Suit by N. Grandview Estates LLC_Richard HenkelIN THE DISTRICT COURT OF IOWA, IN AND FOR DUBUQUE COUNTY
NORTH GRANDVIEW ESTATES, L.L.C,) n 1■'
RICHARD A. HENKEL, ) Q`. M
Petitioner, ) 0- — ry
CD a` iii 1
vs. )CZCV 48a �� n
() t 1 Lk�
CITY OF DUBUQUE, IOWA, ) m ro
)
Respondent. )
ORIGINAL NOTICE
TO THE RESPONDENT:
YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of
District Court for the State of Iowa in and for Dubuque County a Petition in this action, a copy of
which is attached hereto. The Petitioner's attorney is Paul J. Fitzsimmons of Blair &
Fitzsimmons, P.C., 850 White Street, Dubuque, Iowa 52001.
YOU ARE FURTHER NOTIFIED that unless within 20 days after service of this original
notice upon you, you serve, and within a reasonable time thereafter, file a written special
appearance, motion, or answer, in the Iowa District Court for Dubuque County, at the County
Courthouse in Dubuque, Iowa, judgement by default will be rendered against you for the relief
demanded in the Petition.
By:
CLERK OF COURT
Dubuque County Courthouse
720 Central Avenue
Dubuque, IA 52001
NOTE: The attorney who is expected to represent the Respondent should be advised promptly of
the service of this Notice.
If assistance of auxiliary aids or services is required to participate in court due to a disability such as hearing
impaired, call the Americans with Disabilities coordinator at (319) 833 -3332. If you are in need of dual party telephone
relay services, call Relay Iowa TTY at 1- 800 - 735 -2942.
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
NORTH GRANDVIEW ESTATES, L.L.C., )
RICHARD A. HENKEL, )
)
PETITIONERS, )
Vs. )
)
CITY OF DUBUQUE, IOWA, )
)
RESPONDENT. )
NO. 01311 EQ`;'J (Ube -ta
PETITION FOR WRIT OF MANDAMUS
COMES NOW the Petitioners, North Grandview Estates, L.L.C., and Iowa limited liability company
and Richard A. Henkel, Under the Power of Iowa Code Chapter 661, and respectfully petition the Court to
issue a Write of Mandamus ordering the City of Dubuque, Iowa, to either immediately commence the
installation of streets in North Grandview Estates, No. 2 including Helen Ridge and Helen Ridge Court, or
alternatively, to return the $181,153.00, plus interest drawn by the City of Dubuque on March 11, 1011, on a
letter of credit with Dutrac Community Credit Union.
In support thereof , the Petitioners state that:
1. The Petitioner, North Grandview Estates, L.L.C. is an Iowa limited liability company and the owner
of North Grandview Estates No. 2, in the City of Dubuque, Dubuque County, Iowa.
2. The Petitioner, Richard A. Henkel, is a resident of Dubuque County, Iowa and is a member of
North Grandview Estates, L.L.C.
Iowa.
3. The Respondent City of Dubuque, Iowa, is a municipal corporation located in Dubuque County,
4. On July 11, 2006, as part of the financing for the development of North Grandview Estates No. 2,
North Grandview Estates, L.L.C. gave a promissory note to Dutrac Community Credit Union for $181,153.00.
A copy of said note, marked Exhibit "A" is attached hereto and made a part hereof.
5. On July 11, 2006, Dutrac Community Credit Union issued an Irrevocable Letter of Credit in favor
of the City of Dubuque, Iowa, for a sum not to exceed $181,153.00. A copy of the Letter of Credit, marked
Exhibit "B" is attached hereto and made a part hereof.
6. The Petitioner, Richard A. Henkel is personally liable to Dutrac Community Credit Union because
of personal guarantees, is personally interested in the matter and may sustain damage because of non-
performance by the City of Dubuque.
7. The purpose of the Letter of Credit was insure acceptance of public improvements in the North
Grandview Estates No. 2 subdivision and the maintenance of said improvements for two years, specifically
for the installation of streets on Helen Ridge and Helen Ridge Court.
8. On March 11, 2011, the City of Dubuque demanded and received from Dutrac Community Credit
Union the $181,153.00 amount of the Letter of Credit.
9. The City of Dubuque has taken no action to install the streets on Helen Ridge and Helen Ridge
Court, although 15 months have elapsed since the Letter of Credit funds were delivered to the City of
Dubuque.
10. Performance has been demanded by the Petitioners and the City of Dubuque has refused and
neglected to perform by commencing to install the streets on Helen Ridge and Helen Ridge Court within a
reasonable time or to return the Letter of Credit funds to either the Petitioners or Dutrac Community Credit
Union.
11. Petitioners have no plain, speedy or ordinary remedy in the course of law.
WHEREFORE, Petitioners North Grandview Estates, L.L.C. and Richard A. Henkel respectfully
request that a Writ of Mandamus issue against the City of Dubuque requiring either that the City 4 Dubuque
immediately commence installation of streets on Helen Ridge and Helen Ridge Court in North Grand View
Estates No. 2 Subdivision or turn over the amount of the Letter of Credit, $181,153.00, plus interest from
March 11, 2011, to either the Petitioners or Dutrac Community Credit Union, and for the costs of the action.
Z: \SYS \WP51 \PF Property Documents\Henkel Mandamus.wpd
-2-
By:
NORTH GRANDVIEW ESTATES, L.L.C. and
RICHARD A. HENKEL, Petitioner,
Paul Fitzsimmons AT0002626
BLAIR & FITZSIMMONS, P.C.
850 White Street
Dubuque, Iowa 52001 -7035
T: 563 - 588 -1970; F: 563 - 556 -4033
pfitzsimmons@blafifitzsimmons.com
Attorney for Petitioners
DA
Jul 11 2006
PRO' ' ADDRESS
CRY / STATE
MORTGAGE NOTE
Dubu.ue IA
065 30. N.rth Grandview Avenue
1. BORROWER'S PROMISE TO PAY
In return fora loan that the undersigned (hereinafter referred to collectively and Individually as 'Borrower') ha;
received, the undersigned Jointly and severally, as principals promise to pay U.S. $ 181 153.00
(this amount Is called 'principal'), plus Interest, to the order of the Lender. The Lender Is
DuTrac Community Credit Union
under this Note Is called t , Borrower understands that the Lender may
h
transfer this Note. The Lender or anyone who takes this Note by transfer and who Is entitled to receive payment;
e 'Note Holder,'
2. INTEREST
Interest will• be charged on unpaid principal until the full amount of principal has been paid. Borrower will ay
Interest at�a yearly rate of 7.75 percent (7.750, Borrower will pay Interest at the rate of 9.75 p
per annum after the Maturity Date or the applicable cure period for any default described In Section 6(B )of this
Note.
3. PAYMENTS
(A) Time and Place of Payments
Borrower will pay principal and Interest by making payments every month, The monthly payments are herein
referred to as the installment payments,
Borrower will make Installment payments on the day of each month beginning on
* on the 11th day of January 2007 and every six months thereafter
Borrower will make Installment payments every month until Borrower has paid all of the principal and Interest
and any other charges described below that Borrower may owe under this Note, Borrower's Installment
payments will be applled to Interest before principal. If, on r ,�••;
Borrower still owes amounts under this Note, Borrower will pay those amounts In full on that date, which Is
called the 'Maturity Date.'
Borrower will make Borrower's Installment payments at DuTrac Community Credit Union
or at a different place If required by the Note Holder, lime Is of the essence,
(8) Amount of Borrower's Installment Payments
Borrower's Installment payments will be In the amount of U.S, S Interest only, principal to be
4, BORROWER'S RIGHT TO REPAY repaid from sale of real estate
Borrower has the right to make payments of principal at any time before they are due, A payment of principal
only Is known as a 'prepayment.' If Borrower Intends to make a prepayment In full, Borrower will, thirty days In
advance, tell the Note Holder In writing that Borrower Intends to prepay the Note in full,
Borrower may make a full prepayment or partial prepayments without paying any prepayment charge, The Note
Holder will use all of Borrower prepayments to reduce the amount of principal that Borrower owes under this Note.
If Borrower makes a parflal prepayment, there will be no change In the due dates of Borrower's Installment
payments unless the Note Holder agrees In writing to a change.
5, LOAN CHARGES
If a law, which applies to this loan and which sets maximum loan charges, Is finally Interpreted so that the Interest
or other loan charges collected or to be collected In connection wlth this loan exceed the permitted limits, then:
(D any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;
and (II) any sums already collected from Borrower which exceeded permuted limits will be refunded to Borrower,
The Note Holder may choose to make this refund by reducing the principal Borrower owes under this Note or by
making a direct payment to Borrower, If a refund reduces the principal, the reduction will be treated as a partial
prepayment.
6. BORROWER'S FAILURE TO PAY AS REQUIRED
NON - CONSUMER LOAN
(A) Late Charges For Overdue Paymenta
If the Noteholder has not received full payment of any Installment by the end of 15 calendar days
after the date it Is due, Bortpwer will pay as additional Interest a late charge to the Noteholder. The amount of
the late charge will be % of Borrower'soverdue payment of principal and Interest. Borrower will pay
this late charge promptly but only once on each late payment.
(B) Default
If Borrower does not pay the full amount of each Installment payment within 30 days of the date It Is due, or
If an Event of Default, as defined in the Mortgage referred to In paragraph 10 hereof, shall occur, Borrower will
be In default.
(C) Remedies
If Borrower Is In default and, after mailing Notice of Right to Cure If required by law, such default shall not be
cured within the minimum legal applicable cure time, If any, then the Note Holder may, at Its option. without
notice, accelerate the maturity of the unpaid balance of the obligation evidenced hereby and exercise one
or more of the rights and remedies contained In the Mortgage referred to In paragraph 10 hereof, and other
rights andremedles available to it
(D) No Waiver By Note Holder
Even If, at a time when Borrower Is In default, the Note Holder does not require Borrower to pay Immediately In
full as described above, the Note Holder will still have the right to do so If Borrower is In default at a later time.
(E) Payment of Note Holder's Cost and Expenses
If the Note Holder has required Borrower to pay immedlatety In full as described above, the Note Holder will
have the right to be paid back by Borrower for all of Its cost and expenses In enforcing this Note to the extent
not prohiblted by applicable law. Those expenses Include, for example, reasonable attorneys' fees.
IBA No. 116W at IOWABAASBRS (COPYRIGHT 6/97) (REV. 10/92 Iowa sentry A.xwna, (For rsou n,, peas ao. 1- an',v.,,,.,
7. GIVING- NOTICES
Unless c, .,.;;gable law requires a different method, any notice's at must be given to Borrower under this Note u
be deemed given when delivered or mailed by first class mall to Borrower at the Property Address above or at
different address If Borrower gives the Note Holder a notice of Its different address.
Any notice that must be given to the Note Holder under this Note may be given by mailing It by first class mall t
the Note Holder at the address stated In Section 3(A) above or at a different address If Borrower Is given a notL,
of that different address,
8. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note. each person Is fully obligated to keep all of the promises made In thl
Note, Including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser a
this Note is also obllgated to do these things. Any person who takes over or assumes these obligations. Incuudin4
the obligations of a guarantor, surety or endorser of thls Note, Is also obligated to keep all of the promises made
In this Note, The Note Holder may enforce Its rlghts under thls Note against each person Indlvldually or against al
owed under this Note.
of the Borrowers together. This means that any one of the Borrowers may be required to pay all of the amount;
Guarantor, surety or endorser further agrees hereby that the Note Holder may, without notice, renew or extend
the time for payment, accept partial payments, release or Impair any collateral which Is security for the payment
of the Mortgage Note or agree not to sue any party liable without affecting the IIabliHy of the guarantor, surety or
endorser, and that the Note Holder Is not required to first resort for payment to any collateral,
9. WAIVERS
Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of
dishonor, 'Presentment' means the right to require the Note Holder to demand payment of the amounts due.
'Notice of Dishonor' means the right to require the Note Holder to give notice to other person that amounts due
have not been pold,
10. SECURED NOTE
This Note Is secured by a Mortgage dated the f 2thdate of _December 2003
on real estate located In n�hua r County, Iowa, the local address of which Is shown on
the first page hereof. The terms of the Mortgage, Including but not limited to any escrow and default provisions,
are Incorporated hereln by this reference,
11, NOTE AMENDMENTS
If one or more Amendments are executed by the Borrower and attached hereto, the provisions of each
Amendment shall be Incorporated Into and shall amend, override and supplement the provisions of this
Mortgage Not and shall control If they are In any way In conflict with thls Mortgage Note.
(Check Applicable Box(es))
O Adjustable Rate Note Amendment
❑ Graduated Payment Note Amendment
O BI- weekly Payment Note Amendment
❑ Balloon Payment Note Amendment
in Other
Other Collateral: Continuin. Guarant of Richard A. Henkel dated December 12, 2003
Continuin Guaranty of James 0. Henkel dated July 11, 2006
WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED,
NOUCE
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. r. .. r
SACflONS) NOW IN EFFECT BETWE N V r.
OU AND THIS r r Nnee
Borrower acknowledges
OTHER E MPT TRA receipt b of a co •
py of this Mortgage Note. .
- - -- (SIGN ORIGINAL ONLY)
J •► 1■ : •_• •:
(Seal)
(Seal)
(Seal)
Your Trusted Financial Partner
DICITITraC
Cornet
unrfy Credit Union
July 11, 2006
City of Dubuque
Attention: City Clerk
50 West 13th Street
Dubuque, IA 52001
RE: North Grandview Estates
Letter of Credit #1
Amount: $181,153.00
To Whom It May Concern:
We hereby establish our Irrevocable Letter of Credit in favor of the City of Dubuque, Iowa, for the
account of North Grandview Estates, LLC for a sum not to exceed $181,153.00 effective immediately and
4,010,102tat
Funds under this Letter of Credit are available to you by your sight draft on DuTrac Community Credit
Union, 3465 Asbury Road,Dubuque, IA 52004 by submitting a sworn statement that the City has not
accepted all the public improvements required under Resolution No. 308 -06 for North Grandview Estates
and/or said improvements have not been maintained for the two -year maintenance period following City
acceptance.
Your draft shall contain the clause "drawn under the DuTrac Community Credit Union, Letter of Credit
#1, dated July 11., 2006." This original Letter of Credit must accompany any draft that exhausts =the credit
and must be surrendered concurrently with the payment of such draft.
We hereby engage with drawers, endorsers, and bona fide holders of drafts, under and in compliance with
the terms of this Letter of Credit, that the same shall be duly honored upon presentation and delivery of
the documents specified to DuTrac Community Credit Union.
It is a condition of this Letter of Credit that it shall be deemed ai ltb
amendment; flirt atone-year eriod from. the �'� rearaar� without
P_ expiration date set forth above, and`Upon each subsequent
anniversary of such date, unleaa at real Tsiizt + (60). days plicate such.datik we notify both you and our
client in writing by registered mail that we elect not to so renew this Letter of Credit.
Notwithstanding the foregoing, this Letter of Credit shall. tetminate two years afteS, the date of resolution
adopted by the City Council of the City of Dubuque accepting the public improvement,
www.dutrac.org
P 563.582.1331
TF 800.475.1331
MAMI sumo,
Assurr
i
AN {fICA'I
CREDIT UNIONS'
Page 2
This Letter of Credit is subject to the Uniform Customs and Practices for Documentary Credits (1993
revision, International Chamber of Commerce, Publication #500).
Dated this 11th day of July, 2006.
DuTrac Community Credit Union
IAN°. ,d/L
Thomas 0. Fillman
Business Relationship Manager
Mit