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HomeMy WebLinkAbout1989-05-23-Special MinutesI l1ay 9,1939---cont 67 a flea market in conjunction with Fun Days at the City Park. 5 to G.Carried Moved by Gruber,second by Scott,to approve expenditure of 83000.00 for fireworks from Rich Bros.Carried 5 toO. Gary Nail was not present to represent the Co-op on minimum charge for t::lei:rbulk water meter.No action was taken. Al Munsterman reported on the 12"water extension.He will be drawing up plans and specs for this project. Al liunsterman reported on a change order to extend time for the 500M water tower painting. Moved by Gruber,second by Brown,to extend time to Maquire Iron for painting 50011 water t owe r .to September,1989.Carried 5 to O. Al l1unsterman v7ill give estimate on the 1989 Street Project in J1ll1e. Moved by Hoifeldt,second by Barrett,to authorize the '1avor and Clerk to enter into agreement with ICAP for Inter-governmental contract. Carried 5 to O. The City Council directed Brian Redshaw to work with the city attorney and city en3ineer in working up warranty deeds for a pranosen 5th St.land transfer which would show 5th St.angling in a northeast direction between Ashworth Dr.and Haple St.rather than a straight northerly direction as the plat shows. A discussion was held on the Job Service appeal for Jon Anfinson. The Council decided not to pursue this issue any further. No action was taken on the co-op advertising signs for Nary Ann Esates,gas company and theCi~T. l10ved by Brown,secorid by Scott,to approve the expenditure of $960.53 for DRS barricade at the trailer court.Carried 5 to O. l10ved by Gruber,second by Scott,to purchase chemicals for dandelion spraying at the park.Carried 5 toO.Signs to be postell after spraying. The proposal from Ditch Witch on a trencher was deferred until June. There was no Public Safety or Utilities Committee report. Frank Hoifeldt gave the Parks COI!lI!litteereport. Brian Redshaw gave the Administrator's report. drainage problems on Northview from 4th to 6th. consensus not to get involved. He reportee!on the It was the C01ll1cil's Moved by Barrett,second by Brown,to adjourn at 11:02 p.m.Carried 5 to O. Meeting adjourned. After due consideration and discussion,C01ll1cil11ember duced the following resolution and moved its adoption, Brown intro- seconded by 68 May 23,1989---cont Council l1ember Barrett.The Mayor put the question upon the adoption of said resolution,and the roll bein~called,the following Council Members voted: Ayes: Nays: Scott,Gruber,Brown,Iloifeldt,Barrett None recorded 1;ilhereupon,the Mayor declared.the resolution duly adopted as here- inafter set out. lOSRESOLUTIONNO. Approving and authorizing a Loan Agreement and providing for the issuance of $310,000 General Obligation Sewer Improvement Notes andprovidingforthelevyoftaxestopaythesame WHEREAS,pursuant to the provisions of Section 384.24A of the Code of Iowa,the City of Waukee,Iowa (the "City"),has heretofore proposed to contract indebtedness and enter into a loan agreement in the principal amount of $310,000 to prOVide funds to pay the cost,to that extent,of constructing works and facilities useful for the collection, treatment and disposal of sewage and industrial wastes in a sanitary manner,including the refunding of outstanding Warrants previously issued by the City to pay costs in connection therewith,and has published notice of the proposed action and has held a hearing thereon; NOW,THEREFORE,Be It Resolved by the City Council of the City ofWaukee,Iowa,as follows: Section 1.The City hereby determines to enter into a loan agreement (the "Loan Agreement")with R.G.Dickinson &Co.,Des Moines,Iowa,as lender (the "Lender"),in SUbstantially the form attached hereto providing for a loan to the City in the principal amount of $310,000 at ~discount of $6,200,for the purpose set forthinthepreamblehereof. The Mayor and Clerk are hereby authorized and directed to sign the Loan Agreement on behalf of the City,and the Loan Agreement is herebyapproved. Section 2.General Obligation Sewer Improvement Notes (the "Notes")are hereby authorized to be issued in evidence of the obligation of the City under the Loan Agreement,in the total aggregateprincipalamountof$310,000,to be dated June 1,1989,in the denomination of $5,000 each,or any integral multiple thereof,maturing on June 1 in each of the years,in the respective principal amounts andbearinginterestattherespectiverates,as follows: Interest Rate Per Annum Principal Year Amount Interest Rate Per Annum Principal AmountYear 1991 1992 1993 1994 1995 1996 $15,000 $20,000 $25,000 $25,000 $25,000 $30,000 7% 7% 7% 7% 7% 7% 1997 1998 1999 2000 2001 $30,000 $30,000 $35,000 $35,000 $40,000 7.10% 7.15% 7.25% 7.25% 7.25% Bankers Trust Company,Des Moines,Iowa,is hereby designated as the Registrar and paying Agent for the Notes and may be hereinafter referred to as the "Registrar"or the "Paying Agent". I I I II 69Hay23,1939---cont The City reserves the right to prepay part or all of the Notes maturing in each of the years 1997 to 2001,inclusive,prior to and in inverse order of maturity on June 1,1996,or on any interest payment date thereafter upon terms of par and accrued interest.If less than all of the Notes of any like maturity are to be redeemed,the particular part of those Notes to be redeemed shall be selected by the Registrar by lot.The Notes may be called in part in one or more units of $5,000.If less than the entire principal amount of any Note in a denomination of more than $5,000 is to be redeemed,the Registrar will issue and deliver to the registered owner thereof,upon surrender of such original Note,a new Note or Notes,in any authorized denomination,in a total aggregate principal amount equal to the unredeemed balance of the original Note.Notice of such redemption as aforesaid identifying the Note or Notes (or portion thereof)to be redeemed shall be mailed by certified mail to the registered owners thereof at the addresses shown on the City's registration books not less than 30 nor more than 45 days prior to such redemption date.All of such Notes as to which the City reserves and exercises the right of redemption and as to which notice as aforesaid shall have been given and for the redemption of which funds are duly provided,shall cease to bear interest on the redemption date. All of the interest on the Notes shall be payable December 1, 1989,and semiannually thereafter on the first day of June and December in each year.Payment of interest on the Notes shall be made to the registered owners appearing on the registration books of the City at the close of business on the fifteenth day of the month next preceding the interest payment date and shall be paid by check or draft mailed to the registered owners at the addresses shown on such registration books.Principal of the Notes shall be payable in lawful money of the United states of America to the registered owners or their legal representatives upon presentation and surrender of the Note or Notes attheofficeofthepayingAgent. The Notes shall be executed on behalf of the City with the official manual or facsimile signature of the Mayor and attested by the official manual or facsimile signature of the City Clerk and shall have the City's seal impressed or printed thereon,and shall be fully registered Notes without interest coupons.In case any officer whose signature or the facsimile of whose signature appears on the Notes shall cease to be such officer before the delivery of the Notes,such signature or such facsimile signature shall nevertheless be valid and sufficient for all purposes,the same as if such officer had remainedinofficeuntildelivery. The Notes shall .not be valid or become obligatory for any purpose until the Certificate of Authentication thereon shall have been signedbytheRegistrar. The Notes shall be fully registered as to principal and interest in the names of the owners on the registration books of the City kept by the Registrar,and after such registration,payment of the principal ther,eof and inter.est thereon shall be made only to the registered owners or their legal representatives or assigns.Each Note shall be transferable without cost to the registered owner thereof only upon the registration books of the City upon presentation to the Registrar togethe:with either a w:itten instrument of transfer satisfactory to'the Reglstrar or the asslgnment form thereon completed and d 1 executed,by the registered owner or the duly authorized atto~n~y fosuchreglsteredowner.r The record and identity of the owners of the Notes shallconfidentialasprovidedbySection22.7 of the Code of Iowa.be kept S7c~ion 3.The Notes shall be in substantially the form set forthasExhl?lt A to the Loan Agreement attached hereto and shall b exe~~ted as herein prOVided as soon after the adoption of this e reso1uti0r:-as may be,and thereupon delivered to the Registrar for registrab.on and deLf.very to the Lender,upon receipt of the 10 proceeds,';l-ndall action heretofore taken in connection with th:nLoan Agreement lS hereby ratified and confirmed in all respects. 70 May 23,1989---cont Section 4.~or the purpose of providing for the levy and collection of a d~rect annual tax sufficient to pay ·the principal of .and interes~on the Notes as the same become due,there is hereby ordered ~ev~ed on all the taxable property in the City in each of the years wh~le t~e Notes are outstanding,a tax sufficient for that purpose,and ~n furtherance of this provision,but not in limitation thereof,t~ere ~s hereby levied on all the taxable property in the City t~e follow~ng d~rect annual tax for collection in each of the followingf~scal years,to-wit: For collection in the fiscal year beginning July 1,1990,sufficient to produce the net annual sum of $59,100; For collection in the fiscal year beginning July 1,1991,sufficient to produce the net annual sum of $41,000; For collection in the fiscal year beginning July 1,1992,sufficient to produce the net annual sum of $44,600; For collection in the fiscal year beginning July 1,1993,sufficient to produce the net annual sum of $42,850; For collection in the fiscal year beginning July 1,1994,sufficient to produce the net annual sum of $41,100; For collection in the fiscal year beginning July 1,1995,sufficient to produce the net annual sum of $44,350; For collection in the fiscal year beginning July 1,1996,sufficient to produce the net annual sum of $42,250; For collection in the fiscal year beginning July 1,1997,sufficient to produce the net annual sum of $40,120; For collection in the fiscal year beginning July 1,1998, sufficient to produce the net annual sum of $42,975; For collection in the fiscal year beginning July 1,1999, sufficient to produce the net annual sum of $40,438; For collection in the fiscal year beginning July 1,2000, sufficient to produce the net annual sum of $42,900. Section 5.A certified copy of this resolution shall be filed with the County Auditor of Dallas County,and said Auditor shall be and is hereby instructed to enter for collection and assess the tax hereby authorized.When annually entering such taxes for collection, the County Auditor shall include the same as a part of the tax levy for debt service fund purposes of the City and when collected,the proceeds of the taxes shall be converted into the debt service fund of the City and set aside therein as a special account to be used solely and only for th~payment of the principal of and interest on the Notes hereby authorized and for no other purpose whatsoever.Any amount received by the City as accrued interest on the Notes shall be deposited into such special account and used to pay interest due on the Notes on the first interest payment date. Section 6.The interest or principal and both of them falling due in any year or years shall,if necessary,be paid promptly from current funds on hand in advance of taxes levied and when the taxes shall have been collected,reimbursement shall be made to such current funds in the sum thus advanced. Section 7.It is the intention of the City that interest on the Notes be and remain excluded from gross income for federal income tax purposes pursuant to the appropriate provisions of the Internal Revenue Code of 1986,as amended,and the Treasury Regulations in effect with respect thereto (all of the foregoing herein referred to as the "Internal Revenue Code").In furtherance thereof the City covenants to comply with the provisions of the Internal Revenue Code as they may from time to time be in effect or amended and further covenants to comply with applicable future laws,regulations,published rulings and court decisions as may be necessary to insure that the interest on the Notes will remain excluded from qross income for federal income tax I Hay 23,19S9---cont 71 purposes.Any and all of the officers of the City are hereby ..authorized and directed to take any and all actions as may be necessarytocomplywiththecovenantshereincontained. The City hereby designates the Notes as "Qualified Tax Exempt Obligations"as that term is used in Section 265(b)(3)(B)of theInternalRevenueCode. Section 8. herewith be and conflict. All resolutions or parts thereof in conflict the same are hereby repealed to the extent of such Passed and approved this 23rd day of May,1989. This being the time and place specified for taking action on the proposal to enter into a loan agreement,t~e Clerk announced that no written objections had been placed on flle.\fuereupon,the Hayor called for any written or oral objections,and there were none. After due consideration and discussion,Council'11ember Eoifeldt introduced the following resolution and moved its adontion,seconded by Council Member Bro,vn•.The Mayor put the ~uestion upon the adoption of said resolutlon,and the roll belng called,the following Council Hembers voted: Ayes: Nays: Barrett,Brown,Gruber,Hoifeldt,Scott None recorded \fuereupon,the Hayor declared the resolution duly adopted as here- inafter set out. RESOLUTION NO.)0 Lo Approving and authorizing a Loan Agreement and providing for the issuance and securing the payment of $400,000 Sewer Revenue Notes WHEREAS,the City of Waukee,in the County of Dallas,state of Iowa (hereinafter referred to as the "City"),did heretofore establish a Municipal Sanitary Sewer System in and for the City (hereinafter referred to as the "utility")which has continuously supplied sanitary sewer service in and to the City and its inhabitants since its establishment;and WHEREAS,the management and control of the utility are vested in the Council,and no board of trustees exists for this purpose;and WHEREAS,the City has heretofore proposed to contract indebtedness and enter into a loan agreement in the principal amount of $400,000 (.the "Loan Agreement")to provide funds to pay a portion of the cost of constructing improvements and extensions to the utility,(the "Project"),including the refunding of outstanding Warrants previously issued by the City to pay costs in connection therewith,and has published notice of the proposed action and has held a hearing thereon; NOW,THEREFORE,Be It Resolved by the City Council of the City of Waukee,Iowa,as follows: Section 1.It is hereby determined that the City shall enter into the Loan Agreement with R.G.Dickinson &Co.,Des Moines,Iowa,as lender (the "Lender")in substantially the form attached hereto providing for a loan to the City in the amount of $400,000,at a discount of $8,000,for the purpose as set forth in the preamble hereof,and to fund necessary reserves. The Mayor and City Clerk are authorized and directed to sign the Loan Agreement on behalf of the City,and the Loan Agreement is hereby approved. Interest InterestPrincipalRatePerPrincipalRatePerYearAmountAnnumYearAmountAnnum 1990 $10,000 7.10%1998 $25,000 7.25% 1991 $15,000 7.10%1999 $25,000 7.35%1992 $15,000 7.10%2000 $30,000 7.45%I1993$15,000 7.10%2001 $30,000 7.55%1994 $20,000 7.10%2002 $35,000 7.65% 1995 $20,000 7.10%2003 $35,000 7.75%1996 $20,000 7.10%2004 $40,000 7.85%1997 $25,000 7.15%2005 $40,000 7.90% 72 11ay 23,1989--cont Section 2.Sewer Revenue Notes (the "Notes")are hereby authorized to be issued in evidence of the obligation of the City under the Loan Agreement,in the total aggregate principal amount of ,$400,000,to be dated June 1,1989,in the denomination of $5,000 each, or any integral multiple thereof,maturing on June 1 in each of the years,in the respective principal amounts and bearing interest at therespectiverates,as follows: Bankers Trust Company,Des Moines,Iowa,is hereby designated as the Registrar and Paying Agent for the Notes and may be hereinafter referred to as the "Registrar"or the "paying Agent". The City reserves the right to prepay part or all of the Notes maturing in each of the years 1999 to 2005,inclusive,prior to and in inverse order of maturity on June 1,1998,or on any interest payment date thereafter upon terms of par and accrued interest.If less than all of the Notes of any like maturity are to be redeemed,the particular part of those Notes to be redeemed shall be selected by the Registrar by lot.The Notes may be called in part in one or more units of $5,000.If less than the entire principal amount of any Note in a denomination of more than $5,000 is to be redeemed,the Registrar will issue and deliver to the registered owner thereof,upon surrender of such original Note,a new Note or,Notes,in any authorized denomination,in a total aggregate principal amount equal to the unredeemed balance of the original Note.Notice of such redemption as aforesaid identifying the Note or Notes (or portion thereof)to be redeemed shall be mailed by certified mail to the registered owners thereof at the addresses shown on the City's registration books not less than 30 nor more than 45 days prior to such redemption date.All of such Notes as to which the City reserves and exercises the right of redemption and as to which notice as aforesaid shall have been given and for the redemption of which funds are duly provided,shall cease tobearinterestontheredemptiondate. All of the interest on the Notes shall be payable December 1, 1989,and semiannually thereafter on the first day of June and December in each year.payment of interest on the Notes shall be made to the ' registered owners appearing on the registration books of the City at the close of business on the fifteenth day of the month next preceding the interest payment date and shall be paid by check or draft mailed to I'the registered owners at the addresses shown on such registration books.Principal of the Notes shall be payable in lawful money of the ",'United states of America to the registered owners or their legal i' representatives upon presentation and surrender of the Note or Notes at.the office of the paying Agent. The Notes shall be executed on behalf of the City with the official manual or facsimile signature of the Mayor and attested by the official manual or facsimile signature of the City Clerk and shall have the City's seal impressed or printed thereon,and shall be fully registered Notes without interest coupons.The issuance of the Notes shall be recorded in the office of the City Treasurer,and the certificate on the back of each Note shall be executed with the official manual or facsimile signature of the City Treasurer.In case any officer whose signature or the facsimile of whose signature appears on the Notes shall cease to be such officer before the delivery of such Notes,such signature or such facsimile signature s~all nevert~eless be valid and sufficient for all purposes,the same as ~f such off~cer had remained in office until delivery. I ,.,~,,~:'\"989---eoTlt 73 The Notes shall not be valid or become obligatory for any purpose until the Certificate of Authentication thereon shall have been signed by the Registrar. All of the Notes and the interest thereon,together with any additional obligations as may be hereafter issued and outstanding from time to time ranking on a parity therewith under the conditions set forth herein (which additional obligations are hereinafter sometimes referred to as "Parity Obligations"),shall be payable solely from the Sinking Fund hereinafter referred to and shall be a valid claim of the owners thereof only against 'said fund.None of the Notes shall be a general obligation of the City,nor payable in any manner by taxation, and under no circumstances shall the City be in any manner liable by reason of the failure of the Net Revenues of the Utility to be sufficient for the payment in whole or in part of the Notes and the interest thereon;but the Notes and any parity Obligations shall be payable both as to principal and interest solely and only from the future Net Revenues of the Utility pledged therefor as hereinafter provided. The Notes shall be fully registered as to principal and interest in the names of the owners on the registration books of the City kept by the Registrar,and after such registration,payment of the principal and interest thereof shall be made only to the registered owners,their legal representatives or assigns.Each Note shall be transferable without cost to the registered owner thereof only upon the registration books of the City upon presentation to the Registrar, together with either a written instrument of transfer satisfactory to the Registrar or the assignment form thereon completed and duly executed by the registered owner or the duly authorized attorney for such registered owner. The record and identity of the owners of the Notes shall be kept confidential as provided by Section 22.7 of the Code of Iowa. Section 3.The Notes shall be in substantially the form set forth as Exhibit A to the Loan Agreement attached hereto and shall be executed as herein provided as soon after the adoption of this resolution as may be possible and thereupon they shall be delivered to the Registrar for registration,authentication and delivery to the Lender,upon receipt of the loan proceeds,and all action heretofore take~in c~nnection with the Loan Agreement is hereby ratified and conflrmed In all respects.The loan proceeds,exclusive of any accrued intere~t,shall be used to pay costs of the Project,including the refundlng of the warrants,and any unexpended balance of the loan proceeds,remaining thereafter plus any amount received by the City as accrued lnterest shall be converted into the Sinking Fund hereinafter created and used to pay interest on the Notes on the first interestpaymentdate. Section,4.So lo~g as any of the Notes or any Parity Obligations are outst~n~lng,the Clty ~h~ll continue to maintain the utility in goo~~ondltlon,and the utlllty shall continue to be operated in an efflclen~manner an~at a reasonable cost as a revenue producing undertaklng:The Clty shall establish,impose,adjust and provide for the collectlon of rates to be charged to customers of the utility including the City,to produce gross revenues (hereinafter someti~es referred to as the "Gross Revenues")at least sufficient to pay the 7xpenses of o~eration and maintenance of the Utility,which shall lnclu~e sa~arles,wages,cost of maintenance and operation,materials, suppll7s,lnsuranc7 and all,other items normally included under recognlzed accountlng practlces (but does not include allowances for depreciation in the valuation of physical property)(which such expenses are hereinafter sometimes referred to as the "Operating Expenses")and to leave a balance of net revenues (herein referred to as the "Net Revenues")equal to at least 125 per cent of the average annual payments of principal of and interest on all of the Notes and any other Parity Obligations outstanding from time to time -nd sU~fi~ient to ~aintain a reasonable reserve for the payment ~fsuchprlnclpalandlnterest,as hereinafter provided. 74 ~·iay 23,1989--cont Section 5.From and after the issuance of the Notes,the Grc Revenues of the utility shall be set aside into a sepa:ate and spe fund which is hereby established,to be known and here1nafter refe to as the "Sewer Revenue Fund".The Sewer Revenue Fund shall be u in maintaining and operating the utility,and after payment of the Operating Expenses shall,to the extent hereinafter provided,,be u! to pay the principal of and interest on the Notes and any Par1ty Obligations,and to create and maintain the several separate funds hereinafter established. Section 6.There shall be and there is herebY"created,and th shall be maintained an account to be known as the Sewer Revenue. Sinking Fund"(herein referred to as the "Sinking Fund"),into wh:;-cl there shall be set aside from the future Net Revenues of the uti11ty such portion thereof as will be sufficient to pay t~e ~nterest upon rincipal of the Notes as the same become due,and 1t 1S hereby , Eetermined that the minimum amount to be so set aside into the Sink1i I Fund from the Net Revenues during each month of each year shall be rn '_-less than as follows: Beginning June 1,1989,and continuing thereafter,a sum equal to One-twelfth (1/12)of the principal of all of the Notes maturing on the June 1 next succeeding,plus a sum equal to One-sixth (1/6)of the interest becoming due on the next succeeding interest payment date on all of theoutstandingNotes; provided,however,that no further payments need be made into the Sinking Fund when and so long as the amount therein is sufficient to retire the Notes and any Parity Obligations then outstanding which are payable from the Sinking Fund and to pay all interest to become due thereon prior to such retirement,or if provision for such payment hasbeenmade. Whenever Parity Obligations are issued under the conditions and restrictions hereinafter set forth,provisions shall be made for additional payments to be made into the Sinking Fund for the purpose of paying the interest on and principal of such Parity Obligations. Such payments into the Sinking Fund shall be made in equal monthly installments on the first day of each month,except that when the first day of any month shall be a Sunday or legal holiday,then such payments shall be made on the next succeeding secular day.The Sinking Fund and that portion of the Net Revenues contained therein shall be used solely and only and are hereby pledged for the purpose of paying the interestonandtheprincipaloftheNotesandParityObligations. If at any time there be a failure to pay into the Sinking Fund the full amount above stipulated,then an amount equivalent to the deficiency shall be paid into the Sinking Fund from the Net Revenues of the utility as soon as available,and the same shall be in addition to the amount otherwise required to be so set apart and paid into theSinkingFund. Section 7.There shall be and there is hereby created a special fund to be known and designated as the Principal and Interest Reserve Account (hereinafter referred to as the "Reserve Account")into which there shall be set apart and paid from the loan proceeds at the time of the delivery of the Notes a sum equal to $37,000 (the "Required Reserve Account Balance").Whenever the sum on deposit in the Reserve Account has been reduced to less than the Required Reserve Account Balance by the expenditure of all or a portion of the funds on deposit in said Account for any of the purposes specified herein,there shall be deposited into such Reserve Account the remaining Net Revenues after first making the required deposits into the Sinking Fund,until the sum on deposit in the Reserve Account has been restored to the Required Reserve Account Balance.All moneys credited to the Reserve Account shall be used and are hereby pledged for the payment of the principal of and interest on the Notes and Parity Obligations whenever for any reason the funds on deposit in the Sinking Fund are insufficient to pay such principal and interest when due.If and to whatever extent Parity Obligations shall be issued under the conditions set forth-in this resolution,provision shall be made to create and maintain a reasonablereservetherefor. I 75l~Y 23,1989---cont Section 8.There shall be and there is hereby created a special fund to be known and designated as the Surplus Fund into which there shall be set apart and paid all of the Net Revenues remaining after first making the required payments into the Sinking Fund and the Reserve Account,and after the Reserve Account contains the Required Reserve Account Balance.All moneys credited to the Surplus Fund shall be transferred and credited to the Sinking Fund whenever necessary to prevent or remedy a default in the payment of the principal of or interest on the Notes and any Parity Obligations or shall be transferred and credited to the Reserve Account whenever any deficiencymayexistintheReserveAccount. As long as both the Sinking Fund and the Reserve Account have thefullamountsrequiredtobedepositedthereinbythisresolution,any balance in the Surplus Fund may be made available to the City as the Council,or such other duly constituted body as may then be charged withtheoperationoftheutility,may from time to time direct. Section 9.All moneys held in any fund created or to be maintained under the terms of this resolution shall be deposited in lawful depositories of the City and continuously held and secured as provided by the laws of the State of Iowa relating to the depositing, securing and holding of public funds.All interest received by the City as a result of investments under this section shall be considered to constitute Gross Revenues of the utility and shall be deposited in or transferred to the Revenue Fund and used solely and only for the purposes specified herein for such fund.The City hereby covenants and agrees that no such investment shall ever be made so as to cause the interest on the Notes to become taxable as "arbitrage bonds"pursuanttotheprovisionsoftheInternalRevenueCodeof1986. II Section 10.The City hereby covenants and agrees with the owner or owners of the Notes and any Parity Obligations,or any of them,thatfromtimetotimemaybeoutstanding,that it will faithfUlly and punctually perform all duties with reference to the utility required and provided by the Constitution and laws of the State of Iowa,that it will segregate the Gross Revenues of the utility and make application thereof in accordance with the provisions of this resolution and that it will not sell,lease or in any manner dispose of the utility or any part thereof,including any and all extensions and additions that may be made thereto,until all of the Notes and any Parity Obligations shall have been paid in full,both principal and interest,or unless and until provisions shall have been made for the payment of said Notes and Parity Obligations and interest thereon in full;prOVided,however, 'that the City may dispose of any property which in the judgment of the Council,or the duly constituted body as may then be charged with the operation of the utility,is no longer useful or profitable in the operation of the utility nor essential to the continued operation thereof and when the sale thereof will not operate to reduce the revenues to be derived from the operation of the utility. Section 11.Upon a breach or default of a term of the Notes or Parity Obligations and this resolution,a proceeding may be brought in law or in equity by suit,action or mandamus to enforce and compel performance of the duties required under the terms of this resolutionIandDivisionVofChapter384oftheCodeofIowaoranaction~ay be brought to obtain the appointment ofa receive:to take possess~?n of and operate the Utility and to perform the dut~es required by th~s resolution and Division V of Chapter 384 of the Code of Iowa. Section 12.The Notes or any Parity Obligations shall not be entitled to priority or preference one over the other in the application of the Net Revenues of the Utility r7gardle~s o~the time or times of the issuance of the Notes or any Par~ty Obl~gat~ons,it being the intention that there shall be no priority among the Notes or Parity Obligations,regardless of the fact that they may ,have been actually issued and delivered at different times.The c~ty hereby covenants and agrees that so long aS,any of the Notes or any ~ari~y Obligations are outstanding and unpa~d,no bonds or other obl~gatlons payable from the Net Revenues of the Utility will be issued except upon the basis of such bonds or obligations being subject to the priority and security for payment of the Notes or any parit¥ Obligations then outstandin~;p:ovided:~owever,~hat,the Clty r7serves the right and priVilege of lssulng addltlonal obllgatlons from t~me to time payable from the Net Revenues of the utility and ranking on a 76 Hay 23,1989---cont parity with the Notes (herein referred to as "Parity obligations")in order to pav the cost of improvements and extensions to the utility or for refunding any bonds or obligations payable from the Net Revenues of the utility,but only if the officially reported Net Revenues of the utility for the last preceding calendar or fiscal year prior to the issuance of such Parity Obligations (with adjustments as hereinafter provided)were equal to at least 125%of the average amount of principal and interest that will become due in any subsequent year during the life of the Notes and any then outstanding Parity Obligations for both the Notes and any Parity Obligations t~en outstanding and the parity Obligations then proposed to be ~ssued;and provided also that the interest payment dates for any such Parity Obligations shall be semiannually on the first day of June and December of each year and the principal maturities of such parity Obligations shall be on June 1 of any year in which any of such principal is scheduled to become due. The amount of Gross Revenues of the utility shall be adjusted for I the purpose of the foregoing computations by an independent consulting engineer not a regular employee of the City,so as to reflect any revision'in the schedule of rates and charges being imposed at the time of the issuance of any such Parity Obligations. Obligations issued to refund the Notes or any Parity Obligations shall not be subject to the foregoing restrictions,provided the Notes or parity Obligations being refunded mature within three (3)months of the date of such refunding and no other funds are available to pay such .maturing Notes or parity obligations,but otherwise any Parity Obligations shall only be issued subject to the restrictions of this resolution. Section 13.The City agrees that so long as the Notes or any Parity Obligations remain outstanding,it will maintain insurance for the benefit of the owners of the Notes and any Parity Obligations on the insurable portions of the utility of a kind and in an amount which usually would be carried by private companies or municipalities engaged in a similar type of business.The City will keep proper books of record and account,separate from all other records and accounts, showing the complete and correct entries of all transactions relating to the utility,and that the owners of the Notes or any Parity Obligations shall have the right at all reasonable times to inspect the utility and all records,accounts and data of the City relatingthereto. Section 14.The provisions of this resolution shall constitute a contract between the City and the owners of the Notes,and after the issuance of the Notes,no change,variation or alteration of any kind of the provisions of this resolution shall be made which will adversely affect the owners of the Notes until all of the Notes and the interest thereon shall have been paid in full,except as hereinafter provided. The owners of two-thirds (2/3)in principal amount of the Notes and Parity Obligations at any time outstanding (not including in any case any obligations which may then be held or owned by or for the IaccountoftheCity,but including such obligations as may be issued for the purpose of refunding any of the Notes or Parity Obligations if such obligations shall not then be owned by the City)shall have the right from time to time to consent to and approve the adoption by the City of a resolution or resolutions modifying or amending any of the terms or provisions contained in this resolution;provided,however, that this resolution may not be so modified or amended in such mannerasto:. (a)Make any change in the maturity or redemption terms of the Notes or any parity Obligations. (b)Make any change in the rate of interest borne by any of the Notes or any Parity Obligations. (c)Reduce the amount of the principal payable on any Notes or any Parity Obligations. (d)Modify the terms of payment of principal of or interest on the Notes or any Parity Obligations,or any of them,or impose any conditions with respect to such payment. I ",- May 23,1989---cont 77 (e)Affect the rights of the owners of less than all of the Notes or any Parity Obligations then outstanding. Reduce the percentage of the principal amount of the Notes or any Parity Obligations,the consent of the owners of which shall be required to effect a further modification. (f) Whenever the City shall propose to amend or modify this resolution under the provisions of this section,it shall (1)prior to the publication of the notice hereinafter provided for in (2),cause notice of the proposed amendment to be mailed to each of the owners of the Notes and Parity Obligations at the addresses appearing on the registration books of the City and also to the Lender,and (2)cause notice of the proposed amendment to be published one time in a newspaper published and/or having a general circulation in the City of Waukee,Iowa.Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy of the proposed a~endatory resolution is on file in the office of the City Clerk. If the owners of at least two-thirds (2/3)in aggregate principal amount of the Notes and Parity Obligations outstanding at the time of the adoption of such amendatory resolution shall have consented to and approved the adoption thereof as herein provided,no owner of any Notes or Parity Obligations shall have any right or interest to object to the adoption of such amendatory resolution or to object to any of the terms or provisions therein contained or to the operation thereof or to enjoin or restrain the City from taking any action pursuant totheprovisionsthereof. Any consent given by the owners of a Note or Parity Obligation pursuant to the provisions of this section shall be irrevocable for a period of six (6)months from the date of such consent and shall be conclusive and binding upon all future owners of the same Note or Parity Obligation during such period.Such consent may be revoked at any time after six (6)months from the date of such consent by the owner who gave such consent or by a successor in title,but such revocation shall not be effective if the owners of two-thirds (2/3)in aggregate principal amount of the Notes and Parity Obligations outstanding as in this section defined shall have,prior to the attempted revocation,consented to and approved the amendatoryresolutionreferredtoinsuchrevocation. 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 persons signing such instrument acknowledged before him the execution thereof,or may be proved by an affidavit of a witness to suchexecutionsworntobeforesuchofficer. Section 15.It is the intention of the City that interest on the Notes be and remain excluded from gross income for federal income tax purposes pursuant to the appropriate provisions of the Internal Revenue Code of 1986,as amended,and the Treasury Regulations in effect with respect thereto (all of the foregoing herein referred to as the "Internal Revenue Code").In furtherance thereof the City covenants to comply with the provisions of the Internal Revenue Code as they may from time to time be in effect or amended and further covenants to comply with applicable future laws,regulations,published rulings and court decisions as may be'necessary to insure that the interest on the Notes will remain excluded from gross income for federal income tax purposes.Any and all of the officers of the City are hereby authorized and directed to take any and all actions as may be necessarytocomplywiththecovenantshereincontained. The City hereby designates the Notes as "Qualified Tax Exempt Obligations"as that term is used in Section 265 (b)(3)(B)of theInternalRevenueCode. Section 16.If any section,paragraph,clause or provision of this resolution shall be held invalid,the invalidity of such section, paragraph,clause or provision shall not affect any of the remainingprovisionsofthisresolution. 78 May 23,1989---cont Section 17.All resolutions and orders or parts thereof in conflict with the provisions of this resolution are,to the extent ofsuchconflict,hereby repealed. Section 18.This resolution shall be in full force and effect immediately upon its adoption and approval,as provided by law. Passed and approved this 23rd day of May,1989. This being the time and place specified for taking action on the proposal to enter into a loan agreement,the C17rk announced that no written objections had been placed ?n f:le.~fuereuDon, the Mayor called for any written or oral obJectlons and there was.none. After due consideration and discussion,Counci~Member ~oifeldt introduced the following resolution and moved lts adoptlon~_ seconded by Council Member Brown.The Mayor put the guestlon upon the adoption of said resolution,and the roll belng called, the following Council Members voted: Ayes: Nays: Barrett,Brown,Gruber,Hoifeldt,Scott None recorded ~ereupon,the Mayor declared the resolution duly adopted as hereinafter set out. 107RESOLUTIONNO. Resolution approving and authorizing a Loan Agreement and providing for the issuance and securing the payment of $500,000 water Revenue Notes WHEREAS,the City of Waukee,in the County of Dallas,State of Iowa (hereinafter referred to as the "City"),did heretofore establish a Municipal waterworks System in and for the City (hereinafter referred to as the "Utility")which has continuously supplied water and water service in and to the City and its inhabitants since its establishment;and WHEREAS,the man~gement and control -of the Utility are vested in the Council,and no board of trustees exists for this purpose;and WHEREAS,the City has heretofore proposed to contract indebtedness and enter into a loan agreement in an aggregate principal amount of $500,000 (the "Loan Agreement")to provide funds to pay a portion of the cost of constructing improvements and extensions to the Utility (the "Project"),including the refunding of outstanding Warrants previously issued by the City to pay costs in connection therewith,and has published notice of the proposed action and has held a hearingthereon;and WHEREAS,pursuant to a resolution (the "Series 1976 Bond Resolution"),adopted and approved by the Council on May 17,1976,the City issued $75,000 Water Revenue Bonds,Series 1976,dated April 1, 1976,all of which currently remain outstanding (the "Series 1976Bonds");and WHEREAS,pursuant to a resolution (the "Series 1979A Bond Resolution"),adopted and approved by the Council on August 27,1979, the City issued $71,000 Water Revenue Bonds,Series 1979A,dated August 1,1979,of which $30,000 currently remain outstanding (the "Series1979ABonds,i);and WHEREAS,pursuant to a resolution (the "Series 1979B Bond Resolution"),adopted and approved by the Council on August 27,1979, the City issued $189,000 Water Revenue Bonds,Series 1979B,dated August 1,1979,of which $60,000 currently remain outstanding (the"S~ries 1979B Bonds");and I I I I Hay 23,1989---cont WHEREAS,the Series 1976 Bond Resolution,the Series 1979A Bond Resolution and the Series 1979B Bond Resolution are sometimes hereinafter collectively referred to as the "outstanding Bond Resolutions,"and the Series 1976 Bonds,the Series 1979A Bonds and the Series 1979B Bonds are sometimes hereinafter collectively referred toasthe"OUtstanding Bonds";and WHEREAS,in and by the OUtstanding Bond Resolutions,the right was reserved to the City to authorize,issue and deliver additional water revenue bonds ranking on a parity with the OUtstanding Bonds under the conditions and restrictions set forth in the outstanding Bond Resolutions; NOW,THEREFORE,Be It Resolved by the City Council of the City of waukee,Iowa,as follows: Section 1.It is hereby determined that the City shall enter into the Loan Agreement with R.G.Dickinson &Co.,Des Moines,Iowa,as lender (the "Lender")in substantially the form attached hereto providing for a loan to the City in the amount of $500,000,at a discount of $10,000,for the purpose as set forth in the preamblehereof. The Mayor and City Clerk are authorized and directed to sign the Loan Agreement on behalf of the City,and the Loan Agreement is hereby approved. Section 2.Water'Revenue Notes (the "Notes")are hereby authorized to be issued in evidence of the obligation of the City under the Loan Agreement,in the total aggregate principal amount of $500,000,to be dated June 1,1989,in the denomination of $5,000 each,or any integral multiple thereof,maturing on June 1 in each of the years,in the respective principal amounts and bearing interest at the respective rates,as follows: Interest InterestPrincipalRatePerPrincipalRatePerYearAmountAnnumYearAmountAnnum 1990 $10,000 7.10%1997 $40,000 7.15%1991 $15,000 7.10%1998 $40,000 7.25%1992 $15,000 7.10%1999 $45,000 7.35%1993 $15,000 7.10%2000 $50,000 7.45%1994 $35,000 7.10%2001 $50,000 7.55%1995 $35,000 7.10%2002 $55,000 7.65%1996 $35,000 7.10%2003 $60,000 7.75% Bankers Trust Company,Des Moines,Iowa,is hereby designated as the Registrar and Paying Agent for the Notes and may be hereinafter referred to as the "Registrar"or the "Paying Agent". The City reserves the right to prepay part or all of the Notes maturing in each of the years 1998 to 2003,inclusive,prior to and in inverse order of maturity on June 1,1997,or on any interest payment date'thereafter upon terms of par and accrued interest.If less than all of the Notes of any like maturity are to be redeemed,the particular part of those Notes to be redeemed shall be selectee?by the Registrar by lot.The Notes may be called in part in one or more units of $5,000.If less than the entire principal amount of any Note in a denomination of more than $5,000 is to be redeemed,the Registrar will issue and deliver to the registered owner thereof,upon surrender of such origina,l Note,a new Note or Notes,in any authorized denomination,in a total aggregate principal amount equal to the unredeemed balance of the original Note.Notice of such redemption as aforesaid identifying the Note or Notes (or portion thereof)to be redeemed shall be mailed by certified mail to the registered owners thereof at the addresses shown on the City's registration books not less than 30 nor more than 45 days prior to such redemption date.All of such Notes as to which the City reserves and exercises the right of redemption and as to which notice as aforesaid shall have been given and for the redemption of which funds are duly provided,shall cease to bear interest on the redemption date. 79 80 l1ay 23,19G9--cotlt The Notes shall be fully registered as to principal and interest in the names of the owners on the registration books of the City kept by the Registrar,and after such registration,payment of the principal and interest thereof shall be made only to the registered owners,their legal representatives or assigns.Each Note shall be transferable .•1.'....without cost to the registered owner thereof only upon the registration books of the City upon presentation to the Registrar, together with either a written instrument of transfer satisfactory to the Registrar or the assignment form thereon completed and duly executed by the registered owner or the duly authorized attorney for such registered owner. All of the interest on the Notes shall be payable December 1, 1989,and semiannually thereafter on the first day of June and December in each year.Payment of interest on the Notes shall be made to the registered owners appearing on the registration books of the City at the close of business on the fifteenth day of the month next preceding the interest payment date and shall be paid by check or draft mailed to the registered owners at the addresses shown on such registration books.Principal of the Notes shall be payable in lawful money of the united states of America to the registered owners or their legal representatives upon presentation and surrender of the Note or Notes at ·the office of the Paying Agent. The Notes shall be executed on behalf of the City with the official manual or facsimile signature of the Mayor and attested by the official manual or facsimile signature of the City Clerk and shall have the City's seal impressed or printed thereon,and shall be fully registered Notes without interest coupons.The issuance of the Notes shall be recorded in the office of the City Treasurer,and the certificate on the back of each Note shall be executed with the official manual or facsimile signature of the City Treasurer.In case any officer whose signature or the facsimile of whose signature appears on the Notes shall cease to be such officer before the'delivery of such Notes,such signature or such facsimile signature shall nevertheless be. valid and sufficient for all purposes,the same as if such officer had remained in office until delivery. The Notes shall not be valid or become obligatory for any purpose until the Certificate of Authentication thereon shall have been signed by the Registrar. All of the Notes and the interest thereon are payable from the same source and rank on a parity with the outstanding Bonds,and the Notes and the outstanding Bonds,together with any additional obligations as may be hereafter issued and outstanding from time to time ranking on a parity therewith under the conditions set forth herein (which additional obligations are hereinafter sometimes referred to as "parity Obligations"),shall be payable solely from the Sinking Fund hereinafter referred to and shall be a valid claim of the owners thereof only against said fund.None of the Notes shall be a general obligation of the City,nor payable in any manner by taxation,and under no circumstances shall the City be in any manner liable by reason of the failure of the Net Revenues of the utility to be sufficient for the payment in whole or in part of the Notes and the interest thereon; but the Notes,together with the OUtstanding Bonds and any Parity Obligations,shall be payable both as to principal and interest solely and only from the future Net Revenues of the utility pledged therefor as hereinafter provided. The record and identity of the owners of the Notes shall be kept confidential as provided by Section.22.7 of the Code of Iowa. Section 3.The Notes shall be in substantially the form set forth as Exhibit A to the Loan Agreement attached hereto and shall be executed as herein provided as soon after the adoption of this resolution as may be possible and thereupon they shall be delivered to the Registrar for registration,authentication and delivery to the Lender,upon receipt of the loan proceeds,and all action heretofore taken in connection with the Loan.Agreement is hereby ratified and confirmed in all respects.The loan proceeds,exclusive of any accrued interest,shall be used to pay costs of the Project,including the 1 'I -81Hay23,1989":--cont refunding of the warrants,and any unexpended bala~ce of the lo~n proceeds remaining thereafter plus a~y amount :ec~~ved by the ~~ty as accrued interest shall be converted ~nto the S~nk~ng Fund here~nafter referred to and used to pay interest on the Notes on the first interest payment date. Section 4.So long as any of the Notes,Outstanding Bonds or any parity Obligations are outsta~d~ng,the City s~a~l continue to, maintain the utility in good cond~t~on,and the ut~l~ty shall cont~nue to be operated in an efficient manner,and at a reason~ble ~ost as a revenue producing undertaking.The c~ty shall establ~sh,~mpose, adjust and provide for the collection of rates to be charged to customers of the utility,including the City,to produce gross revenues (hereinafter sometimes referred to as the "Gross Revenues")at least sufficient to pay the expenses of operation and maintenance of the utility,which shall include salaries,wages,cost of ma~ntenance and operation,materials,supplies,i~surance ~nd all other ~tems,normally included under recognized account~ng pract~ces (but does not ~nclude allowances for depreciation in the valuation of physical property) (which such expenses are hereinafter sometimes referred to as the "Operating Expenses")and to leave a balance of net revenues (herein referred to as the "Net Revenues")equal to at least 125 per cent of the annual payments of principal of and interest on the Notes,the outstanding Bonds and any other parity Obligations,outstanding from time to time,and sufficient to maintain a reas~nable reser,:,efor the payment of such principal and interest,as here~nafter prov~ded. Section 5.The provisions,covenants,undertakings and stipulations for the operation of the utility and for the collection, application and use of the Gross Revenues and income from such operation,as set forth in the Outstanding Bond Resolutions shall inure and appertain to the Notes to the same extent and with like force and effect as if herein set out in full,except only insofar as the same may be inconsistent with this resolution. Section 6.The provisions of the Outstanding Bond Resolutions, with respect to the issuance of additional water revenue bonds ranking on a parity with the Outstanding Bonds,are hereby recognized and,for the purpose of demonstrating compliance with the terms of the outstanding Bond Resolutions,it is hereby determined that the Notes are water revenue bonds within the meaning of the Outstanding Bond Resolutions and Division V of Chapter 384 of the Code of Iowa,but they are referred to herein and shall be designated as water Revenue Notes. In further compliance with the Outstanding Bond Resolutions it is hereby found,declared and certified that the Net Revenues of the utility for the fiscal year which ended June 30,1988,were equal to at least 125 per cent of the maximum total amount of principal and interest due in any fiscal year for the Outstanding Bonds and the Notesissuedhereunder. Section 7.The provisions in and by the Outstanding Bond Resolutions,whereby there has been created and is to be maintained a special fund (the "Revenue Fund")into which the Gross Revenues of the utility are to be deposited and used in maintaining and operating the Utility,are hereby ratified and confirmed,and from and after the issuance of the Notes and throughout the time any of the Notes, Outstanding Bonds or any Parity Obligations are outstanding,the Gross Revenues of the utility shall continue to be set aside into the Revenue Fund and used as aforesaid,and after payment of the proper necessary maintenance and operation expenses,the remaining Net Revenues,to the extent hereinafter provided,shall be used to pay interest on and principal of the Outstanding Bonds,the Notes and any parity Obligations and to maintain a reserve therefor. Section 8.The p~ovisions in and by the Outstanding Bond Resolutions,whereby there has been created and is to be maintained a "waterworks Revenue Bond Sinking Fund"(herein referred to as the "Sinking Fund"),and for the payment into said fund from the future Net Revenues of the utility such portion thereof as will be sufficient to pay the interest on and principal of the Outstanding Bonds,are all .hereby ratified and confirmed,and all such provisions shall inure and constitute the security for the payment of the interest on and principal of the Notes hereby authorized as may be outstanding from time to time;provided,however,that on the first day of each month of each year the minimum amount to be set aside and paid into the SinkingFundshallbenotlessthanasfollows: Commencing June 1,1989,and continuing thereafter a su equal t?1/?th of the interest coming due on the n~xt m succeedl~g lnterest payment date on all of the then outstandlng Notes,Outstanding Bonds and Parity Obligations plus a sum equal to 1/12th of the principal coming due on all such Notes,Outstanding Bonds and Parity Obligations 0thenextsucceedingprincipalpaymentdate;n 8211ay 23,1989--co tit provided,however,that no further payments need be made into the Sinking Fund when and so long as the amount therein is sufficient to retire all of the Notes,the Outstanding Bonds and any Parity Obligations then outstanding which are payable from the Sinking Fund and to pay all interest to become due thereon prior to such retirement,or if provision for such payment has been made. Whenever Parity Obligations are issued under the conditions and Irestrictionshereinaftersetforth,provisions shall be made for additional payments to be made into the Sinking Fund for the purpose of .. paying the interest on and principal of such Parity Obligations. All such payments into the Sinking Fund shall be made in equal monthly installments on the first day of each month,except that when the first day of any month shall be a Sunday or a legal holiday,then such payments shall be made on the next succeeding secular day,and that portion of the Net Revenues on deposit in the Sinking Fund shall be used solely and only and are hereby pledged for the purpose of paying principal of and interest on the Notes,the Outstanding Bonds and any Parity Obligations as the same shall become due and payable. If at any time there be a failure to pay into the Sinking Fund the full amount above stipulated,then an amount equivalent to the deficiency shall be paid into the Sinking Fund from the Net Revenues of the utility as soon as available,and the same shall be in addition to the amounts otherwise required to be so set apart and paid into the SinkingFund. Section 9.The provlslons in and by the Outstanding Bond Resolutions,whereby there has been created and is to be maintained a separate reserve equal to two years of interest on the outstanding Bonds to be used,if necessary,for the payment of principal of and interest on the outstanding Bonds,are all hereby ratified and confirmed,and all funds being so held by the City shall be deposited into a separate fund which is hereby created and which shall be known as the "Principal and Interest Reserve Account"(the "Reserve Account").From and after the issuance of the Notes,the payments required by the outstanding Bond Resolutions to provide a reserve for the outstanding Bonds shall continue to be made but shall be set apart and deposited into the Reserve Account until there has been accumulated in the Reserve Account,exclusive of the reserve requirement for the Notes hereinafter provided for,an amount equal to two years of interest on the outstanding Bonds.In addition to such accumulated reserve required by the outstanding Bond Resolutions,and in order to provide a reserve for the Notes,there shall be set apart and paid from legally available funds of the City at the time of the delivery of the INotesasumequalto$45,000,which sum shall remain on deposit in the Reserve Account until all of the Notes have been paid as to both . principal and interest or until provision for such payment has been . made.All moneys on deposit in the Reserve Account shall be used . and are hereby pledged to the payment of the principal of and interest an hat ohly the Outstanding Bonds,but also the Notes and any Parity Obligations outstanding from time to time whenever for any reason the funds on deposit in the Sinking Fund are insufficient to pay such principal and interest when due.Whenever the sum on deposi~in said Account has been reduced to less than the total amounts requlred hereunder by the expenditure of all or a portion of su7h fU~ds for any of the purposes described herein,there shall be d~poslted.ln the Reserve Account the remaining Net Revenues after flrst maklng the required deposits into the Sinking Fund,until the sum on deposit in the Reserve Account has been restored to the required amounts. I I 83Hay23,1989--cont Section 10.There shall be and there is hereby created a special fund to be known and designated as the Surplus Fund into which there shall be set apart and paid all of the Net Revenues remaining after first making the required payments into the Sinking Fund and the Reserve Account,and after the Reserve Account contains the required amounts.All moneys credited to the Surplus Fund shall be transferred and credited to the Sinking Fund whenever necessary to prevent or remedy a default in the payment of the principal of or interest on the Notes and any Parity Obligations or shall be transferred and credited to the Reserve Account whenever any deficiency may exist in the ReserveAccount. As long as both the Sinking Fund and the Reserve Account have the full amounts required to be deposited therein by this resolution,any balance in the Surplus Fund may be made available to the City as the Council,or such other duly constituted body as may then be charged withtheoperationoftheutility,may from time to time direct. Section 11.All moneys held in any fund created or to be maintained under the terms of this resolution shall be deposited in lawful depositories of the City and continuously held and secured as provided by the laws of the State of Iowa relating to the depositing, securing and holding of public funds.All interest received by the City as a result of investments under this section shall be considered to constitute Gross Revenues of the utility and shall be deposited in or transferred to the Revenue Fund and used solely and only for the purposes specified herein for such fund.The City hereby covenants and agrees that no such investment shall ever be made so as to cause the interest on the Notes to become taxable as "arbitrage bonds"pursuant to the provisions of the Internal Revenue Code of 1986. Section 12.The City hereby covenants and agrees with the owner or owners of the Notes,OUtstanding Bonds and Parity Obligations, or any of them,that from time to time may be outstanding,that it will faithfully and punctually perform all duties with reference to the utility required and provided by the Constitution and laws of the State of Iowa,that it will segregate the Gross Revenues of the utility and make application thereof in accordance with the provisions of this resolution and that it will not sell,lease or in any manner dispose of the utility or any part thereof,including any and all extensions and additions that may be made thereto,until all of the Notes,Outstanding Bonds a~d Parity Obligations shall have been paid in full,both principal and interest,or unless and until provisions shall have been made for the payment of said Notes,OUtstanding Bonds and Parity Obligations and interest thereon in full;provided,however,thpt t~e City may~dispose of any property which in the jUdgmen~of the counc71, or the duly constituted body as may then be charged wlth the operatlon of the utility,is no longer useful or profitable,in the operation of the utility nor essential to the continued operatlon thereof and when the sale thereof will not operate to reduce the revenues to be derlved from the operation of the utility. Section 13.Upon a breach or default of a term of ~he Notes, Outstanding Bonds or Parity Obligations an~this re~olutlo~,a proceeding may be brought in law or in equlty by sUlt,actlon or mandamus to enforce and compel performance of the duties required under the terms of this resolution and Division V,of Chapter,384 of the Code of Iowa or an action may be brought to obtaln the appolntment of a receiver to take possession of and operate the utility and to perform the duties required by this resolution and Division V of Chapter 384 of the Code of Iowa. Section 14.The Notes,the OUtstanding Bonds or any Parity Obligations shall not be entitled to priority orpreferenc~?ne over the other in the application of the Net Revenues of the utlllty regardless of the time or times of the issuance of suc~Note~,the Outstanding Bonds or parity Obligations,it being the ln~entlon that there shall be no priority among the Notes,the outstandlng Bonds or Parity Obligations,regardless of the fact t~at they maY,have been actually issued and delivered at different tlmes.The Clty hereby covenants and agrees th0t so long as anY,of the Note~,the OUtstanding Bonds or Parity ObligatJ.ons are out.st.andi.nq and unpa.i.d,no other bonds or obligations payable from the Net Reve~u~s of the utility ~ill,be issued except upon the basis of such ad~ltlonal bonds or obllgatlons beinq sublect to the priority and securlty for payme~t of any Notes, The amount of Gross Revenues of the utility shall be adjusted for the purpose of the foregoing computations by an independent consulting engineer,not a regular employee of the City,so as to reflect any revision in the schedule of rates and charges being imposed at the time of the issuance of any such Parity Obligations. Obligations issued to refund any of the Notes,Outstanding Bonds or Parity Obligations shall not be subject to the foregoing restrictions,provided the Notes,outstanding Bonds or Parity Obligations being refunded mature within three (3)months of the date of such refunding and no other funds are available to pay such maturing Notes,Outstanding Bonds or Parity Obligations,but otherwise any Parity Obligations shall only be issued subject to the restrictions ofthisresolution. 84 May 23.1989~~~cont Outstanding Bonds or Parity obligatio~s then out~t~nding;provided, however,that the City reserves the rlght and prlvllege of lssuing additional obligations from time to time payable from the Net Reve~ues of the utility and ranking on a parity with the Notes and Outstandlng Bonds (herein referred to as "parity Obligati~n~")in order to p~y the cost of improvements and extensions to the utlllty or for re~u~dlng any bonds or obligations payable from the Net Revenues of the utlllty,but only if the officially reported Net Reven~es of the ~tility for the last preceding calendar or fiscal year prlor to the lssu~nce of such Parity Obligations (with adjustments as hereinafter provlded)were equal to at least 125%of the average amount of.principa~and interest that will become due in any subsequent year durlng the Ilfe of the then outstanding Notes,outstanding Bonds and,parity.Obl~gations,for all of the Notes,the Outstanding Bonds and parlty Obllgatlons the~ outstanding and the Parity obligations then proposed to be lss~ed;and provided also that the interest payment dates for any such Parlty Obligations shall be semiannually on the first day of,June a~d D~cember of each year and the principal maturities of such parl~Y ?bllg~tlons 1 shall be on June 1 of any year in which any of such prlnclpal lS .:. scheduled to become due. Section 15.The City agrees that so long as any of the Notes, OUtstanding Bonds or Parity Obligations remain outstanding,it will maintain insurance for the benefit of the owners of the Notes, OUtstanding Bonds and Parity Obligations on the insurable portions of the utility of a kind and in an amount which usually would be carried by private companies or municipalities engaged in a similar type of business.The City will keep proper books of record and account, separate from all other records and accounts,showing the complete and correct entries of all transactions relating to the utility,and that the owners of any of the Notes,the Outstanding Bonds or any Parity Obligations shall have the right at all reasonable times to inspect the utility and all records,accounts and data of the City relatingthereto. Section 16.The provisions of this resolution shall constitute a contract between the City and the owners of the Notes,the Outstanding Bonds and Parity Obligations as may from time to time be outstanding, and after the issuance of the Notes,no change,variation or alteration of any kind of the provisions of this resolution shall be made which .1willadverselyaffecttheownersoftheNotes,the Outstanding Bonds or parity Obligations until all of the potes,Outstanding Bonds and Parity Obligations and the interest thereon shall have been paid in full,except as hereinafter provided. The owners of two-thirds (2/3)in principal amount of the Notes, the Outstanding Bonds and parity Obligations at any time outstanding (not including in any case any obligations which may then be held or owned by or for the account of the City,but including such obligations as may be issued for the purpose of refunding any of the Notes, Outstanding Bonds or Parity Obligations if such obligations shall not then be owned by the City)shall have the right from time to time to consent to and approve the adoption by the City of a resolution or resolutions modifying or amending any of the terms or provisions contained in this resolution;provided,however,that this resolution may not be so modified or amended in such manner as to: I I May 23,1989--cont 85 (a)Make any change in the maturity or redemption terms of the Notes,outstanding Bonds or Parity Obligations. (b)Make any change in the rate of interest borne by any of the Notes,Outstanding Bonds or parity Obligations. (c)Reduce the amount of the principal payable on any Notes, Outstanding Bonds or Parity Obligations. (d)Modify the terms of payment of principal of or interest on the Notes,outstanding Bonds or Parity Obligations,or any of them,or impose any conditions with respect to such payment. (e)Affect the rights of the owners of less than all of the Notes,outstanding Bonds or Parity Obligations then outstanding. (f)Reduce the percentage of the principal amount of the Notes,Outstanding Bonds or Parity Obligations,the consent of the owners of which shall be required to effect a further modification. Whenever the City shall propose to amend or modify this resolution under the provisions of this section,it shall (1)prior to the publication of the notice hereinafter provided for in (2),cause notice of the proposed amendment to be mailed to each of the owners of the Notes,outstanding Bonds and Parity obligations at the addresses appearing on the registration books of the City and also to the Lender, and (2)cause notice of the proposed amendment to be published one time in a newspaper published and/or having a general circulation in the City of Waukee,Iowa.Such notice shall briefly 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. If the owners of at least two-thirds (2/3)in aggregate principal amount of the Notes,the OUtstanding Bonds and parity Obligations outstanding at the time of the adoption of such amendatory resolution shall have consented to and approved the adoption thereof as herein provided,no owner of any Notes,Outstanding Bonds or parity Obligations shall have any right or interest to object to the adoption of such amendatory resolution or to object to any of the terms or provisions therein contained or to the operation thereof or to enjoin or restrain the City from taking any action pursuant to the provisions thereof. Any consent given by the owners of a Note,outstanding Bond or 'arity Obligation pursuant to the provisions of this section shall be rrevocable for a period of six (6)months from the date of such onsent and shall be conclusive and binding upon all future owners of 1e same Note,outstanding Bond or parity Obligation during such ~riod.Such consent may be revoked at any time after six (6)months :om the date of such consent by the owner who gave such consent or.by successor in title,but such revocation shall not be effective if the ners of two-thirds (2/3)in aggregate principal amount of the Notes, tstanding Bonds and parity Obligations outstanding as in this section fined shall have,prior to the attempted revocation,consented to and ~roved the amendatory resolution referred to in such revocation. 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 persons 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. Section 17.It is the intention of the City that interest on the Notes be and remain excluded from gross income for federal income tax purposes pursuant to the appropriate provisions of the Internal Revenue Code of 1986,as amended,and the Treasury Regulations in effect with respect thereto (all of the foregoing herein referred to as the "Internal Revenue Code").In furtherance thereof the City covenants to comply with the provisions of the Internal Revenue Code as they may from time to time be in effect or amended and further covenants to ,86 Hay 23,'l989--cont comply with applicable future laws,regulations,published rulings and court decisions as may be necessary to insure that the interest on the Notes will remain excluded from gross income for federal income tax purposes.Any and all of the officers of the City are hereby authorized and directed to take any and all actions as may be necessary to comply with the covenants herein contained. The City hereby designates the Notes as "Qualified Tax Exempt Obligations"as that term is used in Section 265(b)(3)(B)of theInternalRevenueCode. Section 18.If any section,paragraph,clause or provision of this resolution shall be held invalid,the invalidity of such section, paragraph,clause or provision shall not affect any of the remainingprovisionsofthisresolution. Section 19.All resolutions and orders or parts thereof in conflict with the provisions of this resolution are,to the extent ofsuchconflict,hereby repealed. Section 20.This resolution shall be in full force and effect immediately upon its adoption and approval,as provided by law. Passed and approved this 23rd day of May,1989. Moved by Scott,second by Gruber,to adopt the following resolution: RESOLUTION NO,108 WHEREAS,the City of Waukee has initiated the marketing of 500,000 Water Revenue Notes and now anticipates the settlement of that financing to be not later than July 1,1989 BE IT NOW RESOLVED by the City Council of Waukee,Iowa to extend to maturity of $325,000 Bond Anticipation Notes due June 1,1989 to July 1,1989 under the same terms and conditions A roll call vote was taken as follows: Ayes: Nays: Scott,Hoifeldt,Gruber,Brown,Barrett None recorded Moved by Scott,second by Barrett,to purchase a trencher for $22,080 from Ditch Witch,A roll call vote was taken as follows: Ayes: Nays: Barrett,Hoifeldt,Brown,Scott Gruber Moved by Scott,second by Barrett,to approve the bid of Avitt Electric in the amount of $7450,00 for Walnut Ridge street lights.A roll call vote was taken as follows: Ayes: Nays: Scott,Brown,Barrett Gruber,Hoifeldt This bid does not include resodding, 110ved by Gruber,second by Brown,to adopt the 'follmving res'elution: RESOLUTION NO.109 RESOLUTION ACCEPTING MARY ANN ESTATES PLAT (3),A SUBDIVISION OF THE CITY OF WAUKEE,DALLAS COUNTY,IOWA WHEREAS,Woodwright Construction Company has presented a final Plat (3)to Waukee Planning and Zoning Commission and the Waukee Planning and Zoning Comraission has approved this Plat (3)on May 23,1989,and WHEREAS,the City of Waukee,at a special Council meeting on May 23, 1989,approved final Plat (3),Mary Ann Estates,Waukee,Iowa,Dallas County. A roll call vote was taken as follows: I I I I May 23,1989---cont 87 Ayes': Nays: Scott,Gruber,Brown,Hoifeldt,Barrett None recorded This approval is subject to the completion of the 2 punchlist items on the City Engineer's letter by September 1,1989 and submittal of the appropriate maintenance bond for the water,sewer and storm sewer improvemen ts . Mayor Rosenkranz presented "Citizen of the Year"awards to George Kramer and the-family of Gordon Christianson. Moved by Gruber,second by Brown,to adjourn at 7:40 p.m.Carried 5 to O. Meeting adjourned. June.13,1989 The regular D.eeting of the Haukee City Council was called to order on June 13,1939 at 7:35 p.m.with Mayor Floyd Rosenkranz presiding. A roll call of members was held as follows:Present--Scott,Hoifeldt, Barrett.Absent--Gruber and Brown. The following guests and staff were present:Howard and Vivian Wilson, Larry Oetting,Ben Phillips,Dan Olson,Dennis Spencer,Verle Smith, E John Morris,Ken Mitchell,Mike Clayton,Don Gehrke,Virginia Clark, Dean Davis,Rex Downard,Tim Wagner,Rick Ross,Hendy Hansen-Wagner, Jack Wearmouth,Brian Redshaw,Al 11unsterman,Ann Ford,Rev.Roy Ives, Dick Applegate,Chuck Denton,Caroly Weienith,Paul Huscher,Jeff Abbas,LaDonna Gratias,Don Bassett,Bob Evans,Nick Gruber,Don Hens on,and Harvin Cros s . MOved by Hoifeldt,second by Barrett,to approve the minutes of May 9 and 23.Carried 3 to O. Ken Mitchell spoke to the Council and demonstrated compost recycling fencing.This will be discussed at the next regular meeting. Carolyn \veienith of Iowa Realty spoke regarding co-op advertising promotoing natural gas,housing projects and the City.The city's share would be approximately $280.60 (1 time charge).Chuck Denton of Northern Natural Gas spoke in favor of this type of advertising. HO'Ted by Hoifeldt,second by Barrett,to spend $280.00 for co-op advertising.A roll call vote was held as follows: Ayes:Barrett Nays:Scott,Hoifeldt Absent:Gruber,Brown .Motion failed. Dan Olson,city manager of Clive,and Dennis Spencer of Snyder & Associates spoke in referece to the paving project on l42nd St. Moved by Hoifeldt,second by Scott,to enter into an agreement viith Cl5.ve for $36,300.00 for 954'of paving on 142nd St.at no interest for 10 years,subject to obtaining easement.A roll call vote was held as follows: Ayes:Scott,Uoifeldt,Barrett Nays:None recorded Absent:Gruber,Brown Diane Battani was not present as had been on the agenda. Larry Oetting spoke regarding the 6th Street repair near Cherry. He is still having house vibrations and reported that several of his neighbors have the same problem.The Council directed that patrol on 6th Street is to be incr4ased and Al 11unsterman is to look into the street problem and report back.