The URL can be used to link to this page

Home My WebLink About2024-03-04 I01F_05 IYAF, West Bank_Partial Assignment of DAAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: March 4, 2024 AGENDA ITEM:Consideration of approval of a resolution approving and authorizing execution of a Consent and Acknowledgement of a Partial Assignment of Development Agreement from Iowa Youth Athletic Foundation to West Bank FORMAT:Resolution SYNOPSIS INCLUDING PRO & CON: The proposed resolution includes the City’s consent and acknowledgment of a Partial Assignment of Development Agreement from Iowa Youth Athletic Foundation to West Bank. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: The economic development grants will not change due to the partial assignment. COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the Resolution ATTACHMENTS: I. Resolution II. Partial Assignment of Development Agreement from Iowa Youth Athletic Foundation to West Bank PREPARED BY:Jennifer Brown, Economic Development Director REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: I1F5 RESOLUTION NO. ______ RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF A CONSENT AND ACKNOWLEDGEMENT OF A PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENT FROM IOWA YOUTH ATHLETIC FOUNDATION TO WEST BANK WHEREAS, on the 30th day of May, 2023, the City of Waukee, Iowa (the "City"), Iowa Youth Athletic Foundation ("IYAF"), Caliber Land Company, LLC, and Kettlestone Central, L.C. entered into an Agreement for Private Development ("Agreement") pursuant to which IYAF would agree to construct certain "Arena Improvements" (as that term is defined in the Agreement), on a portion of the Development Property, and the City agreed to provide certain incentives to IYAF in exchange for IYAF’s obligations under the Agreement; and WHEREAS, IYAF has requested a loan from West Bank ("Bank"), concerning the extension by Bank to IYAF of a loan in the amount of up to $30,000,000 (the "Loan"), to finance the construction of the Arena Improvements, as defined in the Agreement; and WHEREAS, the City has received a request from IYAF, in the form of a request to consent to a proposed Partial Assignment of Development Agreement (the "Assignment") by and between IYAF and Bank, pursuant to which, among other things, Bank has required, as an express condition to the making of the Loan, that IYAF assign all of its rights to the Economic Development Grants (as defined in the Agreement) under the terms of the Agreement to Bank to secure the obligations of IYAF to Bank under the Loan; and WHEREAS, the City is willing to provide such consent to the proposed Assignment under the terms and conditions set forth in the Consent and Acknowledgment attached thereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WAUKEE, IOWA: Section 1. That the form and content of the Consent and Acknowledgement of Partial Assignment, the provisions of which are incorporated herein by reference, be and the same hereby are in all respects authorized, approved and confirmed, and the Mayor and the City Clerk be and they hereby are authorized, empowered and directed to execute, attest, seal and deliver the Consent and Acknowledgement for and on behalf of the City in substantially the form and content now before this meeting, but with such changes, modifications, additions or deletions therein as shall be approved by such officers, and that from and after the execution and delivery of the Consent and Acknowledgement, the Mayor and the City Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Consent and Acknowledgment as executed. PASSED AND APPROVED this 4th day of March, 2024. ______________________________________ Mayor ATTEST: __________________________________ City Clerk v2 11/14/13 1 PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENT Preparer Information: Robert J. Douglas, Jr., Dentons Davis Brown PC, 4201 Westown Parkway, Suite 300, West Des Moines, Iowa 50266 (515) 288-2500 Return Document to: Robert J. Douglas, Jr., Dentons Davis Brown PC, 4201 Westown Parkway, Suite 300, West Des Moines, Iowa 50266 (515) 288-2500 Name of Assignor: Iowa Youth Athletic Foundation Name of Assignee: West Bank Legal Description: See Page 3 v2 11/14/13 2 PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENT THIS PARTIAL ASSIGNMENT (“Assignment”) is made as of the _____ day of February by Iowa Youth Athletic Foundation, an Iowa not-for profit corporation (“IYAF”) to West Bank (“Bank”). RECITALS WHEREAS, on May 30, 2023, IYAF, along with Caliber Land Company, LLC and Kettlestone Central, L.C. entered into a certain Agreement for Private Development (the “Agreement”) with the City of Waukee, Iowa (the “City”) for the development of certain real estate, legally described in Exhibit “A” attached hereto (the “Property”) situated within the City; and WHEREAS, IYAF has requested a loan (the “Loan”) totaling $30,000,000 from Bank to cause the Arena Improvements, as defined in the Agreement, be made to the Property; and WHEREAS, Bank is willing to extend the Loan to IYAF subject to, among other things, IYAF assigning to Bank all of IYAF’s right, title and interest to the Economic Development Grants as described in the Agreement; and WHEREAS, IYAF is willing to so assign its interests to the Economic Development Grants as described in the Agreement. NOW, THEREFORE, in order to induce Bank to make the Loan, IYAF does hereby agree as follows: 1. PARTIAL ASSIGNMENT OF DEVELOPMENT AGREEMENT. To secure the Loan and all other indebtedness owing by IYAF to Bank, IYAF does hereby assign to Bank all of IYAF’s right, title and interest in and to the Economic Development Grants and all proceeds and benefits therefrom as set forth in Article VII of the Agreement. At the request of Bank pursuant to the terms of this Assignment, IYAF agrees that as long as this Assignment remains in effect, Bank may direct the City in writing to make the Economic Development Grants jointly payable to IYAF and Bank, or to wire the Economic Development Grants directly to IYAF’s account at the Bank, and such payments may be applied to any outstanding loans IYAF may have with the Bank at such time related to the construction of the Arena Improvements. 2. RECORDING/UCC. IYAF authorizes Bank to file this Assignment with the Dallas County Recorder’s office as well as a UCC-1 Financing Statement with the Iowa Secretary of State giving notice to all third parties of Bank’s collateral interest. 3. DEFAULT. In the event IYAF defaults under the Loan or any documents executed in connection therewith, including this Assignment, Bank shall have the right, in v2 11/14/13 3 addition to all other remedies provided in the Loan documents, or in law or equity, to make written demand upon the City, and IYAF herein expressly authorizes the City, to pay to Bank, from time to time, all Economic Development Grants which IYAF is entitled under the terms of the Agreement. Bank’s right to receive Economic Development Grants pursuant to this Assignment is wholly contingent upon compliance with and fulfillment of the terms and conditions of the Agreement. In no case will Bank’s rights under the Agreement be greater than IYAF’s rights. To the extent any Economic Development Grants are paid to the Bank pursuant to this Assignment, IYAF agrees that the City shall have no further liability to IYAF for the same, and IYAF releases the City from any claims related to or arising out of the City’s payment of such Economic Development Grants to the Bank as described in this Assignment. 4. NEGATIVE PLEDGE. IYAF agrees that it will not voluntarily or involuntarily pledge, encumber or otherwise allow any lien to be placed upon its interests in the Agreement, except for that granted to Bank hereunder. IYAF will not modify or terminate the Agreement without the prior written consent of the Bank, which consent will not be unreasonably withheld, delayed or conditioned. 5. ENFORCEMENT COSTS. If Bank hires an attorney to assist it in enforcing its rights and remedies hereto, IYAF agrees to pay the reasonable attorneys’ fees and costs incurred by Bank. 6. INDEMNITY. Bank shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability under the Agreement or under or by reason of this Assignment; and IYAF shall and does hereby agree to indemnify Bank for and to hold Bank harmless of and from any and all liability, loss or damage which it may or might incur under the Agreement or under or by reason of this Assignment, and of and from any and all claims and demands whatsoever which may be asserted against it by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in the Agreement, except for matters caused by Bank’s gross negligence or willful acts. Should Bank incur any liability, loss or damage under the Agreement or under or by reason of this Assignment, or in the defense of any such claims or demands, the amounts thereof, including costs, expenses and reasonable attorney’s fees, shall be secured hereby; and IYAF shall reimburse Bank therefor immediately upon demand, and upon failure of IYAF to do so Bank may declare all sums secured hereby immediately due and payable. 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. IYAF warrants that it has received a copy of this Assignment and further states that it understands fully the terms and conditions described herein. v2 11/14/13 4 Iowa Youth Athletic Foundation By: _____________________________________ Dickson D. Jensen, President STATE OF IOWA, COUNTY OF ________________ ) ss: This record was acknowledged before me on the ____ day of February, 2024, by Dickson D. Jensen, as President of Iowa Youth Athletics Foundation, on its behalf. __________________________________ Notary Public in and for the State of Iowa (SEAL) West Bank By:____________________________ Dana Jergenson, Vice President STATE OF IOWA, COUNTY OF POLK ) ss: This instrument was acknowledged before me on the ___day of February, 2024 by Dana Jergenson, as Vice President of West Bank, on its behalf. Notary Public v2 11/14/13 5 EXHIBIT A “THE PROPERTY” Lot 14, Kettlestone Central Plat 1, an Official Plat, now included in and forming a part of the City of Waukee, Dallas County, Iowa v2 11/14/13 6 CONSENT AND ACKNOWLEDGMENT BY THE CITY OF WAUKEE, IOWA Comes Now, the City of Waukee, Iowa (“City”) and hereby acknowledges the Partial Assignment (“Assignment”) from Iowa Youth Athletic Foundation (“IYAF”) to West Bank (“Bank”) of the Agreement for Private Development among Iowa Youth Athletic Foundation, Caliber Land Company, LLC, Kettlestone Central, L.C. and the City of Waukee, Iowa (“Agreement”) by which IYAF assigned to the Bank all of IYAF’s interest in all Economic Development Grants to be made to IYAF pursuant to Article VII of the Agreement. Such Assignment is permissible pursuant to Section 6.1 of the Agreement. The City agrees to deliver notice to the Bank of any notice of default or any other written notice whatsoever delivered to IYAF under the Agreement. The Bank shall have the right (but not the obligation) to remedy any default by IYAF under the Agreement within 30 days after delivery of the notice to the Bank at 3330 Westown Parkway, West Des Moines, Iowa 50266, Attn.: Commercial Lending. The Bank shall have no greater rights under the Agreement or to payment thereunder, than IYAF has thereunder. City of Waukee, Iowa By:____________________________________ Courtney Clarke, Mayor Attest: By: ____________________________ Rebecca D. Schuett, City Clerk