Urban Renewal Tax Bonds POD Parking RampTHE CITY OF
DUB E
Master~~iece on tFre Mississippi
MEMORANDUM
September 28, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution Authorizing Execution and Issuance of Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007
Economic Development Director Dave Heiar recommends City Council approval of a
resolution authorizing the execution and issuance of Urban Renewal Tax Increment
Revenue Bonds, Taxable Series 2007. These bonds are associated with the
construction of a public parking ramp in the Port of Dubuque.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
v ~ _
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David Heiar, Economic Development Director
TI IE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
September 28, 2007
TO: Michael Van Milligen, City Manager
FROM: David Heiar, Economic Development Director
SUBJECT: Resolution Authorizing Execution and Issuance of Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007
INTRODUCTION
This memorandum presents for City Council consideration, the adoption of a resolution
authorizing the execution and issuance of Urban Renewal Tax Increment Revenue Bonds,
Taxable Series 2007. These bonds are associated with the construction of a public parking
ramp in the Port of Dubuque.
DISCUSSION
The Development Agreement which was approved in February 2007, commits the City
of Dubuque to the sale of Urban Renewal bonds for the public parking ramp project for
the Port of Dubuque.
Baird and the Diamond Jo, LLC have a commitment from a buyer to purchase
$23,025,000 of bonds at 7.5%. Tom Gavin, of Baird, will be present at Monday's
meeting to finalize the required documents.
The bonds will be repaid from Tax Increment revenues based on a minimum
assessment of $57,890,649 on the Diamond Jo Casino project. The parent company,
Peninsula Gaming, LLC, also has provided a Guaranty as part of the Development
Agreement.
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 attached instructions from our bond attorney, Bill Noth of the Ahlers Law firm
includes the proceedings and the resolution required for this process.
RECOMMENDATION
I recommend that the City Council adopt the attached resolution authorizing the
execution and issuance of Urban Renewal Tax Increment Revenue Bonds, Taxable
Series 2007 associated with the construction of a public parking ramp in the Port of
Dubuque.
ACTION STEP
The action step for the City Council is to review the enclosures, and adopt the attached
resolution.
Attachment
F:\USERS\DHeiar\Diamond Jo\memo authorizing execution and issuance of agreements.doc
THE CITY OF
DuB E
Masterpiece on the Mississippi
MEMORANDUM
October 1, 2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Resolution authorizing the issuance of the Urban Renewal Tax
Increment Revenue Bonds
On page 25 of the Resolution authorizing the issuance of the Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007 there is a typo in subparagraph
(e). The amount of the proceeds of the Bonds to be deposited into the
Construction Account of the Project Fund should be $16,314,432.02 instead of
$17,000,432.02. The amount of the proceeds of the Bonds to be deposited in the
North Facade Account of the Project Fund of $686,000 was inadvertently
included in the original amount.
~'J
Micha I C. Van Milligen
MCVM/JML
(This Notice to be posted)
NOTICE AND CALL OF PUBLIC MEETING
Governmental Body: The City Council of Dubuque, Iowa.
Date of Meeting: O c t o b e r 1 , 2007.
Time of Meeting: 5:3 0 o'clock P .M.
Place of Meeting: Historic Federal Building, 350 West 6th Street,
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:
Urban Renewal Tax Increment Revenue Bonds, Taxable Series 2007.
Resolution authorizing the issuance.
Such additional matters as are set forth on the additional 9 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
October 2 ,2007
The City Council of Dubuque, Iowa, met in R e g u 1 a r session, in the Historic
Federal Building, 350 West 6th Street, Dubuque, Iowa, at 6 : 30 o'clock P.M., on the
above date. There were present Mayo r 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
Absent: None
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1.
Council Member Joyce C o n n o r s introduced the following
Resolution entitled "RESOLUTION AUTHORIZING AND PROVIDING FOR THE
ISSUANCE OF $23,025,000 URBAN RENEWAL TAX INCREMENT REVENUE
BONDS, TAXABLE SERIES 2007, OF THE CITY OF DUBUQUE, IOWA, AND
PROVIDING FOR THE SECURING OF SUCH BONDS FOR THE PURPOSE OF
CARRYING OUT AN URBAN RENEWAL PROJECT IN THE AREA OF THE CITY
OF DUBUQUE, IOWA DESIGNATED AS THE GREATER DOWNTOWN URBAN
RENEWAL DISTRICT", and moved its adoption. Council Member
Patricia Cli n e seconded the motion to adopt. The roll was called and the
vote was:
AYES: Kraig, Buol, Cline, Connors, Jones
Lynch, Michalski
NAYS:
None
Whereupon the Mayor declared the following Resolution duly adopted:
RESOLUTION 487-07
RESOLUTION AUTHORIZING AND PROVIDING FOR THE
ISSUANCE OF $23,025,000 URBAN RENEWAL TAX INCREMENT
REVENUE BONDS, TAXABLE SERIES 2007, OF THE CITY OF
DUBUQUE, IOWA, AND PROVIDING FOR THE SECURING OF
SUCH BONDS FOR THE PURPOSE OF CARRYING OUT AN URBAN
RENEWAL PROJECT IN THE AREA OF THE CITY OF DUBUQUE,
IOWA DESIGNATED AS THE GREATER DOWNTOWN URBAN
RENEWAL DISTRICT
WHEREAS, the City Council of the City of Dubuque, Iowa (the "City" or the
"Issuer") has heretofore, by Resolution No. 108-07 of this City Council approved on
February 20, 2007, adopted an Amended and Restated Urban Renewal Plan (the "Urban
Renewal Plan") under which plan there is to be carried out urban renewal project
activities in an area designated as the Greater Downtown Urban Renewal 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
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forth in Section 3 hereof, exceed the funds on hand which are available for such
purposes, and provisions must now be made by the City to provide for the payment of
such costs by the issuance of Bonds; and
WHEREAS, the City has heretofore adopted Ordinance No. 20-07, 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 "Greater Downtown Urban Renewal 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 $25,000,000 Urban Renewal Tax Increment Revenue Bonds 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 Bonds to the
amount of $23,025,000 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:
^ "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.
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0 "Bonds" or "Bond" shall mean the $23,025,000 Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007, authorized to be issued by this
Resolution.
^ "Capitalized Interest Account" shall mean the account by that name
within the Project Fund created in Section 14 of this Resolution.
^ "Cede & Co." shall mean Cede & Co., the nominee of DTC, and any
successor nominee of DTC with respect to the Bonds.
^ "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.
^ "Company" shall mean Diamond Jo, LLC, a Delaware limited
liability company.
^ "Construction Account" shall mean the account by that name within
the Project Fund created in Section 14 of this Resolution.
^ "Costs of Issuance Account" shall mean the account by that name
within the Project Fund created in Section 14 of this Resolution.
0 "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.
^ "Development" shall mean the construction by the Company of a
casino development of not less than 140,000 square feet of floor space, along with
necessary site work, on the Development Property at a cost of approximately
$45,000,000, in accordance with the terms of the Development Agreement.
^ "Development Agreement" shall mean the Amended and Restated
Port of Dubuque Public Parking Facility Development Agreement dated as of
October 1, 2007 between the City and the Company, as may be amended from
time to time.
0 "Development Property" shall mean that portion of the Project Area
being developed by the Company under the terms of the Development Agreement,
upon which the Company has covenanted to construct the Development, being
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legally described as Lot 1 of Adams Company's 1st Addition, Lot 3 of Adams
Company 2nd Addition, and Lots 1, 2, 3 and 4 of Adams Company 3rd Addition,
in Dubuque County, Iowa.
^ "Development Tax Increments" shall mean the Tax Increments
collected in respect of the Development Property and the Development
constructed thereon, and the other amounts payable by the Company under the
Minimum Assessment Agreement, which are pledged herein to the payment of the
principal of and interest on the Bonds.
^ "Diamond Jo TIF Account" means the separate account established
within the Greater Downtown Urban Renewal Tax Increment Revenue Fund of the
City, in which there shall be deposited all Tax Increments received by the City in
respect of the Development and the Development Property.
^ "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.
^ "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.
^ "Greater Downtown Urban Renewal 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.
^ "Guaranty" shall mean the Guaranty dated October 1, 2007 and
executed by the Parent in favor of the City, pursuant to which the Parent has
unconditionally and irrevocably guaranteed to the City the prompt and complete
payment of all real property taxes and assessments levied against the Development
Property and the Development when such payments are required to be made.
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^ "Issuer" and "City" shall mean the City of Dubuque, Iowa.
^ "Minimum Assessment Agreement" shall mean the Minimum
Assessment Agreement dated October 1, 2007 between the Issuer and the
Company, pursuant to which the Company has agreed not to object a minimum
assessed valuation for tax purpose of the Development Property and the
Development constructed thereon in an amount of $57,890,649 commencing
January 1, 2009, which will generate the Development Tax Increments pledged to
pay the principal of and interest on the Bonds.
^ "North Facade Account" shall mean the account by that name within
the Project Fund created in Section 14 of this Resolution.
^ "North Facade Alternate" shall mean the north facade alternate
included as part of the plans and specifications for the Parking Facility, as
described in the Development Agreement.
^ "Original Purchaser" shall mean Robert W. Baird & Co, as the
purchaser of the Bonds from Issuer at the time of their original issuance.
^ "Parent" shall mean Peninsula Gaming, LLC, a Delaware limited
liability company and awholly-owned subsidiary of Peninsula Gaming Partners,
LLC, a Delaware limited liability company. The Company is one of three wholly-
owned subsidiaries of the Parent.
^ "Parking Facility" shall mean the approximately 1,130 space multi-
level public parking ramp facility being constructed by the Issuer on property
adjacent to the Development Property, as described in the Development
Agreement.
D "Paying Agent" shall be the Wells Fargo Bank, National
Association, or such successor as maybe 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.
^ "Participants" shall mean those broker-dealers, banks and other
financial institutions for which DTC holds Bonds as securities depository.
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^ "Project Area" shall mean the Greater Downtown Urban Renewal
District of the Issuer, as amended from time to time.
0 "Project Fund" shall mean the fund established in Section 14 of this
Resolution for the deposit of the proceeds of the Bonds.
^ "Purchase Agreement" shall mean the Bond Purchase Agreement,
dated as of the date of this Resolution, between the City and the Original
Purchaser, relating to the purchase of the Bonds by the Original Purchaser at the
time of their issuance.
^ "Registrar" shall be the 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.
^ "Reserve Fund Requirement" shall mean $2,015,125.00.
^ "Tax Increments" means the property tax revenues divided and made
available to the City for deposit in the Greater Downtown Urban Renewal Tax
Increment Revenue Fund under the provisions of Section 403.19 of the Code and
the Ordinance.
^ "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 Bonds issued hereunder.
Section 2. Authority. The Bonds 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 and Approval of Purchase Agreement. There
are hereby authorized to be issued, negotiable, serial, fully registered Urban Renewal Tax
Increment Revenue Bonds, Taxable Series 2007, of the City of Dubuque, in the County
of Dubuque, State of Iowa, in the aggregate principal amount of $23,025,000, 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
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Amended and Restated Urban Renewal Plan for the Greater Downtown Urban Renewal
Project Area, including those costs associated with (i) the construction of a multi-level
public parking ramp facility (described herein as the "Parking Facility") in the Port of
Dubuque, pursuant to the Amended and Restated Port of Dubuque Public Parking
Facility Development Agreement dated October 1, 2007, as amended, between the City
of Dubuque, Iowa and Diamond Jo, LLC, (ii) the funding of a debt service reserve fund
and a capitalized interest fund for the Bonds, and (iii) the payment of costs associated
with the issuance of the Bonds.
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 the
City Attorney, may deem necessary or appropriate.
Section 4. Source of Pa~nent. As provided by Section 403.9 of the Code of
Iowa, the Bonds and interest thereon shall be payable from and secured solely and only
by amounts deposited and held from time to time in a special Diamond Jo TIF Account
hereby established within the Greater Downtown Urban Renewal Tax Increment Revenue
Fund of the City. The City hereby covenants and agrees to maintain the Ordinance in
force during the term of the Bonds, to collect the Development Tax Increments in
accordance with the Minimum Assessment Agreement, and to allocate the said
Development Tax Increments to the Diamond Jo TIF Account for the payment of the
principal of and interest on the Bonds. All of the said Development Tax Increments and
any other amounts collected under the Minimum Assessment Agreement and the
Guaranty shall be deposited in the Diamond Jo TIF Account and are hereby pledged to
the payment of the principal of and interest on the Bonds. The Bonds 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 Bonds 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 Bonds.
The Bonds 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 Bonds
issued hereunder or the security therefor, such Bonds 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.
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Section 5. Bond Details. (a) Urban Renewal Tax Increment Revenue Bonds of
the City in the amount of $23,025,000 shall be issued pursuant to the provisions of
Section 403.9 of the Code of Iowa for the aforesaid purpose. The Bonds shall be
designated "URBAN RENEWAL TAX INCREMENT REVENUE BONDS, TAXABLE
SERIES 2007", be dated as of the date of delivery, and bear interest from the date
thereof, until payment thereof, at the office of the Paying Agent, the interest thereon
being payable on June 1, 2008 and semiannually thereafter on the 1st 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:
Term Bond
Interest Principal Maturity
Rate Amount June 1st
7.50% $23,025,000 2037
(b) Optional Redemption. Bonds maturing after June 1, 2017 may be called for
redemption by the Issuer, with the consent of the Company, 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.
(c) Mandatory Redemption. The Bonds maturing as to principal on June 1, 2037
are Term Bonds, and shall be subject to mandatory redemption and payment at par and
accrued interest in the principal amounts in each of the years set forth as follows:
Bonds Maturing on June 1, 2037
Principal Amount of Date of Redemption
Mandatory Redemption June 1st
$ 285,000 2011
305,000 2012
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330,000 2013
355,000 2014
380,000 2015
410,000 2016
440,000 2017
475,000 2018
510,000 2019
550,000 2020
590,000 2021
635,000 2022
680,000 2023
730,000 2024
785,000 2025
845,000 2026
910,000 2027
975,000 2028
1,050,000 2029
1,130,000 2030
1,215,000 2031
1,305,000 2032
1,400,000 2033
1,505,000 2034
1,620,000 2035
1,740,000 2036
1,870,000 2037*
* Final Maturity
(d) General Redemption Provisions. Thirty days' notice of any optional or
extraordinary redemption shall be given by certified mail to the registered owner of the
Bonds. 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.
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Section 6. 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 shall be given to the Representation
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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 7. 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.
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All Bonds 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 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 Bonds, 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 Bonds, 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 Bonds, 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.
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(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 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 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.
Section 8. Reissuance of Mutilated Destroyed, Stolen or Lost Bonds. In case any
outstanding Bonds 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 Bonds so mutilated, destroyed, stolen or lost, in exchange and substitution for such
mutilated Bonds to Registrar, upon surrender of such mutilated Bonds, 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 Bonds have 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 Bonds, 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 of the month 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 Bonds
to the Paying Agent.
Section 10. 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
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the Original Purchaser. No Bonds 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 Bonds a Certificate of Authentication substantially in the form of the
Certificate herein set forth. Such Certificate upon any Bonds executed on behalf of the
Issuer shall be conclusive evidence that the Bonds so authenticated has been duly issued
under this Resolution and that the holder thereof is entitled to the benefits of this
Resolution.
Section 11. 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.
No Bonds shall be authenticated and delivered by the Registrar, unless and until
there shall have been provided the following:
X A certified copy of the resolution of Issuer authorizing the issuance of the Bonds.
X A written order of Issuer signed by the City Treasurer directing the authentication
and delivery of the Bonds to or upon the order of the Original Purchaser upon
payment of the purchase price as set forth therein.
X The opinion of Ahlers & Cooney, P.C., Bond Counsel, affirming the validity and
legality of all the Bonds proposed to be issued.
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Section 12. Form of Bonds. Bonds shall be printed in substantial compliance with
standards proposed by the American Standards Institute substantially in the form as
follows:
(6) (6)
(~) (g)
(1)
2 3)~ (4) 5
(9)
(9a)
(10)
(Continued on the back of this Bond)
(11)(12)(13) (14 (15
FIGURE I
(Front)
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(10) (16)
(Continued)
(Back)
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The text of the Bonds to be located thereon at the item numbers shown shall be as
follows:
Item 1, figure 1 = "STATE OF IOWA"
"COUNTY OF DUBUQUE"
"CITY OF DUBUQUE"
"URBAN RENEWAL TAX INCREMENT
REVENUE BONDS"
"TAXABLE SERIES 2007"
Item 2, figure 1 =Rate: 7.50%
Item 3, figure 1 =Maturity:
Item 4, figure 1 =Bond Date:
Item 5, figure 1 = Cusip No.:
Item 6, figure 1 = "Registered"
Item 7, figure 1 =Certificate No. R-1
Item 8, figure 1 =Principal Amount: $23,025,000
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, on the maturity date indicated above, to
Item 9A, figure 1 = (Registration panel to be completed by Registrar or Printer
with name of Registered Owner).
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 date shown above, only upon presentation and surrender hereof at the
office of Wells Fargo Bank, National Association, Paying Agent of this issue, or its
successor, with interest on the sum from the date hereof until paid at the rate per annum
specified above, payable on June 1, 2008, and semiannually thereafter on the 1st day of
June and December in each year.
Interest and principal shall be paid to the registered holder of the Bonds 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.
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THE ISSUER DOES NOT INTEND OR REPRESENT THAT THE INTEREST
ON THE BONDS 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 THE BONDS THEREFORE SHOULD TREAT THE INTEREST
THEREON AS BEING SUBJECT TO FEDERAL INCOME TAXATION.
This Bond 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 Greater
Downtown Urban Renewal Project Area, including those costs associated with (i) the
construction of a multi-level public parking ramp facility in the Amended and Restated
Port of Dubuque, pursuant to the Port of Dubuque Public Parking Facility Development
Agreement dated October 1, 2007, as amended, between the City of Dubuque, Iowa and
Diamond Jo, LLC (the "Company"), (ii) the funding of a debt service reserve fund and a
capitalized interest fund for the Bonds, and (iii) the payment of costs associated with the
issuance of the Bonds, in conformity to a Resolution of the Council of the City duly
passed and approved (the "Resolution").
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a limited purpose trust company ("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 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, 2017 may be called for redemption by the Issuer,
with the consent of the Company, 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.
Bonds maturing on June 1, 2037 are subject to mandatory redemption and
payment at par and accrued interest, in the principal amounts set forth in the Resolution
on June 1 on each of the years 2011 through 2037, inclusive.
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Thirty days' notice of any optional or extraordinary redemption shall be given by
certified mail to the registered owner of the Bonds. 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 the Bonds 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 the Bonds 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 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
384.83(5) of the Code of Iowa, subject to the provisions for registration and transfer
contained in the Bond Resolution.
The Bonds, as provided in the Resolution of which notice is hereby given and is
hereby made a part hereof, are 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 the Development constructed thereon, each as defined and
provided in said Resolution, which are located within the Greater Downtown Urban
Renewal District (the "Project Area") of the City of Dubuque, Iowa, as referred to and
authorized in subsection 2 of Section 403.19 of the Code of Iowa, as amended. The
receipt of such incremental taxes is secured by a Minimum Assessment Agreement
between the City and the Company, as owner of the aforementioned Development
Property, under which the Company has agreed to a minimum assessed value for the
Development Property and the Development constructed thereon which is sufficient in
amount to generate the incremental taxes necessary for the payments on the Bonds.
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 the Bonds as the same becomes due. The Bonds are 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
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liable by reason of the failure of the pledged incremental taxes 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 the Bonds, have been
existent, had, done and performed as required by law.
IN TESTIMONY WHEREOF, said City by its City Council has caused the Bonds
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, Wells Fargo Bank,
National Association, Des Moines, Iowa.
Item 11, figure 1 =Date of authentication:
Item 12, figure 1 =This is one of the Bonds described in the within mentioned
Resolution, as registered by the City Treasurer.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
Registrar
Item 13, figure 1 = Registrar and Transfer Agent: Wells Fargo Bank, National
Association
Paying Agent: Wells Fargo Bank, National Association
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
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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 Bonds
and does hereby irrevocably constitute and appoint attorney in fact to
transfer the said Bonds on the books kept for registration of the within Bonds, with full
power of substitution in the premises.
Dated:
(Person(s) executing this Assignment sign(s) here)
SIGNATURE )
GUARANTEED)
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)
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Transferee is a(n):
Individual
Partnership
Corporation
Trust
*If the Bonds 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 the
Bonds, 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)
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 Bonds shall be secured equally and ratably by the Development Tax Increments
collected and allocated to the Diamond Jo TIF Account without priority by reason of
number or time of sale or delivery; and the Development Tax Increments collected and
allocated to the Diamond Jo TIF Account are hereby irrevocably pledged to the timely
payment of both principal and interest as the same become due.
Section 14. Project Fund• Apylication of Bond Proceeds. There is hereby
established a Project Fund, and within such Project Fund, a Construction Account, a
Capitalized Interest Account, a North Facade Account, and a Costs of Issuance Account.
The balance of the proceeds (net of underwriter's discount) of the issuance and delivery
of the Bonds shall be credited or deposited and applied as follows:
(a) $75,042.77 of the proceeds of the Bonds shall be deposited in the Costs of
Issuance Account of the Project Fund and shall be disbursed to pay costs of issuance of
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the Bonds and the fees and expenses incurred by the City and the Company in connection
with the issuance of the Bonds.
(b) $3,674,150.21 of the proceeds of the Bonds shall be deposited in the
Capitalized Interest Account of the Project Fund. The Issuer shall, not less than five
business days prior to each interest payment date in the period prior to construction,
during construction and for up to 24 months after completion of construction, or until
June 1, 201 1, if earlier (the "Capitalized Interest Period"), transfer to the Sinking Fund
from the Capitalized Interest Account an amount sufficient to pay interest on the Bonds
on such interest payment date.
(c) $2,015,125.00 of the proceeds of the Bonds shall be deposited in the
Reserve Fund created under Section 16 hereof.
(d) $686,000.00 of the proceeds of the Bonds shall be deposited in the North
Facade Account of the Project Fund and may be disbursed, at the election of Issuer, to
pay for the costs of constructing the North Facade Alternate.
(e) $16,314,432.02 of the proceeds of the Bonds, representing the remaining
balance of said proceeds, shall be deposited in the Construction Account of the Project
Fund. Money on deposit in the Construction Account shall be paid out from time to time
by the Issuer in order to pay for the costs of constructing the Parking Facility.
Any amounts remaining in the Costs of Issuance Account on June 1, 2008 shall be
transferred to the Construction Account and the Costs of Issuance Account shall be
closed. Any amounts remaining in the Capitalized Interest Account after the Capitalized
Interest Period shall be transferred to the Construction Account, and the Capitalized
Interest Account shall be closed. All amounts remaining in the North Facade Account on
June 1, 2012 shall be transferred to the Redemption Account of the Sinking Fund, and the
North Facade Account shall be closed. When all of the eligible construction costs of the
Parking Facility have been paid, any remaining balance in the Project Fund shall be
transferred to the Redemption Account of the Sinking Fund and the Project Fund shall be
closed.
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 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. All
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income derived from the investment of amounts held in Project Fund shall be retained in
the applicable account of the Project Fund and applied to the specific purposes thereof.
Section 15. Tax Levy. 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 Greater Downtown Urban Renewal District Tax Increment Revenue Fund
and the portion of taxes to be paid into the Diamond Jo 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. The Minimum Assessment Agreement shall be recorded in the office of
the County Recorder of Dubuque County, as provided in Section 403.6 of the Code of
Iowa, as amended.
It is hereby certified that the annual amount of Tax Increments to be collected in
respect of the Development Property and the Development 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 Bonds, as follows:
Amount of Principal Fiscal Year (July 1 to June 30)
and Interest Year of Collection
$2,011,875 2010/2011
2,010,500 2011 /2012
2,012,625 2012/2013
2,012,875 2013/2014
2,011,250 2014/2015
2,012,750 2015/2016
2,012,000 2016/2017
2,014,000 2017/2018
2,013,375 2018/2019
2,015,125 2019/2020
2,013,875 2020/2021
2,014,625 2021/2022
2,012,000 2022/2023
2,011,000 2023/2024
2,011,250 2024/2025
2,012,375 2025/2026
2,014,000 2026/2027
2,010,750 2027/2028
2,012,625 2028/2029
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2,013,875 2029/2030
2,014,125 2030/2031
2,013,000 2031/2032
2,010,125 2032/2033
2,010,125 2033/2034
2,012,250 2034/2035
2,010,750 2035/2036
2,010,250 2036/2037
Section 16. Application of Revenues. From and after the delivery of the Bonds,
and as long as the Bonds shall be outstanding and unpaid either as to principal or as to
interest, or until the Bonds shall have been discharged and satisfied in the manner
provided in this Resolution, the Development Tax Increments collected in respect of the
Development Property and the Development located thereon shall be deposited as
collected in the Diamond Jo TIF Account and shall be disbursed only as follows:
(a) Sinking_Fund. There is hereby established and shall be maintained a
special fund within the Diamond Jo TIF Account from which interest and principal
on the Bonds will be paid. The fund shall be known as the Diamond Jo Bond
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 Bonds 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. All income derived from the investment of amounts held in the
Sinking Fund and the Reserve Fund shall be deposited into the Sinking Fund.
Money in the Sinking Fund shall be used solely for the purpose of paying principal
of and interest on the Bonds, as the same shall become due and payable, or in the
case of amounts held in the Redemption Account, upon the optional or
extraordinary redemption of the Bonds.
(b) Reserve Fund. Money in the Revenue Fund shall next be disbursed to
maintain a debt service reserve in an amount equal to the Reserve Fund
Requirement. Such fund shall be known as the Diamond Jo Debt Service Reserve
Fund (the "Reserve Fund"). In each month there shall be deposited in the Reserve
Fund an amount equal to 25 percent of the amount required by this Resolution to
be deposited in such month in the Sinking Fund; provided, however, that when the
amount on deposit in the Reserve Fund shall be not less than the Reserve Fund
Requirement, no further deposits shall be made into the Reserve Fund except to
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maintain such level, and when the amount on deposit in the Reserve Fund is
greater than the balance required above, such additional amounts shall be
withdrawn and paid into the Sinking Fund. Money in the Reserve Fund shall be
used solely for the purpose of paying principal at maturity of or interest on the
Bonds for the payment of which insufficient money shall be available in the
Sinking Fund. Whenever it shall become necessary to so use money in the
Reserve Fund, the payments required above shall be continued or resumed until it
shall have been restored to the required minimum amount.
(c) Surplus Revenue. All revenues thereafter remaining in the Diamond Jo
TIF Account shall be deposited in a surplus revenue fund known as the Surplus
Fund (the "Surplus Fund"). All amounts on deposit in the Surplus Fund may be
used (i) to remedy any deficiency in any of the funds created by this Resolution, or
(ii) 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
Company, as permitted by law, or (iii) to pay or redeem the Bonds or (iv) for any
other lawful purpose. All income derived from the investment of amounts held in
the Surplus Fund shall be retained in the Surplus Fund and regarded as revenues
thereof.
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 maybe 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 "A" or better or, in the
case of short-term obligations, a rating of MIG-1, S&P-1 or better, or other lawful
investments as may be authorized under the City's investment policy. 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 and Reserve
Fund each 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.
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Section 17. General Covenants. The Issuer hereby covenants and agrees with
each and every holder of the Bonds:
(a) The Issuer will maintain the Urban Renewal Plan and the Ordinance in
force and will cause the incremental taxes from the Development Property and the
Development 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 Bonds 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) The Issuer will punctually pay or cause to be paid from the Sinking
Fund, Reserve Fund or the Surplus Fund the principal of and interest on the Bonds
in strict conformity with the terms of the Bonds and this Resolution, and it will
faithfully observe and perform all of the conditions, covenants and requirements
thereof and hereof.
(c) The Issuer will pay and discharge, or cause to be paid and discharged,
from the Sinking Fund, Reserve Fund or the Surplus Fund, any and all lawful
claims which, if unpaid, might become a lien or a charge upon the Development
Tax Increments, or any part thereof, or which might impair the security of the
Bonds. Nothing herein contained shall require the Issuer to make any such
payments so long as the Issuer in good faith shall contest the validity of said
claims.
(d) The Issuer will keep, or cause to be kept, proper books of record and
accounts, separate from all other records and accounts of the Issuer, in which
complete and correct entries shall be made of all transactions relating to the
Development Tax Increments. Such books of record and accounts shall at all
times during business hours be subject to inspection by the holders of not less than
10% of the principal amount of the Bonds then outstanding, or their
representatives authorized in writing.
(e) The Issuer will prepare or cause the preparation of within 180 days
after the close of each Fiscal Year of the Issuer so long as any of the Bonds remain
outstanding, complete financial statements with respect to the preceding Fiscal
Year showing the Development Tax Increments received, and all disbursements
from the funds and accounts created by this Resolution, including the balances in
all funds and accounts relating to the Bonds as of the end of such Fiscal Year,
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which statements shall be accompanied by a certificate or written opinion of an
independent certified public accountant. The Issuer shall furnish a copy of such
statements to any Bondholder upon written request thereof.
(f) The Issuer will preserve and protect the security of the Bonds and the
rights of the holders of the Bonds, and will warrant and defend their rights against
all claims and demands of all persons. From and after the sale and delivery of the
Bonds by the Issuer, the Bonds shall be incontestable by the Issuer.
(g) The Issuer will adopt, make, execute and deliver any and all such
further resolutions, instruments and assurance as may be reasonably necessary to
carry out the intention of, or to facilitate the performance of, this Resolution, and
for the better assuring and confirming unto the holders of the Bonds the rights and
benefits provided in this Resolution.
(h) As long as any portion of the Bonds remain outstanding, the Issuer will
continue to deposit and apply the Development Tax Increments as provided
herein. The Issuer covenants and agrees with the holders of the Bonds so long as
any portion of the Bonds remain outstanding, the Issuer will take no action or fail
to take any action which in any way would adversely effect the ability of the
Issuer to allocate or collect the Development Tax Increments. The Issuer and its
officers will comply with all present and future applicable laws in order to assure
that the Development Tax Increments may be collected and deposited into the
Diamond Jo TIF Account for the credit of the respective funds and accounts
thereof, as provided herein.
(i) 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.
(j) 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 Bonds.
Section 18. 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 execute and deliver the same at
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issuance of the 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 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 Bonds (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 19. Prior Lien and Parity Bonds. 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 Diamond Jo TIF Account having priority over the Bonds.
Additional Bonds may be issued on a parity and equality of rank with the Bonds
with respect to the lien and claim of such additional obligations to the revenues of the
Diamond Jo TIF Account and the money on deposit in the funds created in this
Resolution, for the purpose of refunding any of the Bonds, and for no other purpose, if (i)
the Company shall have consented in writing to the issuance of said refunding Bonds and
(ii) the Issuer shall have obtained a report from an independent auditor or financial
advisor demonstrating that the refunding will reduce the total debt service payments on
the Bonds being refunded on a present value basis or, as an alternative to, and in lieu
thereof, the Bonds are being refunded under arrangements which immediately result in
making provisions for the payment of the refunded Bonds.
Notwithstanding anything in this Section to the contrary, 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 or other holders of the Bonds, on such terms as the Issuer determines to be
appropriate, in its sole discretion.
Section 20. Discharge and Satisfaction of Bonds. The covenants, liens and
pledges entered into, created or imposed pursuant to this Resolution may be fully
discharged and satisfied with respect to the Bonds in any one or more of the following
ways:
(a) By paying the Bonds 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
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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 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.
Section 21. 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; or
(c) A default shall be made by the Issuer or the Company in the performance or
observance of any other of the covenants, agreements or conditions on their
part in this Resolution or in the Bonds contained, or in the Minimum
Assessment Agreement, and such default shall have continued for a period
of 30 day after written notice specifying such default and requiring that it
shall have been remedied is given to the Issuer, the Company and to the
Paying Agent 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 30 days 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
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determined by a court of final and competent jurisdiction as not correctable
as a matter of law.
Section 22. Remedies. In the event that an Event of Default described in Section
21 shall occur and be continuing, the holders of a majority in principal amount of the
outstanding Bonds shall have the right to appoint a trustee with the power and
responsibility to take possession of the funds and accounts of the Issuer created under this
Resolution, to collect the Development Tax Increments, and to take such other actions as
said trustee may deem necessary to comply with this Resolution or the Minimum
Assessment Agreement, and to assure that the Development Tax Increments will be
collected in amounts sufficient to pay all principal of and interest on the Bonds. The
right of the holders of the Bonds to require the appointment of such a trustee shall not be
exclusive, and upon the occurrence of an Event of Default as herein outlined, such
holders shall have the right to proceed at law or in equity, in any form of action which
shall to them seem appropriate. 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 a majority 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 collection
and proper segregation of the Development Tax Increments 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 23. 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 the next
succeeding Sections, until such time as all of the Bonds, and interest due thereon, shall
have been satisfied and discharged as provided in this Resolution.
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Section 24. Amendment of Resolution Without Consent. The Issuer may, without
the consent of or notice to any of the holders of the Bonds, amend or supplement 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 application 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 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;
(c) 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; or
(d) to subject to the lien and pledge of this Resolution additional pledged
revenues as may be permitted by law.
Section 25. Amendment of Resolution Requiring Consent. 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 Bonds at any time
outstanding; 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.
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 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
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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 the 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
amendatory Resolution described in the 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 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.
Section 26. 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 27. 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.
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Passed and approved this
1st day of October , 2007.
Roy D. Buol
Mayor
ATTEST:
Jeanne F. Schneider
City Clerk
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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.
WITNESS my hand and the seal of said Municipality hereto affixed this 1st
day of October, 2007.
Jeanne F. Schneider
City Clerk, Dubuque, Iowa
SEAL
DCORNELU 533221.1 /MSWord\10422078