IDED PIAP Forgivable Loan ContractTHE CITY OF Dubuque
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DT T~ ~ AN-AmericaCih-
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Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Public Hearing on a Physical Infrastructure Assistance Program (PIAP)
Forgivable Loan Contract with Iowa Department of Economic
Development
DATE: March 27, 2009
Dubuque Initiatives purchased the Roshek Building to facilitate IBM and 1,300 IT
positions. On behalf of Dubuque Initiatives, the City of Dubuque made an application to
Iowa Department of Economic Development (IDED) for Physical Infrastructure
Assistance Program (PIAP) funding to cover the purchase price of the Roshek Building.
The application was approved and the IDED has submitted a Master Contract to
authorize this funding.
Economic Development Director Dave Heiar received City Council approval of a
forgivable loan agreement with IDED for PIAP benefits on behalf of Dubuque Initiatives.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David Heiar, Economic Development Director
THE CTTY OF
DUB E
Masterpiece an the Mississippi
DATE: March 26, 2009
Dubuque
AMIme~Cat~r
2007
TO: Michael Van Milligen, City Manager
~.. ,~
FROM: David Heiar, Economic Development Director r• `
SUBJECT: Public Hearing on a Physical Infrastructure Assistance Program (PIAP)
Forgivable Loan Contract with Iowa Department of Economic Development
INTRODUCTION
This memorandum presents for City Council approval of a resolution approving a forgivable loan
agreement with the Iowa Department of Economic Development for Physical Infrastructure
Assistance Program (PIAP) benefits on behalf of Dubuque Initiatives, following a public hearing.
The Master Contract is attached.
BACKGROUND
Dubuque Initiatives purchased the Roshek Building to facilitate IBM and 1300 IT positions. On
behalf of Dubuque Initiatives the City of Dubuque made an application to IDED for PIAP funding
to cover the purchase price of the Roshek Building. The application was approved and the IDED
has submitted a Master Contract to authorize this funding. When the money is received by the
City, it will be passed through to Dubuque Initiatives.
As part of the contract, the City is required to sign a promissory note for $450,000. By Iowa law,
it is necessary for the City Council to hold a public hearing prior to approval of the promissory
note.
RECOMMENDATION
Following the public hearing, I recommend that the City Council approve the resolution
approving the attached PIAP contract and promissory note with the Iowa Department of
Economic Development.
This project is consistent with the City's goals to help businesses expand in the community,
increase the number of good paying jobs and further diversify our economic base.
ACTION STEP
The action step for the City Council is to adopt the attached resolution.
Attachments
F:\USERS\DHeiar\IBM\PH DI PIAP contract approval memo.doc
RESOLUTION NO. 117-09
APPROVING A PHYSICAL INFRASTRUCTURE ASSISTANCE PROGRAM (PIAP)
CONTRACT AND A PROMISSORY NOTE WITH THE IOWA DEPARTMENT OF
ECONOMIC DEVELOPMENT FOR THE PURCHASE OF THE ROSHEK BUILDING.
WHEREAS, the City of Dubuque, Iowa has received funding from the Iowa
Department of Economic Development through the Physical Infrastructure Assistance
Program (PIAP) to assist Dubuque Initiatives with the purchase of the Roshek building,
and
WHEREAS, the City is required to execute a Physical Infrastructure Assistance
Program (PIAP) contract and a Promissory Note with the Iowa Department of Economic
Development, and
WHEREAS, the City Council believes it is in the best interests of the City of
Dubuque to approve a contract, and
WHEREAS, the City is required to hold a public hearing prior to approving the
promissory note.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The City of Dubuque approves a Physical Infrastructure
Assistance Program (PIAP) contract and a Promissory Note between the City and the
Iowa Department of Economic Development.
Section 2. That the Mayor is hereby authorized to execute the attached
contract with the Iowa Department of Economic Development together with such
documents as may be required.
Passed, approved and adopted this 6th day of April, 2009
Roy D. Buol, Mayor
Attest:
Kevin S. Firnstahl, Assistant City Clerk
March 16, 2009
The Honorable Roy D. Buol, Mayor
Ciry of Dubuque
50 W. 13~h St.
Dubuque, IA 52001
RE: Financial Assistance Program Awards
Award Date: February 19, 2009
Contract: P0902M01955
Dear Mayor Buol:
The Physical Infrastructure Assistance Program (PIAP) contract and promissory note between the City of
Dubuque and the Department are enclosed.
Please take a moment to review them thoroughly, sign and return the original contracts and related materials
to the Department. We will then sign them and return executed copies to you.
Please note that the Iowa Economic Development Board adopted administrative rules that require recipients
to execute a contract with the Department within 120 days of the award date. Failure to do so may result in
action by the Board to rescind the award. The 120-day signing deadline for your award is June 19, 2009.
Please return the signed contract documents by this date.
Should you have questions, please feel free to contact me at 515/242-4870.
Sincerely,
Michael Johansen, Coordinator
Legal and Compliance
cc: Dave Heiar, Economic Development Director, City of Dubuque
IDED
Chester J. Culver, Governor IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT PatryJudge,LieutenantGovernor
Mike Tramontina, Director • 200 East Grand Avenue, Des Moines, Iowa USA 50309 • Phone: 515.242.4700 • Fax 515.242.4>~19 • www.iowalifechanging.com
MASTER CONTRACT
BY AND BETWEEN
City of Dubuque
AND THE
IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT
CONTRACT NUMBER: P0902M01955
TABLE OF CONTENTS
ARTICLE I . MASTER CONTRACT DURATION; FUNDING AGREEMENT DURATION
ARTICLE 2. FUNDING
Article 2.1 Funding Sources
Article 2.2 Reduction, Discontinuance or Alteration of Funding
ARTICLE 3. CONTRACT STRUCTURE AND DEFINITIONS; DOCUMENTS INCORPORATED BY
REFERENCE; ORDER OF PRIORITY
Article 3.1 Contract Structure and Definitions
Article 3.2 Documents Incorporated by Reference
Article 3.3 City'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 Repayment Obligation
ARTICLE 5. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS
Article 5.1 Documents Submitted
Article 5.2 Prior Costs
Article 5.3 Cost Variation
Article 5.4 Suspension of Disbursement
Article S.S Investment ofAward 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. REPRESENTATIONS AND WARRANTIES
Article 7.1 Authority and Validity of Obligations
Article 7.2 Use of Proceeds
Article 7.3 Financial Reports
Article 7.4 No Material Adverse Change
Article 7.5 Full Disclosure; Business's Financial Assistance Application
Article 7.6 Governmental Authority and Licensing
Article 7.7 Litigation and Other Controversies
Article 7.8 Other Contracts
Article 7.9 No Default
Article 7.10 Compliance with Laws
Article 7.11 Effective Date of Representations and Warranties
ARTICLE 8. COVENANTS
Article 8.1
Article 8.2
Article 8.3
Article 8.4
Performance Obligations
Maintenance of Properties
Insurance
Required Reports
Contract # P0902M01955 - 2 - Masteruodated 8/07
Article 8.5 Inspection and Audit
Article 8.6 Compliance with Laws
Article 8.7 Use of Award Proceeds
Article 8.8 Notice of Meetings
Article 8.9 Notice of Proceedings
Article 8.10 Accounting Records
Article 8.11 Restrictions
Article 8.12 Indemnification
ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES
Article 9.1
Article 9.2
Article 9.3
Article 9.4
Article 9. S
ARTICLE 10. MISC
Article 10.1
Article 10.2
Article 10.3
Article 10.4
Article 10.5
Article 10.6
Article 10.7
Article 10.8
Article 10.9
Article 10.10
Article 10.11
Article 10.12
Article 10.13
Article 10.14
Article 10.15
Events of Default
Default Remedies
Default Interest Rate
Expenses
Notice of Default and Opportunity to Cure
ELLANEOUS
Timely Performance
State of Iowa Recognition
Choice of Law and Forum
Governing Law
Master Contract/Funding Agreement Amendments
Notices
Headings
Final Authority
Waivers
Counterparts
Survival of Representations
Severability of Provisions
Nonassignment; Successors and Assigns
Termination
Integration
Contract # P0902M01955 - 3 - Master updated sio~
MASTER CONTRACT
BUSINESS: City of Dubuque
MASTER CONTRACT NUMBER: P0902M01955
AWARD DATE: February 19, 2009
This FINANCIAL ASSISTANCE CONTRACT (the "Master Contract") is made as of the
CONTRACT EFFECTIVE DATE by and between the Iowa Department of Economic Development
("IDED"), 200 East Grand Avenue, Des Moines, IA 50309 and City of Dubuque an Incorporated City
of Iowa ("City"), 50 West 13`h Street, Dubuque, IA 52001.
WHEREAS, the City 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 City 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 City 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 City's obligations and liabilities under this
Master Contract and all of the Funding Agreements executed in connection with this Master Contract
have been satisfied. The duration of each Funding Agreement will be as described in the Funding
Agreement.
ARTICLE 2
FUNDING
2.1 Funding Sources. The sources of funding for this Award are appropriations to IDED for
financial assistance programs administered by the IDED and tax credit programs that IDED is authorized
to administer.
2.2 Reduction, Discontinuance or Alteration of Funding. 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 City.
Contract # P0902M01955 - 4 - Master updated 8/07
ARTICLE 3
CONTRACT STRUCTURE AND DEFINITIONS;
DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY
3.1 Contract Structure and Definitions.
(a) This Award shall be governed by this Master Agreement and the individual funding
agreements (the "Funding Agreements") for each source of program assistance for this Award. This
Award has been provided to the City 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 City for the Project.
"Community" means City of Dubuque.
"Forgivable Loan" means a form of an award made by the IDED to the City under a Funding
Agreement(s) for which repayment is eliminated in part or entirely if the City satisfies the terms of this
Contract and the Funding Agreement(s).
"Project" means the description of the work and activities to be completed by the City as
outlined in Exhibit C, Description of the Project and Award Budget, Exhibit D, Job Obligations, and
Exhibit A, City's Financial Assistance Application.
"Project Completion Date" means the date three (3) years from the Award Date as stated in
Exhibit C, Description of Project and Award Budget. The Project Completion Date is the date by which
all Project activities shall be satisfactorily completed.
3.2 Documents Incorporated by Reference. The following documents are incorporated by
reference and considered an integral part of this Master Contract:
Exhibit A - City's Financial Assistance Application, Application # 09-PIAP-0005
Exhibit B - Funding Agreements:
B3- PIAP Funding Agreement
Exhibit C - Description of the Project and Award Budget
3.3 City'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 A -City's Financial Assistance Application
Contract # P0902M01955 - 5 - Masterupdared Rim
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 City 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 ReRayment Obli ag_tion. The obligation to repay the direct financial assistance components
of this Award shall be evidenced by Promissory Notes executed in connection with the Funding
Agreements.
ARTICLE 5
CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS
The obligation of IDED to make, continue or disburse funds under this Master Contract and the
Funding Agreements shall be subject to the following conditions precedent:
5.1 Documents Submitted. IDED shall have received each of the following documents,
properly executed and completed, and approved by IDED as to form and substance:
(a) Master Contract. Fully executed Master Contract.
(b) Funding A~~eements. Fully executed Funding Agreements.
(c) Promissory Notes. The Promissory Notes required by the Funding Agreements.
(d) Other Rewired Documents. IDED shall have received such other contracts, instruments, documents,
certificates and opinions as the IDED may reasonably request.
(e) Hazardous Waste Audit. To comply with Iowa Code section ISA.1(3)"b," if the City generates solid
or hazardous waste, it must either: a) submit a copy of the City's existing in-house plan to reduce the
amount of waste and safely dispose of the waste based on an in-house audit conducted within the past
3 years; or b) submit an outline of a plan to be developed in-house, or 3) submit documentation that
the City has authorized the Iowa Department of Natural Resources or Iowa Waste Reduction Center
to conduct the audit.
(f) Requests for Disbursement. All disbursements of Award proceeds shall be subject to receipt by the
IDED of requests for disbursement, in form and content acceptable to IDED, submitted by the City.
All requests shall include documentation of costs that have been paid or costs to be paid immediately
upon receipt of Award proceeds.
(g) Funding Agreements Disbursement Requirements. Satisfaction of all disbursement requirements
outlined in the specific program Funding Agreements.
costs.
5.2 Prior Costs. No expenditures made prior to January 1, 2009 may be included as Project
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 City
and all funding sources requiring a proportional reduction of their financial contribution to the Project.
Contract # P0902M01955 - 6 - Masre~uodared 8/07
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 City, the IDED may suspend payments to
the City 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 City, City will no longer have the right to receive any
disbursements after the effective date of default.
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 City may be invested provided such investments shall be in accordance with State
law, including but not limited to the provisions of Iowa Code chapter 12C concerning the deposit of
public funds. Interest accrued on temporarily idle Award proceeds held by the City 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, City shall inform the IDED in writing of
the amount of unexpended Award funds in the City's possession or under the City's control, whether in
the form of cash on hand, investments, or otherwise.
ARTICLE 6
SECURITY; CROSS-COLLATERALIZATION
The Business shall execute in favor of the IDED all security agreements, financing statements,
mortgages, personal and/or corporate guarantees (the "Security Documents") as required by the IDED.
6. ] Securi .This Award shall be secured by: None required because funds shall only be
disbursed upon IDED's approval of documentation of $450,000 of building related costs as provided in
PIAP Funding Agreement Article 3.
6.2 Value of Collateral. Intentionally deleted
6.3 Additional or Substitute Collateral. Intentionally deleted
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
The City represents and warrants to IDED as follows:
7.1 Authority and Validity of Obli atm. The City 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 City, and
c) secure City'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 # P0902M01955 - 7 - Master updateds/o7
The Master Contract and Funding Agreement documents delivered by the City have been duly
authorized, executed and delivered by the City and constitute the valid and binding obligations of the
City 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 City or any provision of the articles of organization or operating
agreement of the City, contravene or constitute a default under any covenant, indenture or contract of or
effecting the City or any of its properties.
7.2 Use of Proceeds. The City 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 City represents that there are legally enforceable commitments in
place from the funding sources identified for the Project in Exhibit C.
7.3 Financial Reports. The financial information 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 City 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.
7.4 No Material Adverse Change. Since the Award Date, there has been no change in the
condition (financial or otherwise).
7.5 Full Disclosure• City's Financial Assistance Application. The statements and other
information furnished to the IDED by City 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
City only represents that the same were prepared on the basis of information and estimates it believed to
be reasonable.
7.6 Governmental Authority and Licensing. The City 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 City threatened.
7.7 Litigation and Other Controversies. There is no litigation or governmental proceeding
pending, nor to the knowledge of the City threatened, against the City which if adversely determined
would result in any material adverse change in the financial condition, Properties, business or operations
of the City, nor is the City aware of any existing basis for any such litigation or governmental
proceeding.
7.8 Other Contracts. The City is not in default under the terms or any covenant, indenture or
contract of or affecting either the City or any of its properties, which default, if uncured, would have a
material adverse effect on its financial condition, properties, business or operations.
7.9 No Default. No Default or Event of Default has occurred or is continuing.
7.10 Compliance with Laws. The City is in compliance with the requirements of all federal,
Contract # P0902M01955 - 8 - Master updated 8/07
state and local laws, rules and regulations applicable to or pertaining to the business operations of the
City 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 City. The City 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 City.
7.11 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 City at the time each request for disbursement of funds is submitted to the
IDED.
ARTICLE 8
COVENANTS
8.1 Performance Obli atg_ ions. By the Project Completion Date, City 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 City shall promptly provide IDED with written notice of any major changes
that would impact the success of the Project.
8.2 Maintenance of Properties. The City 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.
8.3 Insurance. The City 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 City 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 City 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.
8.4 Required Reports.
(a) Review of Disbursement Requests and Reports. The City shall prepare, sign and submit
disbursement requests and reports as specified in this Master Contract in the form and content required
by IDED. The City shall review all reimbursement requests and verify that claimed expenditures are
allowable costs. The City shall maintain documentation adequate to support the claimed costs.
(b) Reports. The City shall prepare, sign and submit the following reports to the IDED
throughout the Contract period:
Contract # P0902M01955 - 9 - Masrer updated sio~
Report Due Date
Annual Proiect Status Report
The Annual Project Status Report will collect July 31S` for the period ending June 30th
information from the City about the status of
the project. This report will collect data such as
project expenditures and any other information
required by IDED.
End of Proiect Report
The End of Project Report will collect Within 30 days of Project Completion Date
information from the City about the completed
project such as project expenditures 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 City'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, City shall submit its annual financial statements completed by an independent CPA,
or other financial statements.
8.5 Inspection and Audit. The City will permit the IDED and its duly authorized
representatives to visit and inspect any of the City's properties, corporate books and financial records of
the City related to the Project, to examine and make copies of the books of accounts and other financial
records of the City, and to discuss the affairs, finances and accounts of the City with, and to be advised as
to the same by, its officers, and independent public accountants (and by this provision the City authorizes
such accountants to discuss with the IDED and the IDED's duly authorized representatives the finances
and affairs of the City) at such reasonable time and reasonable intervals as the IDED may designate, but
at least annually.
8.6 Compliance with Laws.
(a) The City 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 City 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 City 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 City 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 City shall comply with IDED's administrative rules for each program funding source, as
identified in the Funding Agreements.
Contract # P0902M01955 - 10 - Master updated s~o7
8.7 Use of Award Proceeds. The City will use the Award proceeds extended under this Master
Contract and the Funding Agreements solely for the purposes set forth in Exhibit C.
8.8 Notice of Meetin~The City shall notify IDED at least two (2) working days in advance
of all meetings of the City Council at which the subject matter of this Master Contract, the Funding
Agreements, or the Project is proposed to be discussed. The City shall provide IDED with copies if the
agenda and minutes of such meetings and expressly agrees that a representative of IDED has a right to
attend those portions of any and all such meetings where the Project, this Master Contract or the Funding
Agreements are discussed.
8.9 Notice of Proceedings. The City shall promptly notify IDED of the initiation of any claims,
lawsuits, bankruptcy proceedings or other proceedings brought against the City which would adversely
impact the Project.
8.10 Accounting Records. The City 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.
8.11 Restrictions. The City 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 City's rights, powers, duties or obligations under this Master
Contract or the Funding Agreements.
8.12 Indemnification. The City 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 City of any representation or warranty made by the City 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 City 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 City 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 # P0902M01955 - 11 - Masrerupdared a~o7
(a) Nonco ~liance with Covenants. Default in the observance or performance of any covenant
set forth in Article 8, for more than five (5) Business Days; or
(b) Noncompliance with Master Contract. Default in the observance or performance of any other
provision of this Master Contract; or
(c) Noncompliance with Funding Agreements; Cross-De ault. 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 City 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
(d) Material Misrepresentation. Any representation or warranty made by the City 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
(e) Judgment Over $100,000. Any judgment or judgments, writ or writs or warrant or warrants
of attachment, or any similar process or processes in an aggregate amount in excess of $100,000 shall be
entered or filed against the City or against any of its property and remains unvacated, unbonded or
unstayed for a period of 30 days; or
(f) Adverse Change in Financial Condition. Any change shall occur in the financial condition of
the City which would have a material adverse effect on the ability of the City to perform under this
Master Contract or the Funding Agreements; or
(g) Failure to Submit Required Reports. The City fails to submit complete reports by the
required due dates as outlined in Article 8.4.
9.2 Default Remedies. When an Event of Default has occurred and is continuing, the IDED
may, by written notice to the City:
(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 City 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 City 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 City, setting forth the nature of the alleged default in reasonable
Contract # P0902M01955 - 12 - Master updated s/o7
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 City shall have an opportunity to cure, provided that
cure is possible and feasible.
ARTICLE 10
MISCELLANEOUS.
10.1 Timely Performance. The parties agree that the dates and time periods specified in this
Master Contract and the Funding Agreements, including the timelines established for the Project and
more fully described in Exhibit C, are of the essence to the satisfactory performance of this Master
Contract and the Funding Agreements.
] 0.2 State of Iowa Reco nib. If the Project involves construction and there is signage
recognizing the financial contributions made to the Project the City 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 may be available to the IDED, the State of Iowa or its members, officers, employees
or agents.
10.4 Governing Law. This Master Contract and the Funding Agreements and the rights and
duties of the parties hereto shall be governed by, and construed in accordance with the internal laws of
the State of Iowa without regard to principles of conflicts of laws.
10.5 Master Contract/Funding_Agreement Amendments. Neither this Master Contract nor any
documents incorporated by reference in connection with this Master Contract, including the Funding
Agreements, may be changed, waived, discharged or terminated orally, but only as provided below:
(a) Writing required. The Master Contract and the Funding Agreements may only be amended if
done so in writing and signed by the City and IDED; and for those Funding Agreements in which the
Community is a signatory, by the Community, the City and IDED. Examples of situations requiring an
amendment include, but are not limited to, time extensions, budget revisions, and significant alterations
of existing activities or beneficiaries. No amendment will be valid until approved in writing by IDED.
(b) IDED review. IDED will consider whether an amendment request is so substantial as to
necessitate reevaluating the IDED's or IDED Board's original funding decision. An amendment may be
denied by IDED if it substantially alters the circumstances under which the Project funding was
originally approved.
10.6 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing
(including, without limitation by fax) and shall be given to the relevant party at its address, a-mail
address, or fax number set forth below, or such other address, a-mail address, or fax number as such party
Contract # P0902M01955 - 13 - Master updated 8/07
may hereafter specify by notice to the other given by United States mail, by fax or by other
telecommunication device capable of creating a written record of such notice and its receipt. Notices
hereunder shall be addressed:
To the City:
City of Dubuque
Roy D. Buol, Mayor
50 West 13`h Street
Dubuque, IA 52001
E-mail: rdbuol@cityofdubuque.org
Telephone: 563.589.4110
Facsimile: 563.589.0890
To the IDED at:
Iowa Department of Economic Development
Legal and Compliance
200 East Grand Avenue
Des Moines, Iowa 50309
Attention: Michael Johansen, Coordinator
E-mail: michael.johansen@iowalifechanging.com
Telephone: 5 ] 5/ 242-4870
Facsimile: 515/ 242-4832
Each such notice, request or other communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Article and a confirmation of such
facsimile has been received by the sender, (ii) if given by e-mail, when such a-mail is transmitted to the
e-mail address specified in this Article and a confirmation of such 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.
] 0.7 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 City
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
(2009).
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.
Contract # P0902M01955 - 14 - Masrer updated sio~
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 IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT:
LIN
Michael L. Tramontina, Director
Date
FOR TI
BY:
Typed Name and Title
April 6, 2009
Date
Contract # P0902MOl 955 - 16 - Master updated 8107
~~
LIST OF EXHIBITS
Exhibit A - City's Financial Assistance Application (on file with IDED),
Application # 09-PIAP-0005
Exhibit B - Funding Agreements
B3-PIAP Funding Agreement
Exhibit C - Description of the Project and Award Budget
Contract # P0902M01955 - 17 - Master updated sio7
EXHIBIT B - 3
PIAP FUNDING AGREEMENT
CITY:
MASTER CONTRACT NUMBER:
FUNDING AGREEMENT NUMBER:
AWARD TYPE:
AMOUNT:
CitYof Dubuque
# P0902M01955
# 09-PIAPIVFRF-0005
Forgivable loan
$ 450 000
THIS PIAP FUNDING AGREEMENT is made by and between the IOWA DEPARTMENT
OF ECONOMIC DEVELOPMENT, 200 East Grand Avenue, Des Moines, Iowa 50309 ("IDED"),
and the City identified above, ("City"), effective as of the Contract Effective Date stated in the
Master Contract identified above.
WHEREAS, the City 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 City for the
Project; and
WHEREAS, the Master Contract specifies that for each program funding source the
IDED and the City shall enter into a Funding Agreement; and
WHEREAS, this Funding Agreement contains additional terms and conditions for the
award of PIAP funds and
NOW, THEREFORE, the City accepts 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 PIAP Funding Agreement and other
good and valuable consideration, it is agreed as follows:
1.0 Master Contract. Unless otherwise specified in this PIAP Funding Agreement, the
definitions, terms, conditions, and provisions contained in the Master Contract are applicable to
this Funding Agreement.
2.0 Definitions. As used in this Agreement, the following terms shall apply:
2.1 Agreement Expiration Date. Expiration of this PIAP Funding Agreement occurs
upon the happening of one of the following events, whichever occurs first:
(a) IDED's determination that the City has fully met the requirements of the PIAP
Funding Agreement, and IDED closes out this PIAP Funding Agreement,.
(b) An Event of Default occurs that is not remedied within the time period allowed
under the Master Contract.
(c) This PIAP Funding Agreement is terminated upon mutual, written agreement of
the City and IDED.
2.2 PIAP. "PIAP" means the Physical Infrastructure Assistance Program established
under Iowa Code Section 15E.175. The source of funding for this PIAP Funding Agreement is
an appropriation by the State legislature.
3.0 Terms of PIAP Award. PIAP funds have been awarded to assist the Business with the
Project. The terms of the PIAP Award are as follows:
3.1 Forgivable Loan. $450,000, 60 months. Funds will be released on a reimbursement
basis, upon the City of Dubuque submitting documentation acceptable to IDED of $450,000 in
building related costs.
3.2 Terms of Forgiveness. IDED will, in its sole discretion, determine if the City has
satisfied the terms of this PIAP Funding Agreement. If IDED determines that the City has
satisfied said terms and has continued to satisfy said terms through the Project Completion
Period, 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 7.2(b) of this PIAP Funding Agreement.
3.3 Maximum funds available for Project. It is expressly understood and agreed that the
maximum amounts to be paid to the City by IDED for this PIAP Funding Agreement shall not
exceed the amount stated on page one of this PIAP Funding Agreement.
3.4 Promissory note(s). The obligation of the City to repay the Forgivable Loan shall be
evidenced by a Promissory Note(s) executed by the City.
4.0 Conditions to Disbursement. In addition to the conditions to disbursement described in
the Master Contract, Business shall meet the following conditions before IDED will release PIAP
funds:
4.1 Funds will be released on a reimbursement basis, upon the City of Dubuque
submitting documentation acceptable to IDED of $450,000 in building related costs.
5.0 Default; Remedies upon Default.
5.1 The terms of Article 9.0 (Events of Default and Remedies) of the Master Contract
govern this PIAP Funding Agreement. The following are additional Events of Default for this
PIAP Funding Agreement: none.
6.0 Reports.
6.1 The terms of the Master Contract regarding Required Reports are applicable to this
PIAP Funding Agreement.
Master Contract #P0902M01955
Funding Agreement # 09-PIAPIVFRF-0005 - 2 - Revised 12/08
7.0 Incorporated documents. The following documents are hereby incorporated by this
reference:
1. The Master Contract number and its Exhibits.
2. PIAP Funding Agreement Exhibit Al -Forgivable Loan Promissory Note
IN WITNESS WHEREOF, the parties have executed this PIAP Funding Agreement:
FOR THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT:
BY:
Michael L. Tramontina, Director
Date
FOR THE CITY:
BY:
Signature
Typed Name and Title
Date
Master Contract #P0902M01955
Funding Agreement # 09-PIAPIVFRF-0005 - 3 - Revised 12/08
r
PIAP Funding Agreement Exhibit A1-Forgivable Loan Promissory Note
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned promises, in the event this
Forgivable Loan is not forgiven, to pay to the order of the IOWA DEPARTMENT OF
ECONOMIC DEVELOPMENT, at its office at 200 East Grand, Des Moines, Iowa
50309, the sum of FOUR HUNDRED FIFTY THOUSAND DOLLARS ($ 450,000)
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 P0902M01955 ("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.
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.
City of Dubuque
By:
Mayor Roy D. Buol
Address: 50 West 13th Street
Dubuque, IA 52001
Date:
DESCRIPTION OF THE PROJECT AND AWARD BUDGET
(EXHIBIT C)
Name of Business: City of Dubuque
Contract Number: P0902M01955
PROJECT DESCRIPTION
The City of Dubuque will use the funds to assist with the costs associated with the Roshek Building in
downtown Dubuque. The facility will be upgraded to make it a "green" building.
Project Completion Date:
July 1, 2011
SOURCE OF FUNDS
Amount
IDED Programs
PIAP $450,Op0'
SOEITOTAL $450,000
$UB TOTAL EO
TOTAL ALL FUNDS 5450,p00
Source of Funds
TIF Rebate
Tax Abatement
260E Job Training
In-Kind Contributions
RISE
RED
Other (describe)
Total Other Funding.
AWARD BUDGET
USE OF FUNDS
*Land Acquisition
Forgivable Loan *Site Preparation
*Building Acquisition
*Building Construction
*Building Remodeling
*Mfg Machinery and Equipment
Other Machinery and Equipment
Racking, Shelving, etc.
*Computer Hardware
Computer Software
Furniture and Fixtures
Working Capital
Research and Development
Job Training
Other Expenses
SUBTOTAL
included as capital investment if awarded tax credit program
SUB TOTAL
Other Funding
Total Amount Duration
$0:00
Cost
~- $0
$0
$450,000
Sa
$0.
$0
$0
$0
$o
$0
$0
$0
$0
50
$450, 000
SO
5450,000
Used as Match
Updated 8/08
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