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Vision IowaPage 1 of 2 Juanita Hilkin From: To: Sent: Attach: Subject: "City of Dubuque Legal Department" <balesq@mwci.net> <jhilkin@cityofdubuque.org> Tuesday, July 10, 2001 8:01 AM DUBUQUE COVER.doc; DUBUQUE TABLE OF CONTENTS.doc; DUBUQUE VISION AWARD.doc; VI-Dubuque-EXHIBIT B.doc; VI-Dubuque-EXHIBIT D.doc; VIP legal opinion - city.doc; VIP legal opinion- society.doc; Dubuque disbursement schedule.doc; DUBUQUE EFT.doc FW: Dubuque Grant Juanita: Did you receive all of these attachments yesterday? ..... Original Message ..... From: Anderson, Andrew [SMTP:andrew.anderson~ilot.state.ia.us] Sent: Monday, July 09, 2001 3:38 PM To: Dubuque Legal Department (E-mail); 'jhilken~cityofdubuque.org' Cc: Mark Thompson (E-mail) Subject: Dubuque Grant <<DUBUQUE COVER. doc>> <<DUBUQUE TABLE OF CONTENTS.doc>> <<DUBUQUE VISION AWARD.doc>> <<VI-Dubuque-EXHIBIT B.doc>> <<VI-Dubuque-EXHIBIT D.doc>> <<VIP legal opinion - city.doc>> <<VIP legal opinion- society.doc>> <<Dubuque disbursement schedule.doc>> <<DUBUQUE EFT.doc>> Sincerely Andrew Anderson Assistant Attorney General Iowa Department of Justice 2015 Grand Ave. Des Moines, IA 50312 General Counsel of the Iowa Lottery Phone 515-281-7851 FAX: 515-281-7882 Email: andrew, anderson~ilot, state.ia.us www.iowaattorneygeneral.org www.ialotterv, com NOTE: This email is solely for the named addressee(s). It may be protected by attorney-client privilege. Those addressees that have an attorney-client relationship with the sender should treat this email as private and confidential in order to protect the attorney-client privilege. If you are not the named addressee: 07/11/2001 Page 2 of 2 please notify the sender immediately by reply mail you must erase this email and any attached files you must not use this email or any attached files or disclose them to anyone else. 07/11/2001 VISION IOWA GRANT OF $40,000,000 TO THE CITY OF DUBUQUE AND THE DUBUQUE COUNTY HISTORICAL SOCIETY BY THE VISION IOWA BOARD FOR THE CONSTRUCTION OF AMERICA'S RIVER PROJECT July 11, 2001 VISION IOWA NUMBER: 01-VI-002 TABLE OF CONTENTS VISION IOWA PROGRAM GRANT AWARD AGREEMENT ARTICLE 1 THE PARTIES AND THE PROJECT ARTICLE 2 AGREEMENT AMONG THE PARTIES ARTICLE 3 AGREEMENT DURATION ARTICLE 4 AGREEMENT ELEMENTS ARTICLE 5 FUNDING ARTICLE 6 AWARD OF GRANT ARTICLE 7 CONDITIONS TO GRANT AND DISBURSEMENTS ARTICLE 8 8.1 8.2 8.3 8.4 8.5 8.6 DISBURSEMENT OF FUNDS Disbursement Method of Payment Suspension of Disbursement Cost Variation Investment of Grant Funds Disbursement of Less Than the Total Award Amount ARTICLE 9 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 TERMS AND CONDITIONS OF GRANT Use of Funds Accounting Records Documentation Bonds and Insurance Notice of Proceedings Covenants of Recipients General Indemnification Timely Performance Vision Iowa Recognition Representations and Warranties of Recipients ARTICLE 10 CONVEYANCE OF REAL PROPERTY ARTICLE 1 11.1 11.2 11.3 11.4 11.5 DEFAULT AND REMEDIES Notice of Event(s) of Default Events of Default Notice of Default Remedies Upon Default Funding Failure 2 3 3 3 4 4 5 6 6 7 7 7 8 8 8 8 9 9 9 11 11 13 14 14 14 16 16 16 16 18 18 18 -i- 11.6 Procedure Upon Termination 18 ARTICLE 12 GENERAL PROVISIONS 18 12.1 Binding Effect 18 12.2 Compliance with Laws and Regulations 18 12.3 Survival of Agreement 19 12.4 Choice of Law and Forum 19 12.5 Modification 19 12.6 Notices 20 12.7 Waivers 20 12.8 Limitation 20 12.9 Enforcement Expenses 20 12.10 Headings 20 12.11 Event of Board Dissolution 20 12.12 Integration 21 12.13 Counterparts 21 SIGNATURES 21 EXHIBIT A VISION IOWA APPLICATION, AS APPROVED BY VISION IOWA (On file with the Iowa Department of Economic Development) EXHIBIT B LEGAL DESCRIPTION OF CITY'S REAL PROPERTY EXHIBIT C LEGAL DESCRIPTION OF SOCIETY'S REAL PROPERTY EXHIBIT D LIST OF LEGALLY BINDING FINANCIAL COMMITMENTS EXHIBIT E FORM OF OPINION OF THE CITY'S LEGAL COUNSEL EXHIBIT F FORM OF OPINION OF THE SOCIETY'S LEGAL COUNSEL EXHIBIT G DISBURSEMENT SCHEDULE EXHIBIT H ELECTRONIC PAYMENT INSTRUCTION FORM -ii- VISION IOWA PROGRAM GRANT AWARD AGREEMENT VISION IOWA NUMBER: 01-VI-002 TOTAL AMOUNT OF GRANT: $40,000,000 RECIPIENTS: CITY OF DUBUQUE 50 W. 13th ST DUBUQUE, IA 52001 and DUBUQUE COUNTY HISTORICAL SOCIETY P.O. BOX 266 DUBUQUE, IA 52001 PROJECT: AMERICA'S RIVER PROJECT AGREEMENT EFFECTIVE DATE: July 11, 2001 PROJECT COMPLETION DATE: June 30, 2005 THIS VISION IOWA GRANT AWARD AGREEMENT is made by and among the Vision Iowa Board, the City of Dubuque, and the Dubuque County Historical Society. WHEREAS, the Vision Iowa Program was established by the Iowa Legislature and the Governor of Iowa to support community projects that build on Iowa's unique assets and values and expand the recreational, cultural, educational, and entertainment opportunities in Iowa; and WHEREAS, the City, the Society and the Dubuque Area Chamber of Commerce submitted a joint application to Vision Iowa requesting assistance in financing their America's River Project. The America's River Project consists of several components, including the Mississippi River National Education and Conference Center and the Mississippi River Discovery Center and Aquarium, as well as other components set forth in Recipients' Vision Iowa Application; and WHEREAS, Vision Iowa found the America's River Project to meet the requirements established for participation in the Vision Iowa Program; and Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -1- WHEREAS, the Board, on April 11, 2001, unanimously voted to award a grant not to exceed forty million dollars (US$40,000,000) for construction of the America's River Project, a project with a total value over one hundred eight million five hundred eighty thousand eight hundred fifty eight dollars (US$108,580,858), subject to the terms and conditions herein. NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound, Vision Iowa, the City, and the Society agree to the following terms of this grant: ARTICLE 1 THE PARTIES AND THE PROJECT 1.1 The Vision Iowa Board ("Board" or "Vision Iowa") is a public instrumentality of the State of Iowa that was legislatively created to organize, establish, oversee and approve the administration of the Vision Iowa Program and the Community Attraction and Tourism Program. Iowa Code chapter 15F authorizes the Board and its programs. The Board's address is 200 East Grand Avenue, Des Moines, IA 50309. 1.2 The City of Dubuque (hereinafter the "City or "Recipient") is a municipality of the State of Iowa, organized and operating pursuant to Iowa Code chapter 364. Its address is 50 W. 13th St, Dubuque, IA 52001. 1.3 The Dubuque County Historical Society (hereinafter the "Society" or "Recipient") is an Iowa nonprofit corporation established pursuant to Iowa Code chapter 504A. The historical society sponsors and supports community and tourism attractions and activities. Its address is P.O. Box 266, Dubuque, IA 52001. 1.4 The City and the Society may hereinafter be collectively referred to as the "Recipients." 1.5 The America's River Project (the "Project"), as approved by the Board prior to the date hereof, consists of the components set forth in more detail in Exhibit A, including the Mississippi River National Education and Conference Center ("Conference Center"), the Mississippi River Discovery Center and Aquarium ("Aquarium"), a Riverfront Hotel and Indoor Water Park ("Hotel and Water Park"), and Amenities, Greenways, Smart Growth, Riverwalk and Infrastructure. Hereinafter, the Conference Center together with the Amenities, Greenways, Smart Growth, Riverwalk and Infrastructure may be referred to as the "City's Component," and the Aquarium may be referred to as the "Society's Component." Vision Iowa Fund moneys shall not be used for the construction or development of the Hotel and Water Park component. Platinum Hospitality Group, LLC, will privately fund the Hotel and Water Park component. Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -2- 1.6 The City's Conference Center shall be constructed on the real property legally described in Exhibit B ("City's Real Property"). 1.7 The Society's Component shall be constructed on real property owned by the City and leased to the Society, and which is legally described in Exhibit C ("Society's Real Property"). 1.8 The parties agree that the City's Component, the Society's Component, and the Hotel and Water Park component together were presented to and approved by the Board as a single project. ARTICLE 2 AGREEMENT AMONG THE PARTIES The Recipients shall be responsible for the financing, construction, operation and maintenance of their respective components of the Project and in consideration thereof the Board shall award a grant (the "Grant") not to exceed forty million dollars (US$40,000,000) to the Recipients, all subject to the terms and conditions of this Agreement. ARTICLE 3 AGREEMENT DURATION This Agreement shall be in effect for a period of twenty-one years from the Agreement effective date, or for such shorter period as the Board may determine. ARTICLE 4 AGREEMENT ELEMENTS This Agreement shall include as integral parts hereof: (a) Exhibit (b) Exhibit (c) Exhibit (d) Exhibit (e) Exhibit (f) Exhibit (g) Exhibit (h) Exhibit A - Vision Iowa Application, as approved by the Board B -- Legal Description of City's Real Property C - Legal Description of Society's Real Property D - List of Legally Binding Financial Commitments E - Form of Opinion of the City's Legal Counsel F - Form of Opinion of the Society's Legal Counsel G - Disbursement Schedule H - Electronic Payment Instruction Form Due to its size, Exhibit A will not be attached to this Agreement, but will be kept Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -3- on file at the Iowa Department of Economic Development. It shall, nevertheless, be considered an incorporated element of this Agreement. In the case of any inconsistency or conflict between the specific provisions of this document and the Exhibits, any inconsistency or conflict shall be resolved as follows: First by giving preference to the specific provisions of this document; second, by giving preference to the provisions of the exhibits. ARTICLE 5 FUNDING The sole funding source for the Grant shall be funds legally available from the Vision Iowa Fund established pursuant to Iowa Code section 12.72 (2001). The funds of the State of Iowa, other than those of the Vision Iowa Fund, shall under no circumstances be obligated or available to meet any obligations of the Board. This Agreement shall not constitute an obligation or debt of the Board or the State except to the extent expressly described herein from Vision Iowa funds that are legally available for such purposes. Pursuant to Iowa Code section 15F. 103, the Board shall request the Treasurer of the State of Iowa to issue bonds on behalf of the Board for purposes of the Vision Iowa Program. Proceeds from the sale of Vision Iowa Bonds will be placed in the Vision Iowa Fund for the benefit of the Vision Iowa Program and the projects the Board chooses to finance. ARTICLE 6 AWARD OF GRANT In consideration of the Recipients' financing, constructing, operating and maintaining their respective components of the Project, the Board, subject to the terms and conditions set forth herein, awards a grant not to exceed forty million dollars (US$40,000,000) to the Recipients to assist in the construction of the Project. The total of all payments by the Board to Recipients for Project activities shall not exceed the award amount. The Grant shall be allocated as follows: * Society's Component (Aquarium) US$20,000,081.00 City's Component (Conference Center, Amenities, Greenways, SmartGrowth, Riverwalk and Infrastructure) US$19,999,919.00 Total Project Grant US$40,000,000.00 Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -4- ARTICLE 7 CONDITIONS TO GRANT AND DISBURSEMENTS Recipients must satisfy all the following conditions prior to any disbursement: 7.1.1 7.1.2 7.1.3 7.1.4 7.1.5 7.1.6 This Agreement shall have been properly executed and returned to the Board within forty-five (45) days of the Board's transmittal of the final Agreement to the Recipients. Its return shall be accompanied by the acceptable Opinions of Recipients' respective legal counsel that this Agreement has been duly authorized, executed and delivered by each Recipient and constitutes the valid, legal and binding obligation of each in accordance with its terms, and that each is obligated to perform in accordance with the Agreement including performance of all future conditions and payments and does not violate any constitutional, statutory, or other limitations placed on the City or the Society. Recipients shall obtain, to the satisfaction of the Board, all other legally binding financial commitments necessary to complete the Project, as set forth on Exhibit D. Failure to obtain and submit documentation of all of the binding commitments to the Board within ninety (90) days of the Effective Date of this Agreement shall be grounds for termination of this Agreement. The Society shall become certified by the Auditor of the State of Iowa pursuant to Iowa Code section 11.36. Within 45 days of the Agreement Effective Date, Recipients shall enter into an agreement, conforming to Iowa Code chapter 28E ("28E Agreement") that establishes the manner in which they will cooperate with one another to successfully complete this Project. The 28E Agreement shall specifically create a method for resolving any disputes between the Recipients. This Agreement shall be recorded as a restrictive covenant, with the County Recorder of Dubuque County, Iowa, in the chain of title of the City's Real Property and the Society's Real Property. The City shall submit the following documents to the Board: 1) A resolution of the City's City Council authorizing the execution and delivery by the City of this Agreement and such other documents as the Board or the Board's legal counsel may reasonably request, and specifying the officer(s) authorized to execute the Agreement and such other documents that are necessary to bind the City. 2) An opinion of the City's legal counsel, in the form attached hereto as Exhibit E, opining that this Agreement is a binding obligation of the City and that the City is obligated to perform in accordance with the Agreement, including the performance of all future conditions and payments; and that this Agreement does not violate any constitutional, statutory, or other limitations placed on the City. Legal counsel's opinion shall also opine that the City owns the City's Real Property and the Society's Real Property in fee simple, Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -5- free and clear of all liens, claims and encumbrances of any kind whatsoever. 3) Evidence, acceptable to the Board or the Board's legal counsel, that all other funding sources necessary to the Project have been committed by means of legally binding agreements. 4) A fully executed copy of the 28E agreement between the Recipients. 7.1.7 The Society shall submit the following documents to the Board: 1) Certified copies of the Society's Articles of Incorporation and By- Laws. 2) A Certificate of Incumbency naming the Society's current officers and directors. 3) A Resolution of the Society's Board of Directors authorizing the execution and delivery by the Society of this Agreement and such other papers as the Vision Iowa Board or its legal counsel may reasonably request; and specifying the officer(s) authorized to execute the Agreement and such other documents that are necessary on the Society's behalf. 4) Documentation of satisfactory credit history of the Society with no outstanding judgments or unsatisfied liens. 5) A certificate of good standing issued by the Iowa Secretary of State confirming that the Society is an Iowa nonprofit corporation in good standing. 6) Documentation satisfactory to the Board confirming the Society's non-profit status. 7) An opinion of the Society's legal counsel, in the form attached hereto as Exhibit F, opining that this Agreement is a binding obligation of the Society and that the Society is obligated to perform in accordance with the Agreement including performance of all future conditions and payments and that this Agreement does not violate any constitutional, statutory, or other limitations placed on the Society. ARTICLE 8 DISBURSEMENT OF FUNDS 8.1 DISBURSEMENT. Funds disbursed hereunder shall be distributed to the City and the Society in scheduled installments, as set forth in the schedule attached hereto as Exhibit G. Subsequent to the initial disbursement of funds to each Recipient, the City and the Society shall each, no more than 40 and no less than 20 days prior to the scheduled date of each installment, provide to the Board's designee a statement accounting for the disposition of all funds previously disbursed to it hereunder. Such statement shall certify the percentage of the total cost to such date of the relevant component which has been paid for Vision Iowa Grant Award to the - 6 - city of Dubuque and the Dubuque County Historical Society July 11, 2001 with Vision Iowa grant funds (the "Grant Percentage"). In the event the Grant Percentage for a given component exceeds the maximum Grant Percentage established for the next scheduled installment, as set forth on Exhibit G, no further disbursement for such component shall be made until the City or the Society (as the case may be) certifies that the Grant Percentage has been reduced to an amount which is equal to or less than the maximum Grant Percentage specified on Exhibit G. The Recipients shall maintain for 5 years documentation adequate to support the claimed costs incurred for each of the components. By way of example of the foregoing, Exhibit G schedules an installment on July 1, 2002 for the City Component in the amount of $1,700,000. The maximum Grant Percentage for that installment is 21%. If the City's statement certifies that the amount of Vision Iowa grant money spent on the City Component as of the date of the Statement is more than 21% of the total amount spent on the City Component to that date, then no further Vision Iowa grant funds shall be disbursed for the City Component until such time as the City spends enough money from other sources to bring the Grant Percentage below 21% and certifies such fact to the Board's designee. Recipients shall notify the Board within thirty (30) days if the estimated cost to complete or the value of any component of the Project changes by more than five percent (5%). At the Board's sole discretion or its designee's discretion, funds may be disbursed earlier, more frequently or in greater installment amounts. 8.2 METHOD OF PAYMENT. Payment shall be effected through electronic funds transfer. Prior to disbursement, the Recipients shall specify the account to receive the funds. (See Ex. H - Electronic Payment Instruction Form). Vision Iowa Grant Funds shall not be commingled with other funds not pertaining to the Project. 8.3 SUSPENSION OF DISBURSEMENT. Upon the occurrence of an event of default (as defined in this Agreement) by the Recipients, or either of them, the Board or its designee may suspend payments to the Recipients until such time as the default has been cured to the Board's satisfaction. Notwithstanding anything to the contrary in this Agreement, upon a termination of this Agreement by the Board on account of an event of default by the Recipients, or either of them, the Board may terminate both Recipients', or either one of the Recipient's, rights to receive any disbursements after the effective date of default. 8.4 COST VARIATION. In the event the aggregate cost of the City's Component and the Society's Component is less than one hundred eight million five hundred eighty thousand eight hundred fifty eight dollars (US$108,580,858), the amount Vision Iowa Grant Award to the - 7 - city of Dubuque and the Dubuque County Historical Society July 11, 2001 of grant to be awarded hereby shall be calculated by multiplying forty million dollars ($40,000,000.00) by a fraction, the numerator of which shall be the actual aggregate cost of the City's Component and the Society's Component as determined by the Board in its good faith sole discretion, and the denominator of which shall be one hundred eight million five hundred eighty thousand eight hundred fifty eight dollars (US$108,580,858). Any grant monies disbursed in excess of such amount shall be returned immediately to the Board. In the event the aggregate cost of the City's Component and the Society's Component exceed one hundred eight million five hundred eighty thousand eight hundred fifty eight dollars (US$108,580,858), the Recipients shall provide any and all additional funding necessary to complete the Project. 8.5 INVESTMENT OF GRANT FUNDS. In the event that the grant funds are not immediately utilized, temporarily idle grant funds may be invested provided such investments shall be in accordance with State law, including but not limited to the provisions of Iowa Code chapter 12C concerning the deposit of public funds. Interest accrued on temporarily idle grant funds held by the Recipients shall be credited to and expended on the Project prior to the expenditure of other grant proceeds. All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the Board within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from the Board, Recipients shall inform the Board in writing of the amount of unexpended grant funds in the Recipients' possession or under the Recipients' control, whether in the form of cash on hand, investments, or otherwise. 8.6 DISBURSEMENT OF LESS THAN THE TOTAL AWARD AMOUNT. If, in the sole discretion of the Board, substantial progress toward financing and construction of the Project has not been made within one hundred eighty (180) days of the Effective Date of this Agreement, then the Board shall be under no obligation to make any disbursement hereunder. In such an event, the Recipients shall repay to the Board an amount equal to all grant proceeds received by the Recipients pursuant to this Agreement. ARTICLE 9 TERMS AND CONDITIONS OF GRANT 9.1 USE OF FUNDS. The Recipients hereby agree to cause the Project to be constructed and operated and to maintain their respective components of the Project in accordance with the representations in this Agreement and Exhibit A during the term of this Agreement. The funds granted hereunder shall be used primarily for constructing the vertical infrastructure described in Exhibit A and as mandated by the laws governing Vision Iowa. The Recipients shall allow the Board, its internal or external auditors, the Iowa Department of Economic Development, the Auditor of the State of Iowa, the Treasurer of the State of Iowa, Vision Iowa Grant Award to the - 8 - City of Dubuque and the Dubuque County Historical Society July 11, 2001 the Attorney General of the State of Iowa or the Iowa Division of Criminal Investigation to inspect the Project facilities at all times in order to audit, monitor and evaluate compliance with federal, state, and local law, as well as the terms of this Agreement. 9.2 ACCOUNTING RECORDS. The Recipients shall maintain or be able to readily convert all books, records and all other financial documents pertaining to this Agreement in accordance with generally accepted accounting principles for proprietary activities as established by the Governmental Accounting Standards Board. These records shall be available for inspection and copying by the Board, its internal or external auditors, the Iowa Department of Economic Development, the Auditor of the State of Iowa, the Treasurer of the State of Iowa, the Attorney General of the State of Iowa and the Iowa Division of Criminal Investigation at all times within the term of this Agreement and during the term of any extension thereof, and for three (3) full years from the expiration date. 9.3 DOCUMENTATION. Within twenty (20) days of receipt of a written request from the Board to the Recipients, the Recipients shall deliver to the Board: (i) copies of all agreements or documents relating to the Project, (ii) copies of all invoices, receipts, statements or vouchers relating to the Project, (iii) a list of all unpaid bills for labor and materials in connection with the Project, (iv) budgets and revisions showing estimated Project costs and funds required at any given time to complete and pay for the Project. 9.4 BONDS ANDINSURANCE. The Recipients shall maintain in effect, with insurance companies of recognized responsibility, at their own expense, insurance and bonds adequately covering their respective components of the Project. The insurance shall be of a scope and coverage that is acceptable to the Board or its designee. The Recipients must submit copies of each insurance agreement or certificates attesting to such insurance coverage and any renewals thereof, to the Board. The Project shall, at a minimum, be insured and bonded as set forth below: The Recipients shall obtain Builders Risk Insurance. The named insureds shall be the Recipient, the State of Iowa and the Board, all contractors, subcontractors and sub-subcontractors. Coverage shall be effective on the inception date of construction and may terminate when construction is completed, and shall include a provision for the partial occupancy of the Project. The Recipients shall maintain property insurance during the life of the Agreement that shall insure the Project for the maximum possible amount, not to exceed its replacement value, and shall provide funds to compensate for the loss of revenues resulting from Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -9- the destruction of the property by fire, flood, earthquake or other insurable hazards. The City and the Society shall require their general contractors each to obtain a performance bond for the anticipated full value upon completion of their respective components of the Project. The performance bonds shall remain in effect until construction is completed at which time two-year maintenance bonds shall be substituted for the performance bonds. The bonds shall clearly specify that the Board may draw upon the bonds in the event of a default in the activities required by this Agreement. The City shall maintain its current fidelity bond in the amount of one million dollars (US$1,000,000) covering any loss or misuse of grant proceeds due to any fraudulent or dishonest act on the part of the City's City Manager, Administrative Services Director, Finance Director and Assistant Finance Director and one hundred thousand dollars (US$100,000) on all other officers and employees during the term of this Agreement. The fidelity bond shall remain in effect until December 31, 2005, or later if the Board, in its sole discretion, deems it necessary. The Board may draw upon the fidelity bond if grant funds become unavailable due to loss or misuse. The Society shall obtain a fidelity bond in the amount of one million dollars (US$1,000,000) covering any loss or misuse of grant proceeds due to any fraudulent or dishonest act on the part of its officers, employees or agents. The fidelity bonds shall remain in effect until the completion of construction of its Component of the Project, or later if the Board, in its sole discretion, deems it necessary. The Board may draw upon a fidelity bond if grant funds become unavailable due to loss or misuse by the employees, officers, or agents of the Recipient covered by such bond. The State of Iowa and the Board as shall be named as additional insureds or loss payees on all insurance policies and bonds. All required bonds and insurance purchased from private insurance providers must be issued by companies which have earned at least an "A" rating by A.M. Best & Co. for the last three years, are duly licensed, admitted, and authorized to do business in the State of Iowa. The insurance carrier must also have combined capital and unassigned surplus of at least one hundred million dollars ($100,000,000). Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -10- The City is a member of the Iowa Communities Assurance Pool (ICAP) and has submitted to the Board a copy of its agreement with ICAP. The City shall maintain its membership in ICAP during the term of this Agreement or shall provide evidence of insurance consistent with its ICAP agreement. 9.5 NOTICE OF PROCEEDINGS. The Recipients shall promptly notify Vision Iowa of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Recipients that could potentially adversely impact the Project. 9.6 COVENANTS OF RECIPIENTS. 9.6.1 AFFIRMATIVE COVENANTS. Until the terms of this Agreement are fulfilled, the Recipients covenant to Vision Iowa that: (a) PROJECT WORK. The Recipients shall complete their respective components of the Project by June 30, 2005. For the purposes of this section "complete" means the Project is fully constructed and operational. (b) OPERATION AND MAINTENANCE. For the duration of this Agreement, the Recipients shall operate and maintain their respective components of the Project at a professional level consistent with the highest industry standards. (c) REPORTS. The Recipients shall submit the requests and reports as specified below in the form specified by the Board. 1) The Recipients' annual audited financial statements shall be prepared according to generally accepted accounting principles for proprietary activities as established by the Governmental Accounting Standards Board. If required by the Board, the Recipients shall submit more frequent financial statements, which may be unaudited, such as an income, expense, and retained earnings statement covering the period having elapsed from the date of the last prior submission and a balance sheet that is not more than thirty (30) days old. If required by the Board, the more frequent financial statements shall also be prepared according to generally accepted accounting principles for proprietary activities as established by the Governmental Accounting Standards Board. Year-end statements must be certified by a Certified Public Accountant (CPA) and must be received by the Board within one hundred eighty (180) days following the Recipients' fiscal year ends. All audits of the Recipients for purposes hereof shall be Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -11 - conducted in accordance with the Government Auditing Standards issued by the Comptroller General of the United States; 2) Final Performance and Status of Funds Reports within sixty days after the date on which the Project is first permanently opened to the public; and 3) A final accounting upon completion of the Project. (d) PROJECT FEES. The Recipients shall promptly pay all construction, appraisal, survey, recording, title, license, permit and other fees and expenses incurred incident to the Project. (e) INTEREST AND SURPLUS PROCEEDS. The Recipients shall return all unexpended proceeds and interest accrued on grant proceeds to the Board within thirty (30) days after the Project Completion Date. (f) CITY BONDS. The City of Dubuque shall, no later than July 30, 2002, successfully issue $12,360,000 in general obligation bond(s) exclusively for the purpose of financing portions of the Project (the "General Obligation Bonds"). The proceeds of all tranches of the General Obligation Bonds shall be deposited in a separate construction fund and shall be fully expended on the City's Component of the Project no later than June 30, 2003, except with the Board's prior written approval which shall not be unreasonably withheld. Failure of the City to issue the General Obligation Bonds or to expend the proceeds thereof by the dates set forth above shall be deemed a default of this Agreement, resulting in the loss of this grant award by the City and the Society. In the event of such a failure, the Board may immediately reallocate the full grant amount or any part(s) thereof to other Vision Iowa projects. Evidence of the issuance and sale of bonds, and the spending of resulting proceeds for Project use, as well as certified copies of the approving opinion(s), evidence of sale and the certified transcript(s) for the $12,360,000 general obligation bond(s) issued for this Project shall be provided to the Board upon request and in any event no later than June 30, 2003. Notwithstanding anything to the contrary herein, the City may, with the Board's consent, postpone the issuance or sale of all or part of the General Obligation Bonds or the deadline for spending of the proceeds thereof. 9.6.2 NEGATIVE COVENANTS. Throughout the term of this Agreement, the Recipients shall not, without prior written disclosure to the Board and prior written consent of the Board (unless Board prior approval is Vision Iowa Grant Award to the - 1 2 - City of Dubuque and the Dubuque County Historical Society July 11, 2001 expressly waived below), directly or indirectly: (a) Assign, waive or transfer any of Recipients' rights, powers, duties or obligations under this Agreement, except for the Facility Management Agreement previously entered into by the City. (b) Sell, transfer, convey, assign, encumber or otherwise dispose of any real property described in Exhibits B and C, or any leasehold interest in any such real property. (c) Except as required or permitted by this Agreement, place or permit any restrictions, covenants or any similar limitations on the real property. (d) Except in the ordinary course of operation or maintenance, remove from the Project site or the State all or any part of the Project. (e) Materially change the ownership, structure, or control of the Recipients affecting the Project, including but not limited to, entering into any merger or consolidation with any person, firm or corporation or permitting substantial distribution, liquidation or other disposal of Recipients' assets directly associated with the Project. Changes in the Recipients' ownership, structure or control which do not materially affect the Project shall require forty-five (45) days prior written notice to the Board, but not written consent of, the Board. The Board shall determine the materiality of the change and whether or not the change affects the Project. (f) Materially change the scope or use of the Project or the nature of the business and activities being conducted, or proposed to be conducted by Recipients, as described in Exhibit A, unless approved in writing by the Board and its bond counsel prior to the change. (g) Use or permit the use of any proceeds of Bonds issued by the Treasurer of the State of Iowa pursuant to Iowa Code Sections 12.71 to12.77, directly or indirectly, in any manner, and shall not take or permit to be taken any other action or actions, including without limitation, use, management and disposition of the Project, which would cause the interest on any Bond to be included in gross income for federal income tax purposes. 9.7 GENERAL INDEMNIFICATION. The Recipients shall, to the extent permitted by the laws and the Constitution of the State of Iowa, indemnify, defend and hold harmless the Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -13- Board, the State of Iowa, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including taxes), and all related costs and expenses (including reasonable attorneys' fees and disbursements and costs of investigation, litigation, settlement, judgments, interest and penalties), arising from or in connection with any of the following: Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the Recipients of any representation or warranty made by the Recipients in the Agreement; Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the Recipients are required to insure against as provided for in this Agreement; and Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Recipients or any of their agents in its or their capacity as an employer of a person. 9.8 TIMELY PERFORMANCE. The parties agree that the dates and time periods specified in this Agreement are of the essence to the satisfactory performance of this Agreement. 9.9 VISION IOWA RECOGNITION. The Project shall permanently recognize, in a manner mutually acceptable to the Parties, the financial contribution to the Project made by the State of Iowa through the Vision Iowa Program. 9.10 REPRESENTATIONS AND WARRANTIES OF RECIPIENTS. To induce the Board to make the Award referred to in this Agreement, the Recipients represent, covenant, and warrant that: 9.10.1 AUTHORITY. The Recipients are duly organized and validly existing under the laws of the State and are in good standing, and have complied with all applicable laws of the State of Iowa. The Recipients are duly authorized and empowered to execute and deliver this Agreement. All action on the part of the Recipients, such as appropriate resolutions of their governing bodies for the execution and delivery of the Agreement, have been effectively taken. 9.10.2 FINANCIAL INFORMATION. Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -14- All financial statements and related materials concerning the Recipients and the Project provided to the Board are true and correct in all material respects and completely and accurately represent the subject matter thereof as of the effective date of the statements and related materials, and no material adverse change has occurred since that date. 9.10.3 APPLICATION. The contents of the Vision Iowa Application submitted by the Recipients on behalf of Recipients to the Board for Vision Iowa funding is a complete and accurate representation of the Recipients and the Project as of the date of submission and there has been no material adverse change in the organization, operation, fixed properties, key personnel or Project plan of the Recipients since the date the Recipients' Vision Iowa Application was approved by the Board. 9.10.4 CLAIMS AND PROCEEDINGS. There are no actions, lawsuits or proceedings pending or, to the knowledge of the Recipients, threatened against the Recipients affecting in any manner whatsoever their right to execute the Agreement, or to otherwise comply with the obligations of the Recipients contained under the Agreement. There are no actions, lawsuits or proceedings at law or in equity, or before any governmental or administrative authority pending or, to the knowledge of the Recipients, threatened against or affecting the Recipients or any property or collateral pledged as security. 9.10.5 PROJECT VALUE. Based on all information known or that should be known by the Recipients the estimated value of the Project is one hundred eight million five hundred eighty thousand eight hundred fifty eight dollars (US$108,580,858). The estimated value of the City's Component is US$71,707,391, and the estimated value of the Society's Component is US$36,873,467. 9.10.6 COMPLIANCE. Each of the Recipients declares that it has complied or will comply, in a timely fashion, with all federal, state and local laws regarding permits, licenses, and clearances that may be required to carry out the Project. 9.10.7 EFFECTIVE DATE. The covenants, warranties and representations of this Article are made as of the date of this Agreement and shall be deemed to be renewed and restated by the Recipients at the time each request for disbursement of funds is submitted to the Board. 9.10.8 REAL PROPERTY. The City hereby represents and warrants that it owns the City's Real Property and the Society's Real Property in fee simple, free and clear of all liens, claims and encumbrances of any kind whatsoever. Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 -15- ARTICLE 10 CONVEYANCE OF REAL PROPERTY During the term of this Agreement no Recipient shall sell, transfer, convey, assign, encumber or otherwise dispose of any real property of the Project, as described in Exhibits B and C, without the written permission of the Board, which permission may be withheld in the sole discretion of the Board. Should the Board grant permission to the Recipients to sell, transfer, convey, assign, encumber or otherwise dispose of any real property of the Project, the Recipients shall repay the full amount of the grant award plus a pro-rata share of the profits realized by the sale of the real property. The Vision Iowa Program shall be entitled to a percentage of the profit realized on any real property sale. The percentage of profit to be allocated to the Vision Iowa Board shall be commensurate with the financial assistance contributed to the Project by the Board. Provided, however, that the Board may waive its right to reimbursement, in whole or in part, if the Board determines, in its sole discretion, that the public interest would best be served thereby. ARTICLE 11 DEFAULT AND REMEDIES 11.1 NOTICE OF EVENT(S) OF DEFAULT. The Recipients shall promptly notify Vision Iowa upon becoming aware of an actual or imminent Event of Default by the Recipients, or by either of them individually. 11.2 EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) MATERIAL MISREPRESENTATION. If at any time any representation, warranty or statement made or furnished to the Board by, or on behalf of, the Recipients in connection with this Agreement or the Application is fraudulent, incorrect, false, misleading or erroneous in any material respect when made or furnished or if it becomes untrue due to some occurrence, act, or omission. (b) NONCOMPLIANCE. If Recipients fail to comply in any material respect with any applicable federal, state, and local laws, rules, ordinances, regulations and orders or if Recipients fail materially to comply with this Agreement. (c) FAILURE TO COMPLETE. If the Project, in the sole judgment of the Board, is not completed on or before June 30, 2005. For the purposes of this section "completed" means the Project is fully constructed and operational. Vision Iowa Grant Award to the - 16 - city of Dubuque and the Dubuque County Historical Society July 11, 2001 (d) FAILURE TO OPERATE AND MAINTAIN. If the Recipients fail to operate and maintain the Project facilities for the duration of this Agreement. (e) RECIPIENT CHANGES. If there is a material change in the Recipients' structure or control that occurs without the prior written disclosure to, and, if required, written permission of, the Board. (f) MISSPENDING. If the Recipients expend Vision Iowa funds in contravention of the laws or rules restricting the use of Vision Iowa funds or if Recipients expend Vision Iowa funds for purposes not described in this Agreement or the exhibits that are integral parts of this Agreement. (g) INSOLVENCY OR BANKRUPTCY If either of the Recipients: (i) becomes insolvent or bankrupt; (ii) admits in writing its inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; (iv) applies for or consents to the appointment of a trustee or receiver for the Recipient or for the major part of its property; has a trustee or receiver appointed for it or for all or a substantial part of its assets, and the order of such appointment is not discharged, vacated or stayed within sixty (60) days after such appointment; or (vi) if bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings or other proceedings for relief under any bankruptcy or similar law or laws for the relief of debtors, are instituted by or against either of the Recipients and, if instituted against either of the Recipients, is consented to, or, if contested by the Recipients is not dismissed by the adverse parties or by an order, decree or judgment within sixty (60) days after such institution. (h). INSURANCE. If the Recipients fail to obtain and maintain any of the bonds or insurance required by this Agreement or if loss, theft, damage or destruction of any substantial portion of the Project property occurs for which there is either no insurance coverage or for which, in the opinion of the Board, there is insufficient insurance coverage. (i) CONVEYANCE OF RESPONSIBILITIES. If Recipients assign, waive or transfer any of Recipients' rights, powers, duties or obligations under this Agreement, without written permission of the Board. (j) CONVEYANCE OF PROPERTY. If Recipients sell, transfer, convey, assign, encumber or otherwise dispose of all or any portion of the real property described in Exhibits B and C, without written Vision Iowa Grant Award to the - 17 - city of Dubuque and the Dubuque County Historical Society July 11, 2001 permission of the Board. 11.3 NOTICE OF DEFAULT. Prior to exercising any remedy herein for an Event of Default, the Board shall issue a written notice of default providing therein a thirty (30) day period in which the Recipients shall have an opportunity to cure, provided that cure is possible and feasible. 11.4 REMEDIES UPON DEFAULT. Upon the happening of any Event of Default, the Board shall have the right to terminate this Agreement and to require immediate repayment of the full amount of funds disbursed to the Recipients under this Agreement plus interest at the rate of ten percent (10%) per annum without presentment, demand, protest, notice of protest, notice of intention to accelerate or other notice of any kind, all of which are expressly waived by the Recipients. 11.5 FUNDING FAILURE. Any termination, reduction or delay of funds available to the Board due, in whole or in part, to (i) a deappropriation of revenues previously appropriated to the Board by the legislature, or (ii) any other reason beyond the Board's control, may, in the Board's discretion, result in the termination, reduction or delay of Vision Iowa funds to the Recipient(s). 11.6 PROCEDURE UPON TERMINATION. If the Agreement is terminated by unanimous agreement of the parties, due to an Event of Default, or pursuant to section 11.5 hereof, disbursements may be allowed, in the discretion of the Board, for costs incurred prior to the date of termination. The Recipients shall return to the Board all unencumbered Grant proceeds, if any, within one (1) week of receipt of Notice of Termination. Any costs previously paid by the Board that are subsequently determined to be unallowable through audit procedures shall be returned to the Board within thirty (30) days of the disallowance. ARTICLE 12 GENERAL PROVISIONS 12.1 BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the Board, Recipients, and their respective successors, legal representatives and assigns. The obligations, covenants, warranties, acknowledgments, waivers, agreements, terms, provisions and conditions of this Agreement shall be jointly and severally enforceable against the parties to this Agreement. 12.2 COMPLIANCE WITH LAWS AND REGULATIONS. 12.2.1 The Recipients shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations and orders when performing within the scope of this Agreement, including, without limitation, those Vision Iowa Grant Award to the - 1 8 - City of Dubuque and the Dubuque County Historical Society July 11, 2001 applicable to the Vision Iowa Program, prevention of discrimination, wages, competitive bidding, environmental protection, occupational safety and health standards, payment of taxes, conflicts of interest, lobbying, and those relating to the use of targeted small businesses as contractors or suppliers. 12.2.2 As required by Iowa Code section 15F.106, the Recipients shall provide and pay at least fifty percent of the costs of a standard medical insurance plan for all full-time employees working at the Project after the completion of the Project. 12.2.3 This Agreement is a public record governed by Iowa Code chapter 22. 12.3 SURVIVAL OF AGREEMENT. Each provision of this Agreement shall be deemed to be severable from all other provisions of the Agreement and, if one or more of the provisions of the Agreement shall be declared invalid, the remaining provisions of the Agreement shall remain in full force and effect. 12.4 CHOICE OF LAW AND FORUM. The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Agreement without regard to the choice of law provisions of Iowa law. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Agreement, the proceeding shall be brought in Des Moines, Iowa, in Polk County District Court for the State of Iowa, if such court has jurisdiction. This provision shall not be construed as waiving any immunity to suit or liability, in state or federal court, which may be available to the Vision Iowa Board, the State of Iowa or their Board members, officers, employees or agents. 12.5 MODIFICATION. Neither this Agreement nor any documents incorporated by reference in connection with this Agreement may be changed, waived, discharged or terminated orally, but only as provided below: (a) WRITING REQUIRED. The Agreement may only be amended through written prior approval of the Board. Examples of situations where amendments are required include extensions for completion of Project activities, changes to the Project including, but not limited to, alteration of existing approved activities or inclusion of new activities. (b) BOARD REVIEW. The Board will consider whether an amendment request is so substantial as to necessitate reevaluating Vision Iowa's original funding decision on the Project. An amendment will be denied by Vision Iowa Grant Award to the - 19 - city of Dubuque and the Dubuque County Historical Society July 11, 2001 the Board if it substantially alters the circumstances under which the Project funding was originally approved or if it does not meet requirements set forth in Iowa Code chapter 15F or 261 Iowa Administrative Code, Chapter 212. 12.6 NOTICES. Whenever this Agreement requires or permits any notice or written request by one party to another, it shall be in writing, enclosed in an envelope, addressed to the party to be notified at the address heretofore stated (or at such other address as may have been designated by written notice), properly stamped, sealed and deposited in the United States Mail. Any such notice given hereunder shall be deemed delivered upon the earlier of actual receipt or three (3) days after posting. The Board may rely on the addresses of the Recipients as set forth heretofore. 12.7 WAIVERS. No waiver by the Board or the Recipients of any default hereunder shall operate as a waiver of any other default or of the same default on any future occasion. No delay on the part of the Board or the Recipients in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by the Board or the Recipients shall preclude future exercise thereof or the exercise of any other right or remedy. 12.8 LIMITATION. It is agreed by the Recipients that the Board shall not, under any circumstances, be obligated financially under this Agreement except to disburse funds according to the terms of the Agreement. 12.9 ENFORCEMENT EXPENSES. The Recipients shall pay upon demand any and all reasonable fees and expenses of the Board relating to the successful enforcement of this Agreement, including the fees and expenses of its attorneys, experts and agents, in connection with the exercise or enforcement of any of the rights of the Board under the Agreement. 12.10 HEADINGS. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction and interpretation of this Agreement. 12.11 EVENT OF BOARD DISSOLUTION. Recipients hereby acknowledge that the Vision Iowa Board is a public instrumentality of the State of Iowa and that, in the event that the Board or its programs are terminated by statute, the State of Iowa shall be entitled to enforce any right, title or interest held by the Board and all Recipients' obligations hereunder shall be owed to the State of Iowa. In the event of such a termination, the approval or consent of the designee of the Governor of the State of Iowa shall be deemed sufficient in any instance where the approval or consent of the Board is required or allowed by this Agreement, unless otherwise provided by statute. Vision Iowa Grant Award to the - 20 - City of Dubuque and the Dubuque County Historical Society July 11, 2001 12.12 INTEGRATION. This Agreement contains the entire understanding between the Recipients and the Board relating to this Project and any representations that may have been made before or after the signing of this Agreement, which are not contained herein, are non-binding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Agreement. 12.13 COUNTERPARTS. 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. IN WITNESS WHEREOF, in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into the above Agreement and have caused their duly authorized representatives to execute this Agreement. FOR THE VISION IOWA BOARD: BY: Michael Gartner, Chairperson Date BY: Dianne Dethmers Paca, Vice-Chairperson FOR THE CITY OF DUBUQUE (RECIPIENT): Date BY: Terry Duggan, Mayor Date FOR THE DUBUQUE COUNTY HISTORICAL SOCIETY (RECIPIENT): BY: Jerry Enzler, Executive Director Date Vision Iowa Grant Award to the City of Dubuque and the Dubuque County Historical Society July 11, 2001 - 21 - 28E AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND THE DUBUQUE COUNTY HISTORICAL SOCIETY FOR THE CONSTRUCTION AND OPERATION OF THE AMERICA'S RIVER PROJECT This Agreement is made and entered into by and between the City of Dubuque, Iowa and the Dubuque County Historical Society pursuant to Chapter 28E of the Iowa Code. WHEREAS, the Vision Iowa Program was established by the Iowa Legislature and the Governor of Iowa to support community projects that build on Iowa's unique assets and values and expand the recreational, cultural, educational, and entertainment opportunities in Iowa; and WHEREAS, the City, the Society and the Dubuque Area Chamber of Commerce submitted a joint application to Vision Iowa requesting assistance in financing their America's River Project. The America's River Project consists of several components, including the Mississippi River National Education and Conference Center and the Mississippi River Discovery Center and Aquarium, as well as other components set forth in Recipients' Vision Iowa Application; and WHEREAS, Vision Iowa found the America's River Project to meet the requirements established for participation in the Vision Iowa Program; and WHEREAS, the Board, on April 11, 2001, unanimously voted to award a grant not to exceed forty million dollars (US$40,000,000) for construction of the America's River Project, subject to the terms and conditions of the Vision Iowa Grant Agreement (Grant Agreement) attached hereto. WHEREAS, the City and the Society desire to provide for their mutual cooperation with respect to the construction and operation of the America's River Project. NOW THEREFORE, in consideration of the mutual promises contained herein the City and the Society agree as follows: ARTICLE 1 IDENTITY OF THE PARTIES 1.1 The City of Dubuque (the City) is a municipality of the State of Iowa, organized and operating pursuant to Iowa Code chapter 364. its address is 50 W. 13th St, Dubuque, IA 52001. 1.2 The Dubuque County Historical Society (the Society) is an Iowa nonprofit corporation established pursuant to Iowa Code chapter 504A. Its address is P.O. Box 266, Dubuque, IA 52001. 1.3 The America's River Project (the Project) consists of the components including the Mississippi River National Education and Conference Center, the Mississippi River Discovery Center and Aquarium, a Riverfront Hotel and Indoor Water Park, and Amenities, Greenways, Smart Growth, Riverwalk and Infrastructure. 1.4 The Society's Component will be constructed on real property owned by the City and leased to the Society pursuant to a lease between the City and the Society (the Lease): ARTICLE 2 DURATION 2.1 This Agreement shall remain in effect dudng the term of the Award Agreement. ARTICLE 3 NO SEPARATE ENTITY CREATED 3.1 No separate legal or administrative entity shall be created by this Agreement. 3.2 A joint board of the parties known as the America's River Board (the Board) shall be responsible for coordinating the construction and operation of the Project. The joint board shall comprise the City's Mayor and City Manager and the Society's Executive Director and Board Chairperson. 3.3 The Board shall meet from time to time dudng the term of this Agreement to review the construction and operation of the Project. ARTICLE 4 PURPOSE 4.1 The purpose of this Agreement is to provide for the manner in which the parties shall cooperate with one another to successfully complete the Project. ARTICLE 5 MANNER OF FINANCING 5.1 Each of the parties shall be responsible for financing, constructing, operating and maintaining its respective Component of the Project without any additional financial assistance from the other party. Additional financial assistance means any financial assistance that was not agreed to by the parties pdor to the date of this Agreement. ARTICLE 6 TERMINATION 6.1 The Agreement shall automatically terminate upon termination of the Award Agreement unless the parties agree otherwise. ARTICLE 7 EFFECTIVE DATE 7. i This Agreement shall take effect upon execution by the parties as required by law, filing with the secretary of state and recording with the county recorder. ARTICLE 8 AMENDMENT OF AGREEMENT 8.1 This Agreement may be amended by the same procedure by which this Agreement was executed. ARTICLE 9 DISPUTE RESOLUTION 9.1 Any dispute between the parties adsing out of or within the scope of the interpretation, construction or application of this Agreement shall, pdor to the commencement of any formal legal proceedings, be submitted to arbitration. Either party may submit to the other a wdtten request for arbitration. V~thin ten days after the date of such request, the City and the Society shall each select one arbitrator and notify the other party of the name and address of such arbitrator. The arbitrators so selected shall within ten days after being notified of their selection, select a third arbitrator and after doing so, shall notify the City and the Society in wdting forthwith of the name and address of the third arbitrator. The arbitrator proceedings shall be govemed by Iowa Code Chapter 679A. ARTICLE 10 EFFECT OF DEFAULT UNDER AWARD AGREEMENT 10.1 The Society and the City shall indemnify and hold each other harmless from any and all claims, costs, damages, payments and expenses arising out of the other party's default under the Grant Agreement. If the Society fails to so indemnify and hold the City harmless within ninety days after demand therefor by the City, such failure shall constitute a default under the terms of the Lease and the City shall be entitled to any remedy set forth in the Lease or otherwise allowed by law. If the City elects to forfeit the Lease and if the fair market value of the Leased Premises at the time of such forfeiture exceeds the amount of the City's demand for indemnity, then the City's exclusive remedy for the Society's failure to indemnify shall be by such forfeiture. Fair market value shall be determined by an appraisal of the Leased Premises by a certified appraiser experienced in appraising similar types of properties in the Dubuque area mutually selected by the City and the Society. If either party is dissatisfied with the appraisal or the parties cannot agree on an appraiser, each shall, not later than forty-five (45) days after the City's demand for indemnity, appoint its own appraiser, each of which shall be experienced in appraising similar types of properties in the Dubuque area and the two appointed by the parties shall select a third experienced appraiser. The average appraised values of the three appraisers shall be the appraised value of the Leased Premises for the purposes of this paragraph. 10.2 The failure by the Society to finance, construct, operate or maintain its Component of the Project without additional financial assistance from the City shall constitute a default under the terms of the Lease and the City shall be . entitled to any remedy set forth in the Lease or otherwise allowed by law. 10.3 This Article 10 shall net be subject to the arbitration requirement set forth in Article 9. FOR THE CITY OF DUBUQUE BY: Terry Duggan, Mayor Date FOR THE DUBUQUE COUNTY HISTORICAL SOCIETY BY: Jerry Enzler, Executive Director Date 11.4 REMEDIES UPON DEFAULT. Upon the happening of any Event of Default, the Board shall have the dght to terminate this Agreement and, during the first ten years of this Agreement, to require immediate repayment of the full amount of funds disbursed to the Recipients under this Agreement plus interest at the rate often percent (10%) per annum (which interest shall begin to accrue from the date of default) without presentment, demand, protest, notice of pretest, notice of intention to accelerate or other notice of any kind, all of which are expressly waived by the Recipients. Beginning on the tenth anniversary of the effective date of this Agreement, the principal amount to be repaid by the Recipients shall reduce by ten percent (10%) per year.