof or the cancellation of any note or other instrument
evidencing any liability of the Business, and the undersigned shall be and remain liable to the
City of Dubuque, Iowa hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by the City of Dubuque, Iowa.
Any acknowledgement or new promise, whether by payment of principal or interest or otherwise
and whether by the Business or others (including the undersigned), with respect to any of the
liabilities of the Business shall, if the statute of limitations in favor of the undersigned against
the City of Dubuque, Iowa shall have commenced to run, toll the running of such statute or
limitations and, if the period of such statute of limitations shall have expired, prevent the
operation of such statute of limitations.
No delay on the part of the City of Dubuque, Iowa in exercising any of its options, powers or
rights, or partial or single exercise thereof, shall constitute a waiver thereof. No waiver of any of
its rights hereunder, and no modification or amendment of this guaranty, shall be deemed to be
made by the City of Dubuque, Iowa unless the same shall be in writing, duly signed on behalf of
the City of Dubuque, Iowa, and each such waiver, if any, shall apply only with respect to the
specific instance involved, and shall in noway impair the rights of the City of Dubuque, Iowa or
the obligations of the undersigned to the City of Dubuque, Iowa in any other respect at any
other time.
"The undersigned waive all rights of subrogation to any collateral and remedies of the City of
Dubuque, Iowa against the Business, and other persons, until the liabilities guaranteed
hereunder shall have been fully paid and discharged."
This guaranty and the rights and obligations of the City of Dubuque, Iowa and of the
undersigned hereunder shall be governed and construed in accordance with the laws of the
State of Iowa; and this guaranty is binding upon the undersigned, his, their or its executors,
administrators, successors or assigns, and shall inure to the benefit of the City of Dubuque,
Iowa, its successors or assigns.
The undersigned, if more than one, shall be jointly and severally liable hereunder and the term
"undersigned" wherever used herein shall mean the undersigned or any one or more of them.
Anyone signing this guaranty shall be bound hereby, whether or not anyone else signs this
guaranty at any time. The term "City of Dubuque, Iowa" includes any agent of the City of
Dubuque, Iowa acting for it.
It is understood that the liability of the undersigned to the City of Dubuque, Iowa hereunder shall
not exceed Twenty Thousand dollars.
Dated this ~ day of ~a''>^ ` ~ , 2004.
,~) /~ /,
Wayne C. Klostermann
2636 Queen Street
Dubuque, Iowa 52001 1
Gre ry .Schmidt
16~ Paradise Lane
Dubuque, Iowa 52003
Social Security Number: ~~~ ~~
Social Security Number: `~ ~~~ ~`(~
STATE OF IOWA r ,_
COUNTY OF ~-~~ /,~Y`~ ~~(4% G~ L~ :SS.
,~ n ; .
BE IT REMEMBERED, that this ~~ C)7j~~ day of ~~ I`~j< 1 ~-- , 2004, before me
the undersigned, a Notary Public in and for the State of Iowa, personally appeared
Wayne C. Klostermann and Gregory W. Schmidt, to me personally known to be the identical
persons named in and who executed the above and foregoing instrument and acknowledged
that they/he/she executed the same as their/his/her voluntary act and deed. ,~
t
Notary Public in and for the State of Iowa
~, „
~~`(' L% ~
aa~`~^i~ "K~'e@IEFa' P-~, G@iESTERMAN
~ r GG@,~t;it:;c;lUhd N0. 10®259
` PAY ~~7i~~'~CIS510N EXPIfl~S
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