Roshek Building/IBM Redevelopment Project Notice and Consent AgreementT®: The Honorable Mayor and City Council Members
F®M: Michael C. Van Milligen, City Manager
SUBJECT: Roshek Building/IBM Redevelopment Project
®ATE: May 13, 2009
Attorney Barry Lindahl is recommending approval of a form of Notice and Consent
Agreement by and among the City, Dubuque Bank & Trust, Dubuque Initiatives and
Roshek Building Investment Fund, LLC involving the Roshek Building/IBM
Redevelopment Project.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
McvM:lw
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
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THE CITY OF `°
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Masterpiece on the Mississippi
BARRY LIN®AHL
CITY ATTORNEY
1°®: Michael C. Van Milligen
City Manager
®ATE: May 11, 2009
RE: Roshek Building/IBM Redevelopment Project
Attached is a form of Notice and Consent Agreement ("Agreement") by and among the
City, Dubuque Bank & Trust ("DB&T"), Dubuque Initiatives ("DI") and Roshek Building
Investment Fund, LLC, an entity that is being created as part of the tax credit
transactions involving the Roshek Building/IBM Redevelopment Project. The
Agreement is intended to ensure that the City, as guarantor for the loans made by
DB&T to or on behalf of DI, receives any notices of default given by other parties
involved in the tax credit transactions, even if the City is not a party to a particular
agreement. The Agreement also gives the City the right to approve the exercise of
certain remedies that may exist under those other agreements.
The tax credit transaction documents are still being negotiated by the various parties,
and a closing later this month is anticipated. It is possible that the attached form of
Agreement will need to be revised somewhat before the closing can occur. For that
reason, the attached resolution allows changes to be made to the attached form of
Agreement if the changes are acceptable to the Mayor, upon the advice of the City
Attorney.
BAL:tIs
Attachment
cc: Dave Heiar, Economic Development Director
F:\USERS\tsteckle\Lindahl\IBM\MVM_DraftRevisedNotice&ConsentAgreement_051109.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
NOTICE AND CONSENT AGREEMENT
This NOTICE AND CONSENT AGREEMENT is made as of May _, 2009 (the
"Consent Agreement") by and among (i) the City of Dubuque, Iowa, an Iowa municipal
corporation ("City"), (ii) Dubuque Bank & Trust Company, an Iowa domestic bank
("DB&T"), (iii) Dubuque Initiatives, an Iowa non-profit corporation ("DI"), and (iv)
Roshek Building Investment Fund, LLC, a Delaware limited liability company ("Fund")
(each a "Party" and collectively referred to herein as the "Parties").
WHEREAS, in connection with the rehabilitation, renovation and improvement of
office/retail space in the Roshek Building located generally at 700 Locust Street,
Dubuque, Iowa to be owned by Roshek Building QALICB, an Iowa limited liability
company (the "QALICB"), certain of the Parties have entered into the agreements listed
on Exhibit A attached hereto, each dated as of the date hereof (each an "Agreement" and
collectively referred to herein as the "Agreements"); and
WHEREAS, the Parties have agreed to provide City with the notices and rights of
consent described herein.
NOW, THEREFORE, for good and valuation consideration, and intending to be
legally bound, the Parties hereto agree as follows:
1. Notwithstanding anything in the Agreements to the contrary, any Party
declaring an "event of default" (however defined) under an Agreement shall send a copy
of the notice declaring such default to the City at the time such notice is given to the
defaulting party under the applicable Agreement, and the Fund shall send a copy of any
notice it receives from ICD VIII, L.L.C., an Iowa limited liability company (the "ICD
CDE"), from USBCDE Sub-CDE XXV, LLC, a Delaware limited liability company
(the "USB CDE") or from Roshek/NCF Sub-CDE, LLC, a Delaware limited liability
company (the "NCF CDE") requesting consent to declare a default under any of the
Agreements.
2. Notwithstanding anything in the Agreements to the contrary, no Party may
exercise any remedy granted or allowed to said Party under an Agreement as a result of
an "event of default" (however defined) under the Agreement without the prior written
consent of the City Manager of the City; provided, however, that such consent shall be
presumed and deemed given if the City Manager does not object in writing within ten
(10) days of receiving the Party's request for such consent.
3. Notwithstanding anything in the Agreements to the contrary, the Fund shall
.not consent to the ICD CDE, the USB CDE or the NCF CDE exercising any remedy
granted or allowed to any of them under an Agreement as a result of an "event of default"
(however defined) under the Agreement without the prior written consent of the City
Manager of the City; provided, however, that such consent shall be presumed and
deemed given if the City Manager does not object in writing within ten (10) days of
receiving the Fund's request for such consent; and provided further that the requirement
to obtain the prior written consent of the City shall not apply to an "event of default" with
respect to an event of default under Section 7.1(m) of the Agreement listed in number 1
in Exhibit A hereto.
4. This Consent Agreement constitutes the entire agreement of the Parties
with respect to the notices to be provided to the City in connection with any default
arising under an Agreement.
5. This Consent Agreement maybe amended only by a writing, signed by the
Party or Parties to be bound or burdened by such amendment.
6. This Consent Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and assigns.
7. Any notice required or permitted to be given hereunder shall be in writing
and shall be effective when actually received or delivered by hand or overnight courier,
or when confirmed by receipt if transmitted by telecopy or other form of rapid
transmission if the notice given by such means of communication is capable of being
confirmed upon delivery by electronic means, or three days after being sent by registered
or certified mail, postage pre-paid, the certification receipt therefore being deemed the
date of such notice, and addressed to the City as follows:
City of Dubuque, Iowa
50 West 13th Street
Dubuque, Iowa 52001
Attn: City Manager
Facsimile: (563) 589-0890
With a copy to:
Mr. B arry Lindahl
Corporate Counsel
Suite 330, Harbor View Plaza
300 Main Street
Dubuque, Iowa 52001-6944
Facsimile: (563) 583-1040
The notice address for all other Parties shall be as set forth in the applicable Agreements
8. This Consent Agreement may be executed in any number of counterparts,
all of which, when taken together, shall constitute one and the same instrument, and any
Party hereto may execute this Consent Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the Parties hereto have caused this Consent Agreement
to be executed by their respective duly authorized signatories as of the day and year
written above.
CIRT OF DUBUQUE, IOWA
an Iowa municipal corporation
By: Roy D. Buol, Mayor
ATTEST:
BY: Jeann F. Schnider, City Clerk
DUBUQUE BANK & TRUST COMPANY
an Iowa domestic bank
By:
Name:
Title:
DUBUQUE INITIATIVES
an Iowa non-profit corporation
By:
Name:
Title:
ROSHEK BUILDING INVESTMENT FUND,
LLC, a Delaware limited liability company
By:
Name:
Title:
EXHIBIT A
1. Loan Agreement (QLICI Loan) by and among QALICB, as Borrower, and ICD
CDE, and USB CDE, and NCF CDE as Lenders, and all Promissory Notes issued
thereunder
2. Loan Agreement (Loans A, B and D) between DB&T, as Lender, and DI, as
Borrower
3. Loan Agreement (Loan C) between DB&T, as Lender, and DI, as Borrower
4. Fund Loan Agreement between DI, as Fund Lender, and Investment Fund, as Fund
Borrower
5. Pledge Agreement between DI, as Fund Lender, and Investment Fund, as Fund
Borrower (re: Fund Loan Agreement)
6. FHTC Bridge Loan Agreement between DI, as Fund Lender, and Investment
Fund, as Fund Borrower
7. Pledge Agreement between DI, as Fund Lender, and Investment Fund, as Fund
Borrower (re: FHTC Bridge Loan Agreement)
8. SHTC Bridge Loan Agreement between DB&T, as Lender, and DI, as Borrower
DCORNELL/ 615834.1 /MSWord\10422.087
ND: 4834-1960-0899, v. 2
RESOLUTION NO. 156-09
RESOLUTION APPROVING AND AUTHORIZING
EXECUTION OF A NOTICE AND CONSENT
AGREEMENT BY AND AMONG THE CITY OF
DUBUQUE, IOWA, DUBUQUE BANK & TRUST
COMPANY, DUBUQUE INITIATIVES, AND ROSHEK
BUILDING INVESTMENT FUND, LLC
WHEREAS, in connection with the rehabilitation, renovation and improvement of
office/retail space in the Roshek Building located generally at 700 Locust Street,
Dubuque, Iowa, the City of Dubuque ("City") and other parties intend to enter into
various agreements for the purpose of facilitating the use of historic tax credits and new
market tax credits in conjunction with that project; and
WHEREAS, a form of Notice and Consent Agreement (the "Agreement") has
been prepared for the purpose of ensuring that the City receives certain notices and has
certain rights of consent in connection the various agreements to be entered into; and
WHEREAS, the Council has determined that the Agreement is in the best interests
of the City and the residents thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. That the form and content of the Agreement, the provisions of which
are incorporated herein by reference, be and the same hereby are in all respects
authorized, approved and confirmed, and the Mayor and the City Clerk be and they
hereby are authorized, empowered and directed to execute, attest, seal and deliver the
same for and on behalf of the City in substantially the form and content now before this
meeting, but with such changes, modifications, additions or deletions therein as may be
approved by such officers upon the advice of the City Attorney, and that from and after
the execution and delivery of the Agreement, the Mayor and the City Clerk are hereby
authorized, empowered and directed to do all such acts and things and to execute all such
documents as may be necessary to carry out and comply with the provisions of the
Agreement as executed.
PASSED AND APPROVED this 18th day of
May, 2009
Mayor
ATTEST:
Clerk
May 18, 2009
The City Council of Dubuque, Iowa met in regular session, in the Historic
Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6:30 o'clock p.m., on
the above date. There were present Mayor Buol, in the chair, and
the following named Council Members:
Lynch, Resnick, Voetberg, Braig
Connors, Jones
Absent:
* * * * * * *
Council Member Kevin Lynch introduced and delivered to the Clerk the
Resolution hereinafter set out entitled "RESOLUTION APPROVING AND
AUTHORIZING EXECUTION OF A NOTICE AND CONSENT AGREEMENT BY
AND AMONG THE CITY OF DUBUQUE, IOWA, DUBUQUE BANK & TRUST
COMPANY, DUBUQUE INITIATIVES, AND ROSHEK BUILDING INVESTMENT
FUND, LLC", and moved:
fix/ that the Resolution be adopted.
/_/ to ADJOURN and defer action on the Resolution and
the proposal to the meeting to be held at o'clock _.M. on the
day of , 2009, at this place.
Council Member Karla Braig seconded the motion. The roll was
called and the vote was,
AYES; Lynch, Resnick, Voetberg, Braig
Buol, Connors, Jones
NAYS:
Whereupon, the Mayor declared the measure duly adopted.
CERTIFICATE
STATE OF IOWA )
SS
COUNTY OF DUBUQUE )
I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is
a true and complete copy of the portion of the corporate records of said Municipality
showing proceedings of the Council, and the same is a true and complete copy of the
action taken by said Council with respect to said matter at the meeting held on the date
indicated in the attachment, which proceedings remain in full force and effect, and have
not been amended or rescinded in any way; that meeting and all action thereat was duly
and publicly held in accordance with a notice of meeting and tentative agenda, a copy of
which was timely served on each member of the Council and posted on a bulletin board
or other prominent place easily accessible to the public and clearly designated for that
purpose at the principal office of the Council (a copy of the face sheet of said agenda
being attached hereto) pursuant to the local rules of the Council and the provisions of
Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at
least twenty-four hours prior to the commencement of the meeting as required by said
law and with members of the public present in attendance; I further certify that the
individuals named therein were on the date thereof duly and lawfully possessed of their
respective city offices as indicated therein, that no Council vacancy existed except as may
be stated in said proceedings, and that no controversy or litigation is pending, prayed or
threatened involving the incorporation, organization, existence or boundaries of the City
or the right of the individuals named therein as officers to their respective positions.
WITNESS my hand and the seal of said Municipality hereto affixed this
day of , 2009.
City Clerk, Dubuque, Iowa
SEAL
DCORNELL/ 617161.1 /NISWord\10422.087
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