HomeMy WebLinkAboutPublic Buildings & Facilities Authority RESOLUTION NO 14 05 02STATE OF GEORGIA RESOLUTION NO. 14-05-02
COUNTY OF FULTON
RESOLUTION AUTHORIZING THE ISSUANCE OF REVENUE BONDS
AND THE EXECUTION, DELIVERY AND PERFORMANCE OF AN
INTERGOVERNMENT AL CONTRACT RELATING THERETO
WHEREAS, the City of Milton Public Buildings and Facilities Authority (the
"Issuer") was duly created and is validly existing pursuant to the City of Milton Public Buildings
and Facilities Authority Act (2007 Ga. L., p. 4264, et seq., as amended) (the "Act"); and
WHEREAS, pursuant to the Act, the Issuer has the power to (a) acquire,
construct, add to, extend, improve, equip, hold, operate, maintain, lease and dispose of "Projects"
(as defined in the Act); (b) execute contracts, leases, installment sale agreements and other
agreements and instruments necessary or convenient in connection with the acquisition,
construction, addition, extension, improvement, equipping, operation or maintenance of a
Project; and (c) borrow money for any of its corporate purposes and to issue revenue bonds, and
to provide for the payment of the same and for the rights of the holders thereof; and
WHEREAS, pursuant to its Charter and other laws of the State of Georgia, the
City of Milton, Georgia (the "City) has the power to provide (a) parks and recreation facilities,
(b) a city hall and (c) public safety facilities (collectively, the "Projects"); and
WHEREAS, Article IX, Section III, Paragraph I(a) of the Constitution
authorizes, among other things, any county, municipality or other political subdivision of the
State to contract, for a period not exceeding fifty years, with another county, municipality or
political subdivision or with any other public agency, public corporation or public authority for
joint services, for the provision of services, or for the provision or separate use of facilities or
equipment, provided that such contract deals with activities, services or facilities which the
contracting parties are authorized by law to undertake or to provide; and
WHEREAS, the Issuer proposes issuing its revenue bond (the "Bond") in a
principal amount not to exceed $10,000,000 for the purpose of financing all or a portion of the
costs of the Proj ects and the costs of issuing the Bond; and
WHEREAS, the Issuer and the City propose entering into an intergovernmental
contract (the "Contract"), pursuant to which the Issuer will agree to issue the Bond, and the City
will agree to pay to the Issuer amounts sufficient to pay the debt service on the Bond.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF MILTON
PUBLIC BUILDINGS AND FACILITIES AUTHORITY, and it is hereby resolved by
authority of the same, as follows:
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1. Authorization and Terms of Bond. The issuance of the Bond is hereby
authorized. The principal amount of the Bond shall not exceed $10,000,000. The Bond may
bear interest at a fixed rate or variable rates; provided, however, the rate shall not exceed 12%.
The maximum annual debt service on the Bond in any calendar year shall not exceed $2,500,000.
The Bond shall mature on or before December 31, 2029. The exact terms of the Bond,
including, but not limited to, the principal amount, interest rate and prepayment provisions, shall
be set forth in a bond resolution to be adopted by the Issuer prior to the issuance of the Bond.
2. Authorization of Contract. The execution, delivery and performance of
the Contract are hereby authorized. The Contract shall be in substantially the form attached
hereto as Exhibit A, with such changes, insertions or omissions as may be approved by the
Chairperson or Vice Chairperson of the Issuer, and the execution and delivery by the Issuer of
the Contract as hereby authorized shall be conclusive evidence of the approval of any such
changes, omissions or insertions.
3. Validation. The Bond shall be validated in the manner provided in the
Revenue Bond Law. To that end, notice of the adoption of this Resolution and a certified copy
hereof shall be immediately served on the District Attorney in order that proceedings for the
confirmation and validation of the Bond by the Superior Court of Fulton County may be
instituted by said District Attorney. The Chairperson, Vice Chairperson, and Secretary are
hereby authorized to execute any and all documents and to take any and all actions required to
validate the Bond.
4. .. Waiver of Bond Audit. The Issuer hereby waives the performance audit
or performance review requirement referred to in O.CO.A. Section 36-82-100.
5. Ratification. All actions taken by the members, officers, employees and
agents of the Issuer which are in furtherance of the transactions contemplated by this Resolution
are hereby ratified and affirmed.
6. General Authoritv. The Chairperson, Secretary and the employees,
officers and agents of the Issuer are hereby authorized to execute any and all documents and to
take any and all actions required to carry out the transactions contemplated by this Resolution.
7. Repealing Clause. All resolutions or parts thereof of the Issuer in conflict
with the provlSlons contained in this Resolution are, to the extent of such conflict, hereby
superseded and repealed.
8. Effective Date. This Resolution shall be effective immediately upon its
adoption.
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Adopted and approved this 19th day of May, 2014.
CITY OF MILTON PUBLIC BUILDINGS AND
FACILITIES AUTHORITY
By: ~
Chairperson, Joe L kwood
Attest:
Secretary, Rick Mohrig
(SEAL)
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EXHIBIT A
FORM OF CONTRACT
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SECRETARY'S CERTIFICATE
STATE OF GEORGIA
COUNTY OF FULTON
I, the undersigned Secretary of City of the Milton Public Buildings and Facilities
Authority (the "Issuer") and keeper of the records and seal thereof, DO HEREBY CERTIFY that
the foregoing pages of typewritten matter constitute a true and correct copy of the Resolution
adopted by the Issuer in a meeting duly called and assembled on the 19th day of May, 2014,
which meeting was open to the public and at which a quorum was presenting and acting
throughout, the original of which Resolution has been duly recorded in the Minute Book of the
Issuer which is in my custody and control.
WITNESS my official hand and seal of the Issuer, this 19th day of May, 2014.
secreta~22:%
(SEAL)
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CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY
AND
CITY OF MILTON, GEORGIA
INTERGOVERNMENTAL CONTRACT
Dated as of May 19,2014
The rights and interest of City of Milton Public Buildings and Facilities Authority in this
Intergovenunental Contract have been pledged under the Resolution to the holder from time to
time of the Bond.
This document was prepared by:
Murray Barnes Finister LLP
, Suite 5-515
3525 Piedmont Road NE
Atlanta, GA 30305
(678) 999-0350
mTERGOVERNMENTALCONTRACT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Intergovernmental Contract and IS only for
convenience of reference.)
ARTICLE I. DEFD'l'ITIONS ........................................................................................................... 2
ARTICLE II. REPRESENTATIONS ..............................................................................................3
Section 2.1. Representations of Issuer. ............................................................................3
Section 2.2. Representations of the City ......................................................................... .4
ARTICLE III. ISSUANCE OF THE BOND; ACQUISITION, PROJECTS, AND
EQUIPpmG OF THE PROJECTS .........................................................................6
Section 3.1. Agreement to Issue the Bond; Application of Bond Proceeds ....................6
Section 3.2. Agreement to Acquire, Construct and Equip the Projects ...........................6
Section 3.3. Establishment of Completion Date .............................................................. 7
ARTICLE IV. EFFECTIVE DATE OF THIS CONTRACT; DURATION OF TERM;
CONTRACT PAYMENT PROVISIONS ............................................................... 8
Section 4. 1. Effective Date of this Contract; Duration of Term......................................8
Section 4.2. Contract Payments ....................................................................................... 8
Section 4.3 . Obligations of the City Hereunder Unconditional. ......................................8
Section 4.4. Security for Contract Payments ...................................................................9
Section 4.5. Enforcement of Obligations.........................................................................9
Section 4.6. Appropriation Obligation .............................................................................9
ARTICLE V. SPECIAL COVENANTS ....................................................................................... 11
Section 5.1. Additional Debt. ...................................... ................................................... 11
Section 5.2. Further Assurances and Corrective Instruments ........................................ 11
Section 5.3. Issuer and City Representatives ................................................................. 11
Section 5.4. City's Obligations in the Resolution .......................................................... 11
Section 5.5. Financial Statements ...................................... ............................................ 11
Section 5.6. Provisions Respecting Insurance ............................................................... 11
Section 5.7. Operation and Maintenance of the Projects ............................................... 11
Section 5.8. Tax Covenants ........................................................................................... 12
Section 5.9. Release and Indemnification Covenants .................................................... 12
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES .... .................................................... 14
Section 6.1. Events of Default Defined ......................................................................... 14
Section 6.2. Remedies on Default. .................... ............................................................. 14
Section 6.3. No Remedy Exclusive ................................................................................ 15
Section 6.4. Agreement To Pay Attorneys ' Fees and Expenses .................................... 15
Section 6.5. No Additional Waiver Implied by One Waiver ......................................... 15
ARTICLE VII. MISCELLANEOUS ............................................................................................. 16
Section 7.1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 7.6.
Section 7.7.
Section 7.8.
Section 7.9.
Notices....................................................................................................... 16
Binding Effect. ........................................................................................... 16
Severability..................................... ... ............ ..................... ......... .............. 16
Amounts Remaining in Funds ................................................................... 16
Amendments, Changes and Modifications ................................................ 16
Execution in Counterparts .......................................................................... 16
Applicable Law .............................................................................. ............ 16
Captions..................................................................................................... 17
No Personal Recourse ................................................................................ 17
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THIS INTERGOVERNMENTAL CONTRACT is entered into as of [Document
Date] (this "Contract"), between the CITY OF MILTON PUBLIC BUILDINGS AND
FACILITIES AUTHORITY (the "Issuer"), and the CITY OF MILTON, GEORGIA (the "City").
WHEREAS, the City of Milton Public Buildings and Facilities Authority (the
"Issuer") was duly created and is validly existing pursuant to the City of Milton Public Buildings
and Facilities Authority Act (2007 Ga. L., p. 4264, et seq., as amended) (the "Act"); and
WHEREAS, pursuant to the Act, the Issuer has the power to (a) acquire,
construct, add to, extend, improve, equip, hold, operate, maintain, lease and dispose of "Projects"
(as defined in the Act); (b) execute contracts, leases, installment sale agreements and other
agreements and instruments necessary or convenient in connection with the acquisition,
construction, addition, extension, improvement, equipping, operation or maintenance of a
Project; and (c) borrow money for any of its corporate purposes and to issue revenue bonds, and
to provide for the payment of the same and for the rights of the holders thereof; and
WHEREAS, pursuant to its Charter and other laws of the State of Georgia, the
City of Milton, Georgia (the "City) has the power to provide (a) parks and recreation facilities,
(b) a city hall and (c) public safety facilities (collectively, the "Projects") and
WHEREAS, Article IX, Section III, Paragraph I(a) of the Constitution authorizes,
among other things, any county, municipality or other political subdivision of the State to
contract, for a period not exceeding fifty years, with another county, municipality or political
subdivision or with any other public agency, public corporation or public authority for joint
services, for the provision of services, or for the provision or separate use of facilities or
equipment, provided that such contract deals with activities, services or facilities which the
contracting parties are authorized by law to undertake or to provide; and
WHEREAS, the Issuer proposes to issue, sell and deliver its revenue bond to be
known as the "City of Milton Public Buildings and Facilities Authority Revenue Bond, Series
2014" in the principal amount of $ [Principal Amount] (the "Bond") for the purpose of financing
all or a portion ofthe costs of the Projects and the costs of issuing the Bond; and
WHEREAS, the Issuer and the City propose to enter into this Contract, pursuant
to which the Issuer will agree to issue the Bond, and the City, in consideration of such services
provided by the Issuer, will agree to pay to the Issuer amounts sufficient to pay the debt service
on the Bond; and
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the Issuer and the City, hereto agree as follows:
ARTICLE I.
DEFINITIONS
All capitalized, undefined terms used in this Contract shall have meanings
ascribed to them in the Resolution. The following words and phrases shall have the following
meanings:
"Contract Payments" means the payments due pursuant to Section 4.2 of this
Contract.
"Completion Date" means the date the Projects are complete as evidenced by the
certificate required by Section 3.3 hereof.
"Default" and "Event of Default" mean with respect to any Default or Event of
Default under this Contract any occurrence or event specified and defined by Section 8.1 hereof.
"Resolution" means the resolution of the Issuer adopted on [Resolution Date],
pursuant to which the Bond is authorized to be issued, including any resolution supplemental
thereto.
"State" means the State of Georgia.
"Term" means the duration of this Contract as specified in Section 4.1 hereof.
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ARTICLE II.
REPRESENT ATIONS
Section 2.1. Representations of Issuer.
The Issuer represents as follows:
(a) The Issuer is a body corporate and politic, and a public corporation of the
State duly created and organized under the Constitution and laws of the State. Under the
provisions of the Act, the Issuer is authorized to (i) adopt the Resolution and perform its
obligations thereunder, (ii) issue, execute, deliver and perform its obligations under the
Bond and (iii) execute, deliver and perform its obligations under this Contract. The
Resolution has been duly adopted and has not been modified or repealed. The Issuer has
duly authorized the (i) issuance, execution, delivery and performance of its obligations
under the Bond and (ii) the execution, delivery and performance of its obligations under
this Contract. The Resolution, the Bond and this Contract are valid, binding and
enforceable obligations of the Issuer.
(b) No approval or other action by any governmental authority or agency or
other person is required to be obtained by the Issuer as of the date hereof in connection
with the (i) adoption of the Resolution and the performance of its obligations thereunder,
(ii) issuance, execution, delivery and performance of its obligations under the Bond or
(iii) execution, delivery and performance of its obligations under this Contract, except as
shall have been obtained and remain in full force and effect as of the date hereof,
however, no representation is given with respect to any "blue sky" laws.
(c) The adoption of the Resolution and the performance of its obligations
thereunder, the issuance, execution, delivery and performance of its obligations under the
Bond, the execution, delivery and performance of its obligations under this Contract do
not violate the Act, the Issuer's bylaws, or the laws or Constitution of the State and do
not constitute a breach of or a default under any existing court order, administrative
regulation, or other legal decree, or any agreement, indenture, mortgage, lease, note or
other instrument to which the Issuer is a party or by which it or its property is bound.
(d) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, pending or, to the knowledge of the
Issuer, threatened against or affecting the Issuer (or, to the knowledge of the Issuer, any
meritorious basis therefor) (i) attempting to limit, enjoin or otherwise restrict or prevent
the Issuer from issuing the Bond, (ii) contesting or questioning the existence of the Issuer
or the titles of the present officers of the Issuer to their offices or (iii) wherein an
unfavorable decision, ruling or finding would (A) adversely affect the enforceability of
the Resolution, the Bond or this Contract, or (B) materially adversely affect (1) the
financial condition or results of operations of the Issuer or (2) the transactions
contemplated by this Contract.
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(e) The Issuer is not in violation of the Act, its bylaws, or the laws or
Constitution of the State and is not in default under any existing court order,
administrative regulation, or other legal decree, or any agreement, indenture, mortgage,
lease, note or other instrument to which the Issuer is a party or by which it or its property
is bound.
(f) The Issuer, in issuing the Bond to finance the Projects, will be acting in
accordance with the public purpose expressed in the Act.
Section 2.2. Representations of the City.
The City represents as follows:
(a) The City is a municipal corporation duly created and organized under the
Constitution and laws of the State. Under the Constitution and laws of the State, the City
is authorized to (i) execute, deliver and perform its obligations under this Contract and
(ii) acquire, construct and equip the Projects. The City has duly authorized the
(i) execution, delivery and performance of this Contract and (ii) acquisition, construction
and equipping of the Projects. This Contract is a valid, binding and enforceable
obligation of the City.
(b) No approval or other action by any governmental authority or agency or
other person is required to be obtained by the City as of the date in connection with (i) the
execution, delivery and performance of its obligations under this Contract or (ii)
acquisition, construction and equipping of the Projects, except as shall have been
obtained and remain in full force and effect as of the date hereof.
(c) The (i) execution, delivery and performance of its obligations under this
Contract and (ii) acquisition, construction and equipping of the Projects do not violate its
Charter, the laws or Constitution of the State and do not constitute a breach of or a default
under any existing court order, administrative regulation, or other legal decree, or any
agreement, indenture, mortgage, lease, note or other instrument to which the City is a
party or by which it or its property is bound.
(d) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, pending or, to the knowledge of the
City, threatened against or affecting the City (or, to the knowledge of the City, any
meritorious basis therefor) (i) attempting to limit, enjoin or otherwise restrict or prevent
the City from acquiring, constructing and equipping the Projects, (ii) contesting or
questioning the existence of the City or the titles of the present officers of the Board to
their offices or (iii) wherein an unfavorable decision, ruling or finding would
(A) adversely affect the enforceability of this Contract, or (B) materially adversely affect
(1) the financial condition or results of operations of the City or (2) the transactions
contemplated by this Contract.
(e) The City is not in violation of its Charter, the laws or the Constitution of
the State and is not in default under any existing court order, administrative regulation, or
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other legal decree, or any agreement, indenture, mortgage, lease, note or other instrument
to which the City is a party or by which it or its property is bound.
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ARTICLE III.
ISSUANCE OF THE BOND; ACQUISITION, PROJECTS,
AND EQUIPPING OF THE PROJECTS
Section 3.1. Agreement to Issue the Bond; Application of Bond Proceeds.
The Issuer agrees that it will issue the Bond. The proceeds from the sale of the
Bond shall be applied as provided in the Resolution, and the City hereby approves the issuance
of the Bond. The Issuer shall deliver a certified copy of the Resolution to the City promptly
upon adoption thereof.
Section 3.2. Agreement to Acquire, Construct and Equip the Projects.
The Issuer hereby appoints the City as its sole agent for purposes of acquiring,
constructing and equipping the Projects. Such appointment is irrevocable and is coupled with an
interest. The City hereby agrees that it will proceed with acquiring, constructing and equipping
the Projects. The City shall obtain or cause to be obtained all necessary approvals from any and
all governmental agencies requisite to undertaking the acquisition, construction and equipping of
the Projects. The Projects shall be acquired, constructed and equipped in compliance with all
federal, state and local laws, ordinances and regulations applicable thereto. The City will take or
cause to be taken such action and institute or cause to be instituted such proceedings as it shall
deem appropriate to cause and require all contractors and suppliers of materials to complete their
contracts, including the correcting of any defective work. Any amounts recovered by way of
damages, refunds, adjustments or otherwise in connection with the foregoing shall (a) if the City
has corrected at its own expense the matter which gave rise to such default or breach, be paid to
the City or (b) if the City has not corrected at its own expense the matter which gave rise to such
default or breach, be applied to the prepayment of the Bond or the Projects.
The City shall use its best efforts to cause the acquisition, construction and
equipping of the Projects to be completed as soon as may be practical, delays incident to strikes,
riots, acts of God or the public enemy beyond the reasonable control of the City excepted; but if
for any reason such acquisition, construction and equipping is not completed by any specified
date there shall be no resulting liability on the part of the City.
THE ISSUER DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION (EITHER EXPRESS OR IMPLIED) THAT THE PROCEEDS OF THE
BOND WILL BE SUFFICIENT TO PAY ALL THE COSTS OF THE PROJECTS AND THE
COSTS OF ISSUING THE BOND. The City shall pay any shortfalls.
The City shall prepare the Requisitions required by the Resolution.
The Projects shall be titled in the name of the City.
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Section 3.3. Establishment of Completion Date.
The Completion Date shall be evidenced by a certificate signed by a duly
authorized representative of the City stating that (a) the Projects have been completed and (b) all
costs of issuance have been paid.
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ARTICLE IV.
EFFECTIVE DATE OF THIS CONTRACT;
DURATION OF TERM; CONTRACT PAYMENT PROVISIONS
Section 4.1. Effective Date of this Contract; Duration of Term.
This Contract shall remain in full force and effect from the date hereof to and
including the later of (a) ,or (b) the date the Bond and the fees and expenses of the
Issuer, the custodians and depositories, the Paying Agent, the Bond Registrar and the
Authenticating Agent shall have been fully paid or provision made for such payment, whichever
is later, but in no event later than 50 years from the date hereof.
Section 4.2. Contract Payments.
(a) The City agrees to pay to the Issuer (or its assignee or designee) amounts
sufficient to enable the Issuer to pay all amounts due and owing under the Bond, including, but
not limited to, the principal of and interest on the Bond, late charges and the prepayment fee (if
any), whether by maturity, prepayment, acceleration or otherwise. The Issuer has assigned the
Contract Payments to the owner of the Bond, and the City consents to such assignment. The
Issuer hereby directs the City to make the Contract Payments directly to the Sinking Fund
Custodian unless the Issuer, the City and the owner of the Bond shall provide otherwise pursuant
to Section 208 of the Resolution.
(b) The City will also pay the reasonable fees and expenses of all custodians
and depositories, the Paying Agent, Bond Registrar and Authenticating Agent and of their
successors and assigns as provided by Section 702 of the Resolution, such reasonable fees and
expenses to be paid directly to the party to whom the payment is due when such reasonable fees
and expenses become due and payable.
(c) In the event the City should fail to make any of the payments required in
this Section 4.2, the item or installment so in Default shall continue as an obligation of the City
until the amount in Default shall have been fully paid, and the City agrees to pay the same with
interest thereon at the rate borne by the Bond, to the extent permitted by law, from the date
thereof.
(d) The City shall have and is hereby granted the option to prepay from time
to time payments due under this Contract, but only in accordance with the provisions of the
Resolution, in amounts sufficient to payor cause to be paid the Bond in accordance with the
provisions of the Resolution.
Section 4.3. Obligations of the City Hereunder Unconditional.
The obligations of the City to make the payments required in Section 4.2 and
other sections hereof and to perform and observe the other agreements contained herein shall be
absolute and unconditional and shall not be subject to any defense or any right of setoff,
counterclaim or recoupment arising out of any breach by the Issuer of any obligation to the City,
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whether hereunder or otherwise, or out of any indebtedness or liability at any time owing to the
City by the Issuer. Until such time as the principal of and interest and prepayment premium (if
any) on the Bond shall have been fully paid or provision for the payment thereof shall have been
made in accordance with the Resolution, the City (a) will not suspend or discontinue any
payments provided for in Section 4.2 hereof, (b) will perform and observe all of its other
agreements contained in this Contract and ( c) will not terminate the Contract for any cause,
including, without limiting the generality of the foregoing, the occurrence of any acts or
circumstances that may constitute failure of consideration, commercial frustration of purpose,
any change in the laws of the United States of America or of the State or any political
subdivision of either thereof or any failure of the Issuer to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation arising out of or connected with
this Contract. Nothing contained in this Section shall be construed to release the Issuer from the
performance of any of the agreements on its part herein contained, and in the event the Issuer
should fail to perform any such agreement on its part, the City may institute such action against
the Issuer as the City may deem necessary to compel performance so long as such action does
not abrogate the obligations of the City contained in the first sentence of this Section.
Section 4.4. Security for Contract Payments.
The City shall levy an annual tax on all taxable property located within the City
subject to such tax, within the 4.731 millage limitation currently in effect or at such higher rate
as may be authorized by future laws (the "Maximum Millage Rate"), in the amounts necessary to
produce in each fiscal year revenues sufficient to fulfill the City's obligations hereunder;
provided, however, nothing herein contained shall be construed as limiting the right of the City
to pay its obligations hereunder from other sources lawfully available for such purpose.
Section 4.5. Enforcement of Obligations.
The obligation of the City to make Contract Payments under this Article may be
enforced by (a) the Issuer, (b) the Holder of the Bond, independently of the Issuer, or (c) such
receiver or receivers as may be appointed pursuant to the Resolution or applicable law. The
covenants and agreements hereunder, including specifically the obligation to make the Contract
Payments, shall be enforceable by specific performance; it being acknowledged and agreed by
the Issuer and the City that no other remedy at law is adequate to protect the interests of the
parties hereto or the interests of the Bondholder.
Section 4.6. Appropriation Obligation.
In the event for any reason any Contract Payments are not made as provided in
Section 4.2, then the fiscal officers of the City are hereby authorized and directed to set up an
appropriation on their accounts, or other available funds, in such amounts as may be required to
pay the obligations which may be due and payable hereunder by the City. The amount of such
appropriation, or designation of funds, shall be due and payable and shall be expended for the
purpose of paying all obligations of the City hereunder. Such appropriation and/or payment
from available funds shall have the same legal status as if the City had included the amount in its
general revenue, appropriation and budgetary measures. The fiscal officers of the City shall
9
make such Contract Payments directly to the owner of the Bond, if for any reason the payment of
such obligations shall not otherwise have been made.
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ARTICLE V.
SPECIAL COVENANTS
Section 5.1. Additional Debt.
The City will not incur any other debt without the consent of the Bondholder
unless (a) the repayment of such debt is not (i) payable from generally applicable taxes or
(ii) subject to a millage limitation or (b) the revenues derived from the Maximum Millage Rate,
together with any other legally available funds, equal at least __x all amounts payable from
the general fund in the current fiscal year plus the maximum annual debt service on the proposed
debt.
Section 5.2. Further Assurances and Corrective Instruments.
The Issuer and the City agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required for carrying out
the expressed intention of this Contract.
Section 5.3. Issuer and City Representatives.
Whenever under the provisions of this Contract the approval of the Issuer or the
City is required or the Issuer or the City is required to take some action at the request of the
other, such approval or such request shall be given for the Issuer by its designated representative
and for the City by its designated representative.
Section 5.4. City's Obligations in the Resolution.
The City agrees to perform all of its obligations (if any) under, and to comply
with all of the terms of, the Resolution.
Section 5.5. Financial Statements.
The City shall provide a copy of audited financial statements to the owner of the
Bond within 270 days of the end of each fiscal year.
Section 5.6. Provisions Respecting Insurance.
The City agrees to cause to be maintained all necessary insurance with respect to
the Projects in accordance with its customary insurance practices.
Section 5.7. Operation and Maintenance of the Projects.
The City agrees that, at all times during the term of this Contract (a) the City will
cause the Projects to be operated and maintained in good repair and in accordance herewith and
(b) the City will be responsible for maintaining and operating the Projects. Without limiting the
foregoing, the City agrees that it will maintain the Projects in an efficient and economical
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manner, that it will at all times maintain the Projects in good repair and in sound operating
condition, that it will make all necessary repairs and replacements to the Projects, and that it will
comply with all valid acts, rules, regulations, orders and directions of any legislative, executive,
administrative or judicial body applicable to the Projects and its operation thereof.
Section 5.S. Tax Covenants.
The Issuer and the City shall take all actions required to maintain the tax-exempt
status of the Bond and shall refrain from taking any actions that will adversely affect the tax
exempt status of the Bond.
Section 5.9. Release and Indemnification Covenants.
(a) To the extent permitted by law, the City hereby agrees to release the Issuer
from and to indemnify the Issuer for any and all liabilities and claims against the Issuer arising
from the conduct or management of the Projects, or from any work or thing done on or with
respect to the Projects, or the financing or refinancing of the Projects, including without
limitation, (i) any condition of the Projects, (ii) any breach or Default on the part of the City in
the performance of any of its obligations under this Contract, (iii) any act or negligence of the
City or of any of its agents, contractors, servants, employees or licensees, or (iv) any act or
negligence of any assignee or lessee of the City, or of any agents, contractors, servants,
employees or licensees of any assignee or lessee of the City or (v) any material statement or
omission by the City in connection with the sale of the Bond. Upon notice from the Issuer, the
City shall defend the Issuer in any such action or proceeding. In addition, to the extent permitted
by law, the City agrees to release the Sinking Fund Custodian, the Paying Agent, the
Authenticating Agent and the Bond Registrar and shall indemnify and hold them harmless
against any loss, liability or other expense incurred without gross negligence or bad faith on the
part of the Sinking Fund Custodian, the Paying Agent, the Authenticating Agent or the Bond
Registrar arising out of or in connection with the acceptance or administration of the duties of the
Sinking Fund Custodian, the Paying Agent, the Authenticating Agent or the Bond Registrar
under the Resolution, including the costs and expenses of defending against any such claim or
liability.
(b) Anyone or more of the parties indemnified in this Section 5.9 shall have
the right to employ separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such parties unless the
employment of such counsel has been specifically authorized by the City.
(c) Notwithstanding the foregoing provisions of this Section 5.9, the City
shall not indemnify the Issuer, the Sinking Fund Custodian, the Paying Agent, the Authenticating
Agent or the Bond Registrar for any claim or loss arising as a result of the gross negligence or
willful misconduct of the Issuer, the Sinking Fund Custodian, the Paying Agent, the
Authenticating Agent or the Bond Registrar, or for any claim that the City is prohibited by law
from providing indemnification to such party.
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(d) F or purposes of this Section 5.9, all references to the Issuer, the Sinking
Fund Custodian, the Paying Agent, the Authenticating Agent and the Bond Registrar shall
include its present and future directors, officers, members, agent and employees.
(e) The provisions of this Section 5.9 shall survive the tennination of this
Contract.
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ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default Defined.
The following shall be "Events of Default" under this Contract and the terms
"Event of Default" and "Default" shall mean, whenever they are used in this Contract, anyone or
more of the following events:
(a) Failure by the City to make the payments required to be paid under
Section 4.2 hereof.
(b) Failure by the City or the Issuer to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than as referred to
in subparagraph (a) of this Section 6.1, for a period of 30 days after written notice
specifying such failure and requesting that it be remedied is given to the defaulting party
by the nondefaulting party, unless the nondefaulting party shall agree in writing to an
extension of such time prior to its expiration; provided, however, if the failure stated in
the notice be such that it cannot be corrected within the applicable period, it shall not
constitute an Event of Default if corrective action is instituted by the defaulting party
within the applicable period and is being diligently pursued until the Default is corrected.
(c) Any representation or warranty made in this Contract shall be found
untrue.
(d) The occurrence of an Event of Default under the Resolution.
Section 6.2. Remedies on Default.
Whenever any Event of Default referred to in Section 6.1 hereof shall have
happened and be continuing, the nondefaulting party or the Bondholder may take anyone or
more of the following remedial steps:
(a) Any nondefaulting party or the Bondholder may seek the appointment of a
receiver for the Projects;
(b) Any nondefaulting party or the Bondholder may take whatever action at
law or in equity may appear necessary or desirable to collect the Contract Payments then
due and thereafter to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the City or the Issuer under this Contract; and
(c) The Bondholder may exercise any remedies provided for in the
Resolution, or any other documents executed in connection therewith.
Any amounts collected pursuant to action taken under this Section 6.2 shall be
paid into the Sinking Fund and applied in accordance with the provisions of the Resolution.
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Section 6.3. No Remedy Exclusive.
No remedy herein conferred upon or reserved to the Issuer is intended to be
exclusive of any other remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Contract or now or hereafter
existing at law or in equity. No delay or omission to exercise any right or power accruing upon
any Default shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right or power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than such notice as may be required in this
Article. The owner of the Bond, subject to the provisions of the Resolution, shall be entitled to
the benefit of all covenants and agreements herein contained.
Section 6.4. Agreement To Pay Attorneys' Fees and Expenses.
In the event the City should Default under any of the provisions of this Contract
and the Issuer or the Bondholder should employ attorneys or incur other expenses for the
collection of payments or the enforcement of performance or observance of any obligation or
agreement on the part of the City herein contained, the City agrees that it will on demand
therefor pay to the Issuer or the Bondholder the reasonable fee of such attorneys and such other
reasonable expenses so incurred by the Issuer or the Bondholder.
Section 6.5. No Additional Waiver Implied by One Waiver.
In the event any agreement contained in this Contract should be breached by
either party and thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder.
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ARTICLE VII.
MISCELLANEOUS
Section 7.1. Notices.
All notices, certificates or other conununications hereunder shall be sufficiently
given and shall be deemed given when delivered or mailed by registered mail, postage prepaid,
addressed as follows: if to the Issuer, c/o City of Milton, 13000 Deerfield Parkway, Suite 107,
Milton, Georgia, 30004,: Attention Chairperson, if to the City, to City of Milton, 13000
Deerfield Parkway, Suite 107, Milton, Georgia, 30004, Attention: City Manager. The Issuer and
the City may, by written notice given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications shall be sent.
Section 7.2. Binding Effect.
This Contract shall inure to the benefit of and shall be binding upon the Issuer, the
City, the owner of the Bond and their respective successors and assigns.
Section 7.3. Severability.
In the event any provision of this Contract shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable
any other provision hereof.
Section 7.4. Amounts Remaining in Funds.
It is agreed by the parties hereto that any amounts remaining in any funds or
accounts created under the Resolution upon expiration or earlier termination of the Contract, as
provided in this Contract, after payment in full of the Bond (or provision for payment thereof
having been made in accordance with the provisions of the Resolution) and all other amounts
owing hereunder, shall belong to and be paid to the City.
Section 7.5. Amendments, Changes and Modifications.
This Contract may not be effectively amended, changed, modified, altered or
terminated except as provided in the Resolution.
Section 7.6. Execution in Counterparts.
This Contract may be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
Section 7.7. Applicable Law.
This Contract shall be governed by and construed in accordance with the laws of
the State of Georgia.
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Section 7.8. Captions.
The captions and headings in this Contract are for convenience only and in no
way define, limit or describe the scope or intent of any provisions or Sections of this Contract.
Section 7.9. No Personal Recourse.
No personal recourse shall be had for any claim based on this Contract against
any member, officer or employee of the Issuer or the City in his or her individual capacity.
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IN WITNESS WHEREOF, the Issuer has caused this Contract to be executed in
its corporate name and with its corporate seal hereunto affixed and attested by its duly authorized
officials. The City has caused this Contract to be executed in its corporate name and with its
corporate seal hereunto affixed and attested by its duly authorized officials all of the above
occurred as of the date first above written.
CITY OF MILTON PUBLIC BUILDINGS AND
FACILITIES AUTHORITY
By: ____---..,;;._~_iI_-------
Chairperson, Joe 0
Attest:
By:_--L._____-7'''-+-__
Secretary, Rick Mohr'
(Intergovernmental Contract)
CITY OF MILTON, GEORGIA
By· W'Joe Lockwood, M~
Attest: .. ~,! ,j ,
. i'~'
(Intergovernmental Contract)