Dubuque Casino Hotel_Assignment of Lease Agreement
Page 1 of 1
Kevin Firnstahl - Dubuque Casino Hotel, LLC/Dupaco Communityh Credit Union--assignment
From: "Brian Kane" <bkane@kanenorbylaw.com>
To: "Barry Lindahl" <balesq@cityofdubuque.org>
Date: 11/4/2011 2:28 PM
Subject: Dubuque Casino Hotel, LLC/Dupaco Communityh Credit Union--assignment
Barry,
Please withdraw the above request to approve the assignment in connection with the refinancing of the existing
loan. The parties are not going forward with that transaction. Please advise if any further notice or information
is required. Thanks.
BRIAN J. KANE
KANE, NORBY & REDDICK, P.C.
2100 Asbury Road, Suite 2
Dubuque IA 52001
Phone 563-582-7980
Fax: 563-582-5312
This email (including any attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. Sec. 2510-2521, is confidential
and may contain attorney-client materials and/or attorney work product, legally privileged and protected from disclosure. This email is
intended only for the addressee named above. If you are not the intended recipient, you are hereby notified that any retention,
dissemination, distribution, or copying of this communication is strictly prohibited. Please call us immediately at 1-563-582-7980 and ask
to speak to the sender or reply to the sender that you have received the message in error, then delete it and any and all copies of it. If
you are a client of our firm, this email confirms that communication to you by email is an acceptable way to transmit attorney-client
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Except as otherwise agreed in writing, any discussion of tax matters contained herein is not intended or written to be used, and cannot
be used, for the purpose of avoiding any penalties that may be imposed under federal tax laws.
file://C:\Documents and Settings\kfirnsta\Local Settings\Temp\XPgrpwise\4EB407B5DB...11/4/2011
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Casino Hotel Assignment of Lease
DATE: November 3, 2011
Dubuque
kdkil
AlFamedcaCity
Ilir
2007
City Attorney Barry Lindahl is recommending approval of the Dubuque Casino Hotel
assignment of lease.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
THE CITY OF
DUB UE MEMORANDUM
Masterpiece on the Mississippi
Mb
BARRY LINDA
CITY ATTORN
To: Micha -I C. Van Milligen
City M nager
DATE: November 1, 2011
RE: Dubuque Casino Hotel Assignment of Lease
The City of Dubuque entered into a Lease Agreement with Dubuque Casino Hotel, LLC,
for the lease of certain real estate on Schmitt Island for the purpose of the construction
of a hotel, restaurant and other improvements. The lease is for a term of forty (40)
years after the issuance of the Certificate of Completion but in no event later than July
1, 2045.
Dubuque Casino Hotel, LLC has requested the City's consent to an assignment of the
lease to DuPaco Community Credit Union as security for the financing of Dubuque
Casino Hotel, LLC's current indebtedness. A copy of the Assignment of Lease
Agreement is attached.
The City has previously executed and delivered a similar Assignment of Lease
Agreement to Dubuque Casino Hotel, LLC in connection with its current financing. The
form of this Assignment of Lease Agreement is identical in all material respects with the
form previously approved and executed by the City.
I recommend that the Assignment of Lease Agreement be submitted to the City Council
for consideration and approval.
BAL:tls
Attachment
cc: Brian Kane, Esq.
F: \USERS \tsteckle \Lindahl \DRA Casino Hotel\ MVM_ DubuqueCasinoHotelAssignementOfLease _110111.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
Brian J. Kane
Les V. Reddick*
Brad J. Heying
Todd L. Stevenson*
Kevin T. Deeny **
Bradley B. Kane
Joseph P. Kane
Nicholas J. Kane
All admitted in Iowa
*Also admitted in Illinois
* *Also admitted in Wisconsin
Barry A. Lindahl, Esq.
Corporation Counsel
300 Main St., Ste. 330
Harbor View Place
Dubuque, IA 52001
KANE, NORBY & REDDICK, P.C.
ATTORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IA 52001 -3091
October 28, 2011
Re: Dubuque Casino Hotel ( "DCH ") - Refinancing
Dear Barry:
Retired:
Gary K. Norby
Phone: (563) 582 -7980
Facsimile: (563) 582 -5312
E -mail: bkane @kanenorbylaw.com
In connection with refinancing of its existing indebtedness, DCH's lender desires that it
assign (to the lender) DCH's interest in its lease with the City of Dubuque. Enclosed please find the
form Assignment of Lease Agreement.
We are requesting that the City consent to the Assignment of the Lease and execute same
and return it to our attention. As you are aware, the City has previously executed and delivered to
us an Assignment of Lease Agreement in connection with DCH's existing financing. The form
provided herewith is identical, in all material respects, with the form previously approved and
executed by the City.
If you have any questions, please do not hesitate to contact us.
Best regards,
KANE, NORBY & REDDICK, P.C.
BJK:meh
Enclosure
Prepared by: Brian J. Kane, Kane, Norby & Reddick, P.C., 2100 Asbury Road, Suite 2, Dubuque,
IA 52001 563/582 -7980
SPACE ABOVE THIS LINE
FOR RECORDER
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.
Re: See Exhibit "A" attached.
ASSIGNMENT OF LEASE AGREEMENT
This Assignment of Lease Agreement ( "Agreement ") is effective
2011, among DUBUQUE CASINO HOTEL, I,LC, an Iowa limited liability company, Lessee,
('Borrower "), CITY OF DUBUQUE, Iowa ( "Lessor ") and DUPACO COMMUNITY CREDIT
UNION ( "Lender ").
1. Recitals. Borrower has leased from Lessor certain real property under a Parts I and III
of a lease dated July 6, 2004, as amended by Amendment No. 1 to Lease Agreement dated March 21,
2005, Amendment No. 2 to Lease Agreement dated April 4, 2005 and Amendment No. 3 to Lease
Agreement dated September 6, 2005 (hereinafter the "Lease "). The Lender has authorized the making a
loan to the Borrower by virtue of a Loan Agreement executed by the Borrower and the Lender of even
date herewith ( "Loan "). The Loan is for the benefit of both Borrower and Lessor insofar as funds from
the Loan will be used for the benefit of the 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
Lender, Borrower, with the consent of Lessor, upon an uncured default under the Loan Agreement
assigns to Lender the lease referred to above during the remainder of its term, including all extensions
and renewals. Upon payment of the loan in full, Lender shall provide to Borrower and to City in
recordable form a cancellation of this Assignment.
2. Borrower and Lessor Further Covenant and Agree:
2.1. 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.
2.2. Borrower and /or Lessor will not modify or terminate the Lease without the
prior written consent of Lender which shall not unreasonably be withheld.
2.3. 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 Lender sixty
(60) days' written notice of such default and the right, at the option of Lender, during such period,
to cure such default. During the sixty (60) day period, Lessor will take no action to enforce its
claim arising from such default without Lender's prior written consent.
2.4. If Borrower defaults in the performance of any of its obligations under the
Loans, any renewals or extensions, or of any related agreement, then Lender, at its option, may,
without notice except as may be required under the Loan Agreement, using such force as may be
necessary, enter said leased premises and do any one 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
Lender and Lessor and - upon assignment the obligations of the Lease shall be binding on such
transferees. In the event that Lender undertakes the options provided in Subsections (1) 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 Lender transfers the Lease as provided in Subsection (3), 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.
3. 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 Lender's liens on Borrower's
property, and to Lender'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.
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.
5. 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 Lender:
If to Borrower:
If to Lessor:
Dupaco Community Credit Union
3299 Hillcrest Road
Dubuque, IA 52001
Dubuque Casino Hotel, LLC
C/O Mr. Wayne A. Briggs, President
137 Main Street, Suite 400
Dubuque, IA 52001
City of Dubuque
City Hall
50 West 13th Street
Dubuque, IA 52001
Attn.: City Manager
6. 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
Lender.
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 of this 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 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.
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).
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 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 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.
11. 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 recover 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.
Effective as of the date first written above.
DUBUQUE CASINO HOTEL, LLC CITY OF D J: UQUE
By: By:
Wayne A. Briggs, President
By.
DUPACO COMMUNITY CREDIT UNION
By:
4
'Roy'
. Buol, Mayor
evi Firnstah City `lerk
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this day of , 2011, before me, a Notary Public in and for
the State of Iowa, personally appeared Wayne A. Briggs, to me personally known, who being by
me duly sworn did say that he is the President of said limited liability company, that no seal has
been procured by the said limited liability company and that said instrument was signed on
behalf of said limited liability company by authority of its managers and the said Wayne A.
Briggs acknowledged the execution of said instrument to be the voluntary act and deed of said
limited liability company, by it voluntarily executed.
Notary Public in and for
State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
On this 7th day of November , 2011, before me, a Notary Public in and for
the State of Iowa, personally appeared Roy D. Buol and Kevin Firnstahl, to me personally
known, who being by me duly sworn did say that they are the Mayor and City Clerk,
respectively, of the City of Dubuque, 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 Ray Buol and Kevin Fimstahl, as Mayor and City Clerk,
acknowledged the execution of said instrument to be the voluntary act and deed of the City, by it
and by them voluntarily executed.
tJ
Notary Public in aril fni
State of Iowa
STATE OF IOWA )
COUNTY OF DUBUQUE ) ss:
SUSAN M. WINTER
COMMISSION NO.183274
MY COMMISSION EXPIRES
2/14/14
On this day of , 2011, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared , to me
of
personally known, who being by me duly sworn, did say that is a
Dupaco Community Credit Union 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 as
acknowledged the execution of the foregoing instrument to be the
voluntary act and deed of the corporation, by it and by voluntarily executed.
Notary Public
in and for State of Iowa
564'38'50 "E
22.29'
R =25.00
L =45.81
T =32.57
A=104'58'10"
CHD —N 25'21'10 "E
39.67'
TOTAL AREA:
1.317 ACRES
LEGEND
PLAT BOUNDARY
) RECORD INFORMATION
R.O.W. RIGHT —OF —WAY
S64'38' 50"E
27.46'
LEASE EXHIBIT
DUBUQUE CASINO HOTEL L.L.C.
A PARCEL OF LAND LYING WITHIN THE SOUTHEAST QUARTER OF
FRACTIONAL SECTION 18, TOWNSHIP 89 NORTH, RANGE 3 EAST OF
THE 5TH P.M., DUBUQUE COUNTY, IOWA
o4,
DUBUQUE CASINO HOTEL, L.L.C.
1.317 ACRES
57,364 SQUARE FEET
N64'38'50 "W
22.29'
.,,Imulllllll��i,ll�,.
NORTH
GRAPHIC SCALE
0 50
100
1 " =50'
DRAWING MAY HAVE BEEN REDUCED
POINT OF
BEGINNING
NOTE
THIS SURVEY IS SUBJECT TO EASEMENTS,
RESERVATIONS, RESTRICTIONS AND RIGHTS -
OF -WAY OF RECORD AND NOT OF RECORD.
PROPRIETOR: CITY OF DUBUQUE
PREPARED FOR: EPIC CONSTRUCTION
5 1/4 COR. FRACT.
SEC. 18, 789N, R3E
IN LAKE PEOSTA CHANNEL
N64'38'50 "W
38.17'
N25•21'10 "E
41.33'
N64'38'50 "W
24.17'
N64'38'50 "W
38.17'
525'21'10 "W
41.33'
5011TH LINE OF THE
SE 1/4 OF FRACT, SEC. 18
N88'37'17 "E 2691.40'
--- EXISTING CASINO
525'21'10 "W
17.42'
GATE OF SURVEY: DECEMBER, 2004
®IIW ENGINEERS &
SURVEYORS, P.C.
tore. llnnole. Wisconsin
4155 Pennsylvonlo Ave. Dubudue. IA 52002
992.556.5474
H40.l oreen, 41
SE CDR. FRACT. DRAWN LEN PLAT NO. 10 —IA -05
SEC. 18, T89N, R3E CHECKED JMT PROJ. N0.04780
CONCRETE MONUMENT DATE 2 -28 -05 SHEET 1 of 3
P: \04\ 700 \780 \04780 \dwg \04780LEASErev
Sheet 2 of 3
Legal Description for Dubuque Casino Hotel. L.L.C.
A parcel of land lying within the Southeast Quarter of Fractional Section 18, Township 89 North,
Range 3 East of the 5th Principal Meridian, Dubuque County, Iowa, more particularly described
as follows:
Commencing at the Southeast corner of said Fractional Section 18 (the South Iine of the
Southeast Quarter of Fractional Section 18 bears North 88 degrees 37 minutes 17 seconds East
for the purposes of this description);
Thence North 51 degrees 42 minutes 10 seconds West, 1642.95 feet, to the point of beginning;
Thence North 64 degrees 38 minutes 50 seconds West, 98.25 feet;
Thence North 25 degrees 21 minutes 10 seconds East, 85.67 feet;
Thence South 64 degrees 38 minutes 50 seconds East, 27.46 feet;
Thence North 25 degrees 21 minutes 10 seconds East, 51.08 feet;
Thence North 64 degrees 38 minutes 50 seconds West, 22.29 feet;
Thence Northeasterly, 45.81 feet along the arc of a circular curve concave to the Southeast,
having a radius of 25.00 feet, a central angle of 104 degrees 58 minutes 10 seconds, and whose
chord bears North 25 degrees 21 minutes 10 seconds East, 39.67 feet;
Thence South 64 degrees 38 minutes 50 seconds East, 22.29 feet;
Thence North 25 degrees 21 minutes 10 seconds East, 92.33 feet;
Thence South 64 degrees 38 minutes 50 seconds East, 70.00 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 44.67 feet;
Thence South 64 degrees 38 minutes 50 seconds East, 213.83 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 102.00 feet;
Thence South 64 degrees 38 minutes 50 seconds East, 118.56 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 17.42 feet;
Thence North 64 degrees 38 minutes 50 seconds West, 182.81 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 59.75 feet;
Thence North 64 degrees 38 minutes 50 seconds West, 38.17 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 41.33 feet;
Sheet 3 of 3
Thence North 64 degrees 38 minutes 50 seconds West, 24.17 feet;
Thence North 25 degrees 21 minutes 10 seconds East, 41.33 feet;
Thence North 64 degrees 38 minutes 50 seconds West, 38.17 feet;
Thence North 25 degrees 21 minutes 10 seconds East, 52.35 feet;
Thence North 64 degrees 38 minutes 50 seconds West, 48.29 feet;
Thence South 25 degrees 21 minutes 10 seconds West, 97.26 feet, to the point of beginning.
Containing 1.317 acres (57,364 square feet), more or less, and subject to easements, reservations,
restrictions, and rights -of -way of record and not of record.