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Urban Renew $812,000 Chavenelle Theisen D~~%duE ~~~ MEMORANDUM November 14, 2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: $812,000 Urban Renewal Tax Increment Revenue Notes for Chavenelle Warehouse Development, LLC/Theisen Supply, Inc.: Resolution Approving Form of Loan Agreement Economic Development Director Dave Heiar recommends the City Council approve of the issuance of not to exceed $812,000 in Urban Renewal Tax Increment Revenue Notes to support the Chavenelle Warehouse Development, LLC/Theisen Supply, Inc. expansion project at the Dubuque Industrial Center West. I concur with the recommendation and respectfully request Mayor and City Council approval. ALvl {1;~7(1lL Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager David J. Heiar, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM November 13, 2006 TO: FROM: Michael Van Milligen, City Manager David J. Heiar, Economic Development Director '1t~ $812,000 Urban Renewal Tax Increment Revenue Notes for Chavenelle Warehouse Development, LLClTheisen Supply, Inc: Resolution approving form of Loan Agreement SUBJECT: INTRODUCTION This memorandum presents for City Council approval a motion to approve a RESOLUTION APPROVING AND AUTHORIZING A FORM OF LOAN AGREEMENT AND AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $812,000 IN URBAN RENEWAL TAX INCREMENT REVENUE NOTES. BACKGROUND On November 6, 2006, the City Council set a public hearing on the proposed issuance of not to exceed $812,000 in order to provide funds to pay the costs of an urban renewal project in Dubuque Industrial Center West, specifically funding an economic development grant to the Chavenelle Warehouse Development, LLC and Theisen Supply, Inc. under the Development Agreement dated June 19, 2006. Theisen Supply, Inc. negotiated the purchase of the bonds with Dubuque Bank and Trust at an annual interest rate of 8.25%. The note sale will be for $812,000. This amount will be decreased by $5,000 for administrative costs and $98,290 to cover advanced interest needed to finance this loan until property taxes are collected for this newly constructed facility. The net proceeds (approximately $707,500) will go to Chavenelle Warehouse Development, LLC. The City has required the company to execute a Minimum Assessment Agreement, and the City pledges only the taxes generated from the new value of the project. There is no City Guarantee involved. DISCUSSION The City's bond attorney, Bill Noth has provided the City with the appropriate proceedings to approve the RESOLUTION APPROVING AND AUTHORIZING A FORM OF LOAN AGREEMENT AND AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $812,000 IN URBAN RENEWAL TAX INCREMENT REVENUE NOTES. RECOMMENDA TIONJACTION STEP I recommend that the City Council follow the proceedings attached, provided to us by our bond counsel, and approve a resolution approving and authorizing a form of loan agreement and authorizing and providing for the issuance of $812,000 in Urban Renewal Tax Increment Revenue Notes. Attachments F:\USERS\DHeiar\Theisen's\memo on form of roan agreement.doc AHLERS ~COONEY, P.C. ATTORNEYS ATLAW 100 COURT AVENUE. SUITE 600 DES MOINES. IOWA 50309-2231 PHONE SIS-2103-7611 FAX, 515-243-2149 WWW.AHlERSLAW.COM WilLIAM J. NOTH WNOTH@AHlERSLAW.COM OirectOiat: (515):M6-0332 November 9, 2006 Mr. Ken TeKippe Finance Officer City of Dubuque 50 West 13th Street Dubuque, Iowa 52001-4864 RE: Urban Renewal Tax Increment Revenue Notes, Taxable Series 2006 (Grant to Chavenelle Warehouse Development, LLC) Dear Mr. TeKippe: With this letter are suggested proceedings to be acted upon by the Council on the date fixed for the hearing on the issuance of the above mentioned Notes, pursuant to the provisions of Code Section 403.9. A certificate to attest the proceedings is also enclosed. These proceedings are prepared to show as a first step the receipt of any oral or written objections from any resident or property owner to the proposed action of the Council to issue the Notes. A summary of objections received or made, if any, should be attached to the proceedings. After all objections have been received and considered if the Council decides not to abandon the proposal to issue the Notes, a form of resolution follows that should be introduced and adopted, entitled "Resolution Instituting Proceedings to Take Additional Action tor the Issuance of Not to Exceed $812,000 Urban Renewal Tax Increment Revenue Notes." The Council is required by statute to adopt the resolution instituting proceedings to issue the Notes at the hearing -- or an adjournment thereof. If necessary to adjourn, the minutes are written to accommodate that action. WISHARD & BAll Y ~ 1888: GUERNSEY & BAllY - 1893; BAILY & STIPP - 1901; Snpp. PERRY. BANNISTER & STARZlNGER _ 1914: BANNISTER. CARPENTER. AHLERS & COONEY - 1950: AHLERS. COONEY. DORWEILER. ALLBEE. HAYNIE & SMITH - 1974: AHLERS. COONEY. DORWEllER. HAYNIE. SMITH & ALLBeE. P .C. _ 1990 November 9, 2006 Page 2 In the event the Council decides to abandon the proposal to issue said Notes, then the form of resolution included in said proceedings should not be adopted. We would suggest that, in this event, a motion merely be adopted to the effect that such Note proposal is abandoned. Section 403.9 of the Code of Iowa provides that any resident or property owner of thc City may appeal the decision to take additional action to issue the Notes, to the District Court of a county in which any part of the City is located, within 15 davs after such additional action is taken, but that the additional action is final and conclusive unless the court finds that the Council exceeded its authority. In the event an appeal is filed by any resident or property owner, please see that we are notified immediately; and, as soon as available, a copy of the notice of appeal should be furnished our office for review. Also enclosed are proceedings and closing certificates to complete action on the issuance ofthe Note, in the principal amount of$812,000, in accordance with the commitmentletler received from Dubuque Bank & Trust Company (the "Purchaser"). These items consist of the following: I. Resolution authorizing the issuance. This resolution authorizes the issuance of the Note and approves of the Purchase Agreement with the Purchaser. There are blank spaces in the form of Note included as part of the resolution which may bc left blank. 2. Auditor's Certificate. A copy of the resolution authorizing the issuance of thc Note should be filed in the office of the County Auditor following its passage by the City Council, using the form of certification enclosed. Extra copies of the certification are enclosed for delivery to the Auditor and to be returned to us for our transcript of the action taken. 3. Purchase Agreement. Three (3) execution copies of the Purchase Agreement are enclosed, each of which should be dated and signed by the parties thereto. The City should maintain an original copy, and another copy should be delivered to the Purchaser at the time of closing. The third copy should be returned to us for our transcript of the action taken. A copy of the disbursement and repayment schedule prepared by the Purchaser should be attached to each copy. November 9, 2006 Page 3 4. Orig.inal Note No. R-I. The original Note is enclosed, to which you should attach a copy of the disbursement and repayment schedule prepared by the Purchaser. The Note should be signed by the Mayor and the City Clerk on the third page thereof, and the seal of the City should be impressed next to the Clerk's signature. The Registrar then should authenticate the Note, with the Note Date and Date of Authentication being the date of closing. The original Note should be delivered to the Purchaser at the time of closing. I would suggest that you keep a photocopy of the dated and executed Note, and would ask that you return a photocopy of the completed Note to us following the closing for our transcript of the action taken. 5. Delivery Certificate. Two (2) execution copies of a Delivery Certificate are enclosed, each of which should be signed by the City officials identified on the third page thereof. Prior to execution, the financial information set forth on page two should be inserted in the spaces provided. The signatures of the City officials should be attested by a representative of the Purchaser, using the form of certification included on the third page. This certificate should be dated as of the date of closing. The original copy of the Delivery Certificate should be retained by the City, with the other copy being returned to us for our transcript of the action taken. 6. Transcript Certificate. Two (2) execution copies of a Transcript Certificate are enclosed, each of which should be signed by the City officials identified on the second page thereof and thereafter by the City Clerk in the presence of a notary public. This certificate may be dated as of the date of execution. The original copy of the Transcript Certificate should be retained by the City, with the other copy being returned to us for our transcript of the action taken. At the time of closing, the original Note and original copies of the Purchase Agreement and our firm's legal opinion will be delivered to the Purchaser, along with a photocopy of the Resolution authorizing issuance. I will forward copies of our legal opinion prior to closing. Extra copies of the resolutions are enclosed to be completed as the originals and returned to us for our transcript of the action taken. November 9,2006 Page 4 Should you have any questions concerning any of the foregoing instructions, or with respect to the documents themselves, please don't hesitate to contact me. Yours very truly, ~ William J. Noth WJN:dc encl. cc: Barry Lindahl Jeanne Schneider David Heiar DCORNELL\512817.1 \WPII 0422072 D~~~E ~~~ 7/35 / / J i~ .. /- .~ {i(_JU/l.Jb f. j . MEMORANDUM October 27,2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Resolution Fixing Date for Public Hearing on Proposal to Authorize a Loan Agreement and Issuance of Urban Renewal Tax Increment Revenue Notes to Support Chavenelle Warehouse Development, LLClTheisen Supply, Inc. Project Economic Development Director Dave Heiar recommends the City Council set a public hearing for November 20,2006 regarding the issuance of not to exceed $812,000 in Urban Renewal Tax Increment Revenue Notes to support the Chavenelle Warehouse Development, LLClTheisen Supply, Inc. expansion project at the Dubuque Industrial Center West. I concur with the recommendation and respectfully request Mayor and City Council approval. N~~~-... Mic~ael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City.Manager David Heiar, Economic Development Director CITY OF DUBUQUE, IOWA MEMORANDUM October 25, 2006 TO: Michael Van Milligen, City Manager FROM: David Heiar, Economic Development Director~'t SUBJECT: Resolution Fixing Date for Public Hearing on proposal to authorize a loan agreement and issuance of Urban Renewal Tax Increment Revenue Notes to Support Chavenelle Warehouse Development, LLCI Theisen Supply, Inc. project. INTRODUCTION This memorandum presents for City Council adoption a resolution fixing the date for a public hearing on the issuance of not to exceed $812,000 in Urban Renewal Tax Increment Revenue Notes to support the Chavenelle Warehouse Development, LLCI Theisen Supply, Inc. expansion project at the Dubuque Industrial Center West. The resolution sets the date of public hearing for November 20, 2006. DISCUSSION On June 19, 2006, the City Council approved a Development Agreement with Chavenelle Warehouse Development, LLCI Theisen Supply, Inc. That Agreement set the terms for the development of property in the Dubuque Industrial Center West. The Agreement stipulates the City will provide an Economic Development Grant to the Chavenelle Warehouse Development, LLC in an amount estimated at $731,000. The City's intention is to use the Tax Increment revenues from the Theisen's expansion project, to retire debt on the Urban Renewal Tax Increment Revenue Note, which is being used as the tool to provide the Economic Development Grant to the Company. Theisen Supply, Inc. asked Dubuque Bank & Trust to purchase the revenue notes. The note sale will be for $812,000. This amount will be decreased by $5,000 for administrative costs and $112,000 to cover advanced interest needed to finance this loan until property taxes are collected for this newly constructed facility. The net proceeds ($695,000) that will go to Chavenelle Warehouse Development, LLC. The City has required that the Company execute a Minimum Assessment Agreement, and the City pledges only the taxes generated from the new value of the project. There is no City Guarantee involved. The City must hold a public hearing whenever it agrees to carry out an Urban Renewal Project and issues debt for this purpose. The attached instructions from our bond attorney, Bill Noth of the Ahlers Law firm includes the proceedings and a resolution setting the public hearing for this proposal. RECOMMENDATION I recommend that the City Council adopt the attached resolution fixing the date for a public hearing on the issuance of not to exceed $812,000 in Urban Renewal Tax Increment Revenue Notes to support the Theisen's expansion project at the Dubuque Industrial Center West. The public hearing to approve the issuance will be November 20, 2006. ACTION STEP The action step for the City Council is to review the enclosures, and adopt the attached resolution. Attachment F:\USERS\DHeiar\Theisen's\5et date for hearing for TIF.doc .. AHLERS ~COONEY, P.C. ATTORNEYS AT LAW 100 COURT AVENUE' SUITE 600 OES MOINES. IOWA 50309-2231 PHONE 515-243-7611 FAX, 515-243-2149 WWW.AHLERSLAW.COM WILLIAM J. NOTH WNOTH@AHLERSLAW.COM Direct Dial, 15151246-0332 October 17, 2006 Mr. Ken TeKippe Finance Officer City of Dubuque 50 West 13th Street Dubuque, Iowa 52001-4864 RE: Not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes (Grant to Chavenelle Warehouse Development, LLC) Dear Mr. TeKippe: We have now prepared and are enclosing herewith suggested proceedings to be acted upon by the Council in fixing the date of a meeting on the proposition to issue the above mentioned Notes and ordering publication of a notice of hearing consistent with the provisions of Code Section 403.9. Notice of this meeting must be published at least once in a legal newspaper, - . printed wholly in the English language, published at least once' weekly, and having general circulation in the City. The date of publication is to be not less than four clear davs nor more than twenty days before the date of said public meeting on the issuance of said Notes. In computing time, the date of publication should be excluded. If the last day falls on Sunday, the whole of the following Monday should be excluded. Also enclosed is an extra copy of the proceedings to be filled in as the original and certified back to this office, together with publisher's affidavit of publication of notice of hearing. We are also enclosing an extra copy of the notice of hearing to be delivered to the newspaper for publication purposes. A certificate to attest the proceedings is also enclosed. WISHARD & BAILY - 1888; GUERNSEY & BAILY - 1893, BAILY & STIPP - 1901; Snpp, PERRY, BANNISTER & STARZlNGER - 1914; BANNISTER. CARPENTER, AHLERS & COONEY -1950: AHLERS, COONEY. DORWEILER. ALLBEE. HAYNIE & SMITH -1974: AHLERS. CooNEY. DORWEllER. HAYNIE, SMITH & ALLBEE. P.C. -1990 October 17, 2006 Page 2 Should you have any questions pertaining to the proceedings, please don't hesitate to contact me. Yours very truly, ~ William J. Noth WJN:dc encI. cc: Barry Lindahl Jeanne Schneider David Heiar DCORNELL\511426.I\WP\10422000 WISHARD & BAtlY. 1888: GUERNSEY & BAILV-1893: BAILY & Snpp -1901, Snpp, PERRY. BANNISTER & STARZINGER -1914: BANNISTER. CARPENTER. AHLERS & COONEY - 1950: AHLERS. COONEY. DORWEllER. AllBEE. HAYNIE & 51o41lH - 1974: AHLERS. COONEY, DORWEllER, HAYNIE. SMITH & ALLBEE. P,C. - 1990 The Council then considered the proposed action and the extent of objections thereto. Whereupon, C ounci 1 Member Joyce C o n n o r s introduced and delivered to the Clerk the Resolution hereinafter set out entitled "RESOLUTION INSTITUTING PROCEEDINGS TO TAKE ADDITIONAL ACTION FOR THE ISSUANCE OF NOT TO EXCEED $812,000 URBAN RENEWAL TAX INCREMENT REVENUE NOTES," and moved its adoption. Council Member Ric Jones seconded the motion to adopt. The roll was called and the vote was, AYES: Braig, Buol, Cline, Connors Lynch, Jones, Michalski None NAYS: Whereupon, the Mayor declared said Resolution duly adopted as follows: RESOLUTION NO. 561-06 RESOLUTION INSTITUTING PROCEEDINGS TO TAKE ADDITIONAL ACTION FOR THE ISSUANCE OF NOT TO EXCEED $812,000 URBAN RENEWAL TAX INCREMENT REVENUE NOTES WHEREAS, pursuant to notice published as required by law, this Council has held a public meeting and hearing upon the proposal to institute proceedings for the issuance of not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes for the purpose of 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 Economic Development District, including the funding of an economic development grant to Chavenelle Warehouse Development, LLC under the terms of a Development Agreement dated June 19, 2006 by and among the City of Dubuque, Chavenelle Warehouse Development, LLC and Theisen Supply, Inc., and has considered the extent of objections received from residents or property owners as to said proposed issuance; and, accordingly the following action is now considered to be in the best interests of the City and residents thereof: -4- { NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That this Council does hereby institute proceedings and takes additional action for the sale and issuance in the manner required by law of not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes for the foregoing purpose. PASSED AND APPROVED this 20th day of November , 2006. ~~ Mayor ATTEST: ity Clerk - -5- CIG-3 9/91 CERTIFICATE STATE OF IOWA ) SS COUNTY OF DUBUQUE } I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is a true and complete copy of the portion of the corporate records of said Municipality showing proceedings of the Council, and the same is a true and complete copy of the action taken by said Council with respect to said matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of said agenda being attached hereto) pursuant to the local rules of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty-four hours prior to the commencement of the meeting as required by said law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective city offices as indicated therein, that no Council vacancy existed except as may be stated in said proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. W ESS may hand and the seal of said Municipality hereto affixed thisp1,~2~ day of ~ , 2006. City Clerk, Dubuque, Iowa SEAL DCORNELL\512683.1 \WP\ 10422072 -6- (This Notice to be posted) NOTICE AND CALL OF PUBLIC MEETING Governmental Body: The City Council of Dubuque, Iowa. Date of Meeting: November 20 , 2006. Time of Meeting: 6 = 30 o'clock P.M. Place of Meeting: Auditorium, Carnegie-Stout Public Library, Dubuque, Iowa. PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental body will meet at the date, time and place above set out. The tentative agenda for said meeting is as follows: Not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes. Public hearing on the issuance. Resolution instituting proceedings to take additional action. Such additional matters as are set forth on the additional 1 o page(s) attached hereto. (number) This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of Iowa, and the local rules of said governmental body. ~~ ,~~<~ .~~ ity Clerk, Dubuque, Iowa f November 21 ,2000 The City Council of Dubuque, Iowa, met in Regular session, in the Auditorium, Carnegie-Stout Public Library, Dubuque, Iowa, at 5 = 3 0 o'clock P .M., on the above date. There were present Mayor Roy n . B u o 1 , in the chair, and the following named Council Members: Karla Braig, Patricia Cline, Joyce Connors, Kevin Lynch, Ric Jones, Ann Michalski Absent: None ~***~** -2- t The Mayor announced that this was the time and place for the public hearing and meeting on the matter of the issuance of not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes in order to provide 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 Economic Development District, including the funding of an economic development grant to Chavenelle Warehouse Development, LLC under the terms of a Development Agreement dated June 19, 2006 by and among the City of Dubuque, Chavenelle Warehouse Development, LLC and Theisen Supply, Inc., and that notice of the proposed action by the Council to institute proceedings for the issuance of said Urban Renewal Tax Increment Revenue Notes had been published pursuant to the provisions of Section 403.9 of the Code of Iowa. The Mayor then asked the Clerk whether any written objections had been filed by any City resident or property owner to the issuance of said Urban Renewal Tax Increment Revenue Notes. The Clerk advised the Mayor and the Council that No written objections had been filed. The Mayor then called for oral objections to the issuance of said Urban Renewal Tax Increment Revenue Notes and No were made. Whereupon, the Mayor declared the time for receiving oral and written objections to be closed. (Attach here a summary of objections received or made, if any) -3- Council Member Joyce Connors introduced the following Resolution entitled "A RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $812,000 URBAN RENEWAL TAX INCREMENT REVENUE NOTES, TAXABLE SERIES 2006, OF THE CITY OF DUBUQUE, IOWA, AND PROVIDING FOR THE SECURING OF SUCH NOTES FOR THE PURPOSE OF CARRYING OUT AN URBAN RENEWAL PROJECT IN THE AREA OF THE CITY OF DUBUQUE, IOWA DESIGNATED AS THE DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT", and moved its adoption. Council Member Ric Jones vote was: seconded the motion to adopt. The roll was called and the AYES: Kraig, Buol, Cline, Connors, Jones, Lynch, Michalski NAYS: None Whereupon the Mayor declared the following Resolution duly adopted: RESOLUTION NO. 562-06 RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $812,000 URBAN RENEWAL TAX INCREMENT REVENUE NOTES, TAXABLE SERIES 2006, OF THE CITY OF DUBUQUE, IOWA, AND PROVIDING FOR THE SECURING OF SUCH NOTES FOR THE PURPOSE OF CARRYING OUT AN URBAN RENEWAL PROJECT IN THE AREA OF THE CITY OF DUBUQUE, IOWA DESIGNATED AS THE DUBUQUE INDUSTRIAL CENTER ECONOMIC DEVELOPMENT DISTRICT WHEREAS, the City Council of the City of Dubuque, Iowa (the "City" or the "Issuer") has heretofore, by Resolution No. 478-97 of this City Council approved on November 17, 1997, adopted an Amended and Restated Urban Renewal Plan (the "Urban Renewal Plan") under which plan there are to be carried out urban renewal project activities in an area designated as the Dubuque Industrial Center Economic Development District (the "Project Area"); and WHEREAS, it is presently estimated that the costs of carrying out the purposes and provisions of the Urban Renewal Plan for the Project Area, including the purpose set -3- forth in Section 3 hereof, exceed $812,000, and provisions must now be made by the City to provide for the payment of such costs by the issuance of Notes; and WHEREAS, the City has heretofore adopted Ordinance No. 66-97, under Section 403.19 of the Code of Iowa (the "Ordinance"), under which the taxes levied on the taxable property in the Project Area shall be divided, and a special fund created under the authority of Section 403.19(2) of the Code of Iowa, as amended (which special fund is hereinafter referred to as the "Dubuque Industrial Center Economic Development District Tax Increment Revenue Fund" or "Revenue Fund") which fund was created in order to pay the principal of and interest on loans, monies advanced to or indebtedness whether funded, refunded, assumed, or otherwise, including bonds issued under the authority of Section 403.9(1) of the Code of Iowa, as amended, incurred by the City to finance or refinance in whole or in part urban renewal project activities undertaken within the Project Area, and pursuant to which Ordinance such Revenue Fund may be irrevocably pledged by the City for the payment of principal and interest on such indebtedness; and WHEREAS, the notice of intention of Issuer to take action for the issuance of not to exceed $812,000 Urban Renewal Tax Increment Revenue Notes has heretofore been duly published and no objections to such proposed action have been filed and it is now necessary and advisable that provisions be made for the issuance of Notes to the amount of $812,000 pursuant to the provisions of Section 403.9(1) of the Code of Iowa, payable from a portion of the income and proceeds of the Revenue Fund and other funds of the City derived from or held in connection with the undertaking and carrying out of the Urban Renewal Plan for the Project Area as described herein. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IN THE COUNTY OF DUBUQUE, STATE OF IOWA: Section 1. Definitions. In addition to the defined terms set forth in the preambles hereof, the following terms shall have the following meanings in this Resolution unless the text expressly or by necessary implication requires otherwise: • "Clerk" shall mean the City Clerk or such other officer of the successor Governing Body as shall be charged with substantially the same duties and responsibilities; • "Corporate Seal" shall mean the official seal of Issuer adopted by the Governing Body; -4- • "Developer" shall mean Chavenelle Warehouse Development, LLC, an Iowa limited liability company; • "Development Agreement" shall mean the Development Agreement dated as of June 19, 2006 between and among the City, the Developer and the Employer, as amended from time to time; • "Development Property" shall mean that portion of the Project Area being developed by the Developer under the terms of the Development Agreement, upon which the Developer has covenanted to construct the Minimum Improvements, being legally described as set forth in the Development Agreement; • "Dubuque Industrial Center Economic Development District Tax Increment Revenue Fund" or "Revenue Fund" means the special fund of the City created under the authority of Section 403.19(2) of the Code of Iowa and the Ordinance, which fund was created in order to pay the principal of and interest on loans, monies advanced to, or indebtedness, whether funded, refunded, assumed or otherwise, including bonds or other obligations issued under the authority of Section 403.19 or 403.12 of the Code of Iowa, incurred by the City to finance or refinance in whole or in part projects undertaken pursuant to the Urban Renewal Plan for the Project Area; • "Employer" shall mean Theisen Supply, Inc., an Iowa corporation; • "Fiscal Year" shall mean the twelve-month period beginning on July 1 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 Issuer; • "Governing Body" shall mean the City Council of the City, or its successor in function with respect to the operation and control of the Project Area; • "Independent Auditor" shall mean an independent firm of Certified Public Accountants or the Auditor of State; • "Issuer" and "City" shall mean the City of Dubuque, Iowa; -5- • "Minimum Improvements" shall mean the construction of a corporate office/industrial facility by the Developer on the Development Property for transfer to and use by the Employer in accordance with the terms of the Development Agreement; • "Notes" or "Note" shall mean the $812,000 Urban Renewal Tax Increment Revenue Note, Taxable Series 2006, authorized to be issued by this Resolution; • "Original Purchaser" shall mean Dubuque Bank & Trust Company, Dubuque, Iowa, as the purchaser of the Note from Issuer at the time of its original issuance; • "Paying Agent" shall be the City Treasurer, 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 Note as the same shall become due; • "Project Area" shall mean the Dubuque Industrial Center Economic Development District of the Issuer, as amended from time to time; • "Project Fund" or "Construction Account" shall mean the fund required to be established by this Resolution for the deposit of the proceeds of the Note; • "Registrar" shall be the City Treasurer of Dubuque, 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 Note. Unless otherwise specified, the Registrar shall also act as Transfer Agent for the Note; • "Tax Increments" means the property tax revenues divided and made available to the City for deposit in the Dubuque Industrial Center Economic Development District Tax Increment Revenue Fund under the provisions of Section 403.19 of the Code and the Ordinance; -6- • "Theisen TIF Account" means a separate account to be established within the Dubuque Industrial Center Economic Development Tax Increment Revenue Fund of the City, in which there shall be deposited all Tax Increments received by the City in respect of the Minimum Improvements and the Development Property; • "Treasurer" shall mean the City Treasurer or such other officer as shall succeed to the same duties and responsibilities with respect to the recording and payment of the Note issued hereunder. Section 2. Authori .The Note authorized by this Resolution shall be issued pursuant to Section 403.9 of the Code of Iowa, and in compliance with all applicable provisions of the Constitution and laws of the State of Iowa. Section 3. Authorization, Purpose, Approval of Purchase Agreement and Disbursements. There are hereby authorized to be issued, one negotiable, serial, fully registered Urban Renewal Tax Increment Revenue Note, Taxable Series 2006, of the City of Dubuque, in the County of Dubuque, State of Iowa, in the aggregate principal amount of $812,000 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 Economic Development District, including the funding of an economic development grant to Chavenelle Warehouse Development, LLC under the terms of a Development Agreement dated June 19, 2006 by and among the City of Dubuque, Chavenelle Warehouse Development, LLC and Theisen Supply, Inc. The Purchase Agreement between the City and the Original Purchaser (the "Purchase Agreement") is hereby approved in substantially the form presented at this meeting, and the Mayor and City Clerk are authorized to execute and deliver the same on behalf of the City with such changes as shall to them, upon the advice of Corporation Counsel, be necessary or appropriate. On the date of issuance of the Note, proceeds of the Note in the amount set forth in the disbursement and repayment schedule attached to the Purchase Agreement shall be drawn upon and deposited in the Project Fund and held in such fund until disbursed to the Developer in accordance with the Development Agreement and applied to costs of issuance of the Note. In addition to such amount, the amounts set forth in said disbursement and repayment schedule shall be withdrawn by the Treasurer on December 31, 2006, June 30, 2007, December 31, 2007 and June 30, 2008 (in the respective amounts set forth in the said schedule) and deposited in the Sinking Fund established in -7- Section 16 hereof and thereafter applied to the payment of interest on the Note on said dates. Section 4. Source of Payment. As provided and required by Chapter 403 of the Code of Iowa, and Section 403.9, the Note and interest thereon shall be payable from and secured solely and only by amounts deposited and held from time to time in the Theisen TIF Account of the City. The City hereby covenants and agrees to maintain the Ordinance in force during the term of the Notes and to apply the Tax Increments collected in respect of the Development Property and the Minimum Improvements located thereon and allocated to the Theisen TIF Account to the payment of the principal of and interest on the Notes. The Notes shall not be payable in any manner from other Tax Increments collected in respect of other properties within the Project Area or by general taxation or from any other City funds. The Notes shall not constitute an indebtedness within the meaning of any statutory debt limitation or restriction and shall not be subject to the provisions of any other law relating to the authorization, issuance or sale of notes. The Notes shall recite in substance that they have been issued by the City in connection with an urban renewal project as defined in Chapter 403 of the Code of Iowa, and in any suit, action or proceeding involving the validity or enforceability of any Note issued hereunder or the security therefor, such Notes shall be conclusively deemed to have been issued for such purpose and such project shall be conclusively deemed to have been planned, located and carried out in accordance with the provisions of Chapter 403 of the Code of Iowa. Section 5. Note Details. Urban Renewal Tax Increment Revenue Notes of the City in the amount of $812,000 shall be issued pursuant to the provisions of Section 403.9 of the Code of Iowa for the aforesaid purpose. The Notes shall be designated "URBAN RENEWAL TAX INCREMENT REVENUE NOTE, TAXABLE SERIES 2006", be dated as of the date of delivery, and bear interest from the date of disbursement of the proceeds thereof at the rate of 8.25% per annum, until payment thereof, at the office of the Paying Agent, and shall mature in the principal amounts set forth on the disbursement and repayment schedule attached to the Purchase Agreement as Exhibit A and incorporated herein by this reference. As set forth on said schedule, principal shall be payable on December 31, 2008 and semiannually thereafter on the last business day of June and December of each year in the amounts set forth therein until principal and interest are fully paid, except that the final installment of the entire balance of principal and interest, if not sooner paid, shall become due and payable on June 30, 2018. -8- The Note shall be executed by the manual signature of the Mayor and attested by the manual signature of the City Clerk, and impressed 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 Note. The Note shall be in the denomination of $1,000 or multiples thereof and shall, at the request of the Original Purchaser, be issued initially as a single Note in the principal amount of $812,000 and numbered R-1. Section 6. Redemption. The principal of the Note may be called for redemption by the Issuer and paid before maturity on any date, from any funds regardless of source, in whole or from time to time in part, by giving thirty days' notice of redemption by registered or certified mail, to the registered owner of the Note. The terms of redemption shall be par, plus accrued interest to date of call. Section 7. Registration of Notes• Appointment of Registrar Transfer Ownership• Delivery; and Cancellation. (a) Registration. The ownership of Notes may be transferred only by the making of an entry upon the books kept for the registration and transfer of ownership of the Notes, and in no other way. The Treasurer is hereby appointed as Note Registrar under the terms of this Resolution. Registrar shall maintain the books of the Issuer for the registration of ownership of the Notes for the payment of principal of and interest on the Notes as provided in this Resolution. All Notes shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.83(5) of the Code of Iowa, subject to the provisions for registration and transfer contained in the Notes and in this Resolution. (b) Transfer. The ownership of any Note may be transferred only upon the Registration Books kept for the registration and transfer of Notes 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 Note (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 Note, a new fully registered Note, of any denomination or denominations -9- permitted by this Resolution in aggregate principal amount equal to the unmatured and unredeemed principal amount of such transferred fully registered Note, 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 Notes. In all cases of the transfer of the Notes, the Registrar shall register, at the earliest practicable time, on the Registration Books, the Notes, in accordance with the provisions of this Resolution. (d) Ownership. As to any Note, 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 Notes 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 Note, including the interest thereon, to the extent of the sum or sums so paid. (e) Cancellation. All Notes which have been redeemed shall not be reissued but shall be cancelled by the Registrar. All Notes 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 Notes to the Issuer. (f) Non-Presentment of Notes. In the event any payment check representing payment of principal of or interest on the Notes 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 Notes 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 Notes 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 Notes 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 Notes. The Paying Agent's obligation to hold such funds shall continue for a period equal to two years 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 - 10- this Resolution by the Owners of such interest or Notes of whatever nature shall be made upon the Issuer. Section 8. Reissuance of Mutilated, Destroyed, Stolen or Lost Notes. In case any outstanding Note shall become mutilated or be destroyed, stolen or lost, the Issuer shall at the request of Registrar authenticate and deliver a new Note of like tenor and amount as the Note so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Note to Registrar, upon surrender of such mutilated Note, or in lieu of and substitution for the Note destroyed, stolen or lost, upon filing with the Registrar evidence satisfactory to the Registrar and Issuer that such Note 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 9. Record Date. Payments of principal and interest, otherwise than upon full redemption, made in respect of any Note, 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 1 Sth day of the month preceding the payment date. All such payments shall fully discharge the obligations of the Issuer in respect of such Notes to the extent of the payments so made. Payment of principal shall only be made upon surrender of the Note to the Paying Agent. Section 10. Execution, Authentication and Delivery of the Notes. Upon the adoption of this Resolution, the Mayor and Clerk shall execute and deliver the Notes to the Registrar, who shall authenticate the Notes and deliver the same to or upon order of the Original Purchaser. No Note 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 Note a Certificate of Authentication substantially in the form of the Certificate herein set forth. Such Certificate upon any Note executed on behalf of the Issuer shall be conclusive evidence that the Note so authenticated has been duly issued under this Resolution and that the holder thereof is entitled to the benefits of this Resolution. Section I I . Right to Name Substitute Pa~g_Agent or Registrar. Issuer reserves the right to name a substitute, successor Registrar or Paying Agent upon giving prompt written notice to each registered Noteholder. -11- Section 12. Form of Note. Notes shall be printed in substantial compliance with standards proposed by the American Standards Institute substantially in the form as follows: (~) (8) (1) (9) (9a) (10) (Continued on the back of this Note) FIGURE 1 (Front) -12- (10) (16) (Continued) FIGURE 2 (Back) -13- The text of the Notes to be located thereon at the item numbers shown shall be as follows: Item 1, figure 1 = "STATE OF IOWA" Item 2, figure 1 Item 3, figure 1 Item 4, figure 1 Item 5, figure 1 Item 6, figure 1 Item 7, figure 1 Item 8, figure 1 "COUNTY OF DUBUQUE" "CITY OF DUBUQUE" "URBAN RENEWAL TAX INCREMENT REVENUE NOTE" "TAXABLE SERIES 2006" Rate: 8.25% Maturity: As described herein Note Date: Date of Delivery Cusip No.: N/A "Registered" Certificate No. R-1 Principal Amount: $812,000 Item 9, figure 1 =The City of Dubuque, Iowa, a municipal corporation organized and existing under and by virtue of the Constitution and laws of the State of Iowa (the "Issuer"), for value received, promises to pay from the source and as hereinafter provided, to: Dubuque Bank & Trust Company Dubuque, Iowa Item 10, figure 1 = or registered assigns, the principal sum of (principal amount written outl THOUSAND DOLLARS in lawful money of the United States of America, on the maturity dates described herein, only upon presentation and surrender hereof at the office of the City Treasurer, Paying Agent of this issue, or its successor, with interest on said sum from the dates of disbursement of the proceeds hereof (set forth on the disbursement and repayment schedule hereinafter referred to) until paid at the rate per annum specified above, payable on December 31, 2006, and semiannually thereafter on the last business day of June and December of each year until maturity as hereinafter provided. Principal of this Note shall be disbursed and this Note shall mature in the principal amounts set forth on the disbursement and repayment schedule attached .hereto and incorporated herein by this reference. As set forth on said schedule, principal shall be -14- payable on December 31, 2008 and semiannually thereafter on the last business day of June and December of each year in the amounts set forth therein until principal and interest are fully paid, except that the final installment of the entire balance of principal and interest, if not sooner paid, shall become due and payable on June 30, 2018. Interest and principal shall be paid to the registered holder of the Note as shown on the records of ownership maintained by the Registrar as of the 15th day of the month next preceding such interest payment date. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. THE ISSUER DOES NOT INTEND OR REPRESENT THAT THE INTEREST ON THE NOTE WILL BE EXCLUDED FROM GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES, AND THE ISSUER IS NOT OBLIGATED TO TAKE ANY ACTION TO ATTEMPT TO SECURE ANY SUCH EXCLUSION. THE HOLDER OF THIS NOTE THEREFORE SHOULD TREAT THE INTEREST THEREON AS BEING SUBJECT TO FEDERAL INCOME TAXATION. This Note is issued pursuant to the provisions of Section 403.9 of the Code of Iowa, as amended, 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 Economic Development District, including the funding of an economic development grant to Chavenelle Warehouse Development, LLC under the terms of a Development Agreement dated June 19, 2006 by and among the City of Dubuque, Chavenelle Warehouse Development, LLC and Theisen Supply, Inc., in conformity to a Resolution of the Council of said City duly passed and approved (the "Resolution"). This Note is not an indebtedness within the meaning of any statutory provisions, or a general obligation of the City. This Note may be called for redemption by the Issuer and paid before maturity on any date, from any funds regardless of source, in whole or from time to time in part, by giving thirty days' notice of redemption by registered or certified mail, to the registered owner of the Note. The terms of redemption shall be par, plus accrued interest to date of call. Ownership of this Note may be transferred only by transfer upon the books kept for such purpose by the City Treasurer, the Registrar. Such transfer on the books shall occur only upon presentation and surrender of this Note at the office of the Registrar, 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 -15- substitute the Registrar and Paying Agent but shall, however, promptly give notice to registered Noteholders of such change. All Notes shall be negotiable as provided in Article 8 of the Uniform Commercial Code and Section 384.83(5) of the Code of Iowa, subject to the provisions for registration and transfer contained in the Note Resolution. This Note, as provided in the Resolution of which notice is hereby given and is hereby made a part hereof, is payable from and secured solely and only by a pledge of the tax increment revenues ("incremental taxes"} collected in respect of certain Development Property and Minimum Improvements constructed thereon, as defined and provided in said Resolution, which are located within the Dubuque Industrial Center Economic Development District (the "Project Area") as referred to and authorized in subsection 2 of Section 403.19 of the Code of Iowa, as amended. There has heretofore been established and the City covenants and agrees that it will maintain in force an ordinance providing for the division of incremental taxes within the Project Area and for the establishment of a sinking fund to meet the principal of and interest on this Note as the same becomes due. This Note is not payable in any manner from incremental taxes collected in respect of other properties within the Project Area or by general taxation and under no circumstances shall the City be in any manner liable by reason of the failure of the pledged tax increment revenues to be sufficient for the payment hereof. 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 Note, have been existent, had, done and performed as required by law. IN TESTIMONY WHEREOF, said City by its City Council has caused this Note to be signed by the manual signature of its Mayor and attested by the manual signature of its City Clerk, with the seal of said City impressed hereon, and authenticated by the manual signature of an authorized representative of the Registrar, the City Treasurer, Dubuque, Iowa. Item 11, figure 1 =Date of authentication: Item 12, figure 1 =This is one of the Notes described in the within mentioned Resolution, as registered by the City Treasurer. CITY TREASURER By: Registrar -16- Item 13, figure 1 = Registrar and Transfer Agent: City Treasurer Paying Agent: City Treasurer Item 14, figure 1 = (Seal) Item 15, figure 1 = [Signature Block) CITY OF DUBUQUE, IOWA By: Mayor's manual signature Mayor ATTEST: By: City Clerk's manual signature City Clerk Item 17, figure 2 = [Assignment Block] [Information Required for Registration] ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto (Social Security or Tax Identification No. )the within Note and does hereby irrevocably constitute and appoint attorney in fact to transfer the said Note on the books kept for registration of the within Note, with full power of substitution in the premises. Dated: (Person(s) executing this Assignment sign(s) here) SIGNATURE ) GUARANTEED) -17- IMPORTANT -READ CAREFULLY The signature(s) to this Power must correspond with the name(s) as written upon the face of the certificate(s) or bond(s) in every particular without alteration or enlargement or any change whatever. Signature guarantee must be provided in accordance with the prevailing standards and procedures of the Registrar and Transfer Agent. Such standards and procedures may require signature to be guaranteed by certain eligible guarantor institutions that participate in a recognized signature guarantee program. INFORMATION REQUIRED FOR REGISTRATION OF TRANSFER Name of Transferee(s) Address of Transferee(s) Social Security or Tax Identification Number of Transferee(s) Transferee is a(n}: Individual* Partnership Corporation Trust *If the Note is to be registered in the names of multiple individual owners, the names of all such owners and one address and social security number must be provided. The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common IA UNIF TRANS MIN ACT - ..........Custodian.......... (Gust) (Minor) under Iowa Uniform Transfers to Minors Act ................ (State) -18- ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST. Section 13. Equality of Lien. The timely payment of principal of and interest on the Notes shall be secured equally and ratably by the Tax Increments collected and allocated to the Theisen TIF Account without priority by reason of number or time of sale or delivery; and the Tax Increments collected and allocated to the Theisen TIF Account are hereby irrevocably pledged to the timely payment of both principal and interest as the same become due. Section 14. Application of Note Proceeds. Proceeds of the Note shall be drawn upon and applied as described in Section 3 hereof. Subject to the limitations contained in Code Section 403.9(1) any amounts on hand in the Project Fund shall be available for the payment of the principal of or interest on the Note 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. Section 15. Tax Lew. After its adoption, a copy of this Resolution shall be filed in the office of the County Auditor of Dubuque County to evidence the pledging of a portion of the Dubuque Industrial Center Economic Development District Tax Increment Revenue Fund and the portion of taxes to be paid into the Theisen TIF Account and, pursuant to the direction of Section 403.19 of the Code of Iowa, the Auditor shall thereafter allocate the taxes in accordance therewith and in accordance with the Ordinance referred to in the preamble hereof. It is hereby certified that the annual amount of Tax Increments to be collected in respect of the Development Property and the Minimum Improvements located thereon pursuant to Section 403.19(2) of the Code of Iowa shall be not less than the annual requirement for principal and interest on the Note, as follows: -19- Amount of Principal Fiscal Year (July 1 to June 30) and Interest Year of Collection $120,000 2008/2009 120,000 2009/2010 120,000 2010/2011 120,000 2011 /2012 120,000 2012/2013 120,000 2013/2014 120,000 2014/2015 120,000 2015/2016 120,000 2016/2017 120,000 2017/2018 Section 16. Application of Revenues. From and after the delivery of the Note, and as long as the Note shall be outstanding and unpaid either as to principal or as to interest, or until the Note shall have been discharged and satisfied in the manner provided in this Resolution, the Tax Increments collected in respect of the Development Property and the Minimum Improvements located thereon shall be deposited as collected in the Theisen TIF Account and shall be disbursed only as follows: (a) Sinkin Fund. There is hereby established and shall be maintained a special fund within the Theisen TIF Account from which interest and principal on the Note will be paid. The fund shall be known as the Theisen Principal and Interest Fund (the "Sinking Fund"). The amount to be deposited in the Sinking Fund in any year shall be an amount equal to the interest and principal coming due on such Note during the fiscal year. Money shall be first deposited into the Interest Account of the Sinking Fund to an amount equal to the interest falling due in each fiscal year. Money shall next be deposited into the Principal Account of the Sinking Fund to an amount equal to the principal falling due in each fiscal year. Money in the Sinking Fund shall be used solely for the purpose of paying principal of and interest on the Note, as the same shall become due and payable. (b) Surplus Revenue. All revenues thereafter remaining in the Theisen TIF Account shall be deposited to remedy any deficiency in any of the funds created by this Resolution, or may be used to pay or reimburse the Issuer for other loans, moneys advanced to or indebtedness incurred to finance or refinance in whole or in part the project of the Developer, as permitted by law, or may be used to pay or redeem the Notes or for any other lawful purpose. -20- Moneys on hand in the Project Fund and all of the funds provided by this Section may be invested only in direct obligations of the United States Government or deposited in financial institutions which are members of the Federal Deposit Insurance Corporation ("FDIC") 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 by a valid pledge of direct obligations of the United States Government having an equivalent market value. Alternatively, such moneys may be invested in tax-exempt bonds or obligations of any state or political subdivision thereof which are rated by Moody's Investors Service or Standard & Poor's Corporation at a rating classification equal to or better than the rating carried by the Notes or, in the case of short-term obligations, a rating of MIG-l, S&P-I or better. All such interim investments shall mature before the date on which the moneys are required for the purposes for which said fund was created or otherwise as herein provided. The provisions of this Section shall not be construed to require the Issuer to maintain separate bank accounts for the funds created by this Section; except the Sinking Fund shall be maintained in a separate account but may be invested in conjunction with other funds of the City,but designated as a trust fund on the books and records of the City. All income derived from such investments shall be deposited in the Theisen TIF Account and shall be regarded as revenues thereof. Such investments shall at any time necessary be liquidated and the proceeds thereof applied to the purpose for which the respective fund was created. Section 17. Covenants Re arding the Operation of the Project Area. The Issuer hereby covenants and agrees with each and every holder of the Notes: (a) Maintenance in Force. The Issuer will maintain the Urban Renewal Plan and the Ordinance in force and will cause the incremental taxes from the Development Property and Minimum Improvements to be levied annually and certified to the County Auditor in an amount not less than the principal and interest falling due within the year, and applied as provided in this Resolution, unless the Notes are paid or sufficient provision for their payment is made. Provided, however, that to the extent that amounts are on hand and are sufficient to meet the payments required to be made and to maintain a sufficient balance in each fund as required by this Resolution, the Issuer may abate the levy of incremental taxes in any year. (b) Accounting and Audits. The Issuer will cause to be kept proper books and accounts adapted to the Project Area and in accordance with generally -21- accepted accounting practices, and will cause the books and accounts to be audited annually not later than 180 days after the end of each fiscal year by an Independent Auditor and will provide copies of the audit report to the Original Purchaser upon request. The Original Purchaser and holders of any of the Notes shall have at all reasonable times the right to inspect the Issuer's records, accounts and data of the Issuer relating to the Revenue Fund or the Theisen TIF Account. (c) State Laws. The Issuer will faithfully and punctually perform all duties with reference to the Urban Renewal Plan required by the Constitution and laws of the State of Iowa, and will segregate the revenues of the Project Area and apply said revenues to the funds as specified in this Resolution. (d) Amendments. The Issuer reserves the right to amend the Urban Renewal Plan for the Project Area and the Ordinance in its lawful discretion; provided, that in no event shall obligations resulting from an amendment or merger thereof have any priority over the Note. Section 18. Remedies of Noteholders. Except as herein expressly limited the holder or holders of the Notes shall have and possess all the rights of action and remedies afforded by the common law, the Constitution and statutes of the State of Iowa, and of the United States of America, for the enforcement of payment of their Notes and interest thereon, and of the pledge of the revenues made hereunder, and of all covenants of the Issuer hereunder. Section 19. No Prior Lien or Pari , Notes. The Issuer will issue no other bonds or obligations of any kind or nature payable from or enjoying a lien or claim on the property or revenues of the Theisen TIF Account having priority over the Note or standing on a parity therewith with respect to the lien and claim of such additional obligations to the revenues thereof and the money on deposit in the funds created in this Resolution, without the written consent of the Original Purchaser or other registered holder of the Note. The Issuer reserves the right to issue other obligations payable from the Tax Increments collected in respect of other properties within the Project Area, without notice to or consent of the Original Purchaser. Section 20. Discharge and Satisfaction of Notes. The covenants, liens and pledges entered into, created or imposed pursuant to this Resolution may be fully discharged and satisfied with respect to the Note in any one or more of the following ways: -22- (a) By paying the Note when the same shall become due and payable; or (b) By depositing in trust with the Treasurer, or with a corporate trustee designated by the governing body for the payment of said obligations and irrevocably appropriated exclusively to that purpose an amount in cash or direct obligations of the United States 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 obligations may be redeemed, all of such obligations 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 the Notes 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. Section 21. Resolution a Contract. The provisions of this Resolution shall constitute a contract between the Issuer and the holder or holders of the Note, and after the issuance of any of the Note no change, variation or alteration of any kind in the provisions of this Resolution shall be made in any manner, except as provided in the next succeeding Section, until such time as all of the Note, and interest due thereon, shall have been satisfied and discharged as provided in this Resolution. Section 22. Modification of Resolution. This Resolution may be amended from time to time if such amendment shall have been consented to by holders of not less than two-thirds in principal amount of the Notes at any time outstanding (not including in any case any Notes which may then be held or owned by or for the account of the Issuer, but including such Refunding Notes as may have been issued for the purpose of refunding any of such Notes if such Refunding Notes 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 Notes, or modify the terms of payment of principal of or interest on the Notes 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 Notes then outstanding; and - 23 - (c) Reduce the percentage of the principal amount of Notes, the consent of the holders of which is required to effect a further amendment. Whenever the Issuer shall propose to amend this Resolution under the provisions of this Section, it shall cause notice of the proposed amendment to be filed with the Original Purchaser or to be mailed by certified mail to any other registered owner of the Note 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 amendatory 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 Notes then outstanding as in this Section defined, which instrument or instruments shall refer to the proposed amendatory 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 amendatory Resolution and such Resolution shall become effective and binding upon the holders of all of the Notes. Any consent given by the holder of a Note 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 Note 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 Notes 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 Notes described in such certificate. -24- Section 23. 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 24. Repeal of Conflicting Ordinances or Resolutions and Effective Date. All other ordinances, resolutions 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. Passed and approved this loth day of November , 2006. ~~ ~ ~ C~~ ~` Mayor ATTEST: ity Clerk - 25 - CERTIFICATE STATE OF IOWA ) } SS COUNTY OF DUBUQUE ) I, the undersigned City Clerk of Dubuque, Iowa, do hereby certify that attached is a true and complete copy of the portion of the corporate records of said Municipality showing proceedings of the Council, and the same is a true and complete copy of the action taken by said Council with respect to said matter at the meeting held on the date indicated in the attachment, which proceedings remain in full force and effect, and have not been amended or rescinded in any way; that meeting and all action thereat was duly and publicly held in accordance with a notice of meeting and tentative agenda, a copy of which was timely served on each member of the Council and posted on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the principal office of the Council (a copy of the face sheet of said agenda being attached hereto) pursuant to the local rules of the Council and the provisions of Chapter 21, Code of Iowa, upon reasonable advance notice to the public and media at least twenty-four hours prior to the commencement of the meeting as required by said law and with members of the public present in attendance; I further certify that the individuals named therein were on the date thereof duly and lawfully possessed of their respective city offices as indicated therein, that no Council vacancy existed except as may be stated in said proceedings, and that no controversy or litigation is pending, prayed or threatened involving the incorporation, organization, existence or boundaries of the City or the right of the individuals named therein as officers to their respective positions. WI ESS my Iland and the seal of said Municipality hereto affixed this day of ~~~ ~~(/'z,/ , 2006. ~-~ ity Clerk, Dubuque, Iowa SEAL DCORNELL\512830.1\WP\] 0422072 t ~ (This Notice to be posted} NOTICE AND CALL OF PUBLIC MEETING Governmental Body: The City Council of Dubuque, Iowa. Date of Meeting: November 20 , 2006. Time of Meeting: 5 = 3 0 o'clock P .M. Place of Meeting: Auditorium, Carnegie-Stout Public Library, Dubuque, Iowa. PUBLIC NOTICE IS HEREBY GIVEN that the above mentioned governmental body, will meet at the date, time and place above set out. The tentative agenda for said meeting is as follows: $812,000 Urban Renewal Tax Increment Revenue Note, Taxable Series 2006. - Resolution authorizing the issuance. Such additional matters as are set forth on the additional 1 o page(s) attached hereto. (number) This notice is given at the direction of the Mayor pursuant to Chapter 21, Code of Iowa, and the local rules of said governmental body. ~~~ ~~~~~ ity Clerk, Dubuque, Iowa ~ i November 20 ,2006 The City Council of Dubuque, Iowa, met in R e g u 1 a r session, in the Auditorium, Carnegie-Stout Public Library, Dubuque, Iowa, at 5 : 3 0 o'clock P .M., on the above date. There were present Roy n . B u o 1 , in the chair, and the following named Council Members: Karla Braig, Patricia Cline, Joyce Connors, Ric Jones, Kevin Lynch, Ann Michalski None Absent: -2-