Loading...
Enterprise Zone Agreement_Sustainable Land Development IntlTO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Enterprise Zone Program Agreement Number 08-EZ-023 for Sustainable Land Development International DATE: April 28, 2008 Economic Development Director Dave Heiar is recommending approval of an Enterprise Zone Program Agreement between the Iowa Department of Economic Development, the City of Dubuque and Sustainable Land Development International. The agreement outlines the State benefits that will accrue to the company based on their completion of their expansion project in the Warehouse District, which is estimated to create 57 new jobs. I concur with the recommendation and respectfully request Mayor and City Council approval. ~-~, Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar Economic Development Director THE CITY OF Dubuque DUB E "'~" _ ~ r Masterpiece on the Mississippi 2007 April 25, 2008 TO: Michael Van Milligen, City Manager FROM: David J. Heiar, Economic Development Director SUBJECT: Enterprise Zone Program Agreement Number 08-EZ-023 for Sustainable Land Development International INTRODUCTION This memorandum presents for City Council approval an Enterprise Zone Program Agreement by and among the Iowa Department of Economic Development (IDED), the City and Sustainable Land Development International. The City Council is requested to adopt a resolution approving the agreement. BACKGROUND On January 4, 2008, the City Enterprise Zone Commission approved an application to IDED on behalf of Sustainable Land Development International for Enterprise Zone benefits related to an expansion of their business in the Warehouse District (1000 Jackson Street). IDED approved the application on January 17, 2008. DISCUSSION Attached to this memorandum is a resolution that provides for the approval of the agreement for Enterprise Zone benefits for Sustainable Land Development International. The resolution authorizes and directs the Mayor to execute the agreement on behalf of the City. The agreement outlines the State benefits that will accrue to the company based on their completion of the expansion project. The project is estimated to create 57 new jobs. Sustainable Land Development International has estimated an investment of $8,795,000 within the Enterprise Zone related to the expansion project (See Attachment C for detailed information). A copy of the agreement is attached to the resolution. RECOMMENDATION I recommend that the City Council approve the proposed Enterprise Zone Program Agreement for Sustainable Land Development International by adopting the attached resolution. This agreement will provide State of Iowa financial benefits to a local business making a substantial investment in our downtown. There is no commitment within the agreement of any further City assistance. ACTION STEP The action step for the Council is to adopt the attached resolution. attachments F:\USERS\Adejong\Enterprise Zone\SLDI\20080425 SLDI Council Memo.doc Prepared by: Aaron DeJong, Asst. ED Director, 50 West 13th Street, Dubuque IA 52001 563 589-4393 Return to: Jeanne Schneider, City Clerk, 50 West 13th Street, Dubuque IA 52001 563 589-4121 RESOLUTION NO. 149-08 RESOLUTION APPROVING AN ENTERPRISE ZONE PROGRAM AGREEMENT BYAND AMONG THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, THE CITY OF DUBUQUE AND SUSTAINABLE LAND DEVELOPMENT INTERNATIONAL. Whereas, the City of Dubuque has established two Enterprise Zones and an Enterprise Zone Commission; and Whereas, the Enterprise Zone Commission on January 4, 2008 approved the application of Sustainable Land Development International for Enterprise Zone benefits; and Whereas, Sustainable Land Development International application was approved by the Iowa Department of Economic Development on January 17, 2008; and Whereas, the Iowa Department of Economic Development has prepared and submitted for City Council approval an agreement relating to Enterprise Zone benefits for Sustainable Land Development International a copy of which is attached hereto and by this reference made a part hereof; and Whereas, the City Council finds that the proposed agreement is acceptable and necessary to the growth and development of the city. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Iowa Department of Economic Development Enterprise Zone Program Agreement, Number 08-EZ-023, is hereby approved. Section 2. That the Mayor is hereby authorized and directed to execute the Agreement on behalf of the City of Dubuque and forward the executed copy to the Iowa Department of Economic Development for their approval. Passed, approved and adopted this 5th day of May, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, City Clerk F:\USERS\Adejong\Enterprise ZonelSLDI\20080505 SLDI Contract Resolution.doc CERTIFICATE OF CITY CLERK STATE OF IOWA ) COUNTY OF DUBUQUE ) I, Jeanne F. Schneider, do hereby certify that I am the duly appointed, qualified, and acting Clerk of the City of Dubuque, Iowa in the County aforesaid, and as such Clerk 1 have in my possession or have access to the records of the proceedings of the City Council. I do further state that the hereto attached Resolution No. 149-08 is a correct copy of the original Resolution No. 149-08 approved and adopted by the City Council of the City of Dubuque, Iowa, at a session held by said Council on the 5th day of May, 2008. In Testimony Whereof, I hereunto set my hand and official seal of~the City of Dubuque, Iowa. Dated at Dubuque, Iowa on this 6th day of May, 2008. ~~ Jeanne F. Schneider, CMC City Clerk (SEAL) - ~~~ r r May 12, 2008 Mr. Anthony Wernke, President Sustainable Land Development International Warehouse District 275 East Tenth Street, Ste. 201 Dubuque, IA 52001 RE: Financial Assistance Program Awards Award Date: January 17, 2008 Contract Number: P0801 M01582 Dear Mr. Wernke: Enclosed is a copy of the executed Enterprise Zone (EZ) contract and Entrepreneurial Ventures Assistance (EVA) royalty agreement between Sustainable Land Development International, the City of Dubuque, and the Department, for your records. The contract has an effective date of May 12, 2008. Please refer to the master contract, funding agreement and royalty agreement for conditions that must be met during the term of the contract. Prior to disbursement of funds the items under Article 1.7 of the royalty agreement, must be provided to the Department. Once al! documents have been received, as identified in Article 5 of the master contract, you will be issued a tax credit certificate number which the Iowa Department of Revenue is now requiring for all tax credits claimed in 2006 and future years. Also, you will 1'tnd a request for payment form to complete and sign when eligible costs are incurred for payment. Should you have any questions, please feel free to contact me at 515/242-4872 Sincerely, ~ ~-- y~ Julie Malone, Project Manager Legal and Compliance Enclosures cc: Mayor Roy D. Buol, City of Dubuque IDED file Chester J. Culver, Governor IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT PattyJudge, LieutenarrtGovemor Mike TramorrGna, Director • 200 East Grand Avenue, Des Moines, Iowa USA 50309 ~ Phone: 5152424700 • Pax 515.2424809 • www.iowal'rfechanging.com MASTER CONTRACT BY AND BETWEEN Sustainable Land Development International AND THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT CONTRACT NUMBER: P0801M01582 TABLE OF CONTENTS ARTICLE I . MASTER CONTRACT DURATION; FUNDING AGREEMENT DURATION ARTICLE 2. FUNDING Article 2.1 Funding Sources Article 2.2 Reduction, Discontinuance or Alteration of Funding ARTICLE 3. CONTRACT STRUCTURE AND DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; ORDER OF PRIORITY Article 3.1 Contract Structure and Definitions Article 3.2 Documents Incorporated by Reference Article 3.3 Business's Financial Assistance Application on File Article 3.4 Order of Priority ARTICLE 4. AWARD Article 4.1 Description of the Project and Award Budget Article 4.2 Job Obligations Article 4.3 Repayment Obligation ARTICLE 5. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS Article S.1 Documents Submitted Article 5.2 Prior Costs Article 5.3 Cost Variation Article 5.4 Suspension of Disbursement Article S.5 Investment ofAwardProceeds ARTICLE 6. SECURITY; CROSS-COLLATERALIZATION Article 6.1 Secured Property Article 6.2 .Value of Collateral Article 6.3 Additional or Substitute Collateral ARTICLE 7. REPRE SENTATIONS AND WARRANTIES Article 7.1 Organization and Qualifrcations Article 7.2 Authority and Validity of Obligations Article 7.3 Use of Proceeds Article 7.4 Subsidiaries Article 7.5 Financial Reports Article 7.6 No tLfaterial Adverse Change Article 7.7 Full Disclosure; Business's Financial Assistance Application Article 7.8 Trademarks, Franchises and Licenses Article 7.9 Governmental Authority and Licensing Article 7,10 Litigation and Other Controversies Article 7.11 Good Title Article 7.12 Tazes Article 7,13 Other Contracts Article 7.14 No Default Article 7,15 Compliance with Laws Article 7.16 Effective Date of Representations and Warranties Contract # P0801 M01582 - 2 - ntasrer updated aro7 ARTICLE 8. COVI Article 8.1 Article 8.2 Article 8.3 Article 8.4 Article 8.5 Article 8.6 Article 8.7 Article 8.8 Article 8.9 Article 8.10 Article 8.11 Article 8.12 Article 8.13 Article 8.14 Article S.IS Article 8.16 Article 8.17 sNANTS Maintain Existence in Iowa Job Obligations; Benefits Requirements Performance Obligations Maintenance of Properties Taxes and Assessments Insurance Required Reports Inspection and Audit Compliance with Laws Use ofAward Proceeds Changes in Business Ownership, Structure or Control Notice of Meetings Notice of Proceedings Accounting Records Restrictions No Changes in Business Operations Indemniftcation ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES Article 9.1 Events of Default Article 9.2 Default Remedies Article 9.3 Default Interest Rate Article 9.4 Expenses Article 9. S Notice of Default and Opportunity to Cure ARTICLE 10. MISC Article 10.1 Article 10.2 Article 10.3 Article 10.4 Article 10. S Article 10.6 Article 10.7 Article 10.8 Article 10.9 Article 10.10 Article I D.11 Article 10.12 Article 10.13 Article 10.14 Article 10.1 S ELLANEOUS Timely Performance State of Iowa Recognition Choice of Law and Forum Governing Law Master Contract/Funding Agreement Amendments Notices Headings Final Authority Waivers Counterparts Survival of Representations Severability of Provisions Successors and Assigns Termination Integration Contract # P0801 M01582 - 3 - Master updated sro7 MASTER CONTRACT BUSINESS; SUSTAINABLE LAND DEVELOPMENT INTERNATIONAL MASTER CONTRACT NUMBER: P0801M01582 AWARD DATE: January 17, 2008 This FINANCIAL ASSISTANCE CONTRACT (the "Master Contract") is made as of the CONTRACT EFFECTIVE DATE by and between the Iowa Department of Economic Development ("IDED"), 200 East Grand Avenue, Des Moines, IA 50309 and Sustainable Land Development International a Minnesota cooperative ("Business"), 275 East Tenth Street, Suite 201, Dubuque, IA 52001. WHEREAS, the Business submitted an application to IDED requesting financial assistance in the financing of its Project as more fully described in Exhibit C, Description of the Project and Award Budget, (the "Project"); and WHEREAS, the IDED found the Project to meet the requirements established to receive financial assistance; and WHEREAS, the IDED and/or the Iowa Department of Economic Development Board ("IDED Board") have awarded the Business financial assistance from one or more IDED-administered programs for the Project, all of which are subject to the terms and conditions set forth herein and collectively referred to as the "Award"; and NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound, the Business and IDED agree to the following terms: ARTICLE 1 MASTER CONTRACT DURATION; FUNDING AGREEMENTS DURATION This Master Contract shall be in effect until all of Business's obligations and liabilities under this Master Contract and all of the Funding Agreements executed in connection with this Master Contract have been satisfied. The duration of each Funding Agreement will be as described in the Funding Agreement. ARTICLE 2 FUNDING 2.1 Funding Sources. The sources of funding for this Award are appropriations to IDED for financial assistance programs administered by the IDED and tax credit programs that IDED is authorized to administer. 2.2 Reduction. Discontinuance or Alteration of Fundin Any termination, reduction, or delay of funds available due, in whole or in part, to (i) lack of, reduction in, or a deappropriation of revenues previously appropriated by the legislature for this Award, or (ii) any other reason beyond the IDED's control may, in the IDED's discretion, result in the termination, reduction or delay of funds to the Business. Contract # P0801 M01582 - 4 - Master updated aio~ ARTICLE 3 CONTRACT STRUCTURE AND DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY 3.1 Contract Structure and Definitions. (a) This Award shall be governed by this Master Agreement and the individual funding agreements (the "Funding Agreements") for each source of program assistance for this Award. This Award has been provided to the Business to fund the Project described in Exhibit C, Description of the Project and Award Budget. The Articles of this Master Contract apply to each Funding Agreement unless a Funding Agreement specifically states otherwise. (b) The following terms apply to this Master Contract and each of the Funding Agreements, unless otherwise specified in a Funding Agreement: "Award Date" means the date first stated in this Master Contract and is the date the IDED and/or the IDED Board approved the awarding of financial assistance to the Business for the Project. "Benefits Requirements" means the benefits requirements established by the Department pursuant to statute or rule for each program that is providing financial assistance or tax credit benefits for this Project. "Business's Employment Base" means the number of jobs as stated in Exhibit D, Job Obligations that the Business and IDED have established as the job base for this Project. The number of jobs the Business has pledged to create shall be in addition to the Business's Employment Base. "Created Jobs" means the number of new FTE Jobs the Business will add over and above the Business's Employment Base. . "Community" means City of Dubuque. "Eligible Beneftts" means all of the following: medical and dental insurance plans, pension and profit sharing plans, child care services, life insurance coverage, vision insurance plan, and disability coverage. "Forgivable Loan" means a form of an award made by the IDED to the Business under a Funding Agreement(s) for which repayment is eliminated in part or entirely if the Business satisfies the terms of this Contract and the Funding Agreement(s). "Full-time Equivalent (F7'E) Job" means the employment of one person: (a) For 8 hours per day fora 5-day, 40-hour workweek for 52 weeks per year, including paid holidays, vacations and other paid leave, or (b) For the number of hours or days per week, including paid holidays, vacations and other paid leave, currently established by schedule, custom, or otherwise, as constituting a week of full-time work for the kind of service an individual performs for an employing unit. "Job Maintenance Period" means the date two (2) years from the Project Completion Date as stated in Exhibit C, Description of the Project and Award Budget. The Business shall maintain the Project, and the created retained jobs through the Job Maintenance Period. Contract # P0801 M01582 - 5 - Masrer updated di07 "Job Obligations" means the Business's Employment Base number and the new jobs to be created that pay the required wages and benefits, all as outlined in Exhibit D, Job Obligations. "Loan" means form of an award made by the IDED to the Business under a Funding Agreement(s) for which full repayment is expected. "Project" means the description of the work and activities to be completed by the Business as outlined in Exhibit C, Description of the Project and Award Budget, Exhibit D, Job Obligations, and Exhibit A, Business's Financial Assistance Application. "Project Completion Date" means the date three (3) years from the Award Date as stated in Exhibit C, Description of the Project and Award Budget. The Project Completion Date is the date by which all Project activities shall be satisfactorily completed. "Qualifying jobs" are those created or retained jobs that meet or exceed the Qualifying Wage Threshold Requirement established for the programs providing assistance to this Project qualify for program funding. "Qualifying Wage Threshold Requirement" means the wage threshold requirement (e.g. 90%, 100%, 130°to , 160% of the average county or regional wage rate) established by the Department pursuant to statute or rule for each program that is providing financial assistance or tax credit benefits for this Project. The Qualifying Wage Threshold Requirement for each funding source providing assistance to this Project is outlined in Exhibit D, Job Obligations. "Retained Job" means an existing job that meets the Qualifying Wage Threshold Requirements and would be eliminated or moved to another state if the Project did not proceed in Iowa. 3.2 Documents Incorporated by Reference. The following documents are incorporated by reference and considered an integral part of this Master Contract: Exhibit A - Business's Financia! Assistance Application, Application # 0$-EZ-023 Exhibit B - Funding Agreements: B4- EZ Funding Agreement Exhibit C - Description of the Project and Award Budget Exhibit D - Job Obligations 3.3 Business's Financial Assistance Application on File. Due to its size, Exhibit A will not be attached to this Master Contract, but will be kept on file at the Iowa Department of Economic Development. It shall, nevertheless, be considered an incorporated element of this Master Contract and the Funding Agreements. 3.4 Order of Priority. In the case of any inconsistency or conflict between the specific provisions of this document and the exhibits, the following order of priority shall control: (a} Master.Contract, Articles 1-10 (b) Exhibit B -Funding Agreements (c) Exhibit C -Description of the Project and Award Budget (d) Exhibit D -Job Obligations (e) Exhibit A -Business's Financial Assistance Application Contract # P0801 M01582 - 6 - Master updated sro~ ARTICLE 4 AWARD 4.1 Description of the Project and Award Budget. The IDED and/or the IDED Board have approved an Award to the Business from the programs and in the amounts identified in Exhibit C, Description of the Project and Award Budget. The Project Budget for this Award is as detailed in Exhibit C. 4.2 Job Obli atg ions. The IDED and/or the IDED Board have approved an Award to the Business and the Business' Job Obligations are outlined in Exhibit D, Job Obligations. 4.3 Repayment Obligation. The obligation to repay the direct financial assistance components of this Award shall be evidenced by Promissory Notes executed in connection with the Funding Agreements. ARTICLE 5 CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS The obligation of IDED to make, continue or disburse funds under this Master Contract and the Funding Agreements shall be subject to the following conditions precedent: 5.1 Documents Submitted. IDED shall have received each of the following documents, properly executed and completed, and approved by IDED as to form and substance: (a) Master Contract. Fully executed Master Contract. (b) Funding Agreements. Fully executed Funding Agreements.. (c) Promissor~Notes. The Promissory Notes required by the Funding Agreements. (d} Articles of~ncorporation. Copies of the articles of incorporation of the Business, certified in each instance by its secretary or assistant secretary. (e) Certificate o Corporate Existence. A certificate of existence for the Business from the Office of the Secretary of State of Iowa. (f) Results of Lien and Tax Search. Financing statement,. tax and judgment lien search results, in the Business's state of incorporation/organization, against the Business and Secured Property. (g) Security Documents. The fully executed Security Documents required in Article 6.0. (h) Other Required Documents. IDED shall have received such other contracts, instruments, documents, certificates and opinions as the IDED may reasonably request. (i} Hazardous Waste Audit. To comply with Iowa Code section 15A.1(3)"b," ifthe Business generates solid or hazardous waste, it must either: a} submit a copy of the Business's existing in-house plan to reduce the amount of waste and safely dispose of the waste based on an in-house audit conducted within the past 3 years; or b) submit an outline of a plan to be developed in-house, or 3) submit documentation that the Business has authorized the Iowa Department of Natural Resources or Iowa Waste Reduction Center to conduct the audit. Contract # P0801 MO'1582 - 7 - Masterupdated 8J07 (j) Release Form -Confidential Tax Information A signed Authorization for Release of Confidential State Tax Information form to permit IDED to receive the Business's state tax information directly from the Iowa Department of Revenue for purposes of annually updating the Iowa Public Retum on Investment Analysis. (k} Satisfactory Credit History Documentation of satisfactory credit history of the Business and guarantors, as applicable, with no judgments or unsatisfied liens or similar adverse credit actions. (1) Protect Financial Commitments The Business shall have submitted documentation acceptable to IDED from the funding sources identified in Exhibit C committing to the specified financial involvement in the Project and received the IDED's approval of the documentation. The documentation shall include the amount, terms and conditions of the financial commitment, as well as any applicable schedules. (m) Requests for Disbursement. All disbursements of Award proceeds shall be subject to receipt by the IDED of requests for disbursement, in form and content acceptable to IDED, submitted by the Business. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award proceeds. (n) Funding Agreements Disbursement Reguirements Satisfaction of all disbursement requirements outlined in the specific program Funding Agreements. 5.2 Prior Costs. No expenditures made prior to the Award Date may be included as Project costs. This restriction applies to the direct financial assistance portions of this Award, not the tax credit benefits included in this Award. 5.3 Cost Variation. In the event that the total Project cost is less than the amount specified in the Exhibit C, the Funding Agreements shall be reduced at the same ratio to the total Project cost reduction as the ratio of the Funding Agreement amount to the total amount of funds provided by the Business and all funding sources requiring a proportional reduction of their financial contribution to the Project. Any disbursed excess above the reduced IDED participation amount shall be returned immediately to IDED. 5.4 Suspension of Disbursement. Upon the occurrence of an Event of Default (as defined in this Master Contract or any of the Funding Agreements) by the Business, the IDED may suspend payments and tax"credit program benefits to the Business until such time as the default has been cured to IDED's satisfaction. Notwithstanding anything to the contrary in this Master Contract or the Funding Agreements, upon a termination of this Master Contract on account of an Event of Default by the Business, Business will no longer have the right to receive any disbursements or any tax credit program benefits after the effective date of default. All Award funds may also be suspended, in IDED's sole discretion, in the event the Business experiences a layoff within the state of Iowa or closes any of its Iowa facilities. 5.5 Investment of Award Proceeds. (a) In the event that the Award proceeds are not immediately utilized, temporarily idle Award proceeds held by the Business 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 Award proceeds held by the Business shall be credited to and expended on the Project prior to the expenditure of other Award proceeds. (b) All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the IDED within thirty (30) days after the Project Completion Date. Contract # P0801 M01582 - 8 - Master uodared a/o7 Within ten { 10) days of receipt of a written request from IDED, Business shall inform the IDED in writing of the amount of unexpended Award funds in the Business's possession or under the Business's control, whether in the form of cash on hand, investments, or otherwise. ARTICLE 6 SECURITY; CROSS-COLLATERALIZATION The Business shall execute in favor of the IDED all security agreements, financing statements, mortgages, personal and/or corporate guarantees (the "Security Documents") as required by the IDED. 6.1 Securi .This Award shall be secured by: None required (the "Secured Property'? 6.2 Value of Collateral. The value, as reasonably determined by IDED, of the Secured Property shall meet or exceed the amount of Award funds disbursed. 6.3 Additional or Substitute Collateral. In case of a decline in the market value of the Secured Property, or any part thereof, IDED may require that additional or substitute collateral of quality and value satisfactory to IDED be pledged as Secured Property for this Award. The Business shall provide such additional or substitute collateral Secured Property within 20 days of the date of the request for additional or substitute collateral to secure this Award in an amount equal to or greater than the amount of outstanding Award funds. ARTICLE ? REPRESENTATIONS AND WARRANTIES The Business represents and warrants to IDED as follows: 7.1 Organization and Qualifications. The Business is duly organized, validly existing and in good standing as a corporation under the state of its incorporation. The Business has full and adequate power to own its property and conduct its business as now conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the property owned or leased by it requires such licensing or qualifying, except where the failure to so qualify would not have a material adverse effect on the Business's ability to perform its obligations hereunder. 7.2 Authority and Validity of Obligations. The Business has full right and authority to enter into this Master Contract and the Funding Agreements and to make the borrowings herein provided for. The person signing this Master Contract and the Funding Agreements has full authority to: a) sign this Master Contract and the Funding Agreements, and b) issue Promissory Notes on behalf of the Business, and c) secure Business's obligations under this Master Contract and the Funding Agreements, and d) perform each and all of the obligations under the Master Contract and its Funding Agreements. The Master Contract and Funding Agreement documents delivered by the Business have been duly authorized, executed and delivered by the Business and constitute the valid and binding obligations of the Business and enforceable against it in accordance with their terms. This Master Contract, the Funding Agreements and related documents do not contravene any provision of law or any judgment, injunction, order or decree binding upon the Business or any provision of the articles of organization or operating agreement of the Business, contravene or constitute a default under any covenant, indenture or contract Contract # P0801 M01582 - 9 - nfaster updated aro~ of or effecting the Business or any of its properties. 7.3 Use of Proceeds. The Business hereby agrees to use Award proceeds only for the Project and for the activities described in Exhibit C, Description of the Project and Award Budget, this Master Contract and the Funding Agreements. Use of Award proceeds shall conform to the Budget for the Project as detailed in Exhibit C. The Business represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit C. 7.4 Subsidiaries. The Business has no Subsidiaries on the Contract Effective Date. 7.5 Financial Reports. The balance sheet of the Business furnished to IDED as of the Contract Effective Date, fairly presents its financial condition as at said date in conformity with GAAP applied on a consistent basis. The Business has no contingent liabilities which are material to it, other than as indicated on such financial statements or, with respect to future periods, on the financial statements furnished to IDED. 7.6 No Material Adverse Chance. Since the Award Date, there has been no change in the condition (financial or otherwise) or business prospects of the Business, except those occurring in the ordinary course of business, none of which individually or in the aggregate have been materially adverse. To the knowledge of the Business, there has been no material adverse change in the condition of the Business (financial or otherwise) or the business prospects of the Business 7.7 Full Disclosure; Business's Financial Assistance Application. The statements and other information furnished to the IDED by Business in its Financial Assistance Application and in connection with the negotiation of this Master Contract and the Funding Agreements do not contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading. The IDED acknowledges that as to any projections furnished to the IDED, the Business only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. 7.8 Trademarks, Franchises and Licenses. The Business owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, know how and confidential commercial and proprietary information to conduct its businesses as now conducted, without known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person. As used in this Master Contract, "Person " means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. 7.9 Governmental Authority and Licensing. The Business has received all licenses, permits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to conduct its businesses, in each case where the failure to obtain or maintain the same could reasonably be expected to have a material adverse effect. No investigation or proceeding which, if adversely determined, could reasonably be expected to result in revocation or denial of any material license, permit, or approval is pending or, to the knowledge of the Business threatened. 7.10 Litigation and Other Controversies. There is no litigation or governmental proceeding pending, nor to the knowledge of the Business threatened, against the Business which if adversely determined would result in any material adverse change in the financial condition, Properties, business or operations of the Business, nor is the Business aware of any existing basis for any such litigation or governmental proceeding. Contract # P0801 M01582 - 10 - Master updates aro7 7.11 Good Title. The Business has good and defensible title (or valid leasehold interests) to all of its Property (including, without limitation, the Secured Property) reflected on the most recent balance sheets furnished to the IDED (except for sales of assets in the ordinary course business). 7.12 Taxes. All tax returns required to be filed by the Business in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Business or upon any of its property, income or franchises, which are shown to be due and payable in such returns, have been paid, except such taxes, assessments, fees and governmental charges, if any, as are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves established in accordance with GAAP have been provided. The Business knows of no proposed additional tax assessment against it for which adequate provisions in accordance with GAAP have not been made on its accounts. Adequate provisions in accordance with GAAP for taxes on the books of the Business have been made for all open years, and for their current fiscal period. 7.13 Other Contracts. The Business is not in default under the terms or any covenant, indenture or contract of or affecting either the Business or any of its properties, which default, if uncured, would have a material adverse effect on its financial condition, properties, business or operations. 7.14 No Default. No Default or Event of Default has occurred or is continuing. 7.15 Compliance with Laws. The Business is in compliance with the requirements of all federal,. state and local laws, rules and regulations applicable to or pertaining to the business operations of the Business and laws and regulations establishing quality criteria and standards for air, water, land and toxic or hazardous wastes or substances, non-compliance with which could have a material adverse effect on the financial condition, properties, business or operations of the Business. The Business has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental or health and safety statutes and regulations or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could have a material adverse effect on the financial condition, properties, business or operations of the Business. 7.16 Effective Date of Representations and Warranties. The warranties and representations of this Article are made as of the Contract Effective Date and shall be deemed to be renewed and restated by the Business at the time each request for disbursement of funds is submitted to the IDED. ARTICLE 8 COVENANTS $. l Maintain Existence in Iowa. The Business shall at all times preserve and maintain its existence as a corporation in good standing and maintain the Project in Iowa. The Business will preserve and keep in force and affect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights and other proprietary rights necessary to the proper conduct of its respective business. 8.2 Job Obligations; Benefits Requirements. (a) Jobs and Wages. By the Project Completion Date, the Business shall create/retain the number of FTE Created Jobs and Retained Jobs above the Business's Employment Base and maintain Contract # P0801 M01582 - 11 - Master updated a~o~ the jobs through the Job Maintenance Period, all as detailed in Exhibit D. The Business shall pay the wage rates identified in Exhibit D. (b) Benefits. The Business shall provide and pay for the eligible benefits described in Exhibit A, Business's Financial Assistance Application, with an Average Benefit Value calculated by IDED and shown in Exhibit D. During the Contract period the Business may adjust the benefit package provided the Average Benefit Value does not fall below the minimum benefit threshold requirement (e.g., 80% of medical and dental insurance) for the funding source that is assisting the Project and provided the benefit package includes eligible benefits. 8.3 Performance Obli atg ions. By the Project Completion Date, Business shall complete the Project, make the total investment pledged for the Project and in accordance with the Award Budget as detailed in Exhibit C and comply with all other performance requirements described in this Master Contract and the Funding Agreements. The Business shall promptly provide IDED with written notice of any major changes that would impact the success of the Project. 8.4 Maintenance of Properties. The Business shall maintain, preserve and keep its properties in good repair, working order and condition (ordinary wear and tear excepted) and will from time to time make all needful and proper repairs, renewals, replacements, additions and betterments thereto so that at all time the efficiency thereof shall be fully preserved and maintained in accordance with prudent business practices. 8.5 Taxes and Assessments. The Business shall duly pay and discharge all taxes, rates, assessments, fees and governmental charges upon or against it against its properties, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. 8.6 Insurance. The Business shall insure and keep insured in good and responsible insurance companies, all insurable property owned by it which is of a character usually insured by Persons similarly situated and operating like properties against loss or damage from such hazards or risks as are insured by Persons similarly situated and operating like properties; and the Business shall insure such other hazards and risks (including employers' and public liability risks) in good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses. The Business will upon request of the IDED furnish a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Article. 8.7 Required Reports. (a) Review of Disbursement Requests and Reports. The Business shall prepare, sign and submit disbursement requests and reports as specified in this Master Contract in the form and content required by IDED. The Business shall review all reimbursement requests and verify that claimed expenditures are allowable costs. The Business shall maintain documentation adequate to support the claimed costs. (b) Reports. The Business shall prepare, sign and submit the following reports to the IDED throughout the Contract period: Contract # P0801 M01582 - 12 - Master updated 8~0~ Report Due Date Annual Project Status Report The Annual Project Status Report will collect July 31~` for the period ending June 30th information from the Business about the status of the project. This report will collect data such as current employment levels, number of jobs that meet or exceed the Qualifying Wage Threshold Requirements (with and without benefits), project expenditures, including amount spent on research and development, any changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. End of Project Report The End of Project Report will collect Within 30 days of Project Completion Date information from the Business about the completed project such as final employment levels, number of jobs that meet or exceed the Qualifying Wage Threshold Requirements (with and without benefits), project expenditures and changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. End of Job Maintenance Period Report The End of Job Maintenance Period Report will Within 30 days of the end of the Job collect information from the Business's Maintenance Period continued maintenance of employment levels and Qualifying Wage Threshold Requirements (with and without benefits) that were verified at the Project Completion Date, and changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. (c) Additional Reports. Financials as Requested by IDED. The IDED reserves the right to require more frequent submission of any of the above reports if, in the opinion of the IDED, more frequent submissions would help improve the Business's Project performance, or if necessary in order to meet requests from the Iowa General Assembly, the Department of Management or the Governor's office. At the request of IDED, Business shall submit its annual financial statements completed by an independent CPA, or other financial statements including, but not limited to, income, expense, and retained earnings statements. 8.8 Inspection and Audit. The Business will permit the IDED and its duly authorized representatives to visit and inspect any of the Business's properties, corporate books and financial records of the Business related to the Project, to examine and make copies of the books of accounts and Contract # P0801 M01582 - 13 - Masrer updated 8107 other financial records of the Business, and to discuss the affairs, finances and accounts of the Business. with, and to be advised as to the same by, its officers, and independent public accountants (and by this provision the Business authorizes such accountants to discuss with the IDED and the IDED's duly authorized representatives the finances and affairs of the Business) at such reasonable time and reasonable intervals as the IDED may designate, but at least annually. 8.9 Compliance with Laws. (a) The Business will comply in all material respects with the requirements of all federal, state and local laws, rules, regulations and orders applicable to or pertaining to its properties or business operations including, but not limited to, all applicable environmental, hazardous waste or substance, toxic substance and underground storage laws and regulations, and the Business will obtain any permits, licenses, buildings, improvements, fixtures, equipment or its property required by reason of any applicable environmental, hazardous waste or substance, toxic substance or underground storage laws or regulations. (b) The Business shall comply in all material respects with all applicable federal, state, and local laws, rules, ordinances, regulations and orders applicable to the prevention of discrimination in employment, including the administrative rules of the Iowa Department of Management and the Iowa Civil Rights Commission which pertain to equal employment opportunity and affirmative action. (c) The Business shall comply in all material respects with all applicable federal, state and local laws, rules, ordinances, regulations and orders applicable to worker rights and worker safety. (d) The Business shall comply with IDED's administrative rules for each program funding source, as identified in the Funding Agreements. 8.10 Use of Award Proceeds. The Business will use the Award proceeds extended under this Master Contract and the Funding Agreements solely for the purposes set forth in Exhibit C. 8.11 Changes in Business Ownership, Structure and Control. The Business shall not materially change the ownership, structure, or control of the Business if it would adversely affect the Project. This includes, but is not limited to, entering into any merger or consolidation with any person, firm or corporation or permitting substantial distribution, liquidation or other disposal of Business assets directly associated with the Project. Business shall provide IDED with advance notice of any proposed changes in ownership, structure or control. The materiality of the change and whether or not the change affects the Project shall be as reasonably determined by IDED. 8.12 Notice of Meetings. The Business shall notify IDED at least two (2) working days in advance of all meetings of the board of directors at which the subject matter of this Master Contract, the Funding Agreements, or the Project is proposed to be discussed. The Business shall provide IDED with copies if the agenda and minutes of such meetings and expressly agrees that a representative of IDED has a right to attend those portions of any and all such meetings where the Project, this Master Contract or the Funding Agreements are discussed. $.13 Notice of Proceedings. The Business shall promptly notify IDED of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Business which would adversely impact the Project. $.14 Accounting Records. The Business is required to maintain its books, records and all other evidence pertaining to this Master Contract and it Funding Agreements in accordance with generally accepted accounting principles and such other procedures specified by IDED. These records shall be available to IDED, its internal or external auditors, the Auditor of the State of Iowa, the Attorney General Contract # P0801 M01582 - 14 - Master updated aio~ of the State of Iowa and the Iowa Division of Criminal Investigations at all times during the Master Contract's and the Funding Agreements' duration and any extensions thereof, and for three (3) full years from the Agreement Expiration Date. 8.15 Restrictions. The Business shall not, without prior written disclosure to IDED and prior written consent of IDED, which shall not be unreasonably withheld, directly or indirectly: (a) Assign, waive or transfer any of Business's rights, powers, duties or obligations under this Master Contract or the Funding Agreements. (b) Sell, transfer, convey, assign, encumber or otherwise dispose of any of the Secured Property or the Project. (c) Place or permit any restrictions, covenants or any similar limitations on the Secured Property or the Project. (d) Remove from the Project site or the State all or substantially all of the Secured Property. (e) Create, incur or permit to exist any Lien of any kind on the Secured Property. 8.16 No Changes in Business OQerations. The Business shall not materially change the Project or the nature of the Business and activities being conducted, or proposed to be conducted by Business, as described in the Business's approved application for funding, Exhibit A of this Master Contract, unless approved in writing by IDED prior to the change. 8.17 Indemnification. The Business shall indemnify, defend and hold harmless the IDED, 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: a) Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; b) Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the Business of any representation or warranty made by the Business in this Master Contract or the Funding Agreements; c) Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the Business is required to insure against as provided for in this Master Contract or the Funding Agreements; and d) Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Business or any of their agents in its or their capacity as an employer of a person. ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES 9.1 Events of Default. Any one or more of the following shall constitute an "Event of Default" hereunder: (a} Nonpayment. In the event of a missed payment under a Loan or in the event a Forgivable Loan is not forgiven and all or a portion of the Forgivable Loan must be repaid by the Business, a default in the payment when due (whether by lapse of time, acceleration or otherwise) of any principal on the Contract # P0801 M01582 - 15 - Master updated a~o7 Promissory Note(s), or default in payment for more than ten (10) Business Days of the due date thereof of any interest on the Promissory Note(s) or any fee or other obligation payable by the Business shall be an Event of Default; or (b) Noncompliance with Covenants. Default in the observance or performance of any covenant set forth in Article 8, for more than five (5) Business Days; or (c) Noncompliance with Security Documents. Default in the observance or performance of any term of any Security Documents beyond any applicable grace period set forth therein; or (d}Noncompliance with Master Contract. Default in the observance or performance of any other provision of this Master Contract; or (e) Noncompliance with Funding Agreements; Cross-Default. Default in the observance or performance of any other provision of any of the Funding Agreements, including Events of Default identified in any of the Funding Agreements;' IDED may elect to declare the Business in default of this Master Contract and any or all of the Funding Agreements if there is a default under any one of the Funding Agreements; or (f) Material Misrepresentation. Any representation or warranty made by the Business in this Master Contract or the Funding Agreements or in any statement or certificate furnished by it pursuant to this Master Contract or the Funding Agreements, or made in its Financial Assistance Application, or in connection with any of the above, proves untrue in any material respect as of the date of the issuance or making thereof; or (g) Lien Deficiencies. Any of the Security Documents shall for any reason fail to create a valid and perfected priority Lien in favor of the IDED in any Secured Property pledged by Business; or (h) Judgment Over $100, 000. Any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of $100,000 shall be entered or filed against the Business or against any of its property and remains unvacated, unbonded or unstayed for a period of 30 days; or (i} Adverse Change in Financial Condition. Any change shat) occur in the financial condition of the Business which would have a material adverse effect on the ability of the Business to perform under this Master Contract or the Funding Agreements; or (j) Bankruptcy or Similar Proceedings Initiated. Either the Business shall (1) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (2) not pay, or admit in writing its inability to pay, its debts generally as they became due, (3) make an assignment for the benefit of creditors, (4) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (5) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (6) fail to contest in good faith any appointments or proceeding described in Article 9.1(k) below; or (k) Appointment of Officials. A custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for either the Business or any substantial part of any of its respective property, or a proceeding described in Article 9.1(j) shall be instituted against either the Business and such Contract # P0801 M01582 - 16 - master updated aro~ appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days; or (1) Insecurity. IDED shall in good faith deem itself insecure and reasonably believes, after consideration of all the facts and circumstances then existing, that the prospect of payment and satisfaction of the obligations under this Master Contract and/or the Funding Agreements, or the performance of or observance of the covenants in this Master Contract and/or the Funding Agreements, is or will be materially impaired. (m) Failure to Submit Required Reports. The Business fails to submit complete reports by the required due dates as outlined in Article 8.7. (n} Lavo f~ js. Relocation, or Closure. The Business experiences a layoff within the state or closes any of its facilities within the state during the term of this Contract. 9.2 Default Remedies. When an Event of Default has occurred and is continuing, the IDED may, by written notice to the Business: (a) terminate this Master Contract, the Funding Agreements and all of the obligations of IDED under this Master Contract and the Funding Agreements on the date stated in such notice, and (b) declare the principal and any accrued interest on the outstanding Promissory Notes to be forthwith due and payable, including both principal and interest and all fees, charges and other amounts payable under this Master Contract and the Funding Agreements, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind. 9.3 Default Interest Rate. If an Event of Default occurs and remains uncured, a default rate of 6% shall apply to repayment of amounts due under this Master Contract and the Funding Agreements. The default interest rate shall accrue from the first date Award funds are disbursed. 9.4 Expenses. The Business agrees to pay to the IDED all expenses reasonably incurred or paid by IDED including reasonable attorneys' fees and court costs, in connection with any Default or Event of Default by the Business or in connection with the enforcement of any of the terms of this Master Contract and the Funding Agreements. 9.5 Notice of Default and Opportunity_to Cure. If IDED has reasonable cause to believe that an Event of Default has occurred under this Master Contract and/or the Funding Agreements, IDED shall issue a written Notice of Default to the Business, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30} days from the date of the Notice of Default, in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. ARTICLE 10 MISCELLANEOUS. 10.1 Timely Performance. The parties agree that the dates and time periods specified in this Master Contract and the Funding Agreements, including the timelines established for the Project and more fully described in Exhibit C, are of the essence to the satisfactory performance of this Master Contract and the Funding Agreements. 10.2 State of Iowa Reco motion. If the Project involves construction and there is signage recognizing the financial contributions made to the Project the Business agrees to include the Iowa Contract # P0801 M01582 - 17 - Masrer updarea 8JO7 Department of Economic Development on the list of entities providing assistance.. For example, a sign or plaque indicating that the Project was funded in part by an Award from the State of Iowa, Iowa Department of Economic Development. 10.3 Choice of Law and Forum. (a) In the event any proceeding of a quasi judicial or judicial nature is commenced in connection with this Master Contract or the Funding Agreements, the proceeding shall be brought in Des Moines, Iowa, in Polk County District Court for the State of Iowa, if such court has jurisdiction. If however, such court lacks jurisdiction and jurisdiction lies only in a United States District Court, the matter shall be commenced in the United States District Court for the Southern District of Iowa, Central Division. (b) 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 IDED, the State of Iowa or its members, officers, employees or agents. 10.4 Governing Law. This Master Contract and the Funding Agreements and the rights and duties of the parties hereto shall be governed by, and construed in accordance with the internal laws of the State of Iowa without regard to principles of conflicts of laws. 10.5 Master Contract/Funding_Agreement Amendments. Neither this Master Contract nor any documents incorporated by reference in connection with this Master Contract, including the Funding Agreements, may be changed, waived, discharged or terminated orally, but only as provided below: (a} Writing required. The Master Contract and the Funding Agreements may only be amended if done so in writing and signed by the Business and IDED; and for those Funding Agreements in which the Community is a signatory, by the Community, the Business and IDED. Examples of situations requiring an amendment include, but are not limited to, time extensions, budget revisions, and significant alterations of existing activities or beneficiaries. No amendment will be valid until approved in writing by IDED. (b) IDED review. IDED will consider whether an amendment request is so substantial as to necessitate reevaluating the IDED's or IDED Board's original funding decision. An amendment may be denied by IDED if it substantially alters the circumstances under which the Project funding was originally approved. 10.6 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including, without limitation by fax) and shall be given to the relevant party at its address, a-mail address, or fax number set forth below, or such other address, a-mail address, or fax number as such party may hereafter specify by notice to the other given by United States mail, by fax or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder shall be addressed: To the Business: Sustainable Land Development International Mr. Anthony Wernke, President Warehouse District, 275 East Tenth Street, Ste. 201 Dubuque,lA 52001 E-mail: twernke~a sldi.org Telephone: 563.690.2959 Facsimile: 360.343.2341 Contract # P0801 M01582 - 18 - Master updated 8ro~ To the IDED' at: Iowa Department of Economic Development Legal and Compliance 200 East Grand Avenue Des Moines, Iowa 50309 Attention: Julie Malone, Project Manager E-mail: Julie.malone@iowalifechanging.com Telephone: 515/ 242-4872 Facsimile: 515/ 242-4832 Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Article and a confirmation of such facsimile has been received by the sender, (ii) if given by e-mail, when such a-mail is transmitted to the e-mail address specified in this Article and a confirmation of such a-mail has been received by the sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Article. 10.7 Headings. Article headings used in this Master Contract and the Funding Agreements are for convenience of reference only and are not a part of this Master Contract or the Funding Agreements for any other. purpose. 10,8 Final Authority. The IDED shall have the authority to reasonably assess whether the Business has complied with the terms of this Master Contract and the Funding Agreements. Any IDED determinations with respect to compliance with the provisions of this Master Contract and the Funding Agreements shall be deemed to be final determinations pursuant to Section 17A of the Code of Iowa (2005). 10.9 Waivers. No waiver by IDED 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 IDED in exercising any right or remedy hereunder or under the Funding Agreements shall operate as a waiver thereof. No single or partial exercise of any right or remedy by IDED shall. preclude future exercise thereof or the exercise of any other right or remedy. 10.10 Counterparts. This Master Contract 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. 10.11 Survival of Representations. All representations and warranties made herein or in any other Master Contract/Funding Agreement document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Master Contract and the Funding Agreements and the other Master Contract/Funding Agreement documents and shall continue in full force and effect with respect to the date as of which they were made until all of Business's obligations or liabilities under this Master Contract and the Funding Agreements have been satisfied. 10.12 Severability of Provisions. Any provision of this Master Contract or the Funding Agreements, which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the Contract # P0801 M01582 - 19 - Master updated aro~ validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Master Contract and or the Funding Agreements or any other Master Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Master Contract and the Funding Agreements and any other Master Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Master Contract or the Funding Agreements or any other Master Contract document invalid or unenforceable. 10.13 Successors and Assigns. This Master Contract and the Funding Agreements shall be binding upon the Business and its respective successors and assigns, and shall inure to the benefit of the IDED and the benefit of their respective successors and assigns. The Business may not assign its rights hereunder or under any of the Funding Agreements without the written consent of the IDED, which consent will not be unreasonably withheld. 10.14 Termination. This Master Contract and any of the Funding Agreements can be terminated upon mutual, written agreement of the Business and IDED and, for Funding Agreements to which the Community is a signatory, upon mutual written agreement of the Business, IDED and the Community. 10.15 Integration. This Master Contract and the Funding Agreements contains the entire understanding between the Business and IDED relating to the Project and any representations that may have been made before or after the signing of this Master Contract and the Funding Agreements, which are not contained herein, are nonbinding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Master Contract and its Funding Agreement. 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 this Master Contract and have caused their duly authorized representatives to execute this Master Contract, effective as of the latest date stated below (the "Contract Effective Date"}. FOR THE IO A DE TMENT OF ECONOMIC DEVELOPMENT: < ~ BY: rchael L. TramORt a. D r ct r Date FOR THE BUSINE Sd: BY: ` 1 Si natur~''~'" ~~ { h ~n a ~, GJ e f n ~~i'~s; c~Rl(~"~' Ty ed Name and Title ~a~ ~~ Date Contract # P0801 M01582 - 20 - ndasrer updated 8/0~ LIST OF EXHIBITS Exhibit A - Business's Financial Assistance Application (on file with IDED), Application # 08-EZ-023 Exhibit B - Funding Agreements r B4-EZ Funding Agreement Exhibit C - Description of the Project and Award Budget Exhibit D - Job Obligations Contract # P0801 M01582 - 21 - Master updated ero7 This Agreement is made between the Iowa Department of Economic Development ("IDED"), 200 East Grand Avenue, Des Moines, IA, 50309, and Sustainable Land Development International, Warehouse District, 275 East Tenth Street, Suite 201, Dubuque, IA 52001, (hereinafter "Business"). The Business will receive the principal sum of $112,500 as a financial assistance investment approved on January 17, 2008 under the Entrepreneurial Ventures Assistance Program (EVA). The amount shown above is the maximum amount of funds to be awarded under this agreement. 1.1 DEFERMENT. Repayment of the investment will begin January 17, 2008. 1.2 DUE DATES. Payments will be due in equal installments on asemi-annual basis. Payment dates will be the first day in June and the first day in December of each year until the repayment amount has been obtained. In the event that the first of the month falls on a Saturday or Sunday, the payment will be due the following Monday. a) The first payment date will be the first due date following the end of the deferment period. The first scheduled payment date is June 1, 2008. b) The payment amount will be based on the full fiscal year-end financial statements, or tax return, prior to the payment date. 1.3 AMOUNT. Business shall pay the following royalties to IDED: a) A royalty equal to 2.0% of prior-year total gross revenues will be due to IDED on an annual basis until a repayment amount of $168,750 has been reached. The semi-annual payment will be equal to 1.0% of total prior-year gross revenues. b) If determined and independently verified by IDED that continued payments as scheduled threaten the survivability of the Business, IDED retains the option to restructure repayment of all or a portion of the royalty. Factors such as debt service coverage and cash flow will be taken into consideration in determining repayment ability. Any revision to the payment arrangement must be agreed upon in writing by the Business and IDED. 1.4 GROSS REVENUES. For the purpose of this Agreement, gross revenues are defined as gross sales price less trade discounts and returns. 1.5 ADDITIONAL PAYMENTS. The Business may prepay royalties due to IDED in whole or in part, without penalty, at any time during the deferment or repayment period. Any partial prepayment shall be applied against the amount outstanding and shall not postpone the due date of any subsequent payments or change the amount of such installments, unless the Business and IDED shall otherwise agree in writing. 1.6 NON-PAYMENT. If the Business fails to make a royalty payment when due under the terms of this Agreement within thirty (30) days following written notice of such overdue payment, the Agreement will be considered in default and IDED may issue a Notice of Default as described in Article 1.16. 1.7 CONDITIONS TO DISBURSEMENT OF FUNDS. a) Business must provide IDED verbcation of additional funds as follows: • Venture Capital - $4,000,000 • NICC 260E Job Training - $330,000 committed to the project as described and approved in EVA application #08-EVA-010. b) Provide IDED with a certified copy of the Business' Articles of Incorporation. c) Provide IDED with a Certificate of Incumbency naming the current officers and directors of the corporation. d) Provide IDED with a Certificate of Good Standing of the Business. e) Provide IDED with a signed Authorization for Release of Confidential State Tax Information form, to permit IDED to receive the Business's state tax information directly from the Iowa Department of Revenue for purposes of annually updating the Iowa Public Return on Investment Analysis. f) EVA funds must be drawn down within one year of the Award Date. 1.8 DOCUMENTATION OF EXPENDITURES. The Business shall furnish, upon request from IDED, copies of invoices and related supporting documentation verifying expenditure of EVA funds. 1.9 ROYALTY REPORTING. IDED requires that the Business will provide annual audited financial statements or tax returns on or before sixty days following the Business fiscal year end until the royalty due to IDED is paid-in-full. In the event that the Business does not provide financial information or the required annual audited financial statements or tax returns within the sixty day period, IDED may issue a Notice of Default as described in Article 1.16. 1.10 STATUS REPORTING. a. The business shall prepare, sign and submit the following reports throughout the contract period: Report Due Date Monthly Financial Reports Last Day of the Month The Business will provide monthly financial Submitted to: Business Accelerator reports to the sponsoring Business Accelerator as determined appropriate by the accelerator. Reports will generally include current monthly Profit and Loss Statements versus projected financials as well as a Current Balance Sheet. Annual Project Status Report The Annual Project Status Report will collect July 31 S` for the period ending June 30th information from the Business about the status of the project. This report will collect data such Submitted to: IDED as current employment levels, number of jobs that meet or exceed the Qualifying Wage Threshold Requirements (with and without benefits), project expenditures, including amount spent on research and development, any changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. -2- End of Proiect Resort The End of Project Report will collect Within 30 days of Project Completion Date information from the Business about the completed project such as final employment Submitted to: IDED levels, number of jobs that meet or exceed the Qualifying Wage Threshold Requirements (with and without benefits), project expenditures and changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. End of Job Maintenance Period Resort The End of Job Maintenance Period Report will Within 30 days of the end of the Job collect information from the Business's Maintenance Period continued maintenance of employment levels and Qualifying Wage Threshold Requirements Submitted to: IDED (with and without benefits) that were verified at the Project Completion Date, and changes to the Business's benefits, ownership, structure, or control of the Business and any other information required by IDED. b. In the event that the Business does not provide the above described reports, IDED may issue a Notice of Default as described in Article 1.16. 1.11 ACCESS TO RECORDS/INSPECTIONS. The Business shall permit IDED, its representatives or the State Auditor to examine, audit and/or copy all of the Business books, records and accounts and all other documentation or materials related to this Agreement. The Business shall permit IDED representatives to visit and inspect business operations at any time during the Agreement period. 1.12 USE OF EVA FUNDS. The Business shall expend funds received under this Agreement for legitimate business expenses and designated projects described in EVA Application #08-EVA-010 and approved by IDED on January 17, 2008. 1.13 MAINTAIN BUSINESS IN IOWA. Business shall maintain all its business and operating facilities in Iowa. The Business shall provide prompt advance notice to IDED of any proposed change in the Business ownership, structure or control. In the event the Business relocates outside Iowa or changes the Business structure or control without notification to IDED, IDED may issue a Notice of Default as described in Article 1.16. 1.14 JOB OBLIGATIONS. As a result of this project, the Business shall create by the Project Completion Date (three (3) years from the Award Date) the number of new full-time equivalent (FTE) jobs above the Business's Employment Base as detailed in Exhibit D. The Business shall pay the wage rates identified in Exhibit D. The Business shall maintain the pledged jobs until the full repayment amount identified in Section 1.3 has been satisfied (the "Job Maintenance Period"). In the event the Business fails to create and maintain the before-described jobs the business will be obligated to pay in full the repayment amount identified in Section 1.3 of this agreement. -3- 1.15 ENFORCEMENT. This Agreement shall remain in full force and effect until the full royalty due to IDED is paid-in-full or other arrangements are agreed upon between the Business and IDED. 1.16 DEFAULT. The following shall constitute Events of Default under this Agreement: a) Non-compliance, failure by business to comply with any of the terms or conditions contained in this Agreement; b) Non-payment, when Business fails to make a payment when due under the terms of this Agreement within thirty (30) days of written notice of such overdue payment; c) Business changes, if there is a material change in the Business ownership, structure or control. d) Relocation or Abandonment, if there is a relocation or abandonment of Business. 1.17 NOTICE OF DEFAULT. The Department shall issue a written notice of default providing therein a thirty (30) day period in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. 1.18 REMEDIES UPON DEFAULT. Upon the happening of any Event of Default and the failure of the Business to cure the default after notice as provided in Article 1.16, the Department shall have the right to require immediate repayment of the full repayment amount identified in Section 1.3 of this agreement 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 Business. 1.19 TERMINATION. This Agreement may be terminated upon thirty (30) days written notice in the following circumstances: a) By IDED, due to an unremedied event of default by the Business. b) As a result of the termination of reduction of funding to IDED or material alteration of the program. This Agreement may be terminated by IDED if funds anticipated for the continuing fulfillment of this Agreement are at any time not forthcoming due to nonappropriation, a reduction in funding level, termination or material alternation of this Agreement's funding source, or change in IDED's statutory authorization. c) As a result of IDED forgiveness of repayment of the royalty applying the criteria described in Article 1.3 of this Agreement. 1.20 NONASSIGNMENT. This Agreement may not be assigned without prior IDED written consent. 1.21 INDEMNIFICATION AGAINST LOSS OR DAMAGE. The Business shall indemnify and hold harmless IDED, its officers and employees, from and against any and all losses resulting directly or indirectly from any misrepresentation, breach, nonfulfillment, or noncompliance with any terms of this Agreement on the part of the Business, except those losses incurred by IDED resulting from willful misconduct or negligence on its or their part. 1.22 ENFORCEMENT EXPENSES. Business shall pay upon demand any and all reasonable fees and expenses IDED incurs, including the fees and expenses of their attorneys, experts and agents, in connection with the exercise or enforcement of any of the rights of IDED under the Agreement. 1.23 GOVERNING LAW. This Agreement shall be interpreted in accordance with the law of the State of Iowa, and any action relating to the Agreement shall only be commenced in the Iowa District - Court for Polk County or the United States District Court for the Southern District of Iowa. 1.24 SURVIVAL OF CONTRACT. If any portion of this Agreement is held to be invalid or unenforceable, the remainder shall be valid and enforceable. -4- 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 this Agreement and have caused their duly authorized representatives to execute this Agreement, effective as of the latest date stated below (the "Contract Effective Date"). FOR THE BUSINESS: BY: Signature W(3 Si (~,~ Typed Nam and Title yla~ lr~ Date FOR THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT: BY: -5- LIST OF EXHIBITS EXHIBIT D - Job Obligations -6- EXHIBIT B - 4 EZ FUNDING AGREEMENT BUS{NESS: COMMUNITY: Sustainable Land Development International City of Dubuque MASTER CONTRACT NUMBER: PO$01 M01582 FUNDING AGREEMENT NUMBER: 08-EZ-023 ENTERPRISE ZONE NAME: Zone EZ-1 ZONE CERTlF1CATION DATE: November 21, 2007 (amended) ZONE EXPIRATION DATE: November 21.2017 THIS ENTERPRISE ZONE (EZ) FUNDING AGREEMENT is made by and among the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, 200 East Grand Avenue, Des Moines, Iowa 50309 ("IDED"), the business identified above ("Business"), and the community identified above ("Community"), effective as of the Contract Effective Date stated in the Master Contract identified above. WHEREAS, the purpose of the EZ Program is to promote new economic development in economically distressed areas; and WHEREAS, the Community has designated and IDED has certified the Enterprise Zone identified above; and WHEREAS, eligible businesses locating or located in an Enterprise Zone are authorized under this program to receive certain tax incentives and assistance and the Business has located, or will locate, within the certified Enterprise Zone; and WHEREAS, the Enterprise Zone Commission responsible for the above-identified Zone has recommended approval and IDED has found the Business' application to be consistent with the EZ Program's eligibility requirements; and WHEREAS, the Business has executed the Master Contract described above with the IDED pursuant to an Award on the Award Date stated in the Master Contract to the Business for the Project; and WHEREAS, the Master Contract specifies that for each program funding source the IDED and the Business shall enter into a Funding Agreement; and WHEREAS, this EZ Funding Agreement contains additional terms and conditions for the award of EZ benefits and NOW, THEREFORE, the Business and Community accept the terms and conditions set forth in this EZ Funding Agreement and the Master Contract for the funding of the Project. in consideration of the mutual promises contained in the Master Contract and this EZ Funding Agreement and other good and valuable consideration, it is agreed as follows: 1.0 Master Contract. Unless otherwise specified in this EZ Funding Agreement, the definitions, terms, conditions, and provisions contained in the Master Contract are applicable to this EZ Funding Agreement. The following provisions in the Master Contract do not apply to this EZ Funding Agreement: Article 3.1(b) -Definition of "Project Completion Date" and "Job Maintenance Period." [The EZ program has different time periods for these activities.] Article 4.3 -Repayment obligation. [No promissory note required for tax credits.] Article 5.1(c) -Promissory Notes. [Execution of note is not a condition precedent to receipt of tax credit benefits] Article 5.1(g) -Security Documents. [Execution of Security Documents is not a condition precedent to receipt of tax credit benefits]. Article 5.1(m) -Requests for disbursement. [Not required for tax credit program benefits.] Article 5.2 -Prior costs. [Not applicable to tax credit program benefits.] Article 5.3 -Cost variation. [Not applicable to tax credit program benefits.) Article 5.5-Investment of Award Proceeds. (No proceeds in tax credit programs.] Article 6 -Security, Cross-collateralization.. [Not applicable to tax credit program benefits.] Article 9.1(a) -Nonpayment as an Event of Default. [Not applicable because there are no loan payments in tax credit programs]. Article 9.1(c) -Noncompliance with Security Documents as an Event of Default. [Not applicable because there are no Security Documents: required in tax credit programs]. Article 9.1(g) -Lien Deficiencies as an Event of Default. [Not applicable because there are no Security Documents required in tax credit programs.] 2.0 Definitions. As used in this EZ Funding Agreement, the following terms shall apply: 2.1 Agreement Expiration Date. Expiration of this EZ Funding Agreement occurs upon the happening of one of the following events, whichever occurs first: (a) IDED's determination that the Business has fully met the requirements of the EZ Funding Agreement, including meeting its Job Obligations, and IDED closes out this EZ Funding Agreement. (b) An Event of Default occurs that is not remedied within the time period allowed under Article 5.0 of this EZ Funding Agreement. (c) This EZ Funding Agreement is terminated upon mutual, written agreement of the Business, the Community and IDED. 2.2 EZ Program. "EZ Program" means the Enterprise Zone Program. The EZ Program is authorized by Iowa Code (2007) sections 15E.191 through 15E.196. Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 2 - Revised ero~ 2.3 EZ Award. "EZ Award" means IDED's approval of the Business's Financial Assistance Application for the Project. This EZ Award authorizes the Business to receive EZ Program benefits. 2.4 "Annual Base Rent". "Annual Base Rent" means the Business' annual lease payment minus taxes, insurance, and operating or maintenance expenses. 2.5 "Commission" or "Enterprise Zone Commission" or "Enterprise Zone Commission" means the Enterprise Zone commission established by the Community responsible for the certified Enterprise Zone. 2.6 "Enterprise Zone." "Enterprise Zone" means the site within the Community certified by the IDED Board for the purpose of attracting private investment. 2.7 Project Completion Date. "Project Completion Date", for purposes of reporting to the Iowa Department of Revenue that the Project has been completed, means: (1) the first date upon which the average annualized production of finished product for the preceding ninety-day period at the manufacturing facility operated by the Business within the Enterprise Zone is at least fifty percent of the initial design capacity of the facility; or (2) for existing or non- manufacturing facilities, the date of completion of all improvements included in the Project. 3.0 Enterprise Zone Benefits. 3.1 Benefits Available. The following Enterprise Zone benefits are available to the Business under this EZ Funding Agreement: (a) Supplemental New Jobs Credit. As provided in Iowa Code section 15.331, the Business is eligible to claim a supplemental new jobs credit from withholding in an amount equal to 1'/z percent of the gross wages paid by the Business. The supplemental new jobs credit available under this program is in addition fo and not in lieu of the program and withholding credit of 1'/Z percent authorized under Iowa Code chapter 260E. Additional new jobs created by the project, beyond those that were agreed to in Article 4 of this Agreement, are eligible for the additional 1 %z percent withholding credit as long as those additional jobs meet the local Enterprise Zone wage eligibility criteria and are an integral part or a continuation of the Project. Approval and administration of the supplemental new jobs credit shall foNow existing procedures established under Iowa Code chapter 260E. (b) Investment Tax Credit. (i) The Business may claim an investment tax credit as provided in Iowa Code section 15.333. An investment tax credit may be claimed of up to a maximum of ten percent (10%) of the new investment which is directly related to the Project Jobs created by the location or expansion of the Business in the Enterprise Zone. The Business may not claim an investment tax credit for capital expenditures above the amount stated in Article 4.2 of this EZ Funding Agreement. The credit is to be taken in the year the Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 3 - Revised sro~ qualifying asset is placed in service. Any credit in excess of the tax liability for the tax year may be credited to the tax liability for the following seven years or until depleted, whichever occurs earlier. (ii) The tax credit shall be amortized equally over afive-year period which the department will, in consultation with the eligible business, define. The five- year amortization period is specified below: Amortization Schedule Jul 1, 2007 -June 30, 2008 $10,000 Jul 1, 2008 -June 30, 2009 $10,000 Jul 1, 2009 -June 30, 2010 $10,000 Jul 1, 2010 -June 30, 2011 $10,000 Jul 1, 2011 -June 30, 2012 $10,000 (iii) EZ Funding Agreement Exhibit C, "Investment Tax Credit Amortization Schedule Examples," illustrates how the 5-year amortization requirement will be applied. (iv) The capital expenditures eligible for the investment tax credit are: 1. The purchase price of real property and any existing buildings and structures located on the real property. 2. The cost of improvements made to real property which is used in operation of the Business. 3. The costs of manufacturing machinery and equipment and computers, as defined in Iowa Code section 427A.1(1) "e" and "j," which are purchased for use in the operation of the Business and which the purchase price have been depreciated in accordance with generally accepted accounting principles. 4. Ten (10) years of Annual Base Rent payments provided the cumulative cost of these payments does not exceed the cost of the land and the third-party developer's costs to build or renovate the building.- Annual base rent shall. only be considered when the project includes the construction of a new building or the major renovation of an existing building. (c) Additional Research Activities Credit. The Business is eligible to claim an additional research activities credit as provided in Iowa Code section 15.335. This benefit is a tax credit for increasing research activities in this state during the period the Business is participating in the program. For purposes of claiming this credit, a business is considered to be "participating in the program" for a period of ten (10) years from the Award Date. The credit may equal up to six and one-half percent (6.5%) of the State's apportioned share of the qualifying expenditures for increasing research activities and is in addition to the credit authorized in Iowa Code sections 422.10 and 422.33(5). Any tax credit in excess of the tax liability may be refunded to the Business with interest or, at its election, credited to its tax liability the following year. "Research activities" includes the development and deployment of innovative renewable energy generation components manufactured or assembled in Iowa. A renewable energy Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 4 - Revised 8/07 generation component will no longer be considered innovative when more than 200 megawatts of installed effective nameplate capacity has been achieved. Research activities credits awarded under this program and the high quality job creation program for innovative renewable energy generation components shall not exceed a total of $1 million. 3.2 Duration Of Benefits. The Enterprise Zone designation shall remain in effect for ten years following the date of certification. Any state or local incentives or assistance that may be conferred must be conferred before the designation expires. However, the benefits of the incentive or assistance may continue beyond the expiration of the Enterprise Zone designation. 3.3 Benefits Not Available. The following Enterprise Zone benefits are not available to the Business under this agreement: (a) Value-Added Property Tax Exemption (b) Refund Of Sales. Service And Use Taxes Paid To Contractors Or Subcontractors. (c) Refund of Taxes Attributable to Racks Shelving and Conveyor Equipment. 4.0 Conditions to Receipt of Enterprise Zone Benefits. The Enterprise Zone Benefits authorized under this EZ Funding Agreement are available to the Business provided the Business, (and where applicable, the Community) satisfies each of the following conditions: 4.1 Job Obligations. The Business's Job Obligations are as detailed in Master Contract Exhibit D, "Job Obligations." The Business shall create the required number of jobs that pay the Qualifying Wage within 3 years (the "Job Creation Period') of the Award Date. The Business shall maintain the Created Jobs in addition to the Business's Base Employment for a period of at least ten (10) years (the "Job Maintenance Period ") beyond the Job Creation Period for a total contract duration of 13 years. 4.2 Investment. Within three (3) years of the Award Date (as defined in the Master Agreement), the Business shall make a capital investment of $500,000 within the Enterprise Zone, as defined in 3.1(b). 4.3 Medical And Dental Insurance. The Business provides all full-time employees with the option of choosing one of the following: (a) The Business pays 80 percent of both of the following: (i) the cost of a standard medical insurance plan, and (ii) the cost of a standard dental insurance plan or an equivalent plan; (b) The Business provides the employee with a monetarily equivalent plan to the plan provided in "a." 4.4 Business Retention. The Business shall have and maintain Project operations contemplated by this Agreement within the Community at least through the Agreement Expiration Date. 4,5 Local Commitment. The Community shall provide the local financial assistance for the Project as described in Exhibit C, Project Description. Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 5 - Revised sio~ 5.0 Events of Default by the Business; Notice of Default; Repayment Provisions. 5.1 Events of Default. The terms of Article 9.0 (Events of Default) of the Master Contract govern this EZ Funding Agreement, except as noted in Article 5.2 and 5.3 below. 5.2 Notice of Default. The following Notice of Default provisions supersede the Notice of Default and repayment provisions specified Article 9.2(Notice of Default and Opportunity to Cure) in the Master Contract: (a) From Department. If, through the Annual Project Status Report , or other means, the IDED has reason to believe the Business is in default of the terms of this Agreement, the IDED will issue a written Notice of Default to the Business, setting forth the nature of the default in reasonable specificity, and providing therein a reasonable period of time, which shall not be less than 30 days from the date of the Notice of Default, in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. A copy of any Notice of Default will also be provided to the Community and Department of Revenue. (b) From Community. 1f, through monitoring, auditing or other means, the Community has reason to believe the Business is in default of the terms of this Agreement, the Community will issue a written Notice of Default to the Business, setting forth the nature of the default in reasonable specificity, and providing therein a reasonable period of time, which shall not be less than 30 days from the date of the Notice of Default, in which the Business shall have an opportunity to cure, provided that cure is possible and feasible. A copy of any Notice of Default will also be provided to the IDED and Department of Revenue. 5.3 Repayment Provisions. The following provisions supersede the provisions of Article 9.2 (Default Remedies) of the Master Contract. If the Business has received incentives or assistance under the EZ Program and fails to meet and maintain any one of the requirements of the EZ Program (as stated in Iowa Code section 15E.193 to be an eligible business), or fails to comply with the EZ Program Administrative Rules (261 IAC chapter 59) or faits to meet any term of this EZ Funding Agreement, the Business is subject to repayment of all or a portion of the incentives and assistance that it has received, as detailed below: (a) Job Obligations of Proiect Completion Date and Job Maintenance Period. If the Business does not meet its Job Obligations by the Project Completion Date or fails to maintain its Job Obligations through the Job Maintenance Period, both as defined in Master Contract Exhibit D, the Business shall repay a percentage of tax incentives and assistance it has received. Repayment shall be calculated as follows: (i) If the Business has met 50 percent or less of the requirement, the Business shall repay the same percentage in benefits as the Business failed to create in jobs. (ii) If the Business has met more than 50 percent but not more than 75 percent of the requirement, the Business shall repay one-half of the percentage in benefits as the Business failed to create in jobs. (iii) If the Business has met more than 75 percent but not more than 90 percent of the requirement, the Business shall repay one-quarter of the percentage in benefits as the Business failed to create in jobs. (iv) If the Business has not met the minimum job creation requirement of ten (10) new full-time jobs, the Business shalt repay ali of the incentives and assistance that it has received. Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 6 - Revised sro~ (b) Wages and benefits. If the Business fails to comply with the wage or benefit requirements, the Business shall not receive Enterprise Zone benefits for each year during which the Business is not in compliance. (c) Capital Investment. If the Business does not meet the capital investment requirement described in 4.2, repayment shall be calculated as follows: (i} If the Business has met 50 percent or less of the requirement, the Business shall repay the same percentage in benefits as the Business failed to invest. (ii) If the Business has met more than 50 percent but not more than 75 percent of the requirement, the Business shall repay one-half of the percentage in benefits as the Business failed to invest. (iii) If the Business has met more than 75 percent but not more than 90 percent of the requirement, the Business shall repay one-quarter of the percentage in benefits as the Business failed to invest. (iv) 1f the Business has not met the minimum investment requirement of $500,000, the Business shall repay all of the incentives and assistance that it has received. (d) Department of Revenue; Community Recovery. Once it has been established, through the Business' annual certification, monitoring, audit or otherwise, that the Business is required to repay all or a portion of the incentives received, the Department of Revenue and the Community shall collect the amount owed. The Community has the authority, pursuant to the EZ Program, to take action to recover the value of taxes not collected as a result of the exemption provided by the Community to the Business. Department of Revenue has the authority, pursuant to the EZ Program, to recover the value of state taxes or incentives provided under the EZ Program. The value of state incentives provided under the EZ Program includes applicable interest and penalties. (e) Layoffs or closures. If the Business experiences a layoff within the state or closes any of its fiacilities within the state prior to receiving the tax incentives and assistance, the Department may reduce or eliminate all or a portion of the tax incentives and assistance. If an approved Business experiences a layoff within the state or closes any of its facilities within the state after receiving tax incentives and assistance, the Business may be subject to repayment of all or a portion of the tax incentives and assistance that it has received. 6.0 Event of Default by Community. 6.1 Event of Default. The Community's failure to provide the local financial assistance pledged for the Project as described in Master Contract Exhibit C, Project Description and Award Budget. 6.2 Notice of Default and Opportunity to Cure. If the IDED has reason to believe the Community is in default of the terms of this Agreement, the IDED will issue a written notice of default to the Community setting forth the nature of the default in reasonable specificity, and providing therein a reasonable period of time, which shall not be less than 30 days from the date of the Notice of Default, in which the Community shall have an opportunity to cure, provided that Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 7 - Revised aro~ cure is possible and feasible. A copy of any Notice of Default will also be provided to the Business and Department of Revenue. 6.3. Repayment by Community. If an Event of Default is not cured within the time allowed, IDED's remedies include but are not limited to legal action against the Community for payment of the amount of local financial assistance. pledged but not provided by the Community plus 6% default interest calculated from the Award Date. 7.0 Incorporated documents. The following documents are hereby incorporated by this reference: 1. The Master Contract and its Exhibits. 2. EZ Funding Agreement Exhibit A, "Enterprise Zone Commission Resolution Approving the Business's Enterprise Zone Application." 3. EZ Funding Agreement Exhibit C, "Investment Tax Credit Amortization Schedule Examples." This section left blank intentionally ----Signature page follows Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 8 - Revises ero~ IN WITNESS WHEREOF, the parties have executed this EZ Funding Agreement: FOR THE BUSINESS: BY: Signature O ~,f Si yped Name d Title ~l~- I d~ Date FOR THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT: BY: Mic ael L. Tramontina, ' ect r- Z Date FOR THE COMMUNITY: BY: ~ Signature Roy D. Buol, Mayor Typed Name and Title May 5, 2008 Date Master Contract # P0801 M01582 Funding Agreement #08-EZ-023 - 9 - Revised e/o~ EZ Fundin~A~reement Exhibit A Enterprise Zone Commission Resolution Approving the Business's Enterprise Zone Application CITY OF DUBUQUE, IOWA ENTERPRISE ZONE COMMISSION RESOLUTION 1-2008 A RESOLUTION APPROVING THE FILING OF AN APPLICATION WITH THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT REQUESTING ENTERPRISE ZONE BENEFITS ON BEHALF OF SUSTAINABLE LAND DEVELOPMENT INTERNATIONAL. Whereas, the State of Iowa Department of Economic Development (IDED) is accepting applications from eligible businesses pursuant to the authority of House File 724, Enterprise Zone Legislation; and Whereas, the City of Dubuque, Iowa has two certified Enterprise Zones; and Whereas, the City's Enterprise Zone Commission has been created by City Ordinance to review applications for tax incentives and assistance based on criteria specified by law and to transmit its recommendation to the IDED; and Whereas, the City's Enterprise Zone Commission has reviewed an application from Sustainable Land Development International and has found the proposed project eligible to apply for Enterprise Zone benefits. NOW, THEREFORE, BE IT RESOLVED BY THE ENTERPRISE ZONE COMMISSION OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Sustainable Land Development International application for Enterprise Zone benefits is approved. Section 2. That Sustainable Land Development International will create fifty- five (55} new jobs in the city's downtown. Section 3. That Sustainable Land Development International and the property owner will invest approximately $600,000 in Enterprise Zone 1 as part of the renovation project. Section 3. That the Chairperson is hereby authorized and directed to execute, on behalf of the Enterprise Zone Commission, the joint application for Enterprise Zone benefits. Passed, approved and adopted this 4th day of January, 2008. !;mil ~~:~'~z~~,~~J~~~ Richard Stein Chair F:\USERSWdejong\Enterprise ZonelSLDI\SLDI EZ resolution.doc EZ Funding Agreement Exhibit C Investment Tax Credit Amortization Schedule Examples EZ Funding Agreement Exhibit C Investment Tax Credit Amortization Schedule Examples Background Information: Effective July 1, 2005, Investment Tax Credits (or Insurance Premium Tax Credits) awarded to a Business by the Iowa Department of Economic Development must be amortized equa3ly over a 5-year period. The Department will determine the amortization schedule and include it in the Business' funding agreement. Please note Investment Tax Credits (or Insurance Premium Tax Credits) are earned when the corresponding asset (e.g. the building, a piece of machinery & equipment, etc.) is placed in service. "Placed in service" typically corresponds with the point in time when the Business can start depreciating the asset for tax purposes. Earned Investment Tax Credits (or Insurance Premium Tax Credits) which cannot be used because of the amortization schedule or because the credits exceed the Business' tax liability for that tax year may be carried forward for up to seven additional tax years. Example #1 In this example, the Business is eligible to receive an Investment Tax Credit (ITC) in the amount of $100,000. The ITC is earned on December 15, 2005 and may be carried forward until the tax year in which December 15, 2012 falls. The Business' ITC amortization schedule follows: Fiscal Year 2007 -July 1, 2006 -June 30, 2007 $20,000 Fiscal Year 2008 -July 1, 2007 -June 30, 2008 $20,000 Fiscal Year 2009 -July 1, 2008 -June 30, 2009 $20,000 Fiscal Year 2010 -July 1, 2009 -June 30, 2010 $20,000 Fiscal Year 2011 -July 1, 2010 -June 30, 2011 $20,000 As the ITC was earned in the first year, the Business may claim up to $20,000 on its tax return for that tax year. The Business' tax liability for that tax year is $15,000 therefore; the Business will cant' forward $5,000 of unused credits. ITC Earned -Total $100,000 ITC Available to be Taken based on the Amortization Schedule $20,000 (FY 2006) Less ITC Claimed on Current Year's Tax Return $15 000 ITC to be Carried Forward into Future Tax Year $ 5,000 The following year the Business may claim up to $25,000 in ITCs on its tax return; $5,000 being carried forward from last year plus another $20,000 based on the amortization schedule. The Business' tax liability for the current tax year is $25,000. ITC Eamed -Total $100,000 Less ITC Claimed to Date $ 15 000 ITC Remaining -Total $ 85,000 ITC Available to be Taken based on the Amortization Schedule $20,000 (FY 2007) Plus ITC Carried Forward from Previous Year $ 5,000 Less ITC Claimed on Current Year's Tax Return $25 000 ITC to be Carried Forward into Future Tax Year $ 0 September 14, 2005 The Business would be able to continue to take tax credits based on the amortization schedule and its tax liability each year. If this example were to continue, the tax credits could continue to be claimed until they are exhausted or until the carry forward period expires in the tax year in which December 15, 2012 falls. Example #2 In this example, the Business is eligible to receive an Investment Tax Credit (ITC) in the amount of $500,000. The ITC is earned on February I5, 2008 and may be carried forward until the tax year in which February 15, 2015 falls. The Business' ITC amortization schedule follows: Fiscal Year 2007 -July 1, 2006 -June 30, 2007 $100,000 Fiscal Year 2008 -July 1, 2007 -June 30, 2008 $100,000 Fiscal Year 2009 -July 1, 2008 -June 30, 2009 $100,000 Fiscal Year 2010 -July 1, 2009 -June 30, 2010 $100,000 Fiscal Year 2011 -July 1, 2010 -June 30, 2011 $100,000 As the ITC was earned in the third year of the amortization schedule, the Business may claim up to $300,000 on its tax return for that tax year ($100,000 per year for 3 years). The Business' tax liability for that tax year is $50,000 therefore; the Business will carry forward $250,000 of unused credits. ITC Earned -Total $500,000 ITC Available to be Taken based on the Amortization Schedule $300,000 (FY 2006 - FY 2008) Less ITC Claimed on Current Year's Tax Return $ 50 000 ITC to be Carried Forward into Future Tax Year $250,000 The following year the Business may claim up to $350,000 in ITCs on its tax return; $250,000 being carried forward from last year plus another $100,000 based on the amortization schedule. The Business' tax liability for the current tax year is $60,000. ITC Earned -Total $500,000 Less ITC Claimed to Date $ SO 000 ITC Remaining -Total $450,000 ITC Available to be Taken based on the Amortization Schedule $100,000 (FY 2009) Plus ITC Carried Forward from Previous Year $250,000 Less ITC Claimed on Current Year's Tax Return $ 60 000 ITC to be Carried Forward into Future Tax Year $290,000 The following year the Business may claim up to $390,000 in ITCs on its tax return; $290,000 being carried forwazd from last year plus another $100,000 based on the amortization schedule. The Business' tax liability for the current tax year is $50,000. ITC Earned -Total $500,000 Less ITC Claimed to Date $110 000 ITC Remaining -Total $390,000 ITC Available to be Taken based on the Amortization Schedule $100,000 (FY 2010) Plus ITC Carried Forward from Previous Year $290,000 Less ITC Claimed on Current Yeaz's Tax Return $ 50 000 ITC to be Carried Forward into Future Tax Yeaz $340,000 After FY 2010, the Business is no longer subject to the amortization schedule and therefore, it would be able to continue to take tax credits based on its tax liability each yeaz. If this example were to continue, the tax credits could continue to be claimed until they are exhausted or until the carry forward period expires in the tax year in which February 15, 2Q 15 falls. September 14, 2005 DESCRIPTON OF THE PROJECT AND AWARD BUDGET (EXHIBIT C) Name of Business: Sustainable Land Development International Contract Number: P00801M01582 Sbstatbablq Land Dev-elnpm n[ Inlernel~onnl EXHIRIT 0 -JUB OULIGA 1'105 0&F,VA-0tII-O~F.ZL23 nce (PVA) and 2mnrynao Zone (FL) progrems. calvuMMn~ vnperisdcs) that musrbe endad to Project hta'nPeeanc oCae'eJOBpO~BL~71GT(T~'IONS Juh T~1~1 FT~4/~~nl Base c Be Greete bligatlons I Hverave Wave of rota emv ov protect loan .~ I puellNinv wave[M1resnvltl revuiremenl leer nrl-tan%I 52o.5b I I 0enefi[value leer brit gt 30 I rof to aliNin t I et I verave wa sa~o~rove qualtlvin wa N, r1 is i I I J au g g I a[or abo q y g ge roenents wa I I 0 G To[al I ena ryv3 s I T e b g~bons I ra o~~i~~ola~~al~i6«~~,pp NA ouagrom~t~gr~~Iu~l er I.~- alifying e I I I .. nee of lgb+a n~4 gnaurn _ ~ Aye age a f,d9~PfBf~'~ti~6~a~l~~lC~~lYlre~~(~;I NIA ~ I I Value was addeJ tc[Pc by=re wage rn meet program wage ehresholtl eligibility enefit s, Ihrn any retluotion in the Benelt Valua daring the life of tbv Contract moat be c p atetl[or witb salary to unsure lha[[be Qualifying Wage re[es are mac 2. Bono or commission pvy n[ are not inoludcd wM1cne lculating [M1O Qualifying Wager to