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State of Iowa Direct Financial Assistance Contract for Peninsula GamingMasterpiece on the Mississippi Dubuque hatil All- AmedcaCity 11111! 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: State of Iowa Direct Financial Assistance Contract for Penisula Gaming, LLC. DATE: January 12, 2011 Economic Development Director David Heiar is recommending approval of a resolution authorizing a contract with the Iowa Department of Economic Development (IDED) for Iowa Values Funds (IVF) Financial Assistance benefits on behalf of Peninsula Gaming, LLC, a corporate headquarters located in Dubuque. concur with the recommendation and respectfully request Mayor and City Council approval. MCVM:lw Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David Heiar, Economic Development Director Michael C. Van Milligen Masterpiece on the Mississippi Dubuque heal All-Amelia City f 2007 TO: Michael Van Milligen, City Manager FROM: David Heiar, Economic Development Director . SUBJECT: State of Iowa Direct Financial Assistance Contract for Peninsula Gaming, LLC. DATE: January 7, 2011 INTRODUCTION This memorandum presents for City Council review and approval a resolution authorizing a contract with the Iowa Department of Economic Development (IDED) for Iowa Values Funds (IVF) Financial Assistance benefits on behalf of Peninsula Gaming, LLC., a corporate headquarters located in Dubuque. The Master Contract is attached. BACKGROUND Peninsula Gaming, LLC. previously announced its intent to expand its operations in Dubuque by relocating a portion of the corporate offices located in Las Vegas, Nevada. The Company committed to creating 10 new jobs as a part of this expansion process. Peninsula Gaming, LLC, was formed in 2004 and is a holding company whose primary assets are its equity interest in its wholly owned subsidiaries. The Company has corporate offices located in both Dubuque, Iowa and Las Vegas, Nevada. The Company is a wholly owned subsidiary of Peninsula Gaming Partners, LLC, a Delaware Limited Liability Company. Peninsula is a casino entertainment holding company with gaming operations in local markets in Iowa and Louisiana. Peninsula Gaming Partners seeks to develop quality gaming operations in highly protected markets. Peninsula currently has 20 employees in its Dubuque, Iowa Corporate office. Peninsula's project included construction of new space in the Dubuque Star Brewery. They will be leasing on a long term basis an additional 5,000 square feet from Port of Dubuque Adams, LLC (Star Brewery project). In March 2010, the City Council authorized submittal of an application to IDED for financial assistance from the Iowa Values Fund. The IVF benefits will provide financial assistance to enable the company's expansion in Dubuque. As required by the incentive program, the application requires a commitment of City funds to the project. DISCUSSION Peninsula committed to employ 10 new employees averaging over $83,000 per year plus benefits. The Company invested approximately $215,000 in construction, computer equipment, and furniture and fixtures. The IVF provides Peninsula Gaming, LLC with a $25,000 Forgivable Loan. City assistance as public match for the IVF benefits is required. The City had committed support to the Star Brewery renovation in the form of TIF. The benefit to Peninsula Gaming, LLC is estimated at $337,000, consisting of representative portion of a 10 year TIF rebate previously committed to Port of Dubuque Brewery, LLC as part of the Star Brewery redevelopment project. No additional local match was required. RECOMMENDATION I recommend that the City Council approve the IVF contract for Peninsula Gaming, LLC. This project is consistent with the City's goals to help local 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 \Econ Dev \Diamond Jo \100% Component\20110107_IDED Contract Approval Council memo.doc RESOLUTION NO. 10-11 RESOLUTION APPROVING AN IOWA VALUES FUND FINANCIAL ASSISTANCE CONTRACT BY AND AMONG THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, THE CITY OF DUBUQUE AND PENINSULA GAMING, LLC. Whereas, the Peninsula Gaming, LLC application was approved by the Iowa Department of Economic Development on March 18, 2010; and Whereas, the Iowa Department of Economic Development has prepared and submitted for City Council approval a contract relating to Iowa Values Fund Financial Assistance benefits for Peninsula Gaming, LLC a copy of which is attached hereto and by this reference made a part hereof; and Whereas, the City Council finds that the proposed contract is acceptable and necessary to the growth and development of the city. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the Iowa Department of Economic Development Iowa Values Fund Financial Assistance contract, Number 10 -IVF -062, is hereby approved. Section 2. That the Mayor is hereby authorized and directed to execute the Contract on behalf of the City of Dubuque and forward the executed copy to the Iowa Department of Economic Development for their approval. Passed, approved, and adopted this 18 day of Jar�G�ry, 011. Attest. eanne Schneider, City Clerk Roy D. 1uol, Mayor F: \USERS \Econ Dev \Diamond Jo \100% Component\20110107 Resolution Approv IVF Contract IDED.doc ECONOMIC DEVELOPMENT FINANCIAL ASSISTANCE CONTRACT BY PENINSULA GAMING, LLC, THE CITY OF DUBUQUE, AND THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT CONTRACT NUMBER: 10 -IVF -062 Contract # 10 -IVF -062 TABLE OF CONTENTS ARTICLE 1 CONTRACT DURATION ARTICLE 2 DEFINITIONS ARTICLE 3 AWARD TERMS ARTICLE 4 CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS ARTICLE 5 SECURITY REQUIREMENTS ARTICLE 6 REPRESENTATIONS AND WARRANTIES ARTICLE 7 COVENANTS OF THE RECIPIENT ARTICLE 8 COVENANTS OF THE COMMUNITY ARTICLE 9 • EVENTS OF DEFAULT; NOTICE AND OPPORTUNITY TO CURE; AND REMEDIES AVAILABLE TO IDED ARTICLE 10 MISCELLANEOUS CONTRACT EXHIBITS Exhibit A - Recipient's Financial Assistance Application (on file with IDED), Application # 10- 130 -21 Exhibit B - Description of the Project and Award Budget Exhibit C - Job Obligations Exhibit D - Promissory Notes - 2 - Fmt Approved 11/09 Economic Development Financial Assistance Contract RECIPIENT: COMMUNITY: CONTRACT NUMBER: AWARD DATE: AWARD AMT. — CASH Contract # 10 -IVF -062 PENINSULA GAMING, LLC CITY OF DUBUQUE 10 -IVF -062 March 18, 2010 $50,000 This ECONOMIC DEVELOPMENT FINANCIAL ASSISTANCE CONTRACT (the "Contract ") is made as of the Contract Effective Date by the Iowa Department of Economic Development ( "IDED "), 200 East Grand Avenue, Des Moines, IA 50309, Peninsula Gaming, LLC ( "Recipient "), 600 Star Brewery Drive, Suite 110, Dubuque, IA 52001, and the City of Dubuque ( "Community "), 50 West 13 Street, Dubuque, IA 52001. WHEREAS, the Recipient submitted an application to IDED requesting financial assistance in the financing of its Project as more fully described in Exhibit B, Description of the Project and Award Budget (the "Project "); and WHEREAS, the Iowa Department of Economic Development Board ( "IDED Board ") awarded the Recipient financial assistance for the Project from the funding sources identified herein, 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 Recipient, the Community and IDED agree to the following terms: - 3 - Fmt Approved 11/09 ARTICLE 1 CONTRACT DURATION This Contract shall be in effect on the Contract Effective Date and shall remain in effect until after completion of each of the following: (a) Through Project Completion Period Date. Through the Project Period Completion Date and for a reasonable period of time after Project Period Completion Date during which IDED will conduct Project closeout procedures to verify that the Project was completed in compliance with Contact requirements. (b) Through Maintenance Period Completion Date and Contract Closeout. Through the Maintenance Period Completion Date and for a reasonable period of time after Maintenance Period Completion Date during which IDED will conduct closeout procedures to verify that the Project was maintained in compliance with Contr ct requir tie ts. Uv� ( �� cic s. r - - V2r VW o - triS/ r „c�.5e (c) Loan Repaid in Full. Until the Forgivable Loan de ed in Article repaid in full. (d) Contract End Date. Until IDED has completed Contract closeout procedures and provided Recipient and Coizvnunity with written Notice of Final Contract Closeout. This Contract shall terminate as of the date (the "Contract End Date ") stated in the written Notice of Final Contract Closeout. ARTICLE 2 DEFINITIONS 2.1 Definitions. The following terms apply to this Contract: "Award Date" means the date first stated in this Contract and is the date the IDED Board approved the awarding of financial assistance to the Recipient for the Project. "Award Funds" means the cash that is provided by IDED for this Project. "Contract Effective Date" means the latest date on the signature page of this Contract. "Contract End Date" means the date stated in the Notice of Final Contract Closeout issued by IDED pursuant to Article 1. "Created Jobs" means the number of new, permanent, FTE Jobs the Recipient will add over and above the Recipient's Employment Base. "Job Obligations" means the Recipient's Employment Base number and the new jobs to be created that pay the required wages and benefits, all as outlined in Exhibit C, Job Obligations. "Forgivable Loan" means a form of an award made by the IDED to the Recipient for which repayment is eliminated in part or entirely if the Recipient satisfies the terms of this Contract. "Full -tune Equivalent (FTE) Job" means a non- part -time position for the number of hours or days per week considered to be full -time work for the kind of service or work performed for an employer. Contract # 10 -IVF -062 - 4 - Fmt Approved 11/09 For purposes of this Contract, FTE means the employment of one person for 8 hours per day for a 5 -day, 40 -hour workweek for 52 weeks per year, including paid holidays, vacations and other paid leave. "Loan" means form of an award made by the IDED to the Recipient for which full repayment is expected. "Maintenance Period" means the period of time between the Project Completion Date and the Maintenance Period Completion Date. The Project must be maintained in Iowa for this period of time. "Maintenance Period Completion Date" means the date 2 years from the Project Completion Date and is the date on which the Maintenance Period ends. "Project" means the description of the work and activities to be completed by the Recipient as outlined in Exhibit B - Description of the Project and Award Budget. "Project Completion Date" means the date 3 years from the Award Date by which the Recipient must complete the Project. "Project Completion Period" means the period of time between Award Date and the Project Completion Date. "Qualifying jobs" are those created or retained jobs that meet or exceed the Qualifying Wage Threshold Requirement established for the programs providing assistance to this Project to qualify for program funding. "Qualifying Wage Threshold Requirement" means the county wage or the regional wage, whichever is lower, as calculated by the Department pursuant to statute or rule for each program that is providing financial assistance for this Project. The Qualifying Wage Threshold Requirement for this Project is outlined in Exhibit C, Job Obligations. "Recipient's Employment Base" means the number of jobs as stated in Exhibit C, Job Obligations that the Recipient and IDED have established as the job base for this Project. The number of jobs the Recipient has pledged to create shall be in addition to the Recipient's Employment Base. "Retained Job" means an existing job that meets the Qualifying Wage Threshold Requirements and would be eliminated or moved to another state if the Project did not proceed in Iowa. "Security Documents" means all security agreements, financing statements, mortgages, personal and/or corporate guarantees required by the IDED Board for this Award. "Sufficient Benefits" means that the Recipient offers to each FTE permanent position a benefits package that meets one of the following: 1. The Recipient pays 80 percent of the premium costs for a standard medical and dental plan for single employee coverage with a $750 maximum deductible; or 2. The Recipient pays 50 percent of the premium costs for a standard medical and dental plan for employee family coverage with a $1,500 maximum deductible; or 3. The Recipient provides medical coverage and pays the monetary equivalent of paragraph "1" or "2" above in supplemental employee benefits. Benefits counted toward monetary equivalent could include medical coverage, dental coverage, vision insurance, life insurance, pension, retirement (401k), Contract # 10 - IVF - 062 - 5 - Fmt Approved 11/09 DIRECT FINANCIAL ASSISTANCE FORM MAXIMUM AMOUNT IVL ng age 5 +_ e i= om.onent A Loan Forgivable Loan ... $ 25,000 TOTAL CAS . ' STANCE: $ 518; B profit sharing, disability insurance, childcare services, and other nonwage compensation approved by the IDED Board. "Sufficient Benefits Credit" means a benefits credit for which the Recipient qualifies if the Recipient provides Sufficient Benefits to each employee holding a Created or Retained job. The value of the Sufficient Benefits Credit for this Contract is as stated in Exhibit C, Job Obligations. This credit can be applied against the 130 percent Qualifying Wage Threshold requirement. The credit shall not be applied against the 100 percent Qualifying Wage Threshold requirement. ARTICLE 3 AWARD TERMS 3.1 Total Award Amount. The IDED Board has approved an Award to the Community and Recipient from the funding sources and in the maximum amounts shown below: (b) conditions 1. 2. 3. 4. I 3.2 Terms and Conditions of State Direct Financial Assistance (a) Award from: IVF 130 % Qualifying Wage Component 5. Contract # 10 -IVF -062 (1z- .1 n • • • • • • •. • IT . • mount: $ 25,000 Z terest Rate: 0 %; Interest accrues from the date of first disbursement of funds. rm: 60 months romissory Note. The obligation to repay the Loan shall be evidenced by a Promissory tote executed by the Recipient. repayment. The outstanding principal and accrued interest of this Loan may be prepaid art or in full at any time without penalty. eeleration upon Default. If there is a failure to pay any installment of principal and i terest when due, or only a portion is paid, or in the event of any other Event of Default u Eder this Contract, the ID imme ie and paya le. ) Forgivable Loan. The IDED Board awards a Forgivable Loan to Recipient on the following terms and conditions: 1. Amount: $ 25,000 2. Interest Rate: 0 %; Interest accrues from the date of first disbursement of funds. 3. Term: 60 months 4. Promissory Note. The obligation to repay the Forgivable Loan shall he evidenced by a Promissory Note executed by the Recipient. 5. Terms of Forgiveness. This Forgivable Loan will be forgiven if the Recipient: - 6 - Fad Approved 11/09 (i) Completes the Project Performance Obligations in Article 7 by the Project Completion Date, and (ii) Maintains the Project Performance Obligations in Article 7 through the Maintenance Period Completion Date, and (iii) Satisfies all other terms and of this Contract, and (iv) Is not in default under this Contract. 6. Prepayment. The outstanding principal and accrued interest of this Forgivable Loan, or any part thereof that is not forgiven, may be prepaid in part or in full at any time without penalty. 7. Acceleration upon Default. If there is a failure to pay any installment of principal and interest when due, or only a portion is paid, or in the event of any other Event of Default under this Contract, the IDED may declare the entire unpaid principal and all accrued interest immediately due and payable. 3.3 Layoff , Closure or Relocation After Approval For Assistance. If the Recipient is approved to receive financial assistance and experiences a layoff or closes any of its facilities within the State, the IDED Board may reduce or eliminate some or all of the amount of financial assistance to be received. ARTICLE 4 CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS 4.1 Direct State Financial Assistance — Disbursements of Award Funds. (a) Conditions to Disbursement. The obligation of IDED to make, continue or disburse funds under this Contract shall be subject to the conditions described in this Article 4. (b) Process to Request Disbursement of Award Funds. Recipient shall prepare, sign and submit disbursement requests and reports as specified in this Contract in the form and content required by IDED. Recipient shall review all disbursement requests and verify that claimed expenditures are allowable costs. The Recipient shall maintain documentation adequate to support the claimed costs. (c) Documents Submitted. Funds will not be disbursed until IDED has received each of the following documents, properly executed and completed, and approved by IDED as to form and substance: 1. Contract. Fully executed Contract. 2. Promissory Note(s). The Promissory Note(s) required by Article 3. 3. Articles of Organization. Copies of the Articles of Organization of the Recipient, certified in each instance by its secretary or assistant secretary. 4. Certificate of Existence. A certificate of existence for the Recipient from the State of organization. 5. Results of Lien and Tax Search and Documentation of Satisfactory Credit History. Financing statement, tax and judgment lien search results, in the Recipient's state of organization, against the Recipient and Security and documentation of satisfactory credit history of the Recipient and guarantors, as applicable, with no judgments or unsatisfied liens or similar adverse credit actions. Contract # 10 -IVF -062 - 7 - Fmt Approved 11/09 6. Security Documents. The fully executed Security Documents required in Article 5. 7. Other Required Documents. IDED shall have received such other contracts, instruments, documents, certificates and opinions as the IDED may reasonably request. 8. Solid or Hazardous Waste Audit. To comply with Iowa Code section 15A.1(3) "b," if the Recipient generates solid or hazardous waste, it must either: a) submit a copy of the Recipient'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 c) submit documentation that the Recipient has authorized the Iowa Department of Natural Resources or Iowa Waste Reduction Center to conduct the audit. 9. Release Form — Confidential Tax Information. A signed Authorization for Release of Confidential State Tax Information form to permit IDED to receive the Recipient's state tax information directly from the Iowa Department of Revenue for the purpose of evaluation and administration of tax credit programs and other state financial assistance programs. 10. Project Financial Commitments. The Recipient shall have submitted documentation acceptable to IDED from the funding sources identified in Exhibit A committing to the specified financial involvement in the Project and received the IDED's approval of the documentation. The documentation shall include the amount, terms and conditions of the financial commitment, as well as any applicable schedules. 11. 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 Recipient. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award proceeds. 12. Other Documents. The Recipient shall have submitted a copy of the Tax Increment Development Agreement By and Between the City of Dubuque, Iowa and Peninsula Gaming, LLC once executed. (d) Prior Costs. No expenditures made prior to the Award Date may be included as Project costs. No funds will be disbursed for expenditures prior to the Award Date. (e) Cost Variation. In the event that the Total Project Cost is less than the amount specified in the Exhibit A, the financial assistance shall be reduced at the same ratio to the total Project cost reduction as the ratio of the financial assistance amount to the total amount of funds provided by the Recipient and all funding sources requiring a proportional reduction of their financial contribution to the Project. Any disbursed excess above the reduced IDED participation amount shall be returned immediately to IDED. (f) Investment of Award Proceeds. 1. In the event that the Award proceeds are not immediately utilized, temporarily idle Award proceeds held by the Recipient 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 Recipient shall be credited to and expended on the Project prior to the expenditure of other Award proceeds. 2. 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, Recipient shall inform the IDED in writing of the amount of unexpended Award funds in the Recipient's possession or under the Recipient's Contract # 10 -IVF -062 - 8 - FmtApproved 11/09 control, whether in the form of cash on hand, investments, or otherwise. 4.2 Suspension, Reduction or Delay of Disbursements. Any one or more of the following shall be grounds for IDED to suspend, delay or reduce the amount of disbursement of Award Funds: (a) Unremedied event of default Upon the occurrence of an Event of Default (as defined in this Contract) by the Recipient, the IDED may suspend payments to the Recipient until such time as the default has been cured to IDED's satisfaction. (b) Layoff, closure or relocation. In the event the Recipient experiences a layoff within the state of Iowa, relocates or closes any of its Iowa facilities IDED has the discretion to reduce or eliminate some or all of the amount of financial assistance to be received. (c) Reduction, discontinuance or alteration of state funding /programs. 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 or authorized for this Contract, or (ii) any other reason beyond the IDED' s control may, in the IDED's discretion, result in the suspension, reduction or delay of Award Fund. Contract # 10 - IVF - 062 ARTICLE 5 SECURITY REQUIREMENTS 5.1 Security for State Direct Financial Assistance Awarded. The Recipient 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 Board for this Award. (a) Form of Security. This Contract shall be secured by the collateral described below and shall remain in effect through the Contract Effective Date: • Irrevocable Letter of Credit from American Trust and Savings Bank (Dubuque). (b) Value of Collateral. The value, as reasonably determined by IDED, of the security shall meet or exceed the amount of Award funds disbursed. (c) Additional or Substitute Collateral. In case of a decline in the market value of the security or any part thereof, IDED may require that additional or substitute collateral of quality and value satisfactory to IDED be pledged as security for this Award. The Recipient shall provide such additional or substitute collateral within 20 days of the date of the request for additional or substitute collateral to secure this Award in an amount equal to or greater than the amount of outstanding Award funds. ARTICLE 6 REPRESENTATIONS AND WARRANTIES 6.1 Representations of Recipient. The Recipient represents and warrants to IDED as follows: (a) Organization and Qualifications. The Recipient is duly organized, validly existing and in good standing under the state of its organization. The Recipient has full and adequate power to own its property and conduct its Recipient as now conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the Recipient conducted by it or the nature of the property owned or leased by it requires such licensing or qualifying, except where the failure to so qualify would not have a material adverse effect on the Recipient's ability to perform its obligations - 9 - Fmt Approved 11/09 hereunder. (b) Authority and Validity of Obligations. The Recipient has full right and authority to enter into this Contract. The person signing this Contract has full authority on behalf of Recipient to: 1. Sign this Contract, and 2. Issue Promissory Notes on behalf of the Recipient, and 3. Secure Recipient's obligations under this Contract, and 4. Perform each and all of the obligations under the Contract. The Contract delivered by the Recipient has been duly authorized, executed and delivered by the Recipient and constitute the valid and binding obligations of the Recipient and enforceable against it in accordance with their terms. This Contract and related documents do not contravene any provision of law or any judgment, injunction, order or decree binding upon the Recipient or any provision of the Articles of Organization of the Recipient, contravene or constitute a default under any covenant, indenture or contract of or effecting the Recipient or any of its properties. (c) Use of Award Funds. The Recipient hereby agrees to use Award Funds only for the Project and for the activities described in Exhibit B - Description of the Project and Award Budget and this Contract. Use of Award Funds shall conform to the Budget for the Project as detailed in Exhibit B - Description of the Project and Award Budget. The Recipient represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit B - Description of the Project and Award Budget. (d) Subsidiaries. The Recipient has no Subsidiaries involved with the Project on the Contract Effective Date. (e) Financial Reports. The balance sheet of the Recipient furnished to IDED fairly presents its financial condition as at said date in conformity with GAAP applied on a consistent basis. The Recipient 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. (f) No Material Adverse Change. Since the Award Date, there has been no change in the condition (financial or otherwise) or business prospects of the Recipient, except those occurring in the ordinary course of business, none of which individually or in the aggregate have been materially adverse. To the knowledge of the Recipient, there has been no material adverse change in the condition of the business (financial or otherwise) or the prospects of the Recipient. (g) Full Disclosure; Recipient's Financial Assistance Application. The statements and other information furnished to the IDED by Recipient in its Financial Assistance Application and in connection with the negotiation of this Contract 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 Recipient only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. (h) Trademarks, Franchises and Licenses. The Recipient owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, know how and confidential commercial and proprietary information to conduct its business as now conducted, without known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person. As used in this Contract, "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. Contract # 10 - IVF - 062 - 10 - FmtApproved 11/09 (i) Governmental Authority and Licensing. The Recipient has received all licenses, permits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to conduct its business, 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 Recipient threatened. (j) Litigation and Other Controversies. There is no litigation or governmental proceeding pending, nor to the knowledge of the Recipient threatened, against the Recipient which if adversely determined would result in any material adverse change in the financial condition, Properties, Recipient or operations of the Recipient, nor is the Recipient aware of any existing basis for any such litigation or governmental proceeding. (k) Good Title. The Recipient has good and defensible title (or valid leasehold interests) to all of its property involved with the Project reflected on the most recent balance sheets furnished to the IDED (except for sales of assets in the ordinary course of business). (1) Taxes. All tax returns required to be filed by the Recipient in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Recipient or upon any of its property, income or franchises, which are shown to be due and payable in such returns, have been paid, except such taxes, assessments, fees and governmental charges, if any, as are being contested in good faith and by appropriate proceedings which prevent enforcement of the matter under contest and as to which adequate reserves established in accordance with GAAP have been provided. The Recipient knows of no proposed additional tax assessment against it for which adequate provisions in accordance with GAAP have not been made on its accounts. Adequate provisions in accordance with GAAP for taxes on the books of the Recipient have been made for all open years, and for their current fiscal period. (m) Other Contracts. The Recipient is not in default under the terms or any covenant, indenture or contract of or affecting either the Recipient or any of its properties, which default, if uncured, would have a material adverse effect on its financial condition, properties, Recipient or operations. (n) No Default. No Default or Event of Default, as defined in Article 9, has occurred or is continuing. (o) Compliance with Laws. The Recipient is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the business operations of the Recipient 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 Recipient. The Recipient 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 Recipient. (p) 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 Recipient at the time each request for disbursement of Award Funds is submitted to the IDED. Contract # 10 - IVF - 062 - 11 - Fmt Approved 11/09 6.2 Representations of Community. (a) Local Approvals Received; Authority and Validity of Obligations. The Community has secured all necessary local approvals and has full right and authority to enter into this Contract. The person signing this Contract has full authority on behalf of the Community to: 1. Sign this Contract, and 2. Perform each and all of the Community's obligations under this Contract. The Contract delivered by the Community has been duly authorized, executed and delivered by the Community and constitutes the valid and binding obligations of the Community and enforceable against it in accordance with their terms. This Contract and related documents do not contravene any provision of law or any judgment, injunction, order or decree binding upon the Community, contravene or constitute a default under any covenant, indenture or contract of or effecting the Community or any of its properties. (b) Local Commitment. The Community represents that there are legally enforceable commitments in place for the Community local commitment identified for the Project in Exhibit B - Description of the Project and Award Budget. (c) No Material Adverse Change. Since the Award Date, there has been no material change in the Community's ability to perform its obligations under this Contract. (d) Full Disclosure; Community's Financial Assistance Application. The statements and other information furnished to the IDED by Community in its Financial Assistance Application and in connection with the negotiation of this Contract 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 Community only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. (e) Governmental Authority and Licensing. The Community has received all licenses, permits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to perform its obligations under this Contract. 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 Community threatened. (f) Litigation and Other Controversies. There is no litigation or governmental proceeding pending, nor to the knowledge of the Community threatened, against the Community which if adversely determined would result in any material adverse change in the Community's ability to perform under this Contract nor is the Community aware of any existing basis for any such litigation or governmental proceeding. (g) No Default. No Default or Event of Default by Community, as defined in Article 9, has occurred or is continuing. (h) Compliance with Laws. The Community is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the operations of the Community 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 Community. The Community has not Contract # 10 -IVF -062 - 12 - Fmt Approved 11/09 Award Date Project Completion Period Project Completion Date Maintenance Period Maintenance Period Completion Date Contract Closeout "Award Date" "Project "Project "Maintenance "Maintenance Period IDED will conduct means the date Completion Completion Date" Period" means Completion Date" Contract Closeout first stated in this Period" means the means the date 3 the period of means the date 2 years procedures after all Contract and is period of time years from the time between from the Project events described in the date the between the Award Award Date. the Project Completion Date and Article 1 have been IDED Board Date and the Recipient must Completion is the date on which met. approved the Project Completion complete the Project Date and the the Maintenance awarding of financial Date. by this date. Maintenance Period Period ends. "Contract End Date" means the date assistance to the At this point, IDED Completion At this point, IDED stated in IDED's Recipient for the will review the Date. The will review the Project written Notice of Project. Project to verify Project must be to verify that it was Contract Closeout compliance with maintained in maintained in that is issued Contract terms and obligations. Iowa for this period of time. compliance with Contract terms and obligations. pursuant to Article 1. 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 Community. (i) Effective Date of Representations and Warranties. The warranties and representations of this Article are made as of the Contract Effective Date. For the duration of this Contract, the Recipient covenants to IDED as follows: 7.1 Project Performance Obligations. (a) Use Award funds only for Project. The Recipient shall use Award Funds only for the Project and for the activities described in Exhibit B - Description of the Project and Award Budget and this Contract. Use of Award Funds shall conform to the Budget for the Project as detailed in Exhibit B - Description of the Project and Award Budget. The Recipient represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit B - Description of the Project and Award Budget. (b) Meet and Maintain Eligibility Requirements. Recipient shall continue to meet and maintain all statutory eligibility requirements for the funding sources providing assistance under this Contract. (c) Project Time Period. This Contract covers the five (5) year Project time period from the Award Date through the Maintenance Period Completion Date. Recipient shall complete and maintain the Project within the Project time .eriod shown below: COMPLIANCE MEASUREMENT POINT Contract # 10 -IVF -062 ARTICLE 7 COVENANTS OF THE RECIPIENT - 13 - COMPLIANCE MEASUREMENT POINT Fmt Approved 11/09 (d) Complete Project by Project Completion Date. By the Project Completion Date, Recipient shall complete the Project, make the total investment it pledged for the Project and in accordance with the Award Budget as detailed in Exhibit B - Description of the Project and Award Budget, and comply with all other performance requirements described in this Contract. (e) Total Project Costs. By the Project Completion Date, Recipient shall have completed the Project with a Total Project Cost as detailed in Exhibit B - Description of the Project and Award Budget. (f) Maintain Project through Maintenance Completion Period Date. Recipient shall maintain the Project through the Maintenance Completion Period Date. (g) Maintain Project in Iowa During Contract Period. The Recipient shall at all times preserve and maintain its existence as a corporation in good standing and maintain the Project in Iowa. The Recipient will preserve and keep in force and affect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights and other proprietary rights necessary to the proper conduct of its respective Recipient. (h) Employ Legally Authorized Workers. Recipient shall only employ individuals legally authorized to work in this state. (i) Job Obligations. By the Project Completion Date, the Recipient shall create the number of FTE Created Jobs above the Recipient's Employment Base and retain the number of FTE Retained Jobs included in the Recipient's Employment Base and maintain the jobs through the Maintenance Completion Period Date, all as detailed in Exhibit C — Job Obligations. (1) Contract # 10 - IVF - 062 Wage Obligations. Recipient shall: • For the Created Jobs, pay 100% of the Qualifying Wage Threshold at the start of the Project Completion Period, at least 130% of the Qualifying Wage Threshold by the Project Completion Date, and at least 130% of the Qualifying Wage Threshold until the Maintenance Period Completion Date. • For the Retained Jobs, pay at least 130% of the Qualifying Wage Threshold throughout both the Project Completion Period and the Maintenance Period. • The specific Qualifying Wage Threshold rates that must be met are stated in Exhibit C, Job Obligations. • To meet the Qualifying Wage Threshold, the Recipient may add to each FTE wage the Sufficient Benefits Credit as shown in Exhibit C, Job Obligations. This value shall be credited against the amount of the 130 percent Qualifying Wage Threshold requirement that the Recipient is required to meet. • For purposes of measuring compliance with the Job Obligations of this Contract, TIDED will only count those jobs that meet or exceed the 130% Qualifying Wage Threshold at the Project Completion Date and through the Maintenance Period Completion Date. (k) Provide Sufficient Benefits. The Recipient shall provide all full -time employees with Sufficient Benefits. 7.2 Taxes and Insurance (a) Pay Taxes and Assessments. The Recipient shall duly pay and discharge all taxes, rates, assessments, fees and governmental charges upon or against its properties, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. - 14 - Fmt Approved 11/09 Report Due Date Annual Project Status Report July 31 for the period ending June 30th The Annual Project Status Report will collect (b) Maintain Insurance. The Recipient 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 Recipient 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 business. The Recipient 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. 7.3 Preserve Project and Protect Security (a) Maintenance of Properties. The Recipient 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. (b) Restrictions on Security. The Recipient shall not, without prior written disclosure to IDED and prior written consent of IDED, which shall not be unreasonably withheld, directly or indirectly: 1. Sell, transfer, convey, assign, encumber or otherwise dispose of any of the Security for this Project. 2. Place or permit any restrictions, covenants or any similar limitations on the Security for the Project. 3. Remove from the Project site or the State all or substantially all of the Security. 4. Create, incur or permit to exist any lien of any kind on the Security. 7.4 Business Changes. (a) No Changes in Recipient Operations. The Recipient shall not materially change the Project or the nature of the business and activities being conducted, or proposed to be conducted by Recipient, as described in the Recipient's approved application for funding, Exhibit A of this Contract, unless approved in writing by IDED prior to the change. (b) Changes in Recipient Ownership, Structure and Control. The Recipient shall not materially change the ownership, structure, or control of the business if it would adversely affect the Project. This includes, but is not limited to, entering into any merger or consolidation with any person, firm or corporation or permitting substantial distribution, liquidation or other disposal of business assets directly associated with the Project. Recipient shall provide IDED with advance notice of any proposed changes in ownership, structure or control. The materiality of the change and whether or not the change affects the Project shall be as reasonably determined by IDED. 7.5 Required Reports (a) Review of Reports. The Recipient shall prepare, sign and submit required reports, in the form and content required by IDED, as specified in this Contract. (b) Reports. The Recipient shall prepare, sign and submit the following reports to the IDED throughout the Contract period: Contract # 10 - IVF - 062 - 15 - Fmt Approved 11/09 information from the Recipient about the status of the Project. End of Project Report Within 30 days of Project Completion Date The End of Project Report will collect information from the Recipient about the completed Project. End of Maintenance Period Report Within 30 days of the end of the Job Maintenance Period Completion Date The End of Maintenance Period Report will collect information from the Recipient's continued maintenance of the Project. (c) Additional Reports, Financials as Requested by IDED. The IDED reserves the right to require more frequent submission of reports if, in the opinion of the IDED, more frequent submissions would provide needed information about Recipient'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, Recipient shall submit its annual financial statements completed by an independent CPA, or other financial statements including, but not limited to, income, expense, and retained earnings statements. 7.6 Compliance with Laws (a) State, local and federal laws. Recipient shall comply in all material respects with the requirements of all applicable federal, state and local laws, rules, regulations and orders. (b) Environmental laws. Recipient shall comply in all material respects with all applicable environmental, hazardous waste or substance, toxic substance and underground storage laws and regulations, and the Recipient shall 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. (c) Nondiscrimination laws. Recipient 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. (d) Worker rights and safety. The Recipient 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. (e) Immigration laws. Recipient shall only employ individuals legally authorized to work in this state. In addition to any and all other applicable penalties provided by current law, all or a portion of the assistance received by a business which has received financial and is found to knowingly employ individuals not legally authorized to work in this state is subject to recapture by IDED. (f) Compliance with IDED's Administrative Rules. Recipient shall comply with IDED's administrative rules for the programs providing assistance to the Project and rules governing administration of this Contract. 7.7 Inspection and Audit. The Recipient shall permit the IDED and its duly authorized representatives, at such reasonable times and reasonable intervals as the IDED may designate, to: (a) Conduct site visits and inspect the Project. (b) Audit financial records related to the Project. (c) Examine and make copies of the books of accounts and other financial records of the Contract # 10 -IVF -062 - 16 - FmtApproved 11/09 Contract # 10 -IVF -062 Recipient related to the Project. (d) Discuss the affairs, finances and accounts of the Recipient with, and to be advised as to the same by, its officers, and independent public accountants (and by this provision the Recipient authorizes such accountants to discuss with the IDED and the IDED's duly authorized representatives the finances and affairs of the Recipient). 7.8 Maintenance and Retention of Records (a) Maintain Accounting Records. The Recipient is required to maintain its books, records and all other evidence pertaining to this Contract in accordance with generally accepted accounting principles and such other procedures specified by IDED. (b) Access to Records. Records to verify compliance with the terms of this Contract shall be available at all times, and made available to IDED and its designees at places and times designated by IDED, for the duration of this Contract and any extensions thereof. Recipient shall make its records available to: (i) IDED, (ii) IDED's internal or external auditors, agents and designees; (iii) the Auditor of the State of Iowa, the Attorney General of the State of Iowa, (iv) the Iowa Division of Criminal Investigations and any other applicable law enforcement agencies. (c) Records Retention Period. Recipient shall retain the records for a period of three (3) years from the Contract End Date, unless the records are the subject of an audit, investigation, or administrative or legal proceeding. In those instances, the records shall be retained until the audit, investigation or proceeding has been resolved. 7.9 Required Notices from Business to IDED. (a) Notice of Major Changes. The Recipient shall promptly provide IDED with written notice of any major changes that would impact the success of the Project. (b) Notice of Meetings. The Recipient shall notify IDED at least two (2) working days in advance of all meetings of the board of directors at which the subject matter of this Contract or the Project is proposed to be discussed. The Recipient shall provide IDED with copies of 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 or this Contract is discussed. (c) Notice of Proceedings. The Recipient shall promptly notify IDED of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Recipient which would adversely impact the Project. 7.10 Indemnification. The Recipient 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 Recipient of any representation, warranty or covenant made by the Recipient in this Contract; (c) Any claim, demand, action, citation or legal proceeding arising out of or related to - 17 - Fmt Approved 11/09 occurrences that the Recipient is required to insure against as provided for in this Contract; and (d) Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Recipient or any of their agents in its or their capacity as an employer of a person. 7.11 Nonassignment. The Recipient shall not assign this Contract without the written consent of the IDED, which consent will not be unreasonably withheld. 7.12 Repayment of Unallowable Costs. Recipient shall repay any Award Funds received claimed that are determined by IDED, its auditors, agents or designees, the Auditor of State, or similar authorized governmental entity to be unallowable under the terms of this Contract. For the duration of this Contract, the Community covenants to IDED as follows: 8.1 Local Match. The Community shall provide the local financial assistance for the Project as described in Exhibit B, Project Description and Award Budget. 8.2 Notice to IDED. In the event the Community becomes aware of any material alteration in the Project, initiation of any investigation or proceeding involving the Project, change in the Recipient' ownership, structure or operation, or any other similar occurrence, the Community shall promptly provide written notice to IDED. ARTICLE 9 EVENTS OF DEFAULT; NOTICE AND OPPORTUNITY TO CURE; AND REMEDIES AVAILABLE TO IDED 9.1 Default by Recipient. An unremedied Event of Default can result in termination of this Contract and repayment of all or a portion of the Award Funds disbursed to Recipient, plus applicable default interest and costs. (a) Events of Default Any one or more of the following shall constitute an "Event of Default" under this Contract: 1. Nonpayment. Failure to make a payment when due (whether by lapse of time, acceleration or otherwise) for more than ten (10) business days of the due date thereof of any Loan; or 2. Noncompliance with Covenants. Default in the observance or performance of any covenant set forth in Article 7, for more than five (5) business days; or 3. Noncompliance with Security Documents. Default in the observance or performance of any term of any Security Document required in Article 5 beyond any applicable grace period set forth therein; or 4. Noncompliance with Contract. Default in the observance or performance of any other provision of this Contract; 5. Material Misrepresentation. Any representation or warranty made by the Recipient in this Contract or in any statement or certificate furnished by it pursuant to this Contract, or made in Contract # 10 - IVF - 062 - 18 - ARTICLE 8 COVENANTS OF THE COMMUNITY Fmt Approved 11/09 Exhibit A, Recipient's 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 6. Security Deficiencies. Any of the Security Documents that represent the Security pledged by Recipient to secure this Contract shall for any reason fail to create a valid and perfected priority security interest in favor of the IDED; or 7. 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 Recipient or against any of its property and remains unvacated, unbonded or unstayed for a period of 30 days; or 8. Adverse Change in Financial Condition. Any change shall occur in the financial condition of the Recipient which would have a material adverse effect on the ability of the Recipient to perform under this Contract; or 9. Bankruptcy or Similar Proceedings Initiated. Either the Recipient shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (vi) fail to contest in good faith any appointments or proceeding described below; or 10. Appointment of Officials. A custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for either the Recipient or any substantial part of any of its respective property, or a proceeding described above shall be instituted against either the Recipient and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days; or 11. Insecurity. IDED shall in good faith deem itself insecure and reasonably believes, after consideration of all the facts and circumstances then existing, that the prospect of payment and satisfaction of the obligations under this Contract, or the performance of or observance of the covenants in this Contract, is or will be materially impaired; or 12. Failure to Submit Required Reports. The Recipient fails to submit complete reports by the required due dates as outlined in Article 7; or 13. Layoffs, Relocation or Closure. The Recipient experiences a layoff, relocates or closes any of its facilities within the state; or 14. Hiring workers not authorized to work in state. The Recipient fails to only employ individuals legally authorized to work in this state. If Recipient is found to knowingly employ individuals not legally authorized to work in this state then, in addition to any and all other applicable penalties provided by current law, all or a portion of the assistance received is subject to repayment; or 15. Failure to Maintain Program Eligibility Requirements. Recipient fails to maintain a statutory Contract # 10 -IVF -062 - 19 - FmtApproved 11/09 eligibility requirement for a program providing assistance under this Contract. (b) Notice of Default and Opportunity to Cure. If IDED has reasonable cause to believe that an Event of Default has occurred under this Contract, IDED shall issue a written Notice of Default to the Recipient, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30) days from the date of the Notice of Default, in which the Recipient shall have an opportunity to cure, provided that cure is possible and feasible. (c) Remedies Available to IDED. When an Event of Default has occurred and is not cured within the required time period, IDED may, after written notice to Recipient: 1. Terminate this Contract. 2. Suspend or reduce pending and future disbursements. 3. 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 Contract shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind. 4. Require repayment of all or a portion of Award Funds disbursed. (d) Repayment of Direct Financial Assistance Received: Pro Rata Repayment Permitted in Certain Circumstances. Barring any other Event of Default, if the default is due solely to one of the following circumstances, IDED will permit pro rata repayment of the direct financial assistance received: 1. Failure to Meet Job Obligations by Project Completion Date. If the Recipient does not meet its Job Obligations as detailed in Exhibit C — Job Obligations by the Project Completion Date, Recipient shall repay a portion of the direct financial assistance received. The amount to be repaid is calculated based on the number of jobs that are at or above the Qualifying Wage Threshold. Repayment of any amounts due will be at the rate of $833.33 per unfilled job. This per job rate is calculated as follows: $25,000 Forgivable Loan Award Amount divided by 30 jobs to be created /retained. For example, if the Recipient is short by 10 jobs the amount to be repaid is $833.33 per job multiplied by 10, for a total due of $8,333.34. Penalty interest shall apply as described in 9.1(e). Upon repayment of the amount due, IDED will reduce the Recipient's Employment Base. This reduced employment base must be maintained through the Maintenance Period Completion Date. 2. Job shortfall at Maintenance Period Completion Date. If the Recipient does not maintain its adjusted Employment Base through the Maintenance Period Completion Date, Recipient shall repay an additional portion of the direct financial assistance received for the number of jobs it failed to maintain. The amount to be repaid will be calculated as described in subsection 1 above. 3. Less than Total Project Cost at Project Completion Date. If the Recipient does not complete the Project with a Total Project Cost as stated in Exhibit B, Project Contract # 10 -IVF -062 - 20 - FmtApproved 11/09 Description and Award Budget, by the Project Completion Date Recipient shall repay a portion of the direct financial assistance received. For example, if the Recipient's required Total Project Cost is 10% less than pledged, 10% of the Award amount received must be repaid (plus 6% interest calculated from the date of first disbursement of Award funds). 4. Repayment Amount If Both Shortfall In Job Obligations and Less Than Total Project Cost. If the Recipient experiences a shortfall in its Job Obligations and the Total Project Cost is less than required, IDED will calculate the amount owing for the job shortfall and for less than the Total Project Cost. The higher of these two amounts shall be the amount Recipient shall repay to IDED. (e) Default Interest Rate. If an Event of Default occurs and remains uncured, a default interest rate of 6% shall apply to repayment of amounts due under this Contract. The default interest rate shall accrue from the first date Award funds are disbursed. (f) Expenses. The Recipient 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 Recipient or in connection with the enforcement of any of the terms of this Contract. 9.2 Default by Community. An unremedied Event of Default can result in termination of this Contract and repayment by Community of all or a portion of the pledged local match, plus applicable default interest and costs. (a) Events of Default. Any one or more of the following shall constitute an "Event of Default by Community" under this Contract: 1. Noncompliance with Covenants. Default in the observance or performance of any covenants of the Community set forth in Article 8, for more than five (5) business days; or 2. Material Misrepresentation. Any representation or warranty made by the Community in this Contract or in any statement or certificate furnished by it pursuant to this Contract, or made by Community in Exhibit A, Recipient's 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 (b) Notice of Default and Opportunity to Cure. If IDED has reasonable cause to believe that an Event of Default has occurred under this Contract, IDED shall issue a written Notice of Default to the Community, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30) days from the date of the Notice of Default, in which the Community shall have an opportunity to cure, provided that cure is possible and feasible. (c) Remedies Available to IDED. When an Event of Default by Community has occurred and is not cured within the required time period, IDED may, after written notice to Community: 1. Suspend or reduce pending and future disbursements to Community 2. Require repayment by Community for the amount of local financial assistance pledged to the Project but not provided. (d) Default Interest Rate. If an Event of Default occurs and remains uncured, a default Contract # 10 -IVF -062 - 21 - Fmt Approved 11/09 interest rate of 6% shall apply to repayment of amounts due under this Contract. The default interest rate shall accrue from the first date Award funds are disbursed. (e) Expenses. The Community 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 Community or in connection with the enforcement of any of the terms of this Contract. ARTICLE 10 MISCELLANEOUS. 10.1 State of Iowa Recognition. If the Project involves construction and there is signage recognizing the financial contributions made to the Project the Recipient 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. 10.2 Choice of Law and Forum; Governing Law. (a) In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Contract, 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. (c) This Contract 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. 10.3 Contract Amendments. Neither this Contract nor any documents incorporated by reference in connection with this Contract, may be changed, waived, discharged or terminated orally, but only as provided below: (a) Writing required. The Contract may only be amended if done so in writing and signed by the Recipient, the Community 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. (b) IDED Board review. Requests to amend this Contract shall be processed by IDED in compliance with the IDED Board's rules and procedures applicable to contract amendments. 10.4 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including, without limitation by fax) and shall be given to the relevant party at its address, e -mail address, or fax number set forth below, or such other address, e-mail address, or fax number as such party may hereafter specify by notice to the other given by United States mail, by fax or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder shall be addressed: Contract # 10 - IVF - 062 - 22 - Fmt Approved 11/09 Contract # 10 -IVF -062 To the Recipient at: Peninsula Gaming, LLC Natalie Schramm 600 Star Brewery Drive, Suite 110 Dubuque, IA 52001 E -mail: Natalie.schramm @peninsulagaming.com Telephone: 563.690.4977 Facsimile: 563.690.1394 To the IDED at: Iowa Department of Economic Development Compliance Team 200 East Grand Avenue Des Moines, Iowa 50309 Attention: Paul Stueckradt, Team Leader E -mail: paul.stueckradt @iowa.gov Telephone: 515.725.3045 Facsimile: 515.725.3010 To the Community at: City of Dubuque David J. Heiar 50 West 13 Street Dubuque, IA 52001 E -mail: Dheiar @cityofdubuque.org Telephone: 563.589.4393 Facsimile: 563.5 89.1733 Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Article and a confirmation of such facsimile has been received by the sender, (ii) if given by e -mail, when such e -mail is transmitted to the e -mail address specified in this Article and a confirmation of such e-mail has been received by the sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Article. 10.5 Headings. Article headings used in this Contract are for convenience of reference only and are not a part of this Contract for any other purpose. 10.6 Final Authority. The IDED shall have the authority to reasonably assess whether the Recipient has complied with the terms of this Contract. Any IDED determinations with respect to compliance with the provisions of this Contract shall be deemed to be final determinations pursuant to Iowa Code Chapter 17A, Iowa Administrative Procedure Act. 10.7 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 - 23 - FmtApproved 11/09 exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by IDED shall preclude future exercise thereof or the exercise of any other right or remedy. 10.8 Counterparts. This Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 10.9 Survival of Representations. All representations and warranties made herein or in any other Contract document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Contract and the other Contract documents and shall continue in full force and effect with respect to the date as of which they were made until all of Recipient's obligations or liabilities under this Contract have been satisfied. 10.10 Severability of Provisions. Any provision of this Contract, which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Contract or any other Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Contract and any other Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Contract or any other Contract document invalid or unenforceable. 10.11 Successors and Assigns. This Contract shall be binding upon the Recipient and its respective successors and assigns, and shall inure to the benefit of the IDED and the benefit of their respective successors and assigns. 10.12 Nonassignment. This Contract shall not be assigned, in whole or in part, by Recipient unless approved in writing by IDED. 10.13 Termination. This Contract can be terminated under each of the following circumstances: (a) Agreement of the Parties. Upon written agreement of the Recipient, the Community and IDED. (b) Unremedied Event of Default. As a result of the Recipient's or Community' s unremedied Event of Default pursuant to Article 9. (c) Termination or reduction in funding to IDED. As a result of the termination or reduction of funding to IDED as provided in Article 4.3(c). 10.14 Documents Incorporated by Reference. The following documents are incorporated by reference and considered an integral part of this Contract: 1. Exhibit A - Recipient's Financial Assistance Application (on file with IDED), Application # 10- 130 -21 2. Exhibit B - Description of the Project and Award Budget 3. Exhibit C - Job Obligations 4. Exhibit D - Promissory Notes Contract # 10 - IVF - 062 - 24 - FmtApproved 11/09 10.15 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: BY: 1. Article 1-10 of this Contract. 2. Exhibit A - Recipient's Financial Assistance Application (on file with IDED), Application # 10430 -21 3. Exhibit B - Description of the Project and Award Budget 4. Exhibit C - Job Obligations 5. Exhibit D - Promissory Notes 10.16 Integration. This Contract contains the entire understanding between the Recipient, Community, and IDED relating to the Project and any representations that may have been made before or after the signing of this Contract, which are not contained herein, are nonbinding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Contract. 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 Contract and have caused their duly authorized representatives to execute this Contract, effective as of the latest date stated below (the "Contract Effective Date "). FOR IDED: FOR RECIPIENT: Bret L. Mills, Director Date Date FOR THE Q'OMMUNITY: BY: Signature Roy D'. Buol , Mayor Typed Name and Title January 18, 2011 Date Contract # 10 - IVF - 062 - 25 - t 105 I ■ BYV Signature Typed Name and Title Fm1 Approved 11/09 Exhibit A - Recipient's Financial Assistance Application (on file with IDED), Application # 10- 130 -21 Exhibit B - Description of the Project and Award Budget Exhibit C - Job Obligations Exhibit D - Promissory Notes Contract # 10 - IVF - 062 LIST OF EXHIBITS - 26 - FmtApproved 11/09 Exhibit A Recipient's Financial Assistance Application (on file with IDED), Application # 10- 130 -21 Exhibit B Description of the Project and Award Budget DESCRIPTION OF THE PROJECT AND AWARD BUDGET (EXHIBIT B) Name of Recipient: Peninsula Gaming, LLC Name of Community: City of Dubuque Contract Number: 10-IVF-062 PROJECT DESCRIPTION Peninsula Gaming, LLC will expand their corporate offices in Dubuque, The project involves building remodeling, acquisition of computer hardware/software, furniture and fixture purchases, AWARD BUDGET 1 [ 1 Amount U SOURCE OF FUNDS SE OF FUNDS Cost . IDED Programs - , ,.,- ,■-t'll=-1 : Land Acquisition 0 Company 1 -.#5;CiCiO3.,.-For Loan j*Site Preparation i , . ,..,,,,,..,,, j*Building Construction ;*Building Acquisition N 130% Component 0 2 .1-30 Bullding Remodeling j*Mfg Machinery and Equipment ;Other Machinery and Equipment 'Racking, Shelving, etc. . i*Computer Hardware OPP' Computer Software 10;00 l`Furniture and Fixtures :r5 Working Capital !Research and Development , • , (Job Training .. ; ; o4h4 , Ez za n 2 st io s - I : 1 : - 215i000 • sUaToTAL ; , • included as capital Imestment II awarded LTtJoS ilit3TOTAL , SUB TOTLtg4 " 1;4 Source of Funds TIF Rebate Tax Abatement 260E Job Training In-Kind Contributions RISE RED Other (describe) -{ 6471 f 3 1 0 Year $ Other Funding Total Amount Duration Used as Match Yes Fm1Approw/c1 1 1/09 Suoge2itao air � 130% JOB OBLIGATIONS Project Completion Date: March 31, 2013 Maintenance Period' Completion Date: Marc h 31, 2015 Employment, Base Jobs To Be Created Total. Job Obligations, .v Total employment at project location 28 10 38 Average Wage of total employment at project location $43.68 . Qualifying wage threshold requirement (per hr) $19.78 Sufficient Benefits Credit ( per hr) $1.97 -k4"";':- Number of jobs at or above qualifying wage w /benefits 20 9 29 Average wage of jobs at or above qualifying wage w /benefits $57.11 EXHIBIT C — JOB OBLIGATIONS Recipient: Peninsula Gaming, LLC Community: City of Dubuque Contract Number: 10 -IVF -062 This Project has been awarded benefits from the 130% Wage Component. The chart below outline the contractual job obligations related to this Project. Data in the "Employment Base" column has been verified by the Department and reflects the employment characteristics of the facility receiving funding before this award was made. Jobs to be retained as a part of this Project must be included in these calculations. Data in the "Jobs To Be Created" column outlines the new full -time jobs (including their wage characteristics) that must be added to the employment base and, if applicable, statewide employment base as a result of this award. At the Project Completion Date and through the Maintenance Period Completion Date, the Business must achieve (at a minimum) the numbers found in the "Total Job Obligations" column. Notes re: Qualifying Wages 1. If the Sufficient Benefits Credit was added to the base wage to meet program wage threshold eligibility requirements, then any reduction in Sufficient Benefits Credit during the life of the Contract must be compensated for with salary to ensure that the Qualifying Wage rates are met. 2. Bonus or commission payments are not included when calculating the Qualifying Wage rate. Exhibit D Promissory Notes EXHIBIT D — PROMISSORY NOTE Recipient: Peninsula Gaming, LLC Community: City of Dubuque Contract Number: 10 -IVF -062 (Loan) PROMISSORY NOTE FOR VALUE RECEI D, the undersigned promises to pay to e order of the IOWA DEPARTMENT OF ECONO IC DEVELOPMENT, at its offi at 200 East Grand, Des Moines, Iowa 50309, the sum of TWENT . -FIVE THOUSAND DOLL ' S ($25,000) with interest thereon at ZERO PERCENT (0 %) to be p.'d as follows: 60 monthly payments of $416.. beginning on the st day of the fourth month from the date Award funds are disbursed. Final paym t may vary depr nding upon dates payments are received. Interest shall first be deducted from the pay ent and : ny balance shall be applied on principal. Upon default in payment of any interest, or an shall become immediately due and payable at t This note shall be secured by the S urity specified in the ontract. By: stallment of principal, the whole amount then unpaid option of the holder. The undersigned, in case of suit on this no , agrees o pay on demand all costs of collection, maintenance of collateral, legal expenses and attorne Sr fees incurred or paid by the holder in collecting and/or enforcing this Note o default. Makers, endorsers and sureties aive demand of payment, n. ice of non- payment, protest and notice. Sureties, endorsers and guara ors agree to all of the provision of this note, and consent that the time or times of payment of all o ' any part hereof may be extended a er maturity, from time to time, without notice. Peninsula Gami g, LLC Print or Type Na ale, Title Address: 600 Star Brewery Drive, , uite 110 Dubuque, IA 52001 Date: "Other" Documents: G oHUO1 ;::il Jl 1 CC lan lit i?, (Cco)i mite a,cl 11 U- if \`%1� (0Y )2 DOCUMENTS NEEDED FOR PROCESSING REQUESTS FOR DISBURSEMENT Contract Documents 4.1: Received ❑ Fully executed Contract [ §4.1(c)(1)] ❑ Certified copy of the LLC's Articles of Organization. [ §4.1(c)(3)] ❑ Certificate of Corporate Existence from the Iowa Secretary of State [ §4.1(c)(4)] ❑ Executed Promissory Note(s) [ §4.1(c)(2)] El Results of Lien and Tax Search and Documentation of Satisfactory Credit History [ §4.1(c)(5)] ❑ Security Documents: [ §4.1(c)(6)] ❑ Irrevocable Letter of Credit from American Trust & Savings Bank ❑ Solid and Hazardous Waste Reduction Plan. To comply with Iowa Code section 15A.1(3) "b ". (If the company doesn't have hazardous waste, they'll still have solid, i.e. wastepaper. They need to either use one of the contacts provided with the award letter, or provide in -house audit results or proposal of an in -house audit). [ §4.1(c)(8)] ❑ Signed Authorization for Release of Confidential State Tax Information form [ §4.1(c)(10)] ❑ Signed Request for Disbursement Form (GAX) [ §4.1(c)(12)] ❑ Project Financial Commitments with a letter from each funding source to include amount, rate and terms [ §4.1(c)(11)] ❑ Company - $165,000 Cash ❑ Other Documentation of executed Development Agreement ❑ W -9 form (Communities are already on the accounting system — W - needed for new Recipient) ❑ Other Responsibility of: Recipient, IDED Recipient Recipient Recipient IDED IDED Recipient Recipient Recipient, IDED Recipient Recipient Recipient IDED USE ONLY I certify all original signed contract documents have been received and appropriate documentation supporting this tax credit certificate /payment of $ has been reviewed and approved. Project Manager Date Lead Senior Project Manager /Coordinator Date 1 The undersigned (noted below as "Taxpayer ") is an applicant for or a recipient of an award by the Iowa Department of Economic Development and has entered into contract number 10 -IVF -062. The undersigned hereby authorizes the Department of Revenue to provide to (Awarding Agency) state tax information in the file pertinent to this contract or tax credit certificate(s). This Authorization for Release of Confidential State Tax Information shall be valid for all tax periods either 1) for a 3 -year period following completion of the contract or 2) for a 3 -year period following completion of tax credit claims using the above tax credit certificate number(s), whichever is longer. In the case of pass - through business entities (such as partnerships, limited liability companies, cooperatives, S corporations, etc.), data for members of the business entity will be aggregated and released at the business level to the Awarding Agency with this signed release from the business entity. The signature of a business representative on this Authorization form authorizes the Iowa Department of Revenue to release tax information at the business entity level. State tax information authorized for release includes tax information pertinent to the taxpayer for individual income tax, corporate income tax, franchise tax, insurance premiums tax, sales and use tax, withholding tax, moneys and credits tax, and the replacement tax on utilities that is requested by the Awarding Agency in the administration of tax credit programs and other state financial assistance programs. The undersigned hereby authorizes the Iowa Department of Workforce Development to provide to the Iowa Department of Revenue and to the Awarding Agency the Employment Contribution and Payroll Tax Report (form 65 -5300) and Multiple Worksite Report (BLS 3020) and information from these forms for the Employer Identification Number (EIN) number pertinent to the above specified contract or tax credit certificate(s). Iowa Workforce Development may provide the information without providing the report. The confidential unemployment insurance information will be released, pursuant to this authorization only to the Iowa Department of Economic Development and/or The Department of Revenue for the purpose of evaluation and administration of tax credit programs and other state financial assistance programs. This Authorization for Release of Confidential Unemployment Insurance information shall be valid for all periods either 1) for a 3 -year period following completion of the contract or 2) for a 3 -year period following completion of tax credit claims using the above tax credit certificate � C e numb whichever is longer. Name of Taxpayer: �l en n 5 L\ . l�-e-1 M rC LL< (QM . Aox Ere l t 0- 4115 n��alie tclAMMIA e person vey) fr\ Street Address: City, State, Zip Telephone Number: Email Address: AUTHORIZATION FOR RELEASE OF CONFIDENTIAL STATE TAX INFORMATION AND CONFIDENTIAL UNEMPLOYMENT INSURANCE INFORMATION Social Security Number (for individuals): Employer Identification Number (for businesses): c=.-C; Unemployment Insurance Number (for businesses): Type of Entity: ❑ Individual/Sole Proprietorship ❑ Partnership ❑ S Corp ❑ C Corp Itt LLC ❑ Cooperative ❑ Other (specify) Signature of Taxpayer: Date signed: l 1c \ I Title (Required for partnerships and corporations'): Cl \O ranClCL D C LC .0 1 Partnerships — Only partners can authorize release of information. Corporations — Only corporate officers can authorize release of information. Revised 9/06