Dbq Yacht Basin Lease Agreement
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MEMORANDUM
July 14, 2004
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Yacht Basin, Inc. Lease Assignment
Acting Public Works Director/City Engineer Gus Psihoyos is recommending that the City
consent to assignment of the lease for Dubuque Yacht Basin, Inc. from U.S. Bank to
American Trust.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Mich~el C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, Acting Public Works Director/City Engineer
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MEMORANDUM
July 12, 2004
FROM:
Michael C. Van Milligen, City Manager
Gus Psihoyos, Acting Public Works Director ýj Q
TO:
SUBJECT: Dubuque Yacht Basin, Inc. Lease Assignment
INTRODUCTION
This is in response to the July 6, 2004 request of Attorney F. Gilloon, on behalf of
the Dubuque Yacht Basin, Inc. to the City Council to approve an assignment of
the existing three lease agreements from US Bank to American Trust & Savings
Bank.
DISCUSSION
The Dubuque Yacht Basin, Inc. currently leases property from the City of
Dubuque pursuant to the following leases:
1. April 8, 1970
2. February 5, 1974
3. November 23, 1987
The Dubuque Yacht Basin, Inc. is assigning its leases from US Bank to American
Trust & Savings Bank (American Trust). The assignment transfers and assigns
to American Trust all of the Dubuque Yacht Basin's rights, title, and interest in the
above leases as security on a loan for the benefit of the business conducted on
the leased premises.
The existing leases with the Dubuque Yacht Basin, Inc. allow the assignment of
the leases with the prior written approval of the City, to the extent that the City's
interest should be fully protected. The leases also provide that the City shall not
unreasonably withhold such assignment.
RECOMMENDATION
The requested lease assignment has been reviewed by the City Corporation
Counsel as to its legal form, and I would recommend approval of the lease
assignment to American Trust & Savings Bank.
ACTION TO BE TAKEN
The City Council is requested to adopt the attached resolution consenting to the
assignment of the leases between Dubuque Yacht Basin, Inc. and American
Trust & Savings Bank.
/
RESOLUTION NO. 280-04
CONSENTING TO THE ASSIGNMENT OF CERTAIN LEASES BETWEEN THE
CITY OF DUBUQUE, IOWA, AND DUBUQUE YACHT BASIN, INC. TO
AMERICAN TRUST & SAVINGS BANK
Whereas, the City of Dubuque, Iowa (City) has leased to Dubuque Yacht
Basin, Inc., an Iowa corporation (Yacht Basin) certain real property located at
1630 E. 16th Street, Dubuque, Iowa pursuant to lease agreements dated April 8,
1970, February 5,1974, and November 23, 1987; and
Whereas, American Trust & Savings Bank has agreed to lend Yacht Basin
certain sums of money for the benefit of its business conducted upon the leased
premises; and
Whereas, Yacht Basin has requested that City consent to the assignments
of the lease agreements to American Trust & Savings Bank as security for
American Trust & Savings Bank's loans to Yacht Basin; and
Whereas, the lease agreements, including all amendments, extensions
and renewals, allow assignments of the leases by Yacht Basin with the consent
City; and
Whereas, the City Council of the City of Dubuque, Iowa, has determined
that it is in the best interests of the City to consent to such assignments.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
Section 1. The Assignment of Real Estate Lease Agreement attached
hereto by Dubuque Yacht Basin, Inc. to American Trust & Savings Bank is
hereby approved.
Section 2. The Mayor is authorized and directed to sign said
Assignment of Real Estate Lease Agreement on behalf of the City of Dubuque,
Iowa.
Passed, approved and adopted this ~ day of July
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BARRY A. LINDAHL, E
CORPORATION COUNSE , CITY OF DUBUQUE
MEMO
To:
Michael C. Van Milligen
City Manager
DATE:
July 6, 2004
RE:
Dubuque Yacht Basin, Inc.
Mike:
Dubuque Yacht Basin, Inc. leases property from the City under three lease agreements.
In the past, the leases have been assigned as collateral for loans to US Bank. Dubuque
Yacht Basin, Inc. is changing lenders from US Band to American Trust. The leases
require the City's consent to any assignment of the leases.
Enclosed is a copy of the Assignment Of Lease Agreements.
Attorney Arthur F. Gilloon, on behalf of Dubuque Yacht Basin, Inc., is requesting the
City's consent to the assignment and that it be placed on the agenda for the July 19,
2004 City Council meeting.
Enclosure
cc: Cindy Steinhauser, Assistant City Manger
....-Gus Psihoyos, Acting Public Works Director
NORMAN, GILLOON,
WRIGHT & HAMEL, P.C.
Attorneys
Wayne A. Norman, Jr."
Arthur F. Gilloon"
E. David Wright"
Dirk J. Hamel""
James A. Willis """
Please Reply To:
P.O. Box 857
Dubnque, IA 52004-0857
E-Mail: nl!Whlaw@pcii.net
Writer's .,.mail address:
a.illoon(âldholaw.com
July 14, 2004
Barry A. Lindahl
Corporation Counsel
City of Dubuque
Suite 330, 300 Main Street
Dubuque, IA 52001
Dear Barry:
Here are two original "Assignment of Lease Agreement" documents as approved
by you in our prior emails. I have attached an "Exhibit A" to each, setting out the real
estate covered by the leases. I took the legals from the last round of lease amendments
in which we described the leased areas exactly.
As previously discussed, if you could see to the presentation of these to the Council
members and their signing, I will then get them signed at the loan closing with American
Trust.
Thanks for your help, Barry.
Please call if you have any questions.
5;"""",ly, IJ ¡f.
ArthurF.~
AFG/sf
Encls.
Security Building /800 Main Street / Dubuque, IA 52001/ (563) 556-6433/ Fax: (563) 556-7706
* Also Licensed in Wisconsin /** Also Licensed in Illinois /*** Also Licensed in California
Prepared by: Arthur F. GiHoon, Normao, GiHoon, Wright & Hamel, P.C., 800 Main Street, P.O. Box 857, Dubuque, IA 52004-0857
(563) 556-6433
SPACE ABOVE THIS LfNE
FOR RECORDER
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF TillS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONL YTHOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMJ:SES NOT CONTAINED IN TillS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF TillS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT.
Re:
Real estate legally described on attached Exhibit A.
ASSIGNMENT OF LEASE AGREEMENT
This Assignment of Lease Agreement ("Agreement") is effective July, 2004, among Dnbuque
Yacht Basin, Inc , an Iowa corporation, Lessee, ( "Borrower"), City of Dubuque, Iowa ("Lessor") and
American Trust & Savings Bank ("Bank").
1.
Recitals. Borrower has leased ftom Lessor certain reai property under three lease agreements
originally dated April 8,1970, February 5,1974, and November 23,1987. All three of these leases
have been amended over the years, by various amendments dated November 3, 1970, February
12,1975, May 4,2000, December 21, 1987, January 19,1988, May4,2000 and December 17,2001.
The Bank has authorized the making a loan to the Borrower by virtue of a Loan Agreement executed
by the Borrower and the Bank of even date ("Loan"). The Loan is for the benefit of both Borrower
and Lessor insofar as ftmds ftom the Loan will be used for the benefit ofthe business conducted on
the leased premises. In consideration of the promises contained in this Agreement, and of the
disbursement of part or all of the Loan by Bank, Borrower, with the consent of Lessor, assigns to
Bank the leases referred to above during the remainder of their term, including all extensions and
renewals.
Page I of 5
2.
Borrower and Lessor Further Covenant and Agree:
2.1.
2.2.
2.3.
2.4.
Borrower is not now in default in the performance of the Lease; Borrower and Lessor will
each perform the covenants and conditions required of it by the Lease for the term of the
loan and any extensions or renewals.
Borrower and/or Lessor will not modify or terminate the Lease without the prior written
consent of Bank, which consent shall not be unreasonably withheld.
If Borrower defaults under the terms of the Lease, Lessor shall have the right to terminate
the Lease according to its terms. However, Lessor shall first give Bank sixty (60) days'
written notice of such default and the right, at the option of Bank, during such period, to
cure such default. During the sixty (60) day period, Lessor will take no action to enforce
its claim arising ftom such default without Bank's prior written consent.
If Borrower defaults in the performance of any of its obligations under the Loans, any
renewals or extensions, or of any related agreement, then Bank, at its option, may, without
notice, using such force as may be necessary, enter said leased premises and do anyone or
more of the following: (1) Remove all personal property of Borrower that is pledged as
collateral for the Loans; (2) Sell such personal property; (3) Transfer and assign the Lease
and Borrower's rights in it to parties satisfactory to Bank and Lessor, and upon assignment
the obligations of the Lease shall be binding on such transferees. In the event that Bank
undertakes the options provided in Subsections (I) or (2), it shall have no obligation other
than payment of rent accruing during the period of its possession of the premises. In the
event that Bank transfers the Lease as provided in Subsection (3), Bank 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.
Subordination. Lessor subordinates any lien it has or may have on the personal property of
Borrower that is or may be security for the Loans to Bank's liens on Borrower's property, and to
Bank's rights under this Agreement. This subordination shall be effective regardless of whether or
not the collateral constitutes fixtures. For the purposes of this Agreement, the term "liens"
specifically includes any Landlord's Lien under Chapter 570, Code of Iowa, as amended, to which
the Lessor may be entitled.
3.
4.
Warranty of Title. Lessor warrants that title to the leased premises is held by it in fee simple and
that it has full power and authority to enter into this Agreement.
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:
5.
Page 2 of 5
6.
If to Bank:
American Trust & Savings Bank
895 Main Street
Post Office Box 938
Dubuque, IA 52004-0938
At1n: Thomas J. Utzig, Executive Vice President
If to Borrower:
Dubuqne Yacht Basin, Inc.
1630 East 16th Street
Dubuque, IA 52001
At1n: David H. Pretasky
Ifto Lessor:
City of Dubuque
City Hall
50 West 13th Street
Dubuque, IA 52001
At1n.: Michael C. Van Milligen, City Manager
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.
7.
Binding Effect; 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 Bank , which consent shall not
be unreasonably withheld.
8.
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 ofthis
Agreement.
9.
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
maybe 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.
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).
Page 3 of 5
10.1.
No acceptance bya 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 party knows of the breach when it accepts such payment or
performance.
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 ftom
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.
11.
Attorney's Fees. If any action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpretthe provisions ofthis Agreement, the prevailing party shall be entitled
torecoverreasonable attorney's fees and costs oflitigation ftom 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.
Effective as of the date first written above.
Dubuque Yacht Basin, Inc.
City of Dubuque
By:
By:
Terrance M. Duggan, Mayor
David H. Pretsky , President
By:
Jeanne F. Schneider, City Clerk
American Trnst & Savings Bank
By:
Thomas 1. Utzig , Executive Vice President
Page 4 of 5
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this - day of , 2004, before me, the undersigned, a Notary Public in and for
the State ofIowa, personally appeared David H. Pretasky, to me personally lmown, who, being by me duly
sworn, did say that he is the President of Dubuque Yacht Basin, mc., 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 Angela C. Simon, as President aclmowledged
the execution of the foregoing instrument to be the voluntary act and deed of the corporation, by it and by
him voluntarily executed.
Notary Public, State ofIowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this - day of ,2004, before me, the undersigned, a Notary Public in and
for the State ofIowa, personally appeared Terrance M. Duggan and Jeanne F. Schneider, to me personally
lmown, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, ofthe
City of Dubuque, Iowa, executing the within and foregoing instrument, that no seal has been procured by
the City; that said instrument was signed on behalf of the City by authority of the City Council; and that
Terrance M. Duggan and Jeanne F. Schneider, as Mayor and City Clerk, aclmowledged the execution of the
foregoing instrument to be the voluntary act and deed of the City, by it and by them voluntarily executed.
Notary Public, State of Iowa
STATE OF IOWA, DUBUQUE COUNTY) ss:
On this - day of ,2004, before me, the undersigned, a Notary Public in and
for the StateofIowa, personally appeared Thomas J. Utzig, to me personallylmown, who, being by me duly
sworn, did say that he is an Executive Vice President of American Trust & Savings Bank, executing the
within and foregoing instrument, that the seal which appears below is the seal of the corporation; that said
instrument was signed on behalf of the corporation by authority of its Board of Directors; and that Thomas
J. Utzig, as Executive Vice President, aclmowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by him voluntarily executed.
Notary Public, State ofIowa
Page 5 of 5
EXHIBIT A
1.
Legal description for April 8, 1970 lease, as 'amended:
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, low;),
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 þeginning;
Thence S 68° 05'00"W 678.00 feet along a line parallel to 161h Street
extended;
Thence S 21" 53'00"E 697.00 feet;
Thence S 53° 58'00"E 1 087.30 feet;
Thence N 35° 44'05"E 326.95 feet;
Thence N 38° 31 'OO"W 464.28 feet;
Thence N 51 ° 29'00"E 60.12 feet;
Thence N 21" 55' 30"W 349.92 feet;
Thence S 680 06' 40"W 1 00.00 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;
EXHIBIT A
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, 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 feetto apoint;
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 161h Street
extended;
Thence S 210 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 'OO"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 begiñning, 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; .
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EXHIBIT A
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, T89N, R3E, 5th P.M. in tt:Je City of Dubuque, Dubuque County, Iowa,
more particularly' described as follows:'
Comrnencing 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°Q5'QQ"W 1798.85 feet to a point;
Thence S 210 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'OQ"W 678.00 feet along' a line parallel to 16th Street
extended;
Thence S 21" 53'00"E 697.00 feet;
Thence S 530 58'00"E 1087.30 feet;
Thence N 35° 44'05"E 326.95 feet;
Thence N 38° 31 'OO"W 464.28 feet;
Thence N 510 29'00"E 60.12 feet;
Thence N 21° 55' 30"W 349.92 feet;
. Thence S 68° 06'40"W100.00 feet;
Thence N 21 ° 53'20"W 631.56 feet to the point of be9inning, 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 Arnendment to Lease
Agreement;