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IDED PIAP Forgivable Loan ContractTHE CITY OF Dubuque -~. DT T~ ~ AN-AmericaCih- ~J ~ r 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 r~r~ ~V1 Y N Z rO~ I~1 `/ ~a N v~ A z 0 IM~I w O O H w W U O ~ ~ cd '.,:.~ ~ , ~ 3 ^. ~ ~ ~ 3 ~ U ~ O ~ '~ ~ ~° a~ ~~ 0 ~ o o~ ~ ~ •~ Q U U ~ ~~ .~~~3~ ~,~ ~ fit. ,~ ~~~b~ U c~ ~ ~ y '~T3 Q•~ ~ 3 ~ 4-i '~ ~ ,~ N ~ ~ U yO ~" ~•„~ ,7 Q" O ~ ,~ ~ ~ U ~ ^" `~~°'~3 F" ~ ~ o c4 ~, Q ~ ~ ~ 0 4. ,-~ ~ ~ U ~ W ~ y ~ °o ~.~U.~N ~ ~ a ~~~ ~ •.. ~, ~ •° ~ ,~_ ~ N o ~~~~ ~ o ~ ~ r-i U C]., U "~ ,~,`} ,~ ~'~_ . r,_:==1 ~/ 0 0 U Q~ .~ Q ~ 4-a b L." 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