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10 20 08 City Council Proceedings Official CITY OF DUBUQUE, IOWA CITY COUNCIL PROCEEDINGS OFFICIAL The Dubuque City Council met in regular session at 6:30 p.m. on October 20, 2008 in the Historic Federal Building. Present: Mayor Buol, Council Members Braig, Connors, Jones, Lynch, Resnick, Voetberg, City Manager Van Milligen, City Attorney Lindahl Mayor Buol read the call and stated this is a regular session called for the purpose of discussing such matters which may properly come before the City Council. Invocation was provided by Sister Mary Ann Zollman, President, BVM Center. PROCLAMATIONS th Sisters of Charity BVM 175 Anniversary Week (October 26 – November 1, 2008) was accepted by Sister Mary Ann Zollman, Sisters of Charity, BVM, 1100 Carmel Drive; Dubuque Weatherization Challenge Day (October 25, 2008) was accepted by Laura Roussell of Black Hills Energy, 1015 rd Cedar Cross Road; Carrie Tedore of the Diamond Jo Casino, 400 East 3 Street; and Tom Stovall of Operation: New View, 1473 Central Avenue; Veterans Appreciation Month (November 2008) was accepted by Glen Gassman of Iowa Workforce Development, 590 Iowa Street; Be a Santa to a Senior Month (November 2008) was accepted by Megan Schumacher of Home Instead Senior Care, 800 White Street, Suite 100. CONSENT ITEMS Motion by Lynch to receive and file the documents, adopt the resolutions, and dispose of as indicated. Seconded by Voetberg. Jones requested (#3) Civil Service Commission Resignation be held for separate discussion. Motion carried 7-0. Minutes and Reports Submitted: Cable TV Teleprogramming Commission of 7/1, 8/5 and 9/1; City Council of 10/6 and 10/13; Civil Service Commission of 8/28; Housing Trust Fund Committee of 6/18 and 8/22; Human Rights Commission of 9/8; Plumbing Board of 10/8; Zoning Advisory Commission of 10/1; Zoning Board of Adjustment of 8/28 and 9/25. Proofs of publication of City Council proceedings of September 15 and 18, 2008 and October 1, 2008 Upon motion the documents were received and filed. Notice of Claims/Suits: Teri Noel for property damage; Kevin and Heather Sargent for vehicle damage. Upon motion the documents were received and filed and referred to the City Attorney. City Attorney advising that the following claims have been referred to Public Entity Risk Services of Iowa, the agent for the Iowa Communities Assurance Pool: Kevin and Heather Sargent for vehicle damage; Jane Spurling for vehicle damage. City Attorney recommending that the claim of Teri Noel for property damage be referred to Tricor Insurance and Financial Services, insurer for Fred Jackson Tuckpointing. Upon motion the documents were received and filed and concurred. Civil Service Commission: Loras Kluesner submitting his resignation from the Civil Service Commission effective immediately (October 3, 2008). Motion by Jones to receive and file the document and accept the resignation. Seconded by Connors. Motion carried 7-0. Alternative Service Concepts (ASC) Fee Renewal – Workers’ Compensation: City Manager recommending approval of the renewal rates from Alternative Service Concepts (ASC) for the City’s workers’ compensation claims administrator. Upon motion the documents were received, filed, and approved. Delinquent Water, Sewer, Refuse and Stormwater Collection Accounts: City Manager recommending approval of the submission of delinquent water, sewer, refuse and stormwater collection accounts to the Dubuque County Treasurer. Upon motion the documents were received and filed and Resolution No. 360-08 Adopting the Schedule of Assessments for delinquent water, refuse, sewer and stormwater collection accounts and specifying the number of annual installments into which assessments are divided, the interest on all unpaid installments, the time when the assessments are payable and directing the Clerk to certify the schedule of assessments to the County Treasurer and to publish notice thereof was adopted. RESOLUTION NO. 360-08 ADOPTING THE SCHEDULE OF ASSESSMENTS FOR DELINQUENT WATER, SEWER, REFUSE AND STORMWATER COLLECTION ACCOUNTS SPECIFYING THE NUMBER OF ANNUAL INSTALLMENTS INTO WHICH ASSESSMENTS ARE DIVIDED, THE INTEREST ON ALL UNPAID INSTALLMENTS, THE TIME WHEN THE ASSESSMENTS ARE PAYABLE AND DIRECTING THE CLERK TO CERTIFY THE SCHEDULE OF ASSESSMENTS TO THE COUNTY TREASURER AND TO PUBLISH NOTICE THEREOF NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That after full consideration of the Schedule of Assessments attached hereto for delinquent water, refuse, sewer and stormwater collection accounts which Schedule of Assessments was filed in the office of the City Clerk on the 10th day of October, 2008, the said Schedule of Assessments be and the same is hereby approved and adopted. That there be, and is herby assessed and levied as a special tax against and upon each of the lots, the respective sums indicated. That the City Clerk be and is hereby directed to certify said schedule to the County Treasurer of Dubuque County, Iowa, and to publish notice of said certification once each week for two consecutive weeks in the manner provided in Iowa Code § 362.3, the first publication of which shall be not more than fifteen days from the date of filing of the final schedule. On or before the date of the second publication of the notice, the City Clerk shall also mail a copy of said notice to property owners whose property is subject to assessment, as provided and directed in Iowa Code § 384.60. The assessments may be paid in full or in part without interest at the Utility Billing office, City Hall, th 50 W. 13 Street, Dubuque, Iowa, at any time within 30 days after the date of the first publication of the notice of the filing of the Schedule of Assessments with the County Treasurer. After 30 days, unpaid assessments of $100.00 or more are payable in 10 annual installments at the County Treasurer’s Office, Dubuque County Courthouse, 720 Central Avenue, Dubuque, Iowa, and will draw annual interest at nine (9) percent (commencing on the date of acceptance of the work) computed to December 1 next following the due dates of the respective installments as provided in Section 384.65 of the Code of Iowa. Each installment will be delinquent from October 1 following its due date on July 1 of each year. Property owners may elect to pay any annual installments semiannually in advance. Passed, approved and adopted this 20th day of October, 2008. Roy D. Buol, Mayor 2 Attest: Jeanne F. Schneider, CMC, City Clerk Canadian Pacific Railroad: Communication from Fred Green, President and CEO of Canadian Pacific Railroad, advising that the US Surface Transportation Board has approved Canadian Pacific’s application to acquire control of the Dakota, Minnesota & Eastern (DM&E) and the Iowa, Chicago & Eastern (IC&E) Railroads. Upon motion the document was received and filed. Citizen Communication: Communication from Greg and Peggy Stover, 1145 Locust Street, requesting to vacate and purchase a piece of City-owned land at the base of the retaining wall th located at 11 Street. Upon motion the document was received and filed and referred to the City Manager. Iowa Department of Public Health: Communication from the Iowa Department of Public Health advising that the US Public Health Service Centers for Disease Control has recognized the City’s Water Department staff for consistently maintaining the fluoride level in the water system within the range considered optimum for the prevention of tooth decay. Upon motion the document was received and filed. Plat of Survey – Fountain Hill Subdivision No. 3: Zoning Advisory Commission recommending approval of the Plat of Survey of Fountain Hill Subdivision No. 3, located north of Roosevelt Road, as requested by Dave Schneider. Upon motion the documents were received and filed and Resolution No. 361-08 Approving the Plat of Survey of Fountain Hill Subdivision No. 3 in the City of Dubuque, Iowa, was adopted. RESOLUTION NO. 361-08 A RESOLUTION APPROVING THE PLAT OF SURVEY OF FOUNTAIN HILL SUBDIVISION NO.3 IN THE CITY OF DUBUQUE, IOWA. Whereas, there has been filed with the City Clerk a Plat of Survey Fountain Hill Subdivision No. 3 in the City of Dubuque, Iowa; and Whereas, said Plat of Survey provides 0 feet of lot frontage for Lot 1 and Lot 2, where 50 feet of lot frontage is required by Section 42-19(b) of the Subdivision Regulations; and Whereas, the Plat of Survey has been examined by the Zoning Advisory Commission and had its approval endorsed thereon; and Whereas, said Plat of Survey has been examined by the City Council and they find that it conforms to the statues and ordinances relating thereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Section 42-19(b) of the Subdivision Regulations is waived to allow Lot 1 and Lot 2 to have 0 feet of lot frontage, where 50 feet of lot frontage is required. Section 2. That the Plat of Survey Fountain Hill Subdivision No. 3 is hereby approved and the Mayor and City Clerk are hereby authorized and directed to endorse the approval of the City of Dubuque, Iowa upon said Final Plat. th Passed, approved and adopted this 20 day of October 2008 Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Final Plat – Graf Farm Subdivision: Zoning Advisory Commission recommending approval of the Final Plat of Graf Farm Subdivision, located on Humke Road in Dubuque County, as requested by James Graf. Upon motion the documents were received and filed and Resolution No. 362-08 3 Approving the final plat of Graf Farm Subdivision in Dubuque County, Iowa, was adopted. RESOLUTION NO. 362-08 A RESOLUTION APPROVING THE FINAL PLAT OF GRAF FARM SUBDIVISION IN DUBUQUE COUNTY, IOWA. Whereas, there has been filed with the City Clerk a Final Plat of Graf Farm Subdivision in Dubuque County, Iowa; and Whereas, the Final Plat has been examined by the Zoning Advisory Commission and had its approval endorsed thereon; and Whereas, said Final Plat has been examined by the City Council and they find that it conforms to the statues and ordinances relating thereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City Council hereby waives Article IV, Design and Improvement Standards of the Subdivision Regulations, except Section 42-19, Blocks and Lots. Section 2. That the Final Plat of Graf Farm Subdivision is hereby approved and the Mayor and City Clerk are hereby authorized and directed to endorse the approval of the City of Dubuque, Iowa upon said Final Plat. th Passed, approved and adopted this 20 day of October 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Federal Building – Exterior Window Lead Abatement Removal and Painting, and Renovated Areas Window Repair, Glass Replacement, Interior Window Lead Paint Removal and Painting Project: City Manager recommending acceptance of the Federal Building Exterior Window Lead Paint Removal and Painting, and Renovated Areas Window Repair, Glass Replacement, Interior Window Lead Paint Removal and Painting Project as completed by Tricon General Construction. Upon motion the documents were received and filed and Resolution No. 363-08 Accepting the Federal Building Exterior Window Lead Paint Removal and Painting, and Renovated Areas Window Repair, Glass Replacement, Interior Window Lead Paint Removal and Painting Project was adopted. RESOLUTION NO. 363-08 ACCEPTING THE FEDERAL BUILDING EXTERIOR WINDOW LEAD PAINT REMOVAL & PAINTING, AND RENOVATED AREAS WINDOW REPAIR, GLASS REPLACEMENT, INTERIOR WINDOW LEAD PAINT REMOVAL & PAINTING PROJECTAND AUTHORIZING THE PAYMENT OF THE CONTRACT AMOUNT TO THE CONTRACTOR Whereas, the Public Improvement Contract for the Federal Building Exterior Window Lead Paint Removal & Painting, and Renovated Areas Window Repair, Glass Replacement, Interior Window Lead Paint Removal & Painting Project. (the Project) has been completed and the City Engineer has examined the work and filed a certificate stating that the Project has been completed according to the terms of the Public Improvement Contract and that the City Engineer recommends that the Project be accepted. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The recommendation of the City Engineer is approved and the Project is hereby accepted. Section 2. The Finance Director is hereby directed to pay to the Contractor from the Federal Building Renovation appropriation for the contract amount of $453,425.82 less any retained percentage provided for therein as provided in Iowa Code chapter 573, and to pay such retainage 4 only in accordance with the provisions of Iowa Code chapter 573. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk CITY ENGINEER’S CERTIFICATE OF FINAL COMPLETION OF THE FEDERAL BUILDING EXTERIOR WINDOW LEAD PAINT REMOVAL & PAINTING, AND RENOVATED AREAS WINDOW REPAIR, GLASS REPLACEMENT, INTERIOR WINDOW LEAD PAINT REMOVAL & PAINTING PROJECT The undersigned City Engineer of the City of Dubuque, Iowa, hereby certifies that he has inspected the Federal Building Exterior Window Lead Paint Removal & Painting, and Renovated Areas Window Repair, Glass Replacement, Interior Window Lead Paint Removal & Painting Project, that the Project has been performed in compliance with the terms of the Public Improvement Contract, and that the total cost of the completed work is $453,425.82. th Dated this 16 day of October, 2008. Gus Psihoyos, City Engineer th Filed in the office of the City Clerk on the 16 day of October, 2008. Jeanne F. Schneider, CMC, City Clerk Plymouth Court Sanitary Sewer Extension Project: City Manager recommending acceptance of the Plymouth Court Sanitary Sewer Extension Project as completed by Drew Cook & Sons Excavating Co., Inc., in the final contract amount of $69,792.34. Upon motion the documents were received and filed and Resolution No. 364-08 Accepting the Plymouth Court Sanitary Sewer Extension Project was adopted. RESOLUTION NO. 364-08 ACCEPTING THE PLYMOUTH COURT SANITARY SEWER EXTENSION PROJECT AND AUTHORIZING THE PAYMENT OF THE CONTRACT AMOUNT TO THE CONTRACTOR Whereas, the Public Improvement Contract for the Plymouth Court Sanitary Sewer Extension Project (the Project) has been completed and the City Engineer has examined the work and filed a certificate stating that the Project has been completed according to the terms of the Public Improvement Contract and that the City Engineer recommends that the Project be accepted. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The recommendation of the City Engineer is approved and the Project is hereby accepted. Section 2. The Finance Director is hereby directed to pay to the Contractor from the Plymouth Court Sanitary Sewer Capital Improvement Project, the General Storm Sewer Repairs Capital Improvement Project appropriations and savings from the Cleveland Avenue Reconstruction Project for the contract amount of $69,792.34 less any retained percentage provided for therein as provided in Iowa Code chapter 573, and to pay such retainage only in accordance with the provisions of Iowa Code chapter 573. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk CITY ENGINEER’S CERTIFICATE OF FINAL COMPLETION OF THE PLYMOUTH COURT SANITARY SEWER EXTENSION PROJECT The undersigned City Engineer of the City of Dubuque, Iowa, hereby certifies that he has 5 inspected the Plymouth Court Sanitary Sewer Extension Project, that the Project has been performed in compliance with the terms of the Public Improvement Contract, and that the total cost of the completed work is $78,390.75. Dated this 16th day of October, 2008. Gus Psihoyos, City Engineer th Filed in the office of the City Clerk on the 16 day of October, 2008. Jeanne F. Schneider, CMC, City Clerk Rhomberg Avenue Alley Sanitary Sewer Reconstruction Project: City Manager recommending acceptance of the Rhomberg Avenue Alley Sanitary Sewer Reconstruction Project as completed by Top Grade Excavating, Inc., in the final contract amount of $72,962.64. Upon motion the documents were received and filed and Resolution No. 365-08 Accepting the Rhomberg Avenue Alley Sanitary Sewer Extension Project was adopted. RESOLUTION NO. 365-08 ACCEPTING THE ALLEY SANITARY SEWER RECONSTRUCTION PROJECT BETWEEN LINCOLN AND RHOMBERG AND FROM MARSHALL STREET TO HAMILTON STREET AND AUTHORIZING THE PAYMENT OF THE CONTRACT AMOUNT TO THE CONTRACTOR Whereas, the Public Improvement Contract for the Alley Sanitary Sewer Reconstruction Project between Lincoln and Rhomberg and from Marshall Street to Hamilton Street (the Project) has been completed and the City Engineer has examined the work and filed a certificate stating that the Project has been completed according to the terms of the Public Improvement Contract and that the City Engineer recommends that the Project be accepted. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The recommendation of the City Engineer is approved and the Project is hereby accepted. Section 2. The Finance Director is hereby directed to pay to the Contractor from the Alley – Rhomberg/Lincoln Sewer Capital Improvement Project appropriation for the contract amount of $72,962.64 less any retained percentage provided for therein as provided in Iowa Code chapter 573, and to pay such retainage only in accordance with the provisions of Iowa Code chapter 573. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk CITY ENGINEER’S CERTIFICATE OF FINAL COMPLETION OF THE ALLEY SANITARY SEWER RECONSTRUCTION PROJECT BETWEEN LINCOLN AND RHOMBERG AND FROM MARSHALL STREET TO HAMILTON STREET The undersigned City Engineer of the City of Dubuque, Iowa, hereby certifies that he has inspected the Alley Sanitary Sewer Reconstruction Project between Lincoln and Rhomberg and from Marshall Street to Hamilton Street, that the Project has been performed in compliance with the terms of the Public Improvement Contract, and that the total cost of the completed work is $79,962.64. th Dated 16 day of October, 2008. Gus Psihoyos, City Engineer th Filed in the office of the City Clerk on the 16 day of October, 2008. Jeanne F. Schneider, CMC, City Clerk Bee Branch Creek Restoration Project – Purchase of Property Owned by Junnie and Rich’s Coin Partnership: City Manager recommending approval of the acquisition of real estate owned by Junnie 6 and Rich’s Coin Partnership in connection with the Bee Branch Creek Restoration Project. Upon motion the documents were received and filed and Resolution No. 366-08 Approving the acquisition of real estate owned by Junnie and Rich’s Coin Partnership in the City of Dubuque, Iowa (Lot 319); and Resolution No. 367-08 Approving the acquisition of real estate owned by Junnie and Rich’s Coin Partnership in the City of Dubuque, Iowa (Lot 353) were adopted. RESOLUTION NO. 366-08 A RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY JUNNIE AND RICH’S COIN PARTNERSHIP IN THE CITY OF DUBUQUE , Whereasthe City of Dubuque intends to acquire certain properties located in the area of the Bee Branch Creek Restoration Project for stormwater mitigation activities as recommended in the 2001 HDR “Drainage Basin Master Plan;” and , Whereasa purchase agreement has been finalized with the owner of the property scheduled for acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque hereby approves the acquisition of the following legally described property: Lot 319 and Westerly One-Half of Lot 352, in East Dubuque No. 2, all in the City of Dubuque, Dubuque County, Iowa, at the cost of One Hundred Two Thousand Five Hundred and 00/100 Dollars ($102,500.00). Section 2. That the City of Dubuque be and is hereby authorized to accept a Quit Claim deed from the owner, conveying the owner’s interest to the City of Dubuque, Iowa for the herein described real estate. Section 3. That the City Clerk be and is hereby authorized and directed to cause said Quit Claim Deed to be recorded in the office of the Dubuque County Recorder, together with certified copy of the Resolution. Section 4. That the City Clerk be and is hereby directed to forward a copy of this Resolution to the Dubuque County Assessor and the Dubuque County Auditor. th Passed, approved, and adoptedthis 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 367-08 A RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY JUNNIE AND RICH’S COIN PARTNERSHIP IN THE CITY OF DUBUQUE Whereas,the City of Dubuque intends to acquire certain properties located in the area of the Bee Branch Creek Restoration Project for stormwater mitigation activities as recommended in the 2001 HDR “Drainage Basin Master Plan;” and Whereas,a purchase agreement has been finalized with the owner of the property scheduled for acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque hereby approves the acquisition of the following legally described property: Lot 353 and the Eastern One-Half of Lot 352, in East Dubuque No. 2, all in the City of Dubuque, Dubuque County, Iowa, at the cost of One Hundred Two Thousand Five Hundred and 00/100 Dollars ($102,500.00). Section 2. That the City of Dubuque be and is hereby authorized to accept a Quit Claim deed from the owner, conveying the owner’s interest to the City of Dubuque, Iowa for the herein described real estate. 7 Section 3. That the City Clerk be and is hereby authorized and directed to cause said Quit Claim Deed to be recorded in the office of the Dubuque County Recorder, together with certified copy of the Resolution. Section 4. That the City Clerk be and is hereby directed to forward a copy of this Resolution to the Dubuque County Assessor and the Dubuque County Auditor. th Passed, approved and adoptedthis 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Bee Branch Creek Restoration Project – Purchase of Property Owned by Milton E. Schwartz: City Manager recommending approval of the acquisition of real estate owned by Milton E. Schwartz in connection with the Bee Branch Creek Restoration Project. Upon motion the documents were received and filed and Resolution No. 368-08 Approving the acquisition of real estate owned by Milton E. Schwartz in the City of Dubuque, Iowa, was adopted. RESOLUTION NO. 368-08 A RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY MILTON E. SCHWARTZ IN THE CITY OF DUBUQUE Whereas,the City of Dubuque intends to acquire certain properties located in the area of the Bee Branch Creek Restoration Project for stormwater mitigation activities as recommended in the 2001 HDR “Drainage Basin Master Plan;” and Whereas,a purchase agreement has been finalized with the owner of the property scheduled for acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque hereby approves the acquisition of the following legally described property: Lot 291 East Dubuque Addition, 1547 Maple & 574 East 16th Street, all in the City of Dubuque, Dubuque County, Iowa, at the cost of One Hundred Twenty Two Thousand and 00/100 Dollars ($122,000.00). Section 2. That the City of Dubuque be and is hereby authorized to accept a Quit Claim deed from the owner, conveying the owner’s interest to the City of Dubuque, Iowa for the herein described real estate. Section 3. That the City Clerk be and is hereby authorized and directed to cause said Quit Claim Deed to be recorded in the office of the Dubuque County Recorder, together with certified copy of the Resolution. Section 4. That the City Clerk be and is hereby directed to forward a copy of this Resolution to the Dubuque County Assessor and the Dubuque County Auditor. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Bee Branch Creek Restoration Project – Purchase of Property Owned by G & S Real Estate: City Manager recommending approval of the acquisition of real estate owned by G & S Real Estate in connection with the Bee Branch Creek Restoration Project. Upon motion the documents were received and filed and Resolution No. 369-08 Approving the acquisition of real estate owned by G & S Real Estate in the City of Dubuque, Iowa, was adopted. 8 RESOLUTION NO. 369-08 A RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE OWNED BY G & S REAL ESTATE IN THE CITY OF DUBUQUE Whereas,the City of Dubuque intends to acquire certain properties located in the area of the Bee Branch Creek Restoration Project for stormwater mitigation activities as recommended in the 2001 HDR “Drainage Basin Master Plan;” and Whereas,a purchase agreement has been finalized with the owner of the property scheduled for acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque hereby approves the acquisition of the following legally described property: South One-Half Lot 289 East Dubuque No. 2, in the City of Dubuque, Dubuque County, Iowa. At the cost of Thirty-Four Thousand Five Hundred and/00 Dollars ($34,500.00). Section 2. That the City of Dubuque be and is hereby authorized to accept a Quit Claim deed from the owner, conveying the owner’s interest to the City of Dubuque, Iowa for the herein described real estate. Section 3. That the City Clerk be and is hereby authorized and directed to cause said Quit Claim Deed to be recorded in the office of the Dubuque County Recorder, together with certified copy of the Resolution. Section 4. That the City Clerk be and is hereby directed to forward a copy of this Resolution to the Dubuque County Assessor and the Dubuque County Auditor. th t Passed, approved and adoptedhis 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Purchase of Property – 2241 Prince Street: City Manager recommending approval of the purchase of a residential dwelling located at 2241 Prince Street as part of the acquisition program associated with the Bee Branch Creek Restoration Project. Upon motion the documents were received and filed and Resolution No. 370-08 Approving the acquisition of real estate located at 2241 Prince Street in the City of Dubuque, Iowa, was adopted. RESOLUTION NO. 370-08 A RESOLUTION APPROVING THE ACQUISITION OF REAL ESTATE LOCATED AT 2241 PRINCE STREET, IN THE CITY OF DUBUQUE WHEREAS, the City of Dubuque intends to acquire certain properties located in the area of the Bee Branch Creek Restoration Project for stormwater mitigation activities as recommended in the 2001 HDR “Drainage Basin Master Plan;” and WHEREAS, a purchase agreement has been finalized with the owner of the fifty fourth property scheduled for acquisition. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That the City of Dubuque hereby approves the acquisition of the following legally described property: Lot 2 of the Subdivision of Lot 50, and Lots 2 and 3 of the Subdivision of Lot 49, in Sanford’s Subdivision in the City of Dubuque, Iowa, according to the recorded plat thereof. At the cost of Fifty- one thousand dollars ($51,000). 9 Section 2.That the City of Dubuque be and is hereby authorized to accept a Quit Claim deed from the owner, conveying the owner’s interest to the City of Dubuque, Iowa for the herein described real estate. Section 3. That the City Clerk be and she is hereby authorized and directed to cause said Quit Claim Deed to be recorded in the office of the Dubuque County Recorder, together with certified copy of the Resolution. Section 4. That the City Clerk be and she is hereby directed to forward a copy of this Resolution to the Dubuque County Assessor and the Dubuque County Auditor. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne Schneider, CMC, City Clerk Former Kephart Building Improvements – Consultant Selection: City Manager recommending approval of the selection of The Durrant Group to provide architectural and construction administration services associated with the Kephart Building Improvement Project. Upon motion the documents were received, filed, and approved. Iowa 32 (Southwest Arterial) – Request for Proposals: City Manager recommending approval to initiate the Request for Proposals process for professional consultant services to complete the final design and to develop construction documents for the Iowa Highway 32 (Southwest Arterial) Project. Upon motion the documents were received, filed, and approved. Emergency Repairs of Retaining Wall at 1695 Garfield Avenue: City Manager recommending approval of emergency repairs to the retaining wall at 1695 Garfield Avenue. Upon motion the documents were received and filed and Resolution No. 371-08 Authorizing emergency repairs to the retaining wall at 1695 Garfield Avenue was adopted. Seconded by Connors. Motion carried 7-0. (Note: This item was reconsidered at the end of the meeting.) RESOLUTION NO. 371-08 AUTHORIZING EMERGENCY REPAIRS TO THE RETAINING WALL AT 1695 GARFIELD AVENUE Whereas, a retaining wall along 1695 Garfield Avenue is failing and threatening the public sidewalk on Hamilton Street; and Whereas, Iowa Code § 384.103 provides that when emergency repair of a public improvement is necessary and the delay of advertising and a public letting might cause serious loss or injury to the city, the governing body shall, by resolution, make a finding of the necessity to institute emergency proceedings and shall procure a certificate from a competent registered professional engineer or architect, not in the regular employ of the city, certifying that emergency repairs are necessary, and that in that event the governing body may contract for emergency repairs without holding a public hearing and advertising for bids; and Whereas, the City Council finds that the emergency repair of the retaining wall is necessary to protect the public sidewalk on Hamilton Street and the delay of advertising and a public letting might cause serious loss or injury to the city; and Whereas, the City has procured a certificate from a competent professional engineer registered in the State of Iowa, not in the regular employ of the City, certifying that emergency repairs to the retaining wall are necessary. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council finds that it is necessary to institute emergency proceedings to repair 10 the retaining wall along 1695 Garfield Avenue. Section 2. The City Manager is hereby authorized to proceed with instituting such emergency repairs as provided by law. th Passed, adopted and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Warehouse Cultural and Entertainment District Application: Letters of support from the Arts and Cultural Affairs Advisory Commission, Dubuque Area Chamber of Commerce and the Convention and Visitors Bureau for the designation of the Warehouse District as a State Cultural and Entertainment District. Upon motion the documents were received and filed. Fiscal Year 2008 / 2009 School Resource Officer (SRO) Agreement: City Manager recommending approval of the Fiscal Year 2008 / 2009 School Resource Officer Agreement between the City of Dubuque Police Department and the Dubuque Community School District. Upon motion the documents were received, filed, and approved. General Obligation Bonds – Bee Branch Project – Series 2008A: City Manager recommending approval of suggested proceedings to complete the action required for the issuance of not to exceed $3,885,000 General Obligation Bonds for the Bee Branch Project. Upon motion the documents were received and filed and Resolution No. 372-08 Appointing Wells Fargo Bank, National Association of Des Moines, Iowa, to serve as paying agent, bond registrar, and transfer agent, approving the paying agent and bond registrar and transfer agent agreement and authorizing the execution of the agreement; and Resolution No. 373-08 Authorizing and providing for the issuance of $3,885,000 General Obligation Stormwater Bonds, Series 2008A and levying a tax to pay the bonds were adopted. RESOLUTION 372-08 RESOLUTION APPOINTING WELLS FARGO BANK, NATIONAL ASSOCIATION OF DES MOINES, IOWA, TO SERVE AS PAYING AGENT, BOND REGISTRAR, AND TRANSFER AGENT, APPROVING THE PAYING AGENT AND BOND REGISTRAR AND TRANSFER AGENT AGREEMENT AND AUTHORIZING THE EXECUTION OF THE AGREEMENT WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, $3,885,000 General Obligation Stormwater Bonds, Series 2008A, dated the date of delivery, have been sold at public sale and action should now be taken to provide for the maintenance of records, registration of certificates and payment of principal and interest in connection with the issuance of the Bonds; and WHEREAS, this Council has deemed that the services offered by Wells Fargo Bank, National Association of Des Moines, Iowa, are necessary for compliance with rules, regulations, and requirements governing the registration, transfer and payment of registered Bonds; and WHEREAS, a Paying Agent, Bond Registrar and Transfer Agent Agreement (hereafter "Agreement") has been prepared to be entered into between the City and Wells Fargo Bank, National Association. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA: Section 1. That Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby appointed to serve as Paying Agent, Bond Registrar and Transfer Agent in connection with the issuance of $3,885,000 General Obligation Stormwater Bonds, Series 2008A, dated the date of delivery. Section 2. That the Agreement with Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby approved and that the Mayor and Clerk are authorized to sign the Agreement on behalf of the City. 11 th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION 373-08 RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $3,885,000 GENERAL OBLIGATION STORMWATER BONDS, SERIES 2008A, AND LEVYING A TAX TO PAY THE BONDS WHEREAS, the Issuer is duly incorporated, organized and exists under and by virtue of the laws and Constitution of the State of Iowa; and WHEREAS, the Issuer is in need of funds to pay costs of the construction of stormwater management facilities and improvements, including those costs associated with the acquisition of properties for the Bee Branch Creek Restoration Project, an essential corporate purpose, and it is deemed necessary and advisable that General Obligation Stormwater Bonds in the amount of $3,885,000 be issued for that purpose; and WHEREAS, pursuant to notice published as required by Section 384.25 of the Code, this Council has held a public meeting and hearing upon the proposal to institute proceedings for the issuance of not to exceed $4,000,000 General Obligation Bonds for such purposes, and the Council is therefore now authorized to proceed with the issuance of Bonds; and WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, the above mentioned Bonds were heretofore sold at public sale and action should now be taken to issue bonds conforming to the terms and conditions of the best bid received at the advertised public sale: NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Definitions. The following terms shall have the following meanings in this Resolution unless the text expressly or by necessary implication requires otherwise: ? "Authorized Denominations" shall mean $5,000 or any integral multiple thereof. ? "Beneficial Owner" shall mean the person in whose name such Bond is recorded as the beneficial owner of a Bond by a Participant on the records of such Participant or such person's subrogee. ? "Bond Fund" shall mean the fund created in Section 3 of this Resolution. ? "Bonds" shall mean $3,885,000 General Obligation Stormwater Bonds, Series 2008A, authorized to be issued by this Resolution. ? "Cede & Co." shall mean Cede & Co., the nominee of DTC, and any successor nominee of DTC with respect to the Bonds. ? "Continuing Disclosure Certificate" shall mean that certain Continuing Disclosure Certificate executed by the Issuer and dated the date of issuance and delivery of the Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof. ? "Depository Bonds" shall mean the Bonds as issued in the form of one global certificate for each maturity, registered in the Registration Books maintained by the Registrar in the name of DTC or its nominee. ? "DTC" shall mean The Depository Trust Company, New York, New York, a limited purpose trust company, or any successor book-entry securities depository appointed for the Bonds. ? "Issuer" and "City" shall mean the City of Dubuque, Iowa. ? "Participants" shall mean those broker-dealers, banks and other financial institutions for which DTC holds Bonds as securities depository. ? "Paying Agent" shall mean Wells Fargo Bank, National Association, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein as Issuer's agent to provide for the payment of principal of and interest on the Bonds as the same shall 12 become due. ? "Project Fund" shall mean the fund required to be established by this Resolution for the deposit of the proceeds of the Bonds. ? "Rebate Fund" shall mean the fund so defined in and established pursuant to the Tax Exemption Certificate. ? "Registrar" shall mean Wells Fargo Bank, National Association of Des Moines, Iowa, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein with respect to maintaining a register of the owners of the Bonds. Unless otherwise specified, the Registrar shall also act as Transfer Agent for the Bonds. ? "Representation Letter" shall mean the Blanket Issuer Letter of Representations executed and delivered by the Issuer to DTC. ? "Resolution" shall mean this resolution authorizing the Bonds. ? "Tax Exemption Certificate" shall mean the Tax Exemption Certificate executed by the Treasurer and delivered at the time of issuance and delivery of the Bonds. ? "Treasurer" shall mean the Treasurer or such other officer as shall succeed to the same duties and responsibilities with respect to the recording and payment of the Bonds issued hereunder. Section 2. Levy and Certification of Annual Tax; Other Funds to be Used. (a) Levy of Annual Tax. That for the purpose of providing funds to pay the principal and interest of the Bonds hereinafter authorized to be issued, there is hereby levied for each future year the following direct annual tax on all of the taxable property in Dubuque, Iowa, to-wit: FISCAL YEAR (JULY 1 TO JUNE 30) YEAR OF COLLECTION: AMOUNT 2009/2010 $500,204 2010/2011 303,590 2011/2012 303,153 2012/2013 297,528 2012/2014 301,903 2014/2015 300,503 2015/2016 298,903 2016/2017 297,103 2017/2018 299,928 2018/2019 297,065 2019/2020 298,895 2020/2021 295,145 2021/2022 296,125 2022/2023 296,450 2023/2024 301,325 2024/2025 300,525 2025/2026 298,963 2026/2027 301,743 2027/2028 298,680 (NOTE: For example the levy to be made and certified against the taxable valuations of January 1, 2008, will be collected during the fiscal year commencing July 1, 2009). (b) Resolution to be Filed With County Auditor. A certified copy of this Resolution should be filed with the County Auditor of Dubuque County, Iowa, and the Auditor is hereby instructed in and for each of the years as provided, to levy and assess the tax hereby authorized in Section 2 of this Resolution, in like manner as other taxes are levied and assessed, and such taxes so levied in and for each of the years aforesaid be collected in like manner as other taxes of the City are collected, and when collected be used for the purpose of paying principal and interest 13 on the Bonds issued in anticipation of the tax, and for no other purpose whatsoever. (c) Additional City Funds Available. Principal and interest coming due at any time when the proceeds of the tax on hand shall be insufficient to pay the same shall be promptly paid when due from current funds of the City available for that purpose and reimbursement shall be made from such special fund in the amounts thus advanced. Section 3. Bond Fund. The tax shall be collected each year at the same time and in the same manner as, and in addition to, all other taxes in and for the City, and when collected they shall be converted into a special fund within the Debt Service Fund to be known as the "GENERAL OBLIGATION STORMWATER BOND FUND 2008A" (the "Bond Fund"), which is hereby pledged for and shall be used only for the payment of the principal of and interest on the Bonds hereinafter authorized to be issued; and also there shall be apportioned to the fund its proportion of taxes received by the City from property that is centrally assessed by the State of Iowa. Section 4. Application of Bond Proceeds. Proceeds of the Bonds other than accrued interest except as may be provided below shall be credited to the Project Fund and expended therefrom for the purposes of issuance. Any amounts on hand in the Project Fund shall be available for the payment of the principal of or interest on the Bonds at any time that other funds shall be insufficient to the purpose, in which event such funds shall be repaid to the Project Fund at the earliest opportunity. Any balance on hand in the Project Fund and not immediately required for its purposes may be invested not inconsistent with limitations provided by law or this Resolution. Accrued interest, if any, shall be deposited in the Bond Fund. Section 5. Investments of Bond Fund Proceeds. All moneys held in the Bond Fund, provided for by Section 3 of this Resolution shall be invested in investments permitted by Chapter 12B, Code of Iowa, 2007 (formerly Chapter 452, Code of Iowa, as amended) or deposited in financial institutions which are members of the Federal Deposit Insurance Corporation and the deposits in which are insured thereby and all such deposits exceeding the maximum amount insured from time to time by FDIC or its equivalent successor in any one financial institution shall be continuously secured in compliance with the State Sinking Fund provided under Chapter 12C of the Code of Iowa, 2007, as amended or otherwise by a valid pledge of direct obligations of the United States Government having an equivalent market value. All such interim investments shall mature before the date on which the moneys are required for payment of principal of or interest on the Bonds as herein provided. Section 6. Bond Details, Execution and Redemption. (a) Bond Details. General Obligation Stormwater Bonds of the City in the amount of $3,885,000, shall be issued pursuant to the provisions of Section 384.25 of the City Code of Iowa for the aforesaid purpose. The Bonds shall be designated "GENERAL OBLIGATION STORMWATER BOND, SERIES 2008A", be dated the date of delivery, and bear interest from the date thereof, until payment thereof, at the office of the Paying Agent, the interest payable on June 1, 2009, and semiannually thereafter on the lst day of June and December in each year until maturity at the rates hereinafter provided. The Bonds shall be executed by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the Clerk, and impressed or printed with the seal of the City and shall be fully registered as to both principal and interest as provided in this Resolution; principal, interest and premium, if any, shall be payable at the office of the Paying Agent by mailing of a check to the registered owner of the Bond. The Bonds shall be in the denomination of $5,000 or multiples thereof. The Bonds shall mature and bear interest as follows: Interest Principal Maturity Rate Amount June 1st 3.750% $100,000 2009 3.750 140,000 2010 3.750 145,000 2011 3.750 150,000 2012 14 3.750 150,000 2013 4.000 160,000 2014 4.000 165,000 2015 4.000 170,000 2016 4.100 175,000 2017 4.250 185,000 2018 4.300 190,000 2019 4.375 200,000 2020 4.400 205,000 2021 4.500 215,000 2022 4.500 225,000 2023 4.500 240,000 2024 4.625 250,000 2025 4.700 260,000 2026 4.750 275,000 2027 4.800 285,000 2028 (b) Redemption. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on such date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of bonds to be called has been reached. Section 7 Issuance of Bonds in Book-Entry Form; Replacement Bonds. (a) Notwithstanding the other provisions of this Resolution regarding registration, ownership, transfer, payment and exchange of the Bonds, unless the Issuer determines to permit the exchange of Depository Bonds for Bonds in the Authorized Denominations, the Bonds shall be issued as Depository Bonds in denominations of the entire principal amount of each maturity of Bonds (or, if a portion of the principal amount is prepaid, the principal amount less the prepaid amount); and such Depository Bonds shall be registered in the name of Cede & Co., as nominee of DTC. Payment of semi-annual interest for any Depository Bond shall be made by wire transfer or New York Clearing House or equivalent next day funds to the account of Cede & Co. on the interest payment date for the Bonds at the address indicated in or pursuant to the Representation Letter. (b) With respect to Depository Bonds, neither the Issuer nor the Paying Agent shall have any responsibility or obligation to any Participant or to any Beneficial Owner. Without limiting the immediately preceding sentence, neither the Issuer nor the Paying Agent shall have any responsibility or obligation with respect to (i) the accuracy of the records of DTC or its nominee or of any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any notice with respect to the Bonds, (iii) the payment to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any amount with respect to the principal of, premium, if any, or interest on the Bonds, or (iv) the failure of DTC to provide any information or notification on behalf of any Participant or Beneficial Owner. The Issuer and the Paying Agent may treat DTC or its nominee as, and deem DTC or its nominee 15 to be, the absolute owner of each Bond for the purpose of payment of the principal of, premium, if any, and interest on such Bond, for the purpose of all other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bonds, and for all other purposes whatsoever (except for the giving of certain Bondholder consents, in accordance with the practices and procedures of DTC as may be applicable thereto). The Paying Agent shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the Bondholders as shown on the Registration Books, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to the principal of, premium, if any, and interest on the Bonds to the extent so paid. Notwithstanding the provisions of this Resolution to the contrary (including without limitation those provisions relating to the surrender of Bonds, registration thereof, and issuance in Authorized Denominations), as long as the Bonds are Depository Bonds, full effect shall be given to the Representation Letter and the procedures and practices of DTC thereunder, and the Paying Agent shall comply therewith. (c) Upon (i) a determination by the Issuer that DTC is no longer able to carry out its functions or is otherwise determined unsatisfactory, or (ii) a determination by DTC that the Bonds are no longer eligible for its depository services or (iii) a determination by the Paying Agent that DTC has resigned or discontinued its services for the Bonds, if such substitution is authorized by law, the Issuer shall (A) designate a satisfactory substitute depository as set forth below or, if a satisfactory substitute is not found, (B) provide for the exchange of Depository Bonds for replacement Bonds in Authorized Denominations. (d) To the extent authorized by law, if the Issuer determines to provide for the exchange of Depository Bonds for Bonds in Authorized Denominations, the Issuer shall so notify the Paying Agent and shall provide the Registrar with a supply of executed unauthenticated Bonds to be so exchanged. The Registrar shall thereupon notify the owners of the Bonds and provide for such exchange, and to the extent that the Beneficial Owners are designated as the transferee by the owners, the Bonds will be delivered in appropriate form, content and Authorized Denominations to the Beneficial Owners, as their interests appear. (e) Any substitute depository shall be designated in writing by the Issuer to the Paying Agent. Any such substitute depository shall be a qualified and registered "clearing agency" as provided in Section 17A of the Securities Exchange Act of 1934, as amended. The substitute depository shall provide for (i) immobilization of the Depository Bonds, (ii) registration and transfer of interests in Depository Bonds by book entries made on records of the depository or its nominee and (iii) payment of principal of, premium, if any, and interest on the Bonds in accordance with and as such interests may appear with respect to such book entries. Section 8. Registration of Bonds; Appointment of Registrar; Transfer; Ownership; Delivery; and Cancellation. (a) Registration. The ownership of Bonds may be transferred only by the making of an entry upon the books kept for the registration and transfer of ownership of the Bonds, and in no other way. Wells Fargo Bank, National Association is hereby appointed as Bond Registrar under the terms of this Resolution and under the provisions of a separate agreement with the Issuer filed herewith which is made a part hereof by this reference. Registrar shall maintain the books of the Issuer for the registration of ownership of the Bonds for the payment of principal of and interest on the Bonds as provided in this Resolution. All Bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bonds and in this Resolution. (b) Transfer. The ownership of any Bond may be transferred only upon the Registration Books kept for the registration and transfer of Bonds and only upon surrender thereof at the office of the Registrar together with an assignment duly executed by the holder or his duly authorized attorney in fact in such form as shall be satisfactory to the Registrar, along with the address and social security number 16 or federal employer identification number of such transferee (or, if registration is to be made in the name of multiple individuals, of all such transferees). In the event that the address of the registered owner of a Bond (other than a registered owner which is the nominee of the broker or dealer in question) is that of a broker or dealer, there must be disclosed on the Registration Books the information pertaining to the registered owner required above. Upon the transfer of any such Bond, a new fully registered Bond, of any denomination or denominations permitted by this Resolution in aggregate principal amount equal to the unmatured and unredeemed principal amount of such transferred fully registered Bond, and bearing interest at the same rate and maturing on the same date or dates shall be delivered by the Registrar. (c) Registration of Transferred Bonds. In all cases of the transfer of the Bonds, the Registrar shall register, at the earliest practicable time, on the Registration Books, the Bonds, in accordance with the provisions of this Resolution. (d) Ownership. As to any Bond, the person in whose name the ownership of the same shall be registered on the Registration Books of the Registrar shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of any such Bonds and the premium, if any, and interest thereon shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid. (e) Cancellation. All Bonds which have been redeemed shall not be reissued but shall be cancelled by the Registrar. All Bonds which are cancelled by the Registrar shall be destroyed and a certificate of the destruction thereof shall be furnished promptly to the Issuer; provided that if the Issuer shall so direct, the Registrar shall forward the cancelled Bonds to the Issuer. (f) Non-Presentment of Bonds. In the event any payment check representing payment of principal of or interest on the Bonds is returned to the Paying Agent or if any bond is not presented for payment of principal at the maturity or redemption date, if funds sufficient to pay such principal of or interest on Bonds shall have been made available to the Paying Agent for the benefit of the owner thereof, all liability of the Issuer to the owner thereof for such interest or payment of such Bonds shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Paying Agent to hold such funds, without liability for interest thereon, for the benefit of the owner of such Bonds who shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his part under this Resolution or on, or with respect to, such interest or Bonds. The Paying Agent's obligation to hold such funds shall continue for a period equal to two years and six months following the date on which such interest or principal became due, whether at maturity, or at the date fixed for redemption thereof, or otherwise, at which time the Paying Agent, shall surrender any remaining funds so held to the Issuer, whereupon any claim under this Resolution by the Owners of such interest or Bonds of whatever nature shall be made upon the Issuer. (g) Registration and Transfer Fees. The Registrar may furnish to each owner, at the Issuer's expense, one bond for each annual maturity. The Registrar shall furnish additional bonds in lesser denominations (but not less than the minimum denomination) to an owner who so requests. Section 9. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds. In case any outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Issuer shall at the request of Registrar authenticate and deliver a new Bond of like tenor and amount as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond to Registrar, upon surrender of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, upon filing with the Registrar evidence satisfactory to the Registrar and Issuer that such Bond has been destroyed, stolen or lost and proof of ownership thereof, and upon furnishing the Registrar and Issuer with satisfactory indemnity and complying with such other reasonable regulations as the Issuer or its agent may prescribe and paying such expenses as the Issuer may incur in connection 17 therewith. Section 10. Record Date. Payments of principal and interest, otherwise than upon full redemption, made in respect of any Bond, shall be made to the registered holder thereof or to their designated agent as the same appear on the books of the Registrar on the 15th day preceding the payment date. All such payments shall fully discharge the obligations of the Issuer in respect of such Bonds to the extent of the payments so made. Payment of principal shall only be made upon surrender of the Bond to the Paying Agent. Section 11. Execution, Authentication and Delivery of the Bonds. Upon the adoption of this Resolution, the Mayor and Clerk shall execute and deliver the Bonds to the Registrar, who shall authenticate the Bonds and deliver the same to or upon order of the Purchaser. No Bond shall be valid or obligatory for any purpose or shall be entitled to any right or benefit hereunder unless the Registrar shall duly endorse and execute on such Bond a Certificate of Authentication substantially in the form of the Certificate herein set forth. Such Certificate upon any Bond executed on behalf of the Issuer shall be conclusive evidence that the Bond so authenticated has been duly issued under this Resolution and that the holder thereof is entitled to the benefits of this Resolution. No Bonds shall be authenticated and delivered by the Registrar unless and until there shall have been provided the following: 1. A certified copy of the Resolution of Issuer authorizing the issuance of the Bonds; 2. A written order of Issuer signed by the Treasurer of the Issuer directing the authentication and delivery of the Bonds to or upon the order of the Purchaser upon payment of the purchase price as set forth therein; 3. The approving opinion of Ahlers & Cooney, P.C., Bond Counsel, concerning the validity and legality of all the Bonds proposed to be issued. Section 12. Right to Name Substitute Paying Agent or Registrar. Issuer reserves the right to name a substitute, successor Registrar or Paying Agent upon giving prompt written notice to each registered bondholder. Section 13. Form of Bond. Bonds shall be printed in substantial compliance with standards proposed by the American Standards Institute substantially in the form as [provided]. Interest and principal shall be paid to the registered holder of the Bond as shown on the records of ownership maintained by the Registrar as of the 15th day preceding such interest payment date. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. This Bond is issued pursuant to the provisions of Section 384.25 of the City Code of Iowa, for the purpose of paying costs of the construction of stormwater management facilities and improvements, including those costs associated with the acquisition of properties for the Bee Branch Creek Restoration Project, in conformity to a Resolution of the Council of the City duly passed and approved. Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on that date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the 18 Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All Bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the Bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of Bonds to be called has been reached. Ownership of this Bond may be transferred only by transfer upon the books kept for such purpose by Wells Fargo Bank, National Association, the Registrar. Such transfer on the books shall occur only upon presentation and surrender of this Bond at the office of the Registrar as designated below, together with an assignment duly executed by the owner hereof or his duly authorized attorney in the form as shall be satisfactory to the Registrar. Issuer reserves the right to substitute the Registrar and Paying Agent but shall, however, promptly give notice to registered bondholders of such change. All bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bond Resolution. This Bond is a "qualified tax-exempt obligation" designated by the City for purposes of Section 265(b)(3)(B) of the Internal Revenue Code of 1986. And it is hereby represented and certified that all acts, conditions and things requisite, according to the laws and Constitution of the State of Iowa, to exist, to be had, to be done, or to be performed precedent to the lawful issue of this Bond, have been existent, had, done and performed as required by law; that provision has been made for the levy of a sufficient continuing annual tax on all the taxable property within the territory of the Issuer for the payment of the principal and interest of this Bond as the same will respectively become due; that the faith, credit, revenues and resources and all the real and personal property of the Issuer are irrevocably pledged for the prompt payment hereof, both principal and interest; and the total indebtedness of the Issuer including this Bond, does not exceed the constitutional or statutory limitations. IN TESTIMONY WHEREOF, the Issuer by its Council, has caused this Bond to be signed by the manual signature of its Mayor and attested by the manual signature of its City Clerk, with the seal of the City impressed hereon, and to be authenticated by the manual signature of an authorized representative of the Registrar, Wells Fargo Bank, National Association, Des Moines, Iowa. Section 14. Contract Between Issuer and Purchaser. This Resolution constitutes a contract between the City and the purchaser of the Bonds. Section 15. Non-Arbitrage Covenants. The Issuer reasonably expects and covenants that no use will be made of the proceeds from the issuance and sale of the Bonds issued hereunder which will cause any of the Bonds to be classified as arbitrage bonds within the meaning of Sections 148(a) and (b) of the Internal Revenue Code of the United States, as amended, and that throughout the term of the Bonds it will comply with the requirements of statutes and regulations issued thereunder. To the best knowledge and belief of the Issuer, there are no facts or circumstances that would materially change the foregoing statements or the conclusion that it is not expected that the proceeds of the Bonds will be used in a manner that would cause the Bonds to be arbitrage bonds. Without limiting the generality of the foregoing, the Issuer hereby agrees to comply with the provisions of the Tax Exemption Certificate and the provisions of the Tax Exemption Certificate are hereby incorporated by reference as part of this Resolution. The Treasurer is hereby directed to make and insert all calculations and determinations necessary to complete the Tax Exemption Certificate in all respects and to execute and deliver the Tax Exemption Certificate at issuance of the Bonds to certify as to the reasonable expectations and covenants of the Issuer at that date. Section 16. Additional Covenants, Representations and Warranties of the Issuer. The Issuer certifies and covenants with the purchasers and holders of the Bonds from time to time outstanding 19 that the Issuer through its officers, (a) will make such further specific covenants, representations and assurances as may be necessary or advisable; (b) comply with all representations, covenants and assurances contained in the Tax Exemption Certificate, which Tax Exemption Certificate shall constitute a part of the contract between the Issuer and the owners of the Bonds; (c) consult with bond counsel (as defined in the Tax Exemption Certificate); (d) pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Bonds; (e) file such forms, statements and supporting documents as may be required and in a timely manner; and (f) if deemed necessary or advisable by its officers, to employ and pay fiscal agents, financial advisors, attorneys and other persons to assist the Issuer in such compliance. Section 17. Amendment of Resolution to Maintain Tax Exemption. This Resolution may be amended without the consent of any owner of the Bonds if, in the opinion of bond counsel, such amendment is necessary to maintain tax exemption with respect to the Bonds under applicable Federal law or regulations. Section 18. Qualified Tax-Exempt Obligations. For the sole purpose of qualifying the Bonds as "Qualified Tax-Exempt Obligations" pursuant to the Internal Revenue Code of the United States, the Issuer designates the Bonds as qualified tax-exempt obligations and represents that the reasonably anticipated amount of tax-exempt governmental and Code Section 501(c)3 obligations which will be issued during the current calendar year will not exceed Ten (10) Million Dollars. Section 19. Continuing Disclosure. The Issuer hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate, and the provisions of the Continuing Disclosure Certificate are hereby incorporated by reference as part of this Resolution and made a part hereof. Notwithstanding any other provision of this Resolution, failure of the Issuer to comply with the Continuing Disclosure Certificate shall not be considered an event of default under this Resolution; however, any holder of the Bonds or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Issuer to comply with its obligations under the Continuing Disclosure Certificate. For purposes of this section, "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bond (including persons holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for federal income tax purposes. Section 20. Severability Clause. If any section, paragraph, clause or provision of this Resolution be held invalid, such invalidity shall not affect any of the remaining provisions hereof, and this Resolution shall become effective immediately upon its passage and approval. Section 21. Repeal of Conflicting Resolutions or Ordinances. That all ordinances and resolutions and parts of ordinances and resolutions in conflict herewith are hereby repealed. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk General Obligation Bonds – Greater Downtown Urban Renewal District – Series 2008B: City Manager recommending approval of suggested proceedings to complete the action required for the issuance of $3,290,000 to provide funds for the Library Renovation Project and the Kephart Building renovations. Upon motion the documents were received and filed and Resolution No. 374-08 Appointing Wells Fargo Bank, National Association of Des Moines, Iowa, to serve as paying agent, bond registrar, and transfer agent, approving the paying agent and bond registrar and transfer agent agreement and authorizing the execution of the agreement; and Resolution No. 375-08 Authorizing and providing for the issuance of $3,290,000 General Obligations Bonds were adopted. 20 RESOLUTION NO. 374-08 RESOLUTION APPOINTING WELLS FARGO BANK, NATIONAL ASSOCIATION OF DES MOINES, IOWA, TO SERVE AS PAYING AGENT, BOND REGISTRAR, AND TRANSFER AGENT, APPROVING THE PAYING AGENT AND BOND REGISTRAR AND TRANSFER AGENT AGREEMENT AND AUTHORIZING THE EXECUTION OF THE AGREEMENT WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, $3,290,000 General Obligation Urban Renewal Bonds, Series 2008B, dated the date of delivery, have been sold at public sale and action should now be taken to provide for the maintenance of records, registration of certificates and payment of principal and interest in connection with the issuance of the Bonds; and WHEREAS, this Council has deemed that the services offered by Wells Fargo Bank, National Association of Des Moines, Iowa, are necessary for compliance with rules, regulations, and requirements governing the registration, transfer and payment of registered Bonds; and WHEREAS, a Paying Agent, Bond Registrar and Transfer Agent Agreement (hereafter "Agreement") has been prepared to be entered into between the City and Wells Fargo Bank, National Association. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA: Section 1. That Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby appointed to serve as Paying Agent, Bond Registrar and Transfer Agent in connection with the issuance of $3,290,000 General Obligation Urban Renewal Bonds, Series 2008B, dated the date of delivery. Section 2. That the Agreement with Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby approved and that the Mayor and Clerk are authorized to sign the Agreement on behalf of the City. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 375-08 RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $3,290,000 GENERAL OBLIGATION URBAN RENEWAL BONDS, SERIES 2008B, AND LEVYING A TAX TO PAY THE BONDS WHEREAS, the Issuer is duly incorporated, organized and exists under and by virtue of the laws and Constitution of the State of Iowa; and WHEREAS, the Issuer is in need of funds to pay costs of aiding in the planning, undertaking and carrying out of urban renewal project activities under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal District, including those costs associated with the Library Renovation Project and building renovations and improvements to the former Kephart's Building, an essential corporate purpose, and it is deemed necessary and advisable that general obligation bonds be issued for that purpose; and WHEREAS, pursuant to notice published as required by Section 403.12, this Council has held a public meeting and hearing upon the proposal to institute proceedings for the issuance of not to exceed $3,000,000 in principal amount of general obligation bonds for the above described purposes; and no petition was filed in the manner provided by Section 362.4 of the City Code of Iowa, pursuant to the provisions of Sections 403.12 and 384.24(3)(q), and all objections, if any, to such Council action made by any resident or property owner of said City were received and considered by the Council; WHEREAS, the Issuer is in need of funds to pay costs of aiding in the planning, undertaking and carrying out of urban renewal project activities under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center West Economic Development District, including those costs associated with the North Siegert Farm 21 demolition and grading project, an essential corporate purpose, and it is deemed necessary and advisable that general obligation bonds be issued for that purpose; and WHEREAS, pursuant to notice published as required by Section 403.12, this Council has held a public meeting and hearing upon the proposal to institute proceedings for the issuance of not to exceed $3,100,000 in principal amount of general obligation bonds for the above described purposes; and no petition was filed in the manner provided by Section 362.4 of the City Code of Iowa, pursuant to the provisions of Sections 403.12 and 384.24(3)(q), and all objections, if any, to such Council action made by any resident or property owner of said City were received and considered by the Council; WHEREAS, it is appropriate that certain of the general obligation bonds to be issued for the foregoing urban renewal purposes be authorized for issuance and sold as a separate series of bonds under Section 403.12 of the Code of Iowa, to be designated as Series 2008B as hereinafter set forth, and that incremental tax revenues from the Greater Downtown Urban Renewal Area and the Dubuque Industrial Center West Economic Development District be applied to abate the levy of taxes pledged to the repayment of such bonds; and WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, the above mentioned bonds were heretofore sold at public sale and action should now be taken to issue said bonds conforming to the terms and conditions of the best bid received at the advertised public sale: NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Definitions. The following terms shall have the following meanings in this Resolution unless the text expressly or by necessary implication requires otherwise: ? "Authorized Denominations" shall mean $5,000 or any integral multiple thereof. ? "Beneficial Owner" shall mean the person in whose name such Bond is recorded as the beneficial owner of a Bond by a Participant on the records of such Participant or such person's subrogee. ? "Bond Fund" shall mean the fund created in Section 3 of this Resolution. ? "Bonds" shall mean $3,290,000 General Obligation Urban Renewal Bonds, Series 2008B, authorized to be issued by this Resolution. ? "Cede & Co." shall mean Cede & Co., the nominee of DTC, and any successor nominee of DTC with respect to the Bonds. ? "Continuing Disclosure Certificate" shall mean that certain Continuing Disclosure Certificate executed by the Issuer and dated the date of issuance and delivery of the Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof. ? "Depository Bonds" shall mean the Bonds as issued in the form of one global certificate for each maturity, registered in the Registration Books maintained by the Registrar in the name of DTC or its nominee. ? "DTC" shall mean The Depository Trust Company, New York, New York, a limited purpose trust company, or any successor book-entry securities depository appointed for the Bonds. ? "Issuer" and "City" shall mean the City of Dubuque, Iowa. ? "Participants" shall mean those broker-dealers, banks and other financial institutions for which DTC holds Bonds as securities depository. ? "Paying Agent" shall mean Wells Fargo Bank, National Association, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein as Issuer's agent to provide for the payment of principal of and interest on the Bonds as the same shall become due. ? "Project Fund" shall mean the fund required to be established by this Resolution for the deposit of the proceeds of the Bonds. ? "Rebate Fund" shall mean the fund so defined in and established pursuant to the Tax 22 Exemption Certificate. ? "Registrar" shall mean Wells Fargo Bank, National Association of Des Moines, Iowa, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein with respect to maintaining a register of the owners of the Bonds. Unless otherwise specified, the Registrar shall also act as Transfer Agent for the Bonds. ? "Representation Letter" shall mean the Blanket Issuer Letter of Representations executed and delivered by the Issuer to DTC. ? "Resolution" shall mean this resolution authorizing the Bonds. ? "Tax Exemption Certificate" shall mean the Tax Exemption Certificate executed by the Treasurer and delivered at the time of issuance and delivery of the Bonds. ? "Treasurer" shall mean the Treasurer or such other officer as shall succeed to the same duties and responsibilities with respect to the recording and payment of the Bonds issued hereunder. Section 2. Levy and Certification of Annual Tax; Other Funds to be Used. (a) Levy of Annual Tax. That for the purpose of providing funds to pay the principal and interest of the Bonds hereinafter authorized to be issued, there is hereby levied for each future year the following direct annual tax on all of the taxable property in Dubuque, Iowa, to-wit: FISCAL YEAR (JULY 1 TO JUNE 30) AMOUNT YEAR OF COLLECTION: $512,858 2009/2010 305,269 2010/2011 298,331 2011/2012 296,394 2012/2013 304,269 2013/2014 301,325 2014/2015 297,925 2015/2016 299,325 2016/2017 295,325 2017/2018 301,125 2018/2019 301,325 2019/2020 300,488 2020/2021 304,225 2021/2022 302,325 2022/2023 (NOTE: For example the levy to be made and certified against the taxable valuations of January 1, 2008, will be collected during the fiscal year commencing July 1, 2009). (b) Resolution to be Filed With County Auditor. A certified copy of this Resolution should be filed with the County Auditor of Dubuque County, Iowa, and the Auditor is hereby instructed in and for each of the years as provided, to levy and assess the tax hereby authorized in Section 2 of this Resolution, in like manner as other taxes are levied and assessed, and such taxes so levied in and for each of the years aforesaid be collected in like manner as other taxes of the City are collected, and when collected be used for the purpose of paying principal and interest on the Bonds issued in anticipation of the tax, and for no other purpose whatsoever. (c) Additional City Funds Available. Principal and interest coming due at any time when the proceeds of the tax on hand shall be insufficient to pay the same shall be promptly paid when due from current funds of the City available for that purpose and reimbursement shall be made from such special fund in the amounts thus advanced. Section 3. Bond Fund. The tax shall be collected each year at the same time and in the same manner as, and in addition to, all other taxes in and for the City, and when collected they shall be 23 converted into a special fund within the Debt Service Fund to be known as the "GENERAL OBLIGATION BOND URBAN RENEWAL FUND 2008B" (the "Bond Fund"), which is hereby pledged for and shall be used only for the payment of the principal of and interest on the Bonds hereinafter authorized to be issued; and also there shall be apportioned to the fund its proportion of taxes received by the City from property that is centrally assessed by the State of Iowa. Section 4. Application of Bond Proceeds. Proceeds of the Bonds other than accrued interest except as may be provided below shall be credited to the Project Fund and expended therefrom for the purposes of issuance. Any amounts on hand in the Project Fund shall be available for the payment of the principal of or interest on the Bonds at any time that other funds shall be insufficient to the purpose, in which event such funds shall be repaid to the Project Fund at the earliest opportunity. Any balance on hand in the Project Fund and not immediately required for its purposes may be invested not inconsistent with limitations provided by law or this Resolution. Accrued interest, if any, shall be deposited in the Bond Fund. Section 5. Investments of Bond Fund Proceeds. All moneys held in the Bond Fund, provided for by Section 3 of this Resolution shall be invested in investments permitted by Chapter 12B, Code of Iowa, 2007 (formerly Chapter 452, Code of Iowa, as amended) or deposited in financial institutions which are members of the Federal Deposit Insurance Corporation and the deposits in which are insured thereby and all such deposits exceeding the maximum amount insured from time to time by FDIC or its equivalent successor in any one financial institution shall be continuously secured in compliance with the State Sinking Fund provided under Chapter 12C of the Code of Iowa, 2007, as amended or otherwise by a valid pledge of direct obligations of the United States Government having an equivalent market value. All such interim investments shall mature before the date on which the moneys are required for payment of principal of or interest on the Bonds as herein provided. Section 6. Bond Details, Execution and Redemption. (a) Bond Details. General Obligation Urban Renewal Bonds, Series 2008B, of the City in the amount of $3,290,000, shall be issued pursuant to the provisions of Section 403.12 of the City Code of Iowa for the aforesaid purpose. The Bonds shall be designated "GENERAL OBLIGATION URBAN RENEWAL BOND, SERIES 2008B", be dated the date of delivery, and bear interest from the date thereof, until payment thereof, at the office of the Paying Agent, the interest payable on June 1, 2009, and semiannually thereafter on the lst day of June and December in each year until maturity at the rates hereinafter provided. The Bonds shall be executed by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the Clerk, and impressed or printed with the seal of the City and shall be fully registered as to both principal and interest as provided in this Resolution; principal, interest and premium, if any, shall be payable at the office of the Paying Agent by mailing of a check to the registered owner of the Bond. The Bonds shall be in the denomination of $5,000 or multiples thereof. The Bonds shall mature and bear interest as follows: Interest Principal Maturity Rate Amount June 1st 3.750% $130,000 2009 3.750 180,000 2010 3.750 185,000 2011 3.750 185,000 2012 3.750 190,000 2013 3.875 205,000 2014 4.000 210,000 2015 4.000 215,000 2016 4.000 225,000 2017 4.000 230,000 2018 24 4.000 245,000 2019 4.250 255,000 2020 4.250 265,000 2021 4.250 280,000 2022 4.250 290,000 2023 (b) Redemption. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on such date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of bonds to be called has been reached. Section 7. Issuance of Bonds in Book-Entry Form; Replacement Bonds. (a) Notwithstanding the other provisions of this Resolution regarding registration, ownership, transfer, payment and exchange of the Bonds, unless the Issuer determines to permit the exchange of Depository Bonds for Bonds in the Authorized Denominations, the Bonds shall be issued as Depository Bonds in denominations of the entire principal amount of each maturity of Bonds (or, if a portion of the principal amount is prepaid, the principal amount less the prepaid amount); and such Depository Bonds shall be registered in the name of Cede & Co., as nominee of DTC. Payment of semi-annual interest for any Depository Bond shall be made by wire transfer or New York Clearing House or equivalent next day funds to the account of Cede & Co. on the interest payment date for the Bonds at the address indicated in or pursuant to the Representation Letter. (b) With respect to Depository Bonds, neither the Issuer nor the Paying Agent shall have any responsibility or obligation to any Participant or to any Beneficial Owner. Without limiting the immediately preceding sentence, neither the Issuer nor the Paying Agent shall have any responsibility or obligation with respect to (i) the accuracy of the records of DTC or its nominee or of any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any notice with respect to the Bonds, (iii) the payment to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any amount with respect to the principal of, premium, if any, or interest on the Bonds, or (iv) the failure of DTC to provide any information or notification on behalf of any Participant or Beneficial Owner. The Issuer and the Paying Agent may treat DTC or its nominee as, and deem DTC or its nominee to be, the absolute owner of each Bond for the purpose of payment of the principal of, premium, if any, and interest on such Bond, for the purpose of all other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bonds, and for all other purposes whatsoever (except for the giving of certain Bondholder consents, in accordance with the practices and procedures of DTC as may be applicable thereto). The Paying Agent shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the Bondholders as shown on the Registration Books, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to the principal of, premium, if any, and interest on the Bonds to the extent so paid. Notwithstanding the provisions of this Resolution to the contrary (including without limitation those provisions relating to the surrender of Bonds, registration thereof, and issuance in Authorized Denominations), as long as the Bonds are Depository Bonds, full effect 25 shall be given to the Representation Letter and the procedures and practices of DTC thereunder, and the Paying Agent shall comply therewith. (c) Upon (i) a determination by the Issuer that DTC is no longer able to carry out its functions or is otherwise determined unsatisfactory, or (ii) a determination by DTC that the Bonds are no longer eligible for its depository services or (iii) a determination by the Paying Agent that DTC has resigned or discontinued its services for the Bonds, if such substitution is authorized by law, the Issuer shall (A) designate a satisfactory substitute depository as set forth below or, if a satisfactory substitute is not found, (B) provide for the exchange of Depository Bonds for replacement Bonds in Authorized Denominations. (d) To the extent authorized by law, if the Issuer determines to provide for the exchange of Depository Bonds for Bonds in Authorized Denominations, the Issuer shall so notify the Paying Agent and shall provide the Registrar with a supply of executed unauthenticated Bonds to be so exchanged. The Registrar shall thereupon notify the owners of the Bonds and provide for such exchange, and to the extent that the Beneficial Owners are designated as the transferee by the owners, the Bonds will be delivered in appropriate form, content and Authorized Denominations to the Beneficial Owners, as their interests appear. (e) Any substitute depository shall be designated in writing by the Issuer to the Paying Agent. Any such substitute depository shall be a qualified and registered "clearing agency" as provided in Section 17A of the Securities Exchange Act of 1934, as amended. The substitute depository shall provide for (i) immobilization of the Depository Bonds, (ii) registration and transfer of interests in Depository Bonds by book entries made on records of the depository or its nominee and (iii) payment of principal of, premium, if any, and interest on the Bonds in accordance with and as such interests may appear with respect to such book entries. Section 8. Registration of Bonds; Appointment of Registrar; Transfer; Ownership; Delivery; and Cancellation. (a) Registration. The ownership of Bonds may be transferred only by the making of an entry upon the books kept for the registration and transfer of ownership of the Bonds, and in no other way. Wells Fargo Bank, National Association is hereby appointed as Bond Registrar under the terms of this Resolution and under the provisions of a separate agreement with the Issuer filed herewith which is made a part hereof by this reference. Registrar shall maintain the books of the Issuer for the registration of ownership of the Bonds for the payment of principal of and interest on the Bonds as provided in this Resolution. All Bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bonds and in this Resolution. (b) Transfer. The ownership of any Bond may be transferred only upon the Registration Books kept for the registration and transfer of Bonds and only upon surrender thereof at the office of the Registrar together with an assignment duly executed by the holder or his duly authorized attorney in fact in such form as shall be satisfactory to the Registrar, along with the address and social security number or federal employer identification number of such transferee (or, if registration is to be made in the name of multiple individuals, of all such transferees). In the event that the address of the registered owner of a Bond (other than a registered owner which is the nominee of the broker or dealer in question) is that of a broker or dealer, there must be disclosed on the Registration Books the information pertaining to the registered owner required above. Upon the transfer of any such Bond, a new fully registered Bond, of any denomination or denominations permitted by this Resolution in aggregate principal amount equal to the unmatured and unredeemed principal amount of such transferred fully registered Bond, and bearing interest at the same rate and maturing on the same date or dates shall be delivered by the Registrar. (c) Registration of Transferred Bonds. In all cases of the transfer of the Bonds, the Registrar shall register, at the earliest practicable time, on the Registration Books, the Bonds, in accordance with the 26 provisions of this Resolution. (d) Ownership. As to any Bond, the person in whose name the ownership of the same shall be registered on the Registration Books of the Registrar shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of any such Bonds and the premium, if any, and interest thereon shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid. (e) Cancellation. All Bonds which have been redeemed shall not be reissued but shall be cancelled by the Registrar. All Bonds which are cancelled by the Registrar shall be destroyed and a certificate of the destruction thereof shall be furnished promptly to the Issuer; provided that if the Issuer shall so direct, the Registrar shall forward the cancelled Bonds to the Issuer. (f) Non-Presentment of Bonds. In the event any payment check representing payment of principal of or interest on the Bonds is returned to the Paying Agent or if any bond is not presented for payment of principal at the maturity or redemption date, if funds sufficient to pay such principal of or interest on Bonds shall have been made available to the Paying Agent for the benefit of the owner thereof, all liability of the Issuer to the owner thereof for such interest or payment of such Bonds shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Paying Agent to hold such funds, without liability for interest thereon, for the benefit of the owner of such Bonds who shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his part under this Resolution or on, or with respect to, such interest or Bonds. The Paying Agent's obligation to hold such funds shall continue for a period equal to two years and six months following the date on which such interest or principal became due, whether at maturity, or at the date fixed for redemption thereof, or otherwise, at which time the Paying Agent, shall surrender any remaining funds so held to the Issuer, whereupon any claim under this Resolution by the Owners of such interest or Bonds of whatever nature shall be made upon the Issuer. (g) Registration and Transfer Fees. The Registrar may furnish to each owner, at the Issuer's expense, one bond for each annual maturity. The Registrar shall furnish additional bonds in lesser denominations (but not less than the minimum denomination) to an owner who so requests. Section 9. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds. In case any outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Issuer shall at the request of Registrar authenticate and deliver a new Bond of like tenor and amount as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond to Registrar, upon surrender of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, upon filing with the Registrar evidence satisfactory to the Registrar and Issuer that such Bond has been destroyed, stolen or lost and proof of ownership thereof, and upon furnishing the Registrar and Issuer with satisfactory indemnity and complying with such other reasonable regulations as the Issuer or its agent may prescribe and paying such expenses as the Issuer may incur in connection therewith. Section 10. Record Date. Payments of principal and interest, otherwise than upon full redemption, made in respect of any Bond, shall be made to the registered holder thereof or to their designated agent as the same appear on the books of the Registrar on the 15th day preceding the payment date. All such payments shall fully discharge the obligations of the Issuer in respect of such Bonds to the extent of the payments so made. Payment of principal shall only be made upon surrender of the Bond to the Paying Agent. Section 11. Execution, Authentication and Delivery of the Bonds. Upon the adoption of this Resolution, the Mayor and Clerk shall execute and deliver the Bonds to the Registrar, who shall authenticate the Bonds and deliver the same to or upon order of the Purchaser. No Bond shall be valid or obligatory for any purpose or shall be entitled to any right or benefit hereunder unless the 27 Registrar shall duly endorse and execute on such Bond a Certificate of Authentication substantially in the form of the Certificate herein set forth. Such Certificate upon any Bond executed on behalf of the Issuer shall be conclusive evidence that the Bond so authenticated has been duly issued under this Resolution and that the holder thereof is entitled to the benefits of this Resolution. No Bonds shall be authenticated and delivered by the Registrar unless and until there shall have been provided the following: 1. A certified copy of the Resolution of Issuer authorizing the issuance of the Bonds; 2. A written order of Issuer signed by the Treasurer of the Issuer directing the authentication and delivery of the Bonds to or upon the order of the Purchaser upon payment of the purchase price as set forth therein; 3. The approving opinion of Ahlers & Cooney, P.C., Bond Counsel, concerning the validity and legality of all the Bonds proposed to be issued. Section 12. Right to Name Substitute Paying Agent or Registrar. Issuer reserves the right to name a substitute, successor Registrar or Paying Agent upon giving prompt written notice to each registered bondholder. Section 13. Form of Bond. Bonds shall be printed in substantial compliance with standards proposed by the American Standards Institute substantially in the form as [provided]. Interest and principal shall be paid to the registered holder of the Bond as shown on the records of ownership maintained by the Registrar as of the 15th day preceding such interest payment date. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. This Bond is issued pursuant to the provisions of Section 403.12 of the Code of Iowa, for the purpose of paying costs of aiding in the planning, undertaking and carrying out of urban renewal project activities under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated Urban Renewal Plans for the Greater Downtown Urban Renewal District and the Dubuque Industrial Center West Economic Development District, including those costs associated with the Library Renovation Project and building renovations and improvements to the former Kephart's Building, and those costs associated with the North Siegert Farm demolition and grading project, respectively, in conformity to a Resolution of the Council of the City duly passed and approved. Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on that date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All Bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the Bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of Bonds to be called has been reached. Ownership of this Bond may be transferred only by transfer upon the books kept for such purpose 28 by Wells Fargo Bank, National Association, the Registrar. Such transfer on the books shall occur only upon presentation and surrender of this Bond at the office of the Registrar as designated below, together with an assignment duly executed by the owner hereof or his duly authorized attorney in the form as shall be satisfactory to the Registrar. Issuer reserves the right to substitute the Registrar and Paying Agent but shall, however, promptly give notice to registered bondholders of such change. All bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bond Resolution. This Bond is a "qualified tax-exempt obligation" designated by the City for purposes of Section 265(b)(3)(B) of the Internal Revenue Code of 1986. And it is hereby represented and certified that all acts, conditions and things requisite, according to the laws and Constitution of the State of Iowa, to exist, to be had, to be done, or to be performed precedent to the lawful issue of this Bond, have been existent, had, done and performed as required by law; that provision has been made for the levy of a sufficient continuing annual tax on all the taxable property within the territory of the Issuer for the payment of the principal and interest of this Bond as the same will respectively become due; that the faith, credit, revenues and resources and all the real and personal property of the Issuer are irrevocably pledged for the prompt payment hereof, both principal and interest; and the total indebtedness of the Issuer including this Bond, does not exceed the constitutional or statutory limitations. IN TESTIMONY WHEREOF, the Issuer by its Council, has caused this Bond to be signed by the manual signature of its Mayor and attested by the manual signature of its City Clerk, with the seal of the City impressed hereon, and to be authenticated by the manual signature of an authorized representative of the Registrar, Wells Fargo Bank, National Association, Des Moines, Iowa. Section 14. Contract Between Issuer and Purchaser. This Resolution constitutes a contract between the City and the purchaser of the Bonds. Section 15. Non-Arbitrage Covenants. The Issuer reasonably expects and covenants that no use will be made of the proceeds from the issuance and sale of the Bonds issued hereunder which will cause any of the Bonds to be classified as arbitrage bonds within the meaning of Sections 148(a) and (b) of the Internal Revenue Code of the United States, as amended, and that throughout the term of the Bonds it will comply with the requirements of statutes and regulations issued thereunder. To the best knowledge and belief of the Issuer, there are no facts or circumstances that would materially change the foregoing statements or the conclusion that it is not expected that the proceeds of the Bonds will be used in a manner that would cause the Bonds to be arbitrage bonds. Without limiting the generality of the foregoing, the Issuer hereby agrees to comply with the provisions of the Tax Exemption Certificate and the provisions of the Tax Exemption Certificate are hereby incorporated by reference as part of this Resolution. The Treasurer is hereby directed to make and insert all calculations and determinations necessary to complete the Tax Exemption Certificate in all respects and to execute and deliver the Tax Exemption Certificate at issuance of the Bonds to certify as to the reasonable expectations and covenants of the Issuer at that date. Section 16. Additional Covenants, Representations and Warranties of the Issuer. The Issuer certifies and covenants with the purchasers and holders of the Bonds from time to time outstanding that the Issuer through its officers, (a) will make such further specific covenants, representations and assurances as may be necessary or advisable; (b) comply with all representations, covenants and assurances contained in the Tax Exemption Certificate, which Tax Exemption Certificate shall constitute a part of the contract between the Issuer and the owners of the Bonds; (c) consult with bond counsel (as defined in the Tax Exemption Certificate); (d) pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Bonds; (e) file such forms, statements and supporting documents as may be required and in a timely manner; and (f) if deemed necessary or advisable by its officers, to employ and pay fiscal 29 agents, financial advisors, attorneys and other persons to assist the Issuer in such compliance. Section 17. Amendment of Resolution to Maintain Tax Exemption. This Resolution may be amended without the consent of any owner of the Bonds if, in the opinion of bond counsel, such amendment is necessary to maintain tax exemption with respect to the Bonds under applicable Federal law or regulations. Section 18. Qualified Tax-Exempt Obligations. For the sole purpose of qualifying the Bonds as "Qualified Tax-Exempt Obligations" pursuant to the Internal Revenue Code of the United States, the Issuer designates the Bonds as qualified tax-exempt obligations and represents that the reasonably anticipated amount of tax-exempt governmental and Code Section 501(c)3 obligations which will be issued during the current calendar year will not exceed Ten (10) Million Dollars. Section 19. Continuing Disclosure. The Issuer hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate, and the provisions of the Continuing Disclosure Certificate are hereby incorporated by reference as part of this Resolution and made a part hereof. Notwithstanding any other provision of this Resolution, failure of the Issuer to comply with the Continuing Disclosure Certificate shall not be considered an event of default under this Resolution; however, any holder of the Bonds or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Issuer to comply with its obligations under the Continuing Disclosure Certificate. For purposes of this section, "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bond (including persons holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for federal income tax purposes. Section 20. Severability Clause. If any section, paragraph, clause or provision of this Resolution be held invalid, such invalidity shall not affect any of the remaining provisions hereof, and this Resolution shall become effective immediately upon its passage and approval. Section 21. Repeal of Conflicting Resolutions or Ordinances. That all ordinances and resolutions and parts of ordinances and resolutions in conflict herewith are hereby repealed. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk General Obligation Bonds – Dubuque Industrial Center West Urban Renewal District – Series 2008C: City Manager recommending approval of suggested proceedings to complete the action required for the issuance of $3,100,000 General Obligation Bonds to pay the costs associated with the North Siegert Farm demolition and grading project at the Dubuque Industrial Center West (DICW). Upon motion the documents were received and filed and Resolution No. 376-08 Appointing Wells Fargo Bank, National Association of Des Moines, Iowa, to serve as paying agent, bond registrar, and transfer agent, approving the paying agent and bond registrar and transfer agent agreement and authorizing the execution of the agreement; and Resolution No. 377-08 Authorizing and providing for the issuance of $2,465,000 General Obligation Urban Renewal Bonds, Taxable Series 2008C, and levying a tax to pay the bonds were adopted. RESOLUTION NO. 376-08 RESOLUTION APPOINTING WELLS FARGO BANK, NATIONAL ASSOCIATION OF DES MOINES, IOWA, TO SERVE AS PAYING AGENT, BOND REGISTRAR, AND TRANSFER AGENT, APPROVING THE PAYING AGENT AND BOND REGISTRAR AND TRANSFER AGENT AGREEMENT AND AUTHORIZING THE EXECUTION OF THE AGREEMENT WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, $2,465,000 General Obligation Urban Renewal Bonds, Taxable Series 2008C, dated the date of delivery, have been sold 30 at public sale and action should now be taken to provide for the maintenance of records, registration of certificates and payment of principal and interest in connection with the issuance of the Bonds; and WHEREAS, this Council has deemed that the services offered by Wells Fargo Bank, National Association of Des Moines, Iowa, are necessary for compliance with rules, regulations, and requirements governing the registration, transfer and payment of registered Bonds; and WHEREAS, a Paying Agent, Bond Registrar and Transfer Agent Agreement (hereafter "Agreement") has been prepared to be entered into between the City and Wells Fargo Bank, National Association. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA: Section 1. That Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby appointed to serve as Paying Agent, Bond Registrar and Transfer Agent in connection with the issuance of $2,465,000 General Obligation Urban Renewal Bonds, Taxable Series 2008C, dated the date of delivery. Section 2. That the Agreement with Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby approved and that the Mayor and Clerk are authorized to sign the Agreement on behalf of the City. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 377-08 RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $2,465,000 GENERAL OBLIGATION URBAN RENEWAL BONDS, TAXABLE SERIES 2008C, AND LEVYING A TAX TO PAY THE BONDS WHEREAS, the Issuer is duly incorporated, organized and exists under and by virtue of the laws and Constitution of the State of Iowa; and WHEREAS, the Issuer is in need of funds to pay costs of aiding in the planning, undertaking and carrying out of urban renewal project activities under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center West Economic Development District, including those costs associated with the North Siegert Farm demolition and grading project, an essential corporate purpose, and it is deemed necessary and advisable that General Obligation Urban Renewal Bonds in the amount of $2,465,000 be issued to pay for a portion of the costs relating thereto; and WHEREAS, pursuant to notice published as required by Section 384.23(3)(q), this Council has held a public meeting and hearing upon the proposal to institute proceedings for the issuance of not to exceed $3,100,000 in principal amount of general obligation bonds for the above described purposes; and no petition was filed in the manner provided by Section 362.4 of the City Code of Iowa, pursuant to the provisions of Sections 403.12 and 384.24(3)(q), and all objections, if any, to such Council action made by any resident or property owner of said City were received and considered by the Council; WHEREAS, it is appropriate that a portion of the general obligation bonds to be issued for such urban renewal purposes be authorized for issuance and sold as a separate series of bonds under Section 403.12 of the Code of Iowa, to be designated as Taxable Series 2008C as hereinafter set forth, and that incremental tax revenues from the Dubuque Industrial Center West Economic Development District be applied to abate the levy of taxes pledged to the repayment of such bonds; and WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, the above mentioned bonds were heretofore sold at public sale and action should now be taken to issue said bonds conforming to the terms and conditions of the best bid received at the advertised public sale: 31 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Definitions. The following terms shall have the following meanings in this Resolution unless the text expressly or by necessary implication requires otherwise: ? "Authorized Denominations" shall mean $5,000 or any integral multiple thereof. ? "Beneficial Owner" shall mean the person in whose name such Bond is recorded as the beneficial owner of a Bond by a Participant on the records of such Participant or such person's subrogee. ? "Bond Fund" shall mean the fund created in Section 3 of this Resolution. ? "Bonds" shall mean $2,465,000 General Obligation Urban Renewal Bonds, Taxable Series 2008C, authorized to be issued by this Resolution. ? "Cede & Co." shall mean Cede & Co., the nominee of DTC, and any successor nominee of DTC with respect to the Bonds. ? "Continuing Disclosure Certificate" shall mean that certain Continuing Disclosure Certificate executed by the Issuer and dated the date of issuance and delivery of the Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof. ? "Depository Bonds" shall mean the Bonds as issued in the form of one global certificate for each maturity, registered in the Registration Books maintained by the Registrar in the name of DTC or its nominee. ? "DTC" shall mean The Depository Trust Company, New York, New York, a limited purpose trust company, or any successor book-entry securities depository appointed for the Bonds. ? "Issuer" and "City" shall mean the City of Dubuque, Iowa. ? "Participants" shall mean those broker-dealers, banks and other financial institutions for which DTC holds Bonds as securities depository. ? "Paying Agent" shall mean Wells Fargo Bank, National Association, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein as Issuer's agent to provide for the payment of principal of and interest on the Bonds as the same shall become due. ? "Project Fund" shall mean the fund required to be established by this Resolution for the deposit of the proceeds of the Bonds. ? "Registrar" shall mean Wells Fargo Bank, National Association of Des Moines, Iowa, or such successor as may be approved by Issuer as provided herein and who shall carry out the duties prescribed herein with respect to maintaining a register of the owners of the Bonds. Unless otherwise specified, the Registrar shall also act as Transfer Agent for the Bonds. ? "Representation Letter" shall mean the Blanket Issuer Letter of Representations executed and delivered by the Issuer to DTC. ? "Resolution" shall mean this resolution authorizing the Bonds. ? "Treasurer" shall mean the Treasurer or such other officer as shall succeed to the same duties and responsibilities with respect to the recording and payment of the Bonds issued hereunder. Section 2. Levy and Certification of Annual Tax; Other Funds to be Used. (a) Levy of Annual Tax. That for the purpose of providing funds to pay the principal and interest of the Bonds hereinafter authorized to be issued, there is hereby levied for each future year the following direct annual tax on all of the taxable property in Dubuque, Iowa, to-wit: FISCAL YEAR (JULY 1 TO JUNE 30) AMOUNT YEAR OF COLLECTION $408,319 2009/2010 32 236,663 2010/2011 235,625 2011/2012 239,325 2012/2013 437,500 2013/2014 439,913 2014/2015 441,275 2015/2016 445,650 2016/2017 453,650 2017/2018 (NOTE: For example the levy to be made and certified against the taxable valuations of January 1, 2008, will be collected during the fiscal year commencing July 1, 2010). (b) Resolution to be Filed With County Auditor. A certified copy of this Resolution should be filed with the County Auditor of Dubuque County, Iowa, and the Auditor is hereby instructed in and for each of the years as provided, to levy and assess the tax hereby authorized in Section 2 of this Resolution, in like manner as other taxes are levied and assessed, and such taxes so levied in and for each of the years aforesaid be collected in like manner as other taxes of the City are collected, and when collected be used for the purpose of paying principal and interest on the Bonds issued in anticipation of the tax, and for no other purpose whatsoever. (c) Additional City Funds Available. Principal and interest coming due at any time when the proceeds of the tax on hand shall be insufficient to pay the same shall be promptly paid when due from current funds of the City available for that purpose and reimbursement shall be made from such special fund in the amounts thus advanced. Section 3. Bond Fund. The tax shall be collected each year at the same time and in the same manner as, and in addition to, all other taxes in and for the City, and when collected they shall be converted into a special fund within the Debt Service Fund to be known as the "GENERAL OBLIGATION URBAN RENEWAL BOND FUND 2008C" (the "Bond Fund"), which is hereby pledged for and shall be used only for the payment of the principal of and interest on the Bonds hereinafter authorized to be issued; and also there shall be apportioned to the fund its proportion of taxes received by the City from property that is centrally assessed by the State of Iowa. Section 4. Application of Bond Proceeds. Proceeds of the Bonds other than accrued interest except as may be provided below shall be credited to the Project Fund and expended therefrom for the purposes of issuance. Any amounts on hand in the Project Fund shall be available for the payment of the principal of or interest on the Bonds at any time that other funds shall be insufficient to the purpose, in which event such funds shall be repaid to the Project Fund at the earliest opportunity. Any balance on hand in the Project Fund and not immediately required for its purposes may be invested not inconsistent with limitations provided by law or this Resolution. Accrued interest, if any, shall be deposited in the Bond Fund. Section 5. Investments of Bond Fund Proceeds. All moneys held in the Bond Fund, provided for by Section 3 of this Resolution shall be invested in investments permitted by Chapter 12B, Code of Iowa, 2007 (formerly Chapter 452, Code of Iowa, as amended) or deposited in financial institutions which are members of the Federal Deposit Insurance Corporation and the deposits in which are insured thereby and all such deposits exceeding the maximum amount insured from time to time by FDIC or its equivalent successor in any one financial institution shall be continuously secured in compliance with the State Sinking Fund provided under Chapter 12C of the Code of Iowa, 2007, as amended or otherwise by a valid pledge of direct obligations of the United States Government having an equivalent market value. All such interim investments shall mature before the date on which the moneys are required for payment of principal of or interest on the Bonds as herein provided. Section 6. Bond Details, Execution and Redemption. (a) Bond Details. General Obligation Urban Renewal Bonds of the City in the amount of $2,465,000, shall be issued pursuant to the provisions of Sections 384.24(3)(q) and 403.12 of the Code of Iowa for the aforesaid purpose. The Bonds shall be designated "GENERAL OBLIGATION 33 URBAN RENEWAL BOND, TAXABLE SERIES 2008C", be dated the date of delivery, and bear interest from the date thereof, until payment thereof, at the office of the Paying Agent, the interest payable on June 1, 2009, and semiannually thereafter on the lst day of June and December in each year until maturity at the rates hereinafter provided. The Bonds shall be executed by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the Clerk, and impressed or printed with the seal of the City and shall be fully registered as to both principal and interest as provided in this Resolution; principal, interest and premium, if any, shall be payable at the office of the Paying Agent by mailing of a check to the registered owner of the Bond. The Bonds shall be in the denomination of $5,000 or multiples thereof. The Bonds shall mature and bear interest as follows: Interest Principal Maturity Rate Amount June 1st 5.25% $100,000 2009 5.25 105,000 2010 5.25 115,000 2011 5.25 120,000 2012 5.25 130,000 2013 5.25 335,000 2014 5.25 355,000 2015 5.50 375,000 2016 5.50 400,000 2017 5.50 430,000 2018 (b) Redemption. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on such date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of bonds to be called has been reached. Section 7. Issuance of Bonds in Book-Entry Form; Replacement Bonds. (a) Notwithstanding the other provisions of this Resolution regarding registration, ownership, transfer, payment and exchange of the Bonds, unless the Issuer determines to permit the exchange of Depository Bonds for Bonds in the Authorized Denominations, the Bonds shall be issued as Depository Bonds in denominations of the entire principal amount of each maturity of Bonds (or, if a portion of the principal amount is prepaid, the principal amount less the prepaid amount); and such Depository Bonds shall be registered in the name of Cede & Co., as nominee of DTC. Payment of semi-annual interest for any Depository Bond shall be made by wire transfer or New York Clearing House or equivalent next day funds to the account of Cede & Co. on the interest payment date for the Bonds at the address indicated in or pursuant to the Representation Letter. (b) With respect to Depository Bonds, neither the Issuer nor the Paying Agent shall have any responsibility or obligation to any Participant or to any Beneficial Owner. Without limiting the immediately preceding sentence, neither the Issuer nor the Paying Agent shall have any responsibility or obligation with respect to (i) the accuracy of the records of DTC or its nominee or of any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant, any Beneficial 34 Owner or any other person, other than DTC or its nominee, of any notice with respect to the Bonds, (iii) the payment to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any amount with respect to the principal of, premium, if any, or interest on the Bonds, or (iv) the failure of DTC to provide any information or notification on behalf of any Participant or Beneficial Owner. The Issuer and the Paying Agent may treat DTC or its nominee as, and deem DTC or its nominee to be, the absolute owner of each Bond for the purpose of payment of the principal of, premium, if any, and interest on such Bond, for the purpose of all other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bonds, and for all other purposes whatsoever (except for the giving of certain Bondholder consents, in accordance with the practices and procedures of DTC as may be applicable thereto). The Paying Agent shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the Bondholders as shown on the Registration Books, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to the principal of, premium, if any, and interest on the Bonds to the extent so paid. Notwithstanding the provisions of this Resolution to the contrary (including without limitation those provisions relating to the surrender of Bonds, registration thereof, and issuance in Authorized Denominations), as long as the Bonds are Depository Bonds, full effect shall be given to the Representation Letter and the procedures and practices of DTC thereunder, and the Paying Agent shall comply therewith. (c) Upon (i) a determination by the Issuer that DTC is no longer able to carry out its functions or is otherwise determined unsatisfactory, or (ii) a determination by DTC that the Bonds are no longer eligible for its depository services or (iii) a determination by the Paying Agent that DTC has resigned or discontinued its services for the Bonds, if such substitution is authorized by law, the Issuer shall (A) designate a satisfactory substitute depository as set forth below or, if a satisfactory substitute is not found, (B) provide for the exchange of Depository Bonds for replacement Bonds in Authorized Denominations. (d) To the extent authorized by law, if the Issuer determines to provide for the exchange of Depository Bonds for Bonds in Authorized Denominations, the Issuer shall so notify the Paying Agent and shall provide the Registrar with a supply of executed unauthenticated Bonds to be so exchanged. The Registrar shall thereupon notify the owners of the Bonds and provide for such exchange, and to the extent that the Beneficial Owners are designated as the transferee by the owners, the Bonds will be delivered in appropriate form, content and Authorized Denominations to the Beneficial Owners, as their interests appear. (e) Any substitute depository shall be designated in writing by the Issuer to the Paying Agent. Any such substitute depository shall be a qualified and registered "clearing agency" as provided in Section 17A of the Securities Exchange Act of 1934, as amended. The substitute depository shall provide for (i) immobilization of the Depository Bonds, (ii) registration and transfer of interests in Depository Bonds by book entries made on records of the depository or its nominee and (iii) payment of principal of, premium, if any, and interest on the Bonds in accordance with and as such interests may appear with respect to such book entries. Section 8. Registration of Bonds; Appointment of Registrar; Transfer; Ownership; Delivery; and Cancellation. (a) Registration. The ownership of Bonds may be transferred only by the making of an entry upon the books kept for the registration and transfer of ownership of the Bonds, and in no other way. Wells Fargo Bank, National Association is hereby appointed as Bond Registrar under the terms of this Resolution and under the provisions of a separate agreement with the Issuer filed herewith which is made a part hereof by this reference. Registrar shall maintain the books of the Issuer for the registration of ownership of the Bonds for the payment of principal of and interest on the Bonds as provided in this Resolution. All Bonds shall be negotiable as provided in Article 8 of the Uniform 35 Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bonds and in this Resolution. (b) Transfer. The ownership of any Bond may be transferred only upon the Registration Books kept for the registration and transfer of Bonds and only upon surrender thereof at the office of the Registrar together with an assignment duly executed by the holder or his duly authorized attorney in fact in such form as shall be satisfactory to the Registrar, along with the address and social security number or federal employer identification number of such transferee (or, if registration is to be made in the name of multiple individuals, of all such transferees). In the event that the address of the registered owner of a Bond (other than a registered owner which is the nominee of the broker or dealer in question) is that of a broker or dealer, there must be disclosed on the Registration Books the information pertaining to the registered owner required above. Upon the transfer of any such Bond, a new fully registered Bond, of any denomination or denominations permitted by this Resolution in aggregate principal amount equal to the unmatured and unredeemed principal amount of such transferred fully registered Bond, and bearing interest at the same rate and maturing on the same date or dates shall be delivered by the Registrar. (c) Registration of Transferred Bonds. In all cases of the transfer of the Bonds, the Registrar shall register, at the earliest practicable time, on the Registration Books, the Bonds, in accordance with the provisions of this Resolution. (d) Ownership. As to any Bond, the person in whose name the ownership of the same shall be registered on the Registration Books of the Registrar shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of any such Bonds and the premium, if any, and interest thereon shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid. (e) Cancellation. All Bonds which have been redeemed shall not be reissued but shall be cancelled by the Registrar. All Bonds which are cancelled by the Registrar shall be destroyed and a certificate of the destruction thereof shall be furnished promptly to the Issuer; provided that if the Issuer shall so direct, the Registrar shall forward the cancelled Bonds to the Issuer. (f) Non-Presentment of Bonds. In the event any payment check representing payment of principal of or interest on the Bonds is returned to the Paying Agent or if any bond is not presented for payment of principal at the maturity or redemption date, if funds sufficient to pay such principal of or interest on Bonds shall have been made available to the Paying Agent for the benefit of the owner thereof, all liability of the Issuer to the owner thereof for such interest or payment of such Bonds shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Paying Agent to hold such funds, without liability for interest thereon, for the benefit of the owner of such Bonds who shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his part under this Resolution or on, or with respect to, such interest or Bonds. The Paying Agent's obligation to hold such funds shall continue for a period equal to two years and six months following the date on which such interest or principal became due, whether at maturity, or at the date fixed for redemption thereof, or otherwise, at which time the Paying Agent, shall surrender any remaining funds so held to the Issuer, whereupon any claim under this Resolution by the Owners of such interest or Bonds of whatever nature shall be made upon the Issuer. (g) Registration and Transfer Fees. The Registrar may furnish to each owner, at the Issuer's expense, one bond for each annual maturity. The Registrar shall furnish additional bonds in lesser denominations (but not less than the minimum denomination) to an owner who so requests. Section 9. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds. In case any outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Issuer shall at the request of Registrar authenticate and deliver a new Bond of like tenor and amount as the Bond so mutilated, 36 destroyed, stolen or lost, in exchange and substitution for such mutilated Bond to Registrar, upon surrender of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, upon filing with the Registrar evidence satisfactory to the Registrar and Issuer that such Bond has been destroyed, stolen or lost and proof of ownership thereof, and upon furnishing the Registrar and Issuer with satisfactory indemnity and complying with such other reasonable regulations as the Issuer or its agent may prescribe and paying such expenses as the Issuer may incur in connection therewith. Section 10. Record Date. Payments of principal and interest, otherwise than upon full redemption, made in respect of any Bond, shall be made to the registered holder thereof or to their designated agent as the same appear on the books of the Registrar on the 15th day preceding the payment date. All such payments shall fully discharge the obligations of the Issuer in respect of such Bonds to the extent of the payments so made. Payment of principal shall only be made upon surrender of the Bond to the Paying Agent. Section 11. Execution, Authentication and Delivery of the Bonds. Upon the adoption of this Resolution, the Mayor and Clerk shall execute and deliver the Bonds to the Registrar, who shall authenticate the Bonds and deliver the same to or upon order of the Purchaser. No Bond shall be valid or obligatory for any purpose or shall be entitled to any right or benefit hereunder unless the Registrar shall duly endorse and execute on such Bond a Certificate of Authentication substantially in the form of the Certificate herein set forth. Such Certificate upon any Bond executed on behalf of the Issuer shall be conclusive evidence that the Bond so authenticated has been duly issued under this Resolution and that the holder thereof is entitled to the benefits of this Resolution. No Bonds shall be authenticated and delivered by the Registrar unless and until there shall have been provided the following: 1. A certified copy of the Resolution of Issuer authorizing the issuance of the Bonds; 2. A written order of Issuer signed by the Treasurer of the Issuer directing the authentication and delivery of the Bonds to or upon the order of the Purchaser upon payment of the purchase price as set forth therein; 3. The approving opinion of Ahlers & Cooney, P.C., Bond Counsel, concerning the validity and legality of all the Bonds proposed to be issued. Section 12. Right to Name Substitute Paying Agent or Registrar. Issuer reserves the right to name a substitute, successor Registrar or Paying Agent upon giving prompt written notice to each registered bondholder. Section 13. Form of Bond. Bonds shall be printed in substantial compliance with standards proposed by the American Standards Institute substantially in the form as [provided]. Interest and principal shall be paid to the registered holder of the Bond as shown on the records of ownership maintained by the Registrar as of the 15th day preceding such interest payment date. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. This Bond is issued pursuant to the provisions of Sections 384.24(3)(q) and 403.12 of the Code of Iowa, for the purpose of paying costs of aiding in the planning, undertaking and carrying out of urban renewal project activities under the authority of Chapter 403 of the Code of Iowa and the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center West Economic Development District, including those costs associated with the North Siegert Farm demolition and grading project, in conformity to a Resolution of the Council of the City duly passed and approved. Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY 37 PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on that date or any date thereafter, from any funds regardless of source, in whole or from time to time in part, in any order of maturity and within an annual maturity by lot. The terms of redemption shall be par, plus accrued interest to date of call. Thirty days' notice of redemption shall be given by first class mail to the registered owner of the Bond. Failure to give such notice by mail to any registered owner of the Bonds or any defect therein shall not affect the validity of any proceedings for the redemption of the Bonds. All Bonds or portions thereof called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment. If selection by lot within a maturity is required, the Registrar shall designate the Bonds to be redeemed by random selection of the names of the registered owners of the entire annual maturity until the total amount of Bonds to be called has been reached. Ownership of this Bond may be transferred only by transfer upon the books kept for such purpose by Wells Fargo Bank, National Association, the Registrar. Such transfer on the books shall occur only upon presentation and surrender of this Bond at the office of the Registrar as designated below, together with an assignment duly executed by the owner hereof or his duly authorized attorney in the form as shall be satisfactory to the Registrar. Issuer reserves the right to substitute the Registrar and Paying Agent but shall, however, promptly give notice to registered bondholders of such change. All bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.31 of the Code of Iowa, subject to the provisions for registration and transfer contained in the Bond Resolution. And it is hereby represented and certified that all acts, conditions and things requisite, according to the laws and Constitution of the State of Iowa, to exist, to be had, to be done, or to be performed precedent to the lawful issue of this Bond, have been existent, had, done and performed as required by law; that provision has been made for the levy of a sufficient continuing annual tax on all the taxable property within the territory of the Issuer for the payment of the principal and interest of this Bond as the same will respectively become due; that the faith, credit, revenues and resources and all the real and personal property of the Issuer are irrevocably pledged for the prompt payment hereof, both principal and interest; and the total indebtedness of the Issuer including this Bond, does not exceed the constitutional or statutory limitations. IN TESTIMONY WHEREOF, the Issuer by its Council, has caused this Bond to be signed by the manual signature of its Mayor and attested by the manual signature of its City Clerk, with the seal of the City impressed hereon, and to be authenticated by the manual signature of an authorized representative of the Registrar, Wells Fargo Bank, National Association, Des Moines, Iowa. Section 14. Contract Between Issuer and Purchaser. This Resolution constitutes a contract between the City and the purchaser of the Bonds. Section 15. Severability Clause. If any section, paragraph, clause or provision of this Resolution be held invalid, such invalidity shall not affect any of the remaining provisions hereof, and this Resolution shall become effective immediately upon its passage and approval. Section 16. Continuing Disclosure. The Issuer hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate, and the provisions of the Continuing Disclosure Certificate are hereby incorporated by reference as part of this Resolution and made a part hereof. Notwithstanding any other provision of this Resolution, failure of the Issuer to comply with the Continuing Disclosure Certificate shall not be considered an event of default under this Resolution; however, any holder of the Bonds or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Issuer to comply with its obligations under the Continuing Disclosure Certificate. For purposes of this 38 section, "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bond (including persons holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for federal income tax purposes. Section 17. Repeal of Conflicting Resolutions or Ordinances. That all ordinances and resolutions and parts of ordinances and resolutions in conflict herewith are hereby repealed. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Water Revenue Bonds – Series 2008D: City Manager recommending approval of suggested proceedings to complete the action required for the issuance of $1,195,000 Water Revenue Bonds. Upon motion the documents were received and filed and Resolution No. 378-08 Appointing Wells Fargo Bank, National Association of Des Moines, Iowa, to serve as paying agent, bond registrar, and transfer agent, approving the paying agent and bond registrar and transfer agent agreement and authorizing the execution of the agreement; and Resolution No. 379-08 Relating to the issuance of Water Revenue Bonds by the City of Dubuque under the provisions of Chapter 384 of the Code of Iowa, authorizing and providing for the issuance and securing the payment of $1,195,000 Water Revenue Bonds, Series 2008D, and providing for a method of payment thereof, funding a debt service reserve fund, and related matters were adopted. RESOLUTION NO. 378-08 RESOLUTION APPOINTING WELLS FARGO BANK, NATIONAL ASSOCIATION OF DES MOINES, IOWA, TO SERVE AS PAYING AGENT, BOND REGISTRAR, AND TRANSFER AGENT, APPROVING THE PAYING AGENT AND BOND REGISTRAR AND TRANSFER AGENT AGREEMENT AND AUTHORIZING THE EXECUTION OF THE AGREEMENT WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, $1,195,000 Water Revenue Bonds, Series 2008D, dated the date of delivery, have been sold at public sale and action should now be taken to provide for the maintenance of records, registration of certificates and payment of principal and interest in connection with the issuance of the bonds; and WHEREAS, this Council has deemed that the services offered by Wells Fargo Bank, National Association of Des Moines, Iowa, are necessary for compliance with rules, regulations, and requirements governing the registration, transfer and payment of registered bonds; and WHEREAS, a Paying Agent, Bond Registrar and Transfer Agent Agreement (hereafter "Agreement") has been prepared to be entered into between the City and Wells Fargo Bank, National Association. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA: Section 1. That Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby appointed to serve as Paying Agent, Bond Registrar and Transfer Agent in connection with the issuance of $1,195,000 Water Revenue Bonds, Series 2008D, dated the date of delivery. Section 2. That the Agreement with Wells Fargo Bank, National Association of Des Moines, Iowa, is hereby approved and that the Mayor and Clerk are authorized to sign the Agreement on behalf of the City. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk 39 RESOLUTION NO. 379-08 MASTER RESOLUTION RELATING TO THE ISSUANCE OF WATER REVENUE BONDS BY THE CITY OF DUBUQUE UNDER THE PROVISIONS OF CHAPTER 384 OF THE CODE OF IOWA, AUTHORIZING AND PROVIDING FOR THE ISSUANCE AND SECURING THE PAYMENT OF $1,195,000 WATER REVENUE BONDS, SERIES 2008D, AND PROVIDING FOR A METHOD OF PAYMENT THEREOF, FUNDING A DEBT SERVICE RESERVE FUND, AND RELATED MATTERS WHEREAS, the City Council of the City of Dubuque, Iowa (the "City") has heretofore established charges, rates and rentals for services which are and will continue to be collected as system revenues of the Municipal Water Utility System; and WHEREAS, the City of Dubuque proposes to issue the Series 2008D Bonds hereinafter described to pay costs of water main replacements and repairs, construction of water main extensions, and the acquisition and installation of pump station radio communications equipment and facilities; and WHEREAS, the notice of intention of the Issuer to take action for the issuance of not to exceed $1,350,000 Water Revenue Bonds for the foregoing purposes has heretofore been duly published and no objections to such proposed action have been filed; and WHEREAS, pursuant to the provisions of Chapter 75 of the Code of Iowa, the above mentioned Bonds were heretofore sold at public sale and action should now be taken to issue said Bonds conforming to the terms and conditions of the best bid received at the advertised public sale. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, AS FOLLOWS: ARTICLE I DEFINITIONS Section 1.1. Definitions . The following terms shall have the following meanings in this Resolution unless the text expressly or by necessary implication requires otherwise: "Authorized Denominations" shall mean $5,000 or any integral multiple thereof. "Beneficial Owner" shall mean the person in whose name such Bond is recorded as the beneficial owner of a Bond by a Participant on the records of such Participant or such person's subrogee. “Bond Principal and Interest Fund” means the fund by that name established in Section 6.5 of this Resolution. “Bond Register” means the books maintained by the Registrar for the registration, transfer and exchange of Bonds. "Bondholder" means the registered owner of one or more Bonds. "Bonds" means any water revenue bonds, notes or other obligations authorized by and authenticated and delivered pursuant to this Resolution and any Series Resolution, including the Series 2008D Bonds, any other Senior Bonds, and any Subordinate Bonds. “City Clerk” means the individual presently serving as the City Clerk of the Issuer, and any successor who may hereafter serve as such officer or be charged with substantially the same duties and responsibilities. "Code" means the Internal Revenue Code of 1986, as amended, and the applicable regulations of the Treasury Department proposed or promulgated thereunder. "Continuing Disclosure Certificate" shall mean that certain Continuing Disclosure Certificate executed by the Issuer and dated the date of issuance and delivery of the Series 2008D Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof. "Costs of Issuance" means issuance costs with respect to any series of Bonds, including but not limited to the following: underwriters' spread (whether realized directly or derived through purchase of such Bonds at a discount below the price at which they are expected to be sold to the public); Credit Facility fees; trustee’s fees; counsel fees (including bond counsel, 40 underwriter's counsel, and any other specialized counsel fees incurred in connection with the borrowing); fees of any Financial Advisor to the Issuer incurred in connection with the issuance of the Bonds; Rating Agency fees; escrow agent and paying agent fees; accountant fees and other expenses related to issuance of the Bonds; printing costs (for the Bonds and of the preliminary and final official statement relating to the Bonds); and other fees and expenses of the Issuer incurred in connection with the issuance of the Bonds. "Credit Facility" means any letter of credit, insurance policy, guaranty, surety bond, standby bond purchase agreement, line of credit, revolving credit agreement, or similar obligation, arrangement, or instrument issued by a bank, insurance company, or other financial institution which is used by the Issuer to perform one or more of the following tasks: (i) enhancing the Issuer's credit by assuring owners of any of the Bonds that Principal of and interest on such Bonds will be paid promptly when due; (ii) providing liquidity for the owners of Bonds through undertaking to cause Bonds to be bought from the owners thereof when submitted pursuant to an arrangement prescribed by the Series Resolution relating to such Bonds; or (iii) remarketing any Bonds so submitted to the Issuer or Credit Facility Provider for purchase (whether or not the same Credit Facility Provider is remarketing the Bonds). "Credit Facility Agreement" means an agreement between the Issuer and a Credit Facility Provider pursuant to which the Credit Facility Provider issues a Credit Facility and may include the promissory note or other instrument evidencing the Issuer's obligations to a Credit Facility Provider pursuant to a Credit Facility Agreement. "Credit Facility Provider" means any issuer of a Credit Facility then in effect for all or part of the Bonds. Whenever in a Series Resolution the consent of the Credit Facility Provider is required, such consent shall only be required from the Credit Facility Provider whose Credit Facility is issued with respect to the series of Bonds for which the consent is required. "Debt Service Requirement" shall mean the total Principal and interest coming due on Senior Bonds, or all Bonds, as applicable, whether at maturity, on any Interest Payment Date, or upon mandatory sinking fund redemption in any specified period; provided, however, that the Debt Service Requirement with respect to any Bonds shall mean the net amount of principal and interest coming due on such Bonds after taking into account any so-called “subsidy” (i.e., the amount of anticipated investment earnings which will accrue on any reserve account relating to the Bonds and which will reduce the debt service payments of the Issuer with respect to such Bonds). In addition: (a) With respect to any Bonds secured by a Credit Facility, Debt Service Requirement shall include (i) any upfront or periodic commission or commitment fee obligations with respect to such Credit Facility, (ii) the outstanding amount of any Reimbursement Obligation owed to the applicable Credit Facility Provider and interest thereon, and (iii) any remarketing agent fees. (b) The Principal of and interest on Bonds shall be excluded from the determination of Debt Service Requirement to the extent that (1) the same were or are expected to be paid with amounts on deposit on the date of calculation (or Bond proceeds to be deposited on the date of issuance of proposed Bonds) in the Project Fund, the Debt Service Reserve Fund or a similar fund for Subordinate Bonds or (2) cash or non- callable Government Obligations are on deposit in an irrevocable escrow or trust account in accordance with Section 9.1 hereof (or a similar escrow or trust account for Subordinate Bonds) and such amounts (including, where appropriate, the earnings or other increment to accrue thereon) are required to be applied to pay Principal or interest and are sufficient to pay such Principal or interest. “Debt Service Reserve Fund” means the fund by that name established in Section 6.6 of this Resolution. 41 "Debt Service Reserve Requirement" means the amount determined to be a reasonable reserve for the payment of Principal of and interest on Senior Bonds (other than Senior SRF Bonds), which amount shall be the least of (a) 10% of the stated Principal amount of the Senior Bonds (other than Senior SRF Bonds), (b) the maximum annual Principal and interest requirements on the Senior Bonds (other than Senior SRF Bonds) (determined as of the issue date of each series of such Senior Bonds), or (c) 125% of the average annual Principal and interest requirements on the Senior Bonds (other than Senior SRF Bonds) (determined as of the issue date of each series of such Senior Bonds). If the aggregate initial offering price of a series of Bonds to the public is less than 98% or more than 102% of par, such offering price shall be used in lieu of the stated Principal amount. Notwithstanding the foregoing, the Debt Service Reserve Requirement, if any, in connection with any Senior SRF Bonds or any Subordinate Bonds shall be as provided in the Series Resolution authorizing the issuance of such Senior SRF Bonds or such Subordinate Bonds. "Depository Bonds" shall mean the Bonds as issued in the form of one global certificate for each maturity, registered in the Bond Register maintained by the Registrar in the name of DTC or its nominee. "DTC" shall mean The Depository Trust Company, New York, New York, a limited purpose trust company, or any successor book-entry securities depository appointed for the Bonds. “Financial Advisor” means a financial advisory firm appointed by the Governing Body for the purpose of assisting the Issuer with the structuring and offering of Bonds, SRF Bonds, Subordinate Bonds or other obligations. "Fiscal Year" shall mean the twelve-month period beginning on July l of each year and ending on the last day of June of the following year, or any other consecutive twelve-month period adopted by the Governing Body or by law as the official accounting period of the System. Requirements of a Fiscal Year as expressed in this Resolution shall exclude any payment of principal or interest falling due on the first day of the Fiscal Year and include any payment of principal or interest falling due on the first day of the succeeding Fiscal Year. "Governing Body" shall mean the City Council of the Issuer, or its successor in function with respect to the operation and control of the System. "Government Obligations" means (a) direct obligations of the United States of America for the full and timely payment of which the full faith and credit of the United States of America is pledged or (b) obligations issued by an agency controlled or supervised by and acting as an instrumentality of the United States of America, the full and timely payment of the principal of and the interest on which is fully and unconditionally guaranteed as a full faith and credit obligation of the United States of America (including any securities described in (a) or (b) issued or held in book-entry form on the books of the Department of the Treasury of the United States of America), which obligations, in either case, (i) are not subject to redemption or prepayment prior to maturity except at the option of the holder of such obligations and (ii) may include U.S. Treasury Trust Receipts. "Gross Revenues" shall mean all rents, profits, fees, charges and income derived directly from the operation of the System, including Investment Earnings. "Independent Auditor" shall mean an independent firm of certified public accountants or the Auditor of the State of Iowa. "Interest Payment Date" means each date on which interest is to become due on any Bonds, as established in the Series Resolution for such Bonds, and with respect to the Series 2008D Bonds, shall be as specified in Section 2.2 hereof. "Investment Earnings" means all interest received on and profits derived from investments of moneys in all funds and accounts of the Issuer established hereunder, other than investments derived from or with respect to (i) all funds and accounts established in connection 42 with SRF Bonds and (ii) those funds or accounts established within or as part of the Project Fund or the Rebate Fund. "Issuer" shall mean the City of Dubuque, Iowa. "Maximum Annual Debt Service Requirement" means the maximum amount of Debt Service Requirements as computed for the then current or any future Fiscal Year. "Net Revenues" shall mean Gross Revenues of the System after provision for payment of all Operation and Maintenance Expenses. "Operation and Maintenance Expenses" shall mean the reasonable necessary current expenses paid or accrued in operating and maintaining the System as determined in accordance with generally accepted accounting principles, including but not limited to (a) costs, including a reserve for bad debts of collecting Gross Revenues and making refunds; (b) engineering, audit reports, legal and administrative expenses; (c) salaries, wages, benefits and other compensation; (d) costs of routine repairs, replacements and renewals; (e) costs of utility services; (f) general administrative overhead, marketing or advertising; (g) losses from the sale, abandonment, reclassification or other disposition of any property of the System; (h) material and supplies used in the ordinary course of business; (i) contractual and professional services; (j) costs of insurance and fidelity bonds; (k) costs of carrying out provisions of the Resolution; (l) expenditures which do not exceed the standards for capitalization under the Issuer's accounting basis; and (m) all other routine costs and expenses. The term "Operation and Maintenance Expense" shall not include any allowance for depreciation or amortization, any debt service or the costs associated with early extinguishment of debt, nor any other accounting charges which are not payable from Gross Revenues. “Operation and Maintenance Fund” means the fund by that name established in Section 6.4 of this Resolution. "Original Purchaser" shall mean the purchaser of the Series 2008D Bonds from the Issuer at the time of their original issuance. "Outstanding" shall mean, as of a particular date, all such Bonds theretofore and thereupon delivered except: (a) any such Bond cancelled by or on behalf of the Issuer on or before said date; (b) any such Bond defeased pursuant to Section 9.1 of this Resolution or of the Series Resolution authorizing its issuance, or otherwise defeased as permitted by applicable law; and (c) any such Bond in lieu of or in substitution for which another bond shall have been delivered pursuant to the Series Resolution authorizing the issuance of such Bond. "Outstanding SRF Loan" shall mean the $1,037,000 Water Revenue Capital Loan Note, Series 2007, dated October 18, 2007 and authorized for issuance under the Prior Resolution. The Outstanding SRF Loan shall be deemed to be a Senior SRF Bond under this Resolution. "Participants" shall mean those broker-dealers, banks and other financial institutions for which DTC holds Bonds as securities depository. "Paying Agent" shall mean Wells Fargo Bank, National Association, or such successor as may be approved by the Issuer as provided herein and who shall carry out the duties prescribed herein as the Issuer's agent to provide for the payment of principal of and interest on the Bonds as the same shall become due. "Permitted Investments" shall mean those obligations in which the Issuer is permitted to invest moneys of the Issuer under applicable law and the Issuer’s then-prevailing Investment Policy, as amended from time to time. "Principal" means the principal amount of such Bond. "Principal Maturity Date" means each date on which Principal is to become due on any Bonds, by maturity or mandatory sinking fund redemption, as established in the Series Resolution for such Bonds. 43 "Prior Resolution" means Resolution No. 490-07 of the City Council approved on October 1, 2007, authorizing the issuance of the Outstanding SRF Loan. "Project" shall mean the acquisition, construction, reconstruction, extension, improvement, repairing and equipping of any part of the System, in whole or in part with the proceeds of a series of Bonds. "Project Costs" with respect to any Project shall mean costs including the following: (a) obligations of the Issuer for labor and materials in connection with the construction, installation and equipping of the Project; (b) the cost of contract bonds and insurance of all kinds that may be required or necessary during the construction of the Project; (c) all costs of architectural and engineering services, including the costs of the Issuer for test borings, surveys, estimates, plans and specifications and preliminary investigation therefor, and for supervising construction, as well as for the performance of all other duties required by or consequent upon the proper construction of the Project; (d) all expenses incurred in connection with the issuance of Bonds, including without limitation compensation and expenses of any trustee, Registrar and Paying Agents, expenses of the Issuer, legal and accounting expenses and fees, costs of printing and engraving, recording and filing fees, compensation of underwriters, Rating Agency fees, costs of financial services, and accrued interest on the Bonds; (e) all sums required to reimburse the Issuer for advances made by it for any of the above items or for any other costs incurred and for work done, whether before or after the adoption of the Series Resolution, which are properly chargeable to the Project; and (f) all other components of cost of labor, materials, machinery, and equipment and financing charges attributable to the Project to the extent permitted by law. "Project Fund" shall mean the fund by that name established in Section 5.1 of this Resolution. "Rating" means a rating in one of the categories by a Rating Agency, disregarding pluses, minuses, and numerical gradations. "Rating Agencies""Rating Agency" or means Fitch, Inc., Moody's Investors Service, Inc., and Standard & Poor's, a division of The McGraw-Hill Companies, Inc., or any successors thereto and any other nationally recognized credit rating agency then maintaining a rating on any Bonds at the request of the Issuer. If at any time a particular Rating Agency does not have a rating outstanding with respect to the relevant Bonds, then a reference to Rating Agency or Rating Agencies shall not include such Rating Agency. "Rebate Fund" means the fund by that name established in Section 6.10 of this Resolution. "Registrar" shall mean Wells Fargo Bank, National Association, or such successor as may be approved by the Issuer as provided herein and who shall carry out the duties prescribed herein with respect to maintaining a register of the owners of the Bonds. Unless otherwise specified, the Registrar shall also act as Transfer Agent for the Bonds. “Reimbursement Obligation” means the obligation of the Issuer to directly reimburse any Credit Facility Provider for amounts paid by such Credit Facility Provider under a Credit Facility, whether or not such obligation to so reimburse is evidenced by a promissory note or other similar instrument. "Representation Letter" shall mean the Blanket Issuer Letter of Representations executed by the Issuer and previously delivered to DTC. "Resolution" shall mean this Master Resolution of the Governing Body, as it may from time to time be modified, supplemented or amended by Supplemental Resolutions. "Revenue Fund" means the fund by that name established in Section 6.2 of this Resolution for the deposit of all Gross Revenues. 44 "Senior Bonds" means the Series 2008D Bonds and any other Bonds, including Senior SRF Bonds, issued with a right to payment and secured by a lien on the Net Revenues on a parity with the Series 2008D Bonds pursuant to Section 8.3 (except with respect to any Credit Facility which may be available only to one or more series of Senior Bonds and except that Senior SRF Bonds shall not be secured by the Debt Service Reserve Fund). "Senior SRF Bonds" means the Outstanding SRF Loan and any other SRF Bonds which are issued as Senior Bonds (except with respect to any Credit Facility which may be available only to one or more series of Senior Bonds and except that Senior SRF Bonds shall not be secured by the Debt Service Reserve Fund). "Series 2008D Bonds" shall mean the $1,195,000 Water Revenue Bonds, Series 2008D, dated the date of delivery, authorized to be issued pursuant to this Resolution. "Series 2008D Costs of Issuance Account" means the account by that name within the Project Fund established in Section 5.1 of this Resolution. "Series 2008D Projects" means the water main replacements and repairs, construction of water main extensions, and the acquisition and installation of pump station radio communications equipment and facilities being funded with the proceeds of the Series 2008D Bonds. "Series Resolution" means a resolution or resolutions of the Governing Body (which may be supplemented by one or more resolutions) to be adopted prior to and authorizing the issuance and delivery of any series of Bonds. This Resolution shall constitute the Series Resolution for the Series 2008D Bonds and the Outstanding SRF Loan. Such a Series Resolution as supplemented shall establish the date or dates of the pertinent series of Bonds, the schedule of maturities of such Bonds, the name of the purchaser(s) of such series of Bonds, the purchase price thereof, the rate or rates of interest to be borne thereby, whether fixed or variable, the interest payment dates for such Bonds, the terms and conditions, if any, under which such Bonds may be made subject to redemption (mandatory or optional) prior to maturity, the form of such Bonds, and such other details as the Issuer may determine. “Sinking Fund” shall mean the Bond Principal and Interest Fund established in Section 6.5 of this Resolution. “SRF Bonds” shall mean such bonds, notes or other obligations as may be issued in connection with the Issuer’s participation in the Iowa Drinking Water State Revolving Fund Program administered by the Iowa Finance Authority and Iowa Department of Natural Resources, which SRF Bonds may be Senior SRF Bonds or Subordinate SRF Bonds. "State" shall mean the State of Iowa. "Subordinate Bond Fund" means the fund by that name established in Section 6.7 of this Resolution. "Subordinate Bonds" means Bonds, including Subordinate SRF Bonds, issued with a right to payment from the Net Revenues and secured by a lien on the Net Revenues expressly junior and subordinate to the Senior Bonds. "Subordinate SRF Bonds" means SRF Bonds which are issued as Subordinate Bonds. “Supplemental Resolution” means any Series Resolution and any modification, amendment or supplement to this Resolution (other than a Series Resolution). “Surplus Fund” means the fund by that name established in Section 6.8 of this Resolution. "System" shall mean and include the municipal water system utility of the Issuer and all properties of every nature hereinafter owned by the Issuer and comprising part of or used as a part of the System, including all water treatment facilities, storage facilities, pumping stations, water main extensions, and all related property and improvements and extensions to the same, all related real and personal property of the Issuer and all related appurtenances, contracts, leases, franchises and other intangibles of the Issuer. 45 "Tax Exemption Certificate" shall mean the Tax Exemption Certificate executed by the Treasurer and delivered at the time of issuance and delivery of the Series 2008D Bonds. "Treasurer" shall mean the City Treasurer or such other officer of the Issuer as shall succeed to the same duties and responsibilities with respect to the recording and payment of the Bonds issued hereunder. "U.S. Treasury Trust Receipts" means receipts or certificates which evidence an undivided ownership interest in the right to the payment of portions of the principal of or interest on obligations described in clauses (a) or (b) of the term Government Obligations, provided that such obligations are held by a bank or trust company organized under the laws of the United States acting as custodian of such obligations, in a special account separate from the general assets of such custodian. ARTICLE II THE BONDS Section 2.1. Authority . The Bonds authorized by this Resolution shall be issued pursuant to Chapter 384 of the Code of Iowa, and in compliance with all applicable provisions of the Constitution and laws of the State of Iowa. The Bonds may be issued and sold from time to time in one or more series, may be designated "City of Dubuque, Iowa Water Revenue Bonds," and shall be in substantially the form set forth in the related Series Resolution, but such variations, omissions, substitutions, and insertions may be made therein, and such particular series designation, legends, or text may be endorsed thereon, as may be necessary or appropriate to conform to and as required or permitted by this Resolution and any Series Resolution or as may be necessary or appropriate to comply with applicable requirements of the Code. The Series 2008D Bonds authorized pursuant to Section 2.2 shall constitute the initial series of Bonds issued and delivered under, and secured by, this Resolution. As set forth in Section 8.8(b) hereof, the provisions of the Prior Resolution are hereby amended and restated to conform to the provisions of this Resolution, and the Outstanding SRF Loan shall be deemed to be a Senior SRF Bond under the terms hereof. Additional Senior Bonds may be issued from time to time as provided in, and subject to the limitations set forth in Section 8.3. Subordinate Bonds may be issued from time to time as provided in, and subject to the limitations set forth in, Section 8.4. Unless otherwise provided in a Series Resolution, each authenticated Bond shall bear interest from its dated date. Each Bond shall bear interest on overdue Principal at the rate borne by such Bond until the Principal balance thereof is paid in full. Unless otherwise provided in a Series Resolution, the Bonds shall be issued in fully registered form in Authorized Denominations and shall be dated as provided in the pertinent Series Resolution. The Principal of, premium, if any, and interest on the Bonds shall be payable in any coin or currency of the United States of America which, at the respective dates of payment thereof, is legal tender for the payment of public and private debts. The Bonds and the Registrar's Certificate of Authentication shall be in substantially the form set forth in the Series Resolution pursuant to which such series of Bonds are issued. Section 2.2. Series 2008D Bonds - Authorization and Purpose . There are hereby authorized to be issued, negotiable, serial, fully registered $1,195,000 Water Revenue Bonds, Series 2008D, dated the date of delivery, for the purpose of paying costs of water main replacements and repairs, construction of water main extensions, and the acquisition and installation of pump station radio communications equipment and facilities, funding the Debt Service Reserve Requirement with respect thereto, and to pay related Costs of Issuance. The Series 2008D Bonds shall be designated “CITY OF DUBUQUE, IOWA WATER REVENUE BONDS, SERIES 2008D", and bear interest from the date thereof, until payment thereof, at the office of the Paying Agent, said interest payable on June 1, 2009 and semiannually thereafter on the 1st day of June and December in each year until maturity at the rates hereinafter provided. 46 The Series 2008D Bonds and the Registrar’s Certificate of Authentication shall be in substantially the form set forth in Exhibit A attached hereto, with such variations, omissions, substitutions and insertions as are required or permitted by this Resolution. The Series 2008D Bonds shall be executed by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the City Clerk, and shall be fully registered as to both principal and interest as provided in this Resolution; principal, interest and premium, if any shall be payable at the office of the Paying Agent by mailing of a check, wire transfer or automated clearing house system transfer to the registered owner of the Bond. The Series 2008D Bonds shall be issued in Authorized Denominations and shall mature and bear interest as follows: Interest Principal Maturity Rate Amount June 1st 3.00% $ 70,000 2010 3.25 70,000 2011 3.50 70,000 2012 3.75 75,000 2013 4.00 75,000 2014 4.15 80,000 2015 4.30 80,000 2016 4.45 85,000 2017 4.60 90,000 2018 4.70 90,000 2019 4.80 95,000 2020 4.90 100,000 2021 4.95 105,000 2022 5.00 110,000 2023 Section 2.3. Issuance of Bonds in Book-Entry Form; Replacement Bonds . (a) Notwithstanding the other provisions of this Resolution regarding registration, ownership, transfer, payment and exchange of the Bonds, unless the Issuer determines in a Series Resolution to permit the exchange of Depository Bonds for Bonds in the Authorized Denominations, the Bonds shall be issued as Depository Bonds in denominations of the entire principal amount of each maturity of Bonds (or, if a portion of said principal amount is prepaid, said principal amount less the prepaid amount); and such Depository Bonds shall be registered in the name of Cede & Co., as nominee of DTC. Payment of semi-annual interest for any Depository Bond shall be made by wire transfer or New York Clearing House or equivalent next day funds to the account of Cede & Co. on the interest payment date for the Bonds at the address indicated in or pursuant to the Representation Letter. (b) With respect to Depository Bonds, neither the Issuer nor the Paying Agent shall have any responsibility or obligation to any Participant or to any Beneficial Owner. Without limiting the immediately preceding sentence, neither the Issuer nor the Paying Agent shall have any responsibility or obligation with respect to (i) the accuracy of the records of DTC or its nominee or of any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any notice with respect to the Bonds, (iii) the payment to any Participant, any Beneficial Owner or any other person, other than DTC or its nominee, of any amount with respect to the principal of, premium, if any, or interest on the Bonds, or (iv) the failure of DTC to provide any information or notification on behalf of any Participant or Beneficial Owner. The Issuer and the Paying Agent may treat DTC or its nominee as, and deem DTC or its nominee to be, the absolute owner of each Bond for the purpose of payment of the principal of, premium, if any, and interest on such Bond, for the purpose of all other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bonds, and for all other purposes whatsoever 47 (except for the giving of certain Bondholder consents, in accordance with the practices and procedures of DTC as may be applicable thereto). The Paying Agent shall pay all principal of, premium, if any, and interest on the Bonds only to or upon the order of the Bondholders as shown on the Bond Register, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to the principal of, premium, if any, and interest on the Bonds to the extent so paid. Notwithstanding the provisions of this Resolution to the contrary (including without limitation those provisions relating to the surrender of Bonds, registration thereof, and issuance in Authorized Denominations), as long as the Bonds are Depository Bonds, full effect shall be given to the Representation Letter and the procedures and practices of DTC thereunder, and the Paying Agent shall comply therewith. (c) Upon (i) a determination by the Issuer that DTC is no longer able to carry out its functions or is otherwise determined unsatisfactory, or (ii) a determination by DTC that the Bonds are no longer eligible for its depository services or (iii) a determination by the Paying Agent that DTC has resigned or discontinued its services for the Bonds, if such substitution is authorized by law, the Issuer shall (A) designate a satisfactory substitute depository as set forth below or, if a satisfactory substitute is not found, (B) provide for the exchange of Depository Bonds for replacement Bonds in Authorized Denominations. (d) To the extent authorized by law, if the Issuer determines to provide for the exchange of Depository Bonds for Bonds in Authorized Denominations, the Issuer shall so notify the Paying Agent and shall provide the Registrar with a supply of executed unauthenticated Bonds to be so exchanged. The Registrar shall thereupon notify the owners of the Bonds and provide for such exchange, and to the extent that the Beneficial Owners are designated as the transferee by the owners, the Bonds will be delivered in appropriate form, content and Authorized Denominations to the Beneficial Owners, as their interests appear. (e) Any substitute depository shall be designated in writing by the Issuer to the Paying Agent. Any such substitute depository shall be a qualified and registered "clearing agency" as provided in Section 17A of the Securities Exchange Act of 1934, as amended. The substitute depository shall provide for (i) immobilization of the Depository Bonds, (ii) registration and transfer of interests in Depository Bonds by book entries made on records of the depository or its nominee and (iii) payment of principal of, premium, if any, and interest on the Bonds in accordance with and as such interests may appear with respect to such book entries. Section 2.4. Registration of Bonds; Appointment of Registrar; Transfer; Ownership; and Cancellation . (a) Registration. The ownership of Bonds may be transferred only by the making of an entry upon the books kept for the registration and transfer of ownership of the Bonds, and in no other way. Wells Fargo Bank, National Association is hereby appointed as Bond Registrar for the Series 2008D Bonds under the terms of this Resolution and under the provisions of a separate agreement with the Issuer filed herewith which is made a part hereof by this reference. Registrar shall maintain the books of the Issuer for the registration of ownership of the Bonds for the payment of principal of and interest on the Bonds as provided in this Resolution or the applicable Series Resolution. All Bonds shall be negotiable as provided in Article 8 of the Uniform Commercial Code, subject to the provisions for registration and transfer contained in the Bonds and in this Resolution or the applicable Series Resolution. (b) Transfer. The ownership of any Bond may be transferred only upon the Bond Register kept for the registration and transfer of Bonds and only upon surrender thereof at the office of the Registrar together with an assignment duly executed by the holder or his duly authorized attorney in fact in such form as shall be satisfactory to the Registrar, along with the address and social security number or federal employer identification number of such transferee (or, if registration is to be made in the name of multiple individuals, of all such transferees). In the event that the address of the registered 48 owner of a Bond (other than a registered owner which is the nominee of the broker or dealer in question) is that of a broker or dealer, there must be disclosed on the Bond Register the information pertaining to the registered owner required above. Upon the transfer of any such Bond, a new fully registered Bond, of any denomination or denominations permitted by this Resolution or the applicable Series Resolution in aggregate principal amount equal to the unmatured and unredeemed principal amount of such transferred fully registered Bond, and bearing interest at the same rate and maturing on the same date or dates shall be delivered by the Registrar. (c) Registration of Transferred Bonds. In all cases of the transfer of the Bonds, the Registrar shall register the Bonds, at the earliest practicable time, on the Bond Register in accordance with the provisions of this Resolution or the applicable Series Resolution. (d) Ownership. As to any Bond, the person in whose name the ownership of the same shall be registered on the Bond Register of the Registrar shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of any such Bonds and the premium, if any, and interest thereon shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so paid. (e) Cancellation. All Bonds which have been redeemed shall not be reissued but shall be cancelled by the Registrar. All Bonds which are cancelled by the Registrar shall be destroyed and a certificate of the destruction thereof shall be furnished promptly to the Issuer; provided that if the Issuer shall so direct, the Registrar shall forward the cancelled Bonds to the Issuer. (f) Non-Presentment of Bonds. In the event any payment check representing payment of principal of or interest on the Bonds is returned to the Paying Agent or is not presented for payment of principal at the maturity or redemption date, if funds sufficient to pay such principal of or interest on Bonds shall have been made available to the Paying Agent for the benefit of the owner thereof, all liability of the Issuer to the owner thereof for such interest or payment of such Bonds shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Paying Agent to hold such funds, without liability for interest thereon, for the benefit of the owner of such Bonds who shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his part under this Resolution or the applicable Series Resolution or on, or with respect to, such interest or Bonds. The Paying Agent's obligation to hold such funds shall continue for a period equal to two years and six months following the date on which such interest or principal became due, whether at maturity, or at the date fixed for redemption thereof, or otherwise, at which time the Paying Agent, shall surrender any remaining funds so held to the Issuer, whereupon any claim under this Resolution or the applicable Series Resolution by the owners of such interest or Bonds of whatever nature shall be made upon the Issuer. Section 2.5. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds . In case any outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Issuer shall at the request of Registrar authenticate and deliver a new Bond of like tenor and amount as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond to Registrar, upon surrender of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, upon filing with the Registrar evidence satisfactory to the Registrar and Issuer that such Bond has been destroyed, stolen or lost and proof of ownership thereof, and upon furnishing the Registrar and Issuer with satisfactory indemnity and complying with such other reasonable regulations as the Issuer or its agent may prescribe and paying such expenses as the Issuer may incur in connection therewith. Section 2.6. Record Date. Payments of principal and interest, otherwise than upon full redemption, made in respect of any Bond, shall be made to the registered holder thereof or to their designated agent as the same appear on the books of the Registrar on the 15th day preceding the 49 payment date. All such payments shall fully discharge the obligations of the Issuer in respect of such Bonds to the extent of the payments so made. Payment of principal shall only be made upon surrender of the Bond to the Paying Agent. Section 2.7. Execution, Authentication and Delivery of the Series 2008D Bonds . Upon the adoption of this Resolution, the Mayor and City Clerk shall execute and deliver the Series 2008D Bonds to the Registrar, who shall authenticate the same and deliver the same to or upon order of the Original Purchaser. No such Bond shall be valid or obligatory for any purpose or shall be entitled to any right or benefit hereunder unless the Registrar shall duly endorse and execute on such Bond a Certificate of Authentication substantially in the form of the Certificate herein set forth. Such Certificate upon any such Bond executed on behalf of the Issuer shall be conclusive evidence that the Bond so authenticated has been duly issued under this Resolution and that the holder thereof is entitled to the benefits of this Resolution. Section 2.8. Right to Name Substitute Paying Agent or Registrar . Issuer reserves the right to name a substitute, successor Registrar or Paying Agent for any Bonds upon giving prompt written notice to each registered Bondholder. ARTICLE III REDEMPTION OF BONDS Section 3.1. Optional and Mandatory Redemption . (a) Redemption Generally. The Bonds shall be subject to optional and mandatory redemption as provided in the Series Resolution pursuant to which such series of Bonds are issued. (b) Optional Redemption of Series 2008D Bonds. The Series 2008D Bonds maturing after June 1, 2016 may be called for redemption by the Issuer and paid before maturity on said date or any date thereafter, from any funds regardless of source, in whole or in part, in any order of maturity and within an annual maturity by lot. The terms of any redemption shall be par, plus accrued interest to date of call. Section 3.2. Notice of Redemption . Unless waived by any registered owner of Bonds to be redeemed and except as may be otherwise provided in a Series Resolution, official notice of any such redemption shall be given by the Registrar of the Bonds to be redeemed on behalf of the Issuer by mailing a copy of an official redemption notice by first class mail, at least 30 days prior to the date fixed for redemption to the registered owner of the Bond or Bonds to be redeemed at the address shown on the Bond Register or at such other address as is furnished in writing by such registered owner to the Registrar. All official notices of redemption shall be dated, shall contain the complete official name of the Bond issue, and shall state: (1) the redemption date; (2) the redemption price; (3) the interest rate, maturity date and CUSIP numbers of the Bonds being redeemed; (4) if less than all the Outstanding Bonds are to be redeemed, the Bond numbers, and, where part of the Bonds evidenced by one Bond certificate are being redeemed, the respective Principal amounts of such Bonds to be redeemed; (5) that on the redemption date the redemption price will become due and payable upon each such Bond or portion thereof called for redemption and that interest thereon shall cease to accrue from and after such date; and (6) the place where such Bonds are to be surrendered for payment of the redemption price (which place of payment shall be the principal payment office of the Paying Agent or at such other office designated by the Paying Agent for such purpose) and the name, address, and telephone number of a person or persons at the Paying Agent who may be contacted with respect to the redemption. Any notice of an optional redemption of any Bonds (pursuant to Section 3.1(b) of this resolution or any other Series Resolution) may specify that the redemption is contingent upon the deposit of 50 moneys with the Paying Agent in an amount sufficient to pay the redemption price (which price shall include the redemption premium, if any) of all the Bonds or portions of Bonds which are to be redeemed on that date. Prior to any redemption date, the Issuer shall deposit with the Paying Agent an amount of money sufficient to pay the redemption price of all the Bonds or portions of Bonds which are to be redeemed on that date. For so long as DTC is effecting book–entry transfers of the Bonds, the Registrar shall provide the notices specified in this Section to DTC. It is expected that DTC shall, in turn, notify its Participants and that the Participants, in turn, will notify or cause to be notified the Beneficial Owners. Any failure on the part of DTC or a Participant, or failure on the part of a nominee of a Beneficial Owner of a Bond (having been mailed notice from the Registrar, a Participant or otherwise) to notify the Beneficial Owner of the Bond so affected, shall not affect the validity of the redemption of such Bond. Any defect in any notice of redemption shall not affect the validity of proceedings for redemption of the Bonds. Section 3.3. Effect of Notice of Redemption . Official notice of redemption having been given in the manner and under the conditions provided in this Article and moneys for payment of the redemption price being held by the Paying Agent as provided in the Series Resolution, the Bonds or portions of Bonds called for redemption shall, on the redemption date designated in such notice, become and be due and payable at the redemption price provided for redemption of such Bonds or portions of Bonds on such date, and from and after such date interest on the Bonds or portions of Bonds called for redemption shall cease to accrue, such Bonds or portions of Bonds shall cease to be entitled to any lien, benefit, or security under the Series Resolution, and the owners of such Bonds or portions of Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof. Upon surrender for partial redemption of any Bond, there shall be prepared for and delivered to the registered owner a new Bond or Bonds of the same series, maturity, and interest rate in the amount of the unpaid Principal. Section 3.4. Redemption Among Series . Subject to the redemption provisions of any Series Resolution, the Issuer in its discretion may redeem the Bonds of any series, or a portion of the Bonds of any such series, before it redeems the Bonds of any other series. Within any particular series, any redemption of Bonds shall be effected in the manner provided in this Resolution and in any Series Resolution. Section 3.5. Selection of Bonds to be Redeemed . If less than all of the Bonds of like maturity of any series shall be called for redemption, the particular Bonds, or portions of Bonds, to be redeemed shall be selected by the Paying Agent in such equitable manner as the Paying Agent may determine. The portion of any Bond of a denomination of more than $5,000 to be redeemed shall be in the Principal amount of $5,000 or an integral multiple thereof, and, in selecting portions of such Bonds for redemption, the Issuer shall treat each such Bond as representing that number of Bonds which is obtained by dividing the Principal of such Bond to be redeemed in part by $5,000. Section 3.6. Purchase in Open Market . Nothing herein contained shall be construed to limit the right of the Issuer to purchase with any excess moneys in the Sinking Fund (i.e., moneys not needed in the then current Fiscal Year to pay Principal of and interest on any Senior Bonds) and for Sinking Fund purposes, any Senior Bonds in the open market. Any such Senior Bonds so purchased shall not be reissued and shall be cancelled. ARTICLE IV APPLICATION OF PROCEEDS Section 4.1. Application of Series 2008D Bond Proceeds . The proceeds of the Series 2008D Bonds shall be applied as follows: (i) An amount sufficient to pay Costs of Issuance of the Series 2008D Bonds shall be deposited into the Series 2008D Costs of Issuance Account. 51 (ii) An amount sufficient to meet the Debt Service Reserve Requirement for the Series 2008D Bonds shall be deposited in the Debt Service Reserve Fund. (iii) The balance of the proceeds shall be deposited in the Series 2008D Account of the Project Fund and applied to pay Project Costs of the Series 2008D Projects. ARTICLE V PROJECT FUND Section 5.1. Project Fund . There is hereby established a Project Fund and within the Project Fund, there shall be established a separate account for each Project and a separate Costs of Issuance Account for each series of Bonds issued under a Series Resolution. Except as may be otherwise provided in the Series Resolution authorizing the issuance of SRF Bonds, moneys in the Project Fund shall be held as may from time to time be designated by the Issuer, and applied to the payment of the Project Costs, or for the repayment of advances made for that purpose in accordance with and subject to the provisions and restrictions set forth in this Article. The Issuer covenants that it will not cause or permit to be paid from the Project Fund any sums except in accordance with such provisions and restrictions; provided, however, that any moneys in the Project Fund not presently needed for the payment of current obligations during the course of construction may be invested in Permitted Investments maturing not later than (i) the date upon which such moneys will be needed or (ii) 36 months from the date of purchase, in either case upon direction of the Treasurer. Any such investments shall be held in trust for the account of the Project Fund until maturity or until sold, and at maturity or upon such sale the proceeds received therefrom including accrued interest and premium, if any, shall be immediately deposited in the Project Fund and shall be disposed of in the manner and for the purposes provided in the Resolution. At such time as all Costs of Issuance have been paid, and in any case not later than 6 months after the date of issuance of the applicable series of Bonds, any money in a Costs of Issuance Account shall be transferred to the applicable account of the Project Fund. Section 5.2. Funds Remaining on Completion of Projects . For each series of Bonds, the Issuer shall, when a Project has been completed, and may, when a Project has been substantially completed, estimate what portion of the funds remaining in the separate account relating to such Project will be required by the Issuer for the payment or reimbursement of the Project Costs of such Project, and thereafter such funds that will not be used shall be, at the direction of the Governing Body, either (1) applied to pay the costs of other Projects, (2) transferred to the Sinking Fund and used to redeem Bonds of the related series on the next redemption date or to pay Principal of such Bonds on the next Principal Maturity Date, or (3) transferred to the Sinking Fund and used to pay interest on Bonds of the related series, provided that the Issuer shall first obtain an opinion of bond counsel to the effect that, under existing law, the application of such moneys to pay interest on such Bonds (a) is allowed under State law, and (b) if such Bonds are tax-exempt Bonds, will not, by itself and without more, adversely affect the exclusion from gross income for federal income tax purposes of interest payable on such Bonds. When all moneys have been withdrawn or transferred from any separate account within the Project Fund in accordance with the provisions of this Section, such separate account shall terminate and cease to exist. ARTICLE VI PLEDGE OF NET REVENUES AND FLOW OF FUNDS Section 6.1. Pledge of Revenues; Limited Obligations . Subject only to the rights of the Issuer to apply amounts as provided in this Article VI, all Net Revenues shall be and are hereby pledged to the prompt payment of the Principal of, premium, if any, and interest on the Bonds; provided, however, that the pledge of the Net Revenues to any Subordinate Bonds shall be junior and subordinate in lien and right of payment to all Senior Bonds Outstanding at any time. Such moneys and securities shall immediately be subject to the lien of this pledge for the benefit of the Bondholders without any physical delivery thereof or further act, and the lien of this pledge shall be valid and binding against 52 the Issuer and against all other persons having claims against the Issuer, whether such claims shall have arisen in tort, contract, or otherwise, and regardless of whether such persons have notice of the lien of this pledge. This pledge shall rank superior to all other pledges which may hereafter be made of any of the Net Revenues. The lien of the pledge made in this Section does not secure any obligation of the Issuer other than the Bonds. The Bonds shall be limited obligations of the Issuer as provided therein payable solely from the Net Revenues. The Bonds and the interest thereon shall not constitute a general or moral obligation of the Issuer nor a debt, indebtedness, or obligation of the Issuer or the State or any political subdivision thereof within the meaning of any constitutional, statutory or charter provision whatsoever. No taxing power of the Issuer is pledged to the payment of the Principal of, premium, if any, or interest on the Bonds or other costs incident thereto. Neither the members of the Governing Body nor any person executing the Bonds shall be liable personally on the Bonds by reason of the issuance thereof. Section 6.2. Special Funds . The following special funds shall be established, maintained and accounted for as hereinafter provided so long as any of the Bonds remain Outstanding: (a) Revenue Fund; (b) Operation and Maintenance Fund; (c) Bond Principal and Interest Fund; (d) Debt Service Reserve Fund; (e) Subordinate Bond Fund (while Subordinate Bonds are Outstanding); (f) Surplus Fund; and (g) Rebate Fund. The Issuer shall have the right to create special accounts, from time to time, in each of the foregoing Funds as the Governing Body determines to be desirable. Section 6.3. Flow of Funds . All Gross Revenues shall be deposited as received into the Revenue Fund. Moneys from time to time credited to the Revenue Fund shall be applied to the funds hereby established in the following order of priority: (a) First, to transfer to the Operation and Maintenance Fund sufficient amounts required for the payment of all current Operation and Maintenance Expenses, as provided in Section 6.4 of this Resolution. (b) Second, to transfer all amounts to the Bond Principal and Interest Fund as required by Section 6.5 of this Resolution. (c) Third, to transfer all amounts to the Debt Service Reserve Fund as required by Section 6.6 of this Resolution. (d) Fourth, to transfer all amounts to the Rebate Fund as required by Section 6.10 of this Resolution. (e) Fifth, to transfer all amounts to the Subordinate Bond Fund as required by Section 6.7 of this Resolution. (f) Sixth, to make deposits to the Surplus Fund as required in Section 6.8 of this Resolution. Section 6.4. Operation and Maintenance Fund . Money in the Revenue Fund shall first be disbursed to make deposits into the Operation and Maintenance Fund. There shall be deposited in the Operation and Maintenance Fund each month an amount sufficient to pay the Operation and Maintenance Expenses due, or expected to come due, during the month, plus an amount equal to one/twelfth of expenses payable on an annual basis such as insurance. After the first day of the month, further deposits may be made to the Operations and Maintenance Fund from the Revenue Fund to the extent necessary to pay current Operation and Maintenance Expenses accrued and payable to the extent that funds are not available in the Surplus Fund. Section 6.5. Bond Principal and Interest Fund . On or before the last business day of each month so long as any Bonds remain Outstanding, there shall next be transferred into the Bond 53 Principal and Interest Fund (also referred to as the “Sinking Fund”) from the Revenue Fund, to the extent not funded from capitalized interest, the following amounts: (a) General. Sufficient moneys shall be paid in periodic installments from the Revenue Fund into the Sinking Fund for the purpose of paying the Principal of and interest on the Senior Bonds as they become due and payable. Amounts held in the Sinking Fund shall be used solely to pay interest and Principal of the Senior Bonds as the same become due and payable (whether at maturity or upon redemption). (b) Interest. On or before the 30th day preceding each Interest Payment Date for Senior Bonds, the Issuer shall deposit in the Sinking Fund an amount which, together with any other moneys already on deposit therein and available to make such payment, is not less than the interest coming due on such Senior Bonds on such Interest Payment Date. (c) Principal. On or before the 30th day preceding each Principal Maturity Date for Senior Bonds, the Issuer shall deposit in the Sinking Fund an amount which, together with any other moneys already on deposit therein and available to make such payment, is not less than the Principal coming due on such Senior Bonds on such Principal Maturity Date. (d) Application of Money in Sinking Fund. No further payments need be made into the Sinking Fund whenever the amount available in the Sinking Fund, if added to the amount then in the Debt Service Reserve Fund, is sufficient to retire all Senior Bonds then Outstanding and to pay all unpaid interest accrued and to accrue prior to such retirement. No moneys in the Sinking Fund shall be used or applied to the optional purchase or redemption of Senior Bonds prior to maturity unless: (i) provision shall have been made for the payment of all of the Senior Bonds; or (ii) such moneys are applied to the purchase and cancellation of Senior Bonds which are subject to mandatory redemption on the next mandatory redemption date, which falls due within 12 months, such Senior Bonds are purchased at a price not more than would be required for mandatory redemption, and such Senior Bonds are cancelled upon purchase; or (iii) such moneys are in excess of the then required balance of the Sinking Fund and are applied to redeem a part of the Senior Bonds Outstanding on the next succeeding redemption date for which the required notice of redemption may be given. Section 6.6. Debt Service Reserve Fund . Upon the issuance of the Series 2008D Bonds, the Issuer shall deposit into the Debt Service Reserve Fund the amounts specified in Section 4.1. There also shall be deposited into the Debt Service Reserve Fund the amounts specified in Series Resolutions with respect to additional Senior Bonds. Notwithstanding the foregoing, there shall be no deposit into the Debt Service Reserve Fund with respect to any SRF Bonds nor shall the Debt Service Reserve Fund secure any SRF Bonds. After the issuance of any Senior Bonds, the increase in the amount of the Debt Service Reserve Requirement resulting from the issuance of such Senior Bonds shall be accumulated, to the extent not covered by deposits from Bond proceeds or funds on hand, over a period not exceeding 61 months from the date of delivery of such Senior Bonds in monthly deposits ("Accumulation Payments"), none of which is less than 1/60 of the amount to be accumulated. The balance of the Debt Service Reserve Fund shall be maintained at an amount equal to the Debt Service Reserve Requirement (or such lesser amount that is required to be accumulated in the Debt Service Reserve Fund in connection with the periodic accumulation to the Debt Service Reserve Requirement after the issuance of Senior Bonds). There shall be transferred from the Revenue Fund to the Debt Service Reserve Fund the amount necessary to restore, as further described below, the amount of cash and securities in the Debt Service Reserve Fund to an amount equal to the Debt Service Reserve Requirement (or such lesser monthly amount that is required to be deposited into the Debt Service Reserve Fund after the issuance of Senior Bonds). Whenever for any reason the amount in the Sinking Fund is insufficient to pay all interest or Principal becoming due on the Senior Bonds within the next seven days, the Issuer shall make up any deficiency by transfers from the following funds and accounts, in the following order of priority: first, from the Surplus Fund; and second, from the funds and accounts of the Issuer 54 relating to Subordinate Bonds which are not Subordinate SRF Bonds. Whenever, on the date that such interest or Principal is due, there are insufficient moneys in the Sinking Fund available to make such payment, the Issuer shall, without further instructions, apply so much as may be needed of the moneys in the Debt Service Reserve Fund to prevent default in the payment of such interest or Principal, with priority to interest payments. Whenever by reason of any such application or otherwise (other than required Accumulation Payments), the amount remaining to the credit of the Debt Service Reserve Fund is less than the amount then required to be in the Debt Service Reserve Fund, such deficiency shall be remedied by monthly deposits from the Revenue Fund, to the extent funds are available in the Revenue Fund for such purpose after all required transfers set forth above have been made. Section 6.7. Subordinate Bond Fund . On or before the last business day of each month so long as any Subordinate Bonds remain Outstanding, there shall next be transferred into the Subordinate Bond Fund from the Revenue Fund such amounts as may be required to be deposited into the funds and accounts created by any Series Resolution authorizing the issuance of Subordinate Bonds, for the purpose of paying Principal of and interest on Subordinate Bonds, and accumulating reserves for such payments. Moneys credited to the Subordinate Bond Fund shall be used solely for the purpose provided in the Series Resolutions authorizing the Subordinate Bonds. Section 6.8. Surplus Fund . After making all payments and transfers hereinabove required, all amounts remaining in the Revenue Fund shall be transferred by the last day of each month to the Surplus Fund. Amounts credited to the Surplus Fund may be used for any lawful System purposes, including without limitation, to pay for any Projects, to pay costs of replacing any depreciable property or equipment of the System, to pay costs of any major or extraordinary repairs, replacements or renewals of the System, to acquire land or any interest therein, to pay any lease or contractual obligations not paid as Operation and Maintenance Expenses and to make any transfers required to cure any deficiencies in any funds. Section 6.9. Deficiencies in Funds . If in any month there shall not be transferred into any fund maintained pursuant to this Article, the full amounts required herein, amounts equivalent to such deficiency shall be set apart and transferred to such fund or funds from the first available and unallocated moneys in the Revenue Fund, and such transfer shall be in addition to the amounts otherwise required to be transferred to such funds during any succeeding month or months. Section 6.10. Rebate Fund . The Issuer shall calculate, from time to time, as required in order to comply with the provisions of Section 148(f) of the Internal Revenue Code of 1986, as amended, the amounts required to be rebated (including penalties) to the United States and shall deposit or cause to be deposited into the Rebate Fund any and all of such amounts promptly following a determination of any such amount. The Issuer shall direct any depository of the Rebate Fund to keep all moneys held therein invested in Permitted Investments. To the extent and at the times required in order to comply with Section 148(f) of the Code, the Issuer may withdraw funds from the Rebate Fund for the purpose of making rebate payments (including penalties) to the United States as required by Section 148(f) of the Code. Except as otherwise specifically provided in this Section, moneys in the Rebate Fund may not be withdrawn from the Rebate Fund for any other purpose. All Investments Earnings held in the Rebate Fund shall be retained in the Rebate Fund and shall become part of the Rebate Fund. Moneys held in the Rebate Fund, including the Investment Earnings thereon, if any, shall not be subject to a pledge in favor of the owners of the Bonds under the Series Resolution and may not be used to pay amounts due on the Bonds or amounts required for the operation, maintenance, enlargement, or extension of the System. Whenever the Issuer has filed all reports required to be filed with the United States pursuant to Section 148(f) of the Code with respect to any series of Bonds and has made all payments required to be made to the United States pursuant to Section 148(f) of the Code relating thereto, all moneys or 55 investments remaining in the Rebate Fund may be transferred to the Surplus Fund, and such moneys and investments may be used by the Issuer for any lawful purpose. Section 6.11. Investment of Funds; Transfer of Investment Earnings. (a) Monies in all funds shall, at the option and direction of the Treasurer, be invested and secured in the manner required by law for public funds, in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, or in any other Permitted Investments; provided that all such deposits and investments shall be made in such manner that the money required to be expended from any fund will be available at the proper time or times. All such investments shall be valued no less frequently than the last business day of the Issuer's fiscal year at cost (taking into account normal amortization and accretions of premiums and discounts) or, in the case of investments having a maturity greater than five years from the date of valuation, at market value, except that any direct obligations of the United States of America - State and Local Government Series shall be continuously valued at their par value or principal face amount. For purposes of maximizing investment returns, money in such funds may be invested, together with money in other funds or with other money of the Issuer, in common investments of the kind described above, or in a common pool of such investments maintained by the Issuer which shall be kept and held at an official depository of the Issuer, which shall not be deemed to be a loss of the segregation of such money or funds. Safekeeping receipts, certificates of participation or other documents clearly evidencing the investment or investment pool in which such money is invested and the share thereof purchased with such money or owned by such fund shall be held by or on behalf of each such fund. If and to the extent necessary, such investments shall be promptly sold to prevent any default. (b) To the extent it is not otherwise provided for in a Series Resolution or is needed to eliminate a deficiency, all Investment Earnings derived from deposits and investments credited to the funds established in this Article shall be transferred or credited to the Revenue Fund. (c) Notwithstanding anything to the contrary contained herein, any interest and income derived from deposits and investment of any amounts credited to any fund or account may be paid to the federal government if in the written opinion of bond counsel such payment is required in order to prevent interest on any Bonds from being includable within the gross income of the owners thereof for federal income tax purposes. ARTICLE VII GENERAL PROVISIONS Section 7.1. Rate Covenant . The Issuer shall continuously own, control, operate, and maintain the System in an efficient and economical manner and on a revenue producing basis and shall at all times prescribe, fix, maintain and collect rates, fees and other charges for the services and facilities furnished by the System that are fully sufficient at all times to: (a) provide for 100% of the budgeted Operation and Maintenance Expenses and for the accumulation in the Revenue Fund of a reasonable reserve therefor; and (b) produce Net Revenues in each Fiscal Year which: (a) will equal at least 125% of the Debt Service Requirement on all Senior Bonds then Outstanding for the year of computation; (b) will enable the Issuer to make all required payments, if any, into the Debt Service Reserve Fund and the Rebate Fund; (c) will enable the Issuer to accumulate an amount which, in the judgment of the Governing Body, is adequate to meet the costs of major renewals, replacements, repairs, additions, betterments, and improvements to the System, necessary to keep the same in good operating condition or as is required by any governmental agency having jurisdiction over the System; and (d) will remedy all deficiencies in required payments into any of the funds and accounts established under the Resolution from prior Fiscal Years. 56 If the Issuer fails to prescribe, fix, maintain and collect rates, fees and other charges in accordance with the provisions of this Section, the owners of not less than 25% in aggregate principal of the Bonds then Outstanding, without regard to whether any Event of Default shall have occurred, may institute and prosecute in any court of competent jurisdiction an appropriate action to compel the Issuer to prescribe, fix, maintain and collect rates, fees and other charges in accordance with the requirements of this Section. Section 7.2. Other Covenants Regarding the Operation of the System . The Issuer hereby covenants and agrees with each and every holder of the Bonds as follows: (a) Maintenance and Efficiency. The Issuer will maintain the System in good condition and operate it in an efficient manner and at reasonable cost. (b) Insurance. The Issuer shall maintain insurance for the benefit of the holders on the insurable portions of the System of a kind and in an amount which normally would be carried by private companies engaged in a similar kind of business. The proceeds of any insurance, except public liability insurance, shall be used to repair or replace the part or parts of the System damaged or destroyed, or if not so used shall be placed in the Operations and Maintenance Fund. (c) Accounting and Audits. The Issuer will cause to be kept proper books and accounts adapted to the System and in accordance with generally accepted accounting practices, and will diligently act to cause the books and accounts to be audited annually and reported upon not later than 180 days after the end of each Fiscal Year, or as soon thereafter as is practicable, by an Independent Auditor and will provide copies of the audit report to the Bondholders upon request. The Bondholders shall have at all reasonable times the right to inspect the System and the records, accounts and data of the Issuer relating thereto. (d) State Laws. The Issuer will faithfully and punctually perform all duties with reference to the System required by the Constitution and laws of the State of Iowa, including the making and collecting of reasonable and sufficient rates for services rendered by the System as above provided, and will segregate the revenues of the System and apply said revenues to the funds specified in this Resolution. (e) Property. The Issuer will not sell, lease, mortgage or in any manner dispose of the System, or any capital part thereof, including any and all extensions and additions that may be made thereto, until satisfaction and discharge of all of the Bonds shall have been provided for in the manner provided in this Resolution; provided, however, that this covenant shall not be construed to prevent the disposal by the Issuer of property which in the judgment of the Governing Body has become inexpedient or unprofitable to use in connection with the System, or if it is to the advantage of the System that other property of equal or higher value be substituted therefor, and provided further that the proceeds of the disposition of such property shall be placed in the Operations and Maintenance Fund and used in preference to other sources for capital improvements to the System. (f) Fidelity Bond. The Issuer shall maintain fidelity bond coverage in amounts which normally would be carried by private companies engaged in a similar kind of business on each officer or employee having custody of funds of the System. (g) Additional Charges. The Issuer will require proper connecting charges and/or other security for the payment of services charges. (h) Budget. The Governing Body of the Issuer shall approve and conduct operations pursuant to a system budget of revenues and current expenses for each Fiscal Year. Such budget shall take into account revenues and expenses during the current and last preceding Fiscal Years. Section 7.3. Disposition of Bond Proceeds; Arbitrage Not Permitted . The Issuer reasonably expects and covenants that no use will be made of the proceeds from the issuance and sale of the 57 Series 2008D Bonds issued hereunder which will cause any of the Series 2008D Bonds to be classified as arbitrage bonds within the meaning of Section 148(a) and (b) of the Code, and that throughout the term of said Series 2008D Bonds it will comply with the requirements of said statute and regulations issued thereunder. To the best knowledge and belief of the Issuer, there are no facts or circumstances that would materially change the foregoing statements or the conclusion that it is not expected that the proceeds of the Series 2008D Bonds will be used in a manner that would cause such Bonds to be arbitrage bonds. Without limiting the generality of the foregoing, the Issuer hereby agrees to comply with the provisions of the Tax Exemption Certificate and the provisions of the Tax Exemption Certificate are hereby incorporated by reference as part of this Resolution. The Treasurer is hereby directed to make and insert all calculations and determinations necessary to complete the Tax Exemption Certificate in all respects and to execute and deliver the Tax Exemption Certificate at issuance of the Series 2008D Bonds to certify as to the reasonable expectations and covenants of the Issuer at that date. The Issuer covenants that it will treat as yield restricted any proceeds of the Series 2008D Bonds remaining unexpended after three years from the issuance and any other funds required by the Tax Exemption Certificate to be so treated. If any investments are held with respect to the Series 2008D Bonds, the Issuer shall treat the same for the purpose of restricted yield as held in proportion to the original principal amounts of each issue. The Issuer covenants that it will exceed any investment yield restriction provided in this Resolution only in the event that it shall first obtain an opinion of bond counsel that the proposed investment action will not cause the Series 2008D Bonds to be classified as arbitrage bonds under Section 148(a) and (b) of the Code. The Issuer covenants that it will proceed with due diligence to spend the proceeds of the Series 2008D Bonds for the purpose set forth in this Resolution. The Issuer further covenants that it will make no change in the use of the proceeds available for the construction of facilities or change in the use of any portion of the facilities constructed therefrom by persons other than the Issuer or the general public unless it has obtained an opinion of bond counsel or a revenue ruling that the proposed project or use will not be of such character as to cause interest on any of the Series 2008D Bonds not to be exempt from federal income taxes in the hands of holders under the provisions of the Code. Section 7.4. Additional Covenants, Representations and Warranties of the Issuer . The Issuer certifies and covenants with the purchasers and holders of the Series 2008D Bonds from time to time outstanding that the Issuer through its officers, (a) will make such further specific covenants, representations and assurances as may be necessary or advisable; (b) comply with all representations, covenants and assurances contained in the Tax Exemption Certificate, which Tax Exemption Certificate shall constitute a part of the contract between the Issuer and the owners of the Series 2008D Bonds; (c) consult with bond counsel (as defined in the Tax Exemption Certificate); (d) pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Series 2008D Bonds; (e) file such forms, statements and supporting documents as may be required and in a timely manner; and (f) if deemed necessary or advisable by its officers, to employ and pay fiscal agents, financial advisors, attorneys and other persons to assist the Issuer in such compliance. ARTICLE VIII SENIOR BONDS AND SUBORDINATE BONDS Section 8.1. No Prior Lien Bonds nor Senior Bonds Except as Permitted in the Resolution. All Senior Bonds shall have complete parity of lien on the Net Revenues despite the fact that any of the Senior Bonds may be delivered at an earlier date than any other of the Senior Bonds. The Issuer may issue Senior Bonds in accordance with this Resolution, but the Issuer shall issue no other obligations of any kind or nature payable from or enjoying a lien on the Net Revenues or any 58 part thereof having priority over or, except as permitted in this Resolution, on a parity with the Series 2008D Bonds. Section 8.2. Refunding Bonds. Any or all of the Senior Bonds may be refunded prior to maturity, upon redemption in accordance with their terms, or with the consent of the owners of such Senior Bonds, and the refunding Bonds so issued shall constitute Senior Bonds, if the Issuer shall have obtained a report from an Independent Auditor or a Financial Advisor demonstrating that the refunding will reduce the total debt service payments on the Senior Bonds being refunded on a present value basis or, as an alternative to, and in lieu thereof, the Senior Bonds are being refunded under arrangements which immediately result in making provision for the payment of the refunded Bonds. Section 8.3. Senior Bonds. Bonds (including refunding Bonds which do not meet the requirements of Section 8.2) may also be issued on a parity with the Series 2008D Bonds pursuant to a Series Resolution, and the Bonds so issued shall constitute Senior Bonds, if all of the following conditions are satisfied: (a) The Issuer shall have received, at or before issuance of the Senior Bonds, a report by an Independent Auditor or Financial Advisor to the effect that the historical Net Revenues for the preceding Fiscal Year were equal to at least 125% of the Maximum Annual Debt Service Requirement on all Senior Bonds which will be Outstanding immediately after the issuance of the proposed Senior Bonds. The report by the Independent Auditor or Financial Advisor as aforesaid may contain proforma adjustments to historical Net Revenues equal to 100% of the increased annual amount attributable to any revision in the schedule of rates, fees and charges for the services and facilities furnished by the System, adopted prior to the date of delivery of the proposed Senior Bonds and not fully reflected in the historical Net Revenues actually received during such 12 month period. For purposes of this Section, “preceding Fiscal Year” shall be the most recently completed Fiscal Year for which audited financial statements prepared by a certified public accountant are issued and available, but in no event a Fiscal Year which ended more than eighteen (18) months prior to the date of issuance of the additional Senior Bonds. (b) The Issuer shall have received, at or before issuance of the Senior Bonds, a report from an Independent Auditor or Financial Advisor to the effect that the payments required to be made into each account of the Sinking Fund, the Debt Service Reserve Fund and the Subordinate Bond Fund have been made and the balance in each account of each such Fund is not less than the balance required by this Resolution as of the date of issuance of the proposed Senior Bonds. (c) Except with respect to Senior SRF Bonds, the Series Resolution authorizing the proposed Senior Bonds must require (i) that the amount to be accumulated and maintained in the Debt Service Reserve Fund be increased to not less than 100% of the Debt Service Reserve Requirement computed on a basis which includes all Senior Bonds which will be Outstanding immediately after issuance of the proposed Senior Bonds and (ii) that the amount of such increase be deposited in the Debt Service Reserve Fund on or before the date and at least as fast as specified in Section 6.6 of this Resolution. (d) The Series Resolution authorizing the proposed Senior Bonds must require the proceeds of such proposed Senior Bonds to be used solely to make capital improvements to the System, to fund interest on the proposed Senior Bonds, to acquire existing or proposed water utilities, extensions or related facilities, to refund other obligations issued for such purposes (whether or not such refunding Bonds satisfy the requirements of Section 8.2), and to pay expenses incidental thereto and to the issuance of the proposed Senior Bonds. Section 8.4. Subordinate Bonds. 59 (a) Bonds may also be issued on a subordinate basis to the Series 2008D Bonds and any other Senior Bonds pursuant to a Series Resolution, and the Bonds so issued shall constitute Subordinate Bonds, if all of the following conditions are satisfied: (1) The Series Resolution authorizing the Subordinate Bonds shall provide that such Subordinate Bonds shall be junior and subordinate in lien and right of payment to all Senior Bonds Outstanding at any time. (2) The Series Resolution authorizing the Subordinate Bonds shall establish funds and accounts for the moneys to be used to pay debt service on the Subordinate Bonds, and to provide any desired reserves therefor. (3) The requirements of Section 8.3(d) are met with respect to such Subordinate Bonds (as if such Bonds constituted Senior Bonds). (b) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, or other similar proceedings in connection therewith, relative to the Issuer or to its creditors, as such, or to its property, and in the event of any proceedings for voluntary liquidation, dissolution, or other winding up of the Issuer, whether or not involving insolvency or bankruptcy, the owners of all Senior Bonds then Outstanding shall be entitled to receive payment in full of all Principal and interest due on all such Senior Bonds in accordance with the provisions of the Series Resolution before the owners of the Subordinate Bonds are entitled to receive any payment from the Net Revenues or the amounts held in the funds and accounts created under the Series Resolution on account of Principal of, premium, if any, or interest on the Subordinate Bonds. (c) If any Event of Default shall have occurred and be continuing (under circumstances when the provisions of paragraph (b) are not applicable), the owners of all Senior Bonds then Outstanding shall be entitled to receive payment in full of all Principal and interest then due on all such Senior Bonds before the owners of the Subordinate Bonds are entitled to receive any Payment from the Net Revenues or the amounts held in the funds and accounts created under the Series Resolution of Principal of, premium, if any, or interest on the Subordinate Bonds. (d) Any series of Subordinate Bonds may have such rank or priority with respect to any other series of Subordinate Bonds as may be provided in the Series Resolution authorizing such series of Subordinate Bonds and may contain such other provisions as are not in conflict with the provisions of the Series Resolution. Section 8.5. Accession of Subordinate Bonds to Senior Status . By proceedings authorizing all or any Subordinate Bonds, the Issuer may provide for the accession of such Subordinate Bonds to the status of complete parity with the Senior Bonds if, as of the date of accession, the conditions of Section 8.3 are satisfied, on a basis which includes all Outstanding Senior Bonds and such Subordinate Bonds, and if on the date of accession: (a) the Debt Service Reserve Fund contains an amount equal to the Debt Service Reserve Requirement computed on a basis which includes all Outstanding Senior Bonds and such Subordinate Bonds (but which excludes, in the case of both Outstanding Senior Bonds and such Subordinate Bonds, any SRF Bonds); and (b) the Sinking Fund contains the amount which would have been required to be accumulated therein on the date of accession if the Subordinate Bonds had originally been issued as Senior Bonds. Section 8.6. Adoption of Proceedings . The Governing Body shall adopt a Series Resolution authorizing the issuance of any additional Bonds and reciting that the requirements of this Article have been satisfied, and shall set forth in such proceedings, among other things, the date or dates such additional Bonds shall bear and the rate or rates of interest, interest payment date or dates, maturity date or dates, and redemption provisions with respect to such additional Bonds and any other matters applicable to such additional Bonds as the Governing Body may deem advisable. Any such Series Resolution shall restate and reaffirm, by reference, all of the applicable terms, 60 conditions and provisions of this Resolution not modified by the Series Resolution. Section 8.7. Proceedings Authorizing Additional Bonds . No Series Resolution authorizing the issuance of additional Bonds as permitted under this Article shall conflict with the terms and conditions of this Resolution, except to the extent that the Series Resolution is adopted for one of the purposes set forth in Section 11.1 and complies with the provisions of Section 11.1 for the adoption of Supplemental Resolutions without the consent of Bondholders. Section 8.8. Applicability to Additional Bonds and Prior Resolution . (a) The provisions of this Resolution shall be construed as including and being applicable to any future series of Bonds, and any such Bonds shall be treated, unless otherwise specifically stated, as if they had been issued together with the Series 2008D Bonds and pursuant to the terms of this Resolution. (b) In accordance with the Consent and Waiver dated September 29, 2008 executed by the Iowa Finance Authority, in its capacity as the sole holder of the Outstanding SRF Loan, the provisions of the Prior Resolution are hereby amended and restated to conform to the provisions of this Resolution, and the Outstanding SRF Loan shall be deemed to be a Senior SRF Bond within the meaning of this Resolution. This Resolution shall be construed whenever possible so as not to conflict with the terms and conditions of the Loan and Disbursement Agreement approved in the Prior Resolution and entered into at the time of issuance of the Outstanding SRF Loan. In the event such construction is not possible, or in the event of any conflict or inconsistency between the terms hereof and those of the foregoing Loan and Disbursement Agreement, the terms of said Loan and Disbursement Agreement shall prevail and be given effect to the extent necessary to resolve any such conflict or inconsistency. Section 8.9. Credit Facilities. In connection with the issuance of any Bonds under the Series Resolution, the Issuer may obtain or cause to be obtained one or more Credit Facilities providing for payment of all or a portion of the Principal of, premium, if any, or interest due or to become due on such Bonds, providing for the purchase of such Bonds by the Credit Facility Provider, or providing funds for the purchase of such Bonds by the Issuer. In connection therewith the Issuer shall enter into Credit Facility Agreements with such Credit Facility Providers providing for, among other things, (i) the payment of fees and expenses to such Credit Facility Providers for the issuance of such Credit Facilities; (ii) the terms and conditions of such Credit Facilities and the Bonds affected thereby; and (iii) the security, if any, to be provided for the issuance of such Credit Facilities. The Issuer may secure any Credit Facility by an agreement providing for the purchase of the Bonds secured thereby with such adjustments to the rate of interest, method of determining interest, maturity, or redemption provisions as are specified by the Issuer in the applicable Series Resolution. The Issuer may in a Credit Facility Agreement agree to directly reimburse such Credit Facility Provider for amounts paid under the terms of such Credit Facility, together with interest thereon; provided, however, that no Reimbursement Obligation shall be created for purposes of the Series Resolution until amounts are paid under such Credit Facility. Any such Reimbursement Obligation shall be deemed to be a part of the Bonds to which the Credit Facility relates which gave rise to such Reimbursement Obligation, and references to Principal and interest payments with respect to such Bonds shall include Principal and interest due on the Reimbursement Obligation incurred as a result of payment of such Bonds with the Credit Facility. Any such Credit Facility shall be for the benefit of and secure such Bonds or portion thereof as specified in the applicable Series Resolution. ARTICLE IX DISCHARGE AND SATISFACTION Section 9.1. Discharge and Satisfaction of Bonds . The covenants, liens and pledges entered into, created or imposed pursuant to this Resolution or any Series Resolution may be fully discharged and satisfied with respect to the Bonds authorized thereunder, or any of them, in any one or more of the following ways: (a) By paying the said Bonds when the same shall become due and payable; and 61 (b) By depositing in trust with the Treasurer, or with a corporate trustee designated by the Governing Body for the payment of said Bonds and irrevocably appropriated exclusively to that purpose an amount in cash or Government Obligations the maturities and income of which shall be sufficient to retire at maturity, or by redemption prior to maturity on a designated date upon which said Bonds may be redeemed, all of such Bonds Outstanding at the time, together with the interest thereon to maturity or to the designated redemption date, premiums thereon, if any that may be payable on the redemption of the same; provided that proper notice of redemption of all such obligations to be redeemed shall have been previously published or provisions shall have been made for such publication. Upon such payment or deposit of money or securities, or both, in the amount and manner provided by this Section, all liability of the Issuer with respect to such Bonds shall cease, determine and be completely discharged, and the holders thereof shall be entitled only to payment out of the money or securities so deposited. ARTICLE X EVENTS OF DEFAULT AND REMEDIES Section 10.1. Events of Default . An Event of Default is one or more of the following: (a) A default shall be made in the due and punctual payment of the principal or redemption price of any Bond when and as the same shall become due and payable, whether at maturity or by call or proceedings for redemption, or otherwise; (b) A default shall be made in the due and punctual payment of any installment of interest on any Bond when and as such interest installment shall become due and payable; (c) A default shall be made by the Issuer in the performance or observance of any other of the covenants, agreements or conditions on its part in the Series Resolution or in the Bonds contained, and such default shall have continued for a period of 90 days after written notice specifying such default and requiring that it shall have been remedied is given to the Issuer by the owners of not less than 25% in principal amount of the Bonds Outstanding; provided that, if such failure cannot be corrected within such 90 day period, it shall not constitute an Event of Default if corrective action is instituted within such period and such corrective action is diligently pursued until the failure is corrected, provided that if such corrective action includes legal action such legal action shall be diligently pursued until either the failure is corrected or such failure shall be determined by a court of final and competent jurisdiction as not correctable as a matter of law. Section 10.2. Default and Remedies . In the event of (a) a default on the part of the Issuer in the prompt and full payment of principal of or interest on any Bond, or (b) a default in the keeping of any other covenant herein contained (if such default shall continue for a period of ninety days after written notice specifying the nature of the default and requiring it to be remedied is received by the Issuer), the holders of the Bonds shall have the right to proceed at law or in equity by suit, action or mandamus to enforce and compel performance of the duties required by the terms of the Resolution authorizing the issuance of the Bonds, or to obtain the appointment of a receiver to take possession of and operate the System, and to perform the duties required by the terms of the Resolution. The holders of the Bonds shall have no right to accelerate any payment obligation of the Issuer with respect to the Bonds. No holder of any Bond shall have the right to institute any proceeding, judicial or otherwise, for the enforcement of the covenants herein contained, except as provided in this Section. The holders of not less than 25% in principal amount of the Outstanding Bonds shall have the right, either at law or in equity, through suit, action or other proceedings, to protest and enforce the rights of all holders of such Bonds and to compel the performance of any and all of the covenants required herein to be performed by the Issuer, and its officers and employees, including but not limited to the fixing and maintaining of rates, fees and charges and the collection and proper segregation of Net Revenues 62 and the application and use thereof. The holders of a majority in principal amount of Outstanding Bonds shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Bondholders or the exercise of any power conferred on them and the right to waive a default in the performance of any such covenant, and its consequences, except a default in the payment of the principal of or interest on any Bond when due. Nothing herein, however, shall impair the absolute and unconditional right of the holder of each Bond to receive payment of the principal of, premium, if any, and interest on such Bond as such principal, premium and interest respectively become due, and to institute suit for any such payment. Section 10.3. Resolution a Contract . The provisions of this Resolution shall constitute a contract between the Issuer and the holder or holders of the Bonds, and after the issuance of any of the Bonds no change, variation or alteration of any kind in the provisions of this Resolution shall be made in any manner, except as provided in Article XI, until such time as all of the Bonds, and interest due thereon, shall have been satisfied and discharged as provided in this Resolution. ARTICLE XI SUPPLEMENTAL RESOLUTIONS Section 11.1. Amendment of Resolution Without Consent . The Issuer may, without the consent of or notice to any of the holders of the Bonds, approve one or more Supplemental Resolutions, which thereafter shall form a part of this Resolution, for any one or more of the following purposes: (a) to cure any ambiguity, defect, omission or inconsistent provision in this Resolution or in the Bonds; or to comply with any applicable provision of law or regulation of federal or state agencies; provided, however, that such action shall not materially adversely affect the interests of the holders of the Bonds; (b) to change the terms or provisions of this Resolution to the extent necessary to prevent the interest on the Bonds from being includable within the gross income of the holders thereof for federal income tax purposes; (c) to grant to or confer upon the holders of the Bonds any additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the holders of the Bonds; (d) to add to the covenants and agreements of the Issuer contained in this Resolution other covenants and agreements of, or conditions or restrictions upon, the Issuer or to surrender or eliminate any right or power reserved to or conferred upon the Issuer in this Resolution; (e) To subject to the lien and pledge of this Resolution additional Net Revenues as may be permitted by law; (f) To modify any of the provisions of the Resolution in any respect if such modification shall not become effective until after the Bonds Outstanding immediately prior to the effective date of such Supplemental Resolution shall cease to be Outstanding and if any Bonds issued contemporaneously with or after the effective date of such Supplemental Resolution shall contain a specific reference to the modifications contained in such subsequent proceedings; (g) To modify the Resolution to provide for the issuance of Senior Bonds or Subordinate Bonds, and such modification may deal with any subjects and make any provisions which the Issuer deems necessary or desirable for that purpose; (h) To modify any of the provisions of the Resolution in any respect (other than a modification of the type described in Section 11.2 requiring the consent of the Bondholders); provided that for (i) any Outstanding Bonds which are assigned a Rating and which are not secured by a Credit Facility providing for the payment of the full amount of Principal and interest to be paid thereon, each Rating Agency shall have given written notification to the Issuer that such modification will not cause the then applicable Rating on any Bonds to be reduced or withdrawn, and (ii) any Outstanding Bonds which are secured by Credit Facilities providing for the payment of the full amount of the Principal and interest to be paid thereon, each Credit Facility Provider shall have consented in writing to such modification. 63 Section 11.2. Amendment of Resolution Requiring Consent . The Issuer also may approve one or more Supplemental Resolutions, which thereafter shall form a part of this Resolution, if such Supplement Resolution shall have been consented to by holders of not less than two-thirds (2/3) in principal amount of the Bonds at any time Outstanding (not including in any case any Bonds which may then be held or owned by or for the account of the Issuer, but including such refunding Bonds as may have been issued for the purpose of refunding any of such Bonds if such refunding Bonds shall not then be owned by the Issuer); but this Resolution may not be so amended in such manner as to: (a) Make any change in the maturity or interest rate of the Bonds, or modify the terms of payment of Principal of or interest on the Bonds or any of them or impose any conditions with respect to such payment; (b) Materially affect the rights of the holders of less than all of the Bonds then Outstanding; and (c) Reduce the percentage of the Principal amount of Bonds, the consent of the holders of which is required to effect a further amendment; in each case without the consent of the owners of all of the affected Bonds then Outstanding. Whenever the Issuer shall propose to amend this Resolution under the provisions of this Section, it shall cause notice of the Supplemental Resolution to be filed with the Original Purchaser and to be mailed by certified mail to each registered owner of any Bond as shown by the records of the Registrar. Such notice shall set forth the nature of the proposed amendment and shall state that a copy of the proposed Supplemental Resolution is on file in the office of the City Clerk. Whenever at any time within one year from the date of the mailing of said notice there shall be filed with the City Clerk an instrument or instruments executed by the holders of at least two-thirds in aggregate principal amount of the Bonds then outstanding as in this Section defined, which instrument or instruments shall refer to the proposed Supplemental Resolution described in said notice and shall specifically consent to and approve the adoption thereof, thereupon, but not otherwise, the Governing Body of the Issuer may adopt such Supplemental Resolution and such Supplemental Resolution shall become effective and binding upon the holders of all of the Bonds. Any consent given by the holder of a Bond pursuant to the provisions of this Section shall be irrevocable for a period of six months from the date of the instrument evidencing such consent and shall be conclusive and binding upon all future holders of the same Bond during such period. Such consent may be revoked at any time after six months from the date of such instrument by the holder who gave such consent or by a successor in title by filing notice of such revocation with the City Clerk. The fact and date of the execution of any instrument under the provisions of this Section may be proved by the certificate of any officer in any jurisdiction who by the laws thereof is authorized to take acknowledgments of deeds within such jurisdiction that the person signing such instrument acknowledged before him the execution thereof, or may be proved by an affidavit of a witness to such execution sworn to before such officer. The amount and numbers of the Bonds held by any person executing such instrument and the date of his holding the same may be proved by an affidavit by such person or by a certificate executed by an officer of a bank or trust company showing that on the date therein mentioned such person had on deposit with such bank or trust company the Bonds described in such certificate. ARTICLE XII MISCELLANEOUS PROVISIONS Section 12.1. Continuing Disclosure . The Issuer hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate, and the provisions of the Continuing Disclosure Certificate are hereby approved and incorporated by reference as part of this Resolution and made a part hereof and the Mayor and City Clerk are hereby authorized to 64 execute and deliver the same at issuance of the Series 2008D Bonds. Notwithstanding any other provision of this Resolution, failure of the Issuer to comply with the Continuing Disclosure Certificate shall not be considered an event of default under this Resolution; however, any holder of the Series 2008D Bonds or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Issuer to comply with its obligations under the Continuing Disclosure Certificate. For purposes of this Section, "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2008D Bonds (including persons holding Series 2008D Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any such Bonds for federal income tax purposes. Section 12.2. Official Statement . The use and distribution of the Preliminary Official Statement is hereby authorized and approved, and the execution and delivery of the Official Statement in final form shall be and is hereby authorized, ratified, confirmed, and approved. The Mayor is hereby authorized and directed to ratify, confirm, approve, execute, and deliver the Official Statement on behalf of the Issuer, and the execution of the Official Statement by the Mayor shall constitute conclusive evidence of each such officer's ratification, confirmation, approval, and delivery thereof on behalf of the Issuer. Section 12.3. Severability . If any section, paragraph, or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions. Section 12.4. Repeal of Conflicting Ordinances or Resolutions and Effective Date . All other ordinances, resolutions (including the Prior Resolution) and orders, or parts thereof, in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby repealed; and this Resolution shall be in effect from and after its adoption. th Passed and approved this 20 day of October, 2008 Roy D. Buol, Mayor Attest, Jeanne F. Schneider, CMC, City Clerk PEG Capital Grant Expenditure Requests: City Manager recommending approval of the Cable TV Tele-Programming Commission recommendations for funding from the Public, Educational, and Government (PEG) Capital Grant for Access Equipment and Facilities in the amount of $47,000 for Loras College to purchase equipment to produce programming in the field, and $6,000 for Dubuque Community School District to purchase a non-linear editing system. Upon motion the documents were received, filed, and approved. Identity Theft Prevention Program: City Manager recommending approval of the City’s Identity Theft Prevention Program as required by the Federal Trade Commission’s Red Flag Rules. Upon motion the documents were received, filed, and approved. Public Service Announcement (PSA) Agreement – Lamar Companies: City Manager recommending approval of a Public Service Announcement Agreement with Lamar Companies. Upon motion the documents were received, filed, and approved. Lease Agreement with Lamar Companies: City Manager recommending approval of a Lease Agreement with the Lamar Companies to allow them to remain on the Bricktown parking lot recently purchased by the City. Upon motion the documents were received, filed, and approved. Iowa Department of Public Health (IDPH) Childhood Lead Poisoning Funding: City Manager recommending execution of a contract with the Dubuque County Board of Health for continued funding of the Childhood Lead Poisoning Prevention Program (CLPPP) and a renewed agreement 65 with the Visiting Nurse Association (VNA) for services related to the CLPPP. Upon motion the documents were received, filed, and approved. Government Finance Officers Association: Communication from the Government Finance Officers Association advising that Budget Director Jennifer M. Larson has been presented the Distinguished Budget Presentation Award. Upon motion the documents were received and filed. Business License Refund: Request of L. Anthony Pfohl for a refund of the liquor license of The Julien Inn. Upon motion the documents were received, filed, and approved. Business Licenses: City Manager recommending approval of annual liquor license renewals as submitted. Upon motion the documents were received and filed and Resolution No. 380-08 Granting the issuance of one new permit to sell cigarettes and cigarette papers to Awn Stop Mart #3; Resolution No. 331-08 Granting the issuance of a Class “B” Beer Permit to Happy Joe’s and a Class “C” Beer Permit to Big 10 Mart and Awn Stop Mart #3; and Resolution No. 382-08 Granting the issuance of a Class “C” Beer/Liquor License to Jumper’s Sports Bar, Channel Inn Restaurant, Rainbow Lounge, L. May, Europa Haus and Bierstube, and Fiesta Cancun Mexican Restaurant were adopted. RESOLUTION NO. 380-08 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That the following having complied with the provisions of law relating to the sale of Cigarettes within the City of Dubuque, Iowa, be granted a permit to sell Cigarettes and Cigarette Papers within said City. NEW Friendly Locust Mart Awn Stop Mart # 3 408 W Locust Street th Passed, approved and adopted this 20 day of October, 2008 Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 381-08 Whereas, applications for Beer Permits have been submitted and filed to this Council for approval and the same have been examined and approved: and Whereas, the premises to be occupied by such applicants were inspected and found to comply with the Ordinances of the City and have filed proper bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That the Manager be authorized to cause to be issued the following named applicants a Beer Permit. CLASS “B” BEER PERMIT J & P O’Hara Happy Joe’s Ice Cream & Pizza +(Sunday Sale) 855 Century Drive CLASS “C” BEER PERMIT Molo Oil Company Big 10 Mart Car Wash+(Sunday Sale) 1875 JFK Road Awn Stop Mart # 3 Friendly Locust Mart+(Sunday Sale) 408 W. Locust Street th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk 66 RESOLUTION NO. 382-08 Whereas, applications for Liquor Licenses have been submitted to this Council for approval and the same have been examined and approved; and Whereas, the premises to be occupied by such applicants were inspected and found to comply with the State Laws and all City Ordinances relevant thereto and they have filed proper bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That the Manager be authorized to cause to be issued the following named applicants a Liquor License. CLASS “C” BEER/LIQUOR LICENSE Blue Sky 4 Lt Jumper’s Sports Bar+(Sunday Sale) 2600 Dodge Street Carolyn Fonck Channel Inn Restaurant+(Sunday Sale) 2010 ½ Kerper Blvd. DAMA Corp. Rainbow Lounge+(Sunday Sale) 36 W 4 th Street L May L. May+(Sunday Sale) 1072 Main Street Europa Haus, Inc. Europa Haus & Bierstube 1301 Rhomberg Avenue Fiesta Cancun Mexican Fiesta Cancun Mexican Restaurant 2515 NW Arterial Restaurant +(Sunday/Outdoor) th Passed, approved and adopted this 20 day of October, 2008 Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk ITEMS TO BE SET FOR PUBLIC HEARING Motion by Lynch to receive and file the documents, adopt the resolutions, set the public hearings as indicated, and direct the City Clerk to publish notice as prescribed by law. Seconded by Jones. Motion carried 7-0 . First Amendment to Cooper Development, LLC Development Agreement: City Manager recommending that a public hearing be set for November 3, 2008 on the loan assumption and the First Amendment to Agreement with Cooper Development, LLC to maintain the “Bricktown” parking rd lot located at the southeast corner of 3 Street and Locust Street. Upon motion the documents were received and filed and Resolution No. 383-08 Fixing date for a meeting on the authorization of a Loan Agreement between the City of Dubuque and Dubuque Initiatives and providing for publication of notice thereof was adopted setting a public hearing for a meeting to commence at 6:30 p.m. on November 3, 2008 in the Historic Federal Building. RESOLUTION 383-08 RESOLUTION FIXING DATE FOR A MEETING ON THE AUTHORIZATION OF A LOAN AGREEMENT BETWEEN THE CITY OF DUBUQUE AND DUBUQUE INITIATIVES, AND PROVIDING FOR PUBLICATION OF NOTICE THEREOF WHEREAS, it is deemed necessary and advisable that the City of Dubuque, Iowa (the "City"), should provide for the authorization of a Loan Agreement between the City of Dubuque and Dubuque Initiatives (the “Lender”) in the principal amount of $55,415.06 (the "Agreement"), as authorized by Sections 384.24A and 384.83, Code of Iowa, as amended, a copy of which is now before this Council and incorporated herein by this reference, for the purpose of acquiring the real property described as Lots 87, 88, and the North 20 feet 3 inches of Lot 86 in the City of Dubuque, Iowa, according to the United States Commissioners’ Map of the Town of Dubuque, Iowa; and WHEREAS, the loan provided for in the Agreement shall be payable solely and only out of the net earnings of the parking enterprise system of the City and shall be a lien on the future net revenues 67 thereof; and WHEREAS, before such an agreement may be authorized, it is necessary to comply with the provisions of the City Code of Iowa, as amended, and to publish a notice of the proposal and of the time and place of the meeting at which the Council proposes to take action for the authorization of the agreement and to receive oral and/or written objections from any resident or property owner of the City to such action; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That this City Council meet in the Historic Federal Building, 350 West 6th Street, rd Dubuque, Iowa, at 6:30 o'clock P.M., on the 3 day of November, 2008, for the purpose of taking action on the matter of the authorization of the Agreement and the approval of the provisions thereof, in the principal amount of $55,415.06, for the purpose of acquiring the real property described therein. Section 2. That the City Clerk is hereby directed to cause at least one publication to be made of a notice of said meeting, in a legal newspaper, printed wholly in the English language, published at least once weekly, and having general circulation in said City, said publication to be not less than four clear days nor more than twenty days before the date of said public meeting on the authorization of said Agreement. Section 3. The notice of the proposed action shall be in substantially the [provided] form. th Passed and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Fire Headquarters Green Roof Project: City Manager recommending initiation of the public bidding process for the Fire Headquarters Green Roof Project and that a public hearing be set for November 3, 2008 to consider approval of the plans and specifications, form of contract and estimated cost. Upon motion the documents were received and filed and Resolution No. 384-08 Preliminary approval of plans, specifications, form of contract, and estimated cost, setting date of public hearing and ordering bids for the Fire Headquarters Green Roof Project was adopted setting a public hearing for a meeting to commence at 6:30 p.m. on November 3, 2008 in the Historic Federal Building. RESOLUTION NO. 384-08 FIRE HEADQUARTERS ROOF REPLACEMENT PROJECT PRELIMINARY APPROVAL OF PLANS, SPECIFICATIONS, FORM OF CONTRACT, AND ESTIMATED COST; SETTING DATE OF PUBLIC HEARING ON PLANS, SPECIFICATIONS, FORM OF CONTRACT, AND ESTIMATED COST; AND ORDERING THE ADVERTISEMENT FOR BIDS NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: The proposed plans, specifications, form of contract and estimated cost for the Fire Headquarters Roof Replacement Project, in the estimated amount $241,500.00, are hereby preliminarily approved and ordered filed in the office of the City Clerk for public inspection. rd A public hearing will be held on the 3 day of November, 2008, at 6:30 p.m. in the Historic Federal Building Council Chambers at which time interested persons may appear and be heard for or against the proposed plans and specifications, form of contract and estimated cost of said Project, and the City Clerk be and is hereby directed to cause the attached notice of the time and place of such hearing to be published in a newspaper having general circulation in the City of Dubuque, Iowa, which notice shall be published not less than four days nor more than twenty days prior to the date of such hearing. At the hearing, any interested person may appear and file objections to the proposed plans, specifications, form of contract, or estimated cost of the Project. 68 The Fire Headquarters Roof Replacement Project is hereby ordered to be advertised for bids for construction. The amount of the security to accompany each bid shall be in an amount which shall conform to the provisions of the Notice to Bidders hereby approved. The City Clerk is hereby directed to advertise for bids for the construction of the improvements herein provided, by publishing the attached Notice to Bidders to be published in a newspaper having general circulation in the City of Dubuque, Iowa, which notice shall be published not less than four but th not more than forty-five days before the date for filing bids before 2:00 p.m. on the 12 day of November, 2008. Bids shall be opened and read by the City Clerk at said time and will be submitted th to the City Council for final action at 6:30 p.m. on the 17 day of November, 2008, in the Historic th Federal Building Council Chambers (second floor), 350 West 6 Street, Dubuque, Iowa. th Passed, adopted and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk BOARDS/COMMISSIONS Applicants were invited to address the City Council regarding their desire to serve on the following Boards/Commissions: Plumbing Board: Two 3-year terms through November 2, 2011 (Master Plumber Requirement, Terms of Gonner and Willenborg). Applicants: Stanley Gonner, 485 O’Neill Street, and Harlan Willenborg, 3254 Lake Ridge Drive. Appointments to the following Boards/Commissions: Arts and Cultural Affairs Advisory Commission (Business/Professional, Live/Work in Cultural District). One 3-year term through June 30, 2009 (Term of Weber). Applicant: Julie Steffen, 2260 Coates Street, Employed with Prudential Financial. Motion by Lynch to appoint Julie Steffen to the Arts and Cultural Affairs Advisory Commission to a 3-year term through June 30, 2009. Seconded by Voetberg. Motion carried 7-0. Environmental Stewardship Advisory Commission (Held over from October 6, 2008 meeting). One 3-year term through October 1, 2011 (Term of O’Toole). Applicants Edward Cawley, 598 Needham Place; Marie Cigrand OSF, 1049 Rush Street (Additional Applicant); Brendan Houlihan, 2155 Morningview Road (Additional Applicant). Upon roll call vote, Edward Cawley was appointed to the Environmental Stewardship Advisory Commission for a 3-year term through October 1, 2011. Resnick, Voetberg, Braig and Jones voted for Cawley with Lynch, Buol and Connors voting for Houlihan. PUBLIC HEARINGS Upon motion the rules were suspended allowing anyone to address the City Council. Request to Rezone – Various Properties on University Avenue: Proof of publication on notice of public hearing to consider a request from Carol Steckel to rezone property located at 2624, 2635, 2635 ½, 2638, 2644, 2645, 2648, 2649, 2653, 2654, 2661, 2662, 2665, 2670, 2685, 2688, 2691, 2696, 2698, 2714 University Avenue and Lots 1-7, 8 and 9 of Lenox Addition and Zoning Advisory Commission recommending approval with the condition that Lots 1-7, 8 and 9 of Lenox Addition be excluded. Motion by Connors to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Jones. Carol Steckle, 2645 University; Audrey Yarnall, 2653 University Avenue; Mary Kass, 2617 Van Buren Avenue; Ashley Glick, 2662 University Avenue, spoke in support of rezoning the totality of properties to R-1 th Residential. Greg Prehm, Dubuque Property Management, 243 W. 11 Street, spoke in opposition to 69 rezoning Lots 1-7, 8 and (2635 and 2635 ½ University) from R-2 to R-1 as he was the owner of this property and was in the process of building a duplex on it. Planning Services Manager Laura Carstens and Zoning Advisory Commission Chairperson Jeff Stiles provided a staff report. Council discussed that the area had been zoned R-2 for over twenty years and that they did not condone a request from neighbors to rezone another person’s property. Motion by Connors for final consideration and passage of Ordinance No. 63-08 Amending Appendix A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by reclassifying hereinafter described property located at 2624, 2638, 2644, 2645, 2648, 2649, 2653, 2654, 2661, 2662, 2665, 2670, 2685, 2688, 2691, 2696, 2698, 2714 University Avenue from R-2 Two-Family Residential District to R-1 Single-Family Residential District. Seconded by Jones. Motion carried 7-0. OFFICIAL PUBLICATION ORDINANCE NO. 63-08 AN ORDINANCE AMENDING APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY RECLASSIFYING HEREINAFTER DESCRIBED PROPERTY LOCATED AT 2624, 2638, 2644, 2645, 2648, 2649, 2653, 2654, 2661, 2662, 2665, 2670, 2685, 2688, 2691, 2696, 2698 & 2714 UNIVERSITY AVENUE FROM R-2 TWO-FAMILY RESIDENTIAL DISTRICT TO R-1 SINGLE-FAMILY RESIDENTIAL DISTRICT NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Appendix A (The Zoning Ordinance) of the City of Dubuque Code of Ordinances is hereby amended by reclassifying the hereinafter-described property from R-2 Two-Family Residential District to R-1 Single-family Residential District, to wit: Lots 10, 11, 12, 13, 14, 15, 16, 17 and 18 all in the Lenox Addition; Lot 2- 2-1A of Mineral Lot 168; Lot 1-2-1, Lot 2-2-1, 8’ wide strip in Lot 1, Lot 2-1-1, Lot 1-1-1 and Lot 2-2, all in Schiltz Place; Lot 1-1 of Mineral Lot 251, Lot 2 of Mineral Lot 251 and Lot 2-2-2 of Sub of Mineral Lot 251A and Part of Mineral Lot 250, Lot 3 of Mineral Lot 251, Lot 1-4 of Mineral Lot 251; Lot 2-4 of Mineral Lot 251, Lot 2-1-2-1-1, Lot 5 of Mineral Lot 251 and Lot 1-1-2-1-1, Lots 2-2 and 2-2- 2-1-1 all in the Prysi Farm Addition, and to the centerline of the adjoining public right-of-way, all in the City of Dubuque, Iowa. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take effect immediately upon publication, as provided by law. th Passed, approved and adopted this 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 24 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Request to Rezone – Grady Family Trust / Betty Pothoff: Proof of publication on notice of public hearing to consider a request from Grady Family Trust / Betty Pothoff to rezone property located on Middle Road, west of Seippel Road, from County R-2 to City AG Agricultural with an RROD Rural Residential Overlay designation, in conjunction with annexation, and Zoning Advisory Commission recommending approval. Motion by Lynch to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Voetberg. Planning Services Manger Laura Carstens provided a staff report and spoke on behalf of the applicants. Motion carried 6-0. Council Member Jones having left the chambers. Motion by Lynch for final consideration and passage of Ordinance No. 64-08 Amending Appendix 70 A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by reclassifying hereinafter described property located north of Middle Road from Dubuque County R-2 Single-Family Residential District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District Designation, concurrent with annexation. Seconded by Voetberg. Motion carried 6-0. Council Member Jones then returned to the chambers. OFFICIAL PUBLICATION ORDINANCE NO. 64-08 AN ORDINANCE AMENDING APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY RECLASSIFYING HEREINAFTER DESCRIBED PROPERTY LOCATED NORTH OF MIDDLE ROAD FROM DUBUQUE COUNTY R-2 SINGLE- FAMILY RESIDENTIAL DISTRICT TO CITY OF DUBUQUE AG AGRICULTURAL DISTRICT WITH AN RROD RURAL RESIDENTIAL OVERLAY DISTRICT DESIGNATION, CONCURRENT WITH ANNEXATION Whereas, Grady Family Trust/Ron Pothoff, property owner, has requested rezoning, concurrent with annexation, to the City of Dubuque in accordance with Section 2-3 of Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances; and Whereas, this request has been found to be consistent with the Comprehensive Plan and the Future Land Use Map of the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances is hereby amended by reclassifying the hereinafter described property from Dubuque County R-2 Single-Family Residential District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District Designation, to wit: th Lot 1 SW ¼ SW ¼ of Section 23 T89N R1E, 5 P.M.; W ½ SE ¼ SW ¼ of Section 23 T89N thth R1E, 5 P.M.; SE ¼ SE ¼ Lot 1-1-1 of Section 22 T89N R1E, 5 P.M.; NW ¼ SW ¼ of thth Section 23 T89N R1E, 5 P.M.; NE ¼ SW ¼ of Section 23 T89N R1E, 5 P.M.; and to the th centerline of the adjoining right-of-way in T89N R1E, 5 P.M.; all in Dubuque County, Iowa, that is proposed to be annexed to the City of Dubuque, Iowa. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take effect immediately upon publication, as provided by law, and at such time that the herein described property is legally annexed into the City of Dubuque, Iowa. th Passed, approved and adopted this 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 29 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Request to Rezone – Al and Theresa Merkes: Proof of publication on notice of public hearing to consider a request from Al and Theresa Merkes to rezone property located on Middle Road, west of Seippel Road, from County R-1, R-2 and C-1 to City AG Agricultural with an RROD Rural Residential Overlay designation, in conjunction with annexation, and Zoning Advisory Commission recommending approval. Motion by Connors to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Voetberg. Motion carried 7-0. Planning Services Manager Laura Carstens provided a staff report. 71 Motion by Connors for final consideration and passage of Ordinance No. 65-08 Amending Appendix A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by reclassifying hereinafter described property located south and north of Middle Road from Dubuque County R-1 Rural Residential District, R-2 Single-Family Residential District and C-1 Conservancy District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District Designation, concurrent with annexation. Seconded by Braig. Motion carried 7-0 OFFICIAL PUBLICATION ORDINANCE NO. 65-08 AN ORDINANCE AMENDING APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY RECLASSIFYING HEREINAFTER DESCRIBED PROPERTY LOCATED SOUTH AND NORTH OF MIDDLE ROAD FROM DUBUQUE COUNTY R-1 RURAL RESIDENTIAL DISTRICT, R-2 SINGLE-FAMILY RESIDENTIAL DISTRICT AND C-1 CONSERVANCY DISTRICT TO CITY OF DUBUQUE AG AGRICULTURAL DISTRICT WITH AN RROD RURAL RESIDENTIAL OVERLAY DISTRICT DESIGNATION, CONCURRENT WITH ANNEXATION Whereas, Al & Theresa Merkes, property owners, have requested rezoning, concurrent with annexation, to the City of Dubuque in accordance with Section 2-3 of Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances; and Whereas, this request has been found to be consistent with the Comprehensive Plan and the Future Land Use Map of the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances is hereby amended by reclassifying the hereinafter described property from Dubuque County R-1 Rural Residential District, R-2 Single-Family Residential District and C-1 Conservancy District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District Designation, to wit: th Alta Jane Blades Place - Lot 2 of Section 25 T89N R1E, 5 P.M.; NE ¼ NW ¼ of th Section 25 T89N R1E, 5 P.M.; Lot 1 NW ¼ SW ¼ and Lot 2 NW ¼ SW ¼ of Section thth 25 T89N R1E, 5 P.M.; SE ¼ NW ¼ of Section 25 T89N R1E, 5 P.M.; NE ¼ SE ¼ of th Section 25 T89N R1E, 5 P.M.; Middle Fork Addition - Lot 4 of Section 23 T89N R1E, thth 5 P.M.; Middle Fork Addition - Lot 5 of Section 23 T89N R1E, 5 P.M.; NW ¼ SE ¼ of th Section 23 T89N R1E, 5 P.M.; Lot 1-1 W ½ NW ¼, Lot 2-1 W ½ NW ¼, and Lot 2-1 W thth ½ NW ¼ of Section 25 T89N R1E, 5 P.M.; NE ¼ NE ¼ of Section 26 T89N R1E, 5 th P.M.; Middle Fork Addition - Lot 3 of Section 23 T89N R1E, 5 P.M.; and to the th centerline of the adjoining right-of-way in T89N R1E, 5 P.M.; all in Dubuque County, Iowa, that is proposed to be annexed to the City of Dubuque, Iowa. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take effect immediately upon publication, as provided by law, and at such time that the herein described property is legally annexed into the City of Dubuque, Iowa. th Passed, approved and adopted this 20 day of October 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, City Clerk th Published officially in the Telegraph Herald Newspaper the 29 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Request to Rezone – Kerry Bowman: Proof of publication on notice of public hearing to consider a request from Kerry Bowman to rezone property located at 15615 Middle Road from County R-1 to 72 City AG Agricultural with an RROD Rural Residential Overlay designation, in conjunction with annexation, and Zoning Advisory Commission recommending approval. Motion by Lynch to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Voetberg. Motion carried 7-0. Planning Services Manager Laura Carstens provided a staff report. Motion by Lynch for final consideration and passage of Ordinance No. 66-08 Amending Appendix A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by reclassifying hereinafter described property located at 15615 Middle Road from Dubuque County R-1 Rural Residential District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District designation, concurrent with annexation. Seconded by Braig. Motion carried 7-0. OFFICIAL PUBLICATION ORDINANCE NO. 66-08 AN ORDINANCE AMENDING APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY RECLASSIFYING HEREINAFTER DESCRIBED PROPERTY LOCATED 15615 MIDDLE ROAD FROM DUBUQUE COUNTY R-1 RURAL RESIDENTIAL DISTRICT TO CITY OF DUBUQUE AG AGRICULTURAL DISTRICT WITH AN RROD RURAL RESIDENTIAL OVERLAY DISTRICT DESIGNATION, CONCURRENT WITH ANNEXATION Whereas, Kerry Bowman, property owner, has requested rezoning, concurrent with annexation, to the City of Dubuque in accordance with Section 2-3 of Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances; and Whereas, this request has been found to be consistent with the Comprehensive Plan and the Future Land Use Map of the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Appendix A (Zoning Ordinance) of the City of Dubuque Code of Ordinances is hereby amended by reclassifying the hereinafter described property from Dubuque County R-1 Rural Residential District to City of Dubuque AG Agricultural District with an RROD Rural Residential Overlay District Designation, to wit: th Lot 1 SE ¼ SW ¼ of Section 24 T89N R1E, 5 P.M.; and to the centerline of the adjoining th right-of-way in T89N R1E, 5 P.M.; all in Dubuque County, Iowa, that is proposed to be annexed to the City of Dubuque, Iowa. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take effect immediately upon publication, as provided by law, and at such time that the herein described property is legally annexed into the City of Dubuque, Iowa. th Passed, approved and adopted this 20 day of October 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 29 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Request to Rezone – Elaine Kelly: City Manager recommending that the rezoning request for property owned by Elaine Kelly at 13910 Whistlewind Lane be tabled until the November 3, 2008 City Council meeting. Motion by Connors to receive and file the documents and table. Seconded by Lynch. Motion carried 7-0. 73 Request for Text Amendment – City of Dubuque: Proof of publication on notice of public hearing to consider a request from the City of Dubuque to amend the CS Commercial Service and Wholesale, LI Light Industrial, MHI Modified Heavy Industrial, and HI Heavy Industrial Districts to allow “Passenger Transfer Facility” as a permitted use and as a conditional use in the C-3 General Commercial, C-4 Downtown Commercial and the C-5 Central Business Districts and Zoning Advisory Commission recommending approval. Attorney Mike Coyle, 200 Security Building, and representing Bill Alfredo, owner of U.S. Cellular, stst 265 W. 1 Street; Connie Schute, owner of the Jewelry Box, 245 W. 1 Street; and Cheryl Callahan, st owner of Callahan Photography, 249 W. 1 Street, spoke in opposition to the proposed ordinances. st Dave McDermott, Burlington/Trailways Manager, 253 W. 1 Street; and Dan LoBianco, Director, Dubuque Main Street, 1069 Main Street, spoke in support of the proposed ordinances. Planning Services Manager Laura Carstens provided a staff report. Police Chief Kim Wadding spoke regarding traffic enforcement issues in the area of First and Locust Streets where Burlington/Trailways is currently operating. Motion by Lynch to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Connors. Motion carried 6-1 with Voetberg voting nay. Motion by Lynch for final consideration and passage of Ordinance No. 67-08 Amending Sections 3-3.3(D), 3-3.4(D) and 3-3.5(D) of Appendix A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by adding passenger transfer facilities as a conditional use In the C-3 General Commercial, C-4 Downtown Commercial and C-5 Central Business Districts. Seconded by Braig. Motion carried 5-2 with Voetberg and Jones voting nay. Motion by Jones to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Voetberg. Motion carried 7-0. Motion by Jones for final consideration and passage of Ordinance No. 68-08 Amending Sections 3-3.6(B), 3-4.1(B), 3-4.2(B) and 3-4.4(B) of Appendix A (the Zoning Ordinance) of the City of Dubuque Code of Ordinances by adding passenger transfer facilities as a permitted use in the CS Commercial Service and Wholesale, LI Light Industrial, HI Heavy Industrial and MHI Modified Heavy Industrial Districts. Seconded by Voetberg. Motion carried 7-0. OFFICIAL PUBLICATION ORDINANCE NO. 67-08 AN ORDINANCE AMENDING SECTIONS 3-3.3(D), 3-3.4(D) AND 3-3.5(D) APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY ADDING PASSENGER TRANSFER FACILITIES AS A CONDITIONAL USE IN THE C-3 GENERAL COMMERCIAL, C-4 DOWNTOWN COMMERCIAL AND C-5 CENTRAL BUSINESS DISTRICTS. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Section 3-3.3(D), 3-3.4(D) AND 3-3.5(D) of the City of Dubuque Code of Ordinances is hereby amended as follows: Passenger Transfer Facilities: (a) Such Facility shall provide for the loading and unloading of passengers so as not to obstruct public streets or alleys or create traffic or safety hazards; (b) That adequate indoor waiting area is provided; (c) That the parking group requirements can be met [19]. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. 74 Section 3. This ordinance shall take effect immediately upon publication, as provided by law. th Passed, approved and adopted this 20 day of October 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 24 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk OFFICIAL PUBLICATION ORDINANCE NO. 68-08 AN ORDINANCE AMENDING SECTIONS 3-3.6(B), 3-4.1(B), 3-4.2(B) and 3-4.4(B) APPENDIX A (THE ZONING ORDINANCE) OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY ADDING PASSENGER TRANSFER FACILITIES AS A PERMITTED USE IN THE CS COMMERCIAL SERVICE AND WHOLESALE, LI LIGHT INDUSTRIAL, HI HEAVY INDUSTRIAL AND MHI MODIFIED HEAVY INDUSTRIAL DISTRICTS. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Section 3-3.6(B), 3-4.1(B), 3-4.2(B) and 3-4.4(B) of the City of Dubuque Code of Ordinances is hereby amended as follows: (d) Passenger Transfer Facilities [19]. Section 2. The foregoing amendment ahs heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take effect immediately upon publication, as provided by law. th Passed, approved and adopted this 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 24 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Upon motion the rules were reinstated limiting discussion to the City Council. ACTION ITEMS Request to Address the City Council – Brian Dorn: Communication from Brian Dorn to address the City Council regarding the Groveland Place Project. City Council was informed that Mr. Dorn withdrew his request by written communication prior to the meeting. Motion by Connors to receive and file the documents. Seconded by Lynch. Motion carried 7-0. Adult Entertainment Ordinance: Assistant City Attorney recommending that the current Adult Entertainment Ordinance be rescinded and a new Adult Entertainment Ordinance be adopted. Motion by Connors to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Jones. Motion carried 7-0. Assistant City Attorney Tim O’Brien provided a staff report. Legal consultant Scott Bergthold provided a slide presentation outlining ordinances and litigation on similar cases throughout the country. Motion by Jones for final consideration and passage of Ordinance No. 69-08 Amending Chapter 31, Licenses and Miscellaneous Business Regulations, of the City of Dubuque Code of Ordinances by repealing Article X and replacing it with a new Article X, Containing Sections 31.140 through 31.160, Establishing Licensing Requirements and Regulations for Adult Entertainment Establishments within the City of Dubuque. Seconded by Voetberg. Motion carried 7-0. 75 OFFICIAL PUBLICATION ORDINANCE NO. 69-08 AMENDING CHAPTER 31, LICENSES AND MISCELLANEOUS BUSINESS REGULATIONS, OF THE CITY OF DUBUQUE CODE OF ORDINANCES BY REPEALING ARTICLE X AND REPLACING IT WITH A NEW ARTICLE X, CONTAINING SECTIONS 31.140 THROUGH 31.160, ESTABLISHING LICENSING REQUIREMENTS AND REGULATIONS FOR ADULT ENTERTAINMENT ESTABLISHMENTS WITHIN THE CITY OF DUBUQUE WHEREAS, adult entertainment establishments require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the City; and WHEREAS, the City Council finds that adult entertainment establishments, as a category of establishments, are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and WHEREAS, there is convincing documented evidence that adult entertainment establishments, as a category of establishments, have deleterious secondary effects and are often associated with crime and adverse effects on surrounding properties; and WHEREAS, the City Council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from crime; preserve the quality of life; preserve the character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, the City recognizes its constitutional duty to interpret, construe, and amend its laws to comply with constitutional requirements as they are announced; and WHEREAS, with the passage of any ordinance, the City and the City Council accept as binding the applicability of general principles of criminal and civil law and procedure and the rights and obligations under the United States and Iowa Constitutions, Iowa Code, and the Iowa Rules of Civil and Criminal Procedure; and WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the U.S. Constitution or the Iowa Constitution, but to enact legislation to further the content-neutral governmental interests of the City, to wit, the controlling of secondary effects of adult entertainment establishments. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Chapter 31 of the Dubuque Code of Ordinances is hereby amended by repealing Article X and replacing it with the following new Article X: CHAPTER 31 ARTICLE X Section 31.140 Rationale and Findings. 31.141 Definitions. 31.142 License Required. 31.143 Issuance of License. 31.144 Fees. 31.145 Inspection. 31.146 Expiration and Renewal of License. 31.147 Suspension. 31.148 Revocation. 31.149 Hearing; License Denial, Suspension, Revocation; Appeal. 31.150 Transfer of License. 76 31.151 Hours of Operation. 31.152 Regulations Pertaining to Exhibition of Sexually Explicit Films on Premises. 31.153 Loitering and Exterior Lighting and Monitoring Requirements. 31.154 Penalties and Enforcement. 31.155 Applicability of Article to Existing Businesses. 31.156 Prohibited Conduct. 31.157 Scienter Required to Prove Violation or Business Licensee Liability. 31.158 Failure of City to Meet Deadline Not to Risk Applicant/Licensee Rights. 31.159 Nuisance declared. 31.160 Severability. 31.140 Rationale and findings. (a) Purpose. It is the purpose of this Article to regulate adult entertainment establishments in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult entertainment establishments within the City. The provisions of this Article have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this Article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this Article to condone or legitimize the distribution of obscene material. (b) Findings and Rationale. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports provided to the City Council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); and Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 2008 WL 2097410 (6th Cir. May 20, 2008); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2008); Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998); Jakes, Ltd. v. City of Coates, 284 F.3d 884 (8th Cir. 2002); BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001); SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); Scope Pictures v. City of Kansas City, 140 F.3d 1201 (8th Cir. 1998); Excalibur Group v. City of Minneapolis, 116 F.3d 1216 (8th Cir. 1997); ILQ Invs. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Ambassador Books & Video v. City of Little Rock, 20 F.3d 858 (8th Cir. 1994); Alexander v. Minneapolis, 928 F.2d 278 (8th Cir. 1991); John Doe v. Minneapolis, 898 F.2d 612 (8th Cir. 1990); Thames Enters. v. St. Louis, 851 F.2d 199 (8th Cir. 1988); Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir. 2003); United States v. Evans, 272 F.3d 1069 (8th Cir. 2002); United States v. Mueller, 663 F.2d 811 (8th Cir. 1981); United States v. Frederickson, 846 F.2d 517 (8th Cir. 1988); Ctr. for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441 (7th Cir. 1996); Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Illinois One News, Inc. v. City of Marshall, 477 F.3d 461 (7th Cir. 2007); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Green v. City of St. Paul, 1999 WL 376099 (8th Cir. 1999); Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 274 F.3d 377 (6th Cir. 2002); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Richland Bookmart, 77 Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); MRM, Inc. v. City of Davenport, 290 N.W.2d 338 (Iowa 1980); City of Lincoln v. ABC Books, Inc., 470 N.W.2d 760 (Neb. 1991); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); People ex rel. Deters v. Effingham Retail #27, Inc. d/b/a The Lion's Den Adult Superstore, Case No. 04-CH-26, Modified Permanent Injunction Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale, No. 4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005); and based upon reports concerning secondary effects occurring in and around adult entertainment establishments, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Ft. Worth, Texas – 2004; Kennedale, Texas – 2005; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; Jackson County, Missouri – 2008; New York, New York Times Square - 1994; and the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the City Council finds: (1) Adult entertainment establishments, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, traffic, noise, urban blight, litter, and sexual assault and exploitation. (2) Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City’s rationale for this Article, exists independent of any comparative analysis between adult and non-adult businesses. Additionally, the City’s interest in regulating adult entertainment establishments extends to preventing future secondary effects of either current or future adult entertainment establishments that may locate in the City. The City finds that the cases and documentation relied on in this Article are reasonably believed to be relevant to said secondary effects. The City hereby adopts and incorporates herein its stated findings concerning the secondary effects of adult entertainment establishments and the legislative record documents supporting same. 31.141 Definitions. For purposes of this Article, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context. A. “Adult Bookstore or Adult Video Store” means a commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas”; or “sexual devices” as that term is defined in this Article. A “principal business activity” exists where the commercial establishment: (a) has a substantial portion of its displayed merchandise which consists of said items, or (b) has a substantial portion of the wholesale value of its displayed merchandise which consists of said items, or (c) has a substantial portion of the retail value (defined as the price charged to customers) of its displayed merchandise which consists of said items, or (d) derives a substantial portion of its revenues from the sale or rental, for any form of 78 consideration of said items, or (e) maintains a substantial portion of its interior business space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in “interior business space” maintained for the display, sale, or rental of said items); or (f) maintains at least five hundred square feet (500 sq. ft.) of its interior business space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in “interior business space” maintained for the display, sale, or rental of said items) and limits access to the premises to adults only; or (g) offers for sale or rental at least two thousand (2,000) of the foregoing items and limits access to the premises to adults only; or (h) maintains an “adult arcade,” which means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting “specified sexual activities” or “specified anatomical areas.” B. “Adult Cabaret” means a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly features persons who appear semi-nude. Appearing live in a state of nudity in a sexually oriented business is prohibited per Section 31.155(a); no business shall avoid classification as an adult cabaret by offering or featuring nudity. C. “Adult Entertainment Establishment” means an “adult bookstore or adult video store,” an “adult cabaret,” an “adult motion picture theater,” or a “semi-nude model studio.” D. “Adult Motion Picture Theater” means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas” are regularly shown to more than five persons for any form of consideration. E. “Characterized by” means describing the essential character or quality of an item. As applied in this Article, no business shall be classified as an adult entertainment establishment by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America. F. “City” means Dubuque, Iowa. G. “Employ, Employee, and Employment” describe and pertain to any person who performs any function related to an adult entertainment establishment on the premises of the establishment, on a full time, part time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. H. “Establish or Establishment” shall mean and include any of the following: (a) The opening or commencement of any adult entertainment establishment as a new business; (b) The conversion of an existing business, whether or not an adult entertainment establishment, to any adult entertainment establishment; or (c) The addition of any adult entertainment establishment to any other existing adult entertainment establishment. I. “Hearing Officer” means an attorney, not otherwise employed by the City, who is licensed to practice law in Iowa, and retained to serve as an independent tribunal to conduct hearings under this Article. J. “Influential Interest” means any of the following: (1) the actual power to operate the adult entertainment establishment or control the operation, management or policies of the adult 79 entertainment establishment or legal entity which operates the adult entertainment establishment, (2) ownership of a financial interest of thirty percent (30%) or more of a business or of any class of voting securities of a business, or (3) holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the adult entertainment establishment. K. “Licensee” shall mean a person in whose name a license to operate an adult entertainment establishment has been issued, as well as the individual or individuals listed as an applicant on the application for an adult entertainment establishment license. In the case of an "employee," it shall mean the person in whose name the adult entertainment establishment employee license has been issued. L. “Nudity or a State of Nudity” means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola. M. “Operator” means any person on the premises of an adult entertainment establishment who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated an adult entertainment establishment whether or not that person is an owner, part owner, or licensee of the business. N. “Person” shall mean individual, proprietorship, partnership, corporation, association, or other legal entity. O. “Premises” means the real property upon which the adult entertainment establishment is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the adult entertainment establishment, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for an adult entertainment establishment license. P. “Regularly” means the consistent and repeated doing of an act on an ongoing basis. Q. “Semi-Nude or State of Semi-Nudity” means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part. R. “Semi-Nude Model Studio” means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a class operated: (a) By a college, junior college, or university supported entirely or partly by taxation; (b) By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or (c) In a structure: (1) Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and (2) Where, in order to participate in a class a student must enroll at least three days in advance of the class. S. “Sexual Device” means any three (3) dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, and physical representations of the 80 human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy. T. “Specified Anatomical Areas” means and includes: (a) Less than completely and opaquely covered: human genitals, pubic region; buttock; and female breast below a point immediately above the top of the areola; and (b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. U. “Specified Criminal Activity” means any of the following specified crimes for which less than five years has elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date: (a) vice offenses (Iowa Code Ch. 725); (b) obscenity offenses (Iowa Code Ch. 728); (c) assault offenses (Iowa Code Ch. 708); (d) sexual abuse offenses (Iowa Code Ch. 709); (e) money laundering offenses (Iowa Code § 706B.2); (f) controlled substances offenses (Iowa Code Ch. 124, Div. IV); (g) any attempt, solicitation, or conspiracy to commit one of the foregoing offenses; or (h) any offense committed in another jurisdiction that, had the predicate act(s) been committed in Iowa, would have constituted any of the foregoing offenses. V. “Specified Sexual Activity” means any of the following: (a) intercourse, oral copulation, masturbation or sodomy; or (b) excretory functions as a part of or in connection with any of the activities described in (a) above. W. “Substantial” means at least thirty-five percent (35%) of the item(s) so modified. X. “Transfer of Ownership or Control” of an adult entertainment establishment shall mean any of the following: (a) The sale, lease, or sublease of the business; (b) The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means; or (c) The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. Y. “Viewing Room” shall mean the room, booth, or area where a patron of an adult entertainment establishment would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction. 31.142 License required. (a) Business License. It shall be unlawful for any person to operate an adult entertainment establishment in the City without a valid adult entertainment establishment license. (b) Employee License. It shall be unlawful for any person to be an “employee,” as defined in this Article, of an adult entertainment establishment in the City without a valid adult entertainment establishment employee license, except that a person who is a licensee under a valid adult entertainment establishment license shall not be required to also obtain an adult entertainment establishment employee license. (c) Application. An applicant for an adult entertainment establishment license or an adult entertainment establishment employee license shall file in person at the office of the City Manager a completed application made on a form provided by the City Manager. An adult entertainment establishment may designate an individual with an influential interest in the establishment to file its application for an adult entertainment establishment license in person on behalf of the establishment. The application shall be signed as required by subsection (d) herein and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the 81 application, the information and/or items required in this subsection (c), accompanied by the appropriate licensing fee: (1) The applicant’s full legal name and any other names used by the applicant in the preceding five (5) years. (2) Current business address or another mailing address for the applicant. (3) Written proof of age, in the form of a driver’s license or a copy of a birth certificate accompanied by a picture identification document issued by a governmental agency. (4) If the application is for an adult entertainment establishment license, the business name, location, legal description, mailing address and phone number of the adult entertainment establishment. (5) If the application is for an adult entertainment establishment license, the name and business address of the statutory agent or other agent authorized to receive service of process. (6) A statement of whether an applicant has been convicted of or has pled guilty or nolo contendere to a specified criminal activity as defined in this Article, and if so, each specified criminal activity involved, including the date, place, and jurisdiction of each as well as the dates of conviction and release from confinement, where applicable. (7) A statement of whether any adult entertainment establishment in which an applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest): (i) been declared by a court of law to be a nuisance; or (ii) been subject to a court order of closure or padlocking. (8) An application for an adult entertainment establishment license shall be accompanied by a legal description of the property where the business is located and a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches. Applicants who are required to comply with the stage, booth, and/or room configuration requirements of this Article shall submit a diagram indicating that the setup and configuration of the premises meets the requirements of the applicable regulations. The information provided pursuant to this subsection (c) shall be supplemented in writing by certified mail, return receipt requested, to the City Manager within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete. (d) Signature. A person who seeks an adult entertainment establishment employee license under this section shall sign the application for a license. If a person who seeks an adult entertainment establishment license under this section is an individual, he shall sign the application for a license as applicant. If a person who seeks an adult entertainment establishment license is other than an individual, each person with an influential interest in the adult entertainment establishment or in a legal entity that controls the adult entertainment establishment shall sign the application for a license as applicant. Each applicant must be qualified under this Article and each applicant shall be considered a licensee if a license is granted. (e) The information provided by an applicant in connection with an application for a license under this Article shall be maintained by the office of the City Manager on a confidential basis, and such information may be disclosed only as may be required, and only to the extent required, by court order. 31.143 Issuance of license. (a) Business License. Upon the filing of a completed application for an adult entertainment establishment license, the City Manager shall immediately issue a Temporary License to the applicant if the completed application is from a preexisting adult entertainment establishment that is lawfully operating in the City and the completed application, on its face, indicates that the applicant is entitled to an annual adult entertainment establishment license. The Temporary License shall expire 82 upon the final decision of the City to deny or grant an annual license. Within twenty (20) days of the filing of a completed adult entertainment establishment license application, the City Manager shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The City Manager shall issue a license unless: (1) An applicant is less than eighteen (18) years of age. (2) An applicant has failed to provide information required by this Article for issuance of a license or has falsely answered a question or request for information on the application form. (3) The license application fee required by this Article has not been paid. (4) The adult entertainment establishment, as defined herein, is not in compliance with the interior configuration requirements of this Article or is not in compliance with locational requirements of this Article or the locational requirements of any other part of the Dubuque Code. (5) Any adult entertainment establishment in which the applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest): (i) been declared by a court of law to be a nuisance; or (ii) been subject to an order of closure or padlocking. (6) An applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this Article. (b) Employee License. Upon the filing of a completed application for an adult entertainment establishment employee license, the City Manager shall immediately issue a Temporary License to the applicant if the applicant seeks licensure to work in a licensed adult entertainment establishment and the completed application, on its face, indicates that the applicant is entitled to an annual adult entertainment establishment employee license. The Temporary License shall expire upon the final decision of the City to deny or grant an annual license. Within twenty (20) days of the filing of a completed adult entertainment establishment employee license application, the City Manager shall either issue a license to the applicant or issue a written notice of intent to deny a license to the applicant. The City Manager shall issue a license unless: (1) The applicant is less than eighteen (18) years of age. (2) The applicant has failed to provide information as required by this Article for issuance of a license or has falsely answered a question or request for information on the application form. (3) The license application fee required by this Article has not been paid. (4) Any adult entertainment establishment in which the applicant has had an influential interest, has, in the previous five (5) years (and at a time during which the applicant had the influential interest): (i) been declared by a court of law to be a nuisance; or (ii) been subject to an order of closure or padlocking. (5) The applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this Article. (c) The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to the licensee(s), the expiration date, and, if the license is for an adult entertainment establishment, the address of the adult entertainment establishment. The adult entertainment establishment license shall be posted in a conspicuous place at or near the entrance to the adult entertainment establishment so that it may be read at any time that the business is occupied by patrons or is open to the public. An adult entertainment establishment employee shall keep the employee’s license on his or her person or on the premises where the licensee is then working or performing. 31.144 Fees. The initial license and annual renewal fees for adult entertainment establishment licenses and 83 adult entertainment establishment employee licenses shall be as follows: one hundred dollars ($100) for the initial fee for an adult entertainment establishment license and fifty dollars ($50) for annual renewal; fifty dollars ($50) for the initial adult entertainment establishment employee license and twenty-five dollars ($25) for annual renewal. 31.145 Inspection. Adult entertainment establishments and adult entertainment establishment employees shall permit the City Manager and his or her agents to inspect, from time to time on an occasional basis, the portions of the adult entertainment establishment premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this Article, during those times when the adult entertainment establishment is occupied by patrons or is open to the public. This section shall be narrowly construed by the City to authorize reasonable inspections of the licensed premises pursuant to this Article, but not to authorize a harassing or excessive pattern of inspections. 31.146 Expiration and renewal of license. (a) Each license shall remain valid for a period of one calendar year from the date of issuance unless otherwise suspended or revoked. Such license may be renewed only by making application and payment of a fee as provided in this Article. (b) Application for renewal of an annual license should be made at least ninety (90) days before the expiration date of the current annual license, and when made less than ninety (90) days before the expiration date, the expiration of the current license will not be affected. 31.147 Suspension. (a) The City Manager shall issue a written notice of intent to suspend an adult entertainment establishment license for a period not to exceed thirty (30) days if the adult entertainment establishment licensee has knowingly violated this Article or has knowingly allowed an employee or any other person to violate this Article. (b) The City Manager shall issue a written notice of intent to suspend an adult entertainment establishment employee license for a period not to exceed thirty (30) days if the employee licensee has knowingly violated this Article. 31.148 Revocation. (a) The City Manager shall issue a written notice of intent to revoke an adult entertainment establishment license or an adult entertainment establishment employee license, as applicable, if the licensee knowingly violates this Article or has knowingly allowed an employee or any other person to violate this Article and a suspension of the licensee’s license has become effective within the previous twelve-month (12-mo.) period. (b) The City Manager shall issue a written notice of intent to revoke an adult entertainment establishment license or an adult entertainment establishment employee license, as applicable, if: (1) The licensee has knowingly given false information in the application for the adult entertainment establishment license or the adult entertainment establishment employee license. (2) The licensee has knowingly or recklessly engaged in or allowed possession, use, or sale of controlled substances on the premises of the adult entertainment establishment; (3) The licensee has knowingly or recklessly engaged in or allowed prostitution on the premises of the adult entertainment establishment; (4) The licensee knowingly or recklessly operated the adult entertainment establishment during a period of time when the license was finally suspended or revoked; (5) The licensee has knowingly or recklessly engaged in or allowed any specified sexual activity or specified criminal activity to occur in or on the premises of the adult entertainment establishment; or (6) The licensee has knowingly or recklessly allowed a person under the age of eighteen 84 (18) years to consume alcohol or appear in a state of semi-nudity or nudity on the premises of the adult entertainment business. (c) The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license, provided that, if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal, that conviction shall be treated as null and of no effect for revocation purposes. (d) When, after the notice and hearing procedure described in this Article, the City revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued an adult entertainment establishment license or adult entertainment establishment employee license for one (1) year from the date revocation becomes effective. 31.149 Hearing; license denial, suspension, revocation; appeal. (a) When the City Manager issues a written notice of intent to deny, suspend, or revoke a license, the City Manager shall immediately send such notice, which shall include the specific grounds under this Article for such action, to the applicant or licensee (respondent) by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the City Manager for the respondent. The respondent shall have ten (10) days after the delivery of the written notice to submit, at the office of the City Manager, a written request for a hearing. If the respondent does not request a hearing within said ten (10) days, the City Manager’s written notice shall become a final denial, suspension, or revocation, as the case may be, on the thirtieth (30th) day after it is issued, and shall be subject to the provisions of subsection (b) of this Section. If the respondent does make a written request for a hearing within said ten (10) days, then the City Manager shall, within ten (10) days after the submission of the request, send a notice to the respondent indicating the date, time, and place of the hearing. The hearing shall be conducted not less than ten (10) days nor more than twenty (20) days after the date that the hearing notice is issued. The City shall provide for the hearing to be transcribed. At the hearing, the respondent shall have the opportunity to present all of respondent’s arguments and to be represented by counsel, present evidence and witnesses on his or her behalf, and cross- examine any of the City’s witnesses. The City Manager shall also be represented by counsel, and shall bear the burden of proving the grounds for denying, suspending, or revoking the license. The hearing shall take no longer than two (2) days, unless extended at the request of the respondent to meet the requirements of due process and proper administration of justice. The Hearing Officer shall issue a final written decision, including specific reasons for the decision pursuant to this Article, to the respondent within five (5) days after the hearing. If the decision is to deny, suspend, or revoke the license, the decision shall advise the respondent of the right to appeal such decision to a court of competent jurisdiction, and the decision shall not become effective until the thirtieth (30th) day after it is rendered. If the Hearing Officer’s decision finds that no grounds exist for denial, suspension, or revocation of the license, the Hearing Officer shall, contemporaneously with the issuance of the decision, order the City to immediately withdraw the intent to deny, suspend, or revoke the license and to notify the respondent in writing by certified mail of such action. If the respondent is not yet licensed, the City Manager shall contemporaneously therewith issue the license to the applicant. (b) If any court action challenging a licensing decision is initiated, the City shall prepare and transmit to the court a transcript of the hearing within thirty (30) days after receiving written notice of the filing of the court action. The City shall consent to expedited briefing and/or disposition of the action, shall comply with any expedited schedule set by the court, and shall facilitate prompt judicial review of the proceedings. The following shall apply to any adult entertainment establishment that is lawfully operating as an adult entertainment establishment, or any adult entertainment establishment employee that is lawfully employed as an adult entertainment establishment employee, on the date 85 on which the completed business or employee application, as applicable, is filed with the City Manager: Upon the filing of any court action to appeal, challenge, restrain, or otherwise enjoin the City’s enforcement of any denial, suspension, or revocation of a Temporary License or annual license, the City Manager shall immediately issue the respondent a Provisional License. The Provisional License shall allow the respondent to continue operation of the adult entertainment establishment or to continue employment as an adult entertainment establishment employee and will expire upon the court’s entry of a judgment on the respondent’s appeal or other action to restrain or otherwise enjoin the City’s enforcement. 31.150 Transfer of license. A licensee shall not transfer his or her license to another, nor shall a licensee operate an adult entertainment establishment under the authority of a license at any place other than the address designated in the adult entertainment establishment license application. 31.151 Hours of operation. No adult entertainment establishment shall be or remain open for business between 2:00 a.m. and 8:00 a.m. on any day. 31.152 Regulations pertaining to exhibition of sexually explicit films on premises. (a) A person who operates or causes to be operated an adult entertainment establishment which exhibits in a booth or viewing room on the premises, through any mechanical or electronic image- producing device, a film, video cassette, digital video disc, or other video reproduction characterized by an emphasis on the display of specified sexual activities or specified anatomical areas shall comply with the following requirements. (1) Each application for an adult entertainment establishment license shall contain a diagram of the premises showing the location of all operator’s stations, booths or viewing rooms, overhead lighting fixtures, and restrooms, and shall designate all portions of the premises in which patrons will not be permitted. Restrooms shall not contain equipment for displaying films, video cassettes, digital video discs, or other video reproductions. The diagram shall also designate the place at which the license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The City Manager may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted. (3) The interior premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5.0) foot candles as measured at the floor level. It shall be the duty of the operator, and of any employees present on the premises, to ensure that the illumination described above is maintained at all times that the premises is occupied by patrons or open for business. (4) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no specified sexual activity occurs in or on the licensed premises. (5) It shall be the duty of the operator to post conspicuous signs in well-lighted entry areas of the business stating all of the following: (i) That the occupancy of viewing rooms less than 150 square feet is limited to one person. (ii) That specified sexual activity on the premises is prohibited. 86 (iii) That the making of openings between viewing rooms is prohibited. (iv) That violators will be required to leave the premises. (v) That violations of these regulations are unlawful. (6) It shall be the duty of the operator to enforce the regulations articulated in (5)(i) though (iv) above. (7) The interior of the premises shall be configured in such a manner that there is an unobstructed view from an operator’s station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. An operator’s station shall not exceed thirty-two (32) square feet of floor area. If the premises has two (2) or more operator’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from at least one of the operator’s stations. The view required in this paragraph must be by direct line of sight from the operator’s station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each operator’s station at all times that any patron is on the premises. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises, to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises. (b) It shall be unlawful for a person having a duty under subsections (a)(1) through (a)(7) to knowingly fail to fulfill that duty. (c) It shall be unlawful for any person to knowingly enter a viewing room less than 150 square feet in area that is occupied by any other person. (d) It shall be unlawful for any person to knowingly make any hole or opening between viewing rooms. (e) It shall be unlawful for an operator to knowingly allow to persist any hole or similar opening in the wall of any viewing room. 31.153 Loitering, exterior lighting and monitoring, and interior lighting requirements. (a) It shall be the duty of the operator of an adult entertainment establishment to: (i) ensure that at least two conspicuous signs stating that no loitering is permitted on the premises are posted on the premises; (ii) designate one or more employees to monitor the activities of persons on the premises by visually inspecting the premises at least once every ninety (90) minutes or inspecting the premises by use of video cameras and monitors; and (iii) provide lighting to the exterior premises to provide for visual inspection or video monitoring to prohibit loitering. Said lighting shall be of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than one (1.0) foot candles as measured at the floor level. If used, video cameras and monitors shall operate continuously at all times that the premises are open for business. The monitors shall be installed within an operator’s station. (b) It shall be the duty of the operator of an adult entertainment establishment to ensure that the interior premises shall be equipped with overhead lighting of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than five (5.0) foot candles as measured at the floor level and the illumination must be maintained at all times that any customer is present in or on the premises. (c) It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty. (d) No adult entertainment establishment shall erect a fence, wall, or other barrier that prevents any portion of the parking lot(s) for the establishment from being visible from a public right of way. 31.154 Applicability of Article to existing businesses. All preexisting adult entertainment establishments lawfully operating in the City in compliance with 87 all state and local laws prior to the effective date of this Article, and all adult entertainment establishment employees working in the City prior to the effective date of this Article, are hereby granted a De Facto Temporary License to continue operation or employment for a period of ninety (90) days following the effective date of this Article. By the end of said ninety (90) days, all adult entertainment establishments and adult entertainment establishment employees must conform to and abide by the requirements of this Article. 31.155 Conduct regulations. (a) No patron, employee, or any other person shall knowingly or intentionally, in an adult entertainment establishment, appear in a state of nudity or engage in a specified sexual activity. (b) No person shall knowingly or intentionally, in an adult entertainment establishment, appear in a semi-nude condition unless the person is an employee who, while semi-nude, remains at least six (6) feet from all patrons and on a stage at least eighteen (18) inches from the floor in a room of at least six hundred (600) square feet. (c) The interior of the premises of any adult entertainment establishment which regularly features persons who appear semi-nude shall be configured in such a manner that there is an unobstructed view, by a direct line of sight from a fixed operator’s station, of every area of the interior premises, excluding restrooms, to which any patron is permitted access for any purpose. If the premises has two (2) or more operator’s stations, then such view shall be from at least one of the operator’s stations. An operator’s station shall not exceed thirty-two (32) square feet of floor area. It is the duty of the operator to ensure that at least one employee is on duty and situated in each operator’s station at all times that any patron is on the premises. (d) No employee who regularly appears semi-nude in an adult entertainment establishment shall knowingly or intentionally touch a customer or the clothing of a customer while on the premises of an adult entertainment establishment. (e) No person shall sell, use, or consume alcoholic beverages on the premises of an adult entertainment establishment. (f) No person shall knowingly or recklessly allow a person under the age of eighteen (18) years to be or remain on the premises of an adult entertainment establishment. g) No operator or licensee of an adult entertainment establishment shall knowingly violate or fail to comply with the regulations in this section or knowingly allow an employee or any other person to violate the regulations in this section. (h) A sign in a form to be prescribed by the City Manager, and summarizing the provisions of subsections (a), (b), (c), (d), (e), and (f) shall be posted near the entrance of the adult entertainment establishment in such a manner as to be clearly visible to patrons upon entry. No person shall cover, obstruct, or obscure said sign. (i) An adult entertainment establishment shall provide separate male and female restrooms for and to be used by Employees which shall be separate from restrooms provided for and used by non- employees. This requirement shall not apply to an Adult Entertainment Establishment that neither has live entertainment nor provides prepared food or allows beverages (including alcoholic beverages) other than sealed non-alcoholic beverages for individual retail sales 31.156 Scienter required to prove violation or business licensee liability. This Article does not impose strict liability. Unless a culpable mental state is otherwise specified herein, a showing of a knowing or reckless mental state is necessary to establish a violation of a provision of this Article. Notwithstanding anything to the contrary, for the purposes of this Article, an act by an employee that constitutes grounds for suspension or revocation of that employee’s license shall be imputed to the adult entertainment establishment licensee for purposes of finding a violation of this Article, or for purposes of license denial, suspension, or revocation, only if an officer, director, or general partner, or a person who managed, supervised, or controlled the operation of the business premises, knowingly or recklessly allowed such act to occur on the premises. It shall be a defense to 88 liability that the person to whom liability is imputed was powerless to prevent the act. 31.157 Failure of City to meet deadline not to risk applicant/licensee rights. In the event that a City official is required to act or to do a thing pursuant to this Article within a prescribed time, and fails to act or to do such thing within the time prescribed, said failure shall not prevent the exercise of constitutional rights of an applicant or licensee. If the act required of the City official under this Article, and not completed in the time prescribed, includes approval of condition(s) necessary for approval by the City of an applicant or licensee’s application for an adult entertainment establishment license or an adult entertainment establishment employee’s license (including a renewal), the license shall be deemed granted and the business or employee allowed to commence operations or employment the day after the deadline for the City’s action has passed. 31.158 Nuisance declared. An adult entertainment establishment established, operated, or maintained in violation of any of the provisions of this Article shall be, and is, declared to be a public nuisance. The City may, in addition to, or in lieu of any remedy set forth in this Article, commence an action to enjoin, remove, or abate such nuisance in the manner provided by law. 31.159 Severability. This Article and each section and provision of said Article hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Article, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this Article be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this Article. Section 2. This Ordinance shall take effect upon publication. th Passed, approved, and adopted the 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 25 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Carnegie Stout Public Library Renovation Project: City Manager recommending award of the public improvement contracts 1-5, 7, 9, 10 and 12 contingent upon negotiation and execution of an agreement with the Library Board of Trustees and the Library Foundation Board of Directors and rejecting the bids and ordering re-advertisement for contracts 6 and 8 for the Carnegie Stout Public Library Reconstruction Project. Motion by Lynch to receive and file the documents and adopt Resolution No. 385-08 Awarding public improvement contracts for the Carnegie Stout Public Library Renovation Project and Resolution No. 386-08 Rejecting the contract bid proposals for Contract No. 6 and Contract No. 8 for the Carnegie Stout Public Library Renovation Project and order that Contract No. 6 and Contract No. 8 be re-advertised for bids. Seconded by Jones. Motion carried 7-0. RESOLUTION NO. 385-08 AWARDING PUBLIC IMPROVEMENT CONTRACTS FOR THE CARNEGIE-STOUT PUBLIC LIBRARY RENOVATION PROJECT Whereas, sealed bids were submitted by contractors for the Carnegie-Stout Public Library Renovation Project (the Project) pursuant to Resolution No. 298-08 and the Notice to Bidders th published in the Telegraph Herald, a newspaper published in the City of Dubuque, Iowa on the 5 day of September, 2008; and 89 th Whereas, said sealed bids were opened and read on the 7 day of October, 2008; and Whereas, the City Council has determined that the following contractors with the following bids were the lowest responsive, responsible bidders for the Project: Contract No. LOW BID CONTRACTOR Total Bid 1 Tricon Construction (Dubuque, IA) $ 1,107,920 2 Doors Inc. (Davenport, IA) $ 85,449 3 Dubuque Glass Co. (Dubuque, IA) $ 295,000 4 John C Kaiser (Dubuque, IA) $ 108,477 5 Artisan Ceiling Systems (Waterloo, IA) $ 89, 700 6 REBID - Reject only bid - 7 Geisler Brothers Company (Dubuque, IA) $ 66,566 8 REBID - Reject only bid - 9 Modern Piping, Inc. (Dubuque, IA) $ 224,000 10 Geisler Brothers Co. (Dubuque, IA) $ 1,001,402 11 NO BIDDERS - 12 Westphal & Co.,Inc. (Dubuque, IA) $ 1,053,930 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: That the Public Improvement Contracts for the Project are hereby awarded to the above listed contractors contingent upon the City Manager, in his sole discretion, negotiating and entering into an agreement with the Carnegie-Stout Public Library Board of Trustees and the Carnegie-Stout Public Library Foundation Board of Directors which requires the Board of Trustees and the Board of Directors to deliver to the City all funds from any source which are now or may come into the possession, custody or control of the Board of Trustees and the Board of Directors for the Project; with all such funds to be used by the City for the Project; and that upon execution of such agreement by the Board of Trustees and the Board of Directors, the City Manager is directed to execute the Public Improvement Contracts on behalf of the City of Dubuque for the Project; and provided further, that in the event no such agreement is executed by Board of Trustees and the Board of Directors by the 20th day of November, 2008, then this resolution shall be null and void. th Passed, approved and adopted this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk RESOLUTION NO. 386-08 REJECTING THE CONTRACT BIDS PROPOSALS FOR CONTRACT NO. 6 AND CONTRACT NO. 8 FOR THE CARNEGIE-STOUT PUBLIC LIBRARY RENOVATION PROJECT AND ORDERING THAT CONTRACT NO. 6 AND CONTRACT NO. 8 BE RE-ADVERTISED FOR BIDS Whereas, sealed bids were submitted by contractors for the Carnegie-Stout Public Library Renovation Project, pursuant to Resolution No. 298-08 and notice to bidders published in the th Telegraph Herald, a newspaper published in the City of Dubuque, Iowa, on the 5 day of September, 2008; and th Whereas, the sealed bids were opened and read on the 7 day of October, 2008; and Whereas, the City Council has determined that all of the bids received for the Carnegie-Stout Public Library Renovation Project, Contracts No. 6 and Contracts No. 8 should be rejected. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. All of the bids received for the Carnegie-Stout Public Library Renovation Project Contracts No. 6 and Contracts No. 8 are hereby rejected. 90 Section 2. The City Treasurer is authorized and instructed to return the bid deposits of the bidders for Contracts No. 6 and Contracts No. 8. Section 3. The City Clerk is hereby directed to re-advertise for bids for Contracts No. 6 and Contracts No. 8 of the Carnegie-Stout Public Library Renovation Project. th Passed, adopted and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk Dubuque Industrial Center Economic Development District: City Manager recommending approval of an amendment to the Dubuque Industrial Center Economic Development Tax Increment Financing Ordinance. Motion by Jones to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Connors. Motion carried 7-0. Motion by Jones for final consideration and passage of Ordinance No. 70-08 Amending Ordinance No. 66-97, Providing that general property taxes levied and collected each year on all property located within the Amended and Restated Dubuque Industrial Center Economic Development District Urban Renewal Area of the City of Dubuque, County of Dubuque, State of Iowa, by and for the benefit of the State of Iowa, City of Dubuque, County of Dubuque, Dubuque Community School District, and other taxing districts, be paid to a special fund for payment of principal and interest on loans, monies advanced to and indebtedness, including bonds issued or to be issued, incurred by said City in connection with the Amended and Restated Dubuque Industrial Center Economic Development District Urban Renewal Redevelopment Project. Seconded by Voetberg. Motion carried 7-0. OFFICIAL PUBLICATION ORDINANCE NO. 70-08 AN ORDINANCE AMENDING ORDINANCE NO. 66-97, PROVIDING THAT GENERAL PROPERTY TAXES LEVIED AND COLLECTED EACH YEAR ON ALL PROPERTY LOCATED WITHIN THE AMENDED AND RESTATED DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT URBAN RENEWAL AREA OF THE CITY OF DUBUQUE, COUNTY OF DUBUQUE, STATE OF IOWA, BY AND FOR THE BENEFIT OF THE STATE OF IOWA, CITY OF DUBUQUE, COUNTY OF DUBUQUE, DUBUQUE COMMUNITY SCHOOL DISTRICT, AND OTHER TAXING DISTRICTS, BE PAID TO A SPECIAL FUND FOR PAYMENT OF PRINCIPAL AND INTEREST ON LOANS, MONIES ADVANCED TO AND INDEBTEDNESS, INCLUDING BONDS ISSUED OR TO BE ISSUED, INCURRED BY SAID CITY IN CONNECTION WITH THE AMENDED AND RESTATED DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT URBAN RENEWAL REDEVELOPMENT PROJECT WHEREAS, the City Council of the City of Dubuque, Iowa has heretofore, in Ordinance No. 66-97, provided for the division of taxes pursuant to Section 403.19 of the Code of Iowa within the Dubuque Industrial Center Economic Development District Urban Renewal Project Area described in Resolution No. 130-88 adopted on May 2, 1988, and thereafter amended and restated by Resolution No. 484-90 on December 17, 1990, Resolution No. 142-97 on April 7, 1997 and Resolution No. 478- 97 on November 17, 1997; and WHEREAS, the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center Economic Development District Urban Renewal Project Area has been further amended pursuant to Resolution No. 15-08 on January 7, 2008, Resolution No. 101-08 on March 17, 2008, and Resolution No. 109-08 on April 7, 2008,: WHEREAS, indebtedness has been incurred by the City, and additional indebtedness is anticipated to be incurred in the future, to finance urban renewal project activities within the Amended 91 and Restated Dubuque Industrial Center Economic Development District, and the continuing needs of redevelopment within the Amended and Restated Dubuque Industrial Center Economic Development District are such as to require the continued application of the incremental tax resources of the Amended and Restated Dubuque Industrial Center Economic Development District; and WHEREAS, the following enactment is necessary to accomplish the objectives described in the premises. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, THAT: Ordinance Number 66-97 is hereby amended to read as follows: Section 1: For purposes of this Ordinance, the following terms shall have the following meanings: (a) Original Project Area shall mean that portion of the City of Dubuque, Iowa described in the Urban Renewal Plan for the Dubuque Industrial Center Economic Development District Urban Renewal Area approved by Resolution No. 130-88 on May 2, 1988, and subsequently amended by Resolution No. 484-90 on December 17, 1990, which Original Project Area includes the lots and parcels located within the area now legally described as follows: All of the Dubuque Industrial Center First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Additions and the adjoining public right-of- way, all in the City of Dubuque, Dubuque County, Iowa. The Original Project Area is referred to as "Subarea A" in the Urban Renewal Plan hereinafter described. (b) Subarea B shall mean that portion of the City of Dubuque, Iowa described as Subarea B in the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center Economic Development District Urban Renewal Area approved by Resolution No. 478-97 on November 17, 1997, and subsequently amended by Resolution No. 15-08 on January 7, 2008, which Subarea B includes the lots and parcels located within the area legally described as follows: Lots 1, 3, 4, 1 of 5, 6 and H of Dubuque Industrial Center West; and Lots 1, 2, 3, 4, 5, 6, 7, 8, and C of Dubuque Industrial Center West 2nd Addition; and Lots 1, 2, 3, 4, B, and C of Dubuque Industrial Center West 4th Addition; and Lots 1 of 1, 1 of 2, 2 of 2, 1 of 3, 2 of 3, 1 of 5, A, C, and D of Dubuque Industrial Center West 5th Addition; and Lots 1, 2, and A of Dubuque Industrial Center West 6th Addition; and Lots 1, 1 of 2, and 2 of 2 of Dubuque Industrial Center West 7th Addition; and Lot 2 of 1 of the Southwest Quarter of the Southwest Quarter and Lot 2 of 1 of the Southeast Quarter of the Southwest Quarter all in Section 30, Township 89 North, Range 2 East, 5th Principal Meridian; and all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right- of-way lying in the SE 1/4 of Section 30, the SE 1/4 of the SW 1/4 of Section 30, the NW 1/4 of Section 31, and the NE 1/4 of Section 31 all in T89N, R2E, of the 5th P.M. Dubuque County, Iowa, the centerline of which is more particularly described as follows: beginning at a point of intersection with the easterly line of the SE 1/4 of Section 30, T89N, R2E, of the 5th P.M., thence southwesterly along the centerline of said railroad 2,700 feet, more or less a point of intersection with the westerly line of the SE 1/4 of said Section 30; thence southwesterly continuing along said centerline 845 feet, more or less, to a point where the railroad right-of-way widens to 200 feet, said point being the terminus of this description; and all that part of a 100-foot-wide strip of the Chicago Central Pacific Railroad right-of- way lying in the Balance of Lot 1 of 1 of the Southwest Quarter of the Southwest Quarter in Section 29, Township 89 North, Range 2 East, 5th Principal Meridian; and 92 any adjoining public street right-of-way all in the City of Dubuque, Dubuque County, Iowa. (c) Subarea C shall mean that portion of the City of Dubuque, Iowa described as Subarea C in the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center Economic Development District Urban Renewal Area approved by Resolution No. 101-08 on March 17, 2008, which Subarea C includes the lots and parcels located within the area legally described as follows: Lot 1-1 NW 1/4-NE 1/4; Lot 2 of E 10 acres NE 1/4-NW 1/4; Lot 2-1 NW 1/4-NE 1/4; Lot 2 NW 1/4-NE 1/4; Lot 1 E 1/4 NE 1/4-NW 1/4; W 3/4 NE 1/4-NW 1/4; Lot 2-1 SE 1/4-NW 1/4; Lot 1-1 SE 1/4-NW 1/4; and the SW 1/4-NE 1/4 all in Section 30, Township 89 North, Range 2 East, 5th Principal Meridian; and any adjoining public street right-of- way in the City of Dubuque, Dubuque County. (d) Subarea D shall mean that portion of the City of Dubuque, Iowa described as Subarea D in the Amended and Restated Urban Renewal Plan for the Dubuque Industrial Center Economic Development District Urban Renewal Area approved by Resolution No. 109-08 on April 7, 2008 (the "Urban Renewal Plan"), which Subarea D includes the lots and parcels located within the area legally described as follows: Lot 4 of Dubuque Industrial Center West 5th Addition, and Lot B of Dubuque Industrial Center West 5th Addition in the City of Dubuque, Iowa. (e) Amended Project Area shall mean that portion of the City of Dubuque, Iowa included within the Original Project Area, Subarea B, Subarea C, and Subarea D, each as described in this Section. Section 2: The taxes levied on the taxable property in the Amended Project Area, legally described in Section 1 hereof, by and for the benefit of the State of Iowa, City of Dubuque, County of Dubuque, Dubuque Community School District, and all other taxing districts from and after the effective date of this Ordinance shall be divided as hereinafter in this Ordinance provided. Section 3: As to the Original Project Area, that portion of the taxes which would be produced by the rate at which the tax is levied each year by or for each of the taxing districts taxing property in the Original Project Area upon the total sum of the assessed value of the taxable property in the Original Project Area as shown on the assessment roll as of January 1, 1987, being the first day of the calendar year preceding the effective date of Ordinance No. 26-88, shall be allocated to and when collected be paid into the fund for the respective taxing district as taxes by or for said taxing district into which all other property taxes are paid. The taxes so determined shall be referred herein as the "base period taxes" for such subarea. As to Subarea B, base period taxes shall be computed in the same manner using the total assessed value shown on the assessment roll as of January 1, 1996, being the assessment roll applicable to property in such subarea as of January 1 of the calendar year preceding the effective date of Ordinance No. 66-97. As to Subarea C, base period taxes shall be computed in the same manner using the total assessed value shown on the assessment roll as of January 1, 2007, being the assessment roll applicable to property in such subarea as of January 1 of the calendar year preceding the effective date of this Ordinance. As to Subarea D, base period taxes shall be computed in the same manner using the total assessed value shown on the assessment roll as of January 1, 2007, being the assessment roll applicable to property in such subarea as of January 1 of the calendar year preceding the effective date of this Ordinance. Section 4: That portion of the taxes each year in excess of the base period taxes for the Amended Project Area, determined for each sub-area thereof as provided in Section 3 of this Ordinance, shall be allocated to and when collected be paid into the special tax increment fund previously established 93 by the City of Dubuque to pay the principal of and interest on loans, monies advanced to, or indebtedness, whether funded, refunded, assumed or otherwise, including bonds issued under authority of Section 403.9 or Section 403.12 of the Code of Iowa, incurred by the City of Dubuque, Iowa to finance or refinance, in whole or in part, urban renewal projects undertaken within the Amended Project Area pursuant to the Urban Renewal Plan, except that taxes for the regular and voter-approved physical plant and equipment levy of a school district imposed pursuant to Section 298.2 of the Code of Iowa (but only to the extent required under Section 403.19(2)) and taxes for the payment of bonds and interest of each taxing district shall be collected against all taxable property within the Amended Project Area without any limitation as hereinabove provided. Section 5: Unless or until the total assessed valuation of the taxable property in the subareas of the Amended Project Area exceeds the total assessed value of the taxable property in said subareas shown by the assessment rolls referred to in Section 3 of this Ordinance, all of the taxes levied and collected upon the taxable property in the Amended Project Area shall be paid into the funds for the respective taxing districts as taxes by or for the taxing districts in the same manner as all other property taxes. Section 6: At such time as the loans, monies advanced, bonds and interest thereon and indebtedness of the City of Dubuque referred to in Section 4 hereof have been paid, all monies thereafter received from taxes upon the taxable property in the Amended Project Area shall be paid into the funds for the respective taxing districts in the same manner as taxes on all other property. Section 7: All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. The provisions of this Ordinance are intended and shall be construed so as to continue the division of taxes from taxable property in the Amended Project Area under the provisions of Section 403.19 of the Code of Iowa, as authorized in Ordinance No. 66-97, and to fully implement the division of taxes in Subarea C and Subarea D of the Amended Project Area. In the event that any provision of this Ordinance shall be determined to be contrary to law it shall not affect other provisions or application of this Ordinance which shall at all times be construed to fully invoke the provisions of Section 403.19 of the Code of Iowa with reference to the Amended Project Area and the subareas contained therein. Section 8: This Ordinance shall be in effect after its final passage, approval and publication as provided by law. th Passed and approved this 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk Read first time: October 20, 2008 Read second time: October 20, 2008 Read third time: October 20, 2008 Passed and Approved: October 20, 2008 th Published officially in the Telegraph Herald Newspaper the 24 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk Door-to-Door Sales License Ordinance: City Manager recommending adoption of a licensing requirement for door-to-door sales. Motion by Connors to receive and file the documents and that the requirement that a proposed ordinance be considered and voted on for passage at two Council meetings prior to the meeting at which it is to be passed be suspended. Seconded by Jones. Motion carried 7-0. Motion by Connors for final consideration and passage of Ordinance No. 71-08 Establishing the requirement of a license for engaging in door-to-door sales. Seconded by Braig. Motion carried 7-0. 94 OFFICIAL PUBLICATION ORDINANCE NO. 71-08 ESTABLISHING THE REQUIREMENT OF A LICENSE FOR ENGAGING IN DOOR-TO-DOOR SALES Section. 1. City of Dubuque Code of Ordinances is amended by adding the following new article: DOOR-TO-DOOR SALES Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Door-To-Door Sales means selling or offering to sell goods, merchandise or services from door-to-door. License required. No person shall engage in door-to-door sales in this city without first obtaining a license as provided in this article shall be in violation of this article. Exemptions. This article shall not apply to the following: (1) To vendors of goods, merchandise or services delivered or sold to established customers; (2) To nonprofit organizations filed under or authorized by Chapter 504 of the Iowa Code or authorized and organized under statutes or regulations of the United States government, or approved by the Internal Revenue Service, where such organizations have a permanent office in Dubuque County, Iowa; (3) To churches, public and private schools and colleges that have a permanent office in Dubuque County, Iowa: or (4) To nonprofit clubs and lodges not ordinarily conducted as a business and which do not meet the requirements of Chapter 504 of the Iowa Code and that have a permanent office in Dubuque County, Iowa. Application for license. Each person engaged in door-to-door sales shall file an application for a license with the city clerk. Such application shall set forth the applicant's name, permanent and local address, business address, if any, and physical description. The application also shall set forth the applicant's employer or sponsor, if any, and the employer's or sponsor’s address and telephone number, the nature of the applicant's business, the last three places of such business, and the length of time sought to be covered by the license. At the time of filing the application with the city clerk, the applicant shall also provide two forms of identification, including one form with picture identification. An applicant for a license shall also file with the city clerk a surety bond in the amount of $5,000, conditioned that the applicant shall comply fully with all ordinances of the city and laws regulating door-to-door sales, and guaranteeing to any resident of the city that all money paid will be accounted for and applied according to the representation of the licensee, said bond to continue in force as to such surety for not less than one year from the date of the license. Action on such bond may be brought by any resident of the city. Issuance of license; fee. Within five (5) days of the filing of a completed application, payment of the applicable license fee and delivery of a valid surety bond, the city clerk shall issue a license to the applicant valid for a period of sixty (60) days. A schedule of the applicable license fees based upon the duration of the license shall be established by the city clerk. Display of license. A door-to-door sales licensee shall at all times while doing business in this city prominently display the license so that it is clearly visible to anyone to whom the person is selling or offering for sale 95 goods, merchandise or services. The licensee shall also at the time of selling or offering for sale goods, merchandise or service provide each prospective customer with a copy of the license to be retained by the prospective customer. Transferability of license. No door-to-door sales license shall be sold or transferred. Suspension or revocation of license. Any license issued pursuant to this article may be suspended or revoked or its renewal denied for violation of this article or any other chapter of this Code. Section 2. This Ordinance shall take effect upon publication. th Passed, approved and adopted the 20 day of October, 2008. /s/Roy D. Buol, Mayor Attest: /s/Jeanne F. Schneider, CMC, City Clerk th Published officially in the Telegraph Herald Newspaper the 24 day of October, 2008. /s/Jeanne F. Schneider, CMC, City Clerk National League of Cities: Communication from the National League of Cities requesting that the City name a voting delegate and alternate for the upcoming Congress of Cities Annual Business Meeting. Motion by Lynch to appoint Council Member Joyce Connors as the voting delegate for the National League of Cities Congress of Cities Annual Business Meeting. Seconded by Voetberg. Motion carried 7-0. COUNCIL MEMBER REPORTS Resnick reported that there will be a concert on October 21, 2008 at Clark College in conjunction th with Dubuque’s 175 Anniversary Celebration. Connors reported on how encouraged she was after a conversation with young students and their comments regarding “adaptive reuse” of a local coffee shop building. At the request of the City Manager, Jones moved to reconsider Consent Item #20 Emergency Repairs of Retaining Wall at 1695 Garfield Avenue: City Manager recommending approval of emergency repairs to the retaining wall at 1695 Garfield Avenue. Seconded by Connors. Motion carried 7-0 Motion by Jones to receive and file the documents and adopt Resolution No. 371-08 Authorizing emergency repairs to the retaining wall at 1695 Garfield Avenue. Seconded by Connors. City Manager’s memo presented and read. Motion carried 7-0. RESOLUTION NO. 371-08 AUTHORIZING EMERGENCY REPAIRS TO THE RETAINING WALL AT 1695 GARFIELD AVENUE Whereas, a retaining wall along 1695 Garfield Avenue is failing and threatening the public sidewalk on Hamilton Street; and Whereas, Iowa Code § 384.103 provides that when emergency repair of a public improvement is necessary and the delay of advertising and a public letting might cause serious loss or injury to the city, the governing body shall, by resolution, make a finding of the necessity to institute emergency proceedings and shall procure a certificate from a competent registered professional engineer or architect, not in the regular employ of the city, certifying that emergency repairs are necessary, and that in that event the governing body may contract for emergency repairs without holding a public hearing and advertising for bids; and Whereas, the City Council finds that the emergency repair of the retaining wall is necessary to 96 protect the public sidewalk on Hamilton Street and the delay of advertising and a public letting might cause serious loss or injury to the city; and Whereas, the City has procured a certificate from a competent professional engineer registered in the State of Iowa, not in the regular employ of the City, certifying that emergency repairs to the retaining wall are necessary. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council finds that it is necessary to institute emergency proceedings to repair the retaining wall along 1695 Garfield Avenue. Section 2. The City Manager is hereby authorized to proceed with instituting such emergency repairs as provided by law. th Passed, adopted and approved this 20 day of October, 2008. Roy D. Buol, Mayor Attest: Jeanne F. Schneider, CMC, City Clerk There being no further business, upon motion the meeting adjourned at 9:27 p.m. /s/Jeanne F. Schneider, CMC City Clerk 97