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HomeMy WebLinkAbout2006-10-17 Resolution M~~ GI;] Prepared by: Marian K. Karr, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5043 RESOLUTION NO. 06-323 RESOLUTION TO ISSUE CIGARETTE PERMITS WHEREAS, the following firms and persons have made application and paid the mulct tax required by law for the sale of cigarettes, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF IOWA CITY, lOW A, THAT: the applications be granted and the City Clerk is hereby directed to issue a permit to the following named persons and firms to sell cigarettes: RJ'Z Express - 2 Escort Lane Passed and approved this 17th day of1~)T'. ,20 06 _~_ ( ---.J ~~ MAYOR ATTEST: IJrryA~) j('. ~ CIT CLERK Approved by ~~ I,S--O~ City Attorney's Office It was moved by rh~mp; nn and seconded by Resolution be adopted, and upon roll call there were: r.nrrp;:I the AYES: ---X- X X X X ~ ----1L NAYS: ABSENT: Bailey ~ Champion Correia Elliott O'Donnell Vanderhoef Wilburn flNj L.ill1J Prepared by: Marian K. Karr, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5043 RESOLUTION NO. 06- 324 RESOLUTION TO REFUND CIGARETTE PERMIT WHEREAS, Dubuque Street HandiMart at 204 N. Dubuque Street in Iowa City, Iowa, has surrendered Cigarette Permit No. 07-16 ,expmng6/,0/?007 and requests a refund on the unused portion, now thereof, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF IOWA CITY, IOWA, THAT: Cigarette Permit No. 07-16 , issued to Dubuque Street HandiMart be cancelled and, BE IT FURTHER RESOLVED that the Mayor and City Clerk be aild they are hereby authorized and directed to draw a warrant on the General Fund in the amount of$~ payable to NordRtrom Of 1 Company as a refund on Cigarette Permit No. 07-16 Passed and approved this 17th day of October ~LJ~ MAYOR~ ,20 06 - ATTEST: .~-u-J ~ ,-.Jd,.M) CI CLERK Approved by ~~ 1,,\-0'>0 City Attorney's Office It was moved by Champion and seconded by Resolution be adopted, and upon roll call there were: r.orreia the AYES: ~ x ----X-- ~ x ---X- X NAYS: ABSENT: _ Bailey _ Champion Correia Elliott O'Donnell Vanderhoef Wilburn ~1 1:= Prepared by: Marian K. Karr, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5043 RESOLUTION NO. 06-325 RESOLUTION TO REFUND CIGARETTE PERMIT WHEREAS, Sunset HandiMart at 1410 Willow Creek Drive in Iowa City, Iowa, has surrendered Cigarette Permit No. 07-<;0 , expiring h/lo/?nn7 , and requests a refund on the unused portion, now thereof, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF IOWA CITY, IOWA, THAT: Cigarette Permit No. 07-50 , issued to Sunset HalOdiMart be cancelled and, BE IT FURTHER RESOLVED that the Mayor and City Clerk be and they are hereby authorized and directed to draw a warrant on the General Fund in the amount of $ 2Q...J)1l payable to NorrlRt"rom ni' r.ompRny as a refund on Cigarette Permit No. 07-<;0 Passed and approved this 17th dayof October ~,20 ~ L-J ~ MAYOR - . Approved by ~~ 06 ATTEST:~-u.-> -K CI CLERK ~ I,~-O<,o City Attorney's Office It was moved by r.hRmpi on and seconded by Resolution be adopted, and upon roll call there were: Correia the AYES: ---1L X ---X- ---1L x ---1L... X NAYS: ABSENT: _ Bailey _ Champion Correia Elliott O'Donnell Vanderhoef Wilburn N1*J G1[] Prepared by: Sarah Okerlund, Civil Engineer, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5149 RESOLUTION NO. 06-326 RESOLUTION ACCEPTING THE WORK FOR THE 2006 WATER IMPROVEMENTS - ELLIS AVENUE, McLEAN STREET, AND MOSS STREET PROJECT WHEREAS, the Engineering Division has recommended that the work for construction of the 2006 Water Improvements - Ellis Avenue, McLean Street, and Moss Street, as included in a contract between the City of Iowa City and Yordi Excavating, Inc. of Cedar Rapids, Iowa, dated May 10, 2006, be accepted; and WHEREAS, the Engineer's Report and the performance and payment bond has been filed in the City Clerk's office; and WHEREAS, the final contract price is $178,608.50. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, lOW A, THAT said improvements are hereby accepted by the City of Iowa City, Iowa. Passed and approved this 17th day of ~ (j L3L MAYOR Approved by ATTEST:~(;A.0 K. ~ CIT CLERK , ,,/,,1:& It was moved by Chamnion and seconded by adopted, and upon roll call there were: C.orrp.i;::a the Resolution be AYES: NAYS: ABSENT: x X Bailey Champion Elliott Lehman O'Donnell Vanderhoef Wilburn 1( x X 1( 1( pweng\res\ellis.mclean.moss.doc 10.06 M*b (];D Prepared by: Marian Karr, City Clerk, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5041 RESOLUTION NO. Ofi-177 RESOLUTION ESTABLISHING CITY OF IOWA CITY 2007 LEGISLATIVE PRIORITIES WHEREAS, the Iowa City City Council supports property tax reform initiatives that eliminate inequities in the current system; and WHEREAS, the Iowa City City Council seeks to encourage legislation that enhances economic development opportunity in Iowa City as well as the State of Iowa; and WHEREAS, the City of Iowa City and other cities playa critical role in the future of the State; and NOW, THEREFORE, BE IT RESOLVED that the Iowa City City Council hereby outlines our legislative proposals to the Iowa City area legislative delegation for the 2007 Iowa State legislative session as follows: Iowa State Housing Trust Fund appropriation Maintain local control over cable franchising Change in Iowa Code 562A.12 (wrongful retention of landlord deposits) Increase in hotel/motel tax to 9% Vehicle tax on pick ups Allow Home Rule for smoking in public places Property tax credits/condos Franchise fees (allow cities to charge percentage of gross revenues) Passed and approved this 1 7th day of Octoher , 20--'1.6....-. MAYOR ATTEST: ~ *". ~ CI LERK /I), tJ9. tJ!,. It was moved by Champion and seconded by adopted, and upon roll call there were: Correia the Resolution be AYES: NAYS: ABSENT: x x x Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn x x x y Mgr/resl2007taxreform .doc M~ [~~@ij Prepared by: Liz Osborne, CD Division, 410 E. Washington SI., Iowa City, IA 52240 (319)356-5246 RESOLUTION NO. 06~"~R RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND THE CITY CLERK TO ATTEST TO THE RELEASE OF LIEN REGARDING A MORTGAGE FOR THE PROPERTY LOCATED AT 1409 KEOKUK AVENUE, IOWA CITY,IOWA. WHEREAS, on July 8, 2004, the owner executed a Mortgage with the City of Iowa City; and WHEREAS, the loan has been paid off; and WHEREAS, it is the City of Iowa City's responsibility to release this lien. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA that the Mayor is authorized to sign and the City Clerk to attest the attached Release of Lien for recordation, whereby the City does release the property located at 1409 Keokuk Avenue, Iowa City, Iowa from a Mortgage, recorded July 29, 2004, Book 3774, Page 538 through Page 542, of the Johnson County Recorder's Office. Passed and approved this 17th day of October ,20llL-. ~ G:lL--- MAYOR ATTEST: fl~",~.-u J af!. ~ CITY LERK Approved by ~ fCl-')"9J.. City Attorney's Office It was moved by Chamoion and seconded by Resolution be adopted, and upon roll call there were: Correi;:l the AYES: NAYS: ABSENT: x x x x x x x Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn Prepared by and return: Liz Osborne, Housing Rehab Division, 410 E. Washington St., Iowa City, IA 52240 (319)356-5246 Legal Description of Property: see below Mortgagor(s): Beatrice H. Toomey Mortgagee: City of Iowa City RELEASE OF LIEN The City of Iowa City does hereby release the property at 1409 Keokuk Avenue, Iowa City, Iowa, and legally described as follows: Lot Eight-two (82) in Part Three, Plum Grove Acres Subdivision, Iowa City, Iowa, according to the plat thereof recorded in Plat Book 4, Page 313, Plat Records of Johnson County, Iowa, subject to easements for utilities and also subject to protective covenants and restrictions. from an obligation of the owner to the City of Iowa City represented by a Mortgage, recorded July 29, 2004, Book 3774, Page 538 through Page 542, of the Johnson County Recorder's Office. This obligation has been satisfied and the property is hereby released from any liens or clouds upon title to the above property by reason of said prior recorded document. Gh-U-lL MAYOR ATTEST: )~ K ~~ CI ERK Approved by ~~ (C>-3-0h City Attomey's Office STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this 17 day of DC:roP.f R ,A.D. 20~, before me, the undersigned, a Notary Public in and for said County, in said State, personally appeared Ross Wilburn and Marian K. Karr, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said corporation, and that the instrument was signed and sealed on behalf of the corporation by authority of its City Council, as contained in Resolution No.~ adopted by the City Council on the...ll-. day OC'fb8l'1l , 20~ and that the said Ross Wilburn and Marian K. Karr as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. ~~ SONDRAEFORT . ~ Commission Number 159791 My Commissjon Expires 3-'1-0<< ~dna' F.,....6 Notary Public in and for Johnson County, Iowa ~ r:rl Prepared by: Liz Osborne, CD Division, 410 E. Washington St., Iowa City, IA 52240 (319)356-5246 RESOLUTION NO. 06-329 RESOLUTION AUTHORIZING THE MAYOR TO SIGN AND THE CITY CLERK TO ATTEST TO THE RELEASE OF LIENS REGARDING A PROMISSORY NOTE AND TWO MORTGAGES FOR THE PROPERTY LOCATED AT 435 OAKLAND AVENUE, IOWA CITY, IOWA. WHEREAS, on December 22, 1989, the owner executed a Promissory Note with the City of Iowa City; and WHEREAS, on September 26, 1991, the Promissory Note was amended for a lesser amount; and WHEREAS, on March 12, 1996, the owner executed two Mortgages with the City of Iowa City; and WHEREAS, the loans have been paid off; and WHEREAS, it is the City of Iowa City's responsibility to release these liens. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA that the Mayor is authorized to sign and the City Clerk to attest the attached Release of Liens for recordation, whereby the City does release the property located at 435 Oakland Avenue, Iowa City, Iowa from a Promissory Note, recorded January 12, 1990, Book 1100, Page 107, and an amended Promissory Note, recorded September 26,1991, Book 1282, Page 283; and two Mortgages, recorded March 21, 1996, Book 2053, Page 54 through Page 58, and Book 2053, Page 59 through Page 63, of the Johnson County Recorder's Office. Passed and approved this 17th day of October ,20 06 . - u AYOR ATTEST:?l!c;---J ~. ~ CI LERK A~...V vee~~y ~~ (6-((-0(:. City Attorney's Office Resolution No. Page 2 06-329 --- It was moved by r.h~mpi on and seconded by Resolution be adopted, and l!pon roll call there were: AYES: ABSENT: NAYS: x x x x x x x Correi.a Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn the Prepared by and return: Liz Osborne, Housing Rehab Division, 410 E. Washington St., Iowa City, IA 52240 (319)355-5246 Legal Description of Property: see below Mortgagor(s): Lorene M. Hunter Mortgagee: City of Iowa City RELEASE OF LIENS The City of Iowa City does hereby release the property at 435 Oakland Avenue, Iowa City, Iowa, and legally described as follows: Lot 43 in Oakes Third Addition to Iowa City, Iowa according to the plat thereof recorded in Book 2, Page 28, Plat Records of Johnson County, Iowa. from an obligation of the owner, Lorene M. Hunter, to the City of Iowa City represented by a Promissory Note, recorded January 12, 1990, Book 1100, Page 107, and an amended Promissory Note, recorded September 26, 1991, Book 1282, Page 283; and two Mortgages, recorded March 21,1996, Book 2053, Page 54 through Page 58, and Book 2053, Page 59 through Page 63, of the Johnson County Recorder's Office. This obligation has been satisfied and the property is hereby released from any liens or clouds upon title to the above property by reason of said prior recorded document. C2u iLl. MAYOR ATTEST:A~ J.!. ~ CITY ERK Approved by '>s~~ IO-((-of, City Attorney's Office STATE OF IOWA ) ) ss: JOHNSON COUNTY ) On this 1? day of 0 <---r",I',E'12- ,A.D. 20~, before me, the unde"'igned, a Notary Public in and for said County, in said State, personally appeared Ross Wilburn and Marian K. Karr, to me personalty known, who being by me duly sworn, did say that they are the Mayor and City Clerk, re~s,pectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said corporation, and that the instrument was signed and sealed on behalf of the corporation by authoMty of its City Council, as contained in Resolution No. ~ adopted by the City Council on the...L1- day LlrT?>llER- , 20~ and that the said Ross Wilbum and Marian K. Karr as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. i SONDRAE FORT o ~ Commission Number 159791 . . My Commission Expires , -'7- 0 ~.,.."d.. O'.L- Forb Notary Public in and for Johnson County, Iowa ( Prepared by: Wendy Ford, 410 E. Washington St., Iowa City, IA 52240 (31Q) 356-5248 RESOLUTION NO. 06-330 RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT FOR PRIVATE REDEVELOPMENT BY AND BETWEEN THE CITY OF IOWA CITY AND NATIONAL GENECULAR INSTITUTE, INC. FOR PROPERTY LOCATED WITHIN THE NORTHGATE CORPORATE PARK URBAN RENEWAL AREA WHEREAS, by Resolution No. 99-111 approved and adopted on April 6, 1:999, and amended in 2004, the City Council approved and adopted an urban renewal plan for the Project Area designated as the Northgate Corporate Park Urban Renewal Area with stated objectives for the Project Area including rehabilitation, conservation, redevelopment, development or a combination thereof; and WHEREAS, the City has received a proposal from National Genecular Institute, Inc., (the Developer), in the form of a proposed Agreement for Private Redevelopm~nt (the "Agreement") by and between the City and the Developer, pursuant to which, amQng other things, the Developer would agree to construct certain Minimum Improvements, operate a business and create minimum employment units (as defined in the Agreement) on certail'1 real property located within the Northgate Corporate Park Urban Renewal Area as legally described in the Agreement attached hereto and incorporated herein by this reference (defined in the agreement as the "Development Property"), and upon completing said Minimum Improvements and creating and maintaining the minimum employment units, the Developer will be eligible for certain Economic Development Grants; and WHEREAS, the Agreement further proposes that the City provide up to seven (7) consecutive annual Economic Development Grant payments, the total, aggregate amount not to exceed $1,200,000, to the Developer commencing on June 1, 2010 and ending on June 1, 2016, pursuant to Section 403.9 of the Urban Renewal Act, in amounts equal td one hundred percent (100%) per fiscal year of the Tax Increments collected by the City with respect to the Minimum Improvements on the Development Property, under the terms and follOWing satisfaction of the conditions set forth in the Agreement; and WHEREAS, the Iowa Code Chapters 15A and 403 (the "Urban Renewal L!'lw") authorize cities to make loans and grants for economic development in furtherance of the Cilbjectives of an urban renewal project and to appropriate such funds and make such expenditures; as may be necessary to carry out the purposes of said Chapters, and to levy taxes and assessments for such purposes; and WHEREAS, the Council has determined that the Agreement is in the best ir'lterests of the City and the residents thereof and that the performance by the City of its obligation!l thereunder is a publiC undertaking and purpose and in furtherance of the Plan and the Urban Renewal Law and, further, that the Agreement and the City's performance thereunder is in furtherance of appropriate economic development activities and objectives of the City within the meaning of Chapters 403 and 15A of the Iowa Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: Resolution No. nh-11n Page 2 The Mayor is authorized to sign and the City Clerk to attest the Agreement for Private Redevelopment by and between the City of Iowa City, Iowa, and National Genecular Institute, Inc., which Agreement is attached hereto and made a part hereof. Passed and approved this 17th day of Gk~- MA R ATTEST: ~ :",~ ~ k/uJ CI ERK Resolution No. Page 1 06-110 It was moved by Bailey and seconded by adopted. and upon roll call there were: AYES: x x x x x x x Correia the Resolution be NAYS: ABSENT: Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn AGREEMENT FOR PRIVATE REDEVELOPMENT By and Between THE CITY OF IOWA CITY, IOWA AND NATIONAL GENECULAR INSTITUTE, INC. AGREEMENT FOR PRIVATE REDEVELOPMENT THIS AGREEMENT FOR PRlV ATE REDEVELOPMENT (hereinafter called "Agreement"), is made on or as of the day of ,2006, by and among the CITY OF IOWA CITY, IOWA, a municipality (hereinafter called "City"), established pursuant to the Code of Iowa of the State of Iowa and acting under the authorization of Chapter 403 of the Code ofIowa, 2001, as amended (hereinafter called "Urban Renewal Act") and National Genecular Institute, Inc, having an office for the transaction of business at 600 Newport Center Drive, #900, Newport Beach, California 92660 (the "Developer"). WITNESSETH: WHEREAS, in furtherance of the objectives of the Urban Renewal Act, the City has undertaken a program for the development of an economic development area in the City and, in this connection, is engaged in carrying out urban renewal project activities in an area known as the Northgate Corporate Park Urban Renewal Plan Area, which area is described in the Urban Renewal Plan approved for such area by Resolution No. 99-111 adopted April 6, 1999; and WHEREAS, a copy of the foregoing Urban Renewal Plan has been recorded among the land records in the office of the Recorder of Johnson County, Iowa; and WHEREAS, the Developer owns or has the right to acquire certain real property located in the foregoing Urban Renewal Area as more particularly described in Exhibit A attached hereto and made a part hereof (which property as so described is hereinafter referred to as the "Development Property"); and WHEREAS, the Developer will acquire the Development Property and cause a biologic material repository building with related laboratory and offices to be constructed on the Development Property in accordance with this Agreement; and WHEREAS, the City believes that the development of the Property pursuant to this Agreement and the fulfillment generally of this Agreement, are in the vital and best interests of the City and in accord with the public purposes and provisions of the applicable State and local laws and requirements under which the foregoing project has been undertaken and is being assisted. 2 NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: ARTICLE I. DEFINITIONS Section 1.1. Definitions. In addition to other definitions set forth in this Agreement, all capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: Agreement means this Agreement and all appendices hereto, as the same may be from time to time modified, amended or supplemented. Certificate of Completion means a certification in the form of the certificate attached hereto as Exhibit C and hereby made a part of this Agreement, provided to the Developer pursuant to Section 3.2 of this Agreement. City means the City ofIowa City, Iowa, or any successor to its functions. Code means the Code ofIowa, 2005, as amended. Construction Plans means the plans, specifications, drawings and related documents reflecting the construction work to be performed by the Developer on the Development Property; the Construction Plans shall be as detailed as the plans, specifications, drawings and related documents which are submitted to the building inspector of the City' as required by applicable City codes. County means the County of Johnson, Iowa. Developer means National Genecular Institute, Inc., a corporation. Development Property means that portion of the Northgate Corporate Park Urban Renewal Plan Area of the City described in Exhibit A hereto. Economic Development Grants mean the Tax Increment payments to be made by the City to the Developer under Article VIII of this Agreement. Event of Default means any of the events described in Section 10.1 of this Agreement. 3 First Mortgage means any Mortgage granted to secure any loan made pursuant to either a mortgage commitment obtained by the Developer from a commercial lender or other financial institution to fund any portion of the construction costs and initial operating capital requirements of the Minimum Improvements, or all such Mortgages as appropriate. Minimum Improvements shall mean the construction of improvements together with all related site improvements as outlined in Exhibit B hereto. Minimum Improvements shall not include increases in assessed or actual value due to market factors. The $4,500,000 capital investment in minimum improvements shall be verified via the construction contract. Mortgage means any mortgage or security agreement in which the Developer has granted a mortgage or other security interest in the Development Property, or any portion or parcel thereof, or any improvements constructed thereon. NATIONAL GENECULAR INSTITUTE. INC. - TIF Account means a separate account within the Northgate Corporate Park Urban Renewal Tax Increment Revenue Fund of the City, in which there shall be deposited all Tax Increments received by the City with respect to the Minimum Improvements. Net Proceeds means any proceeds paid by an insurer to the Developer under a policy or policies of insurance required to be provided and maintained by the Developer, as the case may be, pursuant to Article V of this Agreement and remaining after deducting all expenses (including fees and disbursements to counsel) incurred in the collection of such proceeds. Northgate Corporate Park Urban Renewal Area Tax Increment Revenue Fund means the special fund of the City created under the authority of Section 403.19(2) of the Code ofIowa and the Ordinance, which fund was created in order to pay the principal of and interest on loans, monies advanced to or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other obligations issued under the authority of Section 403.9 or 403.12 of the Code, incurred by the City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal Plan for the Project Area. Ordinance means Ordinance No. 99-3879 of the City, under which the taxes levied on the taxable property in the Project Area shall be divided and a portion paid into the Northgate Corporate Park Urban Renewal Area Tax Increment Revenue Fund. 4 Proiect shall mean the construction and operation of the Minimum Improvements on the Development Property, as described in this Agreement. State means the State ofIowa. Tax Increments means the property tax revenues with respect to the Minimum Improvements that are divided and made available to the City for deposit in the Northgate Corporate Park Urban Renewal Tax Increment Revenue Fund under the provisions of Section 403.19 of the Code ofIowa and the Ordinance. Termination Date means the date of termination of this Agreement, as established in Section 12.8 of this Agreement. Unavoidable Delavs means delays resulting from acts or occurrences outside the reasonable control of the party claiming the delay including but not limited to storms, floods, fires, explosions or other casualty losses, unusual weather conditions, strikes, boycotts, lockouts or other labor disputes, delays in transportation or delivery of material or equipment, litigation commenced by third parties, or the acts of any federal, State or local governmental unit (other than the City). Urban Renewal Plan means the Urban Renewal Plan, as amended, approved in respect of the Northgate Corporate Park Urban Renewal Area, described in the preambles hereof. ARTICLE II. REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of the City. The City makes the following representations and warranties: (a) The City is a municipal corporation and political subdivision organized under the provisions of the Constitution and the laws of the State and has the power to enter into this Agreement and carry out its obligations hereunder. (b) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a breach of, the terms, conditions or provisions of any contractual restriction, evidence of 5 indebtedness, agreement or instrument of whatever nature to which the City is now a party or by which it is bound, nor do they constitute a default under any of the foregoing. Section 2.2. Covenants. Obligations. Representations and Warranties of Developer. The Developer makes the following representations and warranties: (a) Developer is a corporation duly organized and validly existing under the laws of the State of Nevada and has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as presently proposed to be conducted, and to enter into and perform its obligations under the Agreement. (b) This Agreement has been duly and validly authorized, executed and delivered by the Developer and, assuming due authorization, execution and delivery by the City, is in full force and effect and is a valid and legally binding instrument of the Developer enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting creditors' rights generally. (c) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented by, limited by, in conflict with, or result in a violation or breach of, the terms, conditions or provisions of the certificate of incorporation and bylaws of Developer or its parents or subsidiaries of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it or its property is bound, nor do they constitute a default under any of the foregoing. (d) There are no actions, suits or proceedings pending or threatened against or affecting the Developer in any court or before any arbitrator or before or by any governmental body in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business (present or prospective), financial position or results of operations of the Developer or which in any manner raises any questions affecting the validity of the Agreement or the Developer's ability to perform its obligations under this Agreement. (e) Developer has not received any notice from any local, State or federal official that the activities of Developer with respect to the Development Property mayor will be in violation of any environmental law or regulation (other than those notices, if any, of which the City has previously been notified in writing). Developer is not currently aware 6 of any State or federal claim filed or planned to be filed by any party relating to any violation of any local, State or federal environmental law, regulation or review procedure applicable to the Development Property, and Developer is not currently aware of any violation of any local, State or federal environmental law, regulation or review procedure which would give any person a valid claim under any State or federal environmental statute with respect to said Development property. (f) Developer will fully cooperate with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction and operation of the Minimum Improvements. (g) Developer would not undertake its obligations under this Agreement without the payment by the City of the Economic Development Grants being made to the Developer pursuant to this Agreement. (h) The Developer will cause the MinimUm Improvements to be constructed in accordance with the terms of this Agreement and when constructed will comply with the Urban Renewal Plan and all local, State and federal laws and regulations, except for variances that may be necessary to construct the Minimum Improvements. (i) The Developer will use its best efforts to obtain, or cause to be obtained, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and federal laws and regulations which must be obtained or met in connection with the Project. G) The construction of the Minimum Improvements requires a total capital investment of not less than 4,500,000, which shall be verified via the construction contract. ARTICLE Ill. DEVELOPMENT AND AND JOB CREATION REQUIREMENT Section 3.1. Minimum Improvements and Business Commencement Date. The Developer agrees to complete Minimum Improvements generally consisting of the construction of a 20,000 square foot building for its biologic material repository building with related laboratory and offices on the Development Property, as more fully described on Exhibit B hereto. The construction of the Minimum Improvements must be 7 completed by June 1,2008 and Developer must commence business operations by July 1, 2008. Section 3.2. Job Creation Developer will create thirty-six (36) Full Time Equivalent employment (FTE) units by the end of the third year of operation (June 30, 2011) that will pay an hourly wage equal to at least $14.70 per hour. In addition, Developer will provide these positions with competitive benefits as outlined by the Developer in its CEBA application to the Iowa Department of Economic Development. An FTE unit means the equivalent of employment of one (1) person for eight (8) hours per day for a five (5) day, forty (40) hour workweek for fifty-two (52) weeks per year. Section 3.3. Certificate of Completion. Upon written request of the Developer after issuance of an occupancy permit for the Minimum Improvements, the City will furnish the Developer with a Certificate of Completion in recordable form, in substantially the form set forth in Exhibit C attached hereto. Such Certificate of Completion shall be a conclusive determination of satisfactory termination of the covenants and conditions of this Agreement with respect to the obligations of the Developer to construct the Minimum Improvements. A Certificate of Completion may be recorded in the proper office for the recordation of deeds and other instruments pertaining to the Development Property at the Developer's sole expense. If the City shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section 3.3, the City shall within twenty (20) calendar days after written request from the Developer, provide the Developer with a written statement indicating with adequate detail, in what respects the Developer has failed to complete the Minimum Improvements in accordance with the provisions of this Agreement, or is otherwise in default under the terms of this Agreement, and what measures or acts will be necessary in the opinion ofthe City, to obtain such Certificate of Completion. ARTICLE IV. RESERVED ARTICLE V. INSURANCE Section 5.1. Insurance Requirements. 8 (a) Upon completion of construction of the Minimum Improvements and at all times prior to the Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of the City shall furnish proof of the payment of premiums on) insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured through property policies by similar businesses, including (without limitation the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the Minimum Improvements, but any such policy may have a deductible amount of not more than $250,000. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior consent thereto in writing by the City. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be determined from time to time at the request of the City, but not more frequently than once every three years, by an insurance consultant or insurer selected and paid for by the Developer and approved by the City. (ii) Comprehensive general public liability insurance, including personal injury liability for injuries to persons and/or property, including any injuries resulting from the operation of automobiles or other motorized vehicles on or about the Development Property, in the minimum amount for each occurrence and for each year of $1,000,000. (iii) Such other insurance, including worker's compensation insurance respecting all employees ofthe Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any part of its liability for worker's compensation. (b) All insurance required by this Article V to be provided prior to the Termination Date shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State ofIowa to assume the risks covered thereby. The Developer will deposit annually with the City copies of policies evidencing all such insurance, or a certificate or certificates or binders 9 _~___~.___"____.._.__m___~_______""_____~ ,-_._____.__..__. --,-....-.-..----.,...-,,-.~.... , -- ---.-..-.--------~...--.-----.-,-".-.,-. of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V, each policy shall contai.n a provision that the insurer shall not cancel or modify it without giving written notice to the Developer and the City at least thirty (30) days before the cancellation or modification becomes effective. Not less than fifteen (IS) days prior to the expiration of any policy, the Developer shall furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another policy conforming to the provisions of this Article V, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, the Developer may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event the Developer shall deposit with the City a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. (c) The Developer agrees to notify the City immediately in the case of damage exceeding $250,000 in amount to, or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. Net Proceeds of any such insurance shall be paid directly to the Developer, and the Developer will forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage received by the Developer to the payment or reimbursement of the costs thereof. (d) The Developer shall complete the repair, reconstruction and restoration of the Minimum Improvements, whether or not the Net Proceeds of insurance received by the Developer for such purposes are sufficient. ARTICLE VI. COVENANTs OF THE DEVELOPER Section 6.1. Maintenance of Properties. The Developer will maintain, preserve and keep its properties (whether owned in fee or a leasehold interest), including but not limited to the Minimum Improvements, in good repair and working order, ordinary wear and tear excepted, and from time to time will make all necessary repairs, replacements, renewals and additions. Section 6.2. Maintenance of Records. The Developer will keep at all times proper books of record and account in which full, true and correct entries will be made of all dealings and transactions of or in relation to the business and affairs of the Developer in 10 accordance with generally accepted accounting principles, consistently applied throughout the period involved, and the Developer will provide reasonable protection against loss or damage to such books of record and account. Section 6.3. . Compliance with Laws. The Developer will comply with all laws, rules and regulations relating to the Minimum Improvements, other than laws, rules and regulations the failure to comply with which or the sanctions and penalties resulting therefrom, would not have a material adverse effect on the business, property, operations, or condition, financial or otherwise, of the Developer. Section 6.4. Non-Discrimination. In operating the Minimum Improvements, the Developer shall not discriminate against any applicant, employee or tenant because of race, creed, color, religion, sex, national origin, sexual orientation, age, disability, marital status or gender identity. The Developer shall ensure that applicants, employees and tenants are considered and are treated without regard to their race, creed, color, religion, sex, national origin, sexual orientation, age, disability, marital status or gender identity. Section 6.5. Continued Operation and Emplovment. Upon the signing of the Agreement, the Developer agrees that it will operate a biologic material repository building with related laboratory and offices by July 1,2008, and employ 36 full time equivalent employees by the end of the third year of operation, June 30, 2011, and will continue operation of this building and retain the 36 full time equivalent employees until at least the Termination Date set forth in Section 12.8 thereof. Section 6.6. Annual Certification. To assist the City in monitoring the performance of the Developer hereunder, a duly authorized officer of the Developer shall annually provide to the City: (a) a written statement from the County Auditor showing the amount of Tax Increments (as defined in Section l.l of this Agreement) in respect of the Minimum Improvements (excluding increases in assessed or actual value due to market factors) for the prior fiscal year; (b) proof that all ad valorem taxes on the Development Property have been paid for the prior fiscal year; (c) documentation in the form of payroll records evidencing compliance with the jobs creation and retention portion of this agreement outlined in sections 3.2 and 6.5; and (d) certification that such officer has re- examined the terms and provisions of this Agreement and that at the date of such certificate, and during the preceding twelve (12) months, the Developer is not, or was not, in default in the fulfillment of any ofthe terms and conditions of this Agreement and that no Event of Default (or event which, with the lapse of time or the giving of notice, or both, would become an Event of Default) is occurring or has occurred as of the date of such certificate or during such period, or if the signer is aware of any such default, event II or Event of Default, said officer shall disclose in such statement the nature thereof, its period of existence and what action, if any, has been taken or is proposed to be taken with respect thereto. Such statement, proof and certificate shall be provided not later than November 1 of each year, commencing November 1, 2008, and ending on November 1, 2014 both dates inclusive. Upon certification by the Developer on or before November I, 2008, the City will certify to establish a base value as of January 1, 2007 for calculation of the tax increments resulting from the minimum improvements. ARTICLE VII. ASSIGNMENT AND TRANSFER Section 7.1. Status of the Developer; Transfer ofSubstantiallv All Assets. As security for the obligations of the Developer under this Agreement, the Developer represents and agrees that, prior to the issuance of the Certificate of Completion and prior to the Termination Date, the Developer will maintain existence as an adequately capitalized corporation and will not wind up or otherwise dispose of the Development Property and Minimum Improvements, or assign its interest in this Agreement to any other party unless (i) the transferee partnership, corporation, limited liability company or individual assumes in writing all ofthe obligations of the Developer under this Agreement and (ii) the City consents thereto in writing in advance thereof. Notwithstanding the foregoing, however, or any other provisions ofthis Agreement, (a) Developer may transfer its interest in and to this Agreement to any affiliate which is controlled by or under common control with or controls Developer or to any entity that acquires all or substantially all of the assets of the Developer or to any corporate successor to Developer by consolidation, merger, or otherwise, and (b) the Developer may (1) pledge any and/or all of its assets as security for any financing of the Minimum Improvements; (2) assign its rights under this Agreement to a third party, provided such assignment shall not release the Developer of its obligations hereunder, and the City agrees that Developer may assign its interest under this Agreement for such purpose; and (3) the Developer may transfer its ownership interest to a third-party under an arrangement whereby Developer will lease the Development Property back and continue to satisfy the requirements of this Agreement. ARTICLE VIII. ECONOMIC DEVELOPMENT GRANTS Section 8.1. Economic Development Grants. (a) For and in consideration of the obligations being assumed by the Developer hereunder, and in furtherance of the goals and objectives of the Urban Renewal Plan for the Project Area and the Urban Renewal Act, the City agrees to provide up to seven annual grants to the Developer, subject to the 12 Developer having received a Certificate of Completion and being and remaining in compliance with the terms of this Agreement and subject to the terms of this Article VIII. The annual grants shall commence on June 1,2010 and end on June 1,2016, and the aggregate total of all grants shall not exceed $1,200,000. All annual grants shall be equal to one hundred percent (100%) per fiscal year of the Tax Increments collected by the City with respect to the Minimum Improvements on the Development Property pursuant to Section 403.9 of the Urban Renewal Act and under the terms of the Ordinance (without regard to any averaging that may otherwise be utilized under Section 403.19(6) and excluding any interest that may accrue thereon prior to payment to the Developer) during the preceding twelve-month period in respect of the Development Property and the Minimum Improvements, but subject to adjustment and conditions precedent as provided in this Article (such payments being referred to collectively as the "Economic Development Grants"). (b) The obligation of the City to make an Economic Development Grant to the Developer in any year as specified above shall be subject to and conditioned upon the timely filing by the Developer of all previous annual statements, proofs and certifications required under Section 6.6 hereof and the City Manager's approval thereof. Beginning with the November 1,2008 certification, if the Developer's annual statement, proof and certification is timely filed and contains the information required under Section 6.6 and the City Manager approves of the same, the City shall certify to the County prior to December 1 of that year its request for the available Tax Increments resulting from the assessments imposed by the County as of January 1 of that year, to be collected by the City as taxes are paid during the following fiscal year and which shall thereafter be disbursed to the Developer on June I of the following fiscal year. (For example, if the Developer and the City each so certify on November and December 2008, respectively, the first Economic Development Grant would be paid to the Developer on June 1,2010). (c) In the event that the annual statement, proof or certificate required to be delivered by the Developer under Section 6.6 is not delivered to the City by November I of any year, the Developer recognizes and agrees that the City may have insufficient time to review and approve the same and certify its request for Tax Increments to the County and that, as a result, no Economic Development Grant may be made to the Developer in respect thereof for the following fiscal year. . (d) The total, aggregate amount of all Economic Development Grants under this Agreement shall not exceed $1,200,000. Each Economic Development Grant shall be equal to one hundred percent (100%) of all Tax Increments collected per fiscal year in respect of the assessments imposed on the Development Property and . 13 Minimum Improvements as of January I following the first certification date (November 1,2008), and on January I of each of the following six (6) years, provided the total, aggregate sum of all such Economic Development Grants equals no more $1,200,000. The final grant shall be adjusted, if necessary, if payment of 100% of Tax Increments for that grant would result in total, aggregate Economic Development Grants in an amount exceeding $1,200,000. Such Economic Development Grants shall at all times be subject to termination in accordance with the terms of this Article VIII and Article X. It is recognized by all parties that the total aggregate amount set fourth above is a maximum amount only and that the actual payment amounts will be determined after the Minimum Improvements are completed and the valuations of said Improvements have been determined by the City Assessor. (e) In the event that any certificate filed by the Developer under Section 6.6 or other information available to the City discloses the existence or prior occurrence of an Event of Default that was not cured or cannot reasonably be cured under the provisions of Section 10.2 (or an event that, with the passage of time or giving of notice, or both, would become an Event of Default that cannot reasonably be cured under the provisions of Section 10.2), the City shall have no obligation thereafter to make any further payments to the Developer in respect of the Economic Development Grants and may proceed to take one or more of the actions described in Section 10.2 hereof. Section 8.2. Source of Grant Funds Limited. (a) The Economic Development Grants shall be payable from and secured solely and only by amounts deposited and held in the NA TroNA!: GENECULAR INSTITUTE. INC. - TIF Account of the City. The City hereby covenants and agrees to maintain the Ordinance in force during the term hereof and to apply the incremental taxes collected in respect of the Minimum Improvements and allocated to the NATIONAL GENECULAR INSTITUTE. INC. - TIF Account to pay the Economic Development Grants, as and to the extent set forth in Section 8.1 hereof. The Economic Development Grants shall not be payable in any manner by other tax increment revenues or by general taxation or from any other City funds. (b) Notwithstanding the provisions of Section 8.1 hereof, the City shall have no obligation to make an Economic Development Grant to the Developer if at any time during the term hereof the City receives an opinion of its legal counsel to the effect that the use of Tax Increments resulting from the Minimum Improvements to fund an Economic Development Grant to the Developer, as contemplated under said Section 8.1, is not authorized or otherwise an appropriate project activity permitted to be undertaken by the City under the Urban Renewal Act or other applicable provisions of the Code, as then constituted, or under a controlling decision of an Iowa court having jurisdiction over 14 the subject matter hereof. Upon receipt of such an opinion, the City shall promptly forward a copy of the same to the Developer. If the circumstances or legal constraints giving rise to the opinion continue for a period during which two (2) Economic Development Grants would otherwise have been paid to the Developer under the terms of Section 8.1, the City may terminate this Agreement, without penalty or other liability to the Developer, by written notice to the Developer. (c) The City makes no representation with respect to the amounts that may finally be paid to the Developer as Economic Development Grants, and under no circumstances shall the City in any manner be liable to the Developer so long as the City timely applies the Tax Increments actually collected and held in the NATIONAL GENECULAR INSTITUTE. INC. - TIF Account (regardless of the amounts thereof) to the payment of the Economic Development Grants to the Developer, as and to the extent described in this Article. Section 8.3. Use of Other Tax Increments. Subject to this Article VIII, the City shall be free to use any and all Tax Increments collected in respect of increases in valuation on the Development Property unrelated to construction of the Minimum Improvements (Le. increases in assessed or actual value due to market factors) any other properties within the Project Area, or any available Tax Increments resulting from the suspension or termination of the Economic Development Grants under Section 8.1 hereof, for any purpose for which the Tax Increments may lawfully be used pursuant to the provisions of the Urban Renewal Act, and the City shall have no obligations to the Developer with respect to the use thereof. ARTICLE IX. INDEMNIFICATION Section 9.1. Release and Indemnification Covenants. (a) The Developer releases the City and the governing body members, officers, agents, servants and employees thereof (hereinafter, for purposes of this Article IX, the "indemnified parties") from, covenants and agrees that the indemnified parties shall not be liable for, and agrees to indemnify, defend and hold harmless the indemnified parties against, any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. (b) Except for any willful misrepresentation or any willful or wanton misconduct or any unlawful act of the indemnified parties, the Developer agrees to protect and defend 15 the indemnified parties, now or forever, and further agree to hold the indemnified parties harmless, from any claim, demand, suit, action or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from (i) any violation of any agreement or condition of this Agreement (except with respect to any suit, action, demand or other proceeding brought by the Developer against the City to enforce his rights under this Agreement), (ii) the acquisition and condition of the Development Property and the construction, installation, ownership, and operation of the Minimum Improvements or (iii) any hazardous substance or environmental contamination located in or on the Development Property relating to conditions caused by Developer after the effective date of this Agreement. (c) The indemnified parties shall not be liable for any damage or injury to the persons or property of the Developer or its officers, agents, servants or employees or any other person who may be about the Minimum Improvements due to any act of negligence of any person, other than any act of negligence on the part of any such indemnified party or its officers, agents, servants or employees. (d) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City, and not of any governing body member, officer, agent, servant or employee of the City in the individual capacity thereof. (e) The provisions of this Article IX shall survive the termination of this Agreement. ARTICLE X. DEFAULT AND REMEDIES Section 10.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, anyone or more of the following events: (a) Failure by the Developer to cause the construction of the Minimum Improvements to be commenced, completed and/or operated pursuant to the terms, conditions and limitations of Article III of this Agreement; (b) Transfer of any interest in this Agreement or the assets of the Developer in violation of the provisions of Article VII of this Agreement; 16 (c) Failure of the Developer to provide and maintain the requisite jobs outlined in Section 3.2 and 6.5. (d) Failure by the Developer to substantially observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement; (e) The holder of any Mortgage on the Development Property, or any improvements thereon, or any portion thereof, commences foreclosure proceedings as a result of any default under the applicable Mortgage documents; (f) If the Developer shall: (A) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar federal or state law; or (B) make an assigmnent for the benefit of its creditors; or (C) admit in writing its inability to pay its debts generally as they become due; or (D) be adjudicated a bankrupt or insolvent; or if a petition or answer proposing the adjudication of the Developer as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee or liquidator ofthe Developer or the Minimum Improvements, or part thereof, shall be appointed in any proceedings brought against the Developer, and shall not be discharged within ninety (90) days after such appointment, or if the Developer shall consent to or acquiesce in such appointment; or (g) Any representation or warranty made by the Developer in this Agreement, or made by the Developer in any written statement or certificate furnished by the Developer pursuant to this Agreement, shall prove to have been incorrect, incomplete or misleading in any material respect on or as of the date of the issuance or making thereof. Section 10.2. Remedies on Default. Whenever any Event of DefauIt referred to in Section 10.1 of this Agreement occurs and is continuing, the City, as specified below, may take anyone or more of the following actions after (except in the case of an Event of 17 Default under subsections (e) or (t) of said Section 10.1 in which case action may be taken immediately) the giving of thirty (30) days' written notice by the City to the Developer and the holder of the First Mortgage (but only to the extent the City has been informed in writing of the existence of a First Mortgage and been provided with the address of the holder thereot) of the Event of Default, but only if the Event of Default has not been cured within said thirty (30) days, or if the Event of Default cannot reasonably be cured within thirty (30) days and the Developer does not provide assurances reasonably satisfactory to the City that the Event of Default will be cured as soon as reasonably possible: (a) The City may suspend its performance under this Agreement until it receives assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under this Agreement; (b) The City may terminate this Agreement; (c) The City may withhold the Certificate of Completion; (d) The City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the Developer, as the case may be, under this Agreement; or (e) The City shall be entitled to recover from the Developer, and the Developer shall re-pay to the City, an amount equal to the most recent Economic Development Grant previously made to the Developer under Article VIII hereof, and the City may take any action, including any legal action it deems necessary, to recover such amount from the Developer. Section 10.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 18 _"____.,_____.__________._____~..____._______....___~'_.._,_~____.__~,_._u_"_....._...,___~________,.,_ ,_.._____________.____.". Section lOA. No Implied Waiver. In the event any agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall.not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 10.5. Agreement to Pay Attornevs' Fees and Expenses. Whenever any Event of Default occurs and the party who is not in default shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the party in default herein contained, the party in default agrees that it shall, on demand therefor, pay to the party not in default the reasonable fees of such attorneys and such other expenses as may be reasonably and appropriately incurred by the party not in default in connection therewith. . ARTICLE XI. OPTION TO TERMINATE AGREEMENT Section 11.1. Option to Terminate. This Agreement may be terminated by the Developer if (i) the Developer is in compliance with all material terms of this Agreement and no Event of Default has occurred which has not been cured in accordance with the provisions of Section 10.2 hereof; and (ii) the City fails to comply with any material term of this Agreement, and, after written notice by the Developer of such failure, the City has failed to cure such noncompliance within ninety (90) days of receipt of such notice, or, if such noncompliance cannot reasonably be cured by the City within ninety (90) days of receipt of such notice, the City has not provided assurances reasonably satisfactory to the Developer that such noncompliance will be cured as soon as reasonably possible. Section 11.2. Effect of Termination. If this Agreement is terminated pursuant to this Article XI, this Agreement shall be from such date forward null and void and of no further effect; provided, however, that the City's rights to indemnification under Article IX hereof shall in all events survive and provided further that the termination of this Agreement shall not affect the rights of any party to institute any action, claim or demand for damages suffered as a result of breach or default of the terms of this Agreement by another party, or to recover amounts which had accrued and become due and payable as of the date of such termination. In any such action, the prevailing party shall be entitled to recover its reasonable attorneys fees and related expenses incurred in connection therewith (but only, in the case of the City, to the extent permitted by applicable law). Upon termination of this Agreement pursuant to this Article XI, the Developer shall be 19 free to proceed with the construction and operation of the Minimum Improvements at its own expense and without regard to the provisions of this Agreement. ARTICLE XII. MISCELLANEOUS Section 12.1. Conflict ofInterest. The Developer represents and warrants that, to its best knowledge and belief after due inquiry, no officer or employee of the City, or its designees or agents, nor any consultant or member of the governing body of the City, and no other public official of the City who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decision-making process or gain insider information with regard to the Project, has had or shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work or services to be performed in connection with the Project, or in any activity, or benefit therefrom, which is part of the Project at any time during or after such person's tenure. Section 12.2. Notices and Demands. A notice, demand or other communication under this Agreement by any party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and (a) In the case of the Developer, is addressed or delivered personally to the Developer at 660 Newport Center Drive, #900, Newport Beach, CA 92660. (b) In the case of the City, is addressed to or delivered personally to the City at Civic Center, 410 E. Washington Street, Iowa City, Iowa, 52240, Attn: City Manager; or to such other designated individual or to such other address as any party shall have furnished to the other in writing in accordance herewith. Section 12.3. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.4. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 20 Section 12.6. Entire Agreement. This Agreement and the exhibits hereto reflect the entire agreement between the parties regarding the subject matter hereof, and supersedes and replaces all prior agreements, negotiations or discussions, whether oral or written. This Agreement may not be amended except by a subsequent writing signed by all parties hereto. Section 12.7. Successors and Assigns. This Agreement is intended to and shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 12.8. Termination Date. This Agreement shall terminate and be of no further force or effect on and after December 31,2015. IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its name and behalf by its Mayor and its seal to be hereunto duly affixed and attested by its City Clerk, and the Developer has caused this Agreement to be duly executed in its name and on behalf of National Genecular Institute, Inc. (SEAL) CITY ~ITY' IO~ A By: LJ ~ Mayor ATTEST: By: ~h~~ ~ ~~ Ci lerk By: ATTEST: BY:~ r: p. j3~'AC(S 7)~v.Je,.w\{tit1e) 21 STATE OF IOWA ) ) ss COUNTY OF1Q,1/I\lSoi\) ) On this 17+- day of O'-T'f)E3Efl- , 2006, before me a Notary Public in and for said County, personally appeared Ross Wilburn and Marian Karr to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City ofIowa City, Iowa, a Municipal Corporation, created and existing under the laws of the State ofIowa, and that the seal affixed to the foregoing instrument is the seal of said Municipal Corporation, and that said instrument was signed and sealed on behalf of said Municipal Corporation by authority and resolution of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed, ~N '10 SONORAE FORT o ~ Commission Number 159791 . . My Commission . o 3 - 7-0 -S"."k....t.. ~ Notary Public in and for Johnson County, Iowa STATEOF CAUFORNIA COUNTY OF ORANG& ) ) SS ) On this , 1 i4- day of 0 c. .J.vl, CIV , 2006, before me the undersigned, a Notary Public in and for said County, in said State, personally appeared --ro9. 0 (! SA? I U and 1113 p..(l.7 ~lU A (J P , to me personally known, who, being by me duly sworn, did say that they are the -'(,~ i4~~ l1c..J Dt.v and PI-C)! JvA-- of National Genecular Institute, Inc., and that said instrument was signed on behalf of said corp9fation under the authority of its Board of Directors; and that the said Ik',,; t'1!tO /3&,/ Ow and ?1i6JIJJ , as such corporate officers 7 acknowledged the execution of said instrument to be the untary act and deed of said corporation, by them voluntarily e ed. otary P ,. and for t:fJ/tA1f/~ (fJo,;~ (~(.." ~ r-----------~ THOMAS G. KNAACK @'.'....CommbSlon#1501086 i ,-. Notary Public. COIllo/nla ~ ~ .', Orange County i ,... ~:o:m:...Ex~_~l~~ - - 22 EXHIBIT A DEVELOPMENT PROPERTY The Development Property is described as consisting of all that certain parcel or parcels of land located in the City of Iowa City, County of Johnson, State of Iowa, more particularly described as follows: LEGAL DESCRIPTION Lot 9, Northgate Corporate Park, Iowa City, Iowa 23 EXHIBIT B MINIMUM IMPROVEMENTS AND BUSINESS COMMENCEMENT DATE The Developer agrees to complete Minimum Improvements generally consisting of the construction of a 20,000 square foot building for its biologic material repository building with related laboratory and offices on the Development Property. The construction of the Minimum Improvements must be completed by June 1,2008 and Developer must commence business operations by July 1,2008. 24 EXHIBIT C CERTIFICATE OF COMPLETION WHEREAS, the City ofIowa City, Iowa (the "City") and NATIONAL GENECULAR INSTITUTE, INC. having an office for the transaction of business at 660 Newport Center Drive, #900, Newport Beach, CA 92660 (the "Developer"), did on or about the day of , 2006, make, execute and deliver, each to the other, an Agreement for Private Redevelopment (the "Agreement"), wherein and whereby the Developer agreed, in accordance with the terms of the Agreement, to develop and maintain certain real property located within the City and as more particularly described as follows: LEGAL DESCRIPTION Lot 9, Northgate Corporate Park, Iowa City, Iowa WHEREAS, the Agreement incorporated and contained certain covenants and restrictions with respect to the development of the Development Property, and obligated the Developer to construct certain Minimum Improvements (as defined therein) in accordance with the Agreement; and WHEREAS, the Developer has to the present date performed said covenants and conditions insofar as they relate to the construction of said Minimum Improvements in a manner deemed by the City to be in conformance with the approved building plans to permit the execution and recording of this certification. NOW, THEREFORE, pursuant to Section 3.2 of the Agreement, this is to certify that all covenants and conditions of the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct the Minimum Improvements on the Development Property have been completed and performed by the Developer and are hereby released absolutely and forever terminated insofar as they apply to the land described herein. The County Recorder of Johnson County is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions of said Agreement with respect to the construction of the Minimum Improvements on the Development Property. 25 All other provisions of the Agreement shall otherwise remain in full force and effect until tennination as provided therein. (SEAL) CITY OF IOWA CITY, IOWA By: Mayor ATTEST: By: City Clerk STATE OF IOWA ) ) SS COUNTY OF JOHNSON ) On this day of , 2006, before me a Notary Public in and for said County, personally appeared Ross Wilburn and Marian Karr, to me personally known, who being duly sworn, did say that they are the Mayor and City Clerk, respectively of the City ofIowa City, Iowa, a Municipal Corporation, created and existing under the laws of the State of Iowa, and that the seal affixed to the foregoing instrument is the seal of said Municipal Corporation, and that said instrument was signed and sealed on behalf of said Municipal Corporation by authority and resolution of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said Municipal Corporation by it voluntarily executed. Notary Public in and for Johnson County, Iowa C -26 ~~ en Prepared by: Wendy Ford, Economic Development, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5248 RESOLUTION NO. 06-331 CONSIDER A RESOLUTION AUTHORIZING APPLICATION FOR FINANCIAL ASSISTANCE FROM THE IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT'S COMMUNITY ECONOMIC BETTERMENT ACCOUNT (CEBA) FOR FUNDS TO ASSIST NATIONAL GENECULAR INSTITUTE, INC. WHEREAS, National Genecular Institute, Inc. seeks funds from the State of Iowa's High Quality Jobs Program and Community Economic Betterment Account (CEBA); and WHEREAS, it is in the public interest to use State funding to encourage economic development in Iowa City, Iowa; and WHEREAS, National Genecular Institute, Inc. seeks to build facilities and expand their business on land located in the Northgate Corporate Park, an area designated a Tax Increment Financing District; and WHEREAS, the City of Iowa City desires to be a co-sponsor and apply for and obtain $655,000 in CEBA funding from the Iowa Department of Economic Development in the form of a grant to assist National Genecular Institute, Inc.; and WHEREAS, the CEBA program requires a local match and the State of Iowa's award of CEBA funds to this project is contingent upon the investment of local financial assistance; and WHEREAS, in order to obtain a competitive CEBA award, the City Council finds that the public interest will be served by providing its local match and has approved an economic development grant in the form of tax increment finance rebates for seven years, with an aggregate total not to exceed $1,200,000, which was approved by Resolution No. 06- 330 ; and WHEREAS, the City has the authority to provide financial assistance for the promotion of economic development. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. It is in the public interest to encourage economic development by the City of Iowa City, as co-sponsor, and National Genecular Institute, Inc., as the business, applying for CEBA funding through the Iowa Department of Economic Development. 2. The Mayor and City Clerk are hereby authorized to make formal application for financial assistance to the Iowa Department of Economic Development for Community Economic Betterment Account funds in the amount of $655,000. 3. The City Manager is hereby authorized to take any additional actions required by the Iowa Department of Economic Development and the CEBA program in order to secure said funding. -~----",--_._---,-~----'-"-------~~-"-~_."-'.'---'---.--.. Resolution No. 06-111 Page 2 Passed and approved this 17th day of ATTEST: ))1r;.;~~ k. 9!~ CITY ERK s:~data on citynt)\pcd\ecodevlngilresolution ngi ceba ~u1t MAYOR - Resolution No. Page 3 06-331 It was moved by Champion and seconded by adopted, and upon roll call there were: Correia the Resolution be AYES: NAYS: x x x x x X X ABSENT: Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn IOWA life I changing- Mike Blouin, Director Iowa Department of Economic Development Application for Financial Assistance Section A - Applicant & Project Information Business Development Division Iowa Department of Economic Development 200 East Grand Avenue Des Moines, Iowa 50309 www.iowalifechanal.o.9.com 3/17/2006 Instructions 1. All applicants shall complete Section A of the Application for Financial Assistance and attach only those section(s) for the program(s) to which the applicant is applying. Prooram Community Economic Bettermeant Account (CEBA) Enterprise Zone Program (EZ) High Quality Job Creation Program (HQJC) Entrepreneurial Ventures Assistance Program (EVA) Value Added Agricultural Products & Processes Financial Assistance Program (VAAPFAP) Section F Economic Development Set-Aside Program (EDSA) Section G 2. Please visit the IDEO Web site, http://www.iowalifechanoinq.com/applications/bus dev/index.html or contact IDEO at (515) 242-4819 to see ifthis version ofthe application is still current. 3. Before filling out this application form, please read all applicable sections of the 2005 Iowa Code and Iowa Administrative Code (rules). http://www4.leQis.state.ia.us/IAChtml/261.htm 4. Only typed or comouter-llenerated applications will be accepted and reviewed. Any material change to the format, questions, or wording of questions presented in this application, will render the application invalid and it will not be accepted. 5. Complete the applicable sections of the application fully; if questions are left unanswered or required attachments are not submitted, an explanation must be included. 6. Use clear and concise language. Attachments should only be used when requested or as supporting documentation. 7. Any inaccurate information of a significant nature may disqualify the application from consideration. 8. Upon completion of the application, please submit the following to the Business Finance Team at IDEO: . The original, signed application form and all required attachments . One copy of the application form and all required attachments from which additional copies can easilv be made. If electronic copies of the application and required attachments are available, please e-mail these documents to businessfinance@iowalifechanqino.com in addition to submitting the original plus one copy. Business Finance Team Iowa Department of Economic Development 200 East Grand Avenue Des Moines IA 50309 Download and Complete Section B Section C Section 0 Section E Application Due Dates IDEO Board Meetina ADii/ication Due Date Aori120,2006 March 27, 2006 Mav 18, 2006 Aori124,2006 June 15, 2006 Mav 22, 2006 Julv 20, 2006 June 26, 2006 Auoust 17, 2006 July 24, 2006 Seotember 21, 2006 -c~ Auqust 28, 2006 October 19, 2006 Seotember 25, 2006 November 16, 2006 October 23, 2006 December 21, 2006 November 27, 2006 . EVA applications will be acted upon every other month starting in March. Section A - Applicant & Project Information 2 Public Records Policies Information Submitted to IDEO. The Iowa Department of Economic Development (IDEO) is subject to the Open Records law (Iowa Code, Chapter 22). Treatment of infonnation submitted to IDEO in this application is governed by the provisions of the Open Records law. All public records are available for public inspection. Some public records are considered confidential and will not be disclosed to the public unless ordered by a court, the lawful custodian of the record, or by another person duly authorized to release the infonnation. Confidential Records. IDEO automatically treats the following records as confidential and they are withheld from public disclosure: . Tax Records . Quarterty Iowa Employer's Contribution and Payroll Report prepared for the Iowa Workforce Development Department . Payroll Registers . Business Financial Statements and Projections . Personal Financial Statements Other infonnation supplied to IDEO as part of this application may be treated as confidential under Iowa Code section 22.7. Following are the classifications of records which are recognized as confidential under Iowa law and which are most frequently applicable to business infonnation submitted to IDEO: . Trade secrets [Iowa Code ~22.7(3)] . Reports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose. [Iowa Code ~22.7(6)] . Infonnation on an industrial prospect with which the IDEO is currently negotiating. [Iowa Code ~22.7(8)] . Communications not required by law, rule or regulation made to IDEO by persons outside the government to the extent that IDEO could reasonably believe that those persons would be discouraged from making them to the Department if they were made available for general publiC examination. [Iowa Code ~22.7(18)] Information supplied to IDEO as part of this application that is material to the application and/or the state program to which the applicant is applying including, but not limited to the number and type of jobs to be created, wages for those jobs, employee benefit information, and project budget, are considered open records and will not be treated as confidential. Additional Information Available. Copies of Iowa's Open Record law and IDEO's administrative rules relating to public records are available from the Department upon request or at http://www.iowalifechanaina.com/downloads/chap 1690penrecords.doc. Section A - Applicant & Project Information 3 ADDUcant Information 1. Name of Business: National Genecular Institute Inc. Address: 660 Newport Center Drive #900 City, State & Zip Code: Newport Beach, CA 92660 Contact Person: Matt Nicosia Title: CEO Phone: 949-706-6400 Fax: 949-706-2241 SIC or NAICS Code: 20-1759687 Federal 10 Number: Does the Business file a consolidated tax return under a different tax 10 number? DYes If yes, please also provide that tax 10 number: X No Email: mnicosia@denmacia.com 2. 3. 4. Is the contact person listed above authorized to obligate the Business? X Yes If no, please provide the name and tiije of a company officer authorized to obligate the Business: DNo 5. If the application was prepared by someone other thim the contact person listed above, please complete the following: Name: Title: Organization: Address: City, State, & ZIP Code: Phone: Fax: Email: SDonsor Information Please review the following table to detenmine who needs to sponsor this application. Depending on the programs being applied for, more than one sponsor may be necessary. Pro ram CEBA EZ HQJC EVA VAAPFAP EDSA 1. Sponsor Organization: City of Coralville Official Contact (e.g. Mayor, Chairperson, etc.): Kelly Hayworth Title: City Administrator Address: 1512 7th Street City, State & ZIP Code: Coralville, Iowa 52241 Phone: 319-248-1700 Fax: 319-248-1894 E-mail: khavworth@ci.coralville.ia.us Sponsor II: Iowa City Official Contact Person: Wendy Ford Address: 410 East Washington Ave. City State & Zip: Iowa City, Iowa 52240 Phone (319) 356-5248 Fax: (319) 356-5217 Title: Economic Development Coordinator E-mail: Wendv-Ford@iowa-citv.org 2. If IDEO needs to contact the sponsor organization with questions, should we contact the person listed above? X Yes D No, please contact the following person: Section A - Applicant & Project Information 4 Certification & Release of Information I hereby give pennission to the Iowa Department of Economic Development (IDEO) to research the Business' history, make credit checks, contact the Business' financial Institutions, insurance carriers, and perfonn other related activities necessary for reasonable evaluation of this application. I also hereby authortze the Iowa Department of Revenue to provide to IDEO state tax infonnation pertinent to the Business' state income tax, sales and use tax, and state tax credijs claimed. I understand that all infonnation submitted to IDEO related to this application is subject to Iowa's Open Record Law (Iowa Code, Chapter 22). I understand this application is subject to final approval by IDEO and the Project may not be initiated until final approval is secured. (High Quality Job Creation Program applications may be submitted up to 12 months following the completion of the project.) I understand that IDEO reserves the right to negotiate the financial assistance. Furthermore, I am aware that financial assistance is not available until an agreement is executed within a reasonable time period following approval. I hereby certify that all representations, warranties, or statements made or furnished to IDEO in connection with this application are true and correct in an matenal respect I understand that it is a crtminal violation under Iowa law to engage in deception and knowingly make, or cause to be made, directly or indirectly, a false statement in writing for the purpose of procuring economic development assistance from a state agency or subdivision. For the Business: Signature Date Name and Title (typed or printed) :rz:o~st J ~ Signature ,- ~ O~t(.bpx 17 ?OOh Date Ross Wilburn. Mayor Name and Trtle (typed or printed) Please use the following if more than one sponsor is required. (For example, use this if a signature from the locai Enterprise Zone Commission is requi19d in addition 10 the signature from the Mayor of the sponsoring city.) Signature Date Name and Trtle (typed or printed) IDEO will not provide assistance in situations where it is detennined that any representation, warranty, or statement made in connection with this application is Incorrect, false, misleading or erroneous in any material respect. If assistance has already been provided prior to discovery of the incorrect, false, or misleading representation, IDEO may initiate legal action to recover incentives and assistance awarded to the Business. SectIon A - Applicant 8. Projecllnformatioo 5 Proiect Information 1. Provide a brief description and history of the Business. Include infonnation about the Business' products or services and its markets and/or customers. The National Genecular Instttute Inc. (NGI) was fonned November 2004 as a Nevada limited liability company. NGI is a fully owned R&D subsidiary of Dennacia Inc., a Califomia CoCorp that specializes in phannaceuticals and skin care for the anti aging markets. NGI was fonned with the idea of extending the quality and length of life, one cell at a time. This has become NGl's overarching Mission Statement. NGI has been fonned to advance biomedical genetic and anti-aging research by identifying and characterizing complex human genetic and environmental factors affecting aging and disease development and fonnulating products and therapies to target issues specific to the individual customer, both for prevention and treatment. In order to meet these goals, positive strategic alliances are critical. NGI has affiliated itself with the University of Iowa and is opening a research laboratory near the campus in furtherance of this collaboration. Our Chief Scientific officer, Dr. Tannin Fuja will direct our research efforts at the Iowa facility. In addttion, his position with the University will allow him to submit research grants to the National Institute of Health. These grants will not only dramatically raise the profile of our research, but the ability to fund our research with government grants has its own obvious advantages. Further, when innovation is realized, the company is ill equipped to bring that innovation to market. It has no means of commercializing its discovery. NGI has developed a cohesive scientific and business model which addresses these traditional weaknesses. It is the business design of NGI to focus, primarily, on those areas of research where there is both a scientific need and equally important marketable quality. This goal is achieved primarily through NGI's relationship with it's parent company Dennacia, Inc. Unlike the majority of research and development finns, NGI HAS a commercial outlet. Further because of Dennacia's strong influence in the areas of medical and phannaceutical sales, the companies are poised for a long tenn synergistic relationship whereby NGI's advances and innovations find themselves brought to market far more efficiently than its competitors. NGI has been organized so that as research goals are developed and defined, they are presented not only to the scientific adviSOry board, but the business advisory board as well. This allows the company to continue to employ its unparalleled scientific models and standards, while still achieving the business goals necessary to continue to drive innovation. Most scientific R&D companies have significant problems in generating revenues. Typically, R&D companies are viewed as a hole in the ground in which you throw money and hope something grows. With NGI, that is not the case. Because of its affiliation with Dennacia, NGI can commercialize its innovations and products and has a mature distribution chain already in place. As a team, NGI, and its parent, Dennacia create products and science that are useful and demanded in the market. Dennacia will be the marketing ann of discoveries born in NGI. Because NGI is affiliated with Dennacia there is an existing commercialization outlet for the products and licensing opportunities not available to its competitors. In addition to its mass distribution channels, Dennacia has over 2000 doctors to which it sells current products to and will be the first line of commercialization to add credibility and validity to the NGI products. This validation is critical as these products are moved from the doctor's offices and onto the shelves of phannacies and other mass distribution / retail outlets. The success of this dualistic approach to scientific innovation can be seen in the fact that NGI has already developed products and has been able to bring them to market and generate revenues. NGI's nano-silver and nano-zinc products are already in Dennacia products. Nano-silver is a strong anti-microbial and is a key ingredient in Dennacia's Acne Care line. Nano-zinc is a physical UV block. In the Dennacia MD line, the nano-zinc yields a 30 spf physical bloc, making that the strongest physical bloc available in a cosmetic. This is key because chemical blocs will irritate the skin and detract from the other healing aid properties of the product. Under the direction of Dr. Fuja, NGI has developed a novel wound repair system that utilizes molecular mechanisms of cellular regenerations and matrix remodeling. This product system is current being clinically tested for its demonstrable ability to promote heal and promote scar less healing utilizing stem cells. The product is about to begin clinical studies. NGI's business model has already thrust the company ahead of many of its competitors. Over time as new innovations and advancements are developed, NGI will have the ability to swiftly move products into the commercial stream and generate revenues more rapidly. Section A - Applicant & Proiect Information 6 2. Business Structure: o Cooperative o Partnership X Corporation OS-Corporation o Limited Liability Company o Sole Proprietorship o Not for Profit State of Incorporation: Nevada 3. Identify the Business' owners. Majority owner (88%) Dermacia, Inc. 660 Newport Center Drive, Suite 900 Newport Beach, CA 92660 Tel. (949) 706-6400 Fax (949) 706-2320 www.denmacia.net Does a woman, minority, or person with a disability own the Business? If yes, is the business certified as a Targeted Small Business? DYes DYes XNo o No 4. List the Business' Iowa Locations and the Current Number of Employees at each Location. This is a new business to Iowa 5. What is the Business' worldwide employment? (Please include employees of parent company, subsidiaries, and other affiliated entities in this figure.) NGI and Denmacia combine for over 50 employees domestically and internationally. Both companies are going through a major hiring phase. 6. Briefly describe the proposed project for which assistance is being sought. (Include project timeline with dates, facility size, infrastructure improvements, proposed products/services, any new markets, etc.) The project in Iowa consists of the development and building of a 55,000 sq. ft. state of the art research facility in the Oakdale Research Park (ORP), which is part of the Oakdale Campus of the University of Iowa. And, in a second location in Iowa City in the Northgate commercial and research park, a 20,000 sq. ft. facility. The second site will house NGI's biotech storage facility and related sciences. The site selected by NGI for the first building is in the ORP at the entrance of the ORP and will be across the street from the new University of Iowa Hygienic Laboratory. The vision of NGl's project is to develop, in partnership with the University, a facility which not only meets our needs now and well into the future (10+ years), but can be used in parlnership with the University. What has been agreed to between NGI and the University is to select a private developer who will be the builder and coordinate with the designer for the construction of this facility. The developer will be the owner of the property with the two primary tenants, University of Iowa who will occupy roughly 25,000 sq. ft.with an option on an additional 10,000 sq. ft. and NGI, who will build out 30,000 square feet. NGI's occupancy will begin at approximately 18,000 sq. ft. upon completion of the building and will occupy the full 30,000 before the end of the first year of occupancy. The facility becomes the anchor of the ORP and will be used to attract additional private research companies into the park, as well as be used to incubate University spin-off research companies as they grow from academia to the private sector. The University of Iowa is already recognized as one of the premiere scientific research universities in the nation. The development of the research park, which NGI is only a part of (albeit a large part) is only going to enhance that reputation. NGI is benefited from attracting other biotech research companies there as the collaboration between companies enhances synergy. The synergistic approach to research is a centerpiece of our short and long tenm strategic and scientific goals. The second facility will be built on land owned exclusively by NGI. Because of the storage requirements and the fact the bioteChnology cannot be moved after being established, this second facility is critical to the project. The early infonmation and estimates we have received for the costs of building the facility are as follows: Location I: Lot 1 in the ORP. (Map attached to Appendix A) This location will be directly across the street from the new Hygienic Laboratory. The location of the second facility is being finalized now. It will be located within a 10 mile radius of the ORP site. Section A - Applicant & Project Information 7 Size: NGI's occupancy at the ORP facility will be roughly 30,000 sq ft. and consist of 70% wet lab space and 30% office / clean room space. The space will be outfitted with necessary infrastructure to meet all city, state and federal codes for a biotechnology laboratory including: ventilation, safety eye wash stations, smoke detectors, fire alarms/sprinklers, restricted laboratory space that is not accessible to the public or to neighboring entities, etc. All office space should be wired for high-speed internet and telephone. High-speed intemet access and telephone should also be available in the laboratory at regular spacing (about every 200-500 feet). This space should contain plumbed water and drainage for functional laboratory work-bays. It should be plumbed with RO or distilled water. It should have plumbing for a laboratory ice-maker. The leased space should have multiple120 volt and 240V 60Hz outlets. The space should contain or at least have access to: conference/instruction rooms, clean space work stations sufficient to house 175 employees, break room, restroom facilities (best if with showers), and at least 17 management offices. The space should have a distinct reception area immediately accessible to the publiC upon entering the building that is entirely separate from the laboratory. It should be allowed that this receiving space be designed as a formal reception area exclusively for NGI. It would be preferable if this space were outfitted with autoclave sterilizers, laboratory air and vacuum, and at least one fume hood. It would also be preferable if the leased space had at least one separated laboratory portion wherein to perform all blood or tissue culture work. Cost: The ORP facility will be rented under a minimum of a 10 year lease. The annual rent for the space will be determined in the next 2-3 weeks, following the selection of a developer by the University and Dermacia officials. The use of funds to cover long-term lease costs will be finalized prior to IDED Board approval. In building the second facility, weather plays a significant role in this process. Assuming we are able to move expeditiously and we are able to capture some savings more fully discussed below, the estimated cost of the building is $275.00 and $300.00 a square foot, or between $5.5 million and $6 million. Location II: Northgate Commercial & Research Park, Iowa City, IA. The Research park is in a designated Tax Incremental Financing (TIF) Area. We are working with Iowa City in applying for and negotiating this incentive. Size: The lot to be purchased is 3.68 acres. It is part of a larger 30 acre parcel which we are seeking an option to purchase. Because the development and maintenance of the Biobank requires we own the land and the structure it is housed in, it is to our advantage to reserve the contiguous available land for further development in the future. The Biobank and the supporting lab space is the first structure to be built in the research park. The structure will be approximately 20,000 sq. feet. With 10,000 feet of the space below ground where the materials are store (subterranean development is necessary as protection from tornadoes) and 10,000 feet above ground of lab and office space. Much like the ORP Facility the space will be outfitted with necessary infrastructure to meet all city, state and federal codes for a biotechnology laboratory including: ventilation, safety eye wash stations, smoke detectors, fire alarms/sprinklers, restricted laboratory space that is not accessible to the public or to neighboring entities, etc. All office space should be wired for high-speed internet and telephone. High-speed internet access and telephone should also be available in the laboratory at regular spacing (about every 200-500 feet). This space should contain plumbed water and drainage for functional laboratory work-bays. It should be plumbed with RO or distilled water. It should have plumbing for a laboratory ice-maker. The leased space should have multiple120 volt and 240V 60Hz ou~ets. The space should contain or at least have access to: conferencelinstruction rooms, clean space work stations sufficient to house 25-30 employees, break room, restroom facilities (best if with showers), and at least 5 management offices. The space should have a distinct reception area immediately accessible to the public upon entering the building that is entirely separate from the laboratory. It should be allowed that this receiving space be designed as a formal reception area exclusively for NGI. It would be preferable if this space were outfitted with autoclave sterilizers, laboratory air and vacuum, and at least one fume hood. It would also be preferable if the leased space had at least one separated laboratory portion wherein to perform all blood or tissue culture work. Cost: The Northgate facility will be built and owned by NGI. Assuming we are able to move expeditiously and we are able to capture some, the estimated cost of the building is $225.00 and $240.00 a square foot, or between $5.5 million and $6 million. Section A - Applicant & Project Information 8 The initial tihree-year timeline for NGI business phasing is as follows: Jul/Aug 2006 Identify suitable temporary wet laboratory location for duration of building of permanent facility Late Fall 2006 Break Ground on Research Lab FalllWinter 2006 Phase I (Sample collection/Bio-banking & Optics Division begin work) Fall 2007 Open Research Facility. Spring 2008 Phase II (Large population sampling and marker validation) Spring 2008 Phase III (Initial product offering and refined marker identification) Jan 2009 Adapt customized manufacturing for high-demand product volume (Potential Relocation of Manufacturing Processes) 7. Project Address (Street Address, City, and County): The project in Iowa consists of the development and building of a 55,000 sq. ft. state of the art research facility in the Oakdale Research Park (ORP), which is part of the Oakdale Campus of the University of Iowa, and in a second location a 20,000 sq. ft. facility. The second site will house NGI's bio storage facility and related sciences. The site selected by NGI for this development in the ORP is at the entrance of the ORP and will be across the street from the new University of Iowa Hygienic Laboratory. The second site will house NGI's bio storage facility and related sciences and is located in Iowa City in the Northgate Commercial park. The site selected by NGI for this development in the ORP is at the entrance of the ORP and will be across the street from tihe new University of Iowa Hygienic Laboratory. 8. Type of Business Project: D Startup D Expansion of Iowa Company X New Location in Iowa D Relocation from another State 9. Please identify the management at the project location and his/her/their experience. Tannin J. Fuja, Ph.D., directs all scientific research for National Genecular Institute, Inc. Prior to joining NGI, Dr. Fuja headed the Molecular and Cell Biology Research Group at the National Center for Voice and Speech with an Adjunct professorship in the Department of Speech Pathology & Audiology where he oversaw the building, development and execution of the first Molecular Voice research laboratory in the world. As a well-published scientific investigator, Dr. Fuja has a broad experience in the application of molecular methodologies relating to complex human diseases and development including a wide spectrum of specialties from human cancer biology to stem cell research. Dr. Fuja is a member of the Holden Comprehensive Cancer Center, and the UI Center on Aging. He has studied the role of candidate tumor suppressor genes in breast cancer and is currently studying their role in laryngeal carcinogenesis. He is a member of the International Society for Stem Cell Research and has also collaborated with the National Human Neural Stem Cell Resource in studying an asymmetric pattern of cell division in human neural stem cells. In addition, Dr. Fuja has also developed a novel patent-pending technology that is cheaper and faster than widely used expression microarrays. This technology comparatively analyzes changes in gene expression using microsphere beads and flow cytometry. Dr. Fuja received his Bachelors of Science degree from Brigham Young University, a certificate in Human Subject Research Ethics from the University of Washington (Seattle) and his Doctorate in Biological Sciences in the Department of Developmental and Cell Biology from the University of California Irvine. Todd Smith is NGI's Vice President of Business Development. Mr. Smith received his Bachelor of Arts degree from Westmont College in Santa Barbara, California in 1990. Thereafter he graduated from Whittier Law School in 1993. Mr. Smith practiced law in the fields of Securities and Corporate law, as well as litigation from 1993 through 2004. Although no longer practicing, Mr. Smith brings those years of valuable experience to the table as NGI's Vice President of Business Development. Mr. Smith has sat on the board of directors for several corporations including Telecommunications companies and software developers. He has negotiated Mergers and Acquisition agreement for publicly and privately held corporations. He has significant experience in the areas of strategic planning and capitalization for emerging growth companies. 10. Has any part of the project started? If yes, please explain. DYes XNo Section A - Applicant & Project Information 9 11 Project Budget: Use of Funds Cost Source A Source B Source C Source D Source E Land Acquisition $ 610,000.00 $ $ $ 50,000.00 $ 560,000.00 $ Site Preparation $ 100,000.00 $ $ $ $ $ 100,000.00 Building Acquisition $ . - $ $ $ $ $ Building Construction'" $ 6,500,000.00 $655,000 $ $ 1,500,000.00 $ $ 4,345,000.00 Building Remodeling $ - $ $ $ $ $ Mfg. Machinery & Equip. $ 1,800,000.00 $ $ $ 200,000.00 $ 600,000.00 $ 1,000,000.00 Other Machinery & Equip. $ 300,000.00 $ $ $ 250,000.00 $ $ 50,00000 Racking, Shelving, etc' $ 350,000.00 $ $ $ $ $ 350,000.00 Computer Hardware $ 150,000.00 $ $ $ $ $ 150,000.00 Computer Software $ 220,000.00 $ $ $ $ $ 220,000.00 Furniture & Fixtures $ 75,000.00 $ $ $ $ $ 75,000.00 Working Capital $ 2,834,000.00 $ $ $ $ 490,000.00 $ 2,344,000.00 Research & Development and $ 8,000,000.00 $ $ $ 1,350,000.00 $ 6,650,000.00 Equipment Job Training $ 1,166,000.00 $ $1,166,000 $ $ $ Estimated Lease Expense $ 3,924,219.00 $ $ $ $ $ 3,924,219.00 $ $ $ $ $ $ TOTAL $ 26,029,219.00 $655,000 $1,166,000 $ 2,000,000.00 $ 3,000,000.00 $ 19,208,219.00 As the budget actually relates to two separate properties and ownership interests, the following breakdown is intended to differentiate between the two projects: Land Acquisition: The entire $610,000.00 ($560,000 purchase price plus the cost of 2 years additional options) relates to the property in the Northgate Commercial Park located in Iowa City. NGI is seeking TIF commitments from Iowa City as a prelude to purchasing the property. The balance of the acquisition cost is coming from NGI (Dermacia is funding NGI via ifs subsidiary Loan Agreement). Sffe Preparation: This entry is an expense solely related to the Iowa City property. Building Construction: $1.5 million of the construction costs are for cost and tenant improvements to be contributed by NGI to the project in the ORP. Although NGI is not the owner of the building, this commitment of funds is a pre-condition to completing the project. The remaining $5,000,000.00 estimated cost is directly related to the Northgate Commercial Park located in Iowa City. NGI is seeking $2,645,000.00 in the form of grants, loans and tax credits from the State of Iowa to defray the construction costs (In addition to $655,000 under CEBA). NGI is also seeking TIF commitments from Iowa City as a prelude to purchasing the property. The balance of the construction cost is coming from NGI (Denmacia is funding NGI via its subsidiary Loan Agreement). Estimated Lease Expense is based upon an average monthly lease rate of $55,351 for 69 months, and rent of $7,000 a month for the first 15 months for the temporary space. All remaining categories, and the amounts of assistance sought from each municipality, as well as the contributions sought from the state and the amounts to be contributed by NGI and Dermacia are laid out in Attachment "A" to this application. , Racking, Shelving and Conveyor Equipment will be employed primarily in the Biobank and the biomaterials storage function. The storage requirements for the Biobank require a relatively sophisticated shelving system. Section A - Applicant & Project Information 10 Does the Business plan to lease the facility? X Yes DNa If yes, please provide the Annual Base Rent Payment (lease payment minus property taxes, insurance, and operating/maintenance expenses) and the length of the lease agreement. The lease agreement is expected to be at least 10 years. An estimate on annual lease costs should be provided within two weeks I PROPOSED FINANCtNG I I Source of Funds Amount Form of Funds Rate Term Conditions / Additional Information I (Loan, Grant, In-Kind Donation, etc.) Include when funds will be disbursed; if loan, whether payments are a level term, balloon, etc. Source A: IDED $655,000 Hybnd of Grants, forgivable loans and TBD See attached descnption tax incentives Source B: Other State (e.g. $1,166,000 260E Job Training funds via Kirkwood TBD See attached descnption Communi Coli e, DOT, etc. CC Source C: Local Govemment $2,000,000 Tax Increment Financin TBD See attached descn tion Source D: Business - Dermacia $3,000,000 Investment! Loan N/A Funds available immediatel Source E: Other Pnvate Sources $19,208,219 Equity NfA NfA Common Stock REG 0 506 - Available as equity is transferred Source F: Source G: $ Source H: $ TOTAL $26,029,219.00 Piease list below any tax benefits (e.g. Investment Tax Credit, Sales Tax Refund, R&D Tax Credit, New Jobs Tax Credit, Property Tax Exemption/Abatement: etc.) that the Business expects to receive and included the estimated value of each tax benefit: See Altaclhment 'A' 12. Employee Benefits: Please identify all employee benefits provided by and paid for (in full or in part) by the Business. A true and accurate co of the medical insurance Ian and descri tion of benefits is attached to the hard co of this a lication. Employee Benefits Total Annual Cost Portion ofTotal Plan Provisions Provided by the (show on a per Annual Cost Paid (Include deductibles, coinsurance %, office visit co-payments, annual out-of-pocket maximums, Business employee basis) by the Business' face amounts, com an matclh, etc. Em 10 ee Famil Em 10 ee Famil 2500 3600 2500 2500 The employee will be able to choose their Medical/Health own plan from Blue Cross. Both PPO's and Insurance HMO's are offered. The employer pays the first $2,500 and the employee will pay the remainder 600 1000 480 800 Dental Insurance 300 900 240 720 Vision Insurance Section A - Applicant & Project Information 11 I I I I I 200 I I Life Insurance i i I Short Term Disability ! (STD) , , I , , i Long Term Disability I (LTD) I I I i 'If the business's plan is self-insured, please use the amount paid by the business for costs associated with employee and family coverage during the past three years and then, detenmine I the business' average annual contribution per employee for that three year period. , , Does the Business offer a pension plan, 401 (k) plan, and/or retirement plan? X Yes 0 No If yes, please indicate the amount contributed on a per employee basis by the Business to the plan. For 401 (k) plans, please provide information on the company match and indicate the average annual match per employee (show average as a percentage of salary). The Company matches 50% of the employee's contribution. The average annual match as a percentage of salary is 7.5% Does the Business offer a profit-sharing plan? 0 Yes X No If yes, please indicate the total amount paid out each year for the past three year and then, determine the average annual bonus or contribution per employee for that three year period. I Does the Business offer child care services? X Yes 0 No I I Child care services include child care services on-site at the facility in which the project will occur or off-site child care subsidized by the business at the rate of 50% or more I I of the costs incurred by an employee. The company will pay 50% customary cost incurred by an employee for childcare. 13. Identify the Business' competitors. If any of these competitors have Iowa locations, please explain the nature of the competition (e.g. competitive business segment, estimated market share, etc.) and explain what impact the proposed project may have on the Iowa competitor. No business competitors are located in I Iowa. Other competitors for the business include: I I DNAVISION (www.dnavision.be) I Celera (www.celera.coml I Applied Biosystems (www.aDDliedbiosvstems.coml Section A - Applicant & Project Information 12 I I GeneLink, Inc The competition for products that relate to skin care and aging are as follows: Obagi Medical Products based in Califomia- 60 million in sales Skin Medica Based in Califomia- 25 million in sales Loreal- 32 Billion in sales I Estee Lauder- 7 Billion in sales 14. Will any of the current Iowa employees lose their jobs if this project does not proceed in Iowa? 0 Yes D No If yes, please explain why and identify those jobs as 'retained jobs' in the following question. Not applicable 14. List the jobs that will be retained and/or created as the result of this project. (A retained job is an existing job that would be eliminated or moved to another state if the project does not proceed in Iowa.) For retained jobs, include the current hourly wage rate. For jobs to be created, including the startinQ hourly wage rate. Total Number of Retained Jobs: Job mle Skills, Education, or Experience Number of Number of Jobs Retained Starting or Required Jobs Iowa city [R]or Current Wage Coralville Created rCI Rate I Year 1 of the Project Chief Scientific Officer PhD 1 0 C 250K i Optics Division Head PhD or equivalent industry expenence 1 0 C 125K I Nanotechnology Division Head PhD or equivalent industry expenence 1 0 C 125K I Formulary Chemist PhD or equivalent industry expenence 1 0 C 95K i Lab Manager MS or equivalent industry expenence 1 0 C 60K I Cell Biologists MS or equivalent industry expenence 2 0 C 55K i Research Associates MS or equivalent industry expenence 12 0 C 50K Engineers (Mechanical, Electncal) BS or equivalent industry expenence 2 0 C 80K I IT SpecialisUProgrammers BS or equivalent industry expenence 1 0 C 85K I Front Office Manager BS or equivalent Industry expenence 1 0 C 45K Lab Technician BS or equivalent industry expenence 7 0 C 40K Administrative I Office Support Staff BS or equivalent industry expenence 5 0 C 31K Year 1 Subtotal 35 0 Year 2 of the Project Proteomic Division Heac PhD or equivalent industry expenence 1 0 C 125K Stem Cell Division Head PhD or equivalent industry expenence 1 0 C 145K Section A - Applicant & Project Information 13 Animal Model Division Head PhD or equivalent industry expenence 1 0 C 125K Research Associates MS or equivaient industry expenence 6 2 C 50K Lab Technicians BS or equivalent industry expenence 10 4 C 40K Cell Biologists MS or equivalent industry expenence 2 1 C 55K Acoounting Manager BS or equivalent industry expenence 1 0 C 40K Manufactunng Manager BS or equivalent industry expenence 1 0 C 48K Manufactunng Technicians BS or equivalent industry expenence 5 0 C 35K IT SpecialistlProgrammers BS or equivalent industry expenence 1 0 C 85K Engineers (Mechanical, Electncal, BS or equivalent industry expenence 4 0 C 80K Nano) BiolMedicinal Chemists PhD or equivalent industry expenence 3 0 C 85K Clinical T nals Officer MS or equivalent industry expenence 1 0 C 55K Molecular Geneticist PhD or equivalent industry expenence 2 0 C 85K Administrative f Office Support Staff BS or equivalent industry expenence 7 3 C 31K Shipping and Receiving Clerks BS or equivalent industry expertence 5 0 C 30K Year 2 Subtotal 51 (86 Totai) 10 (10 Total) I Year 3 a/the Project Nucleotide Division Head PhD or equivalent industry expenence 1 0 C 125K Natural Therapies Division Head PhD or equivalent industry expenence 1 0 C 125K Lab Manager MS or equivalent industry expenence 3 1 C 60K Research Associates MS or equivalent industry expenence 13 8 C 50K Cell Biologists MS or equivalent industry expenence 3 2 C 55K Animal Research Veterinarians MS or equivalent industry expenence 0 3 C 85K , Lab Technicians BS or equivalent industry expenence 12 5 C 41K I i IT SpecialistlProgrammers BS or equivalent industry expenence 1 0 C 85K I I Engineers (Mechanicai, Electrtcal, BS or equivalent industry expenence 4 0 C 80K I Nano) I BiolMedicinal Chemists PhD or equivalent industry expenence 6 0 C 85K Molecular Geneticist PhD or equivalent industry expenence 2 2 C 85K Administrative I Office Support Staff BS or equivalent industry expenence 3 2 C 31K Manufacturtng Technicians BS or equivalent industry expenence 5 0 C 38K I Shipping and Receivin9 Clerks BS or equivalent industry expenence 2 3 C 31K Year 3 Subtotal 56 26 (142 Total) (36 Total) I Section A - Applicant & Project Information 14 I i Total Number of Created Jobs: 178 16. Discuss each of the following items with respect to the proposed project: a) the current employment conditions in the community, include any business closures, unemployment rates, etc. and if applicable, the community's need for assistance in attracting the Business. In the past six months, the Iowa City and Coralville area has had MCI and General Mills close their operations, displacing approximately 200 people. Announced this spring is the closing of the Applied Systems operation in Coralville, displacing 96 individuals by December 2006. Pearson also announced the reduction of its staffing at its facility on the Oakdale Research Park due to the loss of federal Medicare and Medicaid contracts. Moore Wallace announced, in May 2006, the loss of 35 positions due to the parent company moving those positions overseas The wet-lab / office space on the Oakdale Research Park has also sat unoccupied for nearly two years following the moving of Albany Molecular to Chicago and CBS Market Watch to Minneapolis. Further, there is a dearth of wet lab space now available in the area. This leaves the University of Iowa without practical solutions for locating incubator companies in the area. This forces promising research projects to look outside of the area to house their businesses. b) impact of the proposed project on the community and the state, include projections that reflect the impact on local and state tax revenue and any additional costs the community will incur as the result of the proposed project; There are several positive impacts on the community and region. First, this project will continue to grow the biotech presence in the area and state, helping to attract and retain additional biotech companies. Second, the company is expecting to temporarily use an existing facility that has been vacant for some time, and will build two additional biotech facilities for themselves, and part of one to attract more biotech companies to the state. Third, there is potential to have this project grow from just R&D to both R&D and manufacturing, generating additional employment and diversifying the economy. Fourth, estimating an average of a 6% personal state income tax, NGI would generate approximately $820,000 in I individual income taxes over the first three years of their project. Though it is difficult to estimate personal employee property taxes and sales and use taxes, it I is clear that there will be a substantial increase in these tax revenues due to the high disposable incomes of these employees. . Finally, the Cities of Coralville and Iowa City are making commitments to help with the build out of these facilities to not only spur the development of this project, but also in hopes of having I marketing space for other biotech companies. c) impact the proposed project will have on current employees, including the potential for increased skills and wages; and; There are currently no Iowa employees of NGI. As has been stated, tt is the expectation of the company to hire 178 people over the next three years. The company envisions a small contingent of employees and executives moving from California to Iowa, with the remaining employees coming from Iowa, and likely I from graduates of the University of Iowa. As noted in the sources and uses of fund tables, NGI believes strongly in investing in their employees and will work ! with Kirkwood Community College and others to establish the necessary training programs for staff, allowing for upward employment opportunities for i employees. I d) impact the investment will have on the ability of the business to expand, upgrade, or modernize its capabilities. I This investment is critical to allowing NGI to start up operations in Iowa. In addition, the location of the R&D facility is ideal for collaboration with the university and other biotech companies, such as Integrated DNA Technologies. This location is also ideal for establishing a future manufacturing facility in close proximity. Further, this project is critical to the growth of the University's ability to expand its research efforts, for the community to attract other high profile businesses and build a reputation as the leading area for bio-tech research in the Midwest. As medicine moves closer and closer to customized treatments, and NGl's critical role in that growth. The ability to attract businesses in this field will be essential to the region's continued growth. 17. Is the Business actively considering locations outside of Iowa? X Yes o No If yes, where and what assistance is being offered? The company is considering locations in Utah and Arizona. Locations in these states have available and fully equipped wet lab spaces, and/or the company has received commitments from these states that suitable wet lab facilities will be provided as an Inducement to locating in these states. In addition, both competing states are closer to the corporation headquarters in California. Section A - Applicant & Project Information 15 18. There are three general justifiable reasons for assistance. Check the box next to the reason why assistance is needed to complete this project X Financing Gap - The Business can only raise a portion of the debt and equity necessary to complete the project. A gap between sources and uses exists and state and/or federal funds are needed to fill the gap. D Rate of Return Gap - The Business can raise sufficient debt and equity to complete the project, but the returns are inadequate to motivate an ~economic person' to proceed with the project. Project risks outweigh the rewards. X Locational Disadvantage (Incentive) - The Business is deciding between a site in Iowa (site A) and a site in another state (site B) for its project. The Business argues that the project will cost less at site B and will require a subsidy to equalize costs in order to locate at site A. The objective here is to quantify the cost differential between site A and site B. The Business is deciding between a site in Iowa (site A) and a site in another state (site B) for its project. The Business argues that the project will cost less at site B and will require a subsidy to equalize costs in order to locate at site A. The objective here is to quantify the cost differential between site A and site B. What measures were analyzed to determine the amount and form of assistance needed? The project and the financing sought have been evaluated based upon the need for this project in Iowa; the value of the ability to attract and retain the skilled employees needed for this operation; the general venture capital risk associated with operating a biotech company in Iowa (Midwest) rather than closer to the parent company's headquarters in California; and the long tenn economic impact this project would be on the community and region. 19. What amount of state assistance is requested based on the above-identified need? NGI is seeking $655,000.00 in CEBA assistance and an additional $2,645,000.00 in HQJC Assistance. I What typelform of assistance is preferred (e.g. loans, forgivable loans, tax incentives, etc.)? Prefer forgivable loans and refundable tax and research and I development tax credits I 20. Please indicate what program(s) the Business is applying to and download and submit those applicable sections: X CEBA (Complete Section B) D EZ (Complete Section C) X HQJC (Complete Section D) D EVA (Complete Section E) D 0 VAAPFAP (Complete Section F) D EDSA (Complete Section G) The Department resefVes fhe right to review this application and determine, based on the proposed project and available program funds, which financial assistance program(s) is best suited for the Business' project. The actual program(s) utilized may val}' from the programs indicated above. 21. Return on Invesbnent Information - Business Taxes I Section A - Applicant & Project Information 16 I I I IDEO is required to calculate the return on state and local governrnent investments in this project. Dafa from other paris of the application will be combined with the esfimates requesfed below fo calcu/afe the required return on invesfment information. Instructions for Question 21 IDEO is asking for a best estimate on the increase in taxes associated with this project. - Estimates should only include the expected increase in tax liability resulting from this project. - At minimum, IDEO needs estimates for the first three years of the project. - Show data as if no tax abatements or tax credits awarded for this Droiect were taken. - For partnership forms of ownership (e.g. limited partnerships, s-corporations, LLC, etc.), please estimate the partners' increase in Iowa tax liability due to this project. - Sales and use taxes refer to the taxes paid on materials, etc. that the Business purchases, not taxes you collect from sales to your customers. - Applicants will not be held to these numbers with respect to any award from or contract with IDEO. - This page of the application will automatically be treated as confidential. I I Increase in Tax Collections Associated with this Project , i i State Business Taxes Year 1 Year 2 Year 3 Year 4 Year 5 I State Corporate Income Tax' $0.00 $ $ $ $ I State Business Sales and Use Tax $316875 $ $ $ $ , Insurance Companies: Provide State Insurance Premium Tax Tax on building two new facilities Local Business Taxes Year 1 Year 2 Year 3 Year 4 Year 5 Local Real Estate Property Tax $411684 $411684 $411684 $411684 $411684 Local Option Sales Tax $ $ $ $ $ Currently, there is no local option sales tax in Johnson County Attachments Please attach the following documents: Ai Business Plan At a minimum, include: Section A - Applicant & Project Information 17 . marketing study, . feasibility study, . projected profit and loss statements for three years into the future, . project budget. ! . production operations, , . management structure, . personnel needs, . descriptions of product or process, . status of product/process development, and . patent status (if applicable). (Any infonmation oumned above not included in the business plan should be submitted as supplemental infonmation via a separate attachment.) A2 Copies of the Business' Quarterly Iowa Employer's Contribution and Payroll Report Summary Page (Page 1) for the past year and a copy of the most recent payroll report for one pay period. I A3 Affidavn that states the Business has not, within the last five years, violated state or federal statutes, rules, and regulations, including environmental and worker i safety regulations, or, if such violations have occurred, that there were mitigating circumstances or such violations did not seriously affect public health or safety or i , the environment. [ i A4 Financiallnfonmation (Existing Businesses Only) I i I . Profit and loss statements and balance sheets for past three year-ends; I . Current YTD profit and loss statement and balance sheet; I . Schedule of aged accounts receivable; I . Schedule of aged accounts payable; and I . Schedule of other debts. , Application Checklist i I I i I I I I i I Section A - Applicant & Project Information 18 , I I IOWA Application Checklist I ili I changing' For each section the Business is required to submit, please indicate with a ',,/' that items needed for that section are included when submitting the application to IDED. If an item listed is not included, please indicate in the corresponding box the date on which IDED can expect to receive it or explain in the space provided below why it has not been included' Section A Section B Section C Section 0 Section E Section F Section G CEBA EZ HCJC EVA VAAPFAP EDSA Originai pius 1 Copy Signed by the Business 'j\N/A <}N/A 'N/A N/Ai:." N/A .: I'> N/A . ,;~ Signed bv the Sponsor(s) ~N/A .'t..uN/A .~fN/A N/A"'" N/At'..,.. ~~~ Business Plan w/3-vear Proiections I. N/A ,.' T\'N/A . .;:.'.N/A . ..NlA Wit]' Quarterly Employer's Contribution and Pavroll Reports New to Iowa N/MH,' N/A '(' ..... N/A ':.eN/A 'cci}NlA . Current Pavroll Report New to Iowa ,.NlAf"';' N/A N/A _) 'N/A " .';\N/A ..'i!N/A' . Affidavit re: Violations '''',N/A .e NlA N/AY N/A' N/A ;: ",'~---;;: P/L statements & Balance Sheets (3 vears\ 1+i:;"N/A , 'N/A ..N/A NlI\;;ii" N/A,""; ;'.. N/A:.;~;l Current YTD Financiais I'" N/A '."'. ;. N/A """N/A 'eN/A> " . NlA'0'" N/A,;;:rJ.'" Aged Accounts Receivables .'". N/A ';";'; .,.. . N/A C.T,' N/A .;;!iN/A ) Aged Accounts Pavable ;,NlA!!:'" 'N/M N/A 1< N/A "" N/A ,;,,,;tN/A Scheduie of Other Debts 'CYN/A .N/A .; N/A N/A./;;.X ., NlA.,. ';).' N/A ;,., Resoiution from Sponsor N/A -, Sept 19 Sept 19 N/Ai," N/A,:; , N/A'0; Legal Description of Proiect Site N/Ai.;/!; 7' N/A . {NfAt NlAc!" N/A Ed""" Map .' N/A;,'''' . N/A.'; . ".N/A 'N/A' Meeting f Public Hearinq Notice ..K,N/AI N/A '...... I' N/A Ii' N/A ;N/A Meeting Minutes '.thN/A' NJA" N/A . 1'" N/A P.';iH'N/A Technical Assistance Budget !~. N/A i.N/A' N/A ,. N/A" .' N/A . ,.' ~N/A Bids, Quotes, & Estimates Ii.' N/A . YN/A . N/A N/A .' N/A .' ,< N/A '. Employer Certification Form I,' N/A .., "'N/A N/A NlA;" .' N/A " N/A Commitment Letters N/A "~N/A , "N/A N/A>. NlA,,"'; N/A>' Comm. Development & Housing Needs Assessment N/A<' '; N/A .... "N/A N/A N/A NlA' Assurances Page N/A ". ..' N/A.,' N/A ... N/A >. N/A eN/A ApplicanVRecipient Disclosure/Update form N/A NlA' N/A ". N/A '. N/A N/A Explanation for Items Not Included: Application Checklist 1 Attachment "A" Budget Distribution Between Sites/Cities AMOUNT BUDGETED Use of Funds Cost Coralville Iowa City Site (ORP Site) Land Acquisition $ 610,000.00 $ $ 610,000.00 Site Preparation $ 100,000.00 $ $ 100,000.00 Building Acquisition $ - $ $ Building Construction $ 6,500,000.00 $ 1,500,000.00 $ 5,000,000.00 Building Remodeling $ - $ - $ - Mfg. Machinery & Equip. $ 1,800,000.00 $ 1,000,000.00 $ 800,000.00 Other Machinery & $ 300,000.00 $ 200,000.00 $ 100,000.00 Eauio. Racking, Shelving, etc.' $ 350,000.00 $ 200,000.00 $ 150,00000 Computer Hardware $ 150,000.00 $ 100,000.00 $ 50,000.00 Computer Software $ 220,000.00 $ 110,000.00 $ 110,000.00 Furniture & Fixtures $ 75,000.00 $ 50,000.00 $ 25,000.00 Working Capital $ 2,834,000.00 $ 1,884,000.00 $ 950,000.00 Research & $ 8,000,000.00 $ 5,000,000.00 $ 3,000,000.00 Development and Eauipment Job Training $ 1,166,000.00 $ 983,000.00 $ 183,000.00 Estimated Lease Exp $ 3,924,219.00 $ 3,924,219.00 $ $ $ $ TOTAL $26,029,219.00 $14,951,219.00 $ 11,078,000.00 Application Checklist 2 Local Government Combined (Source C) AMOUNT BUDGETED Use of Funds Cost Source A Source B Source C Source 0 Source E Source Source Source G H F Land Acquisition $ 610,000.00 $ $ $ 50,000.00 $ 560,000.00 $ $ $ $ - Site Preparation $ 100,000.00 $ $ $ $ $ 100,000.00 $ $ Building Acquisition $ - $ $ $ $ $ $ $ Building Construction $ 6,500,000.00 $ 655,000.00 $ $ 1,500.000.00 $ $ 4,695,000.00 $ $ Building Remodeling $ - $ $ $ $ $ $ $ Mfg. Machinery & Equip. $ 1,800,000.00 $ $ $ 200,00000 $ 600,000.00 $ 1,000,000.00 $ $ Other Machinery & $ 300,000.00 $ $ $ 250,000.00 $ $ 50,000.00 $ $ Equip Racking, Shelving, etc.' $ 350,000.00 $ $ $ $ $ 350,000.00 $ $ Computer Hardware $ 150,000.00 $ $ $ $ $ 150,00000 $ $ Computer Software $ 220,000.00 $ $ $ $ $ 220,000.00 $ s Furniture & Fixtures $ 75,000.00 $ $ $ $ $ 75,000.00 $ $ Working Capital $ 2,834,000,00 $ $ $ $ 490,000.00 $ 2,344,000.00 $ $ Research & $ 8,000,000.00 $ $ S $ 1,350,000.00 $ 6,650,000.00 $ $ Development and Equipment Job Training $ 1,166,000.00 $ $ 1,166,000 S $ $ $ S Estimated Lease $ 3,924,219.00 $ $ $ $ 3,924,219.00 $ $ Exoense $ $ $ S $ $ $ S TOTAL 26,029,219.00 $ 655,000.00 $1,166,000 $2,000,000.00 $3,000,000.00 $19,208,219.00 $ $ $ . Local Government Divided (Source C is Coralville; Source F is Iowa City) Application Checklist 3 AMOUNT BUDGETED I Use of Funds Cost Source A Source B Source C Source 0 Source E Source F Land AcqUisition $ 610,000.00 $ S $ $ 560,000.00 $ $ 50,00000 Site Preparation $ 100,000.00 $ $ $ $ $ 100,000.00 Building Acquisition $ - $ $ S $ $ Building Construction $ 6,500,000,00 $ 655,000.00 $ $ 800,000.00 $ $ 4,695,000.00 $ 350,000.00 Building Remodeling $ - $ $ $ $ $ Mfg. Machinery & Equip. $ 1,800,000.00 $ S $ $ 600,000.00 $ 1,000,000.00 $ 200,000.00 Other Machinery & $ 300,000.00 $ $ $ $ $ 50,00000 $ 250,000.00 EQuiD. Racking, Shelving, etc." $ 350,000.00 $ $ S $ $ 350,000.00 Computer Hardware $ 150,000.00 $ S $ $ $ 150,000.00 Computer Software $ 220,000,00 $ $ $ $ $ 220,000.00 Furniture & Fixtures $ 75,000.00 $ $ $ $ $ 75,000.00 Working Capital $ 2,834,000.00 $ $ $ $ 490,000.00 S 2,344,000.00 Research & $ 8,000,000.00 $ $ S $ 1,350,000.00 $ 6,350,000.00 Development and EQuipment Job Training $ 1,166,000.00 $ $1,166,000 $ S $ Estimated Lease $ 3,924,219.00 $ $ $ $ 3,924,219.00 Exoense $ $ S $ $ $ TOTAL 26,029,219.00 $ 655,000.00 $1,166,000.00 $ 800,000.00 $3,000,000.00 $19,208,219.00 $ 1,200,000.00 Application Checklist 4 M~ IT] Prepared by: Brian Boelk, Civil Engineer, 410 E. Washington St., Iowa City, IA 52240 (319) 356-5437 RESOLUTION NO. 06-332 RESOLUTION APPROVING PLANS, SPECIFICATIONS, FORM OF CONTRACT, AND ESTIMATE OF COST FOR THE CONSTRUCTION OF THE GRAND AVENUE ROUNDABOUT PROJECT, ESTABLISHING AMOUNT OF BID SECURITY TO ACCOMPANY EACH BID, DIRECTING CITY CLERK TO PUBLISH . ADVERTISEMENT FOR BIDS, AND FIXING TIME AND PLACE FOR RECEIPT OF BIDS. WHEREAS, notice of public hearing on the plans, specifications, form of contract and estimate of cost for the above-named project was published as required by law, and the hearing thereon held. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF IOWA CITY, IOWA THAT: 1. The plans, specifications, form of contract and estimate of cost for the above-named project are hereby approved. 2. The amount of bid security to accompany each bid for the construction of the above- named project shall be in the amount of 10% (ten percent) of bid payable to Treasurer, City of Iowa City, Iowa. 3. The City Clerk is hereby authorized and directed to publish notice for the receipt of bids for the construction of the above-named project in a newspaper published at least once weekly and having a general circulation in the city. 4. Bids for the above-named project are to be received by the City of Iowa City, Iowa, at the Office of the City Clerk, at the City Hall, until 10:00 a.m. on the 8th day of November, 2006, or at a later date and/or time as determined by the Director of Public Works or designee, with notice of said later date and/or time to be published as required by law. Thereafter the bids will be opened by the City Engineer or his designee, and thereupon referred to the Council of the City of Iowa City, Iowa, for action upon said bids at its next meeting, to be held at the Emma J. Harvat Hall, City Hall, Iowa City, Iowa, at 7:00 p.m. on the 14th day of November, 2006, or if said meeting is cancelled, at the next meeting of the City Council thereafter as posted by the City Clerk. Passed and approved this 17 th ,2006. u Mayor ATTEST:'~ ~#~ City lerk AP7l(~ City Attorney's Ice IDI/I/f)~ Resolution No. Page ? 06-112 It was moved by O'Donnell and seconded by adopted, and upon roll call there were: AYES: x x x x x x Vanderhoef the Resolution be NAYS: x ABSENT: Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn M~) ~ ULJ Prepared by: Kumi Morns, Civil Engineer, 410 E. Washington St., Iowa City, IA 52240; (319) 356-5044 RESOLUTION NO. 06-333 RESOLUTION APPROVING, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST AN AGREEMENT BY AND BETWEEN THE CITY OF IOWA CITY AND ROHRBACH ASSOCIATES PC TO PROVIDE PROFESSIONAL CONSULTANT SERVICES FOR THE FIRE STATION #2 DEMOLITION AND CONSTRUCTION PROJECT. WHEREAS, the City of Iowa City desires to correct existing building deficiencies and bring Fire Station #2 up to NFPA standards; and WHEREAS, the above mentioned project will entail generation of plans and specifications to demolish and rebuild Fire Station #2 on existing site, including services from pre-design through construction administration; and WHEREAS, the CITY desires the services of a consulting firm to prepare preliminary and final designs and perform other administrative services for construction of the Fire Station #2 Demolition and Construction Project; and WHEREAS, the City of Iowa City has negotiated an Agreement for said consulting services with Rohrbach Associates PC, to provide said services; and WHEREAS, it is in the public interest to enter into said Consultant Agreement with Rohrbach Associates PC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA, THAT: 1. The Consultant's Agreement attached hereto is in the public interest, and is approved as to form and content. 2. The Mayor and City Clerk are hereby authorized and directed to execute the attached Consultant's Agreement in duplicate. Passed and approved this 17~h day of 2:UA'(JQ~ ~A YOR Ap roved by - ATTEST: ~~A'./ k. =tiJ . CITY LERK ",/" (PCd pwengltes\lireslalion2derro.doc Resolution No. Page 2 06-111 It was moved by Champion and seconded" by adopted, and upon roll call there were: AYES: J{ x X J{ J{ X X Vanderhoef the Resolution be NAYS: ABSENT: Bailey Champion Correia Elliott O'Donnell Vanderhoef Wilburn CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this Twentv Seventh day of September. 2006 by and between the City of Iowa City, a municipal corporation, hereinafter referred to as the City and Rohrbach Associates PC, hereinafter referred to as the Consultant. Whereas the City of Iowa City wishes to demolish Firestation #2 located in Iowa City, Iowa and to construct a new fire station and siting arrangement at its same location. NOW THEREFORE, it is agreed by and between the parties hereto that the City does now contract with the Consultant to provide services as set forth herein. I. SCOPE OF SERVICES Consultant agrees to perform the following services for the City, and to do so in a timely and satisfactory manner. A. DEFINITION The Consultant's Basic Services consist of those described in Sections I.A through I.H and include normal structural, mechanical and electrical engineering services. B. PREDESIGN PHASE 1. Providing analyses of the Owner's needs and programming the requirements of the Project. 2. Conduct programming sessions with departmental staff and administration to confirm the programmatic requirements for the project. C. SCHEMATIC DESIGN PHASE 1. The Consultant shall review the program established in the predesign phase to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. 2. The Consultant shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other, subject to the limitations of the approved budget 3. The Consultant shall review with the Owner alternative approaches to design and construction of the Project. 4. Based on the mutually agreed-upon program, schedule and construction budget requirements, the Consultant shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. 5. The Consultant shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or similar conceptual estimating techniques. -2- D. DESIGN DEVELOPMENT PHASE 1. Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Consultant shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. 2. The Consultant shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost. E CONSTRUCTION DOCUMENTS PHASE 1. Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Consultant shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. 2. The Consultant shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. 3. The Consultant shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 4. The Consultant shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 5. The consultant shall assist the Owner in the design and specification of furnishing and signage for the project. F. BIDDING OR NEGOTIATION PHASE The Consultant, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. G. CONSTRUCTION PHASE- ADMINISTRATION OF THE CONSTRUCTION CONTRACT 1. The Consultant's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the initial Contract for Construction and terminates at the earlier of the issuance to the Owner of the final Certificate for Payment or 60 days after the date of Substantial Completion of the Work. 2. The Consultant shall provide administration of the Contract for Construction as set forth below and in the edition of AlA Document A201, General - 3- Conditions of the Contract for Construction, current as of the date of this Agreement, unless otherwise provided in this Agreement. Modifications made to the General Conditions, when adopted as part of the Contract Documents, shall be enforceable under this Agreement only to the extent that they are consistent with this Agreement or approved in writing by the Consultant. 3. Duties, responsibilities and limitations of authority of the Consultant under this Section G shall not be restricted, modified or extended without written agreement of the Owner and Consultant with consent of the Contractor, which consent will not be unreasonably withheld. 4. The Consultant shall be a representative of and shall advise and consult with the Owner during the administration of the Contract for Construction. The Consultant shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written amendment. 5. The Consultant, as a representative of the Owner, shall visit the site a minimum of every 10 days or at intervals appropriate to the stage of the Contractor's operations, (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Consultant shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Consultant shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents. 6. The Consultant shall report to the Owner known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor. However, the Consultant shall not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Consultant shall be responsible for the Consultant's negligent acts or omissions, but shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Work. 7. The Consultant shall at all times have access to the Work wherever it is in preparation or progress. 8. Except as otherwise provided in this Agreement or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Contractor through the Consultant about matters arising out of or relating to the Contract Documents. Communications by and with the Consultant's consultants shall be through the Consultant. 9. Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Architect. -4- H. SUSTAINABLE DESIGN 1. Services will be provided in accordance with AlA Document B214-2004. I. OWNER'S RESPONSIBILITIES 1. The Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements. The Owner shall furnish to the Consultant, within 15 days after receipt of a written request, information necessary and relevant for the Consultant to evaluate, give notice of or enforce lien rights. 2. The Owner shall establish and periodically update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 3. The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such designated representative shall render decisions in a timely manner pertaining to documents submitted by the Consultant in order to avoid unreasonable delay in the orderly and sequential progress of the Consultant's services. 4. The Owner shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information conceming available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. 5. The Owner shall furnish the services of geotechnical engineers when such services are requested by the Consultant. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate recommendations. 6. The Owner shall furnish the services of consultants other than those designated in Section Ii 5 when such services are requested by the Consultant and are reasonably required by the scope of the Project. 7. The Owner shall furnish structural, mechanical, and chemical tests; tests for air and water pollution; tests for hazardous materials; and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. - 5 - 8. The Owner shall furnish all legal, accounting and insurance services that may be necessary at any time for the Project to meet the Owner's needs and interests. Such services shall include auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 9. The services, information, surveys and reports required by Sections li 4 through Ii 8 shall be furnished at the Owner's expense, and the Consultant shall be entitled to rely upon the accuracy and completeness thereof. 10. The Owner shall provide prompt written notice to the Consultant if the Owner becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Consultant's Instruments of Service. II. TIME OF COMPLETION A. The Consultant shall complete the following phases of the Project in accordance with the schedule shown. Predesign Schematic Design Design Development Construction Documents Bidding and Negotiations Construction Administration Commissioning Start October 1, 2006 November 1, 2006 January 1, 2007 March 1, 2007 June 1, 2007 August 1, 2007 August 1, 2008 StoD November 1, 2006 January 1, 2007 March 1, 2007 June 1, 2007 July 15, 2007 August 1, 2008 September 1, 2008 Phase B. This schedule is the best estimate of the consultant at this time and will be adjusted in the event of circumstances beyond the consultant's control. III. GENERAL TERMS A. The Consultant shall not commit any of the following employment practices and agrees to prohibit the following practices in any subcontracts. 1. To discharge or refuse to hire any individual because of their race, color, religion, sex, national origin, disability, age, marital status, gender identity, or sexual orientation. 2. To discriminate against any individual in tenms, conditions, or privileges of employment because of their race, color, religion, sex, national origin, disability, age, marital status, gender identity, or sexual orientation. B. Should the City terminate this Agreement, the Consultant shall be paid for all work and services perfonmed up to the time of termination. However, such sums shall not be greater than the "lump sum" amount listed in Section IV. The City may terminate this Agreement upon seven (7) calendar days' written notice to the Consultant. 1. If the Owner fails to make payments to the Consultant in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Consultant's option, cause for suspension of --~._----"--_._--,-~-~-----",-_._--"~-"._-"--'~----"-"-_._.._..._._~,_...,--_.__." -6- performance of services under this Agreement. If the Consultant elects to suspend services, prior to suspension of services, the Consultant shall give seven days' written notice to the Owner. In the event of a suspension of services, the Consultant shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Consultant shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Consultant's services. The Consultant's fees for the remaining services and the time schedules shall be equitably adjusted. 2. If the Project is suspended by the Owner for more than 30 consecutive days, the Consultant shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Consultant shall be compensated for expenses incurred in the interruption and resumption of the Consultant's services. The Consultant's fees for the remaining services and the time schedules shall be equitably adjusted. 3. If the Project is suspended or the Consultant's services are suspended for more than 90 consecutive days, the Consultant may terminate this Agreement by giving not less than seven days' written notice. 4. This Agreement may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. 5. In the event of termination not the fault of the Consultant, the Consultant shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Section IIIB 6. 6. Termination Expenses are in addition to compensation for the services of the Agreement and include expenses directly attributable to termination for which the Consultant is not otherwise compensated, plus an amount for the Consultant's anticipated profit on the value of the services not performed by the Consultant. C. This Agreement shall be binding upon the successors and assigns of the parties hereto, provided that no assignment shall be without the written consent of all Parties to said Agreement. D. It is understood and agreed that the retention of the Consultant by the City for the purpose of the Project shall be as an independent contractor and shall be exclusive, but the Consultant shall have the right to employ such assistance as may be required for the performance of the Project. E. It is agreed by the City that all records and files pertaining to information needed by the Consultant for the project shall be available by said City upon reasonable request to the Consultant. The City agrees to furnish all reasonable assistance in the use of these records and files. F. It is further agreed that no Party to this Agreement shall perform contrary to any applicable state, federal, or local law or any of the ordinances of the City of Iowa City, Iowa. -7 - G. At the request of the City, the Consultant shall attend meetings of the City Council relative to the work set forth in this Agreement. Any requests made by the City shall be given with reasonable notice to the Consultant to assure attendance. H. The Consultant agrees to fumish, upon termination of this Agreement and upon demand by the City, copies of all basic notes and sketches, charts, computations, and any other data prepared or obtained by the Consultant pursuant to this Agreement without cost, and without restrictions or limitation as to the use relative to specific projects covered under this Agreement. In such event, the Consultant shall not be liable for the City's use of such documents on other projects. 1. The Owner agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Consultant, its officers, directors, employees and subconsultants (collectively, Consultant) against any damages, liabilities or costs, including reasonable attorneys' fees and defense costs, arising from or allegedly arising from or in any way connected with the unauthorized reuse or modification of the construction documents by the Client or any person or entity that acquires or obtains the construction documents from or through the Client without the written authorization of the Consultant. I. The Consultant agrees to furnish all reports, specifications, and drawings, with the seal of a professional consultant affixed thereto or such seal as required by Iowa law. J. The City agrees to tender the Consultant all fees in a timely manner, excepting, however, that failure of the Consultant to satisfactorily perform in accordance with this Agreement shall constitute grounds for the City to withhold payment of the amount sufficient to properly complete the Project in accordance with this Agreement. K. Should any section of this Agreement be found invalid, it is agreed that the remaining portion shall be deemed severable from the invalid portion and continue in full force and effect. L. Original contract drawings shall become the property of the City. 1. All design documents, including electronic data, required by this Agreement, as instruments of service are the property of the Owner whether the work for which they are made be executed or not. 2. Any reuse without specific written verification or adaptation by the Design Professional will be at Owner's sole risk and without liability or legal exposure to the Design Professional. 3. The Design Professional shall not acquire a copyright for project documents but shall be permitted to retain copies including reproducible copies or electronic data of the drawings, specifications and other project documents. 4. The Consultant shall submit the specified drawing documents in electronic format in the following manner: a. Autodesk AutoCAD version 2004 or earlier. If the files have been translated from another CAD package, it should be noted. _~_.___________,______~_._"___.___.__..______~,.______~__.__._n____.._.._..____.____."....___..._.__.__..__.._ -8- b. Include drawing files only, with linked attachments (i.e. TIFs, spreadsheets) only, if applicable; no data files or documents. c. All submittals shall include an explanation of the Consultant's CAD layer scheme. d. All drawing files shall have the correct layer scheme in place. e. If applicable, the drawing files are to be finalized into autonomous ("stand alone") sheet drawings, ready to plot, in the same order as each sheet in the corresponding hard copy plan set. Drawing files may contain multiple sheets. f. It is stronalv recommended that drawing files have all corresponding extemally referenced drawings either attached. inserted. or bound into the drawing file. If this is not possible, externally referenced drawings should be located in the same folder as the drawing files. g. It is also recommended that customized Plot Style tables (pen assignments), a.k.a. *.ctb files, be included in order for prints of the drawings have the intended appearance. M. Fees paid for securing approval of authorities having jurisdiction over the Project will be paid by the City. N. Upon signing this agreement, Consultant acknowledged that Section 362.5 of the Iowa Code prohibits a City officer or employee from having an interest in a contract with the City, and certifies that no employee or officer of the City, which includes members of the City Council and City boards and commissions, has an interest, either direct or indirect, in this agreement, that does not fall within the exceptions to said statutory provision enumerated in Section 362.5. O. The Consultant agrees at all times material to this Agreement to have and maintain professional liability insurance covering the Consultant's liability for the Consultant's negligent acts, errors and omissions to the City in the sum of $1,000,000. IV. COMPENSATION FOR SERVICES A. Compensation for Services outlined in paragraphs IB through IH is to be a stipulated sum of One hundred ten thousand dollars ($110,000.00) This fee is broken down the following: Services identified in paragraph IB Services identified in paragraphs IC - IG Services identified in paragraph IE5 Services identified in paragraph IH $ 5,000.00 $80,000.00 (accept IE5) $ 5,000.00 $20,000.00 (2% of the construction costs) B. Where compensation is based on a stipulated sum, progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable: Predesign (paragraph IB) $5,000 or 100% - g - Basic Services IC - IH Schematic Design 20% Design Development 25% Construction Documents 35% Bidding and Negotiations 05% Construction Administration 15% Total 100% C. REIMBURSABLE EXPENSES For Reimbursable Expenses, as described below, a multiple of one point zero (1.0) times the expenses incurred by the Consultant, the Consultant's employees and consultants directly related to the Project will be invoiced monthly as accrued. 1. Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Consultant and Consultant's employees and consultants directly related to the Project, as identified in the following Clauses: .a transportation in connection with the Project, authorized out-of- town travel and subsistence, and electronic communications; .b fees paid for securing approval of authorities having jurisdiction over the Project; .c reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service; .d expense of overtime work requiring higher than regular rates if authorized in advance by the Owner; .e renderings, models and mock-ups requested by the Owner; .f expense of professional liability insurance dedicated exclusively to this Project or the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Consultant and the Consultant's consultants; .g other similar direct Project-related expenditures. D. ADDITIONAL SERVICES 1. The services described in this Article IVD1 are not included in Basic Services and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Sections D2 and D4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section D3 are required due to circumstances beyond the Consultant's control, the Consultant shall notify the Owner prior to commencing such services. If the Owner deems that such services described under Section D3 are not required, the Owner shall give prompt written notice to the Consultant. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Consultant shall have no obligation to provide those services. 2. PROJECT REPRESENTATION BEYOND BASIC SERVICES a. If more extensive representation at the site than is described in Section 1G is required, the Consultant shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. -10- b. Project Representatives shall be selected, employed and directed by the Consultant, and the Consultant shall be compensated therefor as agreed by the Owner and Consultant. The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the edition of AlA Document B352 current as of the date of this Agreement, unless otherwise agreed. c. Through the presence at the site of such Project Representatives, the Consultant shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Consultant as described elsewhere in this Agreement. 3. CONTINGENT ADDITIONAL SERVICES a. Making revisions in drawings, specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's prograrn or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents; or 3. due to changes required as a result of the Owner's failure to render decisions in a timely manner. b. Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction, except for services required under Section VD2e c. Preparing Drawings, Specifications and other documentation and supporting data, evaluating Contractor's proposals, and providing other services in connection with Change Orders and Construction Change Directives. d. Providing services in connection with evaluating substitutions proposed by the Contractor and making subsequent revisions to Drawings, Specifications and other documentation resulting therefrom. e. Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. f. Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. g. Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work. - 11 - h. Providing services in connection with a public hearing, a dispute resolution proceeding or a legal proceeding except where the Consultant is party thereto. i. Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase. 4. OPTIONAL ADDITIONAL SERVICES a. Providing financial feasibility or other special studies. b. Providing planning surveys, site evaluations or comparative studies of prospective sites. c. Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. d. Providing services relative to future facilities, systems and equipment. e. Providing services to verify the accuracy of drawings or other information furnished by the Owner. f. Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. g. Providing services in connection with the work of a construction manager or separate consultants retained by the Owner. h. Providing detailed quantity surveys or inventories of material, equipment and labor. i. Providing analyses of owning and operating costs. j. Providing services for planning tenant or rental spaces. k. Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. I. Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. m. Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than 60 days after the date of Substantial Completion of the Work. n. Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. -12 - o. Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. p. Hydrological studies required for LEED certification beyond the silver certification level. q. Energy modeling required for LEED certification beyond the silver certification level. r. Building Commissioning services as they relate to start up of building systems or LEED requirements. E. Payments are due and payable ten (10) days from the date of the Consultant's invoice. Amounts unpaid thirty (30) days after the invoice date shall bear interest at the legal rate prevailing from time to time at the principal place of business of the Consultant. F. COMPENSATION FOR ADDITIONAL SERVICES 1. For Project Representation Beyond Basic Services and for Addition Services as described above, compensation shall be computed as follows: Principal Project Manager Project Architect Architect Intern Architect CAD Technician Interior Designer Administrative Assistant Consultants V. MISCELLANEOUS $170.00 $110.00 $89.00 $75.00 $57.00 $46.00 $64.00 $45.00 Hourly rates at tim,e of service A. All provisions of the Agreement shall be reconciled in accordance with the generally accepted practices and standard of care within the Architectural Profession. B. It is further agreed that there are no other considerations or monies contingent upon or resulting from the execution of this Agreement, that it is the entire Agreement, and that no other monies or considerations have been solicited. C. If the Basic Services covered by this Agreement have not been completed within twenty four (24) months of the date hereof, through no fault of the Consultant, extension of the Consultant's services beyond that time shall be compensated as provided in Part IV. D CONSTRUCTION COST 1. DEFINITION - The Construction Cost shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project designed or specified by the Consultant. - 13 - a. The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Consultant, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor, plus a reasonable allowance for their overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work. b. Construction Cost does not include the compensation of the Consultant and the Consultant's consultants, the costs of the land, rights-of-way and financing or other costs that are the responsibility of the Owner. 2. RESPONSIBILITY FOR CONSTRUCTION COST a. Evaluations of the Owner's Project budget, the preliminary estimate of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Consultant, represent the Consultant's judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Consultant nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Consultant cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Consultant. b. No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties hereto. If such a fixed limit has been established, the Consultant shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. c. If the Bidding or Negotiation Phase has not commenced within 90 days after the Consultant submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry. d. If a fixed limit of Construction Cost (adjusted as provided in Section VD2c) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall: .1 give written approval of an increase in such fixed limit; -14 - .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section IIIB; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. e. If the Owner chooses to proceed under Section VD2d.4, the Consultant, without additional compensation, shall modify the documents for which the Consultant is responsible under this Agreement as necessary to comply with the fixed limit, if established as a condition of this Agreement. The modification of such documents without cost to the Owner shall be the limit of the Consultant's responsibility under this Section. The Consultant shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. E. DISPUTE RESOLUTION 1. MEDIATION a. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation or the institution of legal or equitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Consultant's services, the Consultant may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation. b. The Owner and Consultant shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing with an institution of legal or equitable proceedings, in such event, mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. c. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 2. Under no circumstances shall binding arbitration be required as to any dispute arising between the parties or under the Contract Documents. F. Terms in this Agreement shall have the same meaning as those in the edition of AlA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. -15- G. CLAIMS FOR CONSEQUENTIAL DAMAGES 1. The Consultant and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article III. H. Unless otherwise provided in this Agreement, the Consultant and Consultant's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. :~R~( J~..- -- Title: Mayor Date: October 17. 7006 ATTEST: ~4~ k. k'A~ City Clerk Date: October 9. 2006 AP~.~ c;,y Allum".,' ffi~ lii If) I 0 , Date pw\forms\consagmlfrm Christian Retirement, Oaknoll.444549-5 Amending Resolution Servicing Agt Ie 4823-9294-3105\1 M, Iowa City, Iowa October 17, 2006 The City Council of Iowa City, Iowa, met in regular session on October 17, 2006, at 7' nn p.m., at the City Hall, in Iowa City, Iowa. The meeting was called to order by the Mayor and the roll being called, there were present the Mayor and the following named Council Members: Present: Bailey. r.h~mpionr r.nTTPi~r F.llioTT, o'nnnn~11, Vanderhoef, WilbuIn Absent: Nnn~ * * * Other Business * * * The City Council took up and considered matters relating to amendments to a Pledge, Servicing and Participation Agreement and a Loan Agreement related to its Senior Housing Facilities Revenue Bond (Oaknoll Project), Series 2004A. After discussion, Council Member V~nnprhnpf introduced the following resolution and moved its adoption, seconded by Council Member 0' nnnnp' , ; and after due consideration thereof by the Council, the Mayor put the question on the motion and upon the roll being called, the following named Council Members voted: i\yes: Correia. F,11iott. o'nnnnp-ll V~nnPThn~fr Yi1burn, Bailey, Champion Nays: Nnnp Whereupon, the Mayor declared said motion duly carried and the resolution adopted as follows: ; -1- Christian Retirement, Oaknoll,444549~5 Amending Resolution Servicing Agt IC 4823-9294-3105\1 RESOLUTION 06-334 RESOLUTION AMENDING THE PLEDGE, SERVICING AND PARTICIPATION AGREEMENT AND THE LOAN AGREEMENT RELATING TO THE SENIOR HOUSING FACILITIES REVENUE BOND (OAKNOLL PROJECT) SERIES 2004A. WHEREAS, the City of Iowa City, in the County of Johnson, State of Iowa (the "Issuer"), is an incorporated municipality authorized and empowered by the provisions of Chapter 419 of the Code ofIowa, 2005, as amended (the "Act") to issue revenue bonds or notes for a project located within or within eight miles of the Issuer for the purpose of financing the cost of acquiring, by construction or purchase, land, buildings, improvements and equipment, or any interest therein, suitable for the use of any facility for an organization described in Section 501(c)(3) of the Internal Revenue Code (the "Code") which is exempt from federal income tax under Section 50I(a) of the Code (a "Tax Exempt Organization"), and to refund any bonds issued pursuant to the Act; and WHEREAS, the Issuer has previously issued its Senior Housing Facilities Revenue Bond (Oaknoll Project), Series 2004A in an aggregate principal amount of $7,000,000 (the "Bond") pursuant to the Act and a Pledge, Servicing and Participation Agreement dated as of December 1, 2004 (the "Servicing Agreement") among the Issuer, West Bank (the "Servicer"), and Christian Retirement Services, Inc. (the "Borrower"), and loaned the proceeds thereof to the Borrower pursuant to a Loan Agreement dated as of December 1, 2004 (the "Loan Agreement") among the Issuer, the Servicer and the Borrower to provide a portion of the financing for (1) the construction, renovation, expansion, equipping and furnishing of the facilities of the Borrower including (i) approximately fifty-two (52) independent living apartments, (ii) several resident common areas and service areas including the main entrance and lobby, the main dining room, the kitchen, administrative offices, the exercise room, and the beauty shop, (iii) a swimming and therapy pool, and (iv) fully enclosed parking and the renovation of surface-level parking to multi-level parking, and related improvements thereto, all located on the Borrower's campus on the north side of Benton Street between George Street and vacated Benton Court in Iowa City, Iowa (the "Project") and (2) paying for costs of issuance of the Bond pursuant to the Act; and WHEREAS, the Borrower arranged for the sale of the Bond to West Bank (the "Servicer") and certificates of participation in the Bond were sold to participants identified in the Servicing Agreement; WHEREAS, the Borrower and the Servicer have requested that the Issuer approve an amendment to the Servicing Agreement and the Loan Agreement to change the terms regarding the mandatory prepayment provisions, the principal payment provisions and the draw down period on the Bond; and WHEREAS, a form of Second Amendment to Pledge, Servicing and Participation Agreement (the "Amended Servicing Agreement") and the First Amendment to Loan Agreement - 2- ---_._.__._-_._--,--~_.._-------,------~--~-- - Christian Retirement. Oaknoll,444549-5 Amending Resolution Servicing Agt IC 4823-9294-3105\1 ("Amended Loan Agreement," and together with the Amended Servicing Agreement, the "Amendments") incorporating such amendments have been prepared and presented to the City Council for consideration; NOW, THEREFORE, IT IS RESOLVED by the City Council of the Issuer, as follows: Section I. The Amendments, including the form of the Bond, are hereby approved and the Mayor and the City Clerk are hereby authorized and directed to execute and deliver the Amendments and amended Bond on behalf of the Issuer in substantially the forms as have been submitted to and considered by the City Council with such changes therein as may be necessary. Section 2. Except as amended by the Amendments, the Servicing Agreement, the LOan Agreement and the Bond shall remain in full force and effect. Section 3. All resolutions or parts thereof in conflict herewith are repealed, to the extent of such conflict. Section 4. approval. This Resolution shall become effective immediately upon its passage and Passed and approved October 17, 2006 ~wuL Mayor Attest: )7~u-.~/ *,. ~ City erk * * * Other Business * * * On motion and vote, the meeting adjourned. - 3 - Christian Rotirement, OaknoJl,444549-5 Amending Resolution Servicing Agt Ie 4823-9294-3105\1 STATE OF IOWA COUNTY OF JOHNSON CITY OF lOW A CITY SS: I, the undersigned, being first duly sworn, do hereby depose and certify that I am the duly appointed, qualified and acting designee of the City Clerk of the aforementioned City and that as such I have in my possession, or have access to, the complete corporate records of said City and of this Council and its officers; that I have carefully compared the transcript hereto attached with the aforesaid corporate records; and that said transcript hereto attached is a true, correct and complete copy of the all the corporate records in relation to the adoption of a Resolution amending the Servicing Agreement and the Loan Agreement related to the Senior Housing Facilities Revenue Bond, (Oaknoll Project) Series 2004A. WITNESS my hand and the corporate seal of said City hereto affixed this 18th day of October, 2006. ~~.~/ City CIerk (Seal) -4-