DBQ Yacht Basin, Inc waiver of lien
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MEMORANDUM
September 13, 2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Dubuque Yacht Basin, Inc.
Corporation Counsel Barry Lindahl is recommending execution of a Waiver of
Landlord's Lien for Dubuque Yacht Basin, Inc. boat inventory sold on consignment.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
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Michael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
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Barry A. Lindahl, Esq.
Corporation Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesq@cityofdubuque.org
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September 7, 2005
Michael C. Van Milligen, City Manager
City Hall - City Manager's Office
50 West 13th Street
Dubuque,IA 52001
RE: Dubuque Yacht Basin, Inc.
Dear Mike:
Enclosed are two copies of a form of Waiver of Landlord's Lien submitted by Attorney
Arthur F. Gilloon, on behalf of his client Dubuque Yacht Basin, Inc. Dubuque Yacht
Basin, Inc. has requested that the City waive any landlord's lien the City may have on
boat inventory at Dubuque Yacht Basin sold on consignment.
Iowa Code 9570.1 provides that a landlord has a lien for rent on personal property of
the tenant which has been used or kept on the leased premises during the term of the
lease.
Because the boat inventory is consigned to Dubuque Yacht Basin for sale, it is not
personal property of Dubuque Yacht Basin and would not be subject to the landlord's
lien.
I have no objection to the form of the Waiver of Landlord's Lien and would suggest that
the Waiver be submitted to the City Council for its con~tion.
/
Very sin erely, ...
~rry A. Lindahl, Esq.
~~rporation Counsel
BAL:tls
cc: Arthur F. Gilloon, Esq.
Service
People
Integrity
Responsibility
Innovation
Teamwork
NORMAN, GILLOON,
WRIGHT & HAMEL, p.e.
Attorneys
Wayne A. Norman, Jr..
Arthur F. Gilloon.
E. David Wright.
Dirk J. Hamel*.
Please Reply To:
P.O. Box 857
Dubuque, IA 52004-0857
E-Mail: ngwhlaw@pcii.net
Writer's e-mail address:
agilloon(aldbQlaw.com
September 2,2005
Mayor Terry Duggan and
the Dubuque City Council
City Hall
50 West 13th Street
Dubuque, IA 52001-4864
RE: Dubuque Yacht Basin, Inc.
Dear Honorable Mayor and City Council Members:
As you may know, our office represents Dubuque Yacht Basin, Inc. The boats that
are sold at the Yacht Basin are sold on consignment from Family Boating Center and GE
Commercial Distribution and American Marine, Inc.
GE Commercial Distribution Finance Corporation is the floor plan lenderforthe boat
inventory. They have asked that a Landlord's Lien Waiver be signed by the City of
Dubuque as landlord concerning the Yacht Basin lease.
Under the terms of the Yacht Basin lease, the boat inventory would not be
considered personal property subject to a landlord's lien in any event because the boating
inventory is owned by Family Boating Center, Inc. or American Marine, Inc. until it is sold
to a customer.
I have discussed this matter with City Attorney Barry Lindahl, and he agrees that the
boating inventory would not be considered personal property subject to a lien.
Thus, the signing of the enclosed two "Waiver of Landlord's Lien" should not
prejudice the rights of the City of Dubuque as landlord of Dubuque Yacht Basin, Inc.
We respectfully request that this matter be placed on the agenda and considered
by the Council during its meeting of September 19, and that the attached two separate
. Waiver of Landlord Liens (one with American Marine, Inc. as a consigner, and one with
Family Boating Center, L.L.C. as consigner) be signed by the appropriate representative
of the City of Dubuque, Iowa, as landlord and returned to me for the other signatures.
Security Building /800 Main Street / Dubuque, IA 52001/ (563) 556-6433/ Fax: (563) 556-7706
* Also Licensed in Wisconsin / ** Also Licensed in Illinois
Mayor Terry Duggan and
the Dubuque City Council
Page 2
September 2,2005
Please contact the undersigned if you have any questions, and I thank you in
advance for your cooperation.
Sincerely,
,
Arthur F. Gilloon
AFG/jdh
Enclosures
cc: Attorney Barry Lindahl
Mike Van Milligen
P.S. I am sending the originals of the Waivers to City Attorney Barry Lindahl.
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....
WAIVER OF LANDLORD'S LIEN
(Dealer to Dealer Consignment)
"This Waiver of Landlord's Lien (the "Aoreement") is made as of this 21st day of July, 2005, among Family
Boating Center, LLC ("Consionor"), Dubuque Yacht Basin, Inc., ("Consionee" or "Tenant"),
City of Dubuque, Iowa, ("Landlord"), and GE Commercial Distribution Finance Corporation ("CDF").
RECITALS
(a) Consignor has consigned or otherwise provided, or may hereafter consign or otherwise provide, to
Consignee certain inventory and other goods (collectively, together with all proceeds thereof, the "Consioned
Inventorv").
(b) The Consigned Inventory is subject to a security interest in favor of CDF granted by Consignor.
Similarly, the Consigned Inventory is subject to a security interest or consignment interest granted by Consignee to
Consignor which has been collaterally assigned to CDF.
(c) Consignee has stored or may hereafter store some or all of the Consigned Inventory on real
property which Consignee has leased from Landlord (the "Premises").
(d)
Inventory.
Landlord has agreed not to assert any landlord's lien or similar claim against any of the Consigned
NOW, THEREFORE, to induce CDF to extend credit to Consignor, and to induce Consignor to consign or
otherwise provide the Consigned Inventory to Consignee, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Waiver of landlord's Lien. Landlord waives any right Landlord may now or hereafter have,
whether such right arises by operation of law, by contract or otherwise, to distrain or levy upon, or to attach, seize or
otherwise assert any security interest, lien or other claim with respect to, any of the Consigned Inventory. None of
the Consigned Inventory shall constitute fixtures, notwithstanding the method or manner of attachment of any
Consigned Inventory to the Premises or whether an interest therein arises under applicable real property law or
otherwise.
2. Right to Inspect, Remove and Sell Consigned Inventory. Subject to Section 3 below,
Consignor and CDF shall have the right from time to time to enter upon the Premises in order to inspect, remove,
take possession of, sell or otherwise deal with the Consigned Inventory, in each case without interference from
Landlord.
3. Consignor and CDF's Liability. Consignor and CDF shall have no liability with respect to the
Premises except for (a) any physical damage to the Premises actually caused by Consignor or CDF, as the case may
be, and (b) during any period of time in which Consignor or CDF is in possession of the Premises pursuant to Section
2 above and Tenant has not paid Landlord rent for such period, Consignor or CDF, as the case may be depending on
who has taken possession of the Premises, shall pay rent to Landlord at the same rate normally payable by Tenant,
prorated on a daily basis, for the actual number of days Consignor or CDF, as the case may be, is in possession of
the Premises. In no event shall Consignor or CDF be responsible to cure or otherwise satisfy any unpaid or
unperformed obligations of Tenant, nor shall Consignor or CDF be liable for any damages to the Premises caused by
Tenant. CDF shall only be liable to Landlord under this Section 3 for CDF's own acts and omissions (and not for any
acts or omissions by Consignor). Likewise, Consignor shall only be liable to Landlord under this Section 3 for
Consignor's own acts and omissions (and not for any acts or omissions by CDF).
4. Subsequent Parties; Waivers. Landlord shall notify any subsequent purchaser or mortgagee of
the Premises of the existence of this Agreement, which shall be binding upon Landlord's executors, administrators,
heirs, successors and assigns, as the case may be, and shall inure to the benefit of Consignor's and CDF's
respective successors and assigns. The failure of any party to exercise any rights granted hereunder shall not
operate as a waiver of any of those rights. CDF, Consignor and Landlord waive all rights to claim any punitive,
exemplary or consequential damages against one another.
CDF 61418 (01/05)
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,
5. Miscellaneous. This Agreement may be validly executed and delivered by fax or other electronic
transmission and in one or more counterpart signature pages. This Agreement shall be construed without
presumption for or against the party who drafted all or any portion of this Agreement. Any recitals to this Agreement
shall be considered an integral part of this Agreement. Pronouns used herein such as "it" may refer to a natural
person or an entity. Section headings in this Agreement are for convenience of reference only and shall not limit the
scope or terms of any Section or other provision of this Agreement. If any provision of this Agreement is
unenforceable or otherwise invalid, such invalidity shall not affect any other provisions of this Agreement.
6. JURY TRIAL WAIVER AND PUNITIVE DAMAGE WAIVER. CONSIGNOR, CONSIGNEE,
TENANT AND LANDLORD HEREBY WAIVE ANY RIGHT TO EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY KIND AGAINST CDF IN ANY PROCEEDING OR AWARD, WHETHER IN ARBITRATION OR
LITIGATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO WAIVE ANY
RIGHT TO A TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
COUNTERCLAIM ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT, AND UNDER
ANY THEORY OF LAW OR EQUITY, WHETHER NOW EXISTING OR HEREAFTER ARISING.
7. GOVERNING lAW. THIS AGREEMENT SHALL BE CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH, AND GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAW PROVISIONS) OF THE STATE OF ILLINOIS.
THIS AGREEMENT CONTAINS JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
Family Boating Center, LLC
CONSIGNOR
I
By:
Name: David Pretasky
Title: Manager
Dubuque Yacht Basin, Inc.
CONSIGNEElTENANT
I
By:
Name: David Pretasky
Title: President
By:
Name:
Title:
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LANDLORD
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION
By:
Name:
Title:
CDF 61418 (01/05)
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