Dubuque Yacht Basin_Assignment of Leases and Leasehold Mortgage, Security AgreementMasterpiece on the Mississippi
Dubuque
heal
AII-Amedca City
' '
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Yacht Basin - Assignments of Leases and Leasehold Mortgage
and Security Agreement
DATE: July 14, 2010
City Attorney Barry Lindahl recommends City Council approval of a Leasehold
Mortgage and Security Agreement and Assignments for the Dubuque Yacht Basin, Inc.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Michael C. Van Milligen
THE CITY OF
DUB1UE MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDA
CITY ATTORNE
To: Michael C. Van Milligen
City Manager
DATE: July 13, 2010
RE: Dubuque Yacht Basin - Assignments of Leases and Leasehold Mortgage
and Security Agreement
Dubuque Yacht Basin, Inc. leases real property from the City of Dubuque pursuant to
several leases. Attached is a letter from American Trust & Savings Bank First Vice
President Peter J. Weber, asking for the approval for a Leasehold Mortgage and
Security Agreement, and Assignments of the leases, as security for its financing for
Dubuque Yacht Basin, Inc.
Bill Noth and I have reviewed the Leasehold Mortgage and the Assignments and were
particularly concerned that, in the event of a default by Dubuque Yacht Basin, Inc., that
American Trust & Savings would have no right to sell any of the City real estate as a
remedy for default. We made the necessary changes to protect the City's interest.
I would recommend that the attached Leasehold Mortgage and Security Agreement and
Assignments be submitted to the City Council for consideration and approval.
BAL:tls
Attachment
cc: Steve Brown, Project Manager
F:\ USERS \tsteckle \Lindahl\Leases \Dubuque Yacht Basin\ MVM_ LeaseholdMortgage &SecurityAgreement 071310.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
July 13, 2010
American , Trust
"°°° Simply better banking:
Honorable Roy Buol & City Council Members
City of Dubuque
City Hall
50W13'St
Dubuque, IA 52001
Re: Dubuque Yacht Basin and Catfish Charlies
Dear Mayor Buol:
895 Main Street
PO Box 938
Dubuque, Iowa 52004 -0938
563.582.1841
Fax 583 -5041
www.americentrust.com
American Trust & Savings Bank currently has a banking relationship with David
Pretasky, the Dubuque Yacht Basin, Inc. and Catfish Charlies, LLC. In order to enhance our
collateral position with this client, we are requesting your approval to file a leasehold mortgage
on the property located at 1630 E 16 Street. We hereby request that this matter be placed on the
City Council genda for review and approval at its next meeting.
We have included copies of the following documents that would need your approval:
1) Leasehold mortgage and security agreement
2) Assignment of leases and rents
3) Assignment of lease and agreement (Catfish Charlies LLC)
If you would like a member from American Trust at the next meeting, please let us know and we
will arrange to have someone present. If not, please forward all correspondence to my attention.
Thank you for your assistance in this matter.
Regard
Peter 1 Weber
First Vice President
LEASEHOLD
MORTGAGE
AGREEMENT
Prepared by: Dawn Danielson, American Trust & Savings Bank, 895 Main Street, Dubuque, IA 52001 (563)582 -1841
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.
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
This Leasehold Mortgage and Security Agreement ( "Mortgage ") is effective , 2010,
by Dubuque Yacht Basin, Inc. an Iowa corporation ( "Mortgagor "), in favor of American Trust & Savings
Bank ( "Mortgagee "), an Iowa banking corporation.
1. Recitals. Mortgagor is indebted to Mortgagee which indebtedness is evidenced by several Promissory
Notes or so much as shall be advanced as provided under this Mortgage (the "Loan") in the name of
Dubuque Yacht Basin, Inc. and Catfish Charlie's, L.L.C. and any extensions, renewals or
modifications of, or substitutes or replacements for, or future advances made thereunder, all as more
particularly set forth in the Promissory Notes (the "Notes "). Mortgagor is also the tenant pursuant to
certain ground Leases between the City of Dubuque, as Landlord, and Dubuque Yacht Basin, Inc., as
Tenant (the "Ground Leases "). Pursuant to the terms of the Ground Leases, the Mortgagor is the
owner of the Leasehold interests in that certain real property, located in Dubuque, Dubuque County,
Iowa (the "Premises "), and the buildings and improvements constructed on the real property (the
"Improvements "), all as more fully described on the attached Exhibits A, B and C. As a condition to
the incurring of said indebtedness, Mortgagor agrees to execute and deliver this Mortgage to secure
payment of the Promissory Notes, performance of the covenants and conditions in this and any
extension, renewal or modification thereof, performance of all covenants and agreements contained in
Loan Documents executed this date between Mortgagor and Mortgagee. In order to secure the
repayment of the indebtedness evidenced by the Promissory Notes (including, without limitation, the
principal amount thereof, interest thereunder and all other sums payable thereunder), and the
performance of the covenants and agreements of Mortgagor contained in this Mortgage, in the Loan
Documents, Mortgagor has duly authorized the execution and delivery of this mortgage, and hereby
grants, bargains, sells, transfers, assigns, conveys, confirms and mortgages to Mortgagee, its
successors and assigns forever, as follows below.
2. The Mortgaged Property. In order to secure the prompt and punctual payment and satisfaction
of the Loans, in principal, interest, costs, expenses, attorneys' fees and other fees and charges, and
additionally to secure repayment of any and all additional advances that Mortgagee may make on
behalf of Mortgagor as provided in this Mortgage, together with interest thereon, Mortgagor does
071310bal
by these presents specifically mortgage, affect and hypothecate unto and in favor of Mortgagee,
any and all of Mortgagor's estate, right, title and interest in, to and under the following described
Property (the Mortgaged Property), whether now owned or held or hereafter acquired:
2.1. Leasehold Rights. Any and all of Mortgagor' s present and future Leasehold
rights, title and interest in and under the Leases, together with any and all of
Mortgagor's present and future rights, title and interest in and to any and all
present and future buildings, appurtenances, attachments, rights, ways, privileges,
servitudes, easements and advantages of every type and description, now and /or
in the future belonging and/or appertaining to the Premises, subject in all respects
to the Ground Leases, as well as any and all fixtures and other items of movable
(personal) property now and /or in the future forming integral or component parts
of the above referenced immovable (real) property and improvements, and all
appurtenances and additions thereto, and substitutions and replacements
therefore, now or hereafter attached to the above referenced property and the
improvements thereon, and/or used or capable of being used in connection
therewith, whether now Leased or owned hereafter and acquired by Mortgagor
on an after - acquired title basis or otherwise. Without limiting the generality of
the foregoing, Mortgagor specifically mortgages, affects and hypothecates (1)
Mortgagor's Leasehold interest under the Leases; (2) the Leases; and (3)
Mortgagor's rights of occupancy, use and enjoyment under the Leases.
2.2. Security Interest. Mortgagor further hereby pledges to Mortgagee and grants to
Mortgagee a continuing security interest in the Collateral and Rights defined as
all improvements excluding the docks made to the real estate leased by Dubuque
Yacht Basin from the city of Dubuque and all business assets as defined in
various Security Agreements between the Mortgagee and the Mortgagor to
secure Mortgagor's Obligations (as defined in the Loan Documents) and agrees
that Mortgagee shall have the rights stated in the Mortgage with respect to the
Collateral and Rights, in addition to all other rights which Mortgagee may have
by law or otherwise.
2.3. Judgments, Refunds, Accounts Receivable, Proceeds, Etc. (1) Any and all
judgments, settlements, claims, awards, insurance proceeds and other proceeds
and compensation, and interest thereon (collectively, "Compensation "), hereafter
made or to be made or hereafter payable in connection with any casualty or other
damage to the Improvements, any part of such property or any rights appurtenant
thereto, or in connection with any condemnation proceedings affecting such
property or rights or any taking under power of eminent domain (or any
conveyance in lieu of or under threat of any such taking) of such property or
rights, including, without limitation, any and all Compensation for change of
grade of streets or any other injury or decrease in the value of such property or
rights, any and all proceeds of any sales, assignments or other dispositions of
such property or rights, (2) Any and all refunds of insurance premiums, taxes,
assessments, water charges, sewer rents or other impositions in respect of such
property or rights, (3) All accounts receivable, contract rights, general
intangibles, permits, licenses (including, without limitation, any and all liquor,
cabaret and vending licenses), approvals, actions and rights in action (including,
without limitation, all rights to insurance proceeds and unearned insurance
premiums) arising from or relating to any such property or rights, in any way
2
relating to the Premises and /or the Improvements and in which the Mortgagor has
any interest, all licenses, trade name, good will, and books and records relating to
the business operated or to be operated on the Premises or any part thereof, and
(4) All proceeds, products, replacements, additions, substitutions, renewals,
accessions, conversions and accretions of and to such property or rights.
2.4. Rents, Royalties, Etc. All rents, royalties, issues, profits, revenues, income and other
benefits (which terms, whenever used in this Mortgage, shall include, without
limitation, all monetary sums paid or payable by guests or occupants of slip docks or
fees related to the access or usage of the Premises in any manner within the
improvements and all accounts receivable with respect to such sums), to which
Mortgagor may now or hereafter be entitled from the Improvements, above, or any
part of such property, to be applied against the indebtedness and other sums secured
hereby; provided, however, that permission is hereby given to Mortgagor, so long as
no Event of Default (as defined below) shall have occurred, to collect and use such
rents, royalties, issues, profits, revenues, income and other benefits as they become
due and payable, but not in advance thereof. The foregoing assignment shall be fully
operative without any further action by any party, and specifically Mortgagee shall
be entitled, at its option upon the occurrence of an Event of Default, to all such rents,
royalties, issues, profits, revenues, income and other benefits, whether or not
Mortgagee takes possession of such property. Upon the occurrence of an Event of
Default, the permission given to Mortgagor to collect such rents, royalties, issues,
profits, revenues, income and other benefits shall terminate. Neither the exercise of
any rights under this Section by Mortgagee nor the application of any such rents,
royalties, issues, profits, revenues, income or other benefits to the indebtedness and
other sums secured hereby, shall cure or waive any Event of Default or notice of any
Event of Default hereunder or invalidate any act done pursuant hereto or to any such
notice, but shall be cumulative of all other rights and remedies.
2.5. Present Assignment. The foregoing provisions shall constitute an absolute and
present assignment of the rents, royalties, issues, profits, revenues, income and other
benefits from the Improvements, subject, however, to the conditional permission
given to Mortgagor to collect and use such rents, royalties, issues, profits, revenues,
income and other benefits as provided above. The existence or exercise of such right
of Mortgagor shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, by Mortgagor, and any such subsequent assignment
by Mortgagor shall be subject to the rights of Mortgagee under this Mortgage.
2.6. Leases, Etc. All right, title and interest of Mortgagor in and to any and all Leases,
subleases, occupancy, purchase and sale or similar agreements (collectively
"Leases ") now or hereafter on or affecting the Improvements, or any part of such
property, together with all security therefore (including, without limitation, any and
all right, title and interest of Mortgagor in and to property of any tenant or other party
under any such Leases, and all cash or security deposits, advance rentals and deposits
or payments of a similar nature thereunder) and together with all moneys payable
thereunder, and all books and records which reflect payments made under the Leases
and all security therefore, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rents, income and other benefits
arising under any such Leases. Mortgagee shall have and is hereby granted the right,
at any time and from time to time, to notify any lessee, sub lessee, licensee, occupant
or purchaser of the rights of Mortgagee as provided by this Section.
2.7. After Acquired Property. Any and all further or greater estate, right, title, interest,
claim and demand whatsoever of Mortgagor, whether now owned or hereafter
acquired, in or to any of the property described in the foregoing Subsections, or any
rights or interests appurtenant thereto.
2.8. Performance of Obligations. If Mortgagor promptly pays to Mortgagee the
Indebtedness as defined in, and at the times and in the manner required by this
Mortgage and in all other instruments securing the Indebtedness, without any
deduction or credit for taxes or other similar charges paid by Mortgagor, and
performs all the covenants and promises in the Notes, and any renewal, extension or
modification thereof, in this Mortgage and in all other instruments securing the
Indebtedness, to be kept, performed or observed by Mortgagor, then this Mortgage,
and the grants, conveyances and assignments contained in this Mortgage shall cease
and be void. Otherwise they shall remain in full force and effect.
2.9. No Property Subject to Leases. Notwithstanding any provision herein to the
contrary, the Mortgaged Property shall not include any land leased from the City of
Dubuque or any docks located on the leased land .
3. Covenants of Mortgagor. Mortgagor shall perform, observe and comply with all provisions of this
Mortgage, of the Notes and of every other instrument securing the Indebtedness evidenced by the
Notes, and will promptly pay to Mortgagee when due the principal and accrued interest, and all other
sums required to be paid by Mortgagor under the Notes and the provisions of this Mortgage or any
other instrument securing the Indebtedness evidenced by the Notes. The entire principal amount of the
Notes, all accrued interest and all obligations and indebtedness described in this Mortgage are referred
to as the "Indebtedness." This Mortgage and all other documents securing the Indebtedness being
collectively referred to as the "Security Documents." Mortgagor further covenants and agrees with
Mortgagee as follows:
3.1. General Representations, Covenants and Warranties. Mortgagor represents,
warrants and covenants that:
3.1.1. Mortgagor is the Lessee under one certain Lease Agreement entered into
April 8, 1970, one certain Lease Agreement entered into February 5, 1974,
and one certain Lease Agreement entered into November 23, 1987 all with
the City of Dubuque, Iowa, a municipal corporation as Lessor, as amended
from time -to -time ( "the Ground Leases ") and has the power and authority to
mortgage and pledge the same as provided in this Mortgage. Mortgagee may
at all times peaceably and quietly enter upon, hold and occupy the
Mortgaged Property in accordance with the terms of this Mortgage.
Mortgagor is not currently in default of any of the provisions of the Ground
Leases.
3.1.2. Mortgagor will maintain and preserve the lien of this Mortgage until all the
Indebtedness has been paid in full;
3.1.3. All corporate action has been taken to make and constitute the Notes, this
Mortgage, and any and all other instruments executed by Mortgagor in
connection with the Indebtedness, and the same do constitute, legal, valid
and binding obligations, enforceable in accordance with their respective
terms, subject to the application of bankruptcy and other laws affecting the
rights of creditors generally.
4
3.1.4. There are no provisions in any indenture, contract, agreement or other
document affecting Mortgagor, or to which Mortgagor is a party or is bound,
which prohibit or limit the execution of the Notes, this Mortgage or any
other instruments executed by Mortgagor in connection with the
Indebtedness, or the observance by Mortgagor of any of the terms and
conditions of the Notes and the Security Documents. Such actions by
Mortgagor will not violate any provisions of any law, regulation, injunction
or decree presently in effect, or the adoption of which is known to
Mortgagor to be presently under consideration.
3.1.5. The Guarantor (if any) of the Indebtedness is now able to meet his/her /its
debts as they mature, the fair market value of his/her /its respective assets
exceeds his/her /its liabilities, and no bankruptcy or insolvency proceedings
are pending or contemplated by or against any Guarantor.
3.1.6. All reports, statements and other data furnished by Mortgagor or a Guarantor
to Mortgagee in connection with the Loans are true, correct and complete in
all material respects and do not omit to state any fact or circumstance
necessary to make the statements contained therein not misleading.
3.1.7. There are no actions, suits or proceedings pending, or to the knowledge of
Mortgagor threatened, against or affecting Mortgagor, a Guarantor or the
Mortgaged Property in any court or governmental agency, nor are Mortgagor
or a Guarantor in default with respect to any order of any court or
governmental agency;
3.1.8. All costs arising from construction of any improvements and the purchase of
all equipment located on, or constituting part of, the Mortgaged Property
which have been incurred prior to the date of this Mortgage have been paid;
3.1.9. All necessary utilities are, and at all times hereafter shall be, available in
sufficient capacity to service the Mortgaged Property satisfactorily during
the term of the Notes and Security Documents, and any easements necessary
to the furnishing of such utility service by Mortgagor have been obtained
and recorded.
3.1.10. Neither Mortgagor nor any Guarantor has received a notice of default under
the terms of any instrument evidencing or securing any indebtedness of any
of them, and there has occurred no event which would, if uncured or
uncorrected, constitute a default under any such instrument with the giving
of notice, passage of time or both. Mortgagor fully warrants and will forever
defend the title to the Mortgaged Property against the claims of all persons
whosoever claiming or to claim the same or any part thereof.
3.1.11 The Mortgagor will perform or cause to be performed all of the covenants
and conditions required to be performed by it under the Leases, will do all
things necessary to preserve unimpaired its rights thereunder, and will not
enter into any agreement modifying or amending the Leases or releasing the
Lessor thereunder from any obligations imposed upon it thereby. If the
Mortgagor receives a notice or default under the Leases, it shall immediately
cause a copy of such notice to be sent by registered United States mail to the
Mortgagee
3.1.12 The Mortgagor will punctually pay the principal and interest and all other
sums to become due in respect of the Note at the time and place and in the
manner specified in the Note, according to the true intent and meaning
thereof, all in any coin or currency of the United States of America.
3.2. Compliance with Laws; Notice. Mortgagor covenants and warrants that the
Mortgaged Property, and any future development and use thereof, presently comply,
and will continue to comply, with all applicable restrictive covenants, zoning and
subdivision ordinances, building codes, health and environmental laws and
regulations, and all other applicable laws, rules and regulations. All licenses,
approvals and permits required in connection with the Mortgaged Property have been
obtained. If Mortgagor receives notice from any federal, state or other governmental
body that any such covenant, ordinance, code, law or regulation is not being
complied with, Mortgagor will promptly provide Mortgagee with a copy of such
notice. The Mortgagor, if a corporation, will, so long as it is owner of the Mortgaged
Property or any part thereof, do all things necessary to preserve and keep in full force
and effect its existence, franchises, rights, and privileges as a business or stock
corporation under the laws of the state of its incorporation and will comply with all
regulations, rules, ordinances, statues, orders, and decrees of any governmental
authority or court applicable to the Mortgagor or the Mortgaged Property or any part
thereof.
3.3. Taxes and Other Charges. Subject to the provisions of this Section, Mortgagor
shall pay when due all taxes, assessments, charges, fees, levies, fines and
encumbrances of every kind imposed, levied or assessed against the Mortgaged
Property or any part thereof, or against this Mortgage or the Indebtedness, or against
the interest of Mortgagee in the Mortgaged Property, as well as all income taxes,
assessments and other governmental charges levied and imposed by any taxing
authority against Mortgagor or the Mortgaged Property or any part thereof However,
Mortgagor may in good faith, by appropriate proceedings contest the validity,
applicability or amount of any asserted tax or assessment. Pending such contest,
Mortgagor shall not be deemed in default under this Mortgage if, on or before the
due date of the asserted tax or assessment, there is established an escrow acceptable
to Mortgagee in an amount estimated by Mortgagee to be adequate to cover the
payment of such tax or assessment with interest, costs and penalties. If the amount of
such escrow is insufficient to pay any amount adjudged by a court to be due, with all
interest, costs and penalties, Mortgagor shall pay such deficiency no later than the
date such judgment becomes final.
3.4. No Credit Against the Indebtedness. Mortgagor shall not claim, demand or be
entitled to receive any credit against the Indebtedness for any part of the taxes,
assessments or similar impositions assessed against the Mortgaged Property or any
part thereof, or that are applicable to the Indebtedness or to Mortgagee's interest in
the Mortgaged Property. No deduction shall be claimed from the taxable value of the
Mortgaged Property or any part thereof by reason of the Note or the Security
Documents.
3.5. Insurance. Mortgagor shall, at its sole expense, obtain for, deliver to, assign and
maintain for the benefit of Mortgagee during the life of this Mortgage, insurance
policies in such amounts as Mortgagee requires, insuring the Mortgaged Property
against all insurable hazards, flood, casualties and contingencies (including, without
limitation, loss of rentals or business interruption), and shall pay when due all
premiums on such insurance policies and any renewals thereof. Mortgagor shall
maintain such insurance in builder's risk, completed value, non - reporting form, with
permission to complete and occupy, and workers' compensation coverage. All such
policies and renewals shall be held by Mortgagee and shall contain a noncontributory
standard Mortgagee's endorsement making losses payable to Mortgagee. All such
policies shall provide that they shall not be canceled, terminated or materially altered
without at least thirty (30) days' prior written notice to Mortgagee. Within fifteen
(15) days after the anniversary or effective date of each policy, Mortgagor shall
deliver to Mortgagee receipts evidencing the payment of all premiums on such
insurance policies and renewals. In the event of loss, Mortgagor will give immediate
written notice to Mortgagee, and Mortgagee may make proof of loss if not made
promptly by Mortgagor. In the event of the foreclosure of this Mortgage or any other
transfer of title to the Mortgaged Property in extinguishment of the Indebtedness, all
right, title and interest of Mortgagor to all insurance policies and renewals in force
shall pass to the purchaser or grantee.
3.5.1. Upon request by Mortgagee, if the Premises, or any part thereof, are located
in an area which has been identified by the Secretary of Housing and Urban
Development as a flood hazard area, the Mortgagor will keep, for as long as
any Indebtedness remains unpaid, the Improvements covered by flood
insurance in an amount at least equal to the full amount of the Note or the
maximum limit of coverage available for the Premises under the National
Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973,
as the same may have been or may hereafter be amended or modified and
any successor act thereto, whichever is less.
3.5.2. Pursuant to its rights granted in this Mortgage in all proceeds from any
insurance policies, Mortgagee is authorized, at its option to adjust or
compromise any loss reasonably estimated by Mortgagee to exceed $50,000,
under any insurance policies on the Mortgaged Property, and to collect and
receive the proceeds resulting from a loss from any such policy. Each
insurance company is authorized and directed to make payment for all such
losses (whether or not Mortgagee exercises its option to adjust any such
loss) directly to Mortgagee alone, and not to Mortgagor and Mortgagee
jointly.
3.5.3. Mortgagor shall immediately pay to Mortgagee any payments received
directly from any insurance company. After deducting from insurance
proceeds any reasonable expenses incurred by Mortgagee, the Mortgagee
will deduct from collection or handling of such funds (including attorneys'
fees), Mortgagee may apply the net proceeds, at its option, either toward
restoring the Mortgaged Property or as a credit on any portion of the
Indebtedness, whether then matured or to mature in the future, or at the
option of Mortgagee such sums either wholly or in part may be paid over to
Mortgagor to be used to repair the Improvements or to build new
Improvements in their place, or for any other purpose or object satisfactory
to Mortgagee, without affecting the lien of this Mortgage for the full amount
secured before such payment took place.
3.5.4. Notwithstanding the foregoing, Mortgagee, after deducting its expenses as
provided above, shall make the net proceeds received by it available for
restoring or repairing the improvements, building new Improvements in their
place, or for any other purpose or object requested by Mortgagor and
satisfactory to Mortgagee, all in accordance with terms, conditions and
procedures customarily followed by institutional lenders in making loans in
similar amounts, provided: (1) No Event of Default shall then exist and no
state of facts shall then exist which, with notice or the passage of time, or
both, would constitute an Event of Default if not cured or corrected; (2)
Mortgagee is satisfied that such net proceeds, together with any additional
funds made available for such purpose by Mortgagor and deposited with
Mortgagee, shall be sufficient to restore or repair the Improvements, build
new Improvements, or for such other purpose, in accordance with plans and
specifications approved by Mortgagee, free and clear of all liens except the
lien of this Mortgage and any other liens expressly permitted hereunder; (3)
Mortgagee is satisfied that such restoration or rebuilding can be completed
within any applicable time limitation imposed by law or agreement; and (4)
Mortgagee is satisfied that, after such application and restoration or
rebuilding (taking into account the status of leasing of the Mortgaged
Property and any restrictions imposed by law of agreement on such
restoration or rebuilding or on the use of the Mortgaged Property after such
restoration or rebuilding), the remaining Mortgaged Property constitutes
adequate security for the Indebtedness.
3.5.5. Any such proceeds made available by Mortgagee as provided above shall
earn interest at the rate of interest then paid by Mortgagee on its passbook
savings accounts. Although Mortgagee intends to use its best efforts to
collect such payments in a timely fashion, Mortgagee shall not be
responsible for any failure to collect any insurance proceeds due under the
terms of any policy regardless of the cause of such failure.
3.5.6. Mortgagor shall not carry any additional or separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under the Security Documents, or in excess of the amounts required
hereunder, unless such insurance shall comply with the provisions of this
Section 3 (including the loss payable provisions set out above). Mortgagor
immediately shall notify Mortgagee if any such additional, separate or
excess insurance is carried, and shall deliver to Mortgagee duplicate
originals of all policies of such insurance and renewals.
3.6. Further Assurances. Upon Mortgagee's request, Mortgagor shall make, execute and
deliver to Mortgagee and, where appropriate record or file in such places deemed
desirable by Mortgagee, all such further mortgages, instruments of further assurance,
certificates and such other documents as Mortgagee may consider desirable in order
to effectuate, complete, perfect, continue or preserve the obligations of Mortgagor
under the Notes and the Security Documents, and the lien of this Mortgage as a lien
upon all of the Mortgaged Property, whether now owned or hereafter acquired, and
with respect to every person deriving any estate, right, title or interest under this
Mortgage. Upon any failure by Mortgagor to do so, Mortgagee may make, execute,
record and file any such mortgages, instruments, certificates and documents for and
in the name of Mortgagor. Mortgagor hereby irrevocably appoints Mortgagee its
agent and attorney -in -fact to do so.
3.7. Mechanic's and Other Liens. Mortgagor shall not permit any mechanic's or other
lien (other than any lien for taxes not yet due) to be created upon the Mortgaged
Property, or any part thereof. However, that if such liens in the aggregate amount of
not more than $5,000 are filed against the Mortgaged Property, or any part thereof,
then Mortgagor shall not be in breach of this covenant if Mortgagor shall, within
thirty (30) days after notice of the existence thereof, causes the same to be discharged
of record by payment or otherwise, or, pending the contest of such lien, deposits an
amount equal to the amount of such lien, plus interest, costs and penalties, if any,
with a bonding company satisfactory to Mortgagee as security for the payment of the
lien. If the lien is discharged, or the amount is deposited, then in addition to any other
right or remedy of Mortgagee, Mortgagee may, but shall not be obligated to,
discharge such lien in a manner as Mortgagee selects. Mortgagee is entitled, if
Mortgagee so elects, to compel the prosecution of an action for the foreclosure of the
lien by the lienor, and to pay the amount of any judgment in favor of such lienor with
interest, costs and allowances. Any amount paid by Mortgagee as provided above,
together with all costs and expenses incurred by Mortgagee in connection therewith
(including attorneys' fees), together with interest thereon at the Default Rate, shall be
paid by Mortgagor to Mortgagee upon demand.
3.8. Condemnation. Mortgagee shall be entitled to all compensation, awards, damages,
claims, rights of action, proceeds, payment and other relief (collectively,
"compensation ") on account of any damage or taking of the Mortgaged Property, or
any part thereof, in connection with any condemnation proceedings or any exercise
of the power of eminent domain (or any conveyance in lieu of or under threat of any
such taking), including, without limitation, any such compensation for change of
grade of streets or any other injury to or decrease in the value of the Mortgaged
Property. All such compensation, and the right to receive it, is included in the
Mortgaged Property. Mortgagor agrees to execute further assignments of any such
compensation as Mortgagee requires. Mortgagor shall take all steps to assure that
such compensation is paid to Mortgagee alone, and not to Mortgagor and Mortgagee
jointly. Mortgagee is irrevocably authorized and appointed attorney -in -fact for
Mortgagor, to endorse Mortgagor's name on any instrument in payment of such
compensation.
3.8.1. Mortgagee is authorized, at its option, to commence, appear in and prosecute
in its own or Mortgagor's name any proceeding relating to any
condemnation or exercise of the power of eminent domain, to settle or
compromise any claim in connection therewith and to collect and receive
compensation and give proper receipts and acquittances therefor. After
deducting from such compensation all reasonable expenses (including
attorneys' fees) incurred by Mortgagee in connection therewith, Mortgagee
may release such compensation to Mortgagor without affecting the lien of
this Mortgage (which release may be subject to such terms and conditions as
Mortgagee may impose), or Mortgagee may apply such compensation, in
such manner as Mortgagee determines to the reduction of the Indebtedness.
Any balance of such compensation remaining after such application to the
Indebtedness shall be paid to Mortgagor.
3.8.2. However, if any condemnation of a part of the Improvements occurs,
Mortgagee, after deducting its expenses as provided above, shall make such
compensation received by it available for restoring or repairing the
Improvements, or for any other purpose or object requested by Mortgagor
and satisfactory to Mortgagee, all in accordance with terms, conditions and
procedures customarily followed by institutional lenders in making in
similar amounts, provided: (1) No Event of Default exists and no state of
facts exists which, with notice or the passage of time, or both, would
constitute an Event of Default if not cured or corrected; (2) Mortgagee is
satisfied that such compensation, together with any additional funds made
available for such purpose by Mortgagor and deposited with Mortgagee, are
sufficient to restore or repair the Improvements, or for such other purpose, in
accordance with plans and specifications approved by Mortgagee, free and
clear of all liens except the lien of this Mortgage and any other liens
expressly permitted hereunder; (3) Mortgagee is satisfied that such
restoration or repairs can be completed within any applicable time limitation
imposed by law or agreement; and (4) Mortgagee is satisfied that, after such
application and restoration or repairs (taking into account the status of
leasing of the Mortgaged Property and any restrictions imposed by law or
agreement on such restoration or repairs or on the use of the Mortgaged
Property after such restoration or repairs) the remaining Mortgaged Property
constitutes adequate security for the Indebtedness.
3.8.3. Any compensation made available by Mortgagee as provided above shall
earn interest at the rate of interest then paid by Mortgagee on its passbook
savings accounts. Notwithstanding any such condemnation, Mortgagor shall
continue to pay interest at the rate provided in the Notes on the entire unpaid
principal amount thereof.
3.9. Care of Mortgaged Property. Mortgagor shall preserve and maintain the
Mortgaged Property in good condition and repair. Mortgagor shall not permit,
commit or suffer any waste, impairment or deterioration of the Mortgaged Property
or of any part thereof, and will not take any action which will increase the risk of fire
or other hazard to the Mortgaged Property or to any part thereof.
3.9.1. Mortgagee and its representatives, employees and contractors may enter
upon and inspect the Mortgaged Property at any reasonable time during the
life of this Mortgage.
3.9.2. If any part of the Mortgaged Property is lost, damaged or destroyed by fire
or other cause, Mortgagor will give immediate written notice to Mortgagee
as to any loss, damage or destruction of any part of the Mortgaged Property
which exceeds $5,000, and shall promptly restore the Mortgaged Property
(regardless of such replacement value) to the equivalent of its original
condition regardless of whether there shall be any insurance proceeds
therefor. If a part of the Mortgaged Property is lost, physically damaged or
destroyed through condemnation, Mortgagor will promptly restore, repair or
alter the remaining property in a manner satisfactory to Mortgagee.
3.9.3. No work required to be performed under this Section (other than routine
maintenance and repairs or other repairs the aggregate cost of which does
not exceed $5,000) shall be undertaken until plans and specifications
therefor, prepared by an architect or engineer satisfactory to Mortgagee,
have been submitted to and approved in writing by Mortgagee.
3.9.4. No part of the Improvements or the Mortgaged Property's aggregate value of
which exceeds $5,000 shall be removed, demolished or altered, without the
prior written consent of Mortgagee. However, Mortgagor may, without the
consent of Mortgagee, remove and dispose of, free from the lien of this
Mortgage, tangible personal property constituting part of the Mortgaged
Property which becomes worn out or obsolete, provided that, either
simultaneously with or prior to such removal or disposition, such item is
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replaced with another item of equal utility and value. Such item shall be
owned by Mortgagor and shall be free from any security interest, ownership
interest or any other right or claim of any other person. By such removal and
replacement Mortgagor has elected to subject the replacement item to the
lien and security interest of this Mortgage.
3.10. Taxes Affecting Mortgagee's Interest. If any law or regulation is passed subsequent
to the date of this Mortgage, which changes or modifies existing laws governing the
taxation of mortgages or debts secured by mortgages, the manner of collecting taxes
so as to adversely affect the security of this Mortgage, or which reduces the net
income to Mortgagee from the Indebtedness, then Mortgagor shall pay the amount of
such tax on or prior to the due date thereof. If Mortgagor fails to pay such amount, or
if the payment of such amount by Mortgagor is prohibited, then the entire balance of
the Indebtedness shall without notice be due and immediately payable, at the option
of Mortgagee.
3.11. Security Agreement and Financing Statements. Mortgagor grants to Mortgagee a
security interest in all personal property and fixtures described in the section of this
Mortgage entitled "The Mortgaged Property," and in any other personal property or
fixtures constituting part of the Mortgaged Property. This Mortgage is a self -
operative security agreement and fixture filing with respect to the Mortgaged
Property. Mortgagor agrees to execute and deliver on demand such other security
agreements and other instruments as Mortgagee requests to preserve and maintain the
priority of the lien created hereby on property which may be deemed personal
property or fixtures, to perfect its security interest or to impose the lien hereof more
specifically upon any such property, and shall pay to Mortgagee on demand any
expenses incurred by Mortgagee in connection with the preparation, execution and
filing of any such documents. Mortgagor appoints the Mortgagee its attorney -in -fact
to execute and file, on Mortgagor's behalf, all such documents and all financing
statements and refilings and continuations thereof, as Mortgagee deems advisable to
create, preserve and protect said lien, which appointment is coupled with an interest
and is irrevocable. Mortgagee shall have all the rights and remedies in addition to
those specified herein of a secured party under the Uniform Commercial Code.
3.12. Assignment of Rents. The assignment contained under the section of this Mortgage
entitled "The Mortgaged Property," is fully operative without any further action on
the part of either party. Mortgagee is entitled, at its option, upon the occurrence of an
Event of Default, to all rents, royalties, issues, profits, revenues, income and other
benefits from the Mortgaged Property, or any part thereof, whether or not Mortgagee
takes possession of such property. Mortgagor grants to Mortgagee the right, upon the
occurrence of an Event of Default: (1) To enter upon and take possession of the
Mortgaged Property, or any part thereof, for the purpose of collecting rents, royalties,
issues, profits, revenues, income and other benefits; (2) To Lease the Mortgaged
Property or any part thereof; and (3) To apply rents, royalties, issues, profits,
revenues, income and other benefits, after payment of all necessary charges and
expenses, on account of the Indebtedness. Such assignment and grant shall continue
in effect until the Indebtedness is paid, the execution of this Mortgage constituting
and evidencing the irrevocable consent of Mortgagor to the entry upon and taking
possession of the Mortgaged Property by Mortgagee pursuant to such grant, whether
or not foreclosure has been instituted. Neither the exercise of any rights under this
paragraph by Mortgagee nor the application of any such rents, royalties, issues,
profits, revenues, income or other benefits to the Indebtedness, shall cure or waive
any default or notice of default hereunder or invalidate any act done pursuant hereto
or to any such notice, but shall be cumulative of all other rights and remedies.
3.13. After - Acquired Property. To the extent permitted by applicable law, the lien of this
Mortgage will automatically attach, without further action, to all after - acquired
personal property and fixtures owned by Mortgagor and located in or on, or attached
to, or used or intended to be used in connection with, or with the operation of, the
Mortgaged Property or any part thereof. Further, Mortgagor conveys all right, title,
and interest of the Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes, and replacements of, and all additions and appurtenances to the
Mortgaged Property hereafter acquired by, or released to, the Mortgagor, or
construed, assembled, or placed by the Mortgagor on the Premises or any part
thereof, and all conversions of the security constituted thereby, immediately upon
such acquisition, release, construction, assembling placement, or conversion, as the
case may be, and in each such case, without any further mortgage, conveyance,
assignment, or other act by the Mortgagor, shall become subject to the lien of this
Mortgage as fully and completely, and with the same effect, as though now owned by
the Mortgagor and specially described in the granting clause hereof. Mortgagor shall
execute and deliver such instruments as Mortgagee requests to confirm such lien, and
Mortgagor hereby appoints Mortgagee Mortgagor's attorney -in -fact to execute all
such instruments, which power is coupled with an interest and is irrevocable.
3.14. Expenses. Mortgagor will pay when due all appraisal fees, recording fees, taxes,
brokerage fees and commissions, abstract fees, title policy fees, escrow fees,
attorneys' fees, court costs, fees of inspecting architect(s) and engineer(s) and all
other costs and expenses of every character which have been incurred or which may
hereafter be incurred by Mortgagee in connection with:
3.14.1. The preparation, execution and recording of this Mortgage or any other
instrument evidencing or securing the Indebtedness or otherwise governing
Mortgagor's or a Guarantor's responsibilities in connection with the
Indebtedness or the Mortgaged Property;
3.14.2. The funding of the Loan;
3.14.3. After the occurrence of an Event of Default, preparation for enforcement of
this Mortgage or any other instrument evidencing or securing the
Indebtedness or otherwise governing Mortgagor's or a Guarantor's
responsibilities in connection with the Indebtedness or the Mortgaged
Property, whether or not suit or other action is actually commenced or
undertaken;
3.14.4. Enforcement of this Mortgage or any other instrument evidencing or
securing the Indebtedness or otherwise governing Mortgagor's or a
Guarantor's responsibilities in connection with the Indebtedness or the
Mortgaged Property;
3.14.5. Court or administrative proceedings of any kind to which Mortgagee may be
a party, by reason of the Notes, the Security Documents, or any other
instrument evidencing or securing the Indebtedness or otherwise governing
Mortgagor's or a Guarantor's responsibilities in connection with the
Indebtedness or the Mortgaged Property;
3.14.6. Preparation for and actions taken in connection with Mortgagee's taking
possession of the Mortgaged Property or any part thereof;
3.14.7. Negotiations with Mortgagor, a Guarantor or any of their agents in
connection with the existence or cure of any Event of Default;
3.14.8. Any proposed refinancing of the Indebtedness;
3.14.9. The transfer of the Mortgaged Property or any part thereof in lieu of
foreclosure;
3.14.10. The approval by Mortgagee of actions taken or proposed to be taken by
Mortgagor, a Guarantor or other person or entity which approval is required
by the terms of this Mortgage or any other instrument evidencing or securing
the Indebtedness or otherwise governing Mortgagor's or a Guarantor's
responsibilities in connection with the Indebtedness or the Mortgaged
Property. Mortgagor will, upon demand by Mortgagee, reimburse Mortgagee
for all expenses which have been incurred or which shall be incurred by
Mortgagee. Mortgagor will indemnify and hold harmless Mortgagee from
and against, and reimburse it for, all claims, demands, liabilities, losses,
damages, judgments, penalties, costs and expenses (including attorneys'
fees) which are imposed upon, asserted against, or incurred or paid by it by
reason of, on account of or in connection with any bodily injury or death or
property damage occurring in or upon or in the vicinity of the Mortgaged
Property or any part thereof through any cause whatsoever or asserted
against it on account of any act performed or omitted to be performed
hereunder or on account of any transaction arising out of or in any way
connected with the Mortgaged Property, or with this Mortgage or the
Indebtedness, unless resulting solely from the gross negligence of
Mortgagee.
3.15. Mortgagee's Performance of Defaults. If Mortgagor defaults in the payment of any
tax, assessment, encumbrance or other imposition, in its obligation to furnish
insurance hereunder, or in the performance of any other condition of the Notes, the
Security Documents or any other instrument securing the Indebtedness, Mortgagee
may, to preserve its interest in the Mortgaged Property, perform the same, and all
payments made (whether such payments are regular or accelerated payments), costs
and expenses incurred or paid by Mortgagee in connection therewith shall become
due and payable immediately. The amounts incurred or paid by Mortgagee, together
with interest thereon at the Default Rate from the date incurred until paid by
Mortgagor, shall be added to the Indebtedness and secured by the lien of this
Mortgage to the extent permitted by law. Mortgagee is authorized to enter and to
authorize others to enter upon the Mortgaged Property or any part thereof for the
purpose of performing any such defaulted condition without thereby becoming liable
to Mortgagor or any person in possession holding under Mortgagor.
3.16. Estoppel Affidavits. Mortgagor, upon written request from Mortgagee, shall furnish
a written statement, duly acknowledged, setting forth the unpaid principal of and
interest on the Indebtedness, and whether or not any offsets or defenses exist against
such principal and interest or other sums.
3.17. Use of Property. Mortgagor covenants that the Mortgaged Property will be used as
marina, dock and slip rentals, boat retail, bar and restaurant, RV park and for no
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other purposes without prior written approval of Mortgagee. Mortgagor shall not
declare, advertise or market the Mortgaged Property as an existing or proposed
condominium, cooperative or other common interest community.
3.17.1. Mortgagor shall not permit the Mortgaged Property, or any portion thereof,
to be used by the public, as such, without restriction or in such manner as
might reasonably tend to impair Mortgagor's right, title and interest in and to
the Mortgaged Property or any portion thereof, or in such manner as might
reasonably make possible a claim or claims of adverse usage or adverse
possession by the public, as such, or of implied dedication of the Mortgaged
Property or any portion thereof.
3.17.2. If, at any time, the then - existing use or occupancy of any part of the
Mortgaged Property shall, pursuant to any zoning or other law, ordinance or
regulation, be permitted only so long as such use or occupancy shall
continue, Mortgagor will not cause or permit such use or occupancy to be
discontinued without the prior written consent of Mortgagee.
3.18. Business Loan. To induce Mortgagee to disburse the principal amount of the Notes,
Mortgagor and any Guarantor warrant, represent and covenant that the loan
evidenced by the Notes and secured hereby are business loans to Mortgagor, that
Mortgagor is involved in a commercial or industrial enterprise which is carried on for
the purpose of investment or profit in connection with the Mortgaged Property and
that the funds represented by the Notes will be used solely to further such
commercial or industrial enterprise.
3.19 Sub - Leases Assignment. Mortgagor will not (i) execute an assignment of the rents,
or any part thereof, from the Premises unless such assignment shall provide that it is
subordinate to the assignment contained in this Mortgage and any assignment
executed pursuant hereto, or (ii) except where the lessee is in default thereunder,
terminate or consent to the cancellation or surrender of any Leases of the Premises,
or any part thereof, including without limitation, the Sub - Leases, now existing or
hereafter to be made, having an unexpired term of two (2) years or more, except that
any Leases other than any Ground Leases may be canceled provided that promptly
after the cancellation or surrender thereof a new Leases is entered into with a new
lessee having a credit standing, in the judgment of the Mortgagee, at least equivalent
to that of the lessee whose Leases was canceled, on substantially the same terms as
the terminated or canceled Leases, or (iii) modify any such Leases, including any
Ground Leases, so as to shorten the unexpired term thereof or so as to alter the
amount of the rents payable thereunder, or (iv) accept prepayments of any
installments of rents to become due under such Leases, except prepayments in the
nature of security for the performance of the lessees thereunder, or (v) in any other
manner impair the value of the Mortgaged Property or the security of this Mortgage.
3.20 The Mortgagor will not execute any Leases of all or a substantial portion of the
Premises except for actual occupancy by the lessee thereunder, and will at all times
promptly and faithfully perform, or cause to be performed promptly, all of the
covenants, conditions, and agreements contained in all Leases of the Premises, or any
part thereof, now or hereafter existing, on the part of the lessor thereunder to be kept
and performed and will at all times do all things necessary to compel performance by
the lessee under each Leases of all obligations, covenants, and agreements by such
lessee to be performed thereunder. If any of such Leases provide for the giving by
the lessee of certificates with respect to the status of such Leases, the Mortgagor shall
14
exercise its right to request such certificates within five (5) days of any demand
therefor by the Mortgagee.
3.21. The Mortgagor shall furnish to the Mortgagee, within ten (10) days after a request by
the Mortgagee to do so, a written statement containing the names of all sublessees of
the Premises, the terms of their respective subleases, the space occupied, and the
rentals payable thereunder.
3.22. The Mortgagor shall furnish to the Mortgagee copies of all notices received or sent
by the Mortgagor pursuant to or in connection with any Ground Leases immediately
upon the receipt or sending of such notice by the Mortgagor.
3.23. The Mortgagor will receive the advances secured by this Mortgage and will hold
the right to receive such advances as a trust fund to be applied first for the
purpose of paying the cost of improvement and will apply the same first to the
payment of the cost of improvement before using any part of the total of the same
for any other purpose. The Mortgagor agrees that it shall indemnify and hold the
Mortgagee harmless against any loss or liability, cost or expense, including,
without limitation, any judgments, attorneys' fees, costs of appeal bonds, and
printing costs arising out of or relating to any proceeding instituted by any
claimant alleging priority over the lien of this Mortgage, and /or by any claimant
alleging a violation by the Mortgagor or the Mortgagee.
3.24. The Mortgagor shall execute and deliver to the appropriate governmental
authority any affidavit, instrument, document, and /or filing required pursuant to
any applicable statute, ordinance, rule and /or regulation.
4. Defaults. The term "Event of Default" as used in this Mortgage, means anyone or more of the
following events:
4.1. Failure by Mortgagor to pay: (1) Any periodic installment of interest or principal on
or prior to the due date thereof under any of the Notes; (2) The outstanding principal
balance on any of the Notes, together with interest accrued thereon, at maturity or
upon prepayment of any of the Notes; or (3) Any other sums to be paid by Mortgagor
pursuant to the Loan Documents, the Notes or the Security Documents.
4.2. Failure by Mortgagor to perform any other condition in the Loan Documents, the
Notes, or the Security Documents, the Leases or any other instrument now or
hereafter evidencing or securing the Indebtedness or any part thereof, or otherwise
executed in connection therewith. However, that such failure shall not constitute an
Event of Default unless it shall not be cured within: (1) Ten (10) days after written
notice thereof shall have been given to Mortgagor; or (2) Such longer period of time
after such notice as may be reasonably be required to complete such cure in the case
of any such failure that is not reasonably susceptible to being cured within such ten
(10) day period, provided that Mortgagor has commenced steps to effectuate such
cure within such ten (10) day period and thereafter diligently continues its efforts in
that regard until such failure is fully cured.
4.3. If any material inaccuracy exists in any of the information furnished by Mortgagor or
any Guarantor to Mortgagee under the provisions of this Mortgage or furnished to
Mortgagee to induce Mortgagee to make the Loan.
15
4.4. Breach of any material warranty or untruth of any material representation of
Mortgagor or a Guarantor contained in the Notes, the Security Documents or any
other instrument now or hereafter evidencing or securing the Indebtedness or any
part thereof or otherwise executed in connection therewith.
4.5. If: (1) A petition is filed against Mortgagor or a Guarantor under any bankruptcy,
reorganization, arrangement, composition, readjustment, liquidation, dissolution or
insolvency law, and is not dismissed within thirty (30) days after such filing; (2)
Mortgagor or a Guarantor files a petition in voluntary bankruptcy or seeking relief
under any provision of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, or consents to
the filing of any petition against it under any such law, or makes any general
assignment for the benefit of creditors or admits in writing its inability to pay its
debts as they become due, or consents to the appointment of a receiver, master,
custodian, liquidator or trustee of itself, or of all or any part of its property; (3)
Mortgagor or a Guarantor is "insolvent," as defined in this Mortgage; (4) Any trustee,
custodian, receiver, master, liquidator of Mortgagor or a Guarantor or of all or any
part of the Mortgaged Property or of any or all of the rents or income thereof is
appointed by court order and such order remains in effect for more than sixty (60)
days, or an order for relief is entered with respect to Mortgagor or a Guarantor; or (5)
Mortgagor or a Guarantor is adjudicated a bankrupt or insolvent, or any of the
property of either of them is sequestered by court order and such order remains in
effect for more than sixty (60) days. For purposes of this Section, a person or entity is
insolvent if he /she /it is unable to pay his/her /its debts as they become due, or if the
fair market value of his /her /its assets do not exceed his/her /its aggregate liabilities.
4.6. If all or any part of the Mortgaged Property is taken through condemnation or if the
value of the Mortgaged Property is impaired by condemnation, and any transfer by
private sale in lieu thereof, either temporarily or permanently.
4.7. The entry by any court of last resort of a decision that an undertaking by Mortgagor
as required by this Mortgage to pay taxes, assessments, levies, liabilities, obligations
and encumbrances is legally inoperative, or in the event of the passage of any law
changing in any way the laws now in force relating to the taxation of mortgages or
debts secured thereby for any purpose, or the manner of collection of such taxes, so
as to affect adversely this Mortgage or the Indebtedness or other sums secured
hereby.
4.8. The occurrence of a default under any encumbrance now or hereafter affecting all or
any portion of the Mortgaged Property, or any other event permitting acceleration of
the maturity of any indebtedness secured thereby or any other such default or event
with respect to any other indebtedness of Mortgagor to Mortgagee. Mortgagor shall
promptly notify Mortgagee in writing of the occurrence of any such default or event.
4.9. The occurrence of a default under any other instrument now or hereafter evidencing
or securing the Indebtedness or any part thereof, or executed in connection therewith,
including, without limitation, any future Note or mortgages executed by Mortgagor
in connection with the Indebtedness.
4.10. If final judgment in favor of a private party for the payment of an amount of
money in excess of $25,000.00 shall be rendered against the Mortgagor and the
Mortgagor shall not discharge the same or cause it to be discharged within sixty
(60) days from the entry thereof, or shall not appeal there from or from the order,
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5. Remedies.
decree, or process upon which or pursuant to which said judgment was granted,
based, or entered, and secure a stay of execution pending such appeal.
4.11. If any of the events enumerated in clauses 4.1 through 4.10 of this Section shall
happen to any Guarantor or any of its property or any Guarantor defaults under or
attempts to withdraw, cancel or disclaim liability under any guaranty.
4.12. If the Mortgagor sells, transfers, assigns, conveys, or encumbers the Premises or
any part thereof or any interest therein without the prior written consent of the
Mortgagee.
4.13. If a default occurs under any mortgage that is prior or subordinate to the lien of
this Mortgage or the mortgagee under any prior or subordinate mortgage
commences a foreclosure action in connection with said mortgage.
4.14. If the Mortgagor or any Guarantor defaults under any other agreement with the
Mortgagee.
4.15. If any shares of the capital stock of the Mortgagor or any Guarantor, if the
Mortgagor or such Guarantor is a corporation, shall be sold, assigned,
transferred, conveyed, mortgaged, pledged, hypothecated, or alienated without
the prior written consent of the Mortgagee; or
4.16. If any partnership interest in the Mortgagor or any Guarantor, if the Mortgagor or
any such Guarantor is a partnership, shall be sold, assigned, transferred,
conveyed, mortgaged, pledged, hypothecated, or alienated without the prior
written consent of the Mortgagee, other than the sale, assignment, transfer,
conveyance, mortgage, pledge, hypothecation, or alienation of partnership
interests in the Mortgagor totaling, in the aggregate, not more than 25% of the
existing partnership interests in the Mortgagor on the date hereof.
4.17. If the Mortgagor shall default under any of its obligations with respect to any
Ground Leases.
4.18. If any person or entity having or claiming an interest in the Mortgagor or the
Mortgaged Property commences an action or proceeding against the Mortgagor,
the Mortgaged Property, or any person or entity having or claiming an interest in
the Mortgagor or the Mortgaged Property.
4.19. If the Mortgagor shall not exercise its option under the Ground Leases to extend
the term of the Ground Leases for any additional available terms within thirty
(30) days prior to the expiration of the mortgagor's time to exercise the option.
5.1. Acceleration of Maturity. Subject to the terms and conditions of this Mortgage, if
an Event of Default occurs, Mortgagee may declare without demand or notice the
outstanding Indebtedness to be due and payable immediately, and upon such
declaration such Indebtedness shall immediately become and be due and payable
without demand or notice.
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5.2. Foreclosure. If an Event of Default occurs, regardless of whether Mortgagee has
declared the Indebtedness to be immediately due and payable, Mortgagee may, in
any combination, foreclose this Mortgage and take such other action as the law
allows to enforce this Mortgage, to realize upon the security hereof and to enforce
any or all of the other instruments securing the Indebtedness. Except for any property
leased by Mortgagor from the City of Dubuque, in any such foreclosure proceeding,
the Mortgaged Property, or any part thereof, may be sold in one or more parcels, at
Mortgagee's option, and without obligation to have the Mortgaged Property
marshaled. The proceeds of any such sale shall be applied as follows: (1) To the
payment of all necessary costs and expenses incident to such foreclosure sale,
including but not limited to all court costs and attorneys' fees; (2) To the payment in
full of the Indebtedness in such order as Mortgagee may elect; (3) To discharge
junior liens, if the court so directs; and (4) The remainder, if any, shall be paid to
Mortgagor or Mortgagor's successors or assigns. Notwithstanding anything to the
contrary in this Mortgage, Mortgagee shall have no right to sell any real property
leased by Mortgagor from the City of Dubuque or docks located on land leased by
Mortgagor from the City of Dubuque under the Ground Leases. Mortgagee shall
have the right to sublease the real property leased by Mortgagor from the City of
Dubuque under the Ground Leases only with the City's prior written approval, which
approval shall not be unreasonably withheld, but which shall be subject in all
respects to the Ground Leases.
5.2.1. It is agreed that if Mortgagor defaults in the payment of the Indebtedness the
holder of the Indebtedness or any part thereof on which the payment is
delinquent shall have the option to proceed with foreclosure either through
the courts or by proceeding as if under a full foreclosure, conducting the sale
as herein provided, and without declaring the entire Indebtedness due. If a
sale is made because of default of a part of the Indebtedness, such sale may
be made subject to the unmatured part of the Indebtedness. It is agreed that
such sale, if made, shall not affect the unmatured part of the Indebtedness,
and as to such unmatured part of the Indebtedness, this Mortgage shall
remain in full force and effect just as though no sale had been made. It is
further agreed that several sales may be made hereunder without exhausting
the rights of sale for any unmatured part of the Indebtedness, it being the
purpose to provide for a foreclosure and sale of the Mortgaged Property, or
any part thereof, for any matured portion of the Indebtedness without
exhausting the power to foreclose and to sell the Mortgaged Property, or any
part thereof, for any other part of the Indebtedness whether matured at the
time or maturing subsequently thereto.
5.2.2. Upon any sale held by Mortgagee, any receiver or public officer, Mortgagee
may bid for and purchase the Mortgaged Property, or any part thereof, and,
upon compliance with the terms of sale, may hold, retain, possess and
dispose of such property in its own absolute right without further
accountability.
5.2.3. Upon any such sale, Mortgagee may, if permitted by law, and after allowing
for costs and expenses of the sale, compensation and other charges, in
paying the purchase price, apply any portion of or all of the Indebtedness
and other sums due to Mortgagee under the Notes, this Mortgage, the
Secured Loan Agreement, or any other instrument securing the
Indebtedness, in lieu of cash, to the amount which shall, upon distribution of
the net proceeds of such sale, by payable thereon, to the extent of the
purchase price.
5.3. Mortgagee's Right To Enter and Take Possession, Operate and Apply
Income. If an Event of Default occurs, Mortgagor, upon demand of Mortgagee, shall
immediately surrender to Mortgagee the actual possession and, to the extent
permitted by law, Mortgagee itself, or by such officers or agents as it may appoint,
may enter and take possession of all the Mortgaged Property, or any part thereof, or
have a receiver of the rents, royalties issues, profits revenues, income and other
benefits thereof appointed, without proof of depreciation in the value of the
Mortgaged Property, inadequacy of the value of the Mortgaged Property as security
for the debt, or insolvency of Mortgagor. Mortgagee or the receiver may Lease the
Mortgaged Property, or any part thereof (except property leased by the City of
Dubuque to Mortgagor which may only be leased or subleased by Mortgagee with
the prior written consent of the City of Dubuque which approval will not be
unreasonably withheld), in the name of Mortgagor, Mortgagee or the receiver, and
may receive the rents, royalties issues, profits revenues, income and other benefits
and apply the same as set out in this Mortgage.
5.3.1. If Mortgagor fails to surrender or deliver the Mortgaged Property or any part
thereof after Mortgagee's demand, Mortgagee may obtain a judgment or
decree conferring on Mortgagee the right to immediate possession or
requiring Mortgagor to deliver immediate possession of all or part of the
Mortgaged Property to Mortgagee, to the entry of which judgment or decree
Mortgagor specifically consents. Mortgagor shall pay to Mortgagee, upon
demand, all costs and expenses of obtaining such judgment or decree and
reasonable compensation to Mortgagee, its attorneys and agents, and all such
costs, expenses and compensation shall, until paid, be secured by the lien of
this Mortgage.
5.3.2. Upon every such entering upon or taking of possession, Mortgagee may
hold, store, use, operate, manage and control the Mortgaged Property and
conduct the business thereof, and, from time to time:
5.3.2.1. Make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures,
personal and other mortgaged property;
5.3.2.2. Insure the Mortgaged Property;
5.3.2.3. Manage and operate the Mortgaged Property and exercise all the
rights and powers of Mortgagor in its name or otherwise with
respect to the same;
5.3.3.4. Enter into agreements with others to exercise the powers granted to
Mortgagee under this Mortgage, as Mortgagee from time to time
may determine. Mortgagee may collect and receive all the rents,
royalties, issues, profits, revenues, income and other benefits
thereof, including those past due as well as those accruing
thereafter; and shall apply the moneys so received by Mortgagee in
such priority as Mortgagee may determine to: (1) The payment of
interest, principal and other payments due and payable on the Notes,
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or pursuant to this Mortgage; (2) The deposits for taxes and
assessments and insurance premiums due; (3) The cost of insurance,
taxes, assessments and other expenses of operating, maintaining,
repairing and improving the Mortgaged Property, including, without
limitation, renting commissions and rental collection commissions
paid to an agent of Mortgagee or of the receiver; (4) The
compensation, expenses and disbursements of the agents, attorneys
and other representatives of Mortgagee; and (5) Amounts advanced
for any purpose recognized under this Subsection.
5.3.3. All costs, expenses and liabilities of every character incurred by Mortgagor
in managing, operating and maintaining the Mortgaged Property, not paid
out of rent as provided above, shall constitute advances and be demand
obligations of Mortgagor, shall bear interest at the Default Rate and shall
constitute a portion of the Indebtedness and be secured hereby to the extent
permitted by law. While in possession of the Mortgaged Property,
Mortgagee or the receiver shall be liable to account only for rents, royalties,
issues, profits, revenues, income and benefits actually received.
5.3.4. Mortgagee may remain in possession of the Mortgaged Property, in the
event of foreclosure, until the foreclosure sale and thereafter during the
entire period of redemption. Mortgagee shall incur no liability for, nor shall
Mortgagor assert any claim or set off as a result of, any action taken while
Mortgagee is in possession of the Mortgaged Property. In the event no
foreclosure proceedings are commenced, Mortgagee may remain in
possession as long as there exists an Event of Default. The same right of
taking possession, however, shall exist if any subsequent Event of Default
shall occur and continue.
5.3.5. In taking possession of the Premises, if the Mortgagee or the receiver leases
the Mortgaged Property, or any part thereof to third parties in the name of
Mortgagor, Mortgagee or the receiver, may receive the rents, royalties
issues, profits revenues, income and other benefits and apply the same as set
out in this Mortgage, provided however, that the City of Dubuque shall have
the right to give prior written consent to such leases for the purpose of
protecting its ownership interest in the real estate and in the receipt of
performance due to it under the Ground Leases between the City of
Dubuque and Mortgagor. In no event shall such prior written consent be
unreasonably withheld or delayed.
5.3.6. No provision of this Mortgage contained shall be construed as prohibiting
Fee Owner's sale of its interest in the Property or providing for the
acceleration of the indebtedness secured by this Mortgage by reason of such
a sale. Any such purchaser would take subject to the Ground Leases and this
Mortgage (and all provisions of it) and, upon the request of Mortgagor or
Mortgagee, any such successor in interest will so acknowledge in written
form acceptable to Mortgagor and Mortgagee and suitable for recording. It
is agreed that Fee Owner is not personally liable for payment, performance,
or observances of any obligation or covenant contained in this Mortgage, the
Notes secured by this Mortgage, or any other instrument securing the Notes
or executed in connection with them (nor for any expenses incurred in
connection with it); and there shall be no recourse against Fee Owner
personally. Mortgagee shall, however, have the full power and right to act
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in accordance with this Mortgage, to foreclosure its interest in the
Mortgaged Property (other than the fee interest in the Real Property) and
otherwise enforce this Mortgage.
5.4. Receiver. Upon the occurrence of an Event of Default, either before or after the
foreclosure sale, a receiver of the Mortgaged Property, or any part thereof, may be
appointed by the court without notice, without regard to the solvency or insolvency
of Mortgagor, without regard to the then value of the Mortgaged Property, and
without regard to whether they are then occupied as a homestead. The receiver shall
have the power to collect the rents and income of the Mortgaged Property during the
pendency of the foreclosure suit and, in case of a sale and a deficiency, during the
full statutory period of redemption, whether there be redemption or not. The receiver
shall have all other powers for the protection, possession, management and operation
of the Mortgaged Property which an absolute owner would have, but the net rents in
the hands of the receiver shall be applied to the Indebtedness or to such expenses of
the receivership or foreclosure suit as the court may direct. Mortgagor consents to the
appointment of such receivers and agrees not to oppose any application therefor by
Mortgagee. However, that the appointment of any receiver, trustee or other appointee
by virtue of any court order, state or regulation shall not impair or in any manner
prejudice the rights of Mortgagee to receive payment of the rents and income
pursuant to this Mortgage. Notwithstanding the appointment of any receiver,
liquidator or trustee of the Mortgagor, or of any of its property, or of the Mortgaged
Property or any part thereof, the Mortgagee shall be entitled to retain possession and
control of all property now or hereafter held under this Mortgage.
5.5. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws;
Marshalling. Mortgagor agrees that after an Event of Default, neither Mortgagor nor
anyone claiming through or under it will set up, claim or seek to take advantage of
the appraisement, valuation, stay, notice of election to mature or declare due the
whole of the Indebtedness, extension, redemption or moratorium laws, or any
exemption from execution or sale of the Mortgaged Property or any part thereof, now
or hereafter in force, in order to prevent or hinder the enforcement or foreclosure of
this Mortgage, or the absolute sale of the Mortgaged Property, or any part thereof, or
the final and absolute putting into possession thereof, immediately after such sale, of
the purchasers thereat. Mortgagor, for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so do, all
benefit or advantage of any such law or laws and any and all right to have the assets
comprising the Mortgaged Property marshaled upon any foreclosure hereof and
agrees that any court having jurisdiction to foreclose this Mortgage may sell the
Mortgaged Property in part or as an entirety. If any law now in force of which
Mortgagor, its successors and assigns, might take advantage despite this Subsection
shall hereafter be repealed or cease to be in force, such law shall not thereafter be
deemed to preclude the application of this paragraph. Without limiting the generality
of the foregoing, Mortgagor waives all rights of redemption from sale under any
order or decree of foreclosure of this Mortgage on its own behalf and on behalf of the
trust estate and each and every person except decree and judgment creditors of
Mortgagor, who may hereafter acquire any interest in or title to the Mortgaged
Property.
5.6. Suits To Protect the Property. Mortgagee has the power and authority to institute
and maintain any suits and proceedings as Mortgagee may deem advisable to recover
judgment either before or after or during the pendency of any proceedings: (1) To
enforce the provisions of this Mortgage; (2) To prevent any impairment of the
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Mortgaged Property by any acts which may be unlawful or any violation of this
Mortgage; (3) To preserve and protect its interest in the Mortgaged Property; (4) To
foreclose this Mortgage; and (5) To restrain the enforcement of or compliance with
any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with such
enactment, rule or order might impair the security hereunder or be prejudicial to
Mortgagee's interest.
5.7. Proofs of Claim. In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial case or
proceedings affecting Mortgagor or any Guarantor, their respective creditors or their
respective properties, Mortgagee to the extent permitted by law, shall be entitled to
file such proofs of claim and other documents as may be necessary or advisable in
order to have its claims allowed in such case or proceedings for the entire
Indebtedness, at the date of the institution of such case or proceedings, and for any
additional amounts which may become due and payable hereunder or under the
Notes after such date.
5.8. Application of Monies by Mortgagee. If an Event of Default occurs, then, upon
Mortgagee's demand, Mortgagor will pay to Mortgagee the entire amount of the
Indebtedness. If Mortgagor fails to immediately pay the same upon demand,
Mortgagee shall be entitled to sue for and to recover judgment against Mortgagor for
the whole amount due and unpaid together with costs and expenses and
disbursements of Mortgagee' s agents, attorneys and other representatives, either
before, after or during the pendency of any proceedings for the enforcement of this
Mortgage. The right of Mortgagee to recover such judgment shall not be affected by
any taking possession or foreclosure hereunder, or by the exercise of any other right,
power or remedy for the enforcement of the terms of this Mortgage, or the
foreclosure of the lien hereof.
5.8.1. In case of a foreclosure sale of all or any part of the Mortgaged Property and
of the application of the proceeds of sale to the payment of the Indebtedness,
Mortgagee shall be entitled to enforce payment from Mortgagor of all
amounts then remaining due and unpaid and to recover judgment against
Mortgagor for any portion thereof remaining unpaid, with interest.
5.8.2. No recovery of any such judgment by Mortgagee and no attachment or levy
of any execution upon any of the Mortgaged Property or any other property
shall in any way affect the lien of this Mortgage upon the Mortgaged
Property or any part thereof or any lien, rights, powers or remedies of
Mortgagee hereunder. Such liens, rights, powers and remedies shall continue
unimpaired as before.
5.8.3. Any moneys collected or received by Mortgagee under this Subsection shall
be applied to the payment of compensation, expenses and disbursements of
the agents, attorneys and other representatives of Mortgagee, and the balance
remaining shall be applied to the payment of the Indebtedness.
5.8.4. The provisions of this Subsection shall not be interpreted to modify the
provisions of any guaranty of the Indebtedness.
5.9. Delay or Omission No Waiver. No delay or omission of Mortgagee or of any holder
of the Note to exercise any right, power or remedy accruing upon any Event of
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Default shall exhaust or impair any such right, power or remedy or shall be construed
to waive any such Event of Default or to constitute acquiescence therein. Every right,
power and remedy given to Mortgagee may be exercised from time to time and as
often as is deemed expedient by Mortgagee.
5.10. No Waiver of One Default To Affect Another. No waiver of any Event of Default
hereunder shall extend to or affect any subsequent or any other Event of Default then
existing, or impair any rights, powers or remedies consequent thereon, and no such
act or omission shall release, discharge, modify, change or affect the original liability
under this Mortgage or otherwise of Mortgagor, or any subsequent purchaser of the
Mortgaged Property or any part thereof or any maker, co- signer, endorser, surety or
guarantor. No such act or omission shall preclude Mortgagee from exercising any
right, power or privilege herein granted or intended to be granted in case of any
Event of Default then existing or of any subsequent Event of Default nor, except as
otherwise expressly provided in an instrument or instruments executed by
Mortgagee, shall the lien of this Mortgage be altered thereby.
5.11. Remedies Cumulative. No right, power or remedy conferred upon or reserved to
Mortgagee by the Note, the Security Documents or any other instrument evidencing
or securing the Indebtedness or otherwise governing Mortgagor's responsibilities in
connection with the Indebtedness or the Mortgaged Property or any part thereof, is
exclusive of any other right, power or remedy. Each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other right,
power and remedy given hereunder or under the Note or any other instrument
evidencing or securing the Indebtedness or any part thereof, or now or hereafter
existing at law, in equity or by statute.
5.12. Discontinuance of Proceedings; Position of Parties Restored. If Mortgagee has
proceeded to enforce any right or remedy under this Mortgage by foreclosure, entry
or otherwise, and such proceedings are discontinued or abandoned for any reason, or
such proceedings have resulted in a final determination adverse to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceedings had occurred or had been taken.
5.13. Interest After Event of Default; Default Rate. If an Event of Default occurs, the
Indebtedness shall, at Mortgagee's option, bear interest at the Default Rate set forth
in the Notes (the "Default Rate "). In such event, any deferred interest provision, as
contained in the Notes, shall be inoperative, and interest at the Default Rate shall be
currently payable.
5.14. Cross - Obligations. A default by the Mortgagor in its obligations, covenants,
undertakings or agreements made by it in and under the terms of the Loan
Documents, Notes or Security Documents shall be a default under the terms of this
Mortgage and a default by the Mortgagor in its obligations, covenants, undertakings
or agreements made by it in this Mortgage shall be a default under the terms of the
Loan Documents, Notes or Security Documents.
5.15. Mortgagor's Rights in New Ground Leases. That if any Ground Leases shall be
terminated prior to the natural expiration of its term due to default by Tenant under it,
and if, pursuant to any Ground Leases, or this Mortgage or otherwise, Mortgagee or
its nominee shall become the successor Tenant under the Ground Leases or shall
acquire from Landlord a new Leases or Leases of the Demised Premises or part of
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them, Mortgagor shall have no right, title or interest in or to such new Leases or
Leases, or the Leasehold estate or estates created by them or Mortgagee's interest in
the Leasehold estate as a successor Tenant.
6. Transfer or Further Encumbrance of Mortgaged Property.
6.1. Option to Accelerate; Consent of Mortgagee. In the event of any sale,
conveyance, transfer, pledge or further encumbrance of the Mortgaged Property, or
of any interest in or any part of the Mortgaged Property, or of any interest in
Mortgagor, or any Guarantor, or any further assignment of rents from the Mortgaged
Property or any part thereof, or any Leases of all or substantially all of the Mortgaged
Property, the Land or the Improvements, without the prior written consent of
Mortgagee, then, at Mortgagee's option, Mortgagee may declare the Indebtedness to
be due and immediately payable. On such declaration the Indebtedness shall
immediately become and be due and payable without demand or notice. Mortgagee's
consent shall be within its sole and absolute discretion, and Mortgagee specifically
reserves the right to condition its consent upon (by way of illustration but not by way
of limitation) its approval of the financial and /or management ability of the
purchaser, transferee, lessee, pledges or assignee, upon an agreement to escalate the
interest rate of the Note to Mortgagee's then current interest rate for similarly situated
properties, upon the assumption of the obligations and liabilities of the Note and this
Mortgage by the purchaser, transferee, lessee, pledgee or assignee, upon the receipt
of guarantees of the Indebtedness satisfactory to Mortgagee and upon payment to
Mortgagee of an assumption fee.
6.2. Subsequent Owner. Any purchaser, transferee, lessee, pledgee or assignee shall be
deemed to have assumed and agreed to pay the Indebtedness and to have assumed
and agreed to be bound by the terms and conditions of this Mortgage (including,
without limitation, the terms of this Section) unless Mortgagee specifically agrees in
writing to the contrary. Mortgagor agrees that, in the event ownership of the
Mortgaged Property, or any part thereof, becomes vested in a person other than
Mortgagor, Mortgagee may, without notice to Mortgagor, deal in any way with such
successor or successors in interest with reference to this Mortgage and the Notes and
all obligations hereby secured without in any way vitiating or discharging
Mortgagor's liability hereunder or under the Notes and other obligations hereby
secured. No transfer or encumbrance of the Mortgaged Property or any interest
therein and no forbearance or assumption by any person with respect to this
Mortgage and no extension to any person of the time for payment of the Indebtedness
shall operate to release, discharge, modify, change or affect the liability of Mortgagor
or the Guarantor, either in whole or in part, unless Mortgagee specifically agrees in
writing to the contrary.
7. Miscellaneous Provisions.
7.1. Heirs, Successors and Assigns Included in Parties. All of the grants, terms,
conditions, provisions, and covenants of this Mortgage shall run with the land, and
whenever one of the parties hereto is named or referred to herein, the heirs,
successors and assigns of such party shall be included and all covenants and
agreements contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee
shall bind and inure to the benefit of their respective heirs, successors and assigns,
whether so expressed or not.
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7.2. Addresses for Notices, Etc. Any notice, report, demand or other instrument
authorized or required to be given or furnished under this Mortgage to Mortgagor or
Mortgagee shall be deemed given or furnished on the earlier of: (1) The date of
receipt by such party; or (2) The date on which such party refuses to accept delivery.
Any such notice, report, demand or other instrument shall be sent to the parties
hereto at the following addresses:
If to Mortgagor: Dubuque Yacht Basin, Inc.
Attn.: David H. Pretasky, President
1630 E 16 St
Dubuque, IA 52001
If to Mortgagee: American Trust & Savings Bank
Attn: Commercial Department
895 Main St
Dubuque, IA 52001
If to Guarantors: Attn.: David Pretasky
1634 King St
LaCrosse, WI 54601 -4218
Any party may change the address to which any such notice, report, demand or other
instrument is to be delivered or mailed, by furnishing written notice of such change
to the other parties, but no such notice of change shall be effective unless and until
received by such other parties.
7.3. Headings. The headings of the articles, sections, paragraphs and subdivisions of this
Mortgage are for convenience of reference only, are not to be considered a part
hereof and shall not limit or expand or otherwise affect any of the terms hereof.
7.4. Provisions Subject to Applicable Laws; Invalid Provisions to Affect No Others.
All rights, powers and remedies provided herein may be exercised only to the extent
that the exercise thereof does not violate any law and are intended to be limited to the
extent necessary so that they will not render this Mortgage invalid or unenforceable.
In the event that any of the covenants, agreements, terms or provisions contained in
the Note, or in this Mortgage or in any other instrument securing the Indebtedness
shall be deemed invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein or in the
Notes or in any other instrument securing the Indebtedness shall be in no way
affected, prejudiced or disturbed thereby.
7.5. Changes. Neither this Mortgage nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an
instrument in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. Any agreement hereafter made by
Mortgagor and Mortgagee relating to this Mortgage shall be superior to the rights of
the holder of any intervening lien or encumbrance. The modification of this
Mortgage or of the Notes, the Secured Loan Agreement, or any other instrument
evidencing or securing the Indebtedness or the release of any part of the Mortgaged
Property from the lien hereof shall not impair the priority of the lien hereof.
7.6. Governing Law and Forum Selection. This Mortgage shall be construed in
accordance with and governed by the laws of the State of Iowa. Exclusive
25
jurisdiction and venue over any dispute arising out of this Mortgage or the matters to
which it relates shall be had in Dubuque County, Iowa.
7.7. Construction Against Drafter. It is agreed that the Mortgage shall not be construed
for or against either of the parties based upon the identity of the drafter of the final
Mortgage.
7.8. Consultation With Attorney. Before signing this Mortgage, each party had the
opportunity to consult with an attorney of his, her or its choice. To the extent that
either party has chosen not to consult with an attorney, he, she or it has knowingly
and voluntarily waived the right to do so regarding the advisability of entering into
this Mortgage.
7.9. Required Notices. Mortgagee shall notify Mortgagor promptly of the occurrence of
any of the following: (1) Receipt of notice from any governmental authority relating
to the Mortgaged Property; (2) Receipt of any notice from the holder of any other
lien or security interest in the Mortgaged Property; or (3) Commencement of any
judicial or administrative proceedings by or against or otherwise affecting Mortgagor
or a Guarantor, the Mortgaged Property or any entity controlled by or under common
control with Mortgagor or a Guarantor, or any other action by any creditor thereof as
a result of any default under the terms of any loan.
7.10. Nothing in this Mortgage, in the Note, or in any other agreement between the
Mortgagor and the Mortgagee shall require the Mortgagor to pay, or the Mortgagee
to accept, interest in an amount which would subject the Mortgagee to any penalty or
forfeiture under applicable law. In the event that the payment of any charges, fees, or
other sum due hereunder or under the Note or any such other agreement, which are or
could be held to be in the nature of interest and which would subject the Mortgagee
to any penalty for forfeiture under applicable law, then, ipso facto, the obligations of
the Mortgagor to make such payment shall be reduced to the highest rate authorized
under applicable law. Should the Mortgagee receive any payment which is or would
be in excess of the highest rate authorized under law, such payment shall have been,
and shall be deemed to have been, made in error, and shall automatically be applied
to reduce the outstanding balance of the Indebtedness.
7.11. Maximum Amount of Indebtedness Secured Hereby. This Mortgage shall secure
not only the Indebtedness of Dubuque Yacht Basin, Inc. and Catfish Charlie's,
L.L.C. but also such amounts and expenses expended or incurred by Mortgagee to
protect and preserve its interest in the Mortgaged Property and which are permitted
pursuant to this Mortgage and by law, and which are made within twenty (25) years
from the date hereof, to the same extent as if such amounts were made on the date of
the execution hereof, although there may be no advance made at the time of such
execution and although there may be no indebtedness outstanding at the time such
amounts are expended or incurred. At no time, however, shall the principal amount
and other indebtedness secured by this Mortgage, not including sums advanced
pursuant hereto to protect the security of this Mortgage, exceed Nine Million &
00 /100 Dollars ($9,000,000.00).
7.12. Mortgagor acknowledges that it has received a true copy of this Mortgage.
7.13. This Mortgage may be executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed to be an original; and all such
counterparts shall together constitute but one and the same mortgage.
26
7.14. Consistency with Other Instruments. This Mortgage shall be deemed to
include all the terms, conditions and covenants necessary to give the Mortgagee
the rights of a holder of the First Mortgage in the Ground Leases, and this
Mortgage is in full compliance with each and every term and provision of the
Ground Leases. In the event of any conflict between this Mortgage (and actions
taken by Mortgagee to enforce its rights under this Mortgage) and Fee Owner's
rights as Landlord under the Ground Leases (and Landlord's attempted
enforcement of such rights) which could be prejudicial to the security interest or
rights of Mortgagee, this Mortgage, and Mortgagee's rights under this Mortgage,
shall control. It is the intention of and understanding of the Fee Owner, as
Landlord, that its rights under the Ground Leases are subject to the enforcement
of the rights of Mortgagee in accordance with the terms of this Mortgage and the
terms of any other instrument evidence or securing the Indebtedness, including
instruments assigning rents, issues and profits from the Property and pledging all
other improvements and fixtures and equipment as security of the performance of
the obligations of Mortgagor herein.
7.15. The undersigned City of Dubuque, as Landlord and Fee Owner of the Real Estate
concerning the Premises, and Catfish Charlie's, L.L.C., as Sub - Lessee under that
certain Lease between it and Dubuque Yacht Basin, Inc., and the undersigned
Guarantors of the debts and liabilities of Mortgagor to Mortgagee, hereby
consent and agree to the foregoing.
8. Special Notice in Accordance With Section 654.12A, Code of Iowa.
NOTICE: This Mortgage secures credit in the amount of $9,000,000.00. Loans and advances up
to this amount, together with interest, are senior to indebtedness to other creditors under
subsequently recorded or filed mortgages and liens.
In Witness Whereof, Dubuque Yacht Basin, Inc. has caused this Mortgage to be executed by its duly
authorized officer and Guarantor has set his hand all being done on the date first above written.
Dubuque Yacht Basin, Inc., Mortgagor City of Dubuque, Landlord
1
By: By: GLikAJ G . V G S
David H. Pretasky, President Michael C. Van Milligen, City Mana
American Trust & Savings Bank (Mortgagee)
By:
Victoria J. Richter, Second Senior Vice President
By:
Daniel E. Walsh, Vice President
27
Consent is hereby given by: Catfish Charlie's, L.L.C.
STATE OF IOWA, DUBUQUE COUNTY) ss:
By:
David H. Pretasky, Manager
GUARANTOR:
By:
David H. Pretasky
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State of
Iowa, personally appeared David H. Pretasky, to me personally known, who, being by me duly sworn, did say
that he is the President of Dubuque Yacht Basin, Inc., executing the within and foregoing instrument, 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 David H. Pretasky, as President, acknowledged the execution of
the foregoing instrument to be the voluntary act and deed of the corporation, by it and by him voluntarily
executed.
STATE OF IOWA, COUNTY OF DUBUQUE ss:
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State
of Iowa, personally appeared Michael C. Van Milligen, who, being by me duly sworn, did say that he is the City
Manager, of the City of Dubuque, Iowa; a municipal corporation; that the seal affixed to the foregoing
instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the
corporation, by authority of its City Council, as contained in Resolution No. passed by the City
Council on the ; and Michael C. Van Milligen acknowledged the execution of the instrument to be
his voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed.
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Notary Public, State of Iowa
Notary Public, State of Iowa
STATE OF IOWA, COUNTY OF DUBUQUE ss:
On this day of , 2010 before me, a Notary Public of Iowa in and for Dubuque County, appeared
Victoria J. Richter and Daniel E. Walsh, personally known who, being by me duly sworn, did say that they are
the Second Senior Vice President and Vice President respectively, of the American Trust & Savings Bank, and
that no seal has been procured by said Lender, and that the foregoing instrument was signed in behalf of said
bank by authority of its board of directors, and said Victoria J. Richter and Daniel E. Walsh acknowledged said
instrument to be the voluntary act and deed of said Lender.
STATE OF IOWA, COUNTY OF DUBUQUE ss:
STATE OF IOWA, COUNTY OF DUBUQUE ss:
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Notary Public, State of Iowa
On this day of , 2010 before me, the undersigned, a Notary Public in and for the State of
, personally appeared David H. Pretasky, to me personally known, who being by me duly sworn, did say
he is the Manager of said limited liability company, and that said instrument was signed on behalf of the limited
liability company by authority of the limited liability company and the member(s) or designated agent(s)
acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the limited liability
company by it and by the member(s) or designated agent(s) voluntarily executed.
Notary Public, State of Iowa
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State of
, personally appeared David H. Pretasky, to me known to be the person(s) named in and who executed the
foregoing instrument, and acknowledged that David H. Pretasky executed the same as his voluntary act and deed.
Notary Public, State of Iowa
CATFISH CHARLIE'S & CITY
ASSIGNMENT
EXHIBIT
Prepared by & return to: Pete Weber, American Trust & Savings Bank, 895 Main St, Dubuque, IA 52001,
(563)582 -1841
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.
WITNESSETH:
ASSIGNMENT OF LEASE, RENTS AND AGREEMENT
THIS ASSIGNMENT made as of the day of , 20 , by Catfish Charlie's,
L.L.C., an Iowa Limited Liability Company, having its principal place of business in Dubuque, Iowa
( "Lessee ", "Assignor ", "Borrower "), and Dubuque Yacht Basin, Inc., an Iowa corporation (herein called
the "Lessor "), and American Trust & Savings Bank, an Iowa Banking Corporation (herein called the
"Assignee ", "Lender ").
Borrower has leased from Lessor certain real property under a Lease dated February 22, 2005, a copy of
which is attached as EXHIBIT A ( "Lease ") with a legal description of said real estate property as follows:
A portion of the property leased by Lessor from the City of Dubuque, Iowa (the "City ",
"Owner "), locally known as 1630 East 16 Street, Dubuque, Iowa, as shown on Exhibit A
attached hereto and incorporated herein by this reference.
(hereafter the "Leased Premises "). It is acknowledged by Lessor, Lessee, and Assignee that the Lease is a
"sublease" of real estate owned by the City and leased to the Lessor and this Assignment is in all respects
subject to the lease between the City and Lessor.
The Lender has authorized the making of various loans to Borrower by virtue of various Promissory Notes
and Loan Agreements executed by Borrower and Lender of various dates ( "Loans "). The Loans are for the
benefit of Borrower and Lessor insofar as funds from the Loans will be used for the benefit of the business
conducted on the Leased Premises by Borrower.
NOW THEREFORE, in consideration of the promises contained in this Agreement, Borrower, with the
consent of Lessor, and Owner, assigns its interest in and to such Lease, and hereby grants, transfers and
assigns to Assignee the entire Assignor's interest in and to all leases and other agreements affecting the
use, enjoyment, or occupancy of all or any part of that certain lot or piece of land, more particularly
described in Exhibit "A" annexed hereto and made a part hereof, together with the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now
or hereafter located thereon (hereinafter collectively referred to as the "Leased Premises "), including but
not limited to its rights under the Lease during the remainder of its term, including all extensions and
renewals;
TOGETHER WITH:
(a) all other leases and other agreements affecting the use, enjoyment or occupancy of the Leased Premises
now or hereafter made affecting the Leased Premises or any portion thereof, including, but not limited to
any and all proprietary leases with respect to the Leased Premises, together with any extension or renewal
of the same, this Assignment of other present and future leases and present and future agreements being
effective without further or supplemental assignment. (The proprietary leases and other agreements
described above together with all other present and future proprietary leases and present and future
agreements and any extension or renewal of the same are hereinafter collectively referred to as the
"Leases ";
(b) all rents, income, issues and profits arising from the Leases and renewals thereof and together with all
rents, income, issues and profits (including all oil and gas or over mineral royalties and bonuses) from the
use, enjoyment and occupancy of the Leased Premises, including but not limited to all common charges,
maintenance charges, assessments and other charges assessed by Assignor with respect to the Leased
Premises (hereinafter collectively referred to as the "Rents ").
(c) all of Assignor's right, title and interest in and claims under any and all lease guaranties, letters of credit
and any other credit support given by any guarantor in connection with any of the Leases (individually, a
"Lease Guarantor ", collectively, the "Lease Guarantors ") to Assignor (individually, a "Lease Guaranty ",
collectively, the "Lease Guaranties ").
(e) All proceeds from the sale or other disposition of the Leases, the Rents, the Lease Guaranties and the
Bankruptcy Claims.
THIS ASSIGNMENT is made in consideration of that certain loans made by Assignee to Assignor
evidenced by the Loan documents (Promissory Notes, Mortgage and Security Agreements) made by
Assignor to Assignee, covering the business conducted on the Leased Premises. The principal sum, interest
and all other sums due and payable under the Notes and Loan documents are collectively referred to as the
"Debt ". The documents other than this Assignment, the Notes or the Loan documents now or hereafter
executed by Assignor and /or others and by or in favor of Assignor which wholly or partially secure or
guarantee payment of the Debt are hereinafter referred to as the "Other Security Documents."
THAT, this Agreement is for the sole purpose of securing payment of all amounts due by the Borrower to
the Lender under the Loans, together with and including any refinancing, renewal or extension of such
indebtedness, and Lessor relinquishes to Lender the right of Lessor to collect and enjoy the Rents in partial
payment of the outstanding Debt and Obligations owed to Lender as provided in this Assignment.
THAT, upon payment in full of all indebtedness secured by this Agreement, this Agreement and the
security interest created hereby shall become null and void and of no further force or effect.
ASSIGNOR WARRANTS that (i) Assignor is the sole owner of the entire Lessee's interest in the Leases;
(ii) the Leases are valid and enforceable and have not been altered, modified or amended in any manner
whatsoever except as herein set forth; (iii) none of the Rents reserved in the Leases have been assigned or
2
otherwise pledged or hypothecated; (iv) none of the Rents have been collected for more than one (1) month
in advance; (v) Assignor has full power and authority to execute and deliver this Assignment and the
execution and delivery of this Assignment has been duly authorized and does not conflict with or constitute
a default under any law, judicial order or other agreement affecting Assignor or the Leased Premises; (vi)
the premises demised under the Leases have been completed and the tenants under the Leases have
accepted the same and have taken possession of the same on a rent - paying basis; and (vii) there exist no
offsets or defenses to the payment of any portion of the Rents.
ASSIGNOR COVENANTS with Assignee that (a) the Leases are now in full force and effect and
Borrower is not now in default in the performance of the leases; (b) Borrower and Lessor will each
perform the covenants and conditions required of it by said Leases for the term of said loans and any
extensions, renewals, or substitutions of it; (c) Assignor shall observe and perform all the obligations
imposed upon it under the Leases and shall not do or permit to be done anything to impair the value of the
Leases as security for the Debt; (d) shall enforce all of the terms, covenants and conditions contained in the
Leases upon the part of the lessees thereunder to be observed or performed, short of termination thereof;
(e) shall not collect any of the Rents more than one (1) month in advance; (f) shall not execute any other
assignment of its interest in the Leases or the Rents; (g) shall not alter, modify or change the terms of the
Leases without the prior written consent of Assignee, or, cancel or terminate any Lease or accept a
surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Leased Premises
or of any interest therein so as to effect a merger of the estates and rights of, or a termination or diminution
of the obligations of, lessees thereunder; (h) shall not alter, modify or change the terms of any guaranty of
any of the Leases or cancel or terminate any such guaranty without the prior written consent of Assignee;
(i) shall not consent to any assignment of or subletting under the Leases not in accordance with its terms,
without the prior written consent of Assignee; (j) shall execute and deliver at the request of Assignee all
such further assurances, confirmations and assignments in connection with the Leased Premises as
Assignee shall from time to time require; and (k) shall not enter into any new lease of the Leased Premises
except on a form of lease approved by Assignee.
ASSIGNOR FURTHER COVENANTS with Assignee that (A) all Leases shall be written on the form of
lease which has been approved by Assignee; (B) upon request, Assignor shall furnish Assignee with
executed copies of all Leases; (C) no material changes may be made to the Assignee- approved standard
lease without the prior written consent of Assignee; (D) in addition, all renewals of Leases and all
proposed leases shall provide for rental rates comparable to existing local market rates and shall be arms -
length transactions; (E) all leases shall provide that they are subordinate to the interests of Assignee and
that the lessees agree to attorn to Assignee (F) All of the foregoing warranties will be deemed to be
reaffirmed on and as of the time of each disbursement of loans proceeds by Lender to Lessor.
THIS ASSIGNMENT is made on the following additional terms, covenants and conditions:
PART I
GENERAL PROVISIONS
1. PRESENT ASSIGNMENT. Assignor does hereby absolutely and unconditionally assign to Assignee
Assignor's right, title and interest in all current and future Leases and Rents, Lease Guaranties, and
Bankruptcy Claims, it being intended by Assignor that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Such assignment to Assignee shall not be
construed to bind Assignee to the performance of any of the covenants, conditions or provisions contained
in any such Lease or otherwise impose any obligation upon Assignee. Assignor agrees to execute and
deliver to Assignee such additional instruments, in form and substance satisfactory to Assignee, as may
hereafter be requested by Assignee to further evidence and confirm such assignment. Nevertheless, subject
3
to the terms of this paragraph, Assignee grants to Assignor a revocable license to operate and manage the
Leased Premises and to collect the Rents and over sums due under the Lease Guaranties and Bankruptcy
Claims. Assignor shall hold the Rents and all sums received pursuant to any Lease Guaranty and
Bankruptcy Claims, or a portion thereof sufficient to discharge all current sums due on the Debt, in trust
for the benefit of Assignee for use in the payment of such sums. Upon an Event of Default, as defined in
the Notes and any Mortgage, the License granted to Assignor herein shall automatically be revoked, and
Assignee shall immediately be entitled to possession of all Rents and all sums received pursuant to any
Lease Guaranty and Bankruptcy Claims, whether or not Assignee enters upon or takes control of the
Leased Premises. Assignee is hereby granted and assigned by Assignor the right, at its option, upon
revocation of the license granted herein, to enter upon the Leased Premises in person, by agent or by court-
appointed receiver to collect the Rents and all sums received pursuant to any Lease Guaranty and
Bankruptcy Claims. Any Rents and all sums received pursuant to any Lease Guaranty and Bankruptcy
Claims collected after the revocation of the license may be applied toward payment of the Debt in such
priority and proportions as Assignee in its discretion shall deem proper.
2. REMEDIES OF ASSIGNEE.
(a) In the event of default by Borrower under the terms of said Leases, Lessor shall have the right to
terminate said Leases in accordance with their terms, provided, however, Lessor shall first give the Lender
(3 0) days written notice of such default and the right, at the option of Lender, 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 the Lender's consent.
(b) In the event of any default by Borrower in the performance of any of the obligations of its notes to
Lender evidencing the aforesaid loans, any renewal or extension thereof, or any other agreement made in
connection therewith, including its agreements herein, and Borrower has not cured such default within the
applicable cure period under the Loans or of any related agreement, then, Lender, at its option, may, upon
receiving consent of the Lessor, using such reasonable force as may be necessary, enter said Leased
Premises and do any one of more of the following:
a. Remove all property of Borrower that is pledged as collateral for the loans;
b. Sell the property of the Borrower that is pledged as collateral for the loans but excluding any
real estate leased by Borrower or Lessor from the City of Dubuque including leased land and
docks located on the leased land that is leased by Borrower or Lessor from the City of
Dubuque that is required to be returned to the City of Dubuque at the end of any lease term;
c. Transfer and assign said Leases and Borrower's and Lessor's rights therein to parties
satisfactory to the City of Dubuque, Lessor and Lender, and upon assignment, the
obligations of said Leases shall be binding on said transferee(s).
Notwithstanding any provision in this Assignment to the contrary, Lender shall have no authority to sell
any real estate Borrower or Lessor leases from the City of Dubuque including leased land and docks
located on the leased land that is leased by Borrower or Lessor from the City of Dubuque that is required to
be returned to the City of Dubuque at the end of any lease term.
In the event Assignee shall only undertake the option 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 Lender shall make transfer of said lease as provided in paragraph c., the 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.
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(c) Upon or at any time after an Event of Default, Assignee may, at its option, without waiving such
Event of Default, without notice and without regard to the adequacy of the security for the Debt, either in
person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a
court, take possession of the Leased Premises and have, hold, manage, lease and operate the Leased
Premises on such terms and for such period of time as Assignee may deem proper and either with or
without taking possession of the Leased Premises in its own name, demand, sue for or otherwise collect
and receive all Rents and all sums received pursuant to any Guaranty and Bankruptcy Claims, including
those past due and unpaid with full power to make from time to time all alterations, renovations, repairs or
replacements thereto or thereof as may seem proper to Assignee and may apply the Rents and all sums
received pursuant to any Lease Guaranty and Bankruptcy Claims to the payment of the following in such
order and proportion as Assignee in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the Leased Premises, including,
without being limited thereto, the salaries, fees and wages of a managing agent and such other employees
or agents as Assignee may deem necessary or desirable and all expenses of operating and maintaining the
Leased Premises, including, without being limited thereto, all taxes, charges, claims, assessments, water
charges, sewer rents and any other liens, and premiums for all insurance which Assignee may deem
necessary or desirable, and the cost of all alterations, renovations, repairs or replacements, and all expenses
incident to taking and retaining possession of the Leased Premises; and (b) the Debt, together with all costs
and attorneys' fees. In addition to the rights which Assignee may have herein, upon the occurrence of an
Event of Default, Assignee, at its option, may either require Assignor to pay monthly in advance to
Assignee, or any receiver appointed to collect the Rents and all sums received pursuant to any Lease
Guaranty and Bankruptcy Claims, the fair and reasonable rental value for the use and occupation of such
part of the Leased Premises as may be in possession of Assignor or may require Assignor to vacate and
surrender possession of the Leased Premises to Assignee or to such receiver and, in default thereof,
Assignor may be evicted by summary proceedings or otherwise. Assignee shall be entitled to require that
all payments due under any Lease, including, without limitation, all rental payments under any Lease, be
paid directly to a lockbox account designed by Assignee. For purposes of this paragraph, Assignor grants
to Assignee its irrevocable power of attorney, coupled with an interest, to take any and all of the
aforementioned actions and any or all other actions designated by Assignee for the proper management and
preservation of the Leased Premises. The exercise by Assignee of the option granted it in this paragraph
and the collection of the Rents and all sums received pursuant to any Guaranty and Bankruptcy Claims and
the application thereof as herein provided shall not be considered a waiver of any default by Assignor
under the Notes, the Mortgage, the Leases, this Assignment or the Other Security Documents.
(d) Upon or at any time after the occurrence of an Event of Default, Assignee shall have the right in its
own name or in the name of Assignor in respect of any claim, suit, action or proceeding relating to the
rejection of any case, including, without limitation, the right to file and prosecute, to the exclusion of
Assignor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case
in respect of the lessee under such lease under the Bankruptcy Code.
(e) If there shall be filed by or against Assignor a petition under the Bankruptcy Code, and Assignor, as
lessor under any Lease, shall determine to reject such Lease pursuant to Section 365(a) of the Bankruptcy
Code, then Assignor shall give Assignee not less than ten (10) days' prior notice of the date on which
Assignor may apply to the bankruptcy court for authority to reject the Lease. Assignee shall have the right,
but not the obligation, to serve upon Assignor within such ten -day period a notice stating that (i) Assignee
demands that Assignor assume and assign the Lease to Assignee pursuant to Section 365 of the
Bankruptcy Code and (ii) Assignee covenants to cure or provide adequate assurance of future performance
under the Lease. If Assignee serves upon Assignor the notice described in the preceding sentence,
Assignor shall not seek to reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been given, subject to the
5
performance by Assignee of the covenant provided for in this sentence.
3. NO LIABILITY OF ASSIGNEE. Assignee shall not be liable for any loss sustained by Assignor
resulting from Assignee's failure to let the Leased Premises after an Event of Default or from any other act
or omission of Assignee in managing the Leased Premises after default unless such loss is caused by the
willful misconduct or bad faith of Assignee. Assignee shall not be obligated to perform or discharge any
obligation, duty or liability under the Leases or under or by reason of this Assignment and Assignor shall,
and hereby agrees, to indemnify Assignee for, and to hold Assignee harmless from, any and all liability,
loss or damage which may or might be incurred under the Leases or under or by reason of this Assignment
and from any and all claims and demands whatsoever, including the defense of any such claims or
demands which may be asserted against Assignee by reason of any alleged obligations and undertakings on
its part to perform or discharge any of the terms, covenants or agreements contained in the Leases. Should
Assignee incur any such liability, the amount thereof, including costs, expenses and reasonable attorneys'
fees, shall be secured hereby and by the Mortgage and the Other Security Documents and Assignor shall
reimburse Assignee therefor immediately upon demand and upon the failure of Assignor so to do Assignee
may, at its option, declare all sums secured hereby and the Mortgage and the Other Security Documents
immediately due and payable. This Assignment shall not operate to place any obligation or liability for the
control, care, management or repair of the Leased Premises upon Assignee, nor for the carrying out of any
of the terms and conditions of the Leases; nor shall it operate to make Assignee responsible or liable for
any waste committed on the Leased Premises by the tenants or any other parties, or for any dangerous or
defective condition of the Leased Premises, including, without limitation, the presence of any Hazardous
Materials (as defined by State or Federal Environmental laws), or for any negligence in the management,
upkeep, repair or control of the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee or stranger.
4. SUBORDINATION. 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 loans, including any
Landlord Lien pursuant to Iowa Statutory or Common Law, to the Lender's liens on said property and to
the Lender's rights herein.
5. WARRANTY OF TITLE. Owner hereby represents warrants that title to said Leased Premises is held
by it in fee simple, and that it has full power and authority to consent to this Agreement. Lessor hereby
warrants that its interest in the Lease between it and Assignor is valid and enforceable and that it has full
power and authority to consent to this Agreement. Assignor hereby represents that its interest in the Lease
is held by it, and that it has full power and authority to consent to this Agreement.
6. NOTICE TO LESSEES. Assignor hereby authorizes and directs the lessees named in the Leases or any
other or future lessees or occupants of the Mortgaged Property upon receipt from Assignee of written
notice to the effect that Assignee is then the holder of any Mortgage and that a default exists thereunder or
under this Assignment, the Notes or the Other Security Documents to pay over to Assignee all Rents and
all sums under any Lease Guaranty and to continue so to do until otherwise notified by Assignee.
7. OTHER SECURITY. Assignee may take or release other security for the payment of the Debt, may
release any party primarily or secondarily liable therefor and may apply any other security held by it to the
reduction or satisfaction of the Debt without prejudice to any of its rights under this Assignment.
8. OTHER REMEDIES. Nothing contained in this Assignment and no act done or omitted by Assignee
pursuant to the power and rights granted to Assignee hereunder shall be deemed to be a waiver by
Assignee of its rights and remedies under the Notes, the Mortgage, or the Other Security Documents and
this Assignment is made and accepted without prejudice to any of the rights and remedies possessed by
6
Assignee under the terms thereof. The right of Assignee to collect the Debt and to enforce any other
security therefor held by it may be exercised by Assignee either prior to, simultaneously with, or
subsequent to any action taken by it hereunder.
9. NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be construed as constituting
Assignee a "mortgagee in possession" in the absence of the taking of actual possession of the Leased
Premises by Assignee. In the exercise of the powers herein granted Assignee, no liability shall be asserted
or enforced against Assignee, all such liability being expressly waived and released by Assignor.
10. CONFLICT OF TERMS. In case of any conflict between the terms of this Assignment and the terms of
any Mortgage in favor of Lender, the terms of the Mortgage shall prevail.
11. NO ORAL CHANGE. This Assignment and any provisions hereof may not be modified, amended,
waived, extended, changed, discharged or terminated orally, or by any act or failure to act on the part of
Assignor or Assignee, but only by an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change, discharge or termination is
sought.
12. CERTAIN DEFINITIONS. Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Assignment may be used interchangeably in singular or
plural form and the word "Assignor" shall mean "each Assignor and any subsequent owner or owners of
the Leased Premises or any part thereof or interest therein," the word Assignee" shall mean Assignee and
any subsequent holder of the Notes," the word "Notes" shall mean The Notes and any other evidence of
indebtedness secured by any Mortgage in favor of Lender, the word "person" shall include an individual,
corporation, partnership, trust, unincorporated association, government, governmental authority, and any
other entity, the words Leased Premises shall include any portion of the Leased Premises and any interest
therein, and the word "Debt" shall mean the principal balance of the Notes with interest thereon as
provided in the Notes and the Mortgage and all other sums due pursuant to the Notes, the Mortgage, this
Assignment and the Other Security Documents; whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural and vice versa.
13. NON — WAIVER. The failure of Assignee to insist upon strict performance of any term hereof shall not
be deemed to be a waiver of any term of this Assignment. Assignor shall not be relieved of Assignor's
obligations hereunder by reason of (i) failure of Assignee to comply with any request of Assignor or any
other party to take any action to enforce any of the provisions hereof or of the Mortgage, the Notes or the
Other Security Documents, (ii) the release regardless of consideration, of the whole or any part of the
Leased Premises, or (iii) any agreement or stipulation by Assignee extending the time of payment or
otherwise modifying or supplementing the terms of this Assignment, the Notes, any Mortgage or the Other
Security Documents. Assignee may resort for the payment of the Debt to any other security held by
Assignee in such order and manner as Assignee, in its discretion, may elect. Assignee may take any action
to recover the Debt, or any portion thereof, or to enforce any covenant hereof without prejudice to the right
of Assignee thereafter to enforce its rights under this Assignment. The rights of Assignee under this
Assignment shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Assignee shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
14. DUPLICATE ORIGINALS. This Assignment may be executed in any number of duplicate originals
and each such duplicate original shall be deemed to be an original.
7
15. 'TERMINATION OF ASSIGNMENT. Upon payment in full of the Debt and the delivery and
recording of a satisfaction or discharge of any Mortgage duly executed by Assignee, this Assignment shall
become and be void and of no effect.
16. TRANSFER BY ASSIGNEE. No consent by Assignor shall be required for any assignment or
reassignment of the rights of Assignee under this Assignment. All references to "Assignee" hereunder shall
be deemed to include the assigns of Assignee.
17. EXCULPATION. No provision of this Assignment shall (i) affect any guaranty or similar agreement
executed in connection with the debt evidenced by the Notes, (ii) release or reduce the debt evidenced by
the Notes, or (iii) impair the lien of this Assignment.
18. 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,
overnight or facsimile, as follows:
If to Lender: American Trust & Savings Bank
Attn: Commercial Department
895 Main St
PO Box 938
Dubuque, IA 52004 -0938
If to Borrower: Dubuque Yacht Basin, Inc.
Attn.: David H. Pretasky, President
1630E 10 St
Dubuque, IA 52001
If to Lessor:
City of Dubuque
City Manager
City Hall
50 W 13 St
Dubuque, IA 52001
Copy to: City Attorney
City Hall
50 W 13 St
Dubuque, IA 52001
Either party by notice to the other may designate additional or different addresses for subsequent notices or
communications.
For purposes of this Subsection, "Business Days" shall mean a day on which commercial banks are not
authorized or required by law to close in.
19. 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.
20. BINDING EFFECT AND ASSIGNMENT. This Agreement shall inure to the benefit of and be
8
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.
21. INTERPRETATION AND 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.
22. 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 rights
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.
23. 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
recorder 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.
IN WITNESS WHEREOF, Assignor has executed this instrument the day of
, 2010.
Borrower: Catfish Charlie's, L.L.C.
By:
David H. Pretasky, President
Lessor: Dubuque Yacht Basin, Inc.
By:
David H. Pretasky, President
Owner: City of Dubuque, Iowa
c VLL
Michael C. Van Milligen, City Man
By:
9
Lender: American Trust & Savings Bank
By:
Victoria J. Richter, Senior Vice President
By:
Daniel E. Walsh, Vice President
STATE OF IOWA )
) ss
DUBUQUE COUNTY )
On this day of , 2010 before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared David H. Pretasky, to me personally known, who being by me duly
sworn, did say he is the President of the Limited Liability Company executing the within and foregoing
instrument that said instrument was signed on behalf of the Limited Liability Company by authority of the
limited liability company; and that David H. Pretasky as President acknowledged the execution of the
foregoing instrument to be the voluntary act and deed of the limited liability company, by it and by him
voluntarily executed.
STATE OF IOWA
DUBUQUE COUNTY
)
) ss
)
Notary Public in and for the State of Iowa
On this day of , 2010 before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared David H. Pretasky, to me personally known, who being by me duly
sworn, did say he is the President of the corporation executing the within and foregoing instrument that
said instrument was signed on behalf of the corporation by authority of its Board of Directors; and that
David H. Pretasky as 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.
STATE OF IOWA
DUBUQUE COUNTY
)
) ss
)
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State
of Iowa, personally appeared Michael C. Van Milligen, to me personally known, who, being by me duly sworn,
10
Notary Public, State of Iowa
did say that he is the City Manager of the City of Dubuque, Iowa; a municipal corporation; that the seal affixed to
the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on
behalf of the corporation, by authority of its City Council, as contained in Resolution No. passed by
the City Council on the ; and Michael C. Van Milligen acknowledged the execution of the
instrument to be his voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily
executed.
STATE OF IOWA
DUBUQUE COUNTY
) ss
Notary Public, State of Iowa
On this day of , 2010 before me, a Notary Public of Iowa in and for Dubuque County,
appeared Victoria J. Richter and Daniel E. Walsh, personally known who, being by me duly sworn, did say
that they are the Second Senior Vice President and Vice President respectively, of the American Trust &
Savings Bank, and that no seal has been procured by said Lender, and that the foregoing instrument was
signed in behalf of said bank by authority of its board of directors, and said Victoria J. Richter and Daniel
E. Walsh acknowledged said instrument to be the voluntary act and deed of said Lender.
11
Notary Public in and for said County
Exhibit A
LEASE
1 )4-
This Lease ( "Lease ") is entered into c2 _ , 2005, between Dubuque Yacht Basin, Inc.,
an Iowa Corporation (the "Lessor "), and Catfish Charlie's, L.L.C., an Iowa limited liability company (the
"Lessee ").
1. Premises. The Lessor hereby leases to the Lessee and the Lessee hereby leases from the Lessor the
premises located in Dubuque, Dubuque County, Iowa (the "Leased Premises "), as follows:
A portion of the property leased by Lessor from the City of Dubuque, Iowa (the
"City"), locally known as 1630 East 16'" Street, Dubuque, Iowa, as shown on
Exhibit A, attached. It is acknowledged by the Lessor and the Lessee that the
Lessor is actually subleasing to the Lessee in this Lease, real estate owned by the
City and leased to the Lessor.
2. Term. The initial term of this Lease shall commence upon written consent of the City (the
"Commencement Date "), and end at 11:59 p.m. on the day immediately preceding the twentieth
(20') anniversary of the Commencement Date; provided, that, however, Lessee shall have the right
to extend the term of the Lease for any additional period beyond the initial term for so long as Lessor
still has a Lease or extension thereof with the City or its successors or assigns.
3. Rent, The Lessee shall pay fixed rent to the Lessor in the sum of Two Thousand Four Hundred
Eighty -Five ($2,485.00), payable on the Commencement Date and on each anniversary of the
Commencement Date thereafter for the first five (5) years of this Lease. At that time, and on each
fifth anniversary date thereafter, the annual rent shall increase in the amount of Five Hundred &
00 /100 Dollars ($500.00).
4. Care and Maintenance. The Lessee shall, at its own expense; care for and maintain the Leased
Premises in a reasonably safe and serviceable condition.. The Lessee shall be responsible for routine
maintenance and snow removal on the sidewalks and for the maintenance of the grass and the
parking lot on the Leased Premises. The Lessee is responsible for removal of trash depositedby its
customers on any of the Lessor's property. Lessor acknowledges and agrees that Lessee shall have
no obligation or duty to care for or maintain the Leased Premises or areas surrounding the Leased
Premises except as provided in this Section 4.
5. Taxes andUtilities. The Lessee shall pay all real estate taxes and special assessments levied against
the Leased Premises during the term of this Lease. Any increase in such taxes due to an increase in
the assessed value of the property or as a result of an increase in the mill levee rate shall be paid by
the Lessee. All other utilities and related expenses including, but not limited to, refuse pick up,
water, and the electric bill for any sign advertising Lessee's business shall be paid by the Lessee
when due. Lessee shall have the right to construct signage in areas surrounding the Leased Premises.
wp60docs\Limited liability Companies \Catfish Charlie's, L.L.C.1Lease 2.16.05
Page 1 of 9
6. Construction of Improvem eats. After the CommencementDate, Lessee shall proceed immediately
with the construction of the of a restaurant building (the "Improvements ") in conformity with the
plans and specifications previously submitted to and approved by the Lessor. Lessee shall file the
plans and specifications as required with the appropriate governmental authorities, and shall obtain
all necessary approvals of the plans and specifications, and all necessary building permits, and shall
have paid all required fees. The parties acknowledge and agree that during the term of this Lease
the Improvements shall remain the property of Lessee. The parties further acknowledge and agree
that after termination or expiration of this Lease for any reason, the Improvements shall become the
property of Lessor.
7. Iniiprovements. It is understood and agreed that the Lessee is taking the Leased Premises in an "AS
IS" condition, and has had reasonable opportunity to inspect same. Lessee shall make all repairs
necessary to the Leased Premises and the Improvements, the machinery and equipment contained
therein and appurtenances situated thereon in good and working order and condition. Lessee shall
make all repairs so as to keep all utility lines including, but not limited to, sewage and water in open
and operating condition at all times at its expense. Any damage to the Leased Premises, including,
but not limited to, the Improvements, the equipment contained therein and the appurtenances situated
thereon shall be repaired by and at the expense of the Lessee and any insurance proceeds payable
as a result of any such damage shall be available to the Lessee and the Lessor for the purpose of
making such repairs.
8. Alterations. No alterations, changes in or improvements to the Leased Premises or the
Improvements shall be made by the Lessee without the prior written consent of the Lessor. In the
event that any such alterations, changes in, or improvements to the Leased Premises or the
Improvements are consented to by the Lessor they shall be made in a good and workmanlike manner.
Unless otherwise mutually agreed to prior to the commencement of such improvements, the cost
thereof shall be paid by the Lessee.
9. Assignments; Subletting. The Lessee will not assign this Lease or sublet all or any portion of the
Leased Premises without the prior written consent of the Lessor, and ifnecessary, the consent of the
City of Dubuque. Any assignment or subletting shall not, however, relieve the Lessee from its
performance obligations of each and every term, covenant and condition of this Lease.
10. Use of Premises. The Lessee shall use the Leased Premises only in the conduct of the business of
retail Sales of food, beverages, spirits, T- shirts and other small gift items.. The Lessee shall not use
the Leased Premises in the conduct of any unlawful business nor conduct or permit to be conducted
any activity upon the Leased Premises which is in violation of any applicable statute or regulation.
11. Liens. The Lessee will not permit any mechanics' or other liens against the Leased Premises for any
labor or material furnished the Lessee in connection with any work performed on the Leased
Premises, subject, however, to the right ofthe Lessee to contest the validity of any such liens. Upon
final determination of any such liens the same shall be fully paid, discharged and released of record
by the Lessee.
12. Insurance. During the term of this Lease, the Lessee shall maintain insurance as set forth in the City
of Dubuque Insurance Schedule AInsurance Requirements for Tenants and Lessees of City Property,
Page 2 of 9
as such schedule may from time to time be amended by the City of Dubuque. A copy of the current
Schedule A is attached hereto as Exhibit B.
12.1. All policies of insurance required under this paragraph shall; (1) Name both the Lessor and
the City of Dubuque, Iowa, as additional insureds and a memorandum copy of such
insurance shall be famished by the Lessee to the Lessor; (2) Provide that should the Lessee
default on its insurance premium payments or let coverage lapse, the insurance company
will immediately notify the Lessor of said default or lapse in insurance coverage.
12.2. The parties hereby release each other and their respective officers, employees, agents,
contractors and invitees from all claims for damage to the Leased Premises and to the
fixtures, personal property, equipment and improvements of either the Lessor or the Lessee
in or on the Leased Premises that are caused by or result from risks insured against under
any insurance policies carried by the parties and in force at the time of any such loss or
damage, notwithstanding that any such loss or damage may be due to or result from the
negligence of either of the parties or their respective officers, employees, agents,
contractors, invitees, or other authorized representative.
13. Default. Each of the following shall be deemed a default by the Lessee and a breach of this Lease:
(1) The filing of a Petition by or against the Lessee for adjudication as a bankrupt; (2) The making
by the Lessee of an assignment for the benefit of creditors; (3) A default in the payment of the rent
herein reserved, or any part thereof; (4) A default in the performance or observance of any other
covenant or condition of this Lease on the part of the Lessee to be performed.
14. Rights Upon Default. If Lessee fails to pay when due any rent, additional rent, or other sums due
and payable by Lessee to Lessor under this Lease for aperiod of more than five (5) days after written
notice of such failure has been given by Lessor to Lessee, or if Lessee violates or defaults in the
performance of any covenant, agreement, or other condition contained in this Lease (other than the
payment of rent or other sums payable under this Lease) for a period of more than thirty (30) days
after written notice of such violation or default has been given by Lessor to Lessee (or, in the case
of a default not curable within thirty (30) days, if Lessee shall fail to commence to cure such default
within such thirty (30) days and thereafter proceeds diligently to complete the cure thereof, provided
that such period to cure shall in no event exceed ninety (90) days), then Lessor, at its option, may
re -enter and repossess the Leased Premises, with or without process of law, and, at its option, may
declare this Lease terminated and the term of this Lease ended forthwith; and Lessor shall not be
liable for damages by reason of such re -entry and repossession. Notwithstanding such re -entry and
repossession by Lessor and whether or not Lessor exercises its option to terminate this Lease, the
liability of Lessee for the payment of the rent and other sums due or to become due under this Lease
and for the performance of Lessee's other obligations under this Lease for the remainder of the term
of this Lease (determined as if Lessor had not terminated this Lease) shall not be relinquished or
extinguished but shall continue in full force and effect; and Lessor at any time may commence such
one or more actions as it may deem necessary to collect any sums due from or payable by Lessee
under this Lease for such period. In the event of any such re-entry and repossession, Lessor shall
have the right to relet all or any portion of the Premises upon such terms and conditions as Lessor
may deem reasonably appropriate; and any such reletting shall not relieve Lessee of any of its
obligations to Lessor under this Lease, except to the extent of any net rentals actually received by
Lessor from such reletting after deducting all of Lessor's reasonable expenses (including, but not
limited to, legal expenses, brokerage commissions, and the costs of remodeling the Premises so as
Page 3 of 9
Page 4 of 9
to render the Premises suitable for reletting) incurred in preparing for and accomplishing such
reletting. Lessee further agrees to pay, in addition to the rent and other sums payable under this
Lease, such additional sums as a court of competent jurisdiction may adjudge reasonable as
attorneys' fees in any suit or action instituted by Lessor to enforce the provisions of this Lease or the
collection of the rent or other sums payable by Lessee under this Lease (so long as Lessor prevails
in such action in whole or part). Lessee hereby waives any right of redemption which it may have
under any present or future law in the event Lessee is evicted from or dispossessed of the Premises
for any reason. Unless Lessor otherwise agrees in writing, or except as specifically provided herein
Lessee's surrender of possession of the Premises to Lessor prior to the end of the term of this Lease
and Lessor's acceptance of such surrender shall not effect a termination of this Lease or release
Lessee from any of its obligations under this Lease for the remainder of the term of this Lease.
Notwithstanding anything in this Lease to the contrary, Lessor agrees to use commercially
reasonable efforts to mitigate its damages in efforts to lease the Premises followingLessor's retaking
of the Premises that follows a default by Lessee. In the event of default by the Lessee, the Lessor
-may terminate this Lease immediately, and reenter the premises as described in .Section 14, No
default shall be deemed waived unless in writing and signed by the Lessor. However, termination
of this Lease under the provisions of this paragraph shall not relieve the Lessee from liability for its
obligations of rent for the remainder of the term in which the Lease is terminated.
15. Re- Entry. If this Lease is terminated as provided above or otherwise, or if the Leased Premises is
abandoned by the Lessee, the Lessor may at any time thereafter, re-enter and resume possession of
the Leased Premises and remove all persons and property therefrom, either by summary
dispossession proceedings, by a suitable action or proceeding at law or equity, or by force, self -help
or otherwise, without being liable for any damages therefor. No re -entry by the Lessor shall be
deemed an acceptance of a surrender of this Lease.
16. Reletting. If this Lease is terminated as provided above or otherwise, or lithe Leased Premises is
abandoned by the Lessee, the Lessor may, at its own name and its own behalf, relet the whole or any
portion of the Leased Premises, for any period equal to, greater or lesser than the then current term
of this Lease, for any sum which it may deems reasonable, to any tenant and for any use and purpose
which it may deems appropriate. In no event, however, shall the Lessor be under any obligation to
relet the premises for any purpose, other than that specified in this Lease, which the Lessor may
regard as injurious to the Leased Premises, or to any tenant which the Lessor shall deem to be
objectionable. The Lessor shall not be required to pay to the Lessee any surplus of any sums
received by the Lessor on a reletting of the Leased Premises in excess of the rent provided by this
Lease.
17. Measure of Damage in Event of Default. In the event of the termination of this Lease as herein
provided, the Lessor shall immediately be entitled to recover from the Lessee, and the Lessee shall
pay to the Lessor, as liquidated damages for such breach, the Improvements.
18. Holdover. Notwithstanding any provision of law or any judicial decision to the contrary, no notice
shall be required from either party to terminate this Lease on the expiration date specified above and,
anything herein contained or implied to the contrary notwithstanding, a holding over by the Lessee,
its permitted assignees or sub - lessee beyond the expiration of said term shall give rise to a tenancy
,from month-to-month. only.
19. Quiet Possession. The Lessor covenants that the Lessee, if in compliance with the terms of this
Lease, shall peacefully hold the Leased Premises for the term provided above.
20. Payment by Lessor. If the Lessee fails to pay any amount required to be paid under this Lease, the
Lessor shall have the right, but not the duty, to pay the same, and the amount so paid shall be due
from the Lessee to the Lessor on the next succeeding rent payment due after such payment by the
Lessor.
21. Indemnity. The Lessee shall indemnify the Lessor against any expense, loss or liability paid,
suffered or incurred, including attorney's fees and costs of litigation, as a result of any negligence
by the Lessee, its employees, invitees, or customers. Lessor shall indemnify Lessee against any
expense, loss or liability paid, suffered or incurred, including attorney's fees and costs of litigation,
as a result of any negligence by Lessor, its employees, invitees or customers.
22. Time is of the Essence. Time is of the essence as to all terms, provisions, conditions and
restrictions of this Lease and all covenants, agreements and undertakings of the parties.
23. No Representations by Lessor. Except as otherwise provided herein, neither the Lessor nor the
Lessor's agents, have made no representations or promises with respect to the Leased Premises. The
taking of possession of the Leased Premises by Lessee shall be conclusive evidence that the Lessee
accept same "AS IS" and that the Leased Premises were in good and satisfactory condition at the
time such possession was so taken.
24. Approval by City. It is understood and agreed that the Leased Premises, except the improvements
thereon, are owned by the City and this Lease (and any renewals) are subject to the approval of the
City, which approval the Lessor will endeavor to obtain. In the event such approval is not obtained,
however, this Lease shall be null and void and the failure to obtain such approval shall not constitute
a breach of this Lease by either party, nor subject the Lessor to any claims for damages at any time
by the Lessee. The Lessor and the Lessee agree to abide by all of the conditions of the Lessor's
Lease with the City as may be applicable to the Lessor and the Lessee. Further, if, for any reason,
the City cancels its Lease with the Lessor, or otherwise acts in such a manner as to render the
Lessor's ability to perform under this Lease impossible, such event, at the Lessor's option, shall
render this Lease null and void and any failure on the part of the Lessor to perform under this Lease
shall not constitute a breach of said Lease, nor subject the Lessor to any claims for damages by the
Lessee. Nothing herein, however, shall relieve the Lessor of its obligations to the City under the
lease between Lessor and the City.
25. Miscellaneous Provisions.
25.1. The Lessor reserves the right to establish minimum hours of operation for the Lessee.
25.2. The Lessee will be permitted to use the parking facilities at the premises known as the
Dubuque Yacht Basin jointly with the Lessor and both the Lessor and the Lessee shall
cooperate fully with each other to insure that such parking facilities will be used for the
benefit of each party hereto. Lessor acknowledges and agrees that the parking facilities are
adequate for the employees, customers and invitees of the Lessor's and Lessee's requisite
businesses.
Page 5 of 9
25.3. Upon termination of this Lease, the Lessor shall have a lien on any of the Lessee's
equipment, supplies, fixtures and upon any non - exempt personal property which has been
used or kept on the Leased Premises during the Lease or on any of the Lessor's other leased
property, for any unpaid rent or unpaid expenses of the Lessor due to the Lessee's default
25.4. 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 the Lessor: Dubuque Yacht Basin, Inc.
Attn: David H. Pretasky, President
1630 E. 16' Street
Dubuque, IA 52001
If to the Lessee: Catfish Charlie's, L.L.C.
Attn: David H. Pretasky, Manager
1630 E. 16 Street
Dubuque, IA 52001
With a Copy To: Donald J. Satiroff
SCS Development, LLC
1514 N. 143" Circle
Omaha, NE 68154
25.5. 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.
25.6. Binding Effect; Assignment, This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of the parties.
25.7. 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.
25.8. Entire Agreement; Counterparts. 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.
Page 6 of 9
25.9. Remedies Cumulative. The parties shall have, in addition to the rights and remedies
provided by this Agreement, all those allowed by all applicable laws, all of which shall be
in extension of and nbt in limitation of those provided hereunder.
25.10. Waivers.. Except as herein expressly provided, no waiver by either 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).
25.10.1. 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 parry knows of the
breach when it accepts such payment or performance.
25.10.2. No failure by a party to exercise any right it may have under this
Agreement or under law upon another party'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.
25.11. Exclusivity. During the initial term of this Lease and any extensions thereof, Lessor will
not operate, own or lease space to any other retailer /service provider whose primary line of
business is a restaurant and/or bar within a five (5) mile radius of the Leased Premises.
26. Breaches of Lessor under Lease with City. Lessee shall have the right, but not the obligation, to
cure any defaults by Lessor under any Lease between Lessor and the City that affects, directly or
indirectly, the Leased Premises. For this purpose, Lessor shall provide copies of any and all written
notices received by Lessor informing Lessor of a breach or default under any such Lease, and if
notice of such breach or default was oral, then Lessor shall provide written notice of such oral
notice, immediately upon receipt by Lessor. Lessee shall have the opportunity to cure any such
default or breach. In the event Lessor fails to provide such notice or impairs Lessee's ability to cure
such default or breach, Lessor shall indemnify Lessee for any and all damages, losses, costs and
expenses incurred by Lessee including, without limitation, lost profits, loss of use, etc.
In Witness Whereof, the parties hereto have duly executed this Lease in duplicate on the day and year first
above written.
Dubuque Yacht Basin, Inc., Lessor
By:
David H. Pretasky, President
By:
Page 7 of 9
Catfish Charlie's, L.L.C., Lessee
David H. Pretasky, Manager
EXHIBIT A
LEGAL DESCRIPTION AND DRAWING
Page 8 of 9
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EXHIBIT B
INSURANCE SCHEDULE
Page 9 of 9
INSURANCE SCHEDULE A
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF
DUBUQUE
1. All policies of insurance required hereunder shall be with an insurer authorized to
do business in Iowa. All insurers shall have a rating of A or better in the current
A.M. Best Rating Guide.
2. • All policies of insurance required hereunder shall be endorsed to provide a thirty
(30) day advanced notice to the City of Dubuque of any cancellation of the policy
prior to its expiration date. This endorsement supersedes the standard
cancellation statement on the Certificate of Insurance.
3. shall furnish Certificates of Insurance to the City of
Dubuque, Iowa for the coverage required in Paragraph 7. Such certificates shall
include copies of the.endorsements set forth in Paragraphs 2 and 5 to evidence
inclusion in the policy.
4. Each Certificate of insurance shall be submitted to the contracting department of
the City of Dubuque, Iowa -prior to commencement of work/service. (The
contracting department shall submit the certificates to the Finance Director.)
5.. All policies of insurance required in Paragraph 7 shall include the City of
Dubuque, Iowa under the attached Additional Insured Endorsement (C32026)
and the attached Govemmental lmmuriities Endorsement.
6. Failure to provide minimum coverage shall not be deemed a waiver of these •
requirements by the City of Dubuque. Fallure to obtain or maintain the insurance
required herein shall be considered a material breach of this agreement.
7. shall be required to carry the following
minimum insurance coverages or greater if required by law or other legal
agreement:
COMMERCIAL GENERAL LIABILITY:
General Aggregate Limit $ 2,000,000
Products - Completed Operation Aggregate Limit $ 1,000,000
Personal and Advertising Injury Limit $ 1,000,000
Each Occurrence Limit $ 1,000,000
Fire Damage Limit (any one occurrence) $ 50,000
Medical Payments $ 5,000
Commercial general liability shall be written on an occurrence form, not a claims
made form. Coverage to include premises - operation - products - completed
operations, independent contractors coverage, contractual liability, broad form
property damage, and personal injury.
EXHIBIT B
UMBRELLA OR EXCESS LIABILITY:
LIQUOR OR DRAM SHOP LIABILITY:
* To be determined on a case -by -case basis by Finance Director.
$: ,000,00b
CITY OF DUBUQUE, IOWA
GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and
states that the purchase of this policy and the including of the City of Dubuque, Iowa
as an Additional Insured does not waive any of the defenses of governmental
immunity available to the City of Dubuque, Iowa under Code of•:lowa Section 670.4
as it is now exists and as it may be amended form time to time.
.2.. .Claims Coverage. • The insurance carrier further agrees that this policy of insurance
shall cover only those claims not subject to the defense of governmental immunity
under the Code of Iowa Section 670.4 as It now exists and.as It may be amended
from time to time. Those claims not subject to Code of Iowa Section 670:4 shall be
covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible
for asserting any defense of governmental immunity, and may do so at any time and
shall do so upon the timely written request of the insurance carrier.
4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this
policy and the insurance carrier shall not deny any of the rights and benefits
accruing to the City of Dubuque, Iowa under this policy for reasons of governmental
.. Immunity unless and until a court of competent jurisdiction has ruled In favor of the
defense(s) of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall
not otherwise change or alter the coverage available under the policy.
POLICY NUMBER COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED — DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifisa insurance provided under the following:
Name of Person Or Organization:
The City of Dubuque, including all its elected and appointed officials, all its employees end
volunteers, all Its boards, commissions and /or authorities and their board members, employees, end
volunteers.
Co
85
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
(if no.entry appears above, information required to complete this eridorsement will be shown in the
Declaratipns as :sppticable to this endorsement.)
WHO IS AN...INSURED- (Section Q is amended to trIalde a�;arliriaured the person or organization
shown in the Schedule as an insured but only with respect to liability arising.out of your operations
or premises owned by or rented to you.
ri. . Insurance Services Off. a. Inc. t994 CG 20 28 1
r.
DYB & CITY
ASSIGNMENT
EXHIBITS
Prepared by & return to: Pete Weber, American Trust & Savings Bank, 895 Main St, Dubuque, IA 52001,
(563)582 -1841
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.
ASSIGNMENT OF LEASE, RENTS AND AGREEMENT
THIS ASSIGNMENT made as of the day of , 2010, by, Dubuque Yacht
Basin, Inc., an Iowa corporation having its principal place of business in Dubuque, Iowa ( "Assignor"
"Borrower "), and the City of Dubuque, Iowa, a municipal corporation ( "Lessor "), and American Trust &
Savings Bank, an Iowa Banking Corporation (herein called the "Assignee" "Lender ").
WITNESSETH:
Borrower has leased from the Lessor certain real property under three Leases dated April 8, 1970, February
5, 1974, and November 23, 1987, a copy of each which are attached as EXHIBIT A -1, B -1, C -1
respectively ( "the Leases ") with legal descriptions of said real property as follows:
See Exhibit A -2, B -2, C -2 attached hereto and incorporated herein by this reference.
(hereafter the "Leased Premises" ). The Lender has authorized the making of various loans to Borrower by
virtue of various Promissory Notes and Loans Agreements executed by Borrower and Lender of various
dates ( "the Loans "). The Loans are for the benefit of Borrower insofar as funds from the Loans will be
used for the benefit of the business conducted on the Leased Premises. Borrower and Lender acknowledge
that this Agreement is subject in all respects to the Leases.
NOW THEREFORE, in consideration of the promises contained in this Agreement, Borrower, with the
consent of Lessor, assigns its interest in the Leases, and hereby grants, transfers and assigns to Assignee
the entire Assignor's interest in and to all leases and other agreements affecting the use, enjoyment, or
occupancy of all or any part of the Leased Premises including but not limited to its rights under the Lease
during the remainder of its term, including all extensions and renewals. Borrower also assigns its interest in
and hereby grants, transfers and assigns to Assignee the entire Assignor's interest in the buildings,
structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter located on the Leased Premises but excluding the Leased Premises ( "the
Mortgaged Property");
TOGETHER WITH:
(a) all other leases and other agreements affecting the use, enjoyment or occupancy of the Mortgaged
Property now or hereafter made affecting the Mortgaged Property or any portion thereof, including, but not
limited to any and all proprietary leases with respect to the Mortgaged Property, together with any
extension or renewal of the same, this Assignment of other present and future leases and present and future
agreements being effective without further or supplemental assignment. (The proprietary leases and other
agreements described above together with all other present and future proprietary leases and present and
future agreements and any extension or renewal of the same are hereinafter collectively referred to as the
"Leases ";
(b) all rents, income, issues and profits arising from the Leases and renewals thereof and together with all
rents, income, issues and profits (including all oil and gas or over mineral royalties and bonuses) from the
use, enjoyment and occupancy of the Mortgaged Property, including but not limited to all common
charges, maintenance charges, assessments and other charges assessed by Assignor with respect to the
Mortgaged Property (hereinafter collectively referred to as the "Rents ").
(c) all of Assignor's right, title and interest in and claims under any and all lease guaranties, letters of credit
and any other credit support given by any guarantor in connection with any of the Leases (individually, a
"Lease Guarantor ", collectively, the "Lease Guarantors ") to Assignor (individually, a "Lease Guaranty ",
collectively, the "Lease Guaranties ").
(d) All proceeds from the sale or other disposition of the Leases, the Rents, the Lease Guaranties and the
Bankruptcy Claims.
THIS ASSIGNMENT is made in consideration of that certain mortgage loans made by Assignee to
Assignor evidenced by the Loan Documents (Promissory Notes, Mortgage and Security Agreements) made
by Assignor to Assignee, covering the Mortgaged Property and intended to be duly recorded (the
"Mortgage "). The principal sum, interest and all other sums due and payable under the Notes and
Mortgage are collectively referred to as the "Debt ". The documents other than this Assignment, the Notes
or the Mortgage now or hereafter executed by Assignor and /or others and by or in favor of Assignee which
wholly or partially secure or guarantee payment of the Debt are hereinafter referred to as the "Other
Security Documents."
THAT, this Agreement is for the sole purpose of securing payment of all amounts due by the Borrower to
the Lender under the Loans, together with and including any refmancing, renewal or extension of such
indebtedness.
THAT, upon payment in full of all indebtedness secured by this Agreement, this Agreement and the
security interest created hereby shall become null and void and of no further force or effect.
ASSIGNOR WARRANTS that (i) Assignor is the sole owner of the entire Lessee's interest in the Leases;
(ii) the Leases are valid and enforceable and have not been altered, modified or amended in any manner
whatsoever except as herein set forth; (iii) none of the Rents reserved in the Leases have been assigned or
otherwise pledged or hypothecated; (iv) none of the Rents have been collected for more than one (1) month
in advance; (v) Assignor has full power and authority to execute and deliver this Assignment and the
execution and delivery of this Assignment has been duly authorized and does not conflict with or constitute
a default under any law, judicial order or other agreement affecting Assignor or the Mortgaged Property;
(vi) the premises demised under the Leases have been completed and the tenants under the Leases have
2
accepted the same and have taken possession of the same on a rent - paying basis; and (vii) there exist no
offsets or defenses to the payment of any portion of the Rents.
ASSIGNOR COVENANTS with Assignee that (a) the Leases are now in full force and effect and
Borrower is not now in default in the performance of the leases; (b) Borrower and Lessor will each
perform the covenants and conditions required of it by said Leases for the term of said loans and any
extensions, renewals, or substitutions of it; (c) Assignor shall observe and perform all the obligations
imposed upon it under the Leases and shall not do or permit to be done anything to impair the value of the
Leases as security for the Debt; (d) shall enforce all of the terms, covenants and conditions contained in the
Leases upon the part of the lessees thereunder to be observed or performed, short of termination thereof;
(e) shall not collect any of the Rents more than one (1) month in advance; (f) shall not execute any other
assignment of its interest in the Leases or the Rents; (g) shall not alter, modify or change the terms of the
Leases without the prior written consent of Assignee, or, cancel or terminate any Lease or accept a
surrender thereof or convey or transfer or suffer or permit a conveyance or transfer of the Mortgaged
Property or of any interest therein so as to effect a merger of the estates and rights of, or a termination or
diminution of the obligations of, lessees thereunder; (h) shall not alter, modify or change the terms of any
guaranty of any of the Leases or cancel or terminate any such guaranty without the prior written consent of
Assignee; (i) shall not consent to any assignment of or subletting under the Leases not in accordance with
its terms, without the prior written consent of Assignee; (j) shall execute and deliver at the request of
Assignee all such further assurances, confirmations and assignments in connection with the Mortgaged
Property as Assignee shall from time to time require; and (k) shall not enter into any new lease of the
Mortgaged Property except on a form of lease approved by Assignee.
ASSIGNOR FURTHER COVENANTS with Assignee that (A) all Leases shall be written on the form of
lease which has been approved by Assignee; (B) upon request, Assignor shall furnish Assignee with
executed copies of all Leases; (C) no material changes may be made to the Assignee- approved standard
lease without the prior written consent of Assignee; (D) in addition, all renewals of Leases and all
proposed leases shall provide for rental rates comparable to existing local market rates and shall be arms -
length transactions; (E) all leases shall provide that they are subordinate to the Leasehold Mortgage and
that the lessees agree to attorn to Assignee (F) All of the foregoing warranties will be deemed to be
reaffirmed on and as of the time of each disbursement of loans proceeds by Lender to Assignor.
THIS ASSIGNMENT is made on the following additional terms, covenants and conditions:
PART I
GENERAL PROVISIONS
1. PRESENT ASSIGNMENT. Assignor does hereby absolutely and unconditionally assign to Assignee
Assignor's right, title and interest in all current and future Leases and Rents, Lease Guaranties, and
Bankruptcy Claims, it being intended by Assignor that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only. Such assignment to Assignee shall not be
construed to bind Assignee to the performance of any of the covenants, conditions or provisions contained
in any such Lease or otherwise impose any obligation upon Assignee. Assignor agrees to execute and
deliver to Assignee such additional instruments, in form and substance satisfactory to Assignee, as may
hereafter be requested by Assignee to further evidence and confirm such assignment. Nevertheless, subject
to the terms of this paragraph, Assignee grants to Assignor a revocable license to operate and manage the
Mortgaged Property and to collect the Rents and over sums due under the Lease Guaranties and
Bankruptcy Claims. Assignor shall hold the Rents and all sums received pursuant to any Lease Guaranty
and Bankruptcy Claims, or a portion thereof sufficient to discharge all current sums due on the Debt, in
trust for the benefit of Assignee for use in the payment of such sums. Upon an Event of Default, as defined
3
in the Notes and the Mortgage, the License granted to Assignor herein shall automatically be revoked, and
Assignee shall immediately be entitled to possession of all Rents and all sums received pursuant to any
Lease Guaranty and Bankruptcy Claims, whether or not Assignee enters upon or takes control of the
Mortgaged Property. Assignee is hereby granted and assigned by Assignor the right, at its option, upon
revocation of the license granted herein, to enter upon the Mortgaged Property in person, by agent or by
court- appointed receiver to collect the Rents and all sums received pursuant to any Lease Guaranty and
Bankruptcy Claims. Any Rents and all sums received pursuant to any Lease Guaranty and Bankruptcy
Claims collected after the revocation of the license may be applied toward payment of the Debt in such
priority and proportions as Assignee in its discretion shall deem proper.
2. REMEDIES OF ASSIGNEE.
(a) In the event of default by Borrower under the terms of said lease, Lessor shall have the right to
terminate said Leases in accordance with their terms, provided, however, Lessor shall first give the Lender
(30) days written notice of such default and the right, at the option of Lender, 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 the Lender's consent.
(b) In the event of any default by Borrower in the performance of any of the obligations of its notes to
Lender evidencing the aforesaid loans, any renewal or extension thereof, or any other agreement made in
connection therewith, including its agreements herein, and Borrower has not cured such default within the
applicable cure period under the Loans or of any related agreement, then, Lender, at its option, may, upon
receiving the prior written consent of Lessor, which such consent will not be unreasonably withheld,
using such reasonable force as may be necessary, enter said leased premises and do any one of more of the
following:
a. Remove all property of Borrower that is pledged as collateral for the loans;
b. Sell the property of Borrower that is pledged as collateral for the loans but excluding any
real estate leased by Borrower from the City of Dubuque including leased land and docks
located on the leased land ;
c. Transfer and assign said Leases and Borrower's rights therein to parties satisfactory to
Lessor and Lender, and upon assignment, the obligations of said Leases shall be binding on
said transferee(s).
Notwithstanding any provision in this Assignment to the contrary, Lender shall have no authority to sell
any real estate leased by Borrower from the City of Dubuque including leased land and docks located on
the leased land;.
In the event Assignee shall only undertake the option 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 Lender shall make transfer of said Lease as provided in paragraph c., Lender will cure all defaults in
said Leases, and its sole other obligation shall be the payment of rent which accrued prior to the transfer of
said Leases.
(c) Upon or at any time after an Event of Default, Assignee may, at its option, without waiving such
Event of Default, without notice and without regard to the adequacy of the security for the Debt, either in
person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a
court, take possession of the Mortgaged Property and have, hold, manage, lease and operate the Mortgaged
Property on such terms and for such period of time as Assignee may deem proper and either with or
without taking possession of the Real Property in its own name, demand, sue for or otherwise collect and
receive all Rents and all sums received pursuant to any Guaranty and Bankruptcy Claims, including those
past due and unpaid with full power to make from time to time all alterations, renovations, repairs or
replacements thereto or thereof as may seem proper to Assignee and may apply the Rents and all sums
received pursuant to any Lease Guaranty and Bankruptcy Claims to the payment of the following in such
order and proportion as Assignee in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the Real Property, including, without
being limited thereto, the salaries, fees and wages of a managing agent and such other employees or agents
as Assignee may deem necessary or desirable and all expenses of operating and maintaining the Mortgaged
Property, including, without being limited thereto, all taxes, charges, claims, assessments, water charges,
sewer rents and any other liens, and premiums for all insurance which Assignee may deem necessary or
desirable, and the cost of all alterations, renovations, repairs or replacements, and all expenses incident to
taking and retaining possession of the Mortgaged Property; and (b) the Debt, together with all costs and
attorneys' fees. In addition to the rights which Assignee may have herein, upon the occurrence of an Event
of Default, Assignee, at its option, may either require Assignor to pay monthly in advance to Assignee, or
any receiver appointed to collect the Rents and all sums received pursuant to any Lease Guaranty and
Bankruptcy Claims, the fair and reasonable rental value for the use and occupation of such part of the
Mortgaged Property as may be in possession of Assignor or may require Assignor to vacate and surrender
possession of the Mortgaged Property to Assignee or to such receiver and, in default thereof, Assignor may
be evicted by summary proceedings or otherwise. Assignee shall be entitled to require that all payments
due under any Lease, including, without limitation, all rental payments under any Lease, be paid directly to
a lockbox account designed by Assignee. For purposes of this paragraph, Assignor grants to Assignee its
irrevocable power of attorney, coupled with an interest, to take any and all of the aforementioned actions
and any or all other actions designated by Assignee for the proper management and preservation of the
Mortgaged Property. The exercise by Assignee of the option granted it in this paragraph and the collection
of the Rents and all sums received pursuant to any Guaranty and Bankruptcy Claims and the application
thereof as herein provided shall not be considered a waiver of any default by Assignor under the Notes, the
Mortgage, the Leases, this Assignment or the Other Security Documents.
(d) Upon or at any time after the occurrence of an Event of Default, Assignee shall have the right in its
own name or in the name of Assignor in respect of any claim, suit, action or proceeding relating to the
rejection of any case, including, without limitation, the right to file and prosecute, to the exclusion of
Assignor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case
in respect of the lessee under such lease under the Bankruptcy Code.
(e) If there shall be filed by or against Assignor a petition under the Bankruptcy Code, and Assignor, as
lessor under any Lease, shall determine to reject such Lease pursuant to Section 365(a) of the Bankruptcy
Code, then Assignor shall give Assignee not less than ten (10) days' prior notice of the date on which
Assignor may apply to the bankruptcy court for authority to reject the Lease. Assignee shall have the right,
but not the obligation, to serve upon Assignor within such ten -day period a notice stating that (i) Assignee
demands that Assignor assume and assign the Lease to Assignee pursuant to Section 365 of the
Bankruptcy Code and (ii) Assignee covenants to cure or provide adequate assurance of future performance
under the Lease. If Assignee serves upon Assignor the notice described in the preceding sentence,
Assignor shall not seek to reject the Lease and shall comply with the demand provided for in clause (i) of
the preceding sentence within thirty (30) days after the notice shall have been given, subject to the
performance by Assignee of the covenant provided for in this sentence.
3. NO LIABILITY OF ASSIGNEE. Assignee shall not be liable for any loss sustained by Assignor
resulting from Assignee's failure to let the Mortgaged Property after an Event of Default or from any other
act or omission of Assignee in managing the Mortgaged Property after default unless such loss is caused by
the willful misconduct or bad faith of Assignee. Assignee shall not be obligated to perform or discharge
5
any obligation, duty or liability under the Leases or under or by reason of this Assignment and Assignor
shall, and hereby agrees, to indemnify Assignee for, and to hold Assignee harmless from, any and all
liability, loss or damage which may or might be incurred under the Leases or under or by reason of this
Assignment and from any and all claims and demands whatsoever, including the defense of any such
claims or demands which may be asserted against Assignee by reason of any alleged obligations and
undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in the
Leases. Should Assignee incur any such liability, the amount thereof, including costs, expenses and
reasonable attorneys' fees, shall be secured hereby and by the Mortgage and the Other Security Documents
and Assignor shall reimburse Assignee therefor immediately upon demand and upon the failure of
Assignor so to do Assignee may, at its option, declare all sums secured hereby and the Mortgage and the
Other Security Documents immediately due and payable. This Assignment shall not operate to place any
obligation or liability for the control, care, management or repair of the Mortgaged Property upon
Assignee, nor for the carrying out of any of the terms and conditions of the Leases; nor shall it operate to
make Assignee responsible or liable for any waste committed on the Mortgaged Property by the tenants or
any other parties, or for any dangerous or defective condition of the Mortgaged Property, including,
without limitation, the presence of any Hazardous Materials (as defined by State or Federal Environmental
laws), or for any negligence in the management, upkeep, repair or control of the Mortgaged Property
resulting in loss or injury or death to any tenant, licensee, employee or stranger.
4. SUBORDINATION. 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 loans, including any
Landlord Lien pursuant to Iowa Statutory or Common Law, to the Lender's liens on said property and to
the Lender's rights herein.
5. WARRANTY OF TITLE. Lessor hereby represents warrants that title to said Leased Premises is held
by it in fee simple, and that it has full power and authority to consent to this Agreement. Assignor hereby
represents that its interests in the Leases are held by it, and that it has full power and authority to consent to
this Agreement.
6. NOTICE TO LESSEES. Assignor hereby authorizes and directs the lessees named in the Leases or any
other or future lessees or occupants of the Mortgaged Property upon receipt from Assignee of written
notice to the effect that Assignee is then the holder of the Mortgage and that a default exists thereunder or
under this Assignment, the Notes or the Other Security Documents to pay over to Assignee all Rents and
all sums under any Lease Guaranty and to continue so to do until otherwise notified by Assignee.
7. OTHER SECURITY. Assignee may take or release other security for the payment of the Debt, may
release any party primarily or secondarily liable therefor and may apply any other security held by it to the
reduction or satisfaction of the Debt without prejudice to any of its rights under this Assignment.
8. OTHER REMEDIES. Nothing contained in this Assignment and no act done or omitted by Assignee
pursuant to the power and rights granted to Assignee hereunder shall be deemed to be a waiver by
Assignee of its rights and remedies under the Notes, the Mortgage, or the Other Security Documents and
this Assignment is made and accepted without prejudice to any of the rights and remedies possessed by
Assignee under the terms thereof. The right of Assignee to collect the Debt and to enforce any other
security therefor held by it may be exercised by Assignee either prior to, simultaneously with, or
subsequent to any action taken by it hereunder.
9. NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be construed as constituting
Assignee a "mortgagee in possession" in the absence of the taking of actual possession of the Mortgaged
Property by Assignee. In the exercise of the powers herein granted Assignee, no liability shall be asserted
6
or enforced against Assignee, all such liability being expressly waived and released by Assignor.
10. CONFLICT OF TERMS. In case of any conflict between the terms of this Assignment and the terms of
the Mortgage, the terms of the Mortgage shall prevail.
11. NO ORAL CHANGE. This Assignment and any provisions hereof may not be modified, amended,
waived, extended, changed, discharged or terminated orally, or by any act or failure to act on the part of
Assignor or Assignee, but only by an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change, discharge or termination is
sought.
12. CERTAIN DEFINITIONS. Unless the context clearly indicates a contrary intent or unless otherwise
specifically provided herein, words used in this Assignment may be used interchangeably in singular or
plural form and the word "Assignor" shall mean "each Assignor and any subsequent owner or owners of
the Mortgaged Property or any part thereof or interest therein," the word Assignee" shall mean Assignee
and any subsequent holder of the Notes," the word "Notes" shall mean The Notes and any other evidence
of indebtedness secured by the Mortgage, the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental authority, and any other entity,
the words Mortgaged Property shall include any portion of the Mortgaged Property and any interest
therein, and the word "Debt" shall mean the principal balance of the Notes with interest thereon as
provided in the Notes and the Mortgage and all other sums due pursuant to the Notes, the Mortgage, this
Assignment and the Other Security Documents; whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural and vice versa.
13. NON — WAIVER. The failure of Assignee to insist upon strict performance of any term hereof shall not
be deemed to be a waiver of any term of this Assignment. Assignor shall not be relieved of Assignor's
obligations hereunder by reason of (i) failure of Assignee to comply with any request of Assignor or any
other party to take any action to enforce any of the provisions hereof or of the Mortgage, the Notes or the
Other Security Documents, (ii) the release regardless of consideration, of the whole or any part of the
Mortgaged Property, or (iii) any agreement or stipulation by Assignee extending the time of payment or
otherwise modifying or supplementing the terms of this Assignment, the Notes, the Mortgage or the Other
Security Documents. Assignee may resort for the payment of the Debt to any other security held by
Assignee in such order and manner as Assignee, in its discretion, may elect. Assignee may take any action
to recover the Debt, or any portion thereof, or to enforce any covenant hereof without prejudice to the right
of Assignee thereafter to enforce its rights under this Assignment. The rights of Assignee under this
Assignment shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Assignee shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
14. DUPLICATE ORIGINALS. This Assignment may be executed in any number of duplicate originals
and each such duplicate original shall be deemed to be an original.
15. TERMINATION OF ASSIGNMENT. Upon payment in full of the Debt and the delivery and
recording of a satisfaction or discharge of Mortgage duly executed by Assignee, this Assignment shall
become and be void and of no effect.
7
16. TRANSFER BY ASSIGNEE. No consent by Assignor shall be required for any assignment or
reassignment of the rights of Assignee under this Assignment. All references to "Assignee" hereunder shall
be deemed to include the assigns of Assignee.
17. EXCULPATION. No provision of this Assignment shall (i) affect any guaranty or similar agreement
executed in connection with the debt evidenced by the Notes, (ii) release or reduce the debt evidenced by
the Notes, or (iii) impair the lien of this Assignment.
18. 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,
overnight or facsimile, as follows:
If to Lender:
If to Lessor:
American Trust & Savings Bank
Attn: Commercial Department
895 Main Street
PO Box 938
Dubuque, IA 52004 -0938
If to Borrower: Dubuque Yacht Basin, Inc.
Attn.: David H. Pretasky, President
1630 E 16 St
Dubuque, IA 52001
City of Dubuque
City Manager
City Hall
50 W 13 St
Dubuque, IA 52001
Copy to: City Attorney
City Hall
50 W 13 St
Dubuque, IA 52001
Either party by notice to the other may designate additional or different addresses for subsequent notices or
communications.
For purposes of this Subsection, "Business Days shall mean a day on which commercial banks are not
authorized or required by law to close in.
19. 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.
20. BINDING EFFECT AND 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.
8
21. INTERPRETATION AND 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.
22. 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 rights
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.
23. 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
recorder 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.
IN WITNESS WHEREOF, Assignor has executed this instrument the day of
, 2010.
Borrower: Dubuque Yacht Basin, Inc.
By:
David H. Pretasky, President
Lessor: City of Dubuque, Iowa
By dKid lit Y (4
OA
Michael C. Van Milligen, City an ger
Lender: American Trust & Savings Bank
By:
Victoria J. Richter, Senior Vice President
By:
Daniel E. Walsh, Vice President
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STATE OF IOWA )
) ss
DUBUQUE COUNTY )
On this day of , 2010 before me, the undersigned, a Notary Public in and for the
State of Iowa, personally appeared David H. Pretasky, to me personally known, who being by me duly
sworn, did say he is the President of the corporation executing the within and foregoing instrument that
said instrument was signed on behalf of the corporation by authority of its Board of Directors; and that
David H. Pretasky as 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.
STATE OF IOWA
DUBUQUE COUNTY
)
) ss
)
On this day of , 2010, before me, the undersigned, a Notary Public in and for the State
of Iowa, personally appeared Michael C. Van Milligen, to me personally known, who, being by me duly sworn,
did say that he is the City Manager of the City of Dubuque, Iowa; a municipal corporation; that the seal affixed to
the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on
behalf of the corporation, by authority of its City Council, as contained in Resolution No. passed by
the City Council on the ; and Michael C. Van Milligen acknowledged the execution of the
instrument to be his voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily
executed.
STATE OF IOWA )
) ss
DUBUQUE COUNTY )
On this day of , 2010 before me, a Notary Public of Iowa in and for Dubuque County,
appeared Victoria J. Richter and Daniel E. Walsh, personally known who, being by me duly sworn, did say
that they are the Second Senior Vice President and Vice President respectively, of the American Trust &
Savings Bank, and that no seal has been procured by said bank, and that the foregoing instrument was
signed in behalf of said Lender by authority of its board of directors, and said Victoria J. Richter and
Daniel E. Walsh acknowledged said instrument to be the voluntary act and deed of said Lender.
Notary Public in and for said County
1 0
Notary Public in and for the State of Iowa
Notary Public, State of Iowa
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• .EXHIBIT A -1
Beginning at a point which is the southwest
• corner of the Dubuque Yacht Basin Lease #2,
thence north 52'29' east 50 feet; thence
south 37 31' east 464.28 :s;eet, thence .south
3G 39' west 51.90 :Feet, thence north 37 31' west
470.33 feet 10.point of beginning, as said
demised area being outlined _in reel , on the
attached plat, designated Dubuque Yacht Basin
Lease No. 3.
LEASE' AGREEMENT- • r
TI•IXS LEASD AGREEMCt3T made and entered into this 8th
da o g ' April 1970, by and. between the CitV of
Dubuque, Iowa; a municipal corporation oy` Iowa, through its"
foarcl of Doc;: Commissioners, hereinafter called "Lessor;, and
Dubuque Yacht Basin, Inc., an Iowa corporation, hereinafter
called "Lessee ", providing gor the Lessee to lease, enter upon
and use the following described real estate'sii:uated in the
City of Dubuque, Dubuque County, Iowa, hereinaft to
as the "demised premises ", to -wit:
A tract of land three and ninety,hundredths
13.90) acres in area including boat improved
harbor and slopes immediately adjacent thereto,
all as shown on the plat marked Exhibit "A"
hereto attached and by reference made a part
hereof;
Lot 2 as designated on plat dated September 10,
1965 as designated on Exhibit "B" hereto
attached;
. WITNJ SSETII:
(11 Lessor does hereby lease to Lessee the demised
premises hereinbefore described to have and to hold the same tor.
a period of five (5) years, subject to renewals at the optign of
the Lessee nd hereinafter provided, commencing; on the i•
clay oE 7,4 , 1970 and terminating on the 3/
day of __f11,lizc 197L
(2) Lessee shall have and.hold the a.:oredescribed
Premises..for the ope of a pleasure boat marina and all other
purposes permitted by law including, but not to, the
right to construct and maintain pleasure boat clocking and storage
facilities, pleasure boar: marine fueling facilities, sale and
display of pleasure water craft and marine motors and to erect
facilities for sale and dispensing of food and beverages.
(3) Lessee's construction of'a dock or clocks alone!
. the water front of the demised premises, together with any
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necessary piling .+"br mooring pleasure water craft shall be so
constructed in accordance with plans to be approved by Lessor
and U. S. Corps of Engineers, Roc:. Island, Illinois:
(4) Lessee agrees to pay Lessor an annual rental of
Three Hundred Fifty Dollars per acre plus One ($1.00)
Dollar per lineal root of waterfront abutting the demised premises,
and the parties hereto agree that the total chargeable footing
of such waterfront is IF /Lt..3F feet. •
(a) In the event that Lessee shall use any
portion of tI1e premises herein leased gor the
receipt or shipping of commercial products then
(b) In addition to the rental reserved herein -
above, Lessee agrees to pay Lessor such wharia47e fees
ns may be legally established from time to time by
Dock Board 0rdinance in accordance with the provisions
of Section 304 (`7) of the 1066 Code of Iowa, or. as .
such wharrage lees may be amended during the term of
this lease or any renewal thereof; provided, never -
the les,, that +Lrssco shall not be oblivited hereunder
to pay to Lessor any w11arfar :e :frees that would be more
onerous as to
rate of computation or manner of payment
than that applicable to any other person or concern .i
to whom such Dock Board Ordinance for the establish-
ment of wharfage fees would apply. The wharfage fees
presently enforced and equally applicable to all
other persona or concerns u::inj facilities under the
jurisdiction of the Deportment o f Public Docks are
hereby represented by Lessor to be as follows: •
(i) Two and one -half cents (2 V). per ton of
2,000 prunds on all bulk fluids received
upon the demised premises by water trans-
portation, rail or Motor transportation; or
any method of transportation;
(ii) Five cents (!e) per ton of 2,000 pounds on
all bulk solids recciVecl upon the demised :
premises by water., rail or motor t :ranspor-
tat:i.on; or any other method of transports- -
tion;
(iii) Fifteen cents (i5) per ton of 2,000 pounds ' , •
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on all packaged c•oods received upon the
dei^.ised premises by water, rail or motor
transportation (pacr aft0'i roods as used herein jw
shall not include bull. lumber which shall
be considered bum': solids even though pee:age d
in bundles, or any other. method of trans-
portatio;1. •
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It is 61rther agreed that a minimum of Two (0.00) Dollars per
fool: shall be paid annually in advance for wharfage fees, pro-
vided herei.nabove. 11oLwita sta11c)itt!.:, anything to the cont:rery
contained in 'ea'rarlrazah (.) (c) above, Lessee shall not: be
obligated to pay Lessor fees for any materials, Supplies and
equipment received neon, the deeiserl premises for uee in the. con -
struci :ioa, operation or maintenance of the facilities.
It is further aerocd and vndct:;,l:oocl.bet icon thc pa; :tic:, Beret :o
that the rental* herein agreed to be paid shall be payable in,
'advance every three months, that is to say, shall be payable
in quarterly payeent :s, � r the first renta; ",hall be due anti / ?savable
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on or before the Pe dey of � Pie !1
and on the f'i; :st ".day of eoch quarter thereafter.
• (,) On or l:oi`.ore the .10t :h tray of the month followincl
each 12 -eonth period c]urinrt t,hc term of this lease, or any
;renew ;ll the) :eo`., Lennec shell submit to Lessor n atato°1'cue slloluin'l
the quantities 4.4 :griper., but; solids end eac'caeec1 cioorls of every
character received on the ).`cased preeispe durinr' the preccdine
year, to.•:et :her with i:hc Lessee's remittance of wharfage 'Seer:
;arovided for in 1.°c^.reera•ah (') (c above.
(6) Lessor. a ,ree e • to ;gay all neneral taxes that may be
levied aaainsi: the :cased pre:t:ieen; Lessee, however, crrIreee to
pay n].1 1 :hal: 'ri atr be r a ainst
r;I)CC.LaI, aB:;C:;rS'llClii::. JC lCViC.i or auEeSSC.]
the leases premises and eexees to pa' ell ::axes levied or
assessed against the ieprovneent:s placed uv011 the leased premises.
( } L'):cept for file i'rproverrent:s conetruct:ed uticler. the
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(1) All improvements ; ade by Lessee 1 :o the de'aisecl
premises and all st:ruCturee situated thereon shall be erected,
built and maintained in st :ri.c1: conformity with al]. ep,�licable, 'A i
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Federal, State or Municipal St:at sites, ordenances an. l reeula'( I.On:. •
Lessee claret:, to keep the demised nl:e mi.iree end the buildien and . r t4
structures thereon in a neat: and orderly condition at all timer ri
and in condition and repair and' t.o conform with all federal, ,
State and lun•i.cipal re:yuleeions in roeart1 to the use of the de- :{
atised p twin end the operaeion of the business conducted .t
:hereon, and further a ^.Sec: not to duey any truell Or sweep ?.n' , or '.:
other waste'mal :trial, in tats channel alone the derli eerl ereC, r,
sir on thc bankc thereof, in such a manner that the eeme clay • r :'
r ndi.J.y be washer)- .i.vtto' th'a channel.
provisions of 1?araereph (3) hereof, upon Tale termination oe t.hie J
lease or any •renel:al term, tor any cause whatsoever, Lessee shall
have the privilege, clurinc: the period .oe sire (6) 1.1on, :nc, & .ne a
termination of this ].ease, Roe en;; ceu ^,c wheteeevc;: , t :o reeeve .
any and ell improvements made by Lee ce upon the dc•. i.oerl yre'':ise ..t
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t (10) Lesson: shall retain a strip of land forty -four
(44) feet in width along; the top of the slope of the demised
premises for the purpose of maintenance, inspection and repair
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provided the same are free of landlord's liens, or other lien
rights in Lessor. It is agreed that all such improvements, except
for the improveoents constructed under the provisions of Pararaph I.
(.t) hereof, are to remain, at all times, personal property with -
' out regard to the way. or manner that they may be affixed to the
• ; real estate. In the event of such removal, the demised practises t
• shall be restored to substantially ;.he same condition as they •
were at the commencement of the initial term of the within lease. • K
Failure to remove any of such improvements, or other. property •
of Lessee within such sil: (6) months period 'shall constitute an '
abanion•nent thereof unless the parties hereto otherwise agree
in writing. Such abandonment shall not relieve Lessee fro :'i I.
reimbursing Lessor for actual eNpenoe of removing-such abandoned - f '
property. Lassos shall hove fee access at all trues during the ;
aforesaid si:i (u) month period to remove from the demised pre•-ises i
its improvements except such iwurove,ents as described in Para-
graph (3) hereof. In the event of any holdover after the. ter- i
ruination of this lease by Lessee to remove its improvements, as ,)
stated aforesaid, Lessee shall pay Lessor rental for each month
under such holdover to be computed by cli.vidine the annual rental :o
specified in '.'araoraph (4) (a) above by twelve 0.2).
(:)) Lessor agree and covenants that Lesser, on pay—
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went of the rent and performing. the covenants and conditions ;
herein contained, shall and may peoeeifully and quietly have, hold
i and bnjoy the demised premises for the term hereof, includin_i
all' renewals, including the exclusive use of the waterfront
a abutting{ the demised premises, not to exceed 2400 feet of water-
` front, as identified on iyx hibi.t "n" hereto attached, and Exhibit "A"
and the attached Plat designated Lease No. 3.
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of rip -rap and land frontilio on the waiver, adjacent' thereto. •
Lessor shall have the right and easement to enter upon the demised ".
premises for the purpose of maintenance, inspection and repaid
of the rip -rap and land fronting; on the water. The rights reserved ;
t . by Lessor herein shall not prevent Lessee front .usinrt such forty- ,
k .:four (44) feet strip for any purposes not inconsibtent with such .
1 rights reserved by Lessor and subject to .the erection of a flood
wall ].eves.
(11) Durinr;'the term' of this -lease, or any extension
thereof, the Lesse_cLA101) hevc_the riclhl: to sublet or assic(n any
of its rights;' in and to the demised to any person or
concern ,t:'itih the prior written approval Lessor to the end• tliate
Lessor ?.n .c.:ey- t-s- •sklall be -; u-1-li' protested and which approval • i
of Lessor shall not be unreasonably withheld. ' 'l
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(12) Lessee. is hereby granted the •opt:ion extendin
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this lease for not more -than nine (0) additional successive
periocle of five (5) .,year, each under the sane term:, and con —
ditions as - tact forth herein by diving Lessor advance :mitten
notice of the exercise of such option at least sixty (GO) days
prior to the expiration of the original term, or the expiration
of any other term as to which Lessee may have exercised such
option.
(13) Lessee agrees to indemnify and hold harmless the
Lessor from any and all damages or claims whatsoever, actions
or causes of action in law or equity, or damage& or claim for
damages or claims for damages to persons or property by reason
of the Lessee's use or iisuse of the demised premises or arising
by reason of the erection or maintenance or exist=ence of docks,
unloading 'facilities, Pile clusters erected by Lessee on the
premises herein leased or in or on the waterfront abutting and
serving the leased premises, and further agrees to reimburse
Lessor for any and all damages to the waterfront,• rip —rap, or
slopes resulting from 1 :11e maintenance, erection or existence of
said i or from shoaling; resulting therefrom. Lessor
a- ?roes to promptly give its notice to 'Lessee of any and all
claims and actions, as , stated aforesaid, and to permit Lessee •
and /or its insurance cornier to investigate and defend the iaee.
(14) Lessee anrces to procure and maintain in Force •
:::wring the terms of this ].case, or any renewal thereof, a policy'
of liability insurance insuring the liability of the City of
Deburue, by and thraunh its Board of Uoci;.Commi.ssioners, Le eor,
from any casualty claims ad.:Awr out of the leasing of the demised
premises, or the operations conducted thereon. .Said liability •
policy shall be Written with minimum limits of not Less faun
*100,000.00 for injury to any ono person, not lese than '
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$300,000.00 .nor any one accident, and not less than *100,000.00 •
for property damage. Lessor •:;hall be ' :urnis1aed 'with a Certificate '
of IneuranCe evidencing the •coversee required by this parar :ra,ph
and such Certificate shol.1 provide: that at least ten (10) days
written notice shall be given to the Cityof Dubuque, by and
through its Board of Dock Commissioners, prior to the cancellation)
ox material change of such coveracle. The insurance carried :'or
the rti.nimu limits herein specified nhall be authorizer] to do 1
bueine„s in the State of Iowa. A
(15) If Leseee shall r:.n: .: default in the payment of the
rental hercun'ec1 :, or. any }?art thereof, or, shall r else default in .
r r. e covenants herein contnine�!, - " •
the ,)x.•1:!'0::1 :•ant ^ - o••: any n.� the other c.vcnan�s
and ouch default eh all continue for a period o•' thirty (30) .clays •
after written notice thereof], specifying the def=ault cc'iplai.nel
o', mailed to Lr ::;see at its e1(1rc: r in the City' of Debeq,,:le, Iowa,
by United States certified mail., with a copy mailed to L 5 CC
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(17) Lessor agrees that there will be no public
dumring within a radius ot.one thousand (1000) feet from the
perimeter of the demised premises hereinbefoxe described.
This prohibition shall not apply, however to the area for
which the Lessee has been granted an option.
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at 1630 East 16th Street, Dubuque, Iowa, or at such other
address as Lessee may•from time to time specify in writing,
then it shall be lawful for Lessor, at its election, to
declare the term • of this lease ended 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 the 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.
(16) Any rights granted to Lessee are further
subject to the prior right of the City of Dubuque, Iowa,
or its authorized agents or contractors to enter upon the
premises to carry on any work or activity necessary in con-
nection with the construction of flood control works or
devices.
(18) It mutually agreed and understood by and
between the parties hereto, that the Lessee materially
represents and acknowledges that Lessor relies on such material
representation in entering into this lease, that it is' aware
of and recognizes that the Dubuque Packing Company is engaged
in business as a meat packing plant in the vicinity of the
premises herein leased, and Lessee has no objection and will
make no objection to such operation of Dubuque Packing Company
Packing Plant.
(19) Lessor does hereby grant unto Lessee the
,exclusive right and option to lease the Father Aloysius
•Schmitt Pleasure Harbor and all or any part of the real estate
connected therewith as shown on the plat marked Exhibit "E"
attached hereto and by this reference made a part hereof,
provided, however, that the aforesaid option shall expire on
• December 1, 1970. Said option shall be exercised by written
notice of the Lessee to the Lessor addressed to its business
office at least sixty (60) days before the exercise of said
option
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IN WITNESS WHEREOF, the
due execution of this Agreement,
year first above written.
CITY OF DUBUQUE, IMA (Lessor)
By: ... Ka:zoi 144
( Voelher
BY:
Vincent U Ikaiser
)
Donald 01 Muel or
By:
Its Board of Dock Commissioners
STATE OF IOWA )
DUBUQUE'. COUNTY ) •
C C(
on this ,1.,, °If
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parties hereto have caused the
in duplicate, as of the day and
DUBUQUE YACHT BASIN, INC. (Lessee)
By:
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Donald P. Shanley, Fgesrdent & •
Secretary.
. 1970,
befol:o me, the undersi a Notary Public in arid for 'd
County, in said State, personally appeared Joseph Voelher, Vincent
J, Kaiser and Donald J. Moller, to me personally known, who, being'
by in duly sworn, did say that they have been appointed members
I
oi: the Board of Dock Commissioners, that no seal has been pro-
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cured by said Dock Commission, that said instrument was signed
on behalf of the said Board of Dock CommissionerS by authority ,
of its Board, and said Joseph Volker, Vincent J. Kaiser and
Donald J. Mueller achnowledi;led the execution of said instrument ' 1
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to be the voluntary act and dead of said Board of Dock Commissioners :
by it and by them voluntarily c;:ecuted. 4
Notary Public In and 'for paid County.
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STATE OD' IOWA )
SS:
DUBUQUE COUNTY )
(SEAL)
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On this 0 day of , 1970, .before
me, the undersigned, a Notary Publicc in for said County,
in said State,' personally appeared DONALD P. to mei
personally known, who, being by me duly sworn did say that he
is the President and Secretary of said Dubuque Yacht Basin,
Inc., that no sea]. has been procured by the said corporation
and that the said Donald P. Shanley as such officer acknowledged
the execution of said instrument to be the voluntary act and
deed of said corporation, by it and by him v ,Imtarily
executed..
Jotary Public
in and for s , County and State.
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1 HERESY CERTIFY • THAT THIS PLAT, mAp, SOkvEY OR REPORT WAS
HE DR UNDER HY D/REET PE3504AL SUPERVLSION AN3 THAT
A:1 DULY REOISTERZO AS A LANO SURVEYOR UoDER THE LA- 'S or
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' FIRST AME .:_. ANT TO LEASE •
This Pirat Amendmon t Lease..Agrnement made and entered
.• into this , day of 1970, by and between
the CITY OF DUBt1QUE, IOWA, a Municipal corporation of Iowa,
through its Board .of Dock Commissioners, hereinafter called LESSOR,'.
and DUBUQUE YACHT BASIN, INC., an Iowa Corporation, hereinafter
called LESSEE, in consideration of the covenants and conditions
of the original Lease Agreement and thin First Amendment to Latest
Agreement hereby stipulate and agree that Paragraphs 4 and 19 of
the Lease Agreement between LESSOR and LESSEE dated April 8, 1970,
,shall be deleted and in lieu thereof, the followijng Paragraphs 4
.and 19 inserted and to become a part of the original Lease Agree-
menti
(4) LESSEE agrees to pay LESSOR an annual rental of 'THREE
THOUSAND SEVEN HUNDRED FOUR and 98/100 DOLLARS ($3,704.98).
(a) In the event that LESSEE shall use any portion of
the premises.herein lea for the receipt or shipping of .
commercial tiroducts, then, .
(b) Iri addition to the rental reserved herein above, .
LESSEE agrees to Bay LESSOR such wharfage Ease as may be
legally established from time to time by Dock Board Ordinance
in accordance ith the provisions of Section 384 (7) of the
1966 Code of owe, or an such wharfage fees may - amended
during the arm of this Leaee or any renewal thereof; pro» •
Vided, nevertheless;, that LESSEE shall not be obligated
hereunder to pay to LESSOR any wharfage fees that would be
more onerous as to rate of computation or manner of payment . .
than that applicable to any other person or concern to whom
such Dock Board Ordinance for the establishment of wharfage
fees would apply. The wharfage fees presently enforced and
equally applicable to all other persons or concerns using •
facilities under the jurisdiction of the Department of Public
Docks are hereby represented by LESSOR to be as follower
(i) Two and one -half cents (2V) par 'ton of 2,000 • '
pounds on all bulk fluids received upon the demised premises
' by water transportation, rail or motor traneportationt or
any other method of transpartationt ii
(ii) Five cents'(5,) per ton of 2,000 pounds on all. 1
bulk solids received upon the demised promisee by water, ` ;!
rail'or motor traneportationt or:any.bther method of _.
transportation; j
(iii) Fifteen cents (15¢) per ton'of 2,000 pounds on
• all packaged goods received upon the demised premises by A
water, rail or motor transportation (packaged goods as
used herein nhall not include bulk lumber which shall be i
considered bulk solids even though packaged in bundles, or
any other method of transportation. j
•• t
Con /.
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1
•
•
i
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it ie further agreed that a minimum of Two ($2.00) Dollars
per,foot shall be paid annually in advance for wharfage
fees, provided hereinabova: Notwithstanding, anything to,
the contrary contained in Paragraph (4) (d)'above, LESSEE •
shall not be obligated to pay LESSOR.fees for materials,
supplies and oquipment' received upon the demised premises
for use in the construction,• operation or maintenance of
the facilities.
It is further agreed and understood between the parties ;
hereto that the rentals herein agreed to be shall,be
payable in 'advance every three months, that?is•to say,'
shall•be payable in quarterly payments, the first rental
shall be due and payable on or before the 15th day of
April, 1970 and-on the first day of each quarter thereafter. (
(19) - LESSOR dries hereby grant to LESSEE the exclusive •s
right and option to lease the.Father Aloysius Schmitt Pleasure
Harbor'and all or any part of•the real estate connected therewith -
as 'shown on the Plat marked Exhibit "E" attached to the original •t
Lease Agreement dated April 8, 1970 and by this reference made a
part hereof, provided, however, that the aforesaid option shall 1.
expire. en December 1, 1971. Said option shall be exercised by
written notice of the LESSEE to the LESSOR addressed its
business office at least sixty (60) days before the exercise'of
said option.
•
IN WITNESS memor, the parties hereto have caused the due A
execution of this Agreement, An duplicate, as of the day and year
first above written.
CITY Or DUBUQUE, XOWA, . . •
/' LESSOR
sopH Voelker
_2-
DUBUQUE YACHT BASIN, INC.,
LESSEE .
BY
Donald P. Shanley, f ident .,
ecretary.• ° 1
BY,
4
P. . Schreiber
• 'Its•'Board of Dock Commissioners
1
LJ
1
.1 On this ..... ..
. day o f "-- r.u�'�/v• ,• X4D► 7.970, , . •
i before. me, the undersigned; a Notary Public in and for,tsaid County►
--= in said State, personally appeared JOSEPH VOELKER,'VINCENT i7.
KAISER and F. 3. ScHREIBER, to ma personally known, who, being by
me duly sworn, did say that they have beenippointed members of
the of Dock Commissioners, that no a al has been procured
by said Dock Commission, that said instrument was signed'on be- .
half of the said Board of Dock Commissioners by authority of ito •
Board, and said JOSEPH VOELKER, VINCENT 3. KAISER 'and F. J. SCE REIBP.R
acknowledged the execution of said instrument to be the voluntary
" °4 it• and deed of said Board of Bock commissioners by .it and by them
v'r lunteri.ly , executed.
STATE OIT IOWA '
) SS1
DUBUQUE coiNIT :)
STAT OF IOWA )
) ' SSt
DUBUQUE COUNTY', )• •
'1'
On this' r( day of do .n. • ',' ' ' -' :•• '
b e:E - dre. me; the undersigned,. a Notary public : in :an$'for paid County, • >
.in maid State, personally'apiieared DONALD P: 'S EY,: to ,me'per-
sonally known, who being by me duly sworn'i'did Say that he is the• • .
President and Secretary of said DUBUQUE YACHT BASIN,•xNC, that no
seal has been procured by the said corporation, thatsaid instru-
ment was Signed on behalf of said corporation by asithority.of its
Board of Directors/ that the said DONALD P. SHANLEY aa' such officer '
acknowledged the execution of said instrument to be the voluntary
act and deed of said corporation by it and by him voluntarily
executed.
r• .
-3-
1
•
•
N eery Public . .
in and for•said County.and
. :.�
•
�� j/ it •� J.: j
Notary Public
in and for said County and State., : _�
1:;
L
r ,.
• •• • •.
•
•
• S;LCOND A Ms N "J:v: ,ANT TO LEAS .
•
•
This S•••;'OND hh:;::ND1, L., AS;:; is r_•sado•and execui:cd
. . }' this (ma ' ;ay ai , .A. D. , 194, by n .Y)UBUQU�;
• . • YACIIT BASIN, WC., a ccrepora tio.h organized tied a::ihting under and by
• • • virtuo the taws cf the ;state of Iowa, with its principal place of business
''•';t'= • • in Dubuque, 'Iowa, hereinafter'refcrrod•to as•"yet Dastn, " and the
• CITY OF DOBUQUL.,, IOWA, a Municipal corpeiation organLzod and exist-
• . • under and by virtue of the laws of the State of Iowa,. through tts.duty
• `v;:3 r ' • ' ';r authorized Board of'noek Commissioners, heretnaftcr referred to as
. • "Dubuque "; • • •
•
•
•
r IWITNt' ;3•:TII: .
• .W;`Ii D..Ems, Yacht L•'as[n and ;)ubuque have lheret into
•
•
onecertainL.easu Agreement dated Aprit 8, 1970 and a First A mendment to
Lcaoas;dated'November 3, 1970, whereby Dubuque leased to Yacht 13aair,
1 :::.1 •Ve- .5 "i'"' 1 :) %- certaln,'re:al'estate'dcscribod tp theaforasaid 1:easo Arr'ecrr cnt'date,! A'p'ril '' ; o, 1970; and ' •
' • WI -IE.: ;AS, Yacht Basin An :7 requested Dubuque to amend rnicl }
• I_caa4•dataii AprIt b, 1970; and .
I
% 1W,'He;RLAS, Dubuque is willing to amend said Leas.. as requested
... by ,,Yacht Basin; • . • -
•
; • -, . NOW, TIdL ...,ro1 a. , in consideration of One Dollar and other • •;
. `'. ? "geed and valuable conat'doration, th'e receipt and saffielanc of which' [:e
:' , hcruby acknowledged, the aforesaid Lease Agreernoaht between Yacht :.3a cin • r4
':,•• and Dubuque dated April 8, 1970 be and the same is hereby by
adding thereto the following:
'i,'' :•. -... . . . . , .
, (2), In the event that the Lessor s halt elect t terminate thla- Lease• . ,
' .as a. result of any act or failure to act of the Locnee which shall constitute a. •:
•• . breach o£,thls I,eaoc; the Lessor, prior to such termination, shalt first
. r notify the American Trust «Savings tank, Du'bliq'ue, Iowa, in writing, of ' •
• ' intention to terminate this Lease, which Notice .shall. be given to
• said Bank by the 'Lessor at least sixty (60) days prior to the date of such
• • r.., '' : termination. Thereupon' said Bank shall have the right within such sixty (b0) •
• , ,•• .. ;: ' day period, but not'th3 obligation, to cure yuch'default and to obtain all of .
l ' • ' ' the, righ and assume, all of the obli of the Lessee a if this Lease had• : ., •
;� : :•'; •• not been breached by'tho Leasoo. In the event, that said Bank so elects to cure
r such default it•shall notify the Lessor, in writing, peloi• to the expiration of
• .. . such suety (60) day period wit:in said �.a :ik shalt have the right to cure . 4
L ' • j•. • ' • such default, • • .
The parties hereto acknowledge and understand that such assignment .•
•' shall be for :securlty.purposes' and the assignee undertake. and agrees and • ,. •*:( • ; ...,•,,�.. .. • covenants that in the event of any foreclosure sale of the property situated on • . •a ;'1' • • said real estate, that it will stand In the earn posirlon as the Lassen with
, 'respect to all terms' and conditions of this Lease. • . • • .: •
IN 15'ITNI:;S S WHEREOF, the partie3 have hereto executed this .
• .
• I ' • •
•".•, • '
• 'fzi•..-•;".
. , . . . . . . ..
. . . .
••:rr:rri.A.r ••.' •• • „ SECOND AMENDMENT TO 1..t/.L on tho day and year first obovo. written.. :.• ' :
. .. .
. . . • • . . . . .
. . . . . . . .
. . ..
• ... -••:. . . . • : ,. .,
.... • • . . r . • • ••
• . .... • • - .... . . . ..
. . .4.: . .
:,,,r:„....r ••• "".•''.• ::'•.. : •
• CITY Oir D ipuQuir„ • Leseor
'.'4 •
•• • •
••• •
. . •
: • •
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• • • . . '
• . . . . • •
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: .rer.. : " . • •
redo rf.: • - • :
• • •
.. •
•
. . • nunumnr YActiT Lessee •
•••: ••: • •"•:" • "•• . BY Z • • '•••4L—_••—
. „ . •.• • _ . •• ..• • • •
• :•• l' .
re.?5Etnt • ••1
•
•
. .
• • • STATE, OF IOWA
• • ) stn.,
•••••:-• • • • •
couNve o DUBUQUE I
• .1 • •
til
On thin .1 .9,/,...6, day of. ..••■•• ...J..._
r'':''''' • - ' •uccierolgned,' a Notary .PublIc In and•for the Sete of. Iowa, pereonat).y. c•--, cl,.-4 •
.::,1•:.. . L. . ._2%.(--er. i • •??? . ...i
appeared ..... 0 ... 14.,,,..-._,_,..rd. ca ,.._,,, e i534 e .,„, b ., 2 „, .
to rric porno:lolly Icooymi, who, being by MO due): morn, clic.: say that thy
. • .
. ..
• bawl been appointed 1:nor or the Board of •oc!: CornroLzaioncre, that nc . • .
oea.l ha n been procured by . ca.iti Pock. C,onur.laelon, that paid Instve:nont war, •
signed on behalf ef•the ead Bon.r:1 cif Dealt Cr:urrnlir,c1.7nere by aut'ntirity el
4 . ; ...
p. Board, •and th i! eaid 2/,* .../,•4 e?•.•
_
•
o-nd the cxrIcutinn oak: inetrurnent
to be the voluntary act.and dccd of Gatti Board of DOelt •::;i rnisalenn by It .. .•
. ••
•
• . • • • • • „ •
. . . •
• • • . •
•
•
• •
• • •
•
• ,
ncl by, the al. v °lento. Lly cecuted, . • . . .
•• • • • , • .
. .•
' . • • ..
. •
' • . •• • ' • -
• .:5.)•••;• ' • .
•
, • By
. • .
• • •
—•
• • Ito Beard ofi.lock. Cornroloolon..ro
,• . ' .
. •
. • .
•
•
• • • • . . • •
• • • : • -
• . • • • • . ••• • .
. • • • •,,••
, 197.r. bcXora t .
. • . . %
•
•
. . .
.• •
• z••1• z-tt!)ti•.:
In ancl.for tho State of Iowa .
. .5 / 9 6
.. • .•.
. ,
• , • . •
. .;
: .•
• • • %
; COUNTY cr ), • .
•'�'•' • • C n t :Lo �� day of l 9'i'4, odor• ••:c•' the ' •
• •unwersil.:1cc1, a it!• ?t` i *Jltbllc can tr: said Cuun:y.l:tel "ta � tl .
:•• appeared DON/.LEI :t.', ::,I; AZ- lt..!i: to tt•Ill er ll
[] �' !]it y ki]ol•: i), who, I;t.lil„ by 'mo. dul' :v:�71•:] Sid ❑a'• that ho is till; �1egri.4 :• •
)' I; •tit and �iGC�CtaTy of bSit.
, • . • • DUBI.IPEJE.y�lccl•;' i36LSItI, INC., that no u.�al has boon procures by tho • •
. ..'• tread corporation, that•sald Instrurr.ont• was , tt;aoci on behalf of Maid corpora- . . •
g ,. ,,:. •. • • ..tLon by authority of its Dotted of Dircr.tore; that: the said Donald P. ,Sharlcy
. ,•••• . • •as such officers acknowledged the execution of saki inetrurncot to be th'e •'
1
I
STATE Ci IOWA )
' ) SS:
roluntary act and tired of said corporutio!t by it ..:id by Illnl vulureaerlly
•'.i cu ted.
•
•!:� <f�t: ..±,. -,r.; ..•
•
RC:ERT M.BERTSCH
MY COMMISSION EXPIRES
SEPTEMBER 70,1977
•1
-
- • I'Ia tary 'rub' 11c
n and for Statu of•Iowa
THIRD AMENDMENT TO LEASE AGREEMENT DATED APRIL 8, 1970
This Third Amendment , to ease Agreement dated April 8, 1970, is made and
executed this 9r4' day of !may , A.D. 2000, between DUBUQUE
YACHT BASIN, INC., a corporation organized and existing under the laws of the State
of Iowa, with its principal place of business in Dubuque, Iowa, hereinafter referred to
as "YACHT BASIN ", and the CITY OF DUBUQUE, IOWA, a municipal corporation
organized and existing under the laws of the State of Iowa, through its duly authorized
City Council, hereinafter referred to as "CITY ";
WITNESSETH:
WHEREAS, YACHT BASIN and CITY have heretofore entered into one certain
Lease Agreement dated April 8, 1970, as amended by a First Amendment dated
November 3, 1970, and a Second Amendment dated February 12, 1975, whereby
CITY leased to YACHT BASIN certain real estate described in the aforesaid Lease
Agreement dated April 8, 1970; and
WHEREAS, CITY and YACHT BASIN wish to clarify the Leased limits of the
Lease Agreement as shown by Lease Area A on the exhibit attached to the Third
Amendment to Lease Agreement.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the aforesaid Lease Agreement between YACHT BASIN and CITY dated April 8, 1970,
as amended by a First Amendment dated November 3, 1970, and a Second
Amendment dated February 12, 1975, is hereby amended to describe the "demised
premises" as follows:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 1 9, T89N, R3E, 5th P.M. in the City of Dubuque, Dubuque County, Iowa, more
particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5th P.M., Dubuque County, Iowa;
Thence S 88 °37'20 "W 654.95 feet along the northerly line of said Section 19
(this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21 °53'20 "E 67.53 feet to an existing iron pipe at the northeasterly
corner of Lease Area A, said point being the point of beginning;
Thence S 68 °05'00 "W 678.00 feet along a line parallel to 16th Street extended;
Thence S 21°53 697.00 feet;
Thence S 53 °58'00 "E 10B7.30 feet;
Thence N 35 °44'05 "E 326.95 feet;
Thence N 38 °31'00 "W 464.28 feet;
Thence N 51°29'00"E 60.12 feet;
Thence N 21 °55'30 "W 349.92 feet;
Thence S 68 °06'40 "W 100.00 feet;
Thence N 21 °53'20 "W 631.56 feet to the point of beginning, containing 21.18
acres, more or less, subject to easements of record and not of record,
as shown by Lease Area A on the exhibit attached to the Third Amendment to Lease
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the due execution of this
Third Amendment to Lease Agreement, in duplicate, as of the day and year first above
written.
CITY OF DUBUQUE, IOWA
DUBUQUE YACHT BASIN, INC.
BY:
�Jw
Donald P. ha ' ey, P A W -
‘1.1"Li;Qti'21-4,- +4:4.
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JQUE YACHT BASIN LE - 4E •1
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1TF OF DUBUQUE. ENGINEERING DEPARTMENT
ounuauc. 10FrA
prenrr
DUBUQUE YACHT BASIN LEASE AREAS
BITselt and SchrrdIt Harbor
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FOURTH AMENDMENT TO LEASE AGREEMENT
BETWEEN DUBUQUE YACHT BASIN, INC. AND
THE CITY OF DUBUQUE
This Fourt Amendment to Lease Agreement is made and executed this
6' day of , 2004 A.D., between DUBUQUE YACHT BASIN,
INC., a cor ration or anized and existing under the laws of the State of Iowa,
with its principal place of business in Dubuque, Iowa, (YACHT BASIN) and the
CITY OF DUBUQUE, IOWA, a municipal corporation organized and existing under
the laws of the State of Iowa, through its duly authorized City Council (CITY):
WHEREAS, YACHT BASIN and CITY have heretofore entered into a Lease
Agreement dated April 8, 1970, as amended by a First Amendment dated
November 3, 1970, a Second Amendment dated February 12, 1975, and a Third
Amendment dated May 4, 2000, referred to collectively as the Lease Agreement
for the leased premises as follows:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5"' P.M. in the City of Dubuque, Dubuque County, Iowa,
more particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5t" P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21° 53'20"E 67.53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along a line parallel to 16 Street
extended;
Thence S 21°
Thence S 53°
Thence N 35°
Thence N 38°
Thence N 51°
Thence N 21°
53'00 "E 697.00 feet;
58'00 "E 1087.30 feet;
44'05 "E 326.95 feet;
31'00 "W 464.28 feet;
29'00 "E 60.12 feet;
55' 30 "W 349.92 feet;
Thence S 68° 06'40 "W 100.00 feet;
Thence N 21° 5 "W 631.56 feet to the point of beginning, containing
21.18 acres, more or less, subject to easements of record and not of record, as
shown by Lease Area A on the exhibit attached to the Third Amendment to Lease
Agreement; and
WHEREAS, CITY and YACHT BASIN now desire to further amend the Lease
Agreement to extend the termination date from March 31, 2020, to March 31,
2031.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Lease Agreement is hereby amended as follows:
1. Article (1) of the Lease Agreement is deleted and the following
substituted in lieu thereof: The term of the lease IS HEREBY EXTENDED FROM
March 31, 2020, to March 31, 2031. For the period through March 31, 2020, the
annual rates shall be as provided for in the April 8, 1970 Lease Agreement. For the
period commencing April 1, 2020, and ending on March 31, 2031, the annual rent
for the leased premises shall be the fair market rental as agreed by the parties.
If the parties cannot agree to the fair market rental at least ninety (90) days
prior to March 31, 2020, they shall jointly appoint an MAI real estate appraiser to
determine the market rate. If the 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 April 1, 2020 and ending on March
31, 2031. The appraisal reports shall be completed in accordance with the current
"Uniform Standards of Professional Appraisal Practice" as promulgated by the
Appraisal Standards Board of the Appraisal Foundation. The annual rent shall be
paid in four (4) equal installments by not later than the first day of April, August,
and December.
2. All other terms and conditions of the Lease Agreement shall remain in
full force and effect.
Attest by:
State of Iowa )
) ss:
County of Dubuque )
eanne F. Schneider, City Clerk
CITY OF DUBU
DUBUQUE YACHT BASIN
onald ' . Shan!
President
y
On this ,_ day of , 2002, before me, a Notary Public in and for
said state, personally appeared Donald P. Shanley, President of the Dubuque Yacht
Basin, to me known to be the person named in and who executed the for- a oing
instrument, and acknowledged that he executed the same as his volunt and
deed,
tat) Public in the State of Iowa
My Commission expires a -/ /-o o
r•
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5t P.M. in the City of Dubuque, Dubuque County, Iowa,
more particularly described follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5`" P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 21° 53'20 "E 67.53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along a line parallel to 16" Street
extended;
Thence N 21° 53'20 "W 631.56 feet to the point of beginning, containing
21.18 acres, more or Tess, subject to easements' of : record and not of record, as
shown by Lease Area A on the exhibit attached to the Third Amendment to Lease
Agreement;
1. Legal description for April 8, 1970 lease, as 'amended:
Thence S 21° 53'00 "E 697.00 feet;
Thence S 53° 58'00 "E 1087.30 feet;
Thence N 35° 44'05 "E 326.95 feet;
Thence N 38° 31'00 "W 464.28 feet;
Thence N 51° 29'00 "E 60.12 feet;
Thence N 21 55' 30 "W 349.92 feet;
Thence S 68° 06'40 "W 1 feet;
EXHIBIT 1 A -2
Thence S 68 °05'00 "W 1798.85 feet to a point;
1
•
•
EXHIBIT B -1
.. /iiilt7 • /1 /i14.4rf •
6.:`
C. r' .
LEASE AGREEMENT . •
• .. This LEASE AGREEMENT is made and entered into this
" ' WITNESSETH:
•
• DESCRIPTION OF PREMISES: • •• •• `' .•
' (a) The improved boat harbor known as .'Schmitt
Harbor" including the slope immediately adjacent
thereto extending from the top of the slope at all....
points surrounding the harbor to the water's edge; •'
(b) A tract of land 100 feet in width (including •
the Rev. Aloysius Schmitt Memorial) as outlined in .
blue on the Plat attached hereto marked Exhibit "A" '
and by this reference rnade a. part hereof. . •
•
day °fa) • , 1974, by and between the CITY OF DUBUQUE, `: •
IOWA, a municip corporation, through its BOARD OF DOCK COMMISSIONERS,
hereinafter called "Lessor ", and DUBUQUE YACHT BASIN, INC., an Iowa ,
corporation, hereinafter called "Lessee ", providing for Lessee to lease,
enter upon and use the following described real estate situated in the City of .�
•
Dubuque, Dubuqu'c County, Iowa, sometimes hereinafter referred to as the .j
"demised premises ";
•
2. OPTION TO LEASE: Lessor grants Lessee an exclusive option, •'` f;
for the initial term or during any renewal term of this Lease, to lease a tract :.. Fry
• of land consisting of approximately 3.47 acres (plus or minus) which is out- , .
lined in red on Exhibit A. Lesa shall pay to Lessor the sum of One ,._
Hundred ($100.00) Dollars per acre (or fraction thereof) per year as con- ';
sideration for said exclusive option. In the event Lessee elects to exercise
said exclusive option it shall do so by notice in writing to Lessor. In the
event Lessee so elects to exercise such option, the rental therefor shall be • •:,
Three Hundred and Fifty ($350. 00) Dollars per acre, or fraction thereof, per
year. Said annual rental shall be increased, at the option of Lessor, by
two per cent (2%) commencing with the sixth year: after the exercise of the ::•::z •
exclusive option.
3. RIGHT OF FIRST REFUSAL: Lessor has under its control a .' s.1
tract of land, consisting of approximately 14.66 acres (more or less), :
located generally south of 16th Street and to the northwest and northeast of :'' • ?f
Schmitt Harbor. Lessor agrees that it will not lease ur otherwise dispose ofdall :
or any portion of such tract of land to any person, firm or corporation whomso-
ever until: (1) Lessor is able to deliver, and has delivered, to Lessee the . i
tract of land described in paragraph 1(b) above; and (2) all of said 14.66 acres ?
(more or less) is ready and available for lease by Lessor. Upon the
occurrence of both of such events, Lessor grants to Lessee a right of first ,
refusal to lease such tract of land consisting of 14.66 acres (more or leas), or ••■
so much thereof as may be selected by Lessee which lies contiguous to any , .
other property leased by, Less from Lessor. The rental therefor shall . ..1 .
'
either be negotiated between Lessor and Lessee or be equal to the ,highest
bona fide and "arms- length" offer for the leasing thereof £rorri'.afiy'third . .•
person. There will be no fixed rental per acre except the sau'c of'$350. O0
•
[..;
•
'1.
When Lessor is able to deliver sole possession of the property de- .
'scribed in paragraph 1 (a) and (b); whether Lessee desires to exercise the
right of first refusal to lease the property described in paragraph 3 or not,
the ann.ual rental to be paid by I shall be as follows:
billing therefor from Lessor.
7. USE OF DEMISED PREMISES:
(a) Lessee shall use the demised premises for
• . .
•
the operation • • : • 1
• -1
•,.
• ..
..•
'• . •
-2- • •
per acre shall be a minimum rental. The minimum price'of $35000 per
. '
acre shall be subject to a Z% increase per year (not .compounded) commenc-
ing five (5) years after the occurrence of both of the events referred to in •
. • (I) and (2) of this paragraph.
4, CONDITION OF LEASE AND RENTAL: It is understood that
Lessor, due to construction and access considerations in the area of
Schmitt Harbor, is unable on the date of the execution hereof to lease to
. .
Lessee all of Schmitt Harbor as described in paragraph I (a) and any of the
property described in paragraph 1 (b). Until Lessor is able to deliver sole .
possession of all of said property to Lessee, the rental to be paid by Lessee
for Schmitt Harbor shall be fifty cents ($. 50) per lineal foot of said harbor • •
measured at the of the elope surrounding said harbor commencing at the
southeast end thereof, and extending around said harbor to a point 300 feet
from the northeast end thereof.
(a) One Dollar ($1.00) per lineal foot of all of Schmitt
Harbor at the top of the slope surrounding said harbor;
(b) Three Hundred Fifty Dollars ($350.00) per acre (or
fraction thereo() for the property described in paragiaph 1 (b). • . -
Said annual rental shall. increase, at the option of Lessor, by two •••• .
per cent (2%) commencing with.the sixth year after .sole posses-
sion thereof has been delivered to Lessee.
• • .1
• 5. TERM: The term of this Lease and of the properly described
herein, • except that property for which Lessee has an option or right of first
refusal, (hereinafter referred to as the "other property") shall be for a •
period of five (5) years commencing on the date when the Lessor delivers
to Lessee the sole possession and use of the property described in paragraph ;
1. (b) hereof, subject to the automatic, without notice of any kind by Lessee,
renewal of this Lease for nine (9) consecutive five (5) year periods thereafter. •••
Lessor and Lessee shall agree upon the date when the property described in '
paragraph 1 (b) hereof has been delivered to Lessee and said date shall be - 4
added as an addendum to this Lease and made a part hereof. The term of . .
this Lease for the other property, if so leased as is provided herein, shall
be the same, including the renewal terms, as the initiarterm of this Lease
• • A
which shall commence as is hereinabove provided. • 0
- '
11
6, PAYMENT. OF of the rental as is herein
provided shall b in quarterly installments ' clit Lag the original term or any
A7 . • ';
renewal term of this calendar days after receipt of a •
• •
• •
•
•
- 3-
(b) In the event Lessee shall construct any dock or docks
along the waterfront of the demised premises together with any necessary
piling for mooring pleasure craft, the same shall be constructed in accord-
ance with plans and specifications approved by Lessor and, if required, by
the U. S. Corps , of Engineers, Rock Island District.
8. WHARFAGE: • In the event Lessee shall use any portion of the -
demised premises for the receipt or shipping of commercial products, in
addition to the rental reserved herein Lessee agrees to pay Lessor such .
wharfage fees as maybe legally 'established from time to time by Dock Board
Ordinance in accordance with the provisions of 5384.7 of the. Code of Iowa,
or as such wharfage fees may be established pursuant to any applicable
provision of Chapter 1088, Laws of the 64th General Assembly (2nd session)
during the term of this Lease or any renewal thereof; provided, neverthe-
less, that Lessee shall not be obligated hereunder to pay Lessor any wharf-
age fees that would be more onerous as to rate of computation or manner
of payment than that applicable to any other person or firm to whom such
Dock Board Ordinance for the establishment of wharfage fees would apply,
nor shall. Lessee be required to pay any wharfage fees for materials, sup-
plies, or equipment which are used on the demised premises or sold and
delivered to bona fide customers of Lessee. The wharfage fees presently
enforced and equally applicable to all other persons and concerns using
facilities under the jurisdiction of the Department of Public Docks are
hereby represented by Lessor to be as follows:
of a pleasure boat marina and for any or all other purposes and uses Per- '
mitted by law including, but not limited to, the right to construct and main- ,
tain pleasure boat docking and storage facilitios,•sales, service and
manufacture of pleasure craft or vehicles of all kind, pleasure craft fueling
facilities, sale and display of pleasure craft and motors, and to erect
facilities for the sale and dispensing of food and beverages.
•
• 1
•
•
•
k
-.1
,
.
(a) Two and one -half cents (2 1 /2d) per ton of 2,000 pounds LI
on all bulk fluids received upon the demised premises by
water transportation, rail or motor transportation; or - .4
any other method of transportation;
(b) Five cents (5d) per ton of 2,000 pounds on all bulk solids ; it
received upon the demised premises rises by water, rail or . •
motor transportation; or any other method of transportation; :.
(c) Fifteen cents (15d) per ton of 2,000 pounds on all packaged •
goods received upon the demised premises by water, rail
or motor transportation (packaged goods as used herein !► ;.:-
shall not include bulk lumber which shall he considered bulk I
solids even though packaged in bundles, or any other method '
of transportation. : 1.
•
It is further - agreed that a minimum of Twvc Dollars ($2.00) per foot shah
be paid annually in advance for wharfage fees, provided her einabove.
On or before the 10th day of the month following each twelve month •
period during the term of this Lease or any renewal thereof, Lessee shall
submit to Lessor a statement showing the quantities of fluids, bulk solids ••. •. • ;
and package goods of every character (except those for which no wh:iifag2 N., ••' ;;''' •
:: `: •;
;ti
. • :•'-,
[._.' fee' is charged) received on the demised premises during the preceding year .:::
• ...
-4-
together with Lessee's remittance of thc wharfage fees provided for herein. • '..
9. TAXES: Lessor agrees to pay all general taxes that may be
-- .
levied against the demised premises; Lessee, however, agrees to pay all .....•
special assessments that may be levied or assessed against the demised
premises and agrees to pay all taxes levied or assessed against the improve-
LI inents placed thereon by Lessee. • :
->.
•.,
10. MAINTENANCE AND REPAIR BY LESSEE: All improvements •
1
j made by Lessee to the demised premises and all structures situated thereon
shall be erected, built and maintained in strict conformity with all applicable . •
Federal, State or Municipal Statutes, ordinances and regulations. Lessee
- 1 agrees to keep the demised premises and the building and structures thereon
in a neat and orderly condition at all times and in condition and repair and
•":4
I..: conform with all Federal, State and Municipal regulations in regard'to the
; • e
''
.•: use of the•demised premises, and the operation of the business conducted ..:• ...1 i
i thereon, and further agrees not to dump any trash or sweepings, or other . - •'"i
1 •waste material, in the channel along the demised premises,. or on the banks • :•1
thereof, in such a manner that the same may readily be washed into the • •
channel. '
. .
I.. •• 11. MAINTENANCE AND REPAIR BY LESSOR: Lessor shall retain • .•''.'
• - .... ,.
'a. strip of land forty-four (44) feet in width along the top of the slope of the .
I '' riprap and land fronting on the water adjacent thereto. Lessor also reserves
demised premises for the purpose of maintenance inspection and repair of ' • • .
the right and easement to enter upon the demised premises for the purpose . 1
of maintenance, inspection and repair of the riprap and land fronting on the •: 4
water not included within the said forty-four (44) foot strip of land, and it
. ••
• ."
shall be Lessor's obligation to maintain said riprap and land in good repair. • -
-
' The rights reserved by Lessor herein shall not prevent Lessee from using
such forty-four (44) foot strip for any purposes not inconsistent with such •
rights reserved by Lessor. At all times during the term of this Lease and
any renewal thereof Lessor shall maintain Schmitt Harbor at a useable
•
depth for such purposes as are permitted by this Lease.
!..• !
• ' •
•
. -
. •
••••■•
•
‘
".=
12. REMOVAL OF IMPROVEMENTS: • Upon the termination of this ' :••4
-Lease or any renewal term, for any cause whatsoever, Lessee shall have the •• 1
privilege, during the period of six (6) months after the termination of this
•
Lease, for any cause whatsoever, to remove any and all improvements made . ...;.;
••+:
by Lessee upon the demised premises, provided the same are free of land- t••
lord's liens, or other lien rights in Lessor. It is agreed that all such im-
provements are to remain, at all times, personal property without regard • :
to the way or manner that they may be affixed to the real estate. In the ' .4* : f i
event of such removal, the demised premises shall be restored to substan-
tially the same condition as they were at the commencement of the initial ..,
term of the within Lease. Failure to remove any of such improvements, or
other property of Lessee within such six (6) months period shall constitute • .• F
. •••'•1
an abandonment thereof unless the parties hereto otherwise agree in writing: •
Such abandonment shall not relieve Lessee from reimbursing Lessor for •
actual expense of removing such abandoned property. Lessee shall have .
free access at all times during the aforesaid six (6) month period to remove
from the demised premises its improvements. In the event of any holdover .g..
after the termination of this Lease by Lessee to remove its improvements, - . • ••,1
-1
• t•
-5-
I
•
•
•
as stated aforesaid, Lessee shall pay. Lessor rental for each month under
such holdover to be computed by dividing the annual rental by twelve (12).
13. QUIET ENJOYMENT: Lessor agrees and covenants that Lessee, : ••• •'
on payment of the rent herein reserved and performing the covenants and
conditions herein contained, shall peacefully and quietly have, hold and en-
joy the demised premises for the term hereof, including all renewals, and
including exclusive use of the waterfront abutting Schmitt Harbor and the
waterfront along the entire easterly side of the tract outlined in red on
• Exhibit "A."
14. ASSIGNMENT: During the term of this Lease, or any' extension • :`
thereof, the Lessee shall have the right to sublet or assign any of its rights,
in and to the deinised premises, to any person or concern with the prior
written approval of Lessor to the end that Lessor's interests shall be fully'
protected and which approval of Lessor shall not be unreasonably withheld..
l 15. INDEMNITY: Lessee agrees to indemnify and hold harmless the
! . Lessor from any and all. damages or claims whatsoever, actions or causes
of action in law or equity, or damages or claims for damages to persons or • ;'
property by reason of the Lessee's use or misuse of the demised premises
• or arising by reason of the erection or maintenance or existence of docks, • pile clusters erected by Lessee on the premises 1
I_' unloading facilities, herein
leased or in or on the waterfront abutting and serving the leased premises, • :�
and further agrees to reimburse Lessor for any and all damages to the water-
front, riprap, or slopes resulting from the maintenance, erection or exist- '
i ence of said improvements or.from shoaling resulting therefrom. Lessor ...
agrees to promptly give its notice to Lessee of any and all claims and actions,' ' '
as stated aforesaid, and to permit Lessee and /or its insurance carrier to :;i
investigate and defend the same. This indemnity shall apply only to those
portions of the demised premises over which Lessee exercises exclusive , •• • • • •,
possession and control.
• 16. INSURANCE: Lessee agrees to procure and maintain in force- ,.
during the term of this Lease, or any renewal thereof, a policy of liability ••
insurance insuring the liability of the City of Dubuque, by and through its a
Board of Dock Commissioners, Lessor, from any casualty claims arising
out of the leasing of the demised premises, or the operations conducted
thereon. Said liability policy shall •be written with minimum limits of not
less than $100, 000 for injury to any one person, not less than $300, 000 • • ;'I
for any one accident, and not less than $100,000 for property damage. •
Lessor shall be furnished with a Certificate of Insurance evidencing cover- :
age required by this paragraph and such Certificate shall provide that at '
least ten (10) days written notice shall be given to the City of Dubuque, by r 4 ••, . . 1
and through its Board of Dock Commissioners, prior to the cancellation o
material change of such coverage. The insurance carrier for the minimw -n,
i i•.4
limits herein specified shall be authorized to do business in the State of Iowa.
17. DEFAULT: If Lessee shall make default in the payment of the
rental hereunder or any part thereof, or shall make default in the perform- • -
ance of any of the other covenants herein contained, and such default shall -
continue for a period of thirty (30) days after written notice thereof, specify-
ing the default complained of, mailed to Lessee at its address in the City •,
of Dubuque, Iowa, by United States certified mail, with a copy mailed to
i . •. a
• Lessee at 1630 East 16th Street, Dubuque, Iowa, or at such other addres_s•• .. '•
``- • %;
%."'••;:...,
i
j
•
6
• i
as Lessee may from time to time specify in writing, then it shall be lawful •• '
for Lessor, at its election, to declare the term of this Lease ended 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 the 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.
18. RIGHTS RESERVED BY THE CITY OF DUBUQUE; Any rights
granted to Lessee are further subject to the prior right of the City of • .
Dubuque, Iowa, or its authorized agents or contractors to enter upon the
premises to carry on any work or activity necessary in connection with
the•construction of flood control works or devices.
19. MISCELLANEOUS: •
(a) Lessee shall have the privilege to sub - lease -aLl or any
portion of Schmitt Harbor to any other person, firm or corporation, with-
out having secured the prior approval of Lessor.
situated an said real estate, that it will stand in. the same position as the
lessee for the purposes of cleaning up the property, removing debris as
well as restoring the real estate to its former state.
• (b) • In the event that the Lessor shall elect to terminate this
Lease as the result of any act or failure to act o£ the Lessee which shall
constitute a breach of this Lease, the Lessor, prior to such termination, -
shall first notify the American Trust & Savings Bank, Dubuque, Iowa, in •
writing, of Lessor's intention to terminate this Lease, which notice shall
be given to said Bank by the Lessor at sixty (60 ) prior to the
date of such termination. Thereupon, the Bank shall have the right within
• i
such sixty (60) day period, but not the obligation, to cure such default
and to obtain all of the rights and assume all of the obligations of the
Lessee as if this Lease had not been breached by the Lessee. In the event
that said Bank so elects to cure such default it shall notify the Lessor, in.
writing,' prior to the expirationof said sixty (60) day period within which
said Bank shall. have the right to cure such default.
The parties hereto acknowledge and understand that such assignment • •• : •;:
shall be for security purposes and the assignee undertakes and agrees • '
and•covenants that in the event of any foreclosure sale of the property • .
(c) It is understood and agreed that the roadway now located .
around Schmitt Harbor shall be made available to the public for the purpose
of using the public boat ramp for launching and removal of water craft and •
for no other purpose. Upon the installation and opening of some other public ' ' , :•y"
way to said boat ramp, the said roadway now located around Schmitt Harbor
shall be available, exclusively, to Lessee, its sub - tenants and invitees. ,,
(d) With respect to the lease of the property described in Paragxaf l:.',1
• A • ..N /'
• y • • J ✓ • ;, ■
' ., fu ••'� nRJ
l(b) hercbf, it is agreed as follows:
•• (1) Lessee shall maintain the grounds immediately
• around the Memorial marker in a neat, clean and orderly • ,';
J I ` 1 condition;;
(2) Public access to said tract of land shall be
Ill : �controlled exclusively by Lessee, but Lessee shall permit • Y� public ceremonies at the Memorial on not more than four
i �i.- . occasions per year, upon such terms and conditions as may
• .!, yl be agreed upon between Lessee and the Navy League of •• `i
Dubuque, Iowa; • "
•
-
•� , .(3) Lessee reserves the right to prohibit public .::'...,:s
• entry to said tract at all times between the hours of dark- `:"
! Hass and sunrise and at all other times when, in the .
1 reasonable judgment of Lessee, the security of persons
'.• and property around Schmitt Harbor will or may be , '`'
adversely affected. Lessor agrees to cooperate with �. '
Lessee in maintaining adequate security in and around. - ' :.
• Schmitt Harbor as the result of any person or persons •` Il
entering upon said tract of land. 4
(o) Any and all notices 'required or permitted to be given here- , • ' •.
under,• whether applicable to Lessor or Lessee, shall be given by Certified. '
United States Mail and addressed as follows: .: •�
Lessor; City of Dubuque Board of Dock Commissioners
East Fourth and Riverfront
Dubuque, Iowa 52001
Lessee: Dubuque Yacht Basin, Inc.
1630 East 16th Street
I Dubuque, Iowa 52001
or to such other address as such party shall determine after due notice to, • '
• the other.
IN WITNESS WHEREOF, the parties hereto have caused the execution :'
of this Agreement, in duplicate, as of the day and year first above written. :.
4
[.
• r
•
•
CITY OF DUBUQUE, IOWA,
Its Board of Dock Cornmissivabrs
DUBUQUE YACHT BASIN, INC: r; •
By
• Its President and
r1
LESSOR
. ti
•
[1
f
c�
.J
•
1
S ATE O]' IOWA
) ss:
COUNTY OF DUBUQUE )
•
On this , day of ,--T ; A. D. 1974, before me, the • •
undersigned, a. Notary Public in and for s id County, in said State, personally': `•
appeared WILLIAM McELLHINEY, LESLIE FURUSETH and ? . . . • ; : ' q
Wes, to me personally known, who, being by me duly sworn, did say •. 1
that they havc appointed members of the BOARD OF DOCK COMMISSIONERS; •
that no seal has been procured by said Dock Commission, that said instrument
was signed on behalf of the said BOARD OF DOCK COMMISSIONERS by authority •
of its Board, and said William McEllhincy, Leslie Furuseth , •
ti� acknowledged •the execution of.saLd instrument to be the volunta:'ry aclr"•:•., .i
and deed of said BOARD OF DOCK COMMISSIONERS, by it and by the frr. •volun= ..„ "
tarily executed. • u' .,
w p- G Not u
'biic-- • ; :. s � _ .
in and for the State of IoWa. •" ..........
STATE OF IOWA
COUNTY OF DUBUQUE )
•
•
On this 2.9 day of / , A. D. , 1974, before me; the
'undersigned, a Notary Public and £or t ie State 'of Iowa, .personally appeared '
DONALD P. SHANELY, to me personally known, who being by me duly sworn,
did say that he Is the President and Secretary of said DUBUQUE YACHT BASIN,'
INC.; that no seal has been procured by the said corporation and that the said
DONALD P. SHANLEY, as such officer, acknowledged the execution of said • • .•
Instrument to be the voluntary act and deed of said corporation, by it and by
ss
him voluntarily executed. •
Notary Public
In and for the State of Iowa
�+' 4 ROBERT M. �ERTSCH
• • m' E M M1smo 4 EXPIRES
4E 1:1
1
t
i
E
�
•
•
I
I
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•"I off. , •11.•
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•
! 1 / LEASE NO.4.
20.72 ACRES
• ; • - 2.59 •
I ' r . . • .18.I3
:i ° 3.47 �'`
• 14.66 ACRES r
•
• to � ` . •
.1 7714
"
IoI ;` .
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.
• i
r ►o; SHEET I OF 2
\ 7' < ..{ •
.� / ••\ TRANSMISSION LINE
POLES ' a
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zo , , ` �cQ �' • z.xz ncltes �Fa s /q'
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LEASE NO. 2
f 0' •
23.20'
,
to � i �i t5
•
• 11'21;
Li 91.53 �+
•
12'S$
I ✓ LEASE.. NO. 1
• z .
19. .
•'1L BISSELL HARBOR
o !Ir _
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e
if
442
1
PEOSTA CHANNEL.
IS 'iM sr. I.
A
50 '
•
•
•
1 X
ope O� • .
` •
HARBOR
•
PLAT OF REVERAND ALOYSIUS : :;
SCHMITT HARBOR, (LEASE 1 .10..
3:l:lr. •
by nu. • . •t•. t, •, .1.r1•lt ;.c-r r .
that I'uut c i t ?rd tom! . ••
of UN .•ta'
1 JOI•'1 1— 4 /H1TE, '
L.S. Irr:a �f2?. ' r •
•
1RANSMISS
TOWER
•
: s,
• - •
.:
}
ti
•
•
•
Plat of Reverend Moysius Schmitt Harbor (Lease No, 4) in Unplatted
Slough and Mineral Lot 297 all in the City of Dubuque, 'Iowa. '
Dubuque, Iowa
Iowa. 'Th
• J.
• I:::y7 rid •.•t : i
tut 1 iti
of thu /h,ln td
Slgq,•,t
Sheet 2 of 2
October •, 1973
I hereby certify the Plat shown on Sheet 1 of 2 hereof is a true and
correct plat of the Reverend Aloysius Schmitt Harbor (Lease No.4)
In Unplatted Slough and Mineral Lot 297; all In the City of Dubuque,
( ,..... 1
john L. Wtit.te', ,'
' Licensed FrTesstoLral CII;I:Iittiglii
and Land Sureyel- •.:
•
•
Phil Pres
.1.•.p
t•41 „t , t••.
:H f.
a01-1N LA IYN
M , L. 3. l.nal Rol v.
i
•
5
FIRST AMENDMENT TO LEASE AGREEMENT DATED FEBRUARY 5, 1974
This First Amendment to Lea a Agreement dated February 5, 1974, is made and
executed this VrAr day of / /Yy , A.D. 2000, between DUBUQUE
YACHT BASIN, INC., a corporation organized and existing under the laws of the State
of Iowa, with its principal place of business in Dubuque, Iowa, hereinafter referred to
as "YACHT BASIN ", and the CITY OF DUBUQUE, IOWA, a municipal corporation
organized and existing under the laws of the State of Iowa, through its duly authorized
City Council, hereinafter referred to as "CITY ";
WITNESSETH:
WHEREAS, YACHT BASIN and CITY have heretofore entered into one certain
Lease Agreement dated February 5, 1974, whereby CITY leased to YACHT BASIN
certain real estate described in the aforesaid Lease Agreement dated February 5, 1974;
and
WHEREAS, CITY and YACHT BASIN wish to clarify the Leased limits of the
Lease Agreement as shown by Lease Area B on the exhibit attached to the First
Amendment to Lease Agreement;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the aforesaid Lease Agreement between YACHT BASIN and CITY dated February 5,
1974 is hereby amended to describe the "demised premises" as follows:
A part of an unplatted slough and parts. of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5th P.M. in the City of Dubuque, Dubuque County, Iowa, more
particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5th P.M., Dubuque County, Iowa;
Thence S 88 °37'20 "W 654.95 feet along the northerly line of said Section 19
(this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21 °53'20 "E 67.53 feet to an existing iron pipe at the northeasterly
corner of Lease Area A;
Thence S 21 °53'20 "E 603.22 feet, said point being the point of beginning;
Thence S 21 °53'20 "E 28.34 feet;
Thence N 68 °06'40 "E 100.00 feet;
Thence S 21°55 349.92 feet;
Thence S 51°29 60.12 feet;
Thence S 38 °31 "E 464.28 feet;
Thence S 35 °44'05 "W 326.95 feet;
Thence S 53 °58'00 "E 344.49 feet;
Thence N 36 °22'20 "E 814.10 feet;
Thence N 13 °25'00 "W 360.10 feet;
Thence N 32 °52'55 "E 107.98 feet;
Thence N 38 °24'35 "W 684.06 feet;
Thence S 52 °55'15 "W 287.74 feet;
Thence N 37 °04'45 "W 44.00 feet;
Thence S 53 °06'00 "W 100.00 feet;
Thence S 36 °52'55 "E 44.00 feet;
Thence S 52 °58'00 "W 359.45 feet to the paint of beginning, containing 20.78
acres, more or Tess, subject to easements of record and not of record,
as shown by Lease Area Bas shown on the exhibit attached to the First Amendment
to Lease Agreement.
CITY will perform a one -time dredging of the portion of Lease Area B east of the
dotted line indicating the existing location of the electrical transmission lines running
across said Lease Area and within the demised limits of Lease B, said dredging to occur
upon a timetable to be agreed upon between YACHT BASIN and CITY, but in any event
no later than November 30, 2000. CITY, pursuant to Paragraph 11 of the February 5,
1974 Lease shall at all times during the term of the Lease and any renewal thereof
maintain Schmitt Harbor at a usable depth for such purposes as are permitted by the
Lease, but said maintenance responsibilities shall not include any area east of the
dotted line indicating the existing location of the electrical transmission lines running
across said Lease Area, all as shown on the attached YACHT BASIN Lease Exhibit B.
CITY will maintain the spit located immediately north of Lease Area B and south
of the Schmitt Harbor Boat Ramp and also agrees not to remove it during the term of
the Yacht Basin lease.
IN WITNESS WHEREOF, the parties hereto have caused the due execution of this
First Amendment to Lease, in duplicate, as of the day and year first above written.
CITY OF DUBUQUE, IOWA
BY:
DUBUQUE YACHT BASIN, INC.
BY:
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CITY OF DUBUQUE. ENCIRCERING DEPARTMENT
DDRIPTUE.
P.m. WU
DUBUQUE YACHT BASIN LEASE AREAS
eine and StimaHrobor
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P.Ap•B
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22 L4,03
SECOND AMENDMENT TO LEASE AGREEMENT
BETWEEN DUBUQUE YACHT BASIN INC. AND
THE CITY OF DUBUQUE
This Seco d Amendment to Lease Agreement is made and executed this
VV day of , 200A A.D., between DUBUQUE YACHT BASIN,
INC., a cor ation org ized and existing under the laws of the State of Iowa,
with its principal place of business in Dubuque, Iowa (YACHT BASIN) and the CITY
OF DUBUQUE, IOWA, a municipal corporation organized and existing under the
laws of the State of Iowa, through its duly authorized City Council (CITY).
WHEREAS, YACHT BASIN and CITY have heretofore entered into a one
Lease Agreement dated February 5,1974, as amended by a First Amendment dated
May 4, 2000, referred to collectively as the Lease Agreement for the leased
premises as follows:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5' P.M. in the City of Dubuque, Dubuque County, Iowa,
more particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5" P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21° 53'20 "E 67.53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along a line parallel to 16`" Street
P ^ :. u ; extended;
Thence S 21° 53'00 "E 697.00 feet;
Thence S 53° 58'00 "E 1087.30 feet;
Thence N 35° 44'05 "E 326.95 feet;
Thence N 38° 31'00 "W 464.28 feet;
Thence N 51° 29'00 "E 60.12 feet;
Thence N 21° 55' 30 "W 349.92 feet;
Thence S 68° 06'40 "W 100.00 feet;
Thence N 21° 53'20 "W 631.56 feet to the paint of beginning, containing
21.18 acres, more or less, subject to easements of record and not of record, as
shown by Lease Area B on the exhibit attached to the First Amendment to Lease
Agreement; and
WHEREAS, CITY and YACHT BASIN now desire to further amend the Lease
Agreement by extending the termination date of March 31, 2024, to March 31,
2031.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Lease Agreement is hereby amended as follows:
1. Article 5 of the Lease Agreement is deleted and the following •
substituted in lieu thereof: The term of the lease is hereby extended from March
31, 2020, to March 31, 2031.
For the period through March 31, 2020, the annual rates shall be as provided
for in the February 5, 1974 Lease Agreement. For the period commencing April 1,
2020, and ending on March 31, 2031, the annual rent for the leased premises shall
be the fair market rental as agreed by the parties.
If the parties cannot agree to the fair market rental rate at least ninety (90)
days prior to March 31, 2020, they shall jointly appoint an MAI real estate
appraiser to determine the market rate. If the 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 April 1, 2020 and
ending on March 31, 2031. The appraisal reports (including definitions used) shall
be completed in accordance with the current "Uniform Standards of Professional
Appraisal Practice" as promulgated by the Appraisal Standards Board of the
Appraisal Foundation. The annual rent shall be paid in four (4) equal installments by
not later than the first day of April, August, and December.
Attest by:
J .. •
h.. 5
eanne F. Schneider, City Clerk •
State of Iowa )
) ss:
County of Dubuque )
President
All other terms and conditions of the Lease Agreement shall remain in full
force and effect.
CITY OF DUBUQU
DUBUQUE YACHT BASIN
onald P. hanley
On this '-r) day of , 2002, before me, a Notary Public in and for
saki state, personally appeared Donald P. Shanley, President of the Dubuque Yacht
Basin, to me known to be the person named in and who executed the foregoing
instrument, and acknowledged that he executed the same as his voluntary a
deed.
411111 ,ktuyefro
No = ry Public in the Sta a of Iowa
My Commission expires c
,/
My
EXHIBIT B
2. Legal description for February 5, 1974 lease, as amended:
A part of an unplatted slough and parts of ,Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5 P.M. in the City of Dubuque, Dubuque County, Iowa,
more particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5`.r' P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21° 53'20 "E 67,53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along a line parallel to 16 Street
extended;
Thence S 21° 53'00 "E 697,00 feet;
Thence S 53° 58'00 "E 1087.30 feet;
Thence N 35° 44'05 "E 326.95 feet;
Thence N 38° 31'00 "W 464.28 feet;
Thence N 51° 29'00 "E 60.12 feet;
Thence N 21° 55' 30 "W 349.92 feet;
Thence S 66 06'40 "W 100,00 feet;
Thence N 21° 53'20 "W 631.56 feet to the point of beginning, containing
21,18 acres, more or less, subject to easements of record and not of record,, as
shown by Lease Area B on the exhibit attached to the First Amendment to Lease
Agreement;
EXHIBIT C -1
LEASE AGREEMENT
This LEASE made and executed between the City of Dubuque, Iowa, a
municipal corporation (Lessor), and Dubuque Yacht Basin, Inc., an Iowa
corporation, with its principal place of business in Dubuque, Iowa (Lessee).
WHEREAS, Lessor is owner of a tract of land .consisting of approxi -
mately 66,000 square feet (more or less). 'The Leased Property, located on
Chaplain' Schmitt Memorial Island in the City of Dubuque, Iowa, and further
described on the attached Exhibit A, dated July 15, 1987, incorporated
herein by reference; and
WHEREAS, Lessor and Lessee are desirous of entering into an agree-
ment whereas Lessor leases to Lessee the Leased Property upon the terms and
conditions. hereinafter set forth:
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
AGREEMENTS OF LESSOR AND LESSEE, EACH TO THE OTHER, IT IS AGREED AS FOLLOWS:
ARTICLE I. TERM OF LEASE
The Lessor hereby leases to Lessee the Leased Property for a term
beginning Novarber 15, 1987 and ending February 5, 2024.
ARTICLE II. RENTAL
a. Annual Rental and Cumulative Cost of Living Adjustment.
The Annual Rental, as provided herein, shall be paid in quarterly
installments during each year of this lease.
During the first rental year, the Lessee agrees to pay .to Lessor
the sum of $6,600.00. During the second rental year and each rental year
thereafter during the term of this lease, Lessee agrees to pay to Lessor as
the Basic Rental during each rental year an amount equal to the product
obtained by multiplying $6,600.00 by a fraction, the numerator of which is
the "Consumer Price Index - Seasonally •Adjusted U.S. City Average for All
Items for All Urban Consumers (1967 = 100)" published monthly by the Bureau
of Labor Statistics of United States Department of Labor ( "CPI -U "), for
the first calendar month of each rental year, and the denominator of which
is the CPI -U for the first calendar month of the first rental year. In no .
instance shall annual 'rental be less than $6,600.00. Likewise, in no case
will annual rental in each of the respective years of the agreement exceed
the following amounts:
Year Year
1987 - $ 6,600.00 2006 - $16,677.87
1988 - 6,930.00 2007 - 17,511.76
1989 - 7,276.50 2008 - 18,387.35
1990 - 7,640.33 2009 - 19,306.72
1991 - 8,022.34 2010 - 20,272.06
1992 - 8,423.46 2011 - 21,285.66
1993 - 8,844.63 2012 - 22,349.94
1994 - 9,286.86 2013 - 23,467.44
1995 - 9,651.21 2014 - 24,640.81
1996 - 10,238.77 2015 - 25,872.85
1997 - 10,750.70 2016 27,166.49
1998 - 11,288.24 2017 - 28,524.81
1999 - 11,852.65 2018 - 29,951.05
2000 - 12,445.28 2019 - 31,448.60
2001 - 13,067.55 2020 - 33,021.03
2002 - 13,720.93 2021 - 34,672.08
2003 - 14,406.97 2022 36,405.68
2004 -. 15,127.32 2023 38,225.97
2005 = 15,883.69 2024 40,137.27
If the CPI -U is discontinued, the "Consumer Price Index - Seasonally
Adjusted U.S. City Average For All Items For Urban Wage Earners and Clerical
Workers (1967 = 100)" published by the Bureau of Labor Statistics of the
United States Department of Labor ("CPI -W'), shall be used for making the
computation referred to above. If the CPI -W is discontinued, comparable
statistics on purchasing power of the consumer dollar published by the
Bureau of Labor Statistics of the United States Department of Labor shall be
used for making the computation. If the Bureau of. Labor Statistics shall no
longer maintain statistics on the purchasing power of the consumer dollar,
comparable statistics published by a .responsible financial periodical or
recognized authority selected by the Lessor shall be used in making the
computation referred to above. If'the base year "1967 = 100" or any other
base year used in computing CPI -U is changed, the figure used in making the
adjustment referred to above shall be changed accordingly, so that all
increases in the CPI -U are taken into account not withstanding any change in
the base year. Lessee shall pay to Lessor the Basic Rental, as herein
provided and shall pay Cost of Living Adjustment no later than 30 days
following publication of the CPI -U for October of each year of this Lease
Agreement.
b. Wharfage.
In addition to the Annual Rental and Cumulative Cost of Living
Adjustment, Lessee shall continue to be subject annually to wharfage charges
as delineated in previous dated Lease Agreements between Lessor and Lessee.
Wharfage fees shall not be duplicated but shall be subject to payment either
under previous Lease or under this Lease Agreement.
-2-
ARTICLE III. ALTERATIONS AND IMPROVEMENTS
Lessee shall have the right and priviledge to erect upon the Leased
Property all necessary improvements for the operation of Lessee's business
as the same may be conducted from time to time, but all such structures and
their improvements shall be erected, built and maintained in- conformity with
all applicable federal, state and muncipal. statutes, regulations and
ordinances.
ARTICLE IV. ASSIGNMENT AND SUBLETTING
During the term of this Lease, or any extension thereof, the Lessee
shall have the right to sublet or.assign any of its rights, in and to the
demised premises, to any person or concern with the prior written approval
of Lessor to the end that Lessor's interests shall be fully protected and
which approval of Lessor shall not be unreasonably withheld.
ARTICLE V. MAINTENANCE OF SUBLEASED PROPERTY
• Lessee agrees to keep the Leased Property and any buildings or
structures now hereinafter constructed thereon, in a neat and orderly
condition at all times and to keep the same in good condition and repair and
to conform with all federal, state and municipal statutes, ordinances or
regulations in regard to the use or occupancy of the Leased Property.
ARTICLE VI. TAXES AND LICENSES
Lessee agrees to pay all taxes, licenses, imposts, special assess-
ments or other governmental charges, levied or assessed against the Leased
Property.
ARTICLE VII. REMOVAL OF IMPROVEMENTS
Upon termination of this lease, for any cause whatsoever, Lessee
shall have the privilege during the first six months after said termination,
to remove any and all improvements made by the Lessee upon the Leased
Property provided the same are free of landlord's liens or other l i e n rights
in favor of Lessor. It is the expressed understanding and agreement of
Lessor and Lessee that all such improvements are to remain personal property
without regard to the manner in which they may be affixed to the real
estate. In the event of such removal the Leased Property shall be restored
to essentially the same condition as existed prior to the construction of
such improvements. Failure to remove any of such improvements during said
six (6) months shall constitute an abandonment thereof unless the parties
hereto otherwise agree in writing.
In the event of any such abandonment, Lessor reserves the right to
remove or cause to remove said improvements at Lessee's expense and Lessee
agrees to pay the same.
-3-
ARTICLE VIII. INSURANCE
Lessee shall furnish Lessor with a copy of an insurance policy
written by a company authorized to do business in the State of Iowa insuring
Lessee and Lessor, as additional insured, and reflecting the following
coverage, with waivers of subrogation rights, and providing that there shall
be no cancellation or change in the policy unless Lessor shall have been
given ten (10) days, written notice by certified mail of such cancellation or
change thereof and Lessor has consented to such cancellation or changes
thereof; (a) Worker's Compensation Insurance; (b) Automobile Liability
Insurance with $1;000,000 bodily injury limits and $1,000,000 property
damage limits; and (c) Comprehensive General Liability Insurance with.
$1,000,000 bodily injury limits and $1,000,000 property damage limits for
each occurrence.
ARTICLE IX. PAYMENT OF RENT AND OTHER LEASE PAYMENTS
All rents and other lease payments due and payable hereunder shall
be delivered to Lessor at its office in Dubuque, Iowa on or before the due
date specified herein.
ARTICLE X. DEFAULT
If Lessee shall default on a payment of rental or other lease
payment, or shall default in the performance of any of the other covenants
herein contained and such defaults shall continue for a period of thirty
(30) days after written notice thereof, specifing the default complained -of,
mailed to Lessee by United States certified mail, return receipt requested,
then it shall be lawful for Lessor, of its election, to declare the term of
this Lease ended and to re -enter upon the Leased Property, with or without
process of law, and to expel and remove Lessee, or any person or persons -
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 con-
tinuance thereof for a period of thirty (30) days after written notice has
been given, said term shall be so ended, Lessee hereby convenants and agrees
to surrender and deliver up the Leased Property peaceably to the Lessor.
ARTICLE XI. CANCELLATION
Lessee shall make improvements of a value of not less than $200,000
on the leased property or adjoining 3.47 acres of leased property within
three years from date of execution of this"Lease Agreement .or this Lease
Agreement shall be automatically cancelled without any recourse of Lessee.
ARTICLE XII. INDEMNITY .
Lessee agrees to save, defend, indemnify and hold harmless the
Lessor from all damages or claims whatsoever, actions or causes of actions
in law or equity, or damages or claims for damages to persons or properties
-4-
by reason of the Lessee's use or misuse .of the demised premises. Lessor
agrees to give notice to Lessee of any and all such claims and actions, and
to permit Lessee or its insurance carrier to investigate and defend the
same.
ARTICLE XIII. EFFECTIVE, DATE OF THIS LEASE
The effective date of this lease shall be Nbvember.15, 1987
IN WITNESS WHEREOF, the parties have set their hands this 23rd •
day of November , 1987.
LESSOR
CITY OF DUBUQUE, IOWA
ATTEST:
MARY A.
VIS, CITY CLERK
LESSEE
DUBUQUE YACHT BASIN
State of Iowa
County of Dubuque
State of IOWA
County of Dubuque
)
)
)
On this 76th day of November , A.D. 19,0, before me, a Notary
Public in and for the State of Iowa, personally appeared
James E. Brady , Mayor of the City of Dubuque, Iowa, and
Mary A. Davis City Clerk of the City of Dubuque, Iowa, to me
known to be the identical persons named in and who executed the foregoing instru-
ment, and acknowledged that they executed the same as their voluntary act and deed.
!i ..:" Notary Public in and for the State of Iowa
s :
My commission expires: 8 -24 -89
i
ss:
)
)
ss:
On this 23 day of November , A.D. 1987, before me a Notary
Public in and for the State of Iowa. , •personally appeared.
Donald P. Shanley and of the Dulauque Yar.ht Ravin to
me known to be the identical persons named in and who executed the . foregoing
instrument, and acknowledged that they executed the same as their voluntary act
and deed.
Notary Public in•and for•the State of Iowa
My commission expires :. 8 -24 -89
66 sq. it.
s$:. 6
LEASE NO. 1
• 60
57'2.24
4 67. 24'
90. •A
REV. ALOYSIL:S HMIT
WMORtAl. 0.23 CRES
1.51 acres
239
50.82'
Exhibit "A"
5 AUG. 1987
BISSELL HARBOR
PEOSTA CHANNEL
INTERSECTION C. 16 ST. &
E.P.L. HICKORY St
1,5..A cos
2.5
TRANSMISSION LINE POLES
(5 POI.ES IV CENTERS
•
SCHMITT HARBOR
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- 6"
.e 6 0 5
eel
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3.47 ACRES
City Of Dubuque , Iowa
SCALE r 200'
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,TRANSMISSION
TOWER
•
AMENDMENT TO LEASE AGREEMENT
BETWEEN
CITY OF DUBUQUE, IOWA AND DUBUQUE YACHT BASIN, INC.
'OF DUBUQUE, IOWA
This AMENDMENT is to amend the lease agreement dated November 23, 1987 between
the City of Dubuque, Iowa, a municipal corporation (Lessor) And Dubuque Yacht
Basin, Inc., an Iowa Corporation with its principal place of business in
Dubuque, Iowa (Lessee).
Whereas Lessor and Lessee entered into an agreement for the lease of approxi—
mately 66,000 square feet (more or less) of land on Chaplain Schmitt Memorial
Island as shown on the attached Exhibit "A" dated July 15, 1987 and incorpor—
ated as part of the lease agreement. Whereas lessee is now desirous of leas—
ing additional land contiguous to land leased under the referenced lease
agreement. This additional land would represent 1280 square feet or a total
of 67,280 square feet (1.544 acres) of land on Chaplain Schmitt Memorial
Island as shown on the attached Exhibit dated December 4, 1987 and to be
considered as part of the amended lease agreement.
Whereas Article II, Rental, of lease agreement would be nullified by substitu—
ting the following Article II to be considered the new Article II of the
lease agreement between the City of Dubuque, Iowa and Dubuque Yacht Basin,
Inc. dated November 23, 1987.
"Article II. RENTAL
a. Annual Rental and Cumulative Cost of Living Adjustment.
The Annual Rental, as provided herein shall be paid in quarterly
installments during each year as of this lease.
During the first rental year, the Lessee agrees to pay to Lessor
the sum of $6,728.00. During the second rental year and each
rental year thereafter during the term of this lease, Lessee agrees
to pay to Lessor as the Base Rental during each rental year an
amount equal to the product obtained by multiplying $6,728.00
by a fraction, the numerator of which is the "Consumer Price Index
— Seasonally Adjusted U.S. City Average for All Items for All
Urban Consumers (1967 = 100)" published monthly by the Bureau
of Labor Statistics of the United States Department of Labor
( "CPI —U "), for the first calendar month of each rental year, and
the denominator of which is the CPI —U for the first calendar month
of the first rental year. In no instance shall annual rental
be less than $6,728.00. Likewise, in no case will annual rental
in each of the respective years of the agreement exceed the follow—
ing amounts:
YEAR YEAR
1987 $6,728.00 2006 $17,001.32
1988 7,064.40 2007 17,851.39
1989 7,417.62 2008 18,743.96
1990 7,788.50 2009 19,681.15
1991 8,177.93 2010 20,665.21
1992 8,586.82 2011 21,698.47
1993 9,016.1.6 2012 22,783.40
1994 9,.466.97 2013 23,922.57
1995 9,940.32 2014 25,118.69
1996 10,437.34 2015. 26,374.63
1997 10,959.20 2016 27,693.36
1998 11,507.16 2017 29,078.03
1999 12,082.52 2018 30,531.93
2000 12,686.65 2019 32,058.53
2001 13,320.98 2020 33,661.45
2002 13,987.03 2021 35,344.53
2003 14,686.38 2022 37,111.75
2004 15,420.70 2023 38,967.34
2005 16,191.73 2024 40,915.71
If the CPI —U is discontinued, the "Consumer Price Index — Season-
ally Adjusted U.S. City Average For All Items For Urban Wage Earn—
ers and Clerical Workers (1967 = 100)" published by the Bureau
of Labor Statistics of the United States Department of Labor
( "CPI —W "), shall be used for making the computation referred to
above. If the CPI —W is discontinued, comparable statistics on
purchasing power of the consumer dollar published by the Bureau
of Labor Statistics of the United States Department of Labor shall
be used for making the computation, If the Bureau of Labor Statis—
tics shall no longer maintain statistics on the purchasing power
of the consumer dollar, comparable statistics published by a re—
sponsible financial periodical or recognized authority selected
by the Lessor shall be used in making the computation referred
to above, If the base year "1967 = 100" or any other base year
used in computing CPI —U is changed the figure used in making
the adjustment referred to above shall be changed accordingly,
so that all increases in the CPI —U are taken into account not
withstanding any change in the base year. Lessee shall pay to
lessor the Basic Rental, as herein provided and shall pay Cost
of Living Adjustment no later than 30 days following publication
of the CPI —U for October of each year of this Lease Agreement.
In all other respects the lease agreement between the City of Dubuque and
Dubuque Yacht Basin, Inc. dated November 23, 1987 will remain in effect.
IN WITNESS WHEREOF the parties hereto have caused a due execution of this
agreement on the date of January 19, , 1987' .
DUBUQUE YACHT BASIN, INC.
45e
Donald
(Lessee)
CITY OF DUBUQUE, IOWA
State of Iowa
County of Dubuque
on this 4th day of January
Public in and for the State
James E. Brady -, Mayor
Mary A. Davis City Clerk
known to be the identical persons named in
ment, and acknowledged that they executed the
ra
•
•
State of Iowa
County of Dubuque
)
)
)
ss:
)
ss:
On this 1 of January
Public in and for the State
Dona A p_ 4he-nle, and
me known to be the identical persons named
instrument, and acknowledged that they
and deed.
, A.D. 1912p before me, a Notary
of Iowa, personally appeared
of the City of Dubuque, Iowa, and
of the City of Dubuque, Iowa, to me
and who executed the foregoing instru—
same as their voluntary act and deed.
Notary Public in and for the State of Iowa
My commission expires: 8 -24 -89
A.D. 19 $ before me a Notary
Iowa
of personally appeared
of the Dubuque Yacht Basin,Inc.t
in and who executed the foregoing
executed the same as their voluntary ac
A f,a2 - 4/41
Notary Public in and for the State of Iowa
My commission expires: 8 -24-89
(
Exhibit II iii II \/ < 'ry { . %4
/ 9
4 DEC. 1987 '
i
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col
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1
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1!1 AMEND ADDITION
1� 1280 Sq. ED Ft
20'Wide I► !
UTILITY EASEMEN
1 r. 414. ` 1.544Acres
1i. 1 667 1 280 se. it.
f
1 091.99 •
I 99
' LEASE NO. I
90.02'
____L_ 572,24 '
109
BISSELL HARBOR
„2
PEOSTA CHANNEL
INTERSECTION 16 ST. L
E,P.L, HICKORY 5T.
SCHMITT HARBOR
TRANSMISSION LINE POLES
(3 POLES IrcENTEAS)
/ hi s
O �` o ze S S �,O
3.47 ACRES
O• r »vt-
..— TRANSMIS ur
TOWER
0 592
City Of Dubuque , Iowa
SCALE i'• 200'
1 •
AMENDMENT TO LEASES
This AMENDMENT TO LEASES is ,made and executed this 7th day of
November A.D., 1986, by and between DUBUQUE YACHT BASIN, INC. a Corpora -
tion organized and existing under the virtue of the laws of the State of Iowa,
with its principal place of business in Dubuque, Iowa, hereinafter referred
to as "Yacht Basin" and the CITY OF DUBUQUE, IOWA, a Municipal Corporation
organized and existing under and by the virtue of the laws of the State of
Iowa, hereinafter referred to as "Dubuque ";
WHEREAS, Yacht Basin and Dubuque heretofore entered into two lease
agreements and amendments to lease agreements; the first lease agreement dated
April 1, 1970 and amended on November 3, 1970; the second lease agreement dated
February 5, 1974 and amended dated June 3, 1986 and the third lease dated Novem-
ber 23, 1987 with an amendment dated December 21, 1987; and
WHEREAS, Yacht Basin has requested the City of Dubuque to amend
all lease agreements and to rescind amendment to the lease agreement of February
5, 1974 dated June 3, 1986; and
WHEREAS, the amendment requested by YACHT BASIN is notification
of the First National Bank, Dubuque, Iowa, of any intentions of City of Dubuque
to terminate any of the leases; and
WHEREAS, Dubuque is willing to amend said leases as requested by
the YACHT BASIN.
NOW, THEREFORE, IN CONSIDERATION of one dollar ($1.00) and other and .good and
valuable consideration, the receipt and sufficiency of which is hereby acknow-
ledged,. the aforesaid Lease Agreements between YACHT BASIN and DUBUQUE dated
April 8, 1970, February 5, 1974 and. November 23, 1987 are further amended as
follows ;
In the event that City of Dubuque shall elect to terminate these
leases as a result of act for failure to act of the Lessee which will constitute
a breach of these leases, Dubuque, prior to the termination shall first notify
the First National Bank, Dubuque, Iowa, in .writing, of Dubuque's intention
to terminate these leases which notice shall be given to said bank by Dubuque
at least sixty (60) days prior to the date of such termination. Thereupon
said bank shall have the right within such sixty (60) day period, but not obli-
gation, to cure such default and to obtain all rights and assume all of the
obligations of the YACHT BASIN as if these leases had not been breached by
the YACHT BASIN. In the event that said bank so elects to cure such default
it shall notify Dubuque in writing prior to the expiration of such sixty (60)
day notice within which the bank shall have the right to cure such default,
In execution of the amendment to existing leases between YACHT BASIN
and DUBUQUE the amendment to the lease agreement of February 5, 1974 dated
June 30, 1986 is hereby terminated. Under this amendment the City of Dubuque
was to notify the American Trust & Savings Bank, Dubuque, Iowa, in writing
of Dubuque's intention to terminate the 1974 lease,
The parties hereto acknowledge and understand that such assignment
shall be for the security purposes and the assignee undertakes and agrees and
covenants that in the event of any foreclosure sale of the property situated
on said real estate, that it will stand in the same position as the YACHT BASIN
with respect to all terms and conditions of these leases.
IN WITNESS THEREOF, the parties have hereto executed this AMENDMENT
TO LEASES on the dates and years as identified in this Amendment,
ATTEST:
CITY OF DUBUQUE, IOWA, Lessor
Wy
W. Kenneth Gearhart, City Manager
DUBUQUE YACHT BASIN, INC., Lessee
BY /,(/: /" i��, %1
State of
County of Dubuque)
On this 22nd day of November , 1988, before me, the undersigned,
a Notary Public in and for State of Iowa, personally appeared W. Kenneth Gearhart
to me personally known, who, being by me duly sworn, did say that he is the
City Manager of the City of Dubuque and that said instrument was signed on
behalf of the City of Dubuque acknowledge the execution of said instrument
to be the voluntary act and deed of City of Dubuque by it and by them voluntar—
ily executed. '+' p , } �/ / �J�( w /{/
.� Ert C =, a , i.e . 4� Ali V
"i tary Public
01/P= In and for the State of Iowa
%
.1
State of Iowa
County of Dubuque) ``��
On this 4.24d day of ytimigA um - , 1988, before me, the undersigned, a
Notary Public in and for the said County and State, personally appeared Donald
P. Shanley to me personally known, who, being by me duly sworn, did say that
he is the President and Secretary of said DUBUQUE YACHT BASIN, INC., that no
seal has been procured by the said Corporation, that said instrument was signed
on behalf of said Corporation by authority of its Board of Directors; and that
said Donald P. Shanley as such officers acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation by it and by
him voluntarily executed.
1 4, 4 "fre)
Notary Public
In and for the State of Iowa
y.
THIRD AMENDMENT TO LEASE AGREEMENT DATED NOVEMBER 23, 1987
This Third Amendment to Lease Agreement dated November 23, 1987, is made
and executed this 4y day of /0• , A•D. 2000, between DUBUQUE
YACHT BASIN, INC., a corporation organized and existing under the laws of the State
of Iowa, with its principal place of business in Dubuque, Iowa, hereinafter referred to
as "YACHT BASIN ", and the CITY OF DUBUQUE, IOWA, a municipal corporation
organized and existing under the laws of the State of Iowa, through its duly authorized
City Council, hereinafter referred to as "CITY ";
WITNESSETH:
WHEREAS, YACHT BASIN and CITY have heretofore entered into one certain
Lease Agreement dated November 23, 1987, as amended by a First Amendment
December 21, 1987, and a Second Amendment dated January 19, 1988, whereby
CITY leased to YACHT BASIN certain real estate described in the aforesaid Lease
Agreement dated November 23, 1987; and
WHEREAS, CITY and YACHT BASIN wish to clarify the Leased limits of the
Lease Agreement as shown on Lease Area C on the exhibit to the Third Amendment
to Lease Agreement;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the aforesaid Lease Agreement between YACHT BASIN and CITY dated November 23,
1987 as amended by a First Amendment dated December 21, 1987, and a Second
Amendment dated January 19, 1 988, is hereby amended to describe the "demised
premises" as follows:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5th P.M. in the City of Dubuque, Dubuque County, Iowa, more
particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5th P.M., Dubuque County, Iowa;
Thence S 88 °37'20 "W 654.95 feet along the northerly Tine of said Section 19
(this is an assumed bearing for this description only);
Thence 5 68 °05'00 "W 1798.85 feet to a point;
Thence S 21 °53'20 "E 67.53 feet to an existing iron pipe at the northeasterly
corner of Lease Area A, said point being the point of beginning;
Thence S 21 °53'20 "E 603.22 feet;
I
Thence N 52 °58 "E 178.79 feet;
Thence N 37 °11 "W 152.35 feet;
Thence N 30 °53'00 "W 414.70 feet;
Thence S 68 °05'00 "W 67.55 feet to the point of beginning, containing 1.55
acres, more or Tess, subject to easements of record and not of record,
as shown by Lease Area C on the exhibit attached to the Third Amendment to Lease
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the due execution of this
Third Amendment to Lease Agreement, in duplicate, as of the day and year first above
written.
CITY OF DJISUQUE, IOWA
BY:
DUBUQUE YACHT BASIN, INC.
BY:
Donald P. Shanley, Prgs
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an' Of DUBUQUE. ENGINEERING DEDI.FUNENT
DUBUQUE. BMA
DUBUQUE YACHT BASIN LEASE AREAS
DFII Itnt1 Schmitt Herb:kr
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FOURTH AMENDMENT TO LEASE AGREEMENT
BETWEEN DUBUQUE YACHT BASIN INC. AND
THE CITY OF DUBUQUE
This Four. h Amendment to Lease Agreement is made and executed this
c 9/,,04d day of ., 20Q3 A.D., between DUBUQUE YACHT BASIN,
INC., a cor ration or anized and existing under the laws of the State of Iowa,
with its principal place of business in Dubuque, Iowa, hereinafter referred as
"YACHT BASIN ", and the CITY OF DUBUQUE, IOWA, a municipal corporation
organized and existing under the laws of the State of Iowa, through its duly
authorized City Council, hereinafter referred to as "CITY ";
WITNESSTH: Whereas, YACHT BASIN and CITY have heretofore entered
into one certain lease agreement dated November 23, 1987, as amended by a First
Amendment dated December 21, 1987, a Second Amendment dated January 18,
1988, and a Third Amendment dated May 4, 2000, referred to collectively as the
Lease Agreement for the leased premises as follows:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
Section 19, T89N, R3E, 5t P.M. In the City of Dubuque, Dubuque County, Iowa,
more particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5t P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 68 °05`00 "W 1798.85 feet to a point;
Thence S 21° 53'20 "E 67.53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along a line parallel to 16th Street
extended;
Thence 5 21° 53'00 "E 697.00 feet;
Thence S 53° 58'00 "E 1087.30 feet;
Thence N 35° 44'05 "E 326.95 feet;
Thence N 38° 31'00 "W 464.28 feet;
Thence N 51° 29'00 "E 60.12 feet;
Thence N 21° 55' 30 "W 349.92 feet;
Thence S 68° 06'40 "W 100.00 feet;
Thence N 21° 53'20 "W 631.56 feet to the point of beginning, containing
21.18 acres, more or less, subject to easements of record and not of record, as
shown by Lease Area C on the exhibit attached to the Third Amendment to Lease
Agreement; and
WHEREAS, CITY and YACHT BASIN now desire to further amend the Lease
Agreement from a termination date of February 5, 2024, to March 31, 2031.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the aforesaid Lease Agreement between YACHT BASIN and CITY
dated November 23, 1987, and as amended by a First Amendment dated
December 21, 1987, a Second Amendment dated January 19, 1988, and a Third
Amendment dated May 4, 2000; is hereby amended as follows:
1. Article 1 of the Lease Agreement is deleted and the following
substituted in lieu thereof: The term of the lease is hereby extended from February
5, 2024 to March 31, 2031, For the period through February 5, 2024, the annual
rates shall be as provided for in the November 23, 1987 Lease Agreement. For the
period commencing February 6, 2024, and ending on March 31, 2031, the annual
rent for the leased premises shall be at the then current fair market rates as agreed
by the parties or as determined by the following process.
If the parties cannot agree to the fair market rental rate at least ninety (90)
days prior to February 5, 2024, they shall jointly appoint an MAI real estate
appraiser to determine the market rate. If the parties cannot agree on an appraiser,
each shall appoint his 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 February 6, 2024
and ending on March 31, 2031. This appraisal report (including definitions used)
shall be completed in accordance with the current "Uniform Standards of
Professional Appraisal Practice" as promulgated by the Appraisal Standards Board
of the Appraisal Foundation. The annual rent shall be paid in four (4) equal
installments by not later than the first day of April, and the first day of each quarter
thereafter.
All the terms and conditions of the lease agreement dated November 23,
1987, as amended, shall remain in full force and effe
Attest by:
m ar /./".��C
anne F. Schneider, City Clerk
CI Y OF DUBUQU
DUBUQUE YACHT BASIN
Donald P. hanley
President
State of Iowa )
)ss:
County of Dubuque )
On this Zia day of , 2002, before me, a Notary Public in and for
said state, personally appeared Donald P. Shanley, President of the Dubuque Yacht
Basin, to me known to be the person named in and who executed the foregoing
instrument, and acknowledged that he executed the same as his voluntary act
deed.
N • Pu lic in a St- a of Iowa •
My Commission expires -oza
EXHIBIT; C -2
3. Legal description for November 27, 1987 lease, as amended:
A part of an unplatted slough and parts of Mineral Lots 298 and 299 all in
:Section 19, T89,N, R3E, 5` P,M, in the City of Dubuque, Dubuque County, Iowa,
„more particularly described as follows:
Commencing as a point of reference at the northeast corner of Section 19,
T89N, R3E, 5` P.M., Dubuque County, Iowa;
Thence S 88° 37'20 "W 654.95 feet along the northerly line of said Section
19 (this is an assumed bearing for this description only);
Thence S 68 °05'00 "W 1798.85 feet to a point;
Thence S 21° 53'20 "E 67.53 feet to an existing iron pipe at the
northeasterly corner of Lease Area A, said point being the point of beginning;
Thence S 68° 05'00 "W 678.00 feet along' a line parallel to 16' Street
extended;
Thence 5 21' 53'00 "E 697.00 feet;
Thence S 53° 58'00 "E 1087.30 feet;
Thence N 35° 44'05 "E 326.95 feet;
Thence N 38° 31'00 "W 464.28 feet:
Thence N 51° 29'00 "E 60.12 feet;
Thence N 21° 55' 30 "W 349.92 feet;
Thence S 68° 06'40"W feet;
Thence N 21° 53`20 "W 631,56 feet to the point of beginning, containing
21.18 acres, more or Tess, subject to easements of record and not of record, as
shown by Lease Area C' on the exhibit attached to the Third Amendment to Lease,
Agreement;