Morrison Bros. CEBA_EZ Contract 3 2 09 FINAL Documents and 2017 Close OutIOWA ECONOMIC DEVELOPMENT AUTHOi
200 East Grand Avenue 1 Des Moines, Iowa 50309 USA I Phone: 515.725.3000
iowaeconomicdeveloprnent.com
April 21, 2017
Ms. Donna McCann, Accounting Manager
Morrison Bros. Co.
570 East 7th Street
P.O. Box 238
Dubuque, IA 52001
RE: Project Maintenance Close-out
Master Contract #P0806M01734
Funding Agreement #08-CEBA-05
Dear Ms. McCann:
17 APR 7 >M 10: 25
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coroomlc drvelo =ant
I would like to congratulate you on successfully maintaining your job obligations through the
maintenance period in regard to the above referenced project. The Authority's review of payroll
documents at your facility indicates that the jobs required to be maintained by the Community
Economic Betterment Account (CEBA) Program have met or exceeded expectations.
In summary:
1. The Project Completion Date was December 31, 2014 with a Project Maintenance Date
of December 31, 2016.
2. The Contract required the creation of 6 new full-time equivalent (FTE) jobs above a
base employment of 82 which must be maintained through the Job Maintenance
period. The Business met its maintenance obligation with a total employment of 91
full-time employees.
3. The Contract required at least 75 jobs paid an hourly wage of $14.21 per hour or higher.
Payroll records verified 90 jobs met the wage obligation.
4. The Business maintained the Benefits required by the contract.
Because the contract obligations have been met through the Job Maintenance Period, this contract
is now closed and there will be no further reporting requirements for the CEBA Contract. All criteria
has been met for forgiveness of the forgivable loan, therefore the Authority has now closed the
project and hereby forgives the $20,000 forgivable loan portion of this award. In addition,
because the loan has been paid in full, please find enclosed the original canceled promissory notes
and the canceled Certificate of Deposit (copy) and Collateral & Control Agreement. Please accept
this letter as written notice that the oriainal Certificate of Deposit can now be released. I will return
the original canceled promissory notes to the City of Dubuque, as well.
We would like to express our thanks for your assistance in monitoring and closing out this project,
and we look forward to working with you on future economic development projects. Please do not
hesitate to contact me at 515-725-3041 or Kristi.steil(c�iowaeda.com should you have any
questions.
Sincerely,
Kristi Steil
Project Assistant
Compliance Team
/ks
Cc: Doug Stillings, Dubuque Bank and Trust Company
Mayor Roy Buol, City of Dubuque
IEDA Accounting
IEDA Compliance file
Governor Terry E. Branstad I Lt. Governor Kim Reynolds I Director Debi V. Durham
CEBA Funding Agreement Exhibit Al- Community's Promissory Note (Fgraivable Loan)
PROMISSORY NOTE
CANCELS
DATE 4_20-Ii1 KS
FOR VALUE RECEIVED, the undersigned promises, in the event
this Forgivable Loan is not forgiven, to pay to the order of the IOWA DEPARTMENT
OF ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa
50309, the sum of Twenty Thousand Dollars ($20,000) with interest at a rate of 0 %
unless an Event of Default occurs, in which case interest shall be at the default rate set
forth in Contract number P0806M01734 ("Contract"). The terms and conditions by which
forgiveness of this Loan may occur are as specified in the Contract.
Interest shall first be deducted from the payment and any balance shall be applied on
principal. Upon default in payment of any interest, or any installment of principal, the
whole amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice of non-payment, protest
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof may be extended
after maturity, from time to time, without notice.
ADDRESS:
50 West 13th Street
Dubuque, IA 52001
City of Dubuque
ATTEST'%'
gnature)
Date �7
CEBA Funding Agreement Exhibit Al- Community's Promissory Note (Lpan)
PROMISSORY NOTE
UANULLED
DATE `'i-% -11
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, at its office at
200 East Grand, Des Moines, Iowa 50309, the sum of Twenty Thousand Dollars
($20,000) with interest thereon at Zero Percent (0%) to be paid as follows:
Sixty (60) monthly payments of $333.33 beginning on the first day of the fourth
month from the date Award funds are disbursed. Final payment may vary depending
upon dates payments are received.
Interest shall first be deducted from the payment and any balance shall be applied on
principal.
Upon default in payment of any interest, or any installment of principal, the whole
amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice of non-payment, protest
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof may be extended
after maturity, from time to time, without notice.
ADDRESS: City of Dubuque
50 West 13th Street
Zet,-.-/
Dubuque, IA 52001
BY: ,
Roy Duol, Mayor
ATTEST. 14 4":241/
gnature)
Date`' ,i�'
,~
,:a~ i~
March 10, 2009
Mr. John O'Connor, Attorney at Law
O'Connor & Thomas P.C.
P.O. Box 599
Dubuque, IA 52004-0599
RE: Financial Assistance Program Awards -CEBA and EZ
For Morrison Brothers Company
Award Date: June 19, 2008
Contract Number: P0806M01734
Dear Mr. O'Connor:
Enclosed is a copy of the executed Enterprise Zone (EZ) contract, and the executed Community
Economic Betterment Account (CEBA) contract and promissory notes between Morrison
Brothers Company, the City of Dubuque, and the Department, for your records. An amortization
schedule has been prepared with an estimated start date, and enclosed for your records.
The contract has an effective date of March 6, 2009. Please refer to the master contract and
funding agreements for conditions that must be met during the term of the contract. Prior to
disbursement of funds the items under Article 5, Conditions to Disbursement of Funds, must be
provided'to the Department. In addition, once all documents have been received, as identified
in the enclosed checklist, you will be issued a tax credit certificate number which the Iowa
Department of Revenue is now requiring for all tax credits claimed.
Also, the City will find 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 515-242-4848.
Sincerely,
~~~~ ~
Peggy Russell
Senior Project Manager
Legal and Compliance
PR/km
Enclosures
cc: Mayor Roy Buol, City of Dubuque
IDED file
ChesterJ.Culver,Govemor IOWA D ARTNIT OF CN011AIC DEVELOP ENT
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PattyJudge, LieutenantGovemor
Mike Tramor>tina, Director 200 East Grand Avenue, Des Moines, Iowa USA 50309 ® Phone: 515.2424700 ® Fax 515.242.4809 ® wwwiowal'rfechanging.com
MASTER CONTRACT
BY AND BETWEEN
orrison Brothers Company
AND TIIE
IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT
CONTRACT NUMBER: P0806M01734
TALE ®F C®I~TTENTS
ARTICLE 1. 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. S Investment of Award Proceeds
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 Qualifications
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 Material 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 Taxes
Article 7.13 Other Contracts
Article 7.14 No Default
Article 7.1 S Compliance with Laws
Article 7.16 Effective Date of Representations and Warranties
Contract #P0806M01734 - 2 - Master updated e~o7
ARTICLE 8. COVENANTS
Article 8.1 Maintain Existence in Iowa
Article 8.2 Job Obligations; Benefits Requirements
Article 8.3 Performance Obligations
Article 8.4 Maintenance of Properties
Article 8.5 Taxes and Assessments
Article 8.6 Insurance
Article 8.7 Required Reports
Article 8.8 Inspection and Audit
Article 8.9 Compliance with Laws
Article 8.10 Use ofAward Proceeds
Article 8.11 Changes in Business Ownership, Structure or Control
Article 8.12 Notice of Meetings
Article 8.13 Notice of Proceedings
Article 8.14 Accounting Records
Article 8.1 S Restrictions
Article 8.16 No Changes in Business Operations
Article 8.17 Indemnification
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. MISCELLANEOUS
Article 10.1 Timely Performance
Article 10.2 State oflowa Recognition
Article 10.3 Choice of Law and Forum
Article 10.4 Governing Law
Article 10. S Master Contract/Funding Agreement Amendments
Article 10.6 Notices
Article 10.7 Headings
Article 10.8 Final Authority
Article 10.9 Waivers
Article 10.10 Counterparts
Article 10.11 Survival of Representations
Article 10.12 Severability of Provisions
Article 10.13 Successors and Assigns
Article 10.14 Termination
Article 10.1 S Integration
Contract #P0806M01734 - 3 - Master updated sio7
MASTER CONTRACT
BUSINESS: Morrison Brothers Company
MASTER CONTRACT NUMBER: P0806M01734
AWARD DATE: June 19, 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
("TOED"), 200 East Grand Avenue, Des Moines, IA 50309 and Morrison Brothers Company an Iowa
S-Corporation ("Business"), 325 East 24th Street, Dubuque, Iowa 52004-0238.
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, IDED conducts a site visit and issues a formal closeout letter. 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 #P0806M01734 - 4 - Master updated 8/07
ARTICLE 3
CONTRACT STRUCTURE AND DEFINITIONS;
DOCU NTS 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. See IDED Rule 261IAC174.6(15) for detailed description of benefit requirements.
"Business's Employment Base" means the number of j obs 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 Benefits" 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 (FTE) 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 D, Job Obligations. The Business shall maintain the Project, and the created/retained
jobs through the Job Maintenance Period.
Contract #P0806M01734 - 5 - Master updated e/o7
"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 D, Job Obligations. 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% , 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 Financial Assistance Application, Application #08-CEBA-051 and
#08-EZ-036
Exhibit B - Funding Agreements:
B1-CEBA Funding Agreement
B4- EZ Funding Agreement
Exhibit C - Description of the Project and Award Budget
Exhibit D - Job Obligations
Exhibit E - "Development Agreement By and Between the City of Dubuque, Iowa and
Morrison Brothers Company" dated October 6, 2008.
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
Contract #P0806M01734 - 6 - Master updated s/o7
(e) Exhibit A -Business's Financial Assistance Application
(f) Exhibit E - "Development Agreement By and Between the City of Dubuque, Iowa and
Morrison Brothers Company" dated October 6, 2008.
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 atm. 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 Obli __ ate. 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) Fundin~greements. Fully executed Funding Agreements.
(c) Promissor;v Notes. The Promissory Notes required by the Funding Agreements.
(d) Articles o~'IncorRoration. Copies of the articles of incorporation of the Business, certified in each
instance by its secretary or assistant secretary.
(e) Certi acate of 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," if the Business generates
solid or hazardous waste, it must either: a) submit a copy of the Business's existing in-house plan to
Contract #P0806M01734 - 7 - Master updated a/o7
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.
(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 Return on
Investment Analysis.
(k) Satis actors 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) Project 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) Re ug ests 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 Requirements. Satisfaction of all disbursement requirements
outlined in the specific program Funding Agreements.
5.2 Prior Costs. No expenditures made prior to the Award Date maybe 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 maybe 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
Contract #P0806M01734 - 8 - Master updated 8/07
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.
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 Docurnents") as required by the IDED.
6.1 Securi .This Award shall be secured by:
Dedicated Certificate of Deposit equal to $40,000 (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 7
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 Obli atg ions. 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.
Contract #P0806M01734 - 9 - Master updated s/o~
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
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 Change. 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 owes, 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.
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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.
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
8.1 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,
Contract #P0806M01734 - 11 - Master updated a/o7
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 Employmezzt Base and maintain
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 Bezzefit 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 ations. 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 Pro ep rties. 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.
Contract #P0806M01734 - 12 - Master updated sio~
(b) Reports. The Business shall prepare, sign and submit the following reports to the IDED
throughout the Contract period:
Report Due Date
Annual Project Status Report
The Annual Project Status Report will collect July 31St 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.
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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
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 ofEcers, 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 board is expected to take action that would
materially or adversely affect this Master Contract, or Funding Agreements. In such an event, the
Business shall provide IDED with copies of that portion of the agenda that discuss the expected action
and IDED may, upon advance notice to Business, have a representative attend that portion of such
meeting. IDED may also receive a copy of the minutes of that portion of such meeting.
8.13 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
materially and adversely impact the Project.
Contract #P0806M01734 - 14 - Master updated sio7
8.14 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
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 Operations. 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:
Contract #P0806M01734 - 15 - Master updated8/o7
(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
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
(fj 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 uninsured 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 shall 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 become 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
Contract #P0806M01734 - 16 - Master updateds/o~
(k) Appointment of O~acials. 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
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) Layoffs. 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. IDED may declare the Business in
default due to a layoff, relocation or closure. Factors IDED considers when determining whether to
exercise its discretion under this paragraph include, but are not limited to the percentage of the
Business's workforce affected; the total number of employees involved; whether the action is
seasonal, temporary or permanent; whether employees are relocated to other Iowa facilities; the
reasons causing the layoff, relocation or closure; and the impact on the Project; and the Community;
and the impact on the State.
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.
Contract #P0806M01734 - 17 - Master updated a/o7
ARTICLE 10
1VIISCELLANEOUS.
10.1 Timelv 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 ing tion. If the Project involves construction and there is signage
recognizing the financial contributions made to the Project the Business agrees to include the Iowa
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 maybe 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, maybe 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 maybe
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, e-mail
address, or fax number set forth below, or such other address, e-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:
Contract #P0806M01734 - 18 - Master updated 8/07
To the Business:
Morrison Brothers Company
Charlie Glab, President
325 East 24`h Street
Dubuque, IA 52004-0238
E-mail: cglab@mchsi.com
Telephone : 5 63 -5 8 3 -5 701
Facsimile: 563-5 83-5028
To the IDED at:
Iowa Department of Economic Development
Legal and Compliance
200 East Grand Avenue
Des Moines, Iowa 50309
Attention: Peggy Russell, Senior Project Manager
E-mail: peggy.russell@iowalifechanging.com
Telephone: 515-242-4848
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 e-mail is transmitted to the
e-mail address specified in this Article and a confirmation of such e-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
(2007).
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 maybe 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
Contract #P0806M01734 - 19 - Master updated s/o7
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
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
maybe 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 maybe 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 Assi zg s. 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 Irate arm 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 I
BY:
OF ECONOMIC DEVELOPMENT:
Contract #P0806M01734 - 20 - Master updated eio~
LIST OF EXHIBITS
Exhibit A - Business's Financial Assistance Application (on file with IDED),
Application #08-CEBA-O51 and #08-EZ-036
Exhibit B - Funding Agreements
B 1-CEBA Funding Agreement
B4-EZ Funding Agreement
Exhibit C -
Exhibit D -
Exhibit E -
Description of the Project and Award Budget
Job Obligations
"Development Agreement By and Between the City of Dubuque, Iowa
and Morrison Brothers Company" dated October 6, 2008.
Contract #P0806M01734 - 21 - Master updateds/o7
E IBIT B ® 1
CE A FUNDING AGREEM NT
BUSINESS:
COMMUNITY:
MASTER CONTRACT NUMBER:
FUNDING AGREEMENT NUMBER:
AWARD TYPE:
AMOUNT:
Morrison Brothers Company
City of Dubuque
P0806M01734
08-CEBA-051
Loan/Forgivable Loan
X40,000
THIS CEBA 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 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, the Iowa Code provisions applicable to the CEBA Program require the
Community to submit an application on behalf of the Business in order to apply for and receive
CEBA funds; and
WHEREAS, this CEBA Funding Agreement contains additional terms and conditions for
the award of CEBA funds and
NOW, THEREFORE, the Business and Community accept the terms and conditions set
forth in this 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 CEBA Funding
Agreement and other good and valuable consideration, it is agreed as follows:
1.0 Master Contract. Unless otherwise specified in this CEBA Funding Agreement, the
definitions, terms, conditions, and provisions contained in the Master Contract are applicable to
this CEBA Funding Agreement.
2.0 Definitions. As used in this CEBA Funding Agreement, the following terms shall apply:
2.1 Agreement Expiration Date. Expiration of this CEBA Funding Agreement occurs
upon the happening of one of the following events, whichever occurs first:
(a) IDED's determination that the Business and Community have fully met the
requirements of this CEBA Funding Agreement, including repayment of all amounts
due hereunder, and IDED closes out this CEBA Funding Agreement.
(b) An Event of Default occurs that is not remedied within the time period allowed
under the Master Contract.
(c) If no disbursement of CEBA funds has occurred within twenty-four (24) months
Revised 8/07
of the Award Date (as defined in the Master Contract).
(d) This CEBA Funding Agreement is terminated upon mutual, written agreement of
the Business, the Community and IDED.
2.2 CEBA. "CEBA" means the Community Economic Betterment Program (established
in Iowa Code sections 15.315-15.325). The source of funding for this CEBA Funding Agreement
is an appropriation by the State legislature to IDED.
2.3 CEBA Award. "CEBA Award" means the financial assistance provided to the
Business in the form of a Loan- and/or Forgivable Loan, as more fully defined in Articles 3 and 4
of this CEBA Funding Agreement.
3.0 Terms of CEBA Award -Loan. CEBA funds have been awarded to the Community on
behalf of the Business to assist the Business with the Project. The terms of the Loan are as
follows:
3.1 $20,000
3.2 60 months duration
3.3 0% interest rate
3.4 Promissory notes. The obligation of the Business and Community to repay the Loan
shall be evidenced by Promissory Notes executed by the Business and the Community.
4.0 Terms of CEBA Award -Forgivable Loan. CEBA funds have been awarded to the
Community on behalf of the Business to assist the Business with the Project. The terms of the
Forgivable Loan are as follows:
4.1 $20,000
4.2 60 months duration
4.3 Terms of Forgiveness. IDED will, in its sole discretion, determine if the Business
has satisfied the terms of this CEBA Funding Agreement, including fulfillment of the Job
Obligations by the Project Completion Date as shown in Master Contract Exhibit D. If IDED
determines that the Business has satisfied said terms and has continued to satisfy said terms
through the Job Maintenance Period, and issues a formal closeout letter, then barring any other
default, repayment of principal and interest which would otherwise have accrued for the time
period beginning with the Award Date and ending with the Project Completion Date shall be
permanently waived. If IDED does not waive repayment, the Forgivable Loan shall be repaid
as described in Article 11.2(b) of this CEBA Funding Agreement.
4.4 Promissory notes. The obligation of the Business and Community to repay the
Forgivable Loan shall be evidenced by a Promissory Notes executed by the Business and
Community.
5.0 Maximum CEBA funds available for Project. It is expressly understood and agreed that
the maximum amounts to be paid to the Business by IDED for this CEBA Funding Agreement
shall not exceed the amount stated on page one of this CEBA Funding Agreement.
Master Contract #P0806M01734
Funding Agreement #08-CEBA-051 - 2 - Revised aio~
6.0 Business' Job ®bligations. The Business' Job Obligations are as described in Master
Contract Exhibit D.
7.0 Conditions to ®isbursement. In addition to the conditions to disbursement described in
the Master Contract, the Business shall meet the following conditions before IDED will release
CEBA funds:
7.1 State Building Code Bureau Approval. Bidding for construction shall not be
conducted prior to the written approval of the final plans by the State Building Code Bureau of
the Iowa Department of Public Safety, and only if either of the following applies:
(a) The building or structure is located in a governmental subdivision which has not
adopted a local building code, or
(b) The building or structure is located in a governmental subdivision which has adopted
a building code, but the building code is not enforced.
8.0 Affirmative Covenants of Community. The Community covenants with IDED that:
8.1 Proiect Work and Services. The Community shall perform work and services
detailed in the Business's CEBA application by the Project Completion Date.
8.2 Filing. Unless otherwise agreed, IDED shall file the Security Documents required
under this CEBA Funding Agreement. The Community shall, if requested by IDED, file in a
proper and timely manner any and all Security Documents required in connection with the
CEBA Award, naming the IDED as co-security holder and promptly providing the IDED with
date-stamped copies of said Security Documents. The Community shall, at the IDED's request,
obtain and provide to the IDED lien searches or attorney's title opinions.
8.3 Indemnification. The Community shall indemnify and hold harmless the IDED, its
officers and employees to the extent allowed under the Iowa Constitution and Iowa Code on the
same basis as the Business is obligated to indemnify the IDED under the Master Contract.
8.4 Requests for CEBA Award Funds. The Community shall review the Business'
requests for CEBA Award funds to ensure that the requests are in compliance with the IDED's
requisition procedures and shall execute and forward the requests to the IDED for processing.
8.5 Unused CEBA Award Proceeds. The Community shall return all unused CEBA
Award proceeds, including accrued interest, to the IDED within thirty (30)'days after the Project
Completion Date.
8.6 Notice of Meetings. The Community shall notify the IDED at least two (2) days in
advance of all public or closed meetings at which the subject matter of this CEBA Award and/or
the Project is proposed to be discussed. The Community shall provide the IDED with copies of
the agenda and minutes of such meetings and expressly agrees that a representative of the
IDED has the right to attend any such meetings for the purposes of the discussion of the Project
and/or the CEBA Award.
8.7 Local Commitment. The Community shall provide the local financial assistance for
the Project as described in Master Contract Exhibit C, Project Description and Award Budget,
Master Contract #P0806M01734
Funding Agreement #08-CEBA-051 - 3 - Revised sio~
and in the form and annual amounts described in Exhibit E - "Development Agreement By and
Between the City of Dubuque, Iowa and Morrison Brothers Company" dated October 6, 2008.
8.8 Notice to IDED. In the event the Community becomes aware of any material
alteration in the Project, initiation of any investigation or proceeding involving the Project or
CEBA Award, change in the Business' ownership, structure or operation, or any other similar
occurrence, the Community shall promptly notify the IDED.
8.9 Responsibility Upon Default. If the Business fails to perform under the terms of the
Master Contract and/or this CEBA Funding Agreement and the IDED declares the Business in
default, the IDED shall take the lead on recovery of CEBA Award proceeds, as well as
penalties, interest, costs and foreclosure on collateral, provided the Community assigns its
security interest and CEBA contract documents to IDED for collection purposes.
9.0 Negative Covenants of Community. The Community shall not, without written consent
of IDED:
(a) Acceptance of CEBA Award Repayments. Accept any CEBA Award repayments
and/or settlements on Community funds considered local effort for this CEBA Funding
Agreement.
(b) Assi nment. Assign its rights and responsibilities under this CEBA Funding
Agreement.
(c) Alter Financial Commitments. Alter, accelerate or otherwise change the terms of the
Community's financial commitment to the Business for this CEBA Funding Agreement.
(d) Administration. Discontinue administration or loan servicing activities under this
CEBA Funding Agreement.
10.0 Community Liability.
10.1 Good Faith Enforcement. The Community's liability under this CEBA Funding
Agreement due to the Business's failure to perform is limited to those amounts which the
Community recovers from the Business in unused CEBA Award proceeds, enforcement of
judgments against the Business and through its good faith enforcement of the Security
Documents executed by the Business. Nothing in this paragraph shall limit the recovery of
principal and interest by IDED in the event of Community's fraud, negligence, or gross
mismanagement in the application for, or use of, sums provided under this CEBA Funding
Agreement.
10.2 Failure to Provide Local Fundina. In the event the Community fails to provide the required
local assistance pledged, the Community is liable to IDED for the full amount of the local
financial assistance pledged for the Project as described in Master Contract Exhibit C, Project
Description and Award Budget, and in the form and annual amounts described in Exhibit E -
"Development Agreement By and Between the City of Dubuque, Iowa and Morrison Brothers
Company" dated October 6, 2008.
11.0 Default; Remedies upon Default.
11.1 The terms of Article 9.0 (Events of Default and Remedies) of the Master Contract
govern this CEBA Funding Agreement. The following are additional Events of Default for this
CEBA Funding Agreement:
Master Contract #P0806M01734
Funding Agreement #08-CEBA-051 - 4 - Revised aio~
a. The Community's failure to provide the annual local financial assistance pledged for
the Project as described in Master Contract Exhibit C, Project Description, and in the form and
annual amounts described in Exhibit E - "Development Agreement By and Between the City of
Dubuque, Iowa and Morrison Brothers Company" dated October 6, 2008.
11.2 The following are Default Remedies available to IDED in addition to those specified
in Article 9.2 of the Master Contract:
(a) Repayment of Loan -Failure to Meet Job Obligations. If the Business meets less
than 100% of its Job Obligations, the IDED may require full repayment of the Loan, as permitted
under the Master Contract. IDED may also elect to allow repayment on a pro rata basis as
described below:
If the Business received a Loan at a rate below 6% (the annual interest rate for default
set by the IDED Board), the unpaid principal amount of the Loan may be prorated
between the percentage of FTE Jobs created/retained and the percentage of the
shortfall.
The shortfall principal portion may be amortized over the remaining term of the Loan,
beginning at the Project Completion Date, at a default rate of 6% (the annual interest
rate set by the IDED Board). Interest will be charged beginning from the date Loan
proceeds were disbursed to the Community for the Business; interest accrued from this
date will be due immediately. The pro rata portion of the Loan associated with the
percentage of FTE Jobs created will be amortized at the original Loan rate and term.
(b) Repayment of Forgivable Loan -Failure to Meet Job Obligations. If the Business
has fulfilled 50% or more of its Job Obligations, a pro rata percentage will be forgiven for each
new FTE job created/retained at the time the repayment amount is calculated (e.g. at the
Project Completion Date or the date an Event of Default occurred) Any balance (shortfall) will
be amortized over a two (2) year period (beginning at the at the time the repayment amount is
calculated (e.g. at the Project Completion Date or the date an Event of Default occurred) at six
(6%) percent interest per annum with equal monthly payments, and, interest will be charged at
six (6%) percent per annum from the date of the first CEBA disbursement on the shortfall
amount with that amount accrued as of the Project Completion Date being due and payable
immediately.
(c) Repayment -Time Allowed. If the IDED has allowed repayment of the
Forgivable Loan on a pro rata basis as described in paragraph "b" above, that amount is
immediately due and payable. If the Business has a current Loan balance, the amount owed on
the Forgivable Loan may be combined with the amount owed on the Loan to reflect a single
monthly payment. This combined loan shall be repaid over the time period remaining
(d) Example. CEBA Funding Agreement Exhibit B is an example of how these
repayment calculations will be applied.
(e) Community Default. If the Community fails to provide the pledged financial
assistance for this Project, IDED will issue a written Notice of Default to the Community setting
forth the nature of the alleged Event of 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 Community shall have an opportunity to cure, provided that cure
Master Contract #P0806M01734
Funding Agreement #08-CEBA-051 - 5 - Revised sio~
is possible and feasible. 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 first date Award funds were disbursed by IDED.
12.0 Incorporated documents. The following documents are hereby incorporated by this
reference:
1. The Master Contract and its Exhibits.
2. CEBA Promissory Notes: CEBA Funding Agreement Exhibit Al -Community, and
CEBA Funding Agreement Exhibit A2 -Business.
3. CEBA Funding Agreement Exhibit B -Example: Business Job Shortfall Calculation.
IN WITNESS WHEREOF, the parties have executed this CEBA Funding Agreement:
FOR THE BUSINESS:
BY:
Signature
Typed Name and Title
2/~ /O~
Date
FOR THE COMMUNI
BY: ~- v~~
Signat
Rov D. Buol, Mayor
Typed Name and Title
~~~~
Date
Master Contract #P0806M01734
Funding Agreement #08-CEBA-051 - 6 - Revised sio~
CEBA Funding Agreement Exhibit A1-Community's Promissory Note (Forgivable Loan)
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises, in the event
this Forgivable Loan is not forgiven, to pay to the order of the IOWA DEPARTMENT
OF ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa
50309, the sum of Twenty Thousand Dollars ($20,000) with interest at a rate of 0
unless an Event of Default occurs, in which case interest shall be at the default rate set
forth in Contract number P0806M01734 ("Contract"). The terms and conditions by which
forgiveness of this Loan may occur are as specified in the Contract.
Interest shall first be deducted from the payment and any balance shall be applied on
principal. Upon default in payment of any interest, or any installment of principal, the
whole amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice ofnon-payment, protest_
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof maybe extended
after maturity, from time to time, without notice.
ADDRESS:
50 West 13th Street
Dubuque, IA 52001
City of Dubuque
BY: ~' ~ , ~ ;
Roy uol, Mayor
%~' ~~~
ATTEST ~~~~^/~~
ignature)
Date ~/ v f
CEBA Funding Agreement Exhibit A1-Community's Promissory Note (Loan)
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, at its office at
200 East Grand, Des Moines, Iowa 50309, the sum of Twenty Thousand Dollars
($20,000) with interest thereon at Zero Percent (0%) to be paid as follows:
Sixty (60) monthly payments of $333.33 beginning on the first day of the fourth
month from the date Award funds are disbursed. Final payment may vary depending
upon dates payments are received.
Interest shall first be deducted from the payment and any balance shall be applied on
principal.
Upon default in payment of any interest, or any installment of principal, the whole
amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice ofnon-payment, protest
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof maybe extended
after maturity, from time to time, without notice.
ADDRESS: City of Dubuque
50 West 13th Street
Dubuque, IA 52001
BY: ~~z~
Roy D~uol, Mayor
ATTEST• ~'~-C~~
gnature)
Dat ~~'~~~~
CEBA Funding Agreement Exhibit A2- Business's Promissory Note (Forgivable Loan)
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises, in the event
this Forgivable Loan is not forgiven, to pay to the order of the IOWA DEPARTMENT
OF ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa
50309, the sum of Twenty Thousand Dollars ($20,000) with interest at a rate of 0
unless an Event of Default occurs, in which case interest shall be at the default rate set
forth in Contract number P0806M01734 ("Contract"). The terms and conditions by which
forgiveness of this Loan may occur are as specified in the Contract.
Interest shall first be deducted from the payment and any balance shall be applied on
principal. Upon default in payment of any interest, or any installment of principal, the
whole amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, incase of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice ofnon-payment, protest
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof maybe extended
after maturity, from time to time, without notice.
Morrison Brothers Company
By:
Print or Type Name, Title
Address: 325 East 24th Street
Dubuque, IA 52004-0238
Date ~~ D
CEBA Funding Agreement Exhibit A2- Business's Promissory Note Loan)
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises to pay to the order of the
IOdVA DEPARTMENT OF ECONOMIC DEVELOPMENT, at its office at 200 East
Grand, Des Moines, Iowa 50309, the sum of Twenty Thousand Dollars ($20,000) with
interest thereon at Zero Percent (0%) to be paid as follows:
Sixty (60) monthly payments of $333.33 beginning on the first day of the fourth
month from the date Award funds are disbursed. Final payment may vary depending
upon dates payments are received.
Interest shall first be deducted from the payment and any balance shall be applied on
principal.
Upon default in payment of any interest, or any installment of principal, the whole
amount then unpaid shall become immediately due and payable at the option of the
holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs of
collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or paid
by the holder in collecting and/or enforcing this Note on default.
This note shall be secured by the Security specified in the Contract.
Makers, endorsers and sureties waive demand of payment, notice ofnon-payment, protest
and notice. Sureties, endorsers and guarantors agree to all of the provisions of this note,
and consent that the time or times of payment of all or any part hereof maybe extended
after maturity, from time to time, without notice.
Morrison Brothers Company
By:
t//~fi~Gz~d' CGA-B , ~RE~/1~iE.c~l1
Print or Type Name, Title
Address: 325 East 24th Street
Dubuque, IA 52004-0238
Date Z ~ d.°>
EX,4AAL
uainess J®b
h®rtfall Calculate®n
CEBA
City ofDubuque/ Morrison Brothers Company
FUNDING AGREEMENT #08-CEBA-051
$40,000 L/FL /Award Date• June 19 2008
($20,000 0% Loan, $20,000 Forgivable Loan)
A. FORGIVABLE LOAN -JOB SHORTFALL CALCULATION
50 jobs pledged, 42 jobs attained; 84% of pledged jobs attained, 16 % shortfall
$75,000 (forgivable loan amount) x 16% _ $12,000
Forgivable Loan Job Shortfall Balance due = $12,000
B. FORGNABLE LOAN -INTEREST PENALTY CALCULATION
CEBA funds disbursed on 11-1-00. Project Completion Date was 6-30-03.
(C A) Funding
p+greernent xhibit
Interest penalty =job shortfall balance x 6% x number of years from disbursement of funds to Project Completion
Date
($12,000 x 6% x 2.67 years) _ $1,922.40
Forgivable Loan Net Interest Penalty due = $1,922.40
C. LOAN BALANCE -INTEREST PENALTY CALCULATIONS
Loan balance as of 7-21-OS = $15,797.58
84% of remaining loan balance stays at 0% interest = ($15,797.58 x .84) _ $13,269.97
16% of remaining loan balance changes to 6% interest = ($15,797.58 x .16) _ $2,527.61
Interest penalty = 16% of remaining loan balance x 6% x 2.67 years
($2,527.61 x 6% x 2.67 years) _ $404.92
Loan Net Interest Penalty due = $404.92
D. REPAYMENT TERMS & SCHEDULE
1. Total Net Interest Penalty due is $2,327.32 ($1,922.40 + $404.92).
2. Total Forgivable Loan amount due is $12,000.
3. Remaining Loan Balance as of 7-21-OS will be $15,797.58 and will be re-amortized to convert 16% of that
balance to 6% interest over remaining term of loan.
Muster FA Exhibit B updated 12-30-OS
E I~I'T~-4
E FUNDING A REEMENT
USINESS:
COMMUNITY:
Morrison Brothers Company
City of Dubuque
MASTER CONTRACT NUMBER: P0806M01734
FUNDING AGREEMENT NUMBER: 08-EZ-036
ENTERPRISE ZONE NAME: Dubuque EZ-1A
ZONE CERTIFICATION DATE: November 20, 1997
ZONE EXPIRATION DATE: November 20, 2017 (Extended
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 F,unding 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 #P0806M01734
Funding Agreement #08-EZ-036 - 2 - Revised aio~
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 Proiect 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 to and not in lieu of the program and withholding
credit of 1 %2 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 %2 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 follow 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
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
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 3 - Revised sio~
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-
yearamortization period is specified below:
Amortization Schedule
Jul 1, 2007 -June 30, 2008 $51,500
Jul 1, 2008 -June 30, 2009 $51,500
Jul 1, 2009 -June 30, 2010 $51,500
Jul 1, 2010 -June 30, 2011 $51,500
Jul 1, 2011 -June 30, 2012 $51,500
(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 Activifies 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
generation component will no longer be considered innovative when more than 200 megawatts
of installed effective nameplate capacity has been achieved. Research activities credits
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 4 - Revised sio~
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.
(d) Refund Of Sales, Service And Use Taxes Paid To Contractors Or
Subcontractors. The Business is eligible for a refund of sales, service and use taxes paid to
contractors and subcontractors as authorized in Iowa Code section 15.331 A.
(i) The Business may apply for a refund of the sales and use taxes paid under Iowa
Code chapters 422 and 423 for gas, electricity, water or sewer utility services,
goods, wares, or merchandise, or on services rendered, furnished, or performed
to or for a contractor or subcontractor and used in the fulfillment of a written
contract relating to the construction or equipping of a facility within the Enterprise
Zone.
(ii) Taxes attributable to intangible property and furniture and furnishings shall not be
refunded.
To receive a refund of the sales, service and use taxes paid to contractors or
subcontractors, the Business must, within one year after Project Completion, make an
application to the Department of Revenue.
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:
Value-Added Property Tax Exemption
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 Obli atcL ions. 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 PerioaP') 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 $2,575,000 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:
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 5 - Revised sio~
(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, and in the form and annual amounts
described in Exhibit E - "Development Agreement By and Between the City of Dubuque, Iowa
and Morrison Brothers Company" dated October 6, 2008.
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. If, 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 fails 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:
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 6 - Revised e~o7
(a) Job Obligations at Project 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 shall repay all of the incentives and
assistance that it has received.
(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) If 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.
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 7 - Revised aio~
(e) Layoffs or closures. If the Business experiences a layoff within the state or
closes any of its facilities 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.
IDED may declare the Business in default due to a layoff, relocation or closure. Factors
IDED considers when determining whether to exercise its discretion under this paragraph
include, but are not limited to the percentage of the Business's workforce affected; the total
number of employees involved; whether the action is seasonal, temporary or permanent;
whether employees are relocated to other Iowa facilities; the reasons causing the layoff,
relocation or closure; and the impact on the Project; and the Community; and the impact on
the State.
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, and in the form and annual amounts described in Exhibit E - "Development
Agreement By and Between the City of Dubuque, Iowa and Morrison Brothers Company" dated
October 6, 2008.
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
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."
Master Contract #P0806M01734
Funding Agreement #OS-EZ-036 - 8 - Revised sio~
IN WITNESS WHEREOF, the parties have executed this EZ Funding Agreement:
FOR THE BUSINESS:
BY:
FOR THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT:
BY:
ael L. Tramontir~alDirector
Date
FOR' THE COMMUNITY:
BY: ~.~ ~ ~
Signature
Roy D.Buol, Mayor
Typed Name and Title
Date
March 2, 2009
Master Contract #P0806M01734
Funding Agreement #08-EZ-036 - 9 - Revised sio~
EZ Fundin~~reement Exhibit 1~
nterprise Zone Commission Resolution
Approving the business's Enterprise Zone Application
CITY OF DU UQUE, IOWA
NT I I I
R SOLUTION 3-2008
A RESOLUTION APPROVING THE FILING OF AN APPLICATION WITH TH
IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT REQUESTING
ENTERPRISE ZONE BENEFITS ON BEHALF OF MORRISON BROTHERS
CO.
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 Morrison Brothers Co. 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 Morrison Brothers Co. application for Enterprise Zone
benefits is approved.
Section 2. That Morrison Brothers Co. will create ten (10) new jobs at their
East 7th Street facility.
Section 3. That Dubuque Morrison Brothers Co. will invest approximately
$3,800,000 in Enterprise Zone 1 as part of the expansion 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 2nd day of June, 2008.
Rick Stein
Chair
F:\USERSWdejong\Enterprise ZoneWlorrison BrosWlorrison EZ resolution.doc
EZ Fundin Agreement Exhibit C
Investment Tax Credit Amortization schedule Examples
EZ Funding ~-greement
xhibit 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 equally 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 maybe 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 maybe 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 carry 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 Earned -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 15, 2008 and maybe 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 $ 50,000
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 forward
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 Year's Tax Return $ 50,000
ITC to be Carried Forward into Future Tax Year $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 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 February 15, 2015 falls.
September 14, 2005
DESCRIPTION ®F THE PR®JECT AND AWARD BUDGET
(EXHIBIT C)
i
Name of Business: Morrison Brothers Company t
s
Contract Number: P0806M01734
PROJECT DESCRIPTION
:Morrison Brothers Company plans to consolidate two current locations into one expanded business
;location. Project costs include site prep, building construction & remodeling, machinery & equipment,
;racking & shelving, computer hard/software, furniture & fixtures, and research & development.
a
t
i t
fr
AWARD BUDGET
i
i ~ F
SOURCE OF FUNDS f ;
USE OF FUNDS ''
I I Cos
-_- N`.Amount _____-___.-- - Land Acquisition /~~',~~ ~ --~--- -~---
IDED Pro rams r~z- ,..~:` rc~°;4. ~ .:.>. .
CEBA P;~~~~;1~2~,~00-~ Forgivable Loan `Site Preparation -~~:~~~~~a~~,04OSlQ= ;
CEBA ~.'j `• i.~:==•.~~- t' ~~ -:~~.,„- .
r~<~t=x$20 010';; Loan ~ Building Acquisition :.~ ~; ~-" '~=,~
Enter rise Zone Benefits "~` ''~ ~,y~~~+~v~x,-•
p i,~~{~ ,~ ~~~,s4~~,~ see Note ~ Building Construction ;r~:~ :rti1-,' 0Q,;~Q~~
e~ ~~~.-~, ~ 'Building Remodeling ~~~~~ ~~t?~~00~;
(Business ,$~f3~;{~~,p>,Cash Mfg Machinery and Equipment
~ `~ Other Machinery and Equipment '
~, ~~ ~~:~~a.} ' ~~I Racking, Shelving, etc. ~`°~ ~~D OQO .°
s ~„"°~s "Computer Hardware g ~ba~ 00~ ,
~ ''y, , ~ Computer Software ~~., ~I,0
! ";~~ ~~y' Furniture and Fixtures ~,~~''"~ ~ v0~ T~,
~ s=~~s"- ~~:~ (Working Capital ~~~, ~ ~ ~'~~ ~
~'t`f~' ~u~`i` ``"'~z- "Research and Development ~°~~>~`'9q~$;Q~ £~1~'; i
~~ i ~
~ ~` ~ 4``~„~ <~~~ ~ Job Training { ~`' }~~ ' 4
~'~§ ~~'`~~: ~ Other E~enses -salaries ~ ~~ ~ ~~
i _ 4_ ~~ ~3~a ~ ~ ` 3 ~ C Other Expenses -lease ~ ,~ ~ _ _
_,.,..- .~~-~-~._ u_:...._~~;~t7B3`O`~'4~~3~~~~,0 Q~=',.~~" ~~~_. ~~~ai~~~~.~~ .'_"`'~=~-`~4i~~~~B7fQ'~~';~~3~~, ~a~,`a.~~`«z_.:.~ ~i
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g ~~~~ ~k~x~ r ~ `included as capital investment rf awarded tax credit program ~Y ,~~*" fi~~ ~~~~
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E I~IT l) - J®~ ®~I.IGATI®NS
IVlorrison brothers Coanpany
#08-CEBA-051 and #08-EZ-036
This Project has been awarded benefits from the Community Economic Betterment Account (CEBA) and Enterprise Zone (EZ)
programs. The charts below outline the contractual job obligations related to this Project.
Data in the "Employment Base" column has been verified by the Department and reflects the employment characteristics of the
facility receiving funding before this award was made. Jobs to be retained as a part of this Project must be included in these
calculations.
Data in the "Jobs To Be Created" column outlines the new full-time jobs (including their wage characteristics) that must be added to
the employment base and, if applicable, statewide employment base as a result of this award.
At the Project Completion Date and through the Project Maintenance Date, the Business must achieve (at a minimum) the numbers
found in the "Total Job Obligations" column.
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Average Wage of total employment at project location $22.65 =,~~yzY~~.~
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1. If the Benefit Value was added to the base wage to meet program wage threshold eligibility
requirements, then any reduction in the Benefit Value during the life of the Contract must be
compensated for with salary to ensure that the Qualifying Wage rates are met.
2. Bonus or commission payments are not included when calculating the Qualifying Wage rate.
Revised 8/07
Exhibit E
"Development Agreement By and Between the City of
Dubuque, Iowa and Morrison Brothers Company" dated
October 6, 2008.
September 14, 2005
EV L PM Nl° A EMEN1'
B EEN
THE I F U lJ UE, IWA,
AN®
MOIN R®S. COMPANY
This Agreement, dated for reference purposes the 6tn day of
October , 2008 (Effective Date), by and between the City of Dubuque, Iowa, a
municipality (City), established pursuant to the Iowa Code and acting under
authorization of Iowa Code Chapter 403, as amended (the Urban Renewal Act), and
Morrison Bros. Company, an Iowa corporation with its principal place of business in
Dubuque, Iowa (Developer).
WITNESSETH:
WHEREAS, in furtherance of the objectives of the Urban Renewal Act, City
has undertaken an Urban Renewal project (the Project) to advance the community's
ongoing economic development efforts; and
WHEREAS, Developer is the owner of the property at 570 East 7~' Street
(the Property) and the Project is located within the East 7~' Street Economic
Development District (the Project Area); and
WHEREAS, as of the date of this Agreement there has been prepared and
approved by City the Urban Renewal Plan for the Project Area consisting of the
Urban Renewal Plan for the East 7~' Street Economic Development District,
approved by the City Council of City by Resolution 144-97 on April 7, 1997, and is
on ~ile at the office of the Economic Development Department, City Hall, 13"' and
Central Avenue, Dubuque, Iowa; and
WHEREAS, a copy of the Urban Renewal Plan, as amended, is attached
hereto as Exhibit C and has been filed of record with the Dubuque County Recorder
on July 25, 1997, 2008, as instrument No. 8350-97.
WHEREAS, Developer has decided to expand its operations in the Project
Area; and
WHEREAS, City believes that the development of the Property pursuant to
this Agreement, and the fulfillment generally of this Agreement, are in the vital and
best interests of City and in accord with the public purposes and provisions of the
applicable federal, state and local laws and the requirements under which the
Project has been undertaken and is being assisted.
NOW THEREFORE, in consideration of the premises and the mutual
obligations of the parties h°ereto, each of them does hereby covenant and agree as
follows:
10030~ba1Fina1
TIN 1. !/ L PnA NT ~ATIVIT'IES
2.1 Required Minimum Improvements. City acknowledges that Developer is
expanding its manufacturing facility on the Property, specifically for, warehouse,
office, Engineering, and Research and Development facilities, without limitation, and
all interior improvements (the Minimum Improvements). Minimum Improvements
shall include an expanded manufacturing facility including warehouse, office, and
Engineering and Research and Development Tech Center along with necessary
site work and equipment as contemplated in this Agreement, at an estimated cost of
approximately $3,825,000.
2.2 Plans for Construction of Minimum Improvements. Plans and specifications
with respect to the development of Property and the construction of the Minimum
Improvements thereon (the Construction Plans) shall be in conformity with the
Urban Renewal Plan, this Agreement, and all applicable state and local laws and
regulations, including but not limited to any covenants, conditions, restrictions,
reservations, easements, liens and charges, applicable to the Property, all recorded
with the Dubuque County Recorder's office. Developer shall submit to City, for
approval by City, plans, drawings, specifications, and related documents with
respect to the improvements to be constructed by Developer on the Property. All
work with respect to the Minimum Improvements shall be in substantial conformity
with the Construction Plans approved by City.
2.3 Timing of Improvements. Developer hereby agrees that construction of the
Minimum Improvements on the Property shall be commenced within three (3)
months after the Closing Date, and shall be substantially completed by December
31, 2009. For purposes of this section, "substantial completion" shall mean
completion of the site work and completion of the core and shell of the building, but
shall not include fixtures and equipment, and does not contemplate receipt of a
certificate of occupancy. The time frames for the performance of these obligations
shall be suspended due to unavoidable delays, meaning delays, outside the control
of the party claiming its occurrence in good faith, which are .the direct result of
strikes, other labor troubles, unusual shortages of materials or labor, unusually
severe or prolonged bad weather, acts of God, fire or other casualty to the Minimum
Improvements, litigation commenced by third parties which, by injunction or other
similar judicial action or by the exercise of reasonable discretion directly results in
delays, or acts of any federal, state or local government which directly result in
delays. The time for performance of such obligations shall be extended only for the
period of such delay.
2.4 Certificate of Completion. Promptly following the request of Developer upon
completion of the Minimum Improvements, City shall furnish Developer with an
appropriate instrument so certifying. Such certification (the Certificate of
Completion) shall be in recordable form and shall be a conclusive determination of
100308balFinal 2
the satisfaction and termination of the agreements and covenants in this Agreement
with respect to the obligations of Developer to construct Minimum Improvements.
ECTIN 3. CITY RTICIA-TI®iV
3.1 Economic Development Grant.
(1) For and in consideration of Developer's obligations hereunder, and in
furtherance of the goals and objectives of the Urban Renewal Plan for the
Project Area and the Urban Renewal Law, City agrees, subject to Developer
being in compliance with the terms of this Agreement, to make sixteen (16)
consecutive semi-annual payments (such payments being referred to
collectively as the Economic Development Grants) to Developer if Developer
owns or leases the Property and/or the Minimum Improvements thereon
during the period such tax increment revenues accrue, as follows:
November 1, 2010 May 1, 2011
~
November 1, 2011 May 1, 2012
November 1, 2012 May 1, 2013
November 1, 2013 May 1, 2014
November 1, 2014 May 1, 2015
November 1, 2015 May 1, 2016
November 1, 2016 May 1, 2017
November 1, 2017 May 1, 2018
pursuant to Iowa Code Section 403.9 of the Urban Renewal Law, in amounts
equal to the portion of the tax increment revenues collected by City,described
below under Iowa Code Section 403.19 (without regard to any averaging that
may otherwise be utilized under Iowa Code Section 403.19: and excluding
any interest that may accrue thereon prior to payment to Developer) during
the preceding six-month period in respect of the Minimum Improvements
constructed by Developer (the Developer Tax Increments). For purposes of
calculating the amount of the Economic Development Grants provided in this
Section, the Developer Tax Increments shall be only those tax increment
revenues collected by the City in respect of the increase in the assessed
value of the Property above the assessment of January 1, 2008
($1,824,400). The Developer Tax Increments shall not include (i) any
property taxes collected for the payment of bonds and interest of each taxing
district, (ii) any taxes for the regular and voter-approved physical plant and
equipment levy, (iii) the remaining actual amount of tax increment revenues
collected by the City in respect of the valuations of the Property prior to
January 1, 2009 and (iv) any other portion required to be excluded by Iowa
law, and thus such incremental taxes will not include all amounts paid by
Developer as regular property taxes.
3
(2) To fund the Ec®nomic Development Grants, City shall certify to the
County prior to December 1 of each year, commencing December 1, 2009,
its request for the available Developer Tax Increments resulting from the
assessments imposed by the County as of January 1 of that year, to be
collected by City as taxes are paid during the following fiscal year and which
shall thereafter be disbursed to Developer if Developer (or a subsequent
owner reasonably approved by City) owns or leases the Property and/or
Improvements thereon during the period such tax increment revenues
accrue, on November 1 and May 1 of that fiscal year. (Example: if City so
certifies by December, 2009, the Economic Development Grants in respect
thereof would be paid to Developer on November 1, 2010, and May 1, 2011.)
(3) The Economic Development Grants shall be payable from and
secured solely by the Developer Tax Increments paid to City that, upon
receipt, shall be deposited and held in a special account created for such
purpose and designated as the "Morrison Bros. II TIF Account" of City. City
hereby covenants and agrees to maintain its TIF ordinance in force during
the term and to apply the incremental taxes collected in respect of the
Property and Minimum Improvements and allocated to the Morrison Bros. II
TIF Account to pay the Economic Development Grants, as and to the extent
set forth in Section 3.2(1) hereof. The Economic Development Grants shall
not be payable in any manner by other tax increments revenues or by
general taxation or from any other City funds. City makes no representation
with respect to the amounts that may be paid to Developer as the Economic
Development Grants in any one year and under no circumstances shall City
in any manner be liable to Developer so long as City timely applies the
Developer Tax Increments actually collected to the Morrison Bros. II TIF
Account (regardless of the amounts thereof) for the payment of the Economic
Development Grants to Developer as and to the extent described in this
Section.
(4) City shall be free to use any and all tax increment revenues collected
in respect of other properties within the Project Area, or any available
Developer Tax Increments resulting from the termination of the annual
Economic Development Grants under Section 3.1 hereof, for any purpose for
which such tax increment revenues may lawfully be used pursuant to the
provisions of the Urban Renewal Law, and City shall have no obligations to
Developer with respect to the use thereof.
SECTION 4. COVENANTS F DEVELOPER
4.1 Job Creation. Developer shall create ten (10) full-time equivalent jobs in
Dubuque, Iowa prior to June 1, 2011, and shall maintain those jobs during the term
of this Agreement. It is agreed by the parties that Developer has eighty-eight (88)
full-time equivalent positions in Dubuque, Iowa as of June 1, 2008. In the event that
any certificate provided to City under Section 4.2 hereof discloses that Developer
4
does not as of that date have at least 98 employees as provided hereinabove, the
semi-annual Economic Development Grants for such year under Section 3.2 shall
be reduced by the percentage that the number of such positions bears to the total
number of positions required to be created and maintained (98 jobs) by this Section
4.1. (For example, if Developer has 90 jobs, the semi-annual Economic
Development Grants would be 91.83% (90/98 employees) of the available
Developer Tax Increment received by City). The reduction of the semi-annual
Economic Development Grants shall be City's sole remedy for the failure of
Developer to meet the job creation requirements of this subsection 4.1.
4.2 Certification. To assist City in monitoring the performance of Developer
hereunder, Developer shall certify as of June 1, 2012, and June 1 of each year
thereafter during the term of this Agreement, by a duly authorized officer of
Developer to City in a form acceptable to City (a) the number of full-time equivalent
jobs maintained by Developer during the prior year in Dubuque, Iowa, and (b) to the
effect that such officer has re-examined the terms and provisions of this Agreement
and that at the date of such certificate, and during the preceding twelve (12)
months, Developer is not or was. not in default in the fulfillment of any of the material
terms and conditions of this Agreement and that no Event of Default (or event
which, with the lapse of time or the giving of notice, or both, would become an Event
of Default) is occurring or has occurred as of the date of such certificate or during
such period, or if the signer is aware of any such default, event or Event of Default,
said officer shall disclose in such statement the nature thereof, its period of
existence and what action, if any, has been taken or is proposed to be taken with
respect thereto. Such certificate shall be~ provided not later than July 1, 2012, and
by July 1 of each year thereafter during the term of this Agreement.
4.3 Books and Records. During the term of this Agreement, Developer shall
keep at all times and make available to City upon reasonable request proper books
of record and account in which full, true and correct entries will be made of all
dealings and transactions of or in relation to the business and affairs of Developer
related to the Project in accordance with generally accepted accounting principles
consistently applied throughout the period involved, and Developer shall provide
reasonable protection against loss or damage to such books of record and account:
City's agreement to Developer's reasonable confidentiality requirements (including,
without limitation, the execution of a commercially reasonable confidentiality
agreement) is a condition precedent to City's review and inspection rights under this
Section 4.3.
4.4 Real Property Taxes. From and after the Closing Date, Developer shall pay
or cause to be paid, when due, all real property taxes and. assessments payable
with respect to all and any parts of the Property unless Developer's obligations have
been assumed by another person or entity pursuant to the provisions of this
Agreement.
5
4.5 No Exemptions. During the term of this Agreement, and except as otherwise
permitted by this Agreement, Developer agrees not to apply for any state or local
property tax exemptions which are available with respect to the Development
Property or the Minimum Improvements located thereon that may now be, or
hereafter become, available under state law or city ordinance during the term of this
Agreement, including those that arise under Iowa Code Chapters 404 and 427, as
amended.
4.6 Insurance Requirements.
(1) Developer shall provide and maintain or cause to be maintained at all
times during the process of constructing the Minimum Improvements (and,
from time to time at the request of City, furnish City with proof of insurance in
the form of a certificate of insurance for each insurance policy):
All risk builder's risk insurance, written on a Completed Value Form in an
amount equal to one hundred percent (100%) of the replacement value when
construction is completed;
(2) Upon completion of construction of the Minimum Improvements and
up to the Termination Date, Developer shall maintain, or cause to be
maintained, at its cost and expense (and from time to time at the request of
City shall fumish proof of insurance in the form of a certificate of insurance)
insurance as follows: All risk property insurance against loss and/or damage
to Minimum Improvements under an insurance policy written in an amount
not less than the full insurable replacement value of Minimum Improvements.
The term "replacement value" shall mean the actual replacement cost of the
Minimum Improvements (excluding foundation and excavation costs and
costs of underground flues, pipes, drains and other uninsurable items) and
equipment, and shall be evaluated for reasonable replacement value from
time to time at the request of City, but not more frequently than once every
three (3) years.
(3) . Developer shall notify City immediately in the -case of -damage
exceeding $500,000.00 in amount to, or destruction of, the Minimum
Improvements or any portion thereof resulting from fire or other casualty. Net
proceeds of any such insurance (Net Proceeds), shall be paid directly to
Developer as its interests may appear, and Developer shall forthwith repair,
reconstruct and restore the Minimum Improvements to substantially the same
or an improved condition or value as they existed prior to the event causing
such damage and, to the extent necessary to accomplish such repair,
reconstruction and restoration, Developer shall apply the Net Proceeds of
any insurance relating to such damage received by Developer to the
payment or reimbursement of the costs thereof, subject, however, to the
terms of any mortgage encumbering title to the Property (as its interests may
appear). Developer shall complete the repair, reconstruction and restoration
6
of Minimum Improvements whether or not the Net Proceeds of insurance
received by Developer for such Purposes are sufficient.
4.7 Preservation of Property. During the term of this Agreement, Developer shall
maintain, preserve and keep, or cause others to maintain, preserve and keep, the
Minimum Improvements in good repair and working order, ordinary wear and tear
excepted, and from time to time shall make all necessary repairs, replacements,
renewals and additions. Nothing in this Agreement, however, shall be deemed to
alter any agreements between Developer or any other party including, without
limitation, any agreements between the parties regarding the care and maintenance
of the Property.
4.8 Non-Discrimination. In carrying out the project, Developer shall not
discriminate against any employee or applicant for employment because of race,
religion, color, sex, sexual orientation, national origin, age or disability.
4.9 Conflict of Interest. Developer agrees that no member, officer or employee
of City, or its designees or agents, nor any consultant or member of the governing
body of City, and no other public official of City who exercises or has exercised any _
functions or responsibilities with respect to the project during his or her tenure, or
who is in a position to participate in adecision-making process or gain insider
information with regard to the project, shall have any interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the project, or in any activity, or benefit therefrom, which is part of
this project at any time during such person's tenure. In connection with this
obligation, Developer shall have the right to rely upon the representations of any
party with whom it does business and shall not be obligated to perform any further
examination into such party's background.
4.10 Non-Transferability.
(1) Until such time as the Minimum Improvements are complete (as
certified by City under Section 2.4), and except as permitted by Section
4.10(2), this Agreement may not be assigned by Developer nor may the
Property be transferred by Developer to another early without the prior
written consent of City, which shall not be unreasonably withheld.
Thereafter, Developer shall have the right to assign this Agreement
(including, specifically, the Economic Development Grant rights contained in
Section 3), and upon assumption of the Agreement by the assignee,
Developer shall no longer be responsible for its obligations under this
Agreement.
(2) Upon notice to, but without the consent of, City, Developer may assign
this Agreement to any entity controlling, controlled by, or under common
control with Developer.
7
(3) Notwithstanding the foregoing, Developer may desire to exchange
other property of like kind and qualifying use within the meaning of Section
1031 of the Internal Revenue Code for fee title in the Property. Developer
expressly reserves the right to assign its rights, but not its obligations,
hereunder to a Qualified Intermediary as provided in I.R.C. Regulation
1.1031(k)-1(g)(4) either before or after the Closing Date, subject to the
approval of City, which approval will not be unreasonable withheld.
4.11 Restrictions on Use. Developer agrees for itself, and its successors and
assigns, and every successor in interest to the Property or any part thereof that
they, and their respective successors and assigns, shall:
(1) Devote the Properly to, and only to and in accordance with, the uses
specified in the Urban Renewal Plan and City represents and agrees that use
of the Property as a manufacturing facility as defined in section 2.1 is in full
compliance with the Urban Renewal Plan) (however, Developer shall not
have any liability to City to the extent that a successor in interest shall breach
this covenant and City shall seek enforcement _of this covenant directly
against the party in breach of same); and
(2) Not discriminate upon the basis of race, religion, color, sex, sexual
orientation, national origin, age or disability in the sale, lease, rental, use or
occupancy of the Property or any improvements erected or to be erected
thereon, or any part thereof (however, Developer shall not have any liability
to City to the extent that a successor in interest. shall breach this covenant
and City shall seek enforcement of this covenant directly against the party in
breach of same).
4.12 Release and Indemnification Covenants.
(1) Developer releases City and the governing body members, officers,
agents, servants and employees thereof (hereinafter, for purposes of this
Section, the Indemnified Parties) from, covenants and agrees that the
Indemnified Parties shall not be liable for, and agree to indemnify, defend
and hold harmless the Indemnified Parties against, any loss or damage to
property or any injury to or death of any person occurring at or about or
resulting from any defect in the Minimum Improvements.
(2) Except for any gross negligence, willful misrepresentation or any
willful or wanton misconduct or any unlawful act of the Indemnified Parties,
Developer agrees to protect and defend the Indemnified Parties, now or
forever, and further agrees to hold the Indemnified Parties harmless, from
any claim, demand, suit, action or other proceedings whatsoever by any
person or entity whatsoever arising or purportedly arising from (1) any
violation of any agreement or condition of this Agreement (except with
respect to any suit, action, demand or other proceeding brought by
8
Developer against City based on an alleged breach of any representation,
warranty or covenant of City under this Agreement and/or to enforce its rights
under this Agreement); or (2) the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements; or (3) the condition
of the Property and any hazardous substance or environmental
contamination located in or on the Property, caused and occurring after
Developer takes possession of the Property.
(3) The Indemnified Parties shall not be liable to Developer for any
damage or injury to the persons or property of Developer or its officers,
agents, servants or employees or any other person who may be on, in or
about the Minimum Improvements due to any act of negligence of any
person, other than any act of negligence on the part of any such Indemnified
Party or its officers, agents, servants or employees.
(4) All covenants, stipulations, promises, agreements and obligations of
City contained herein shall be deemed to be the covenants, stipulations,
promises, agreements and obligations of City, and not of any governing body
member, officer, agent, servant or employee of City in their individual
capacity thereof.
(5) The provisions of this Section shall survive the termination of this
Agreement.
4.13 Compliance with Laws. Developer shall comply with all laws, rules and
regulations relating to its businesses, other than laws, rules and regulations for
which the failure to comply with or the sanctions and penalties resulting therefrom,
would not have a material adverse effect on the business, property, operations,
financial or otherwise, of Developer.
SECTION 5. !/NTS F DEFAULT AND REMEDIES
5.1 Events of Default Defined. The following shall be Events of Default under
this Agreement and the term Event of Default shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(1) Failure by Developer to pay or cause to be paid, before delinquency,
all real property taxes assessed with respect to the Minimum Improvements
and the Property.
(2) Failure by Developer to cause the construction of the Minimum
Improvements to be commenced and completed pursuant to the terms,
conditions and limitations of this Agreement.
9
(3) 1"ransfer of any interest by Developer of the Minimum Improvements
in violation of the provisions of this Agreement prior to the issuance of the
final Certificate of Completion.
(4) Failure by Developer or City to substantially observe or perform any
other material covenant, condition, obligation or agreement on its part to be
observed or performed under this Agreement.
5.2. Remedies on Default by Developer. Whenever any Event of Default referred
to in Section 5.1 of this Agreement occurs and is continuing, City, as specified
below, may take any one or more of the following actions after the giving of written
notice by City to Developer (and the holder of any mortgage encumbering any
interest in the Property of which City has been notified of in writing) of the Event of
Default, but only if the Event of Default has not been cured within sixty (60) days
following such notice, or if the Event of Default cannot be cured within sixty (60)
days and Developer does not provide assurances to City that the Event of Default
will be cured as soon as reasonably possible thereafter:
(1) City may suspend its performance under this Agreement until it
receives assurances from the defaulting party deemed adequate by City, that
the defaulting party will cure its default and continue its performance under
this Agreement;
(2) Until the Closing Date, City may cancel and rescind this Agreement;
(3) City may withhold the Certificate of Completion; or
(4) City may take any action, including legal, equitable or administrative
action, which may appear necessary or desirable to collect any payments
due under this Agreement or to enforce performance and observance of any
obligation, agreement, or covenant under this Agreement.
5.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to City
is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity
or by statute. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient.
5.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any party and thereafter waived by any other party, such
waiver shall be limited to the particular breach so waived and shall not be deemed
to waive any other concurrent, previous or subsequent breach hereunder.
10
5.5 Agreement to Pay Attorneys' Fees and Expenses. If any action at law or in
equity, including an action for declaratory relief or arbitration, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs of litigation from the other party. Such
fees and costs of litigation may be set by the court in the trial of such action or by
the arbitrator, as the case may be, or may be enforced in a separate action brought
for that purpose. Such fees and costs of litigation shall be in addition to any other
relief that may be awarded.
5.6 Remedies on Default by City. If City defaults in the performance of this
Agreement, Developed may take any action, including legal, equitable or
administrative action that may appear necessary or desirable to collect any
payments due under this Agreement, to recover expenses of Developer, or to
enforce performance and observance of any obligation, agreement, or covenant of
City under this Agreement. Developer may suspend their performance under this
Agreement until they receive assurances from City, deemed adequate by
Developer, that City will cure its default and continue its performance under this
Agreement.
SECTION 6. GENERAL TERMS AND PROVISIONS
6.1 Notices and Demands. Whenever this Agreement requires or permits any
notice or written request by one party to another, it shall be deemed to have been
properly given if and when delivered in person or three (3) business days after
having been deposited in any U.S. Postal Service and sent by registered or certified
mail, postage prepaid, or one (1) business day after deposit with a nationally
recognized overnight courier, addressed as follows:
If to Developer: Morrison Bros. Company
325 E. 24~' St.
Dubuque, IA 52004-0238
Attention: Charlie D. Glab
Phone: (563) 583-5701
Fax: (563) 583-5028
With copy to: John C. O'Connor, Attorney
700 Locust Street Suite 200Address
Dubuque, Iowa 52001 City, state zip
Phone: 563-557-8400
Fax: 563-556-1867
e-mail: joconnor@octhomaslaw.com
If to City: City Manager
50 W. 13th Street
Dubuque, Iowa 52001
Phone: (563) 589-4110
11
Fax: (563) 589®4149
ith c®py t®:
City Attorney
City Hall
50 W. 13~' Street
Dubuque, IA 52001
or at such other address with respect to any party as that party may, from time to
time designate in writing and forward to the other as provided in this Section.
6.2 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of City, Developer and their respective successors and assigns.
6.3 Termination Date. This Agreement and the rights and obligations of the
parties hereunder shall terminate on May 1, 2018 (the Termination Date).
6.4. Execution By Facsimile. The parties agree that this Agreement may be
transmitted between them by facsimile. The parties intend that the faxed
signatures constitute original signatures and that a faxed Agreement
containing the signatures (original or faxed) of all the parties is binding on the
parties.
6.5 Memorandum of Development Agreement. City shall promptly record a
Memorandum of Development Agreement in the form attached hereto as
Exhibit D in the office of the Recorder of Dubuque County, Iowa. Developer
shall pay the costs for so recording.
CITY F DUBUQUE, IOWAs
Roy ~uol, Mayor
By:
F. Schneider, City Clerk
MORRION BROS. COMPANY
By:
arlie D. lab, President
12
List of Exhibits
Exhibit A No Exhibit A
Exhibit B City Attorney Certificate
Exhibit C Urban Renewal Plan
Exhibit D Memorandum of Development Agreement
Exhibit E City Certificate
Exhibit F Opinion of Counsel to Developer
13
EXHIBIT ~
CITY ATTORNEY'S CERTIFICATE
14
~.RRY /4. LIPI®AHL, SQ.
CITY TT®RMEY
(DATE)
Ro
Dear
I have acted as counsel for the City of Dubuque, Iowa,
execution and delivery of a certain Development
(Developer) and the City of Dubuque,
reference purposes the day of , 20_.
TT-I~ CITY OFR
UB
in connection with the
Agreement between
Iowa (City) dated for
The City has duly obtained all necessary approvals and consents for its execution,
delivery and performance of this Agreement and has full power and authority to
execute, deliver and perform its obligations under this Agreement, and to the best of
my knowledge, the representations of the City Manager in his letter dated the
day of , 20_, are correct.
Very sincerely,
Barry A. Lindahl, Esq.
City Attorney
BAL:tIs
15
st t treat c® is eve e t istrict
City of Dubuque, Iowa
A. INTRODUCTION
This URBAN RENEWAL PLAN (the "Plan") has been prepared pursuant to Resolution 144-97 of the City
Council of the City of Dubuque as adopted on Apri17, 1997. Its intent is to stimulate economic development
activities within the EAST 7TH STREET ECONOMIC DEVELOPMENT DISTRICT (the "District") through
the commitment of public actions as specified herein.
To achieve this objective, the City of Dubuque shall undertake the urban renewal actions specified in this Plan,
pursuant to the powers granted to it under Chapter 403 of the Iowa Code, Urban Renewal Law.
. OEJECTIVS OF THE PLAN
The primary objectives of the Plan are the development and redevelopment of the District for economic
development activities, through:
1. Provision of public infrastructure improvements supportive of full development of the
District;
Creation of fmancial incentives necessary to encourage new and existing businesses to invest
in the District; and
Expansion of the property tax base of the District.
C. DISTRICT BOUNDARIES
The District is located within the City of Dubuque, County of Dubuque, State of Iowa.
The District shall consist of the real property legally described as follows:
Block 13 Lot 1 of Lot 4, Lot 1 of Lot 5, Lot 1 of Lot 6, and Lots 7, 8, 9, 10, 11, 12, 13 and 14; Block
16 Lots 1, 2, 3, 4 and 5; and Block 17 Lots A, B, C, D, E, F, Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, and 15, Lot 1 of Lot 16, Lot 1 of Lot 1 of Lot 17, Lot 2 of Lot 1 of Lot 18, Lot 2 of Lot 20, Lot
2 of Lot 21, Lot 2 of Lot 22, Lot 2 of Lot 23, Lot 2 of Lot 24, Lot 2 of Lot 25, Lot 2 of Lot 26, Lot 2
of Lot 27, Lot 3 of Lot 28, Lot 3 of Lot 29,Lot 3 of Lot 30, Lot 3 of Lot 31, Lot 3 of Lot 32 all in the
Dubuque Harbor Improvement Co.'s Addition, Township 89 North, Range 3 East of the 5th P.M.;
Dubuque County, Iowa and any adjoining public right-of--way.
The boundaries of the District are delineated on the URBAN RENEWAL DISTRICT map (Attachment A).
The City of Dubuque reserves the right to modify the boundaries of the District at some future date. Any
amendments to the Plan will be completed in accordance with Chapter 403 of the Iowa Code, Urban Renewal
Law.
. PUBLIC PURPOSE ACTIVITIES
To meet the OBJECTIVES of this Plan, the City of Dubuque is prepared to initiate and support development
and redevelopment of the District through, among other things, the following PUBLIC PURPOSE
ACTIVITIES:
1. Improvement, installation, construction and reconstruction of streets, utilities and other
17
improvements and rights-of--ways;
2. Use of tax increment financing, loans, grants and other appropriate financial tools in support
of eligible public and private development and redevelopment efforts; and
Enforcement of applicable local, state and federal laws, codes and regulations.
Public purpose activities are limited to those areas delineated on the PUBLIC PURPOSE ACTIVITY AREA
map (Attachment B).
All public purpose activities shall be conditioned upon and shall meet the restrictions and limitations placed
upon the District by the Plan.
. DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS
The LAND USE and PLANNING AND DESIGN CRITERIA set forth herein shall apply to any and all
District properties the development and/or the redevelopment of which is assisted by the City through any of
the PUBLIC PURPOSE ACTIVITIES listed above.
1. Land Use
The intent of this Plan is to promote the development of industrial land uses within the District. All
uses shall be regulated by the zoning district established for the property.
LAND USE maps (Attachments C1 and C2) identify the existing and the proposed land uses within
the District.
2. Planning and Desien Criteria
The planning criteria to be used to guide the physical development of the District are those standards
and guidelines contained within the City of Dubuque's Zoning Ordinance and other applicable local,
state and federal codes and ordinances.
F. LAND ACQUISITION
Land Acquisition
The City does not intend to acquire any property within the District. However, the City reserves the
right to acquire, by negotiation or eminent domain, property rights required for the construction or
reconstruction of streets and public utilities, or any other public facility or improvement.
. FINANCING ACTIVITIES
To meet the OBJECTIVES of this Plan and to encourage the development of the District and private
investment therein, the City of Dubuque is prepared to provide financial assistance to qualified industries and
businesses through the making of loans or grants under Chapter 15A of the Iowa Code and through the use of
tax increment financing under Chapter 403 of the Iowa Code.
1. Chanter 15A Loan or Grant
The City of Dubuque has determined that the malting of loans or grants of public funds to qualified
industries and businesses is necessary to aid in the planning, undertaking and completion of urban
renewal projects authorized under this Plan within the meaning of Section 384.24(3)(q) of the Iowa
Code. Accordingly, in furtherance of the objectives of this Plan, the City of Dubuque may determine
to issue bonds or loan agreements, in reliance upon the authority of Section 384.24A, Section
18
384.24(3)(q), Section 403.12 (general obligation bonds) or Section 403.9 (tax increment bonds), for
the purpose of making loans or grants of public funds to qualified businesses. Alternatively, the City
may determine to use available funds for the making of such loans or grants. In detem~ining
qualifications of recipients and whether to make any such individual loans or grants, the City of
Dubuque shall consider one or more of the factors set forth in Section 15A.1 of the Iowa Code on a
case-by-case basis.
2. Taz Increment Financin
The City of Dubuque is prepared to utilize tax increment fmancing as a means of financing eligible
costs incurred to implement the Public Purpose Activities identified in Part D of this Plan. Bonds or
loan agreements maybe issued by the City under the authority of'Section 403.9 of the Iowa Code (tax
increment bonds) or Section 384.24A, Section 384.24(3)(q) and Section 403.12 (general obligation
bonds).
The City acknowledges that the use of tax increment revenues delays the ability of other local taxing
bodies to realize immediately the direct tax benefits of new development in the District. The City
believes, however, that the use of tax increment revenues to finance new development in the District
is necessary in the public interest to achieve the OBJECTIVES of this Plan. Without the use of this
special financing tool, new investment may not otherwise occur or may occur within another
jurisdiction. If new development does not take place in Dubuque, property values could stagnate and
the City, County and School District may receive less taxes during the-duration of this Plan than they
would have if this Plan were not implemented.
Tax increment financing will provide along-term payback in overall increased tax base for the City,
County and School District. The initial public investment required to generate new private investment
will ultimately increase the taxable value of the District well beyond its existing base value.
Tax increment reimbursement may be sought for, among other things, the following costs to the
extent they are incurred by the City:
a. Planning and administration of the Plan;
b. Construction of public infrastructure improvements and facilities within the District;
c. Acquisition, installation, maintenance and replacement of public investments throughout the
District;
d. Loans or grants to qualified businesses under Chapter 15A of the Iowa Code, including debt
service payments on any bonds issued to finance such loans or grants, for purposes, of
expanding the business or activity, or other qualifying loan programs established in support
of the Plan; and
e. Providing the matching share for a variety of local, state and federal grants and loans.
3. Proposed Amount of Indebtedness
At this time, the extent of improvements and new development within the District is only generally
known. As such, the amount and duration for use of the tax increment revenues for public
improvements and/or private development can only be estimated; however, the actual use and amount
of tax increment revenues to be used by the City for District activities will be determined at the time
specific development is proposed.
It is anticipated that the maximum amount of indebtedness which will qualify for tax increment
revenue reimbursement during the duration of this Plan, including public improvements and private
development assistance, will not exceed $650,000.
19
At the time of adoption of this Plan, the City of Dubuque's current general obligation debt is
$11,755,000 (a list of obligations is found as Attachment D) and the applicable constitutional debt
limit is $91,286,810.
H. STATE AND LOCAL REUIREAAENT
All provisions necessary to conform with state and local laws have been complied with by the City of Dubuque
in the implementation of this Plan and its supporting documents.
I. U TION OF APPROVED URBAN RENEWAL PLAN
This Plan shall continue in effect until terminated by the CiTy Council; provided, however, that the collection
of tax increment revenues from properties located in the District shall be limited to twenty (20) yeazs from the
calendar yeaz following the calendar year in which the City first certifies to the County Auditor the amount of
any loans, advances, indebtedness or bonds which qualify for payment from the division of tax increment
revenue provided for in Section 403.19 (tax increment financing) of the Iowa Code.
The DEVELOPMENT AND REDEVELOPMENT REQUIREMENTS established, or as amended from time
to time by the City of Dubuque Zoning Ordinance, shall remain in effect in perpetuity.
J. SEVERABILITY
In the event one or more provisions contained in this Plan shall be held for any reason to be invalid, illegal,
unauthorized or unenforceable in any respect, such invalidity, illegality, unauthorization or unenforceability
shall not affect any other provision of this Plan and this Urban Renewal Plan shall be construed and
implemented as if such provision had never been contained herein.
K. AMENDMENT OF APPROVED URBAN RENEWAL PLAN
This Plan may be amended from time to time to respond to development opportunities. Any such amendment
shall conform to the requirements of Chapter 403 of the Iowa Code. Any change effecting any property or
contractual right can be effectuated only in accordance with applicable state and local law.
L. ATTACHMENTS
A Urban Renewal District Map
B Public Purpose Activity Area Map
C Existing and Proposed Land Use Maps
D List of General Obligations
20
EXHIBIT D
MEMORANDUM OF DEVELOPMENT AGREEMENT
21
Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
MEMORANDUM OF DEVELOPMENT AGREEMENT
A Development Agreement by and among the City of Dubuque, Iowa, an
Iowa municipal corporation, of Dubuque, Iowa, and
was made regarding the following described premises:
The Development Agreement is dated for reference purposes the day
of 20~, and contains covenants, conditions,' and restrictions
concerning the sale and use of said premises.
This Memorandum of Development Agreement is recorded for the purpose of
constructive notice. In the event of any conflict between the provisions of this
Memorandum and the Development Agreement itself, executed by the parties, the
terms and provisions of the Development Agreement shall prevail. A complete
counterpart of the Development Agreement, together with any amendments thereto,
is in the possession of the City of Dubuque and may be examined at its offices as
above provided.
Dated this day of , 20_.
CITY OF DUBUU ,IOWA
By:
Roy D. Buol, Mayor
22
y:
Jeanne F. Schneider, City Clerk
TATS O 10!!104
®UUUE COUNTY
ss:
On this day of , 20~, before me, a Notary Public in and for the
State of Iowa, in and for said county, personally appeared Roy D. Buol and Jeanne
F. Schneider, to me personally known, who being by me duly sworn did say that
they are the Mayor and City Clerk, respectively of the City of Dubuque, a Municipal
Corporation, created and existing under the laws of the State of Iowa, and that the
seal affixed to said instrument is the seal of said Municipal Corporation and that
said instrument was signed and sealed on behalf of said Municipal corporation by
authority and resolution of its City Council and said Mayor and City Clerk
acknowledged said instrument to be the free act and deed of said Municipal
Corporation by it voluntarily executed.
Notary Public, State of Iowa
STT F IOIn/A
®U UQU COUNTY
ss:
On this day of , 20_, before me, a Notary Public in and for
the State of Iowa, in and for said county, personally appeared
to me personally known, who being by me duly sworn did say that they are
the
and that said instrument was signed on behalf of said company by authority
of its members and that they acknowledged the execution of this instrument
to be the voluntary act and deed of said company by it voluntarily executed.
Notary Public, State of Iowa
23
(DATE)
Dear
I am the City Manager of the City of Dubuque, Iowa and have acted in that capacity
in connection with the execution and delivery of a certain Development Agreement
between (Developer) and the City of Dubuque, Iowa (City) dated
for reference purposes the day of , 20®.
On behalf of the City of Dubuque, I hereby represent and warrant to Developer that:
(1) There is no action, suit or proceeding pending, or to the best of City's
knowledge, threatened against City which might result in any adverse
change in the Property being conveyed or the possession, use or enjoyment
thereof by Developer, including, but not limited to, any action in
condemnation, eminent domain or public taking.
(2) No ordinance or hearing is now or before any local governmental body
that either contemplates or authorizes any public improvements or special
tax levies, the cost of which may be assessed against the Property. To the
best of City's knowledge, there are no plans or efforts by any government
agency to widen, modify, or re-align any street or highway providing access
to the Property and there are no pending or intended public improvements or
special assessments affecting the Property which will result in any charge or
lien be levied or assessed against the Property.
(3) All leases, contracts, licenses, and permits between City and third
parties in connection with the maintenance, use, and operation of the
Property have been provided to Developer and City has provided true and
correct copies of all such documents to Developer, and there are no defaults
thereunder, nor any event that, with either or both the giving of notice or
passage of time, would become a default thereunder.
(4) City has good and marketable fee simple title interest in the Property.
(5) The Property has a permanent right of ingress or egress to a public
roadway for the use and enjoyment of the Property.
(6) There are no notices, orders, suits, judgments or other proceedings
relating to fire, building, zoning, air pollution, health violations or other
matters that have not been corrected. City has notified Developer in writing
of any past notices, orders, suits, judgments or other proceedings relating to
25
(13) City shall exercise its best efforts to assist with Developer in the
development process.
(14) City shall exercise its best efforts to resolve any disputes arising
during the development process in a reasonable and prompt fashion.
(15) With respect to the period during which City has owned or occupied
the Property, and to City's knowledge after reasonable investigation with
respect to the time before City owned or occupied the Property, no person or
entity has caused or permitted materials to be stored, deposited, treated,
recycled, or disposed of on, under or at the Property, which materials, if
known to be present, would require cleanup, removal or some other remedial
action under environmental laws.
(16) All city utilities necessary for the development and use of the Property
as a manufacturing facility adjoin the Property and Developer shall have the
right to connect to said utilities, subject to City's connection fees.
(17) The representations and warranties contained in this letter are correct
in all respects on .and as of the date hereof.
Sincerely,
Michael C. Van Milligen
City Manager
MCVM:jh
27
Mayor and City Councilmembers
Cit~i Hall
13 and Central Avenue
Dubuque IA 52001
Re: Development Agreement between the City of Dubuque, Iowa and
Dear Mayor and City Councilmembers:
We have acted as counsel for (Developer) in
connection with the execution and delivery of a certain Development Agreement
(Development Agreement) between Developer and the City of Dubuque, Iowa
("City")dated for reference purposes the day of , 20_.
We have examined the original certified copy, or copies otherwise identified
to our satisfaction as being true copies, of the Development Agreement and such
other documents and records as we have deemed relevant and necessary as a
basis for the opinions set forth herein.
Based on the pertinent law, the foregoing examination and such other
inquiries as we have deemed appropriate, we are of the opinion that:
1. Developer is a corporation organized and existing under the laws of
the State of Iowa and has full power and authority to execute, deliver and perform in
full Development Agreement. The Development Agreement has been duly and
validly authorized, executed and delivered by Developer and, assuming due
authorization, execution and delivery by City, is in full force and effect and is valid
and legally binding instrument of Developer enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting creditors' rights generally.
2. The execution, delivery and performance by Developer of the
Development Agreement and the carrying out of the terms thereof, will not result in
violation of any provision of, or in default under, the articles of incorporation and
bylaws of Developer, `any indenture, mortgage, deed of trust, indebtedness,
agreement, judgment, decree, order, statute, rule, regulation or restriction to which
Developer is a party or by which Developer's property is bound or subject.
3. To our actual knowledge, there are no actions, suits or proceedings
pending or threatened against or affecting Developer in any court or before any
arbitrator or before or by any governmental body in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business (present or prospective), financial position or results of operations of
Developer or which in any manner raises any questions affecting the validity of the
Agreement or the Developer's ability to perform Developer's obligations thereunder.
29
Very truly yours,
30
RESOLUTION NO. 357-OS
A RESOLUTION APPROVING A V LPNT AGREEMENT FOR THE
EXPANSION OF MORRISON BROS. COMPANY AT THE EAST SEVENTH
STREET FACILITY.
Whereas, it is the determination of this Council that approval of the Development
Agreement for the expansion of Morrison Bros. Company's operations in Dubuque
according to the terms and conditions set out in the Development Agreement is in the
public interest of the City of Dubuque.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. That the Development Agreement with Morrison Bros. Company is
hereby accepted and approved.
Section 2. That the Mayor is hereby authorized to execute, on behalf of the
City Council of the City of Dubuque, Iowa, the attached Development Agreement with
Morrison Bros. Company.
Passed, approved and adopted this 6~' day of October, 2008.
Attest:
~~
eanne F. Schneider, City Clerk
~t
Roy D. Buol, Mayor
F:\USERS\DHeiarWlorrison Bros\20081006 DA Resolution.doc
TIFIT F CI L RK
STATE OF IOWA
COUNTY OF DUBUQUE
1, 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 I
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 IVo. 357-08 is a correct
copy of the original Resolution No. 357-08 approved and adopted by the City Council
of the City of Dubuque, Iowa, at a session held by said Council on the 6~" day of
October, 2008.
In Testimony Whereof, I hereunto set my hand and official seal of the City of Dubuque,
Iowa.
Dated at Dubuque, Iowa on this 7~' day of October, 2008.
Jeanne F. Schneider, CMC
City Clerk
(SEAL)
03/10/2009 Page 1
Morrison Brothers Company
Compound Period ........: Monthly
Nominal Annual Rate ....: 0.000
Effective Annual Rate ...: 0.000
Periodic Rate ..................: 0.0000
Daily Rate .......................: 0.00000
CASH FLOW DATA
Event Start Date Amount Number Period End Date
1 Loan
2 Payment 07/16/2008
08/01/2009 20,000.00
333.33 1
60 Monthly 07/01/2014
AMORTIZATION SCHEDULE -Normal Amortization
Date Pavment Interest Principal Balance
Loan 07/16/2008 20,000.00
2008 Totals 0.00 0.00 0.00
1 08/01 /2009 333.33 0.00 333.33 19,666.67
2 09/01/2009 333.33 0.00 333.33 19,333.34
3 10/01 /2009 333.33 0.00 333.33 19, 000.01
4 11 /01 /2009 333.33 0.00 333.33 18, 666.68
5 12/01/2009 333.33 0.00 333.33 18,333.35
2009 Totals 1,666.65 0.00 1,666.65
6 01 /01 /2010 333.33 0.00 333.33 18, 000.02
7 02/01/2010 333.33 0.00 333.33 17,666.69
8 03/01/2010 333.33 0.00 333.33 17,333.36
9 04/01/2010 333.33 0.00 333.33 17,000.03
10 05/01/2010 333.33 0.00 333.33 16,666.70
11 06/01 /2010 333.33 0.00 333.33 16,333.37
12 07/01 /2010 333.33 0.00 333.33 16, 000.04
13 08/01 /2010 333.33 0.00 333.33 15, 666.71
14 09/01/2010 333.33 0.00 333.33 15,333.38
15 10/01 /2010 333.33 0.00 333.33 15, 000.05
16 11 /01 /2010 333.33 0.00 333.33 14, 666.72
17 12/01 /2010 333.33 0.00 333.33 14,333.39
2010 Totals 3,999.96 0.00 3,999.96
18 01 /01 /2011 333.33 0.00 333.33 14, 000.06
19 02/01/2011 333.33 0.00 333.33 13,666.73
20 03/01/2011 333.33 0.00 333.33 13,333.40
21 04/01 /2011 333.33 0.00 333.33 13, 000.07
22 05/01 /2011 333.33 0.00 333.33 12, 666.74
23 06/01 /2011 333.33 0.00 333.33 12, 333.41
24 07/01/2011 333.33 0.00 333.33 12,000.08
25 08/01 /2011 333.33 0.00 333.33 11,666.75
26 09/01 /2011 333.33 0.00 333.33 11, 333.42
03/10/2009 Page 2
Morrison Brothers Company
Date Payment Interest Principal Balance
27 10/01 /2011 333.33 0.00 333.33 11, 000.09
28 11 /01 /2011 333.33 0.00 333.33 10, 666.76
29 12/01 /2011 333.33 0.00 333.33 10,333.43
2011 Totals 3,999.96 0.00 3,999.96
30 01 /01 /2012 333.33 0.00 333.33 10, 000.10
31 02/01 /2012 333.33 0.00 333.33 9, 666.77
32 03/01/2012 333.33 0.00 333.33 9,333.44
33 04/01 /2012 333.33 0.00 333.33 9, 000.11
34 05/01 /2012 333.33 0.00 333.33 8, 666.78
35 06/01/2012 333.33 0.00 333.33 8,333.45
36 07/01 /2012 333.33 0.00 333.33 8, 000.12
37 08/01/2012 333.33 0.00 333.33 7,666.79
38 09/01/2012 333.33 0.00 333.33 7,333.46
39 10/01 /2012 333.33 0.00 333.33 7, 000.13
40 11 /01 /2012 333.33 0.00 333.33 6, 666.80
41 12/01/2012 333.33 0.00 333.33 6,333.47
2012 Totals 3,999.96 0.00 3,999.96
42 01 /01 /2013 333.33 0.00 333.33 6, 000.14
43 02/01/2013 333.33 0.00 333.33 5,666.81
44 03/01/2013 333.33 0.00 333.33 5,333.48
45 04/01/2013 333.33 0.00 333.33 5,000.15
46 05/01/2013 333.33 0.00 333.33 4,666.82
47 06/01/2013 333.33 0.00 333.33 4,333.49
48 07/01 /2013 333.33 0.00 333.33 4, 000.16
49 08/01 /2013 333.33 0.00 333.33 3, 666.83
50 09/01 /2013 333.33 0.00 333.33 3, 333.50
51 10/01 /2013 333.33 0.00 333.33 3, 000.17
52 11 /01 /2013 333.33 0.00 333.33 2, 666.84
53 12/01 /2013 333.33 0.00 333.33 2, 333.51
2013 Totals 3,999.96 0.00 3,999.96
54 01 /01 /2014 333.33 0.00 333.33 2, 000.18
55 02/01 /2014 333.33 0.00 333.33 1, 666.85
56 03/01 /2014 333.33 0.00 333.33 1, 333.52
57 04/01 /2014 333.33 0.00 333.33 1, 000.19
58 05/01 /2014 333.33 0.00 333.33 666.86
59 06/01 /2014 333.33 0.00 333.33 333.53
60 07/01 /2014 333.33 0.20- 333.53 0.00
2014 Totals 2,333.31 0.20- 2,333.51
Grand Totals 19,999.80 0.20- 20,000.00
03/10/2009 Page 3
Morrison Brothers Company
Last interest amount decreased by 0.20 due to rounding.
Attach supporting documentation
to the back of this form
BUDGET FY Cl C I UP1tIP1 X Cl ItI,IP DOCUMENT NUMBER
DATE ACCTG PERIOD (mrrvyy)
2009 3/10/2009
VENDOR NAME AND ADDRESS BILL TO ADDRESS (ORDERING AGENCY) SHIP TO ADDRESS
City of Dubuque Iowa Department of Economic Development
50 West 13th Street 200 E. Grand Ave.
Dubuque, IA 52001 Des Moines, Iowa 50309
PERFORMED
DATE INITITALS
VEND R' IN I E NUMBER
QUANTITY
3/10/2009
.ORDERED RECEIVED UNIT OF UNIT PRICE TOTAL PRICE
MEASURE
CEBA Award - #08-CEBA-051 40,000.00
Morrison Brothers Company
($20,000 Loan, $20,000 Forg. Loan)
Federal ID #
DOCUMENT TOTAL 40,000.00
CLAIMANT'S CERTIFICATION AGENCY CERTIFICATION
I CERTIFY THAT THE ITEMS FOR W HICH PAYMENT IS CLAIMED WERE FURNISHED FOR STATE I CERTIFY THAT THE ABOVE EXPENSE WERE INCURRED AND THE AMOUNTS ARE
BUSINESS UNDER THE AUTHORITY OF THE LAW AND THAT THE CHARGES ARE REASONABLE, CORRECT AND SHOUD BE PAID FROM THE FUNDS APPROPRIATED BY:
PROPER, AND CORRECT, AND NO PART OF THIS CLAIM HAS BEEN PAID. CODE OR CHAPTER SECTION(S)
DATE TITLE
CLAIMANT'S SIGNATURE AUTHORIZED SIGNATURE
' THE FOLLOWING FIELDS ARE FOR STATE ACCOUNTING USE ONLY
DOC TYPE DOC NUMBER DOC DATE ACCTG PRD BUDGET ACTION PO SHIP INT INT SELLER INT SELLER
(GAX) FY NEW/MOD INSTR IND FUND AGCY
CAX 09
END R DE ADDR ERRIDE F/A INDI AT R EFT IND TEXT -po's on y ( N T T (po's only)
REF DOC TYPE REF DOC NUMBER REF DOC LINE COM LN VEND INVOICE # COMMODITY CODE GS CONTRACT
LINE FUND AGCY ORG SUB ACTV FUNC OBJT SUB JOB NUMBER REP CAT QUANTITY / I/D DESCRIPTION AMOUNT IID P/F-
Q ~ n
01 269
02
03
04
05
06
07
~ WARRANT # AUDITED BY ~ PAID DATE