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HomeMy WebLinkAboutSupplemental Resolution Authorizing The Execution, Delivery and Performance of An Intergovernmental Contract Relating to The City of Milton Public Buildings & Facilities Authority Revenue Bonds Series0 STATE OF GEORGIA COUNTY OF FULTON 0 RESOLUTION NO. SUPPLEMENTAL RESOLUTION AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF AN INTERGOVERNMENTAL CONTRACT RELATING TO THE CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY REVENUE BOND, SERIES 2014 WHEREAS, the City of Milton Public Buildings and Facilities Authority (the "Issuer") authorized the issuance of a revenue bond (the "Bond") in a principal amount not to exceed $10,000,000 pursuant to a resolution adopted by the Issuer on May 19, 2014 (the "Authorizing Resolution"); and WHEREAS, the Authorizing Resolution provides that the principal amount, interest rate and prepayment provisions will be set forth in a bond resolution to be adopted by the Issuer prior to the issuance of the Bond (the "Bond Resolution"); and WHEREAS, the Issuer adopted the Bond Resolution on the date hereof, and WHEREAS, the City of Milton, Georgia (the "City") authorized the execution, delivery and performance of an Intergovernmental Contract relating to the Bond (the "Intergovernmental Contract") pursuant to a resolution adopted by the Mayor and Council of the City on May 19, 2014; and WHEREAS, the final terms of the Intergovernmental Contract have been determined; and WHEREAS, the City proposes approving the terms of the Bond Resolution and the final terms of the Intergovernmental Contract; and WHEREAS, the City also proposes adopting policies and procedures relating specifically to its tax-exempt debt (the "Tax -Exempt Debt Policy"). NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MILTON HEREBY RESOLVES, and it is hereby resolved by authority of the same, as follows: 1. Bond Resolution. The City acknowledges receipt of the Bond Resolution and the terms contained therein. 2. Authorization of Intergovernmental Contract. The execution, delivery and performance of the Intergovernmental Contract are hereby authorized. The Intergovernmental Contract shall be in substantially the form attached hereto as Exhibit A, with such changes, insertions or omissions as may be approved by the Mayor or Mayor Pro -Tem of the City, and the execution and delivery by the City of the Intergovernmental Contract as hereby authorized shall be conclusive evidence of the approval of any such changes, omissions or insertions. Approval of Policy. The Policy attached hereto as Exhibit B is hereby approved. 4. Ratification. All actions taken by the council members, officers, employees and agents of the City which are in furtherance of the transactions contemplated by this Supplemental Resolution are hereby ratified and affirmed. 5. General Authority. The Mayor, Mayor Pro -Tem, Clerk and the employees, officers and agents of the City 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 Supplemental Resolution. 6. Repealing Clause. All resolutions or ordinances or parts thereof of the City in conflict with the provisions contained in this Supplemental Resolution are, to the extent of such conflict, hereby superseded and repealed. 7. Effective Date. This Supplemental Resolution shall be effective immediately upon its adoption. Adopted and approved this 17th day of November, 2014. CITY OF MILTON, GEORGIA ATTEST: By: Mayor Joe ckwood 2??M� Sudie AM Gordon, City Clerk 2 • 0 Exhibit A CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY AND CITY OF MILTON, GEORGIA INTERGOVERNMENTAL CONTRACT Dated as of November 1, 2014 The rights and interest of City of Milton Public Buildings and Facilities Authority in this Intergovernmental 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 Building 5, Suite 515 3525 Piedmont Road NE Atlanta, GA 30305 (678) 999-0350 INTERGOVERNMENTAL CONTRACT TABLE OF CONTENTS (This Table of Contents is not a part of the Intergovernmental Contract and is only for convenience of reference.) ARTICLE I. DEFINITIONS...........................................................................................................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 EQUIPPING 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. Levy 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. Further Assurances and Corrective Instruments........................................1 l Section 5.2. Issuer and City Representatives.................................................................1 l Section 5.3. City's Obligations in the Resolution..........................................................I l Section 5.4. Financial Statements..................................................................................11 Section 5.5. Provisions Respecting Insurance . .............................................................. I l Section 5.6. Operation and Maintenance of the Projects...............................................11 Section5.7. Tax Covenants...........................................................................................12 Section 5.8. Release and Indemnification Covenants....................................................12 ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES........................................................13 Section 6.1. Events of Default Defined.........................................................................13 Section 6.2. Remedies on Default..................................................................................13 Section 6.3. No Remedy Exclusive................................................................................14 Section 6.4. Agreement To Pay Attorneys' Fees and Expenses....................................14 Section 6.5. No Additional Waiver Implied by One Waiver.........................................14 H 9 ARTICLE VII. MISCELLANEOUS.............................................................................................15 Section7.1. Notices.......................................................................................................15 Section7.2. Binding Effect............................................................................................15 Section7.3. Severability................................................................................................15 Section 7.4. Amounts Remaining in Funds...................................................................15 Section 7.5. Amendments, Changes and Modifications................................................15 Section 7.6. Execution in Counterparts..........................................................................15 Section 7.7. Applicable Law..........................................................................................15 Section7.8. Captions.....................................................................................................16 Section 7.9. No Personal Recourse................................................................................16 MH 0 • THIS INTERGOVERNMENTAL CONTRACT is entered into as of November 1, 2014 (this "Contract"), between the CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY (the "Issuer"), and the CITY OF MILTON, GEORGIA (the "City"). WITNESSETH: 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 parks and recreation facilities; 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 face amount of $10,000,000 (the "Bond") for the purpose of financing the expansion, improvement and equipping of Bell Memorial Park 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: 0 ARTICLE I. DEFINITIONS 0 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 6.1 hereof. "Resolution" means the resolution of the Issuer adopted on November 17, 2014, 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. 2 ARTICLE II. REPRESENTATIONS 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. 3 0 • (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 4 F- L� 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. 5 0 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. C: 0 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. 7 • ARTICLE IV. 0 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) November 1, 2029 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 pay or 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, • 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. Levy 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, 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 DI 0 • 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. 10 0 • ARTICLE V. SPECIAL COVENANTS Section 5.1. 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 5.2. 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 5.3. 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 5.4. 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 5.5. 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 5.6. 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 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 5.7. 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 5.8. 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) Any one 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. (d) For 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. Contract. (e) The provisions of this Section 5.9 shall survive the termination of this 12 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, any one 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. untrue. (c) Any representation or warranty made in this Contract shall be found (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 any one 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. 13 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. 14 0 • ARTICLE VII. MISCELLANEOUS Section 7.1. Notices. All notices, certificates or other communications 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. 15 0 • 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. �1 0 L� 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. (SEAL) Attest: By: Secretary CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY Chairperson (Intergovernmental Contract) (SEAL) Attest: Clerk CITY OF MILTON, GEORGIA 0 Mayor (Intergovernmental Contract) 0 • EXHIBIT B POLICY WITH RESPECT TO TAX-EXEMPT DEBT OF THE CITY OF MILTON, GEORGIA OBJECTIVE To comply with all applicable federal and state laws, rules and regulations related to the issuance of tax-exempt debt (the "Debt"). SCOPE This policy (the "Policy") applies to all Debt issued by or for the benefit of the City of Milton, Georgia (the "City") and its related entities. POLICY The City shall comply with all federal and state laws, rules and regulations related to the issuance of Debt. RESPONSIBILITY The City Treasurer shall be administratively responsible for the Policy. The City Treasurer shall be responsible for reviewing the requirements and responsibilities of the City under the Policy with bond counsel on or before the closing date of any Debt issued by the City. DISSEMINATION AND TRAINING The Policy shall be disseminated to all relevant personnel in the City and to the auditor. The City Treasurer shall provide appropriate training to all personnel directly involved in the administration of tax-exempt debt to ensure they comply with the provisions of the Policy. The City Treasurer shall consult as appropriate with qualified attorneys with respect to the content of such training. REVIEW The Policy shall be reviewed and revised annually by the City Treasurer and redistributed to all relevant personnel in the City and to the auditor. The City Treasurer shall annually conduct a due diligence review of all Debt currently outstanding to ensure proper compliance with each of the provisions of the Policy. If City Treasurer discovers non-compliance with any provisions of the Policy, steps necessary to correct the noncompliance will be taken within ten (10) business days of the conclusion of the annual due diligence review. Records of all corrective action taken shall be retained in accordance with the Policy. PROVISIONS Record Keeping All records relating to the Debt needed to comply with Section 6001 of the Internal Revenue Code of 1986, as amended (the "Code") shall be maintained. These records shall be kept in paper or electronic form and shall include, among other things, (i) basic records relating to the transaction (including the bond documents, the opinion of bond counsel, etc.), (ii) documents evidencing the expenditure of the proceeds of the Debt, (iii) documentation evidencing the use of Debt-financed property by public and private entities (e.g., copies of management contracts, leases and research agreements) and (iv) documentation pertaining to any investment of Debt proceeds (including the purchase and sale of securities, SLG subscriptions, yield calculations for each class of investments, actual investment income received from the investment of the proceeds of the Debt, guaranteed investment contracts and rebate calculations. Such records must be maintained as long as the Debt is outstanding, plus three years after the final payment or redemption date of the respective Debt. Use of Proceeds A list of all property financed with the proceeds of the Debt shall be created and maintained. The use of such property shall be monitored to ensure that such use does not constitute "private business use" within the meaning of the Code. Without limiting the foregoing, each contract, including but not limited to management contracts and leases, relating to such property shall be reviewed by legal counsel prior to the execution of such contract. The list of property shall be reviewed at least annually to ensure that none of the property has been sold. Remedial Action In the event that property financed with the proceeds of the Debt is used in a manner that constitutes "private business use" or the property is sold, the remediation provisions of Treasury Regulation § 1.141-12 shall be carried out in consultation with bond counsel. Yield Restriction If bond counsel advises that a fund or account needs to be yield restricted (i.e., not invested at a yield in excess of the Debt), the moneys on deposit in such fund or account shall be invested in United States Treasury Obligations — State and Local Government Series, appropriate "yield reduction payments" shall be made if permitted by the Code or the City Treasurer shall establish other procedures to ensure that such fund or account is yield restricted. Rebate At the time the Debt is issued, the City Treasurer shall determine if he or she reasonably expects that one of the arbitrage rebate exceptions will be satisfied. If the arbitrage rebate exception relates to the time period over which the proceeds of the Debt are spent, the City Treasurer shall verify that the appropriate expenditures have been made at each milestone. If one of the milestones is not satisfied or the City Treasurer does not reasonably expect that one of the arbitrage rebate exceptions will be satisfied, an outside arbitrage rebate consultant shall be retained unless the City Treasurer has determined that positive arbitrage will not be earned. 4 • Continuing Disclosure The City shall record and comply with any continuing disclosure undertaking entered into with respect to Debt. The City Treasurer shall catalogue and determine any continuing disclosure undertaking entered into by the City prior to the imposition of the Policy to ensure that its continuing disclosure obligations will be updated and satisfied going forward. The City Treasurer will implement appropriate procedures to ensure that annually recurring disclosure obligations are timely fulfilled. Upon the occurrence of an event requiring the filing of an events notice under any continuing disclosure obligation, the City Treasurer will ensure such event notice is filed within ten (10) business days of the occurrence of such event.