HomeMy WebLinkAboutResolutions 19-09-514 - 10/09/2019 - Authorize IGA re: issuance of COM Revenue BondsSTATE OF GEORGIA RESOLUTION NO. 19-09-514
COUNTY OF FULTON
A RESOLUTION TO AUTHORIZE AND APPROVE THE EXECUTION AND
DELIVERY OF AN INTERGOVERNMENTAL CONTRACT AND THE
DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT
RELATING TO THE ISSUANCE OF THE CITY OF MILTON PUBLIC
BUILDINGS AND FACILITIES AUTHORITY REVENUE BONDS, SERIES
2019
WHEREAS, the City of Milton Public Buildings and Facilities Authority (the "Authority")
was duly created and is validly existing pursuant to the City of Milton Public Buildings and Facilities
Authority Act of the State of Georgia (2007 Ga. L., p. 4264, et seq., as amended) (the "Act"); and
WHEREAS, pursuant to the Act, the Authority 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, the City of Milton, Georgia (the "City") is a municipal corporation of the State
of Georgia, legally created and validly existing under the laws of the State of Georgia; and
WHEREAS, Article IX, Section III, Paragraph I(a) of the Constitution of the State of
Georgia 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 Authority proposes to issue its Revenue Bonds, Series 2019, in an aggregate
principal amount of up to $29,000,000 (the "Bonds") for the purpose of (a) paying all or a portion of
the costs of (i) constructing and equipping new buildings that will house a police station, fire
stations, and a courthouse, and (ii) equipping all City fire stations with a new alerting system (the
"Projects"), (b) refunding the Authority's Revenue Bond, Series 2014 and (c) paying the costs of
issuing the Bonds pursuant to a resolution proposed to adopted by the Authority on September 9,
2019 (the "Resolution"); and
WHEREAS, the Authority and the City propose to enter into an Intergovernmental Contract,
dated as of October 1, 2019 or the first day of the month in which the Bonds are actually issued (the
"Contract"), pursuant to which the Authority will agree to, among other things, issue the Bonds, and
the City will agree to, among other things, (a) acquire, construct, equip and operate the Projects,
(b) pay the Authority amounts sufficient to enable the Authority to pay the debt service on the Bonds
(the "Contract Payments") and (c) levy an ad valorem property tax, within the 4.731 millage
limitation currently in effect or at such higher rate as may be authorized by future law, on all property
in the City subject to such tax in order to make such Contract Payments; and
WHEREAS, the Bonds will be secured by a first lien on the Contract, the Contract Payments
and the moneys and investments in the funds created in the resolution authorizing the issuance of the
Bonds; and
WHEREAS, the City proposes to authorize the distribution of a Notice of Sale and a
Preliminary Official Statement (the "Preliminary Official Statement") relating to the Bonds.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF MILTON HEREBY
RESOLVES, as follows:
Section 1. Authorization of Financing of the Projects. The financing of the Projects as
described above is hereby authorized.
Section 2. Authorization of Bonds, Acknowledgment of Resolution. The issuance of the
Bonds by the Authority is hereby authorized to the extent necessary. The City hereby acknowledges
receipt of the Resolution.
Section 3. Authorization of the Contract. The execution, delivery and performance of the
Contract are hereby authorized. The Contract shall be executed by the Mayor or Mayor Pro Tem.
The City Clerk may attest the same and the seal may be impressed thereon. The Contract shall be in
substantially the form attached hereto as Exhibit "A," subject to such changes, insertions and
omissions as may be approved by the person executing the same, and the execution of the Contract
shall be conclusive evidence of any such approval. The Contract is by this reference thereto spread
upon the minutes.
Section 4. Authorization of Preliminary Official Statement; Deemed Final Certificate and
Continuing Disclosure Certificate. The distribution of a Notice of Sale and a Preliminary Official
Statement is hereby authorized. The formal award of the sale of the Bonds shall be determined by
the Authority in a supplemental resolution adopted by the Authority prior to the issuance of the
Bonds. The execution of a certificate deeming the Preliminary Official Statement final for purposes
of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended (the "Rule")
by the Mayor or Mayor Pro Tem is hereby authorized. The execution of a continuing disclosure
certificate required by the Rule by the Mayor or Mayor Pro Tem is hereby authorized.
Section 5. Validation of Bonds. The Mayor, Mayor Pro Tem and City Clerk of the City are
authorized to execute and file an answer and to execute any and all further instruments and pleadings
as they might deem necessary to validate the Bonds in the Superior Court of Fulton County.
Section 6. General Authority. The proper officers, employees and agents of the City are
hereby authorized, empowered and directed to do all such acts and things, including, but not limited
to making covenants on behalf of the City and to execute all such documents and certificates as may
be necessary to carry out the transactions contemplated by this resolution.
Section 7. Actions Approved and Confirmed. All acts and doings of the officers, employees
and agents of the City which are in conformity with the purposes and intent of this resolution are
hereby authorized and approved.
Section 8. RevealingClause. lause. Any and all resolutions or parts of resolutions in conflict with
this resolution are hereby repealed.
Section 9. Effective Date. This resolution shall take effect immediately upon its adoption.
ADOPTED this 9th day of September, 2019.
COUNCIL OF THE CITY OF MILTON,
GEORGIA
By: �.
Mayor
ATTE T:
Cit erk
EXHIBIT "A"
INTERGOVERNMENTAL CONTRACT
INTERGOVERNMENTAL CONTRACT
between
CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY
and
CITY OF MILTON, GEORGIA
Dated as of October 1, 2019
This document was prepared by:
Murray Barnes Finister LLP
Building 5, Suite 515
3525 Piedmont Road NE
Atlanta, GA 30305
(678) 999-0350
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1
Section1.1.
Definitions....................................................................................................
ARTICLE II. REPRESENTATIONS..............................................................................................4
Section 2.1.
Representations by the Authority.................................................................4
Section 2.2.
Representations by the City.........................................................................5
ARTICLE III. ISSUANCE OF THE BONDS; APPLICATINO OF BOND PROCEEDS ............7
Section 3.1.
Agreement to Issue Bonds...........................................................................7
Section 3.2.
Application of Bond Proceeds.....................................................................7
ARTICLE IV. COMMENCEMENT
AND COMPLETION OF THE PROJECTS ........................8
Section 4.1.
Agreement to Acquire, Construct and Equip the Projects ...........................8
Section 4.2.
Establishment of Completion Date..............................................................8
Section 4.3.
In Event Bond Proceeds Insufficient...........................................................8
ARTICLE V. EFFECTIVE DATE AND DURATION OF THIS CONTRACT;
PAYMENT PROVISIONS; TAX LEVY AND LIENS.......................................9
Section 5.1.
Effective Date of this Contract; Duration of Contract Term.......................9
Section 5.2.
Contract Payments.......................................................................................9
Section 5.3.
Prepayment of Contract Payments...............................................................9
Section 5.4.
Obligations of City Hereunder Absolute and Unconditional .......................9
Section 5.5.
Tax Levy to Pay Contract Payments..........................................................10
ARTICLE VI. SPECIAL
COVENANTS OF CITY......................................................................I
l
Section 6.1.
Operation of the Projects...........................................................................
I I
Section6.2.
Insurance....................................................................................................
I I
Section 6.3.
Paying Agent, Bond Registrar and Custodians..........................................I
I
Section 6.4.
Compliance with Resolution......................................................................I
I
Section 6.5.
Indemnification..........................................................................................
I I
Section 6.6.
Disclosure Certificate.................................................................................12
ARTICLE VII. SPECIAL COVENANTS OF AUTHORITY AND CITY..................................13
Section 7.1.
Further Assurances and Corrective Instrument, Recordings and
Filings........................................................................................................13
Section 7.2.
Tax Covenants...........................................................................................13
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.....................................................14
Section 8.1.
Events of Default Defined.........................................................................14
Section 8.2.
Remedies on Default..................................................................................14
Section 8.3.
No Remedy Exclusive................................................................................14
Section 8.4.
Agreement to Pay Attorneys' and Consultant's Fees and Expenses . ........
15
Section 8.5.
No Additional Waiver Implied by One Waiver.........................................15
ARTICLE IX. MISCELLANEOUS
..............................................................................................16
i
Section9.1.
Notices.......................................................................................................16
Section 9.2.
Binding Effect............................................................................................16
Section 9.3.
Severability................................................................................................16
Section 9.4.
Third -Party Beneficiaries...........................................................................16
Section 9.5.
Amendments, Changes and Modifications................................................16
Section 9.6.
Execution Counterparts..............................................................................16
Section9.7.
Captions.....................................................................................................17
Section 9.8.
Law Governing Construction of Contract..................................................17
Exhibit A- Form of Completion Certificate
ii
INTERGOVERNMENTAL CONTRACT
THIS INTERGOVERNMENTAL CONTRACT is entered into as of October 1,
2019 (this "Contract"), by and between the CITY OF MILTON PUBLIC BUILDINGS AND
FACILITIES AUTHORITY (the "Authority"), a body corporate and politic of the State of
Georgia, and the CITY OF MILTON, GEORGIA (the "City"), a municipal corporation of the
State of Georgia.
WITNESSETH:
WHEREAS, the Authority was duly created and is validly existing pursuant to
the City of Milton Public Buildings and Facilities Authority Act of the State of Georgia (2007
Ga. L., p. 4264, et seq., as amended) (the "Act"); and
WHEREAS, pursuant to the Act, the Authority 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, the City is a municipal corporation of the State of Georgia, legally
created and validly existing under the laws of the State of Georgia; and
WHEREAS, Article IX, Section III, Paragraph I(a) of the Constitution of the
State of Georgia 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 Authority proposes to issue its Revenue Bonds, Series 2019
(the "Bonds") for the purpose of (a) paying all or a portion of the costs of (i) constructing and
equipping new buildings that will house a police station, a fire station, and a courthouse, and (ii)
equipping all City fire stations with a new alerting system (the "Projects"), (b) refunding the
Authority's Revenue Bond, Series 2014 and (c) paying the costs of issuing the Bonds pursuant to
a resolution adopted by the Authority on September 9, 2019, as supplemented on October 21,
2019 (the "Resolution"); and
WHEREAS, the Authority and the City propose to enter into this Contract,
pursuant to which the Authority will agree to, among other things, issue the Bonds, and the City
will agree to, among other things, (a) acquire, construct, equip and operate the Projects, (b) pay
the Authority amounts sufficient to enable the Authority to pay the debt service on the Bonds
(the "Contract Payments") and (c) levy an ad valorem property tax, within the 4.731 millage
limitation currently in effect or at such higher rate as may be authorized by future laws, on all
property in the City subject to such tax in order to make such Contract Payments; and
WHEREAS, the Bonds will be secured by a first lien on the Contract, the
Contract Payments and the moneys and investments on deposit in the funds created in the
Resolution.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter contained and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Authority and the City, hereto agree as follows:
2
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions.
Capitalized terms used but not defined herein shall have the meanings assigned to
them in the Resolution. The following words and terms shall have the following meanings
unless the context or use clearly indicates another or different meaning or intent:
"Completion Date" means the date that the Projects are completed.
"Disclosure Certificate" means the written undertaking executed by the City in
connection with the issuance of the Bonds as required by the Rule.
"Resolution" means that certain resolution of the Authority adopted on
September 9, 2019, as supplemented on October 212019, authorizing the issuance of the Bonds,
as amended and supplemented from time to time.
"Rule" means Rule 15c2-12 promulgated under the Securities Exchange Act of
1934, as amended.
Il
ARTICLE II.
REPRESENTATIONS
Section 2.1. Representations by the Authority.
The Authority makes the following representations as the basis for the
undertakings on its part herein contained:
(a) The Authority is a body corporate and politic duly created and validly
existing under the Constitution and laws of the State. The Authority is authorized and
has the power to (i) adopt the Resolution and perform its obligations thereunder,
(ii) issue, execute, deliver and perform its obligations under the Bonds 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 Authority has duly authorized the
(i) issuance, execution, delivery and performance of its obligations under the Bonds and
(ii) the execution, delivery and performance of its obligations under this Contract. The
Resolution, the Bonds and this Contract are valid, binding and enforceable obligations of
the Authority.
(b) No approval or other action by any governmental authority or agency or
other person is required to be obtained by the Authority 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
Bonds or (iii) execution, delivery and performance of its obligations under this Contract;
provided, 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
Bonds and the execution, delivery and performance of its obligations under this Contract
do not (i) violate the Act or the laws or Constitution of the State or any existing court
order, administrative regulation, or other legal decree to which the Authority or its
property is subject or (ii) constitute a breach of or a default under or any agreement,
indenture, mortgage, lease, note or other instrument to which the Authority is a party or
by which it or its property is subject.
(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
Authority, threatened against or affecting the Authority (or, to the knowledge of the
Authority, any meritorious basis therefor) (i) attempting to limit, enjoin or otherwise
restrict or prevent the Authority from issuing the Bonds, (ii) contesting or questioning the
existence of the Authority or the titles of the present officers of the Authority to their
offices or (iii) wherein an unfavorable decision, ruling or finding would adversely affect
the (1) enforceability of the Bonds, the Resolution or this Contract, (2) financial
condition or results of operations of the Authority or (3) the transactions contemplated by
this Contract.
rd
(e) The Authority is not (i) in violation of the Act or the laws or Constitution
of the State or any existing court order, administrative regulation, or other legal decree to
which the Authority or its property is subject or (ii) in breach of or default under any
agreement, indenture, mortgage, lease, note or other instrument to which the Authority is
a party or by which it or its property is subject.
(f) The issuance of the Bonds is within the public purposes intended to be
served by the Authority.
The Authority makes no representation or warranty with respect to the (a)
condition or workmanship of any part of the Projects, (b) suitability of the Projects for the City's
purposes, (c) financial condition of the City or (d) sufficiency of the Bond proceeds to pay the
costs of the Projects.
Section 2.2. Representations by the City.
The City makes the following representations as the basis for the undertakings on
its part herein contained:
(a) The City is a municipal corporation duly created and validly existing
under the Constitution and laws of the State. The City is authorized to and has the power
to (i) acquire, construct and equip the Projects and (ii) execute, deliver and perform its
obligations under this Contract. The City has duly authorized the execution, delivery and
performance of its obligations under this Contract. 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 hereof in connection
with the (i) acquisition, construction and equipping of the Projects or (ii) execution,
delivery and performance of its obligations under this Contract except as shall have been
obtained; provided, however, no representation is given with respect to any "blue sky"
laws.
(c) The acquisition, construction and equipping of the Projects and the
execution, delivery and performance of its obligations under this Contract do not (i)
violate the laws or Constitution of the State or any existing court order, administrative
regulation, or other legal decree to which the City or its property is subject or (ii)
constitute a breach of or a default under 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
subj ect.
(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 Authority from issuing the Bonds or 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 City to their respective offices or (iii) wherein an
unfavorable decision, ruling or finding would adversely affect the (1) enforceability of
this Contract, (2) financial condition or results of operations of the City or
(3) transactions contemplated by this Contract.
(e) The City is not (i) in violation of the laws or Constitution of the State or
any existing court order, administrative regulation, or other legal decree to which the City
or its property is subject or (ii) in breach of or default under any agreement, indenture,
mortgage, lease, note or other instrument to which the City is a party or by which it or its
property is subject.
The City makes no representation or warranty with respect to the financial
condition of the Authority.
2
ARTICLE III.
ISSUANCE OF THE BONDS; APPLICATINO OF BOND PROCEEDS
Section 3.1. Agreement to Issue Bonds.
The Authority agrees that it will validate and issue the Bonds. The Authority
shall deliver a certified copy of the Resolution to the City promptly upon adoption thereof.
Section 3.2. Application of Bond Proceeds.
The proceeds from the sale of the Bonds shall be applied as provided in
Article IV, Section 1 of the Resolution, and the City hereby approves the issuance of the Bonds
and the application of proceeds.
ARTICLE IV.
COMMENCEMENT AND COMPLETION OF THE PROJECTS
Section 4.1. Agreement to Acquire, Construct and Equip the Projects.
The City shall be solely responsible for the acquisition, construction and
equipping of the Projects.
The City shall obtain all necessary approvals from any and all governmental
agencies requisite to 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 such action and institute 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, and may,
from time to time, take such action as may be necessary or advisable, as determined by the City,
to assure that the acquisition, construction and equipping of the Projects will proceed in an
efficient and workmanlike manner.
The City shall acquire, construct and equip the Projects with all reasonable
dispatch and 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.
The City shall prepare the Requisitions required by the Resolution.
The Projects shall be titled in the name of the City.
Section 4.2. Establishment of Completion Date.
The Completion Date shall be evidenced to the Project Fund Custodian and the
Authority by a completion certificate signed by an authorized City representative substantially in
the form attached hereto as Exhibit A
Section 4.3. In Event Bond Proceeds Insufficient.
The Authority does not make any warranty, either express or implied, that the
proceeds derived from the sale of the Bonds will be sufficient to pay all the costs of the Projects.
In the event that the proceeds derived from the sale of the Bonds are insufficient to pay all the
costs of Projects intended to be financed with Bond proceeds, the City shall pay the remaining
costs, and the City shall not be entitled to (a) any reimbursement therefor from the Authority or
from the holders of any of the Bonds or (b) reduction in Contract Payments.
ARTICLE V.
EFFECTIVE DATE AND DURATION OF THIS CONTRACT;
PAYMENT PROVISIONS; TAX LEVY AND LIENS
Section 5.1. Effective Date of this Contract; Duration of Contract Term.
This Contract shall become effective as of the execution and delivery of this
Contract, and the obligations created by this Contract shall then begin, and, subject to the other
provisions of this Contract, shall expire December 1, 2041, or if at said time and on said date all
of the Bonds have not been paid in full then on such date as such payment shall have been made,
but in no event in excess of 50 years from the date hereof.
Section 5.2. Contract Payments.
The City agrees to pay the Contract Payments at least one day before the
applicable Interest Payment Date. The Authority has assigned the Contract Payments to the
owners of the Bonds, and the City consents to such assignment. The Authority hereby directs the
City to make the Contract Payments directly to the Sinking Fund Custodian. In the event the
City should fail to make any of the Contract Payments, 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 Bonds, to the extent
permitted by law, from the date thereof.
Section 5.3. Prepayment of Contract Payments.
The City may prepay the Contract Payments in whole or in part at any time and
may elect to apply such prepayments to redeem Bonds in accordance with the provisions of the
Resolution.
Section 5.4. Obligations of City Hereunder Absolute and Unconditional.
The obligations of the City to make the Contract Payments and to perform and
observe the other agreements on its part contained herein shall be absolute and unconditional.
Until such time as the principal of and interest on the Bonds outstanding under the Resolution
shall have been paid in full or provision for the payment thereof shall have been made in
accordance with the Resolution, the City (a) will not suspend or discontinue any Contract
Payments except to the extent the same can be and have been prepaid, (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, failure of the
City to complete the Projects, failure of the City's title in and to the Projects or any part thereof,
any acts or circumstances that may constitute failure of consideration, eviction or constructive
eviction, destruction of or damage to the Projects, commercial frustration of purpose, any change
in the tax or other laws of the United States of America or of the State of Georgia or any failure
of the Authority to perform and observe any agreement, whether express or implied, or any duty,
liability or obligation arising out of or connected with this Contract or the Resolution. Nothing
contained in this Section shall be construed to release the Authority from the performance of any
E
of the agreements on its part herein contained; and if the Authority should fail to perform any
such agreement, the City may institute such action against the Authority as the City may deem
necessary to compel performance as long as such action shall not do violence to or adversely
affect the agreements on the part of the City contained in the preceding sentence and to make the
Contract Payments.
Section 5.5. Tax Levy to Pay Contract Payments.
The City covenants that it will (a) exercise its power of taxation, within the 4.731
millage limitation currently in effect or at such higher rate as may be authorized by future laws,
to the extent necessary to make the Contract Payments and (b) make available and use for such
Contract Payments all taxes levied and collected for that purpose. The City further covenants
and agrees that it will, in its general revenue, appropriation, and budgetary measures whereby its
tax funds or revenues and the allocation thereof are controlled or provided for, include sums
sufficient to timely make the Contract Payments.
10
ARTICLE VI.
SPECIAL COVENANTS OF CITY
Section 6.1. Operation of the Projects.
The City shall operate the Projects or shall cause the Projects to be operated and
shall pay all costs of operating the Projects or shall cause all costs of operating the Projects to be
paid, including, without limitation, salaries, wages, employee benefits, the payment of any
contractual obligations incurred pertaining to the operation of the Projects, cost of materials and
supplies, rentals of leased property, real or personal, insurance premiums, audit fees, any
incidental expenses and such other charges as may properly be made for the purpose of operating
the Projects in accordance with sound business practice.
Section 6.2. Insurance.
The City shall insure the Projects or shall cause the Projects to be insured in
accordance with its customary insurance practices.
Section 6.3. Paying Agent, Bond Registrar and Custodians.
The City shall pay the Paying Agent, the Bond Registrar, the Project Fund
Custodian and the Sinking Fund Custodian for their services under the Resolution.
Section 6.4. Compliance with Resolution.
The City shall comply with all of its obligations under the Resolution.
Section 6.5. Indemnification.
To the extent permitted by law, the City hereby agrees to release the Authority
from and to indemnify the Authority (and its members) for any and all liabilities and claims
against the Authority arising from the issuance of the Bonds and the acquisition, construction,
equipping, ownership and operation of the Projects, including without limitation, (a) any
condition of the Projects, (b) any breach or Default on the part of the City in the performance of
any of its obligations under this Contract, (c) any act or negligence of the City or of any of its
agents, contractors, servants, employees or licensees, or (d) 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 (e) any material misstatement or omission by the City in
connection with the sale of the Bonds. Notwithstanding the foregoing, the City shall not be
required to indemnify the Authority for its gross negligence or willful misconduct.
If any such claim is asserted, the Authority or any individual indemnified herein,
as the case may be, will give prompt written notice to the City, and the City will promptly
assume the defense thereof, including the employment of counsel and payment of all expenses of
such defense, with full power to litigate, compromise or settle the same in its sole discretion;
11
provided that the Authority shall have the right to approve in writing all counsel engaged by the
City to conduct such defense, which approval shall not be unreasonably withheld.
The Authority shall have the right to employ separate counsel in any such action
and to participate in the defense thereof, but the City shall not be required to pay the fees and
expenses of such separate counsel unless the separate counsel is employed with the approval of
the City. The City shall not unreasonably withhold its approval of such separate counsel.
Notwithstanding anything in this Contract to the contrary, the provisions of this
Section 6.5 shall survive the termination of this Contract.
Section 6.6. Disclosure Certificate.
The City shall comply with its obligations under the Disclosure Certificate;
provided, however, a failure of the City to comply with its obligations under the Disclosure
Certificate shall not constitute a default or an event of default and the only action that be taken
hereunder is an action for specific performance.
12
ARTICLE VII.
SPECIAL COVENANTS OF AUTHORITY AND CITY
Section 7.1. Further Assurances and Corrective Instruments, Recordings
and Filings.
The Authority 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 intention of or facilitating the performance of this Contract.
Section 7.2. Tax Covenants.
The Authority and the City agree to do all things necessary to maintain the
exclusion from gross income for federal income tax purposes of the interest on the Bonds and not
to do anything that would adversely affect such exclusion.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined.
The following shall be "events of default" under this Contract and the terms
"event of default" or "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 Contract Payments; or
(b) Failure by the City or the Authority to observe and perform any covenant,
condition or agreement of this Contract on its part to be observed or performed, other
than as referred to in subsection (a) of this Section, for a period of 30 days after written
notice, specifying such failure and requesting that it be remedied, shall have been given
to the City or the Authority, as appropriate, by the non -defaulting party or the
bondholders, unless the non -defaulting party and the bondholders shall agree in writing to
an extension of such time prior to its expiration; provided, however, if the failure stated
in the notice cannot be corrected within the 30-day period, the non -defaulting party and
the bondholders will not unreasonably withhold their consent to an extension of such
time if it is possible to correct such failure and corrective action is instituted within the
applicable period and diligently pursued until the default is corrected; or
(c) Any representation in this Contract shall be untrue.
(d) An "Event of Default" shall have occurred under the Resolution.
Section 8.2. Remedies on Default.
Whenever any event of default referred to in Section 8.1 hereof shall have
happened and be existing, the non -defaulting party or the owner of any of the Bonds may take
any action and pursue any remedy available under the Resolution and the laws of the State of
Georgia, including, without limitation, bringing an action for specific performance.
Section 8.3. No Remedy Exclusive.
No remedy herein conferred is intended to be exclusive of any other available
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
or by statute. No delay or omission to exercise any right or power accruing upon the occurrence
of any event of default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as often as may be
deemed expedient. In order to exercise any remedy reserved in this Article, it shall not be
necessary to give any notice, other than such notice or notices as may be herein expressly
required. Such rights and remedies as are given to the Authority hereunder shall also extend to
the bondholders, and the bondholders shall be deemed third party beneficiaries of all covenants
and agreements herein contained.
14
Section 8.4. Agreement to Pay Attorneys' and Consultant's Fees and
Expenses.
If an event of default shall occur hereunder and the non -defaulting party should
employ attorneys or consultants or incur other expenses for the enforcement of performance or
observance of any obligation or agreement on the part of the City or the Authority herein
contained, the defaulting party agrees that it shall on demand therefor pay to the non -defaulting
party or the bondholders the reasonable fee of such attorneys and consultants and such other
reasonable expenses so incurred by the non -defaulting party and the bondholders.
Section 8.5. No Additional Waiver Implied by One Waiver.
If 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.
15
ARTICLE IX.
MISCELLANEOUS
Section 9.1. Notices.
All notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when hand delivered, sent by a reputable overnight delivery
service or mailed by registered or certified mail, return receipt requested, postage prepaid.
and the City.
Section 9.2. Binding Effect.
This Contract shall inure to the benefit of and shall be binding upon the Authority
Section 9.3. Severability.
If 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.
hereof.
Section 9.4. Third -Party Beneficiaries.
The owners of the Bonds secured by this Contract are third -party beneficiaries
Section 9.5. Amendments, Changes and Modifications.
This Contract may be amended, changed and modified without the consent of the
owner of the Bonds to (a) cure any ambiguity or formal defect or omission in this Contract;
(b) grant any additional rights, remedies, powers, authority or security that may lawfully be
granted to or conferred upon bondholders by the City; (c) further expand or clarify the amounts
required to be paid into the Sinking Fund and the timing thereof; (d) conform to supplements to
the Resolution; or (e) make any other amendments, changes and modifications that in the
opinion of counsel are not materially adverse to the interest of the bondholders. Any other
amendments, changes and modification in this Contract will become effective only with the
consent of the owners of a majority in aggregate principal amount of the Bonds secured hereby.
In no event, however, may any such amendments, changes and modifications permit (a) the
reduction of Contract Payments required to be made to ensure the payment of the Bonds and the
other obligations secured by the Resolution; or (b) the reduction of the percentage of the
principal amount of the Bonds required for consent to any such amendment, change or
modification.
Section 9.6. Execution 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.
16
Section 9.7. 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 of this Contract.
the State.
Section 9.8. Law Governing Construction of Contract.
This Contract shall be governed by, and construed in accordance with, the laws of
17
IN WITNESS WHEREOF, the Authority and the City have caused this Contract
to be executed in their respective corporate names by their duly authorized officers and their
respective seals to be hereunto axed, all as of the date first above written.
(Seal)
Attest:
Secretary
CITY OF MILTON PUBLIC BUILDINGS AND
FACILITIES AUTHORITY
Chairperson
(Intergovernmental Contract)
(Seal)
Attest:
Clerk
CITY OF MILTON, GEORGIA
52
Mayor
(Intergovernmental Contract)
EXHIBIT A
COMPLETION CERTIFICATE
Regions Bank City of Milton Public Buildings and Facilities
Atlanta, Georgia Authority
Milton, Georgia
Re: City of Milton Public Buildings and Facilities Authority Revenue Bonds, Series
2019
To the Addressees:
The proceeds of the above -captioned bonds (the "Bonds") were used to finance
certain projects (the "Projects") for the for the benefit of the City of Milton, Georgia (the "City").
The City of Milton Public Buildings and Facilities Authority and the City entered into an
Intergovernmental Contract, dated as of October 1, 2019 (the "Contract") relating to the Bonds.
Capitalized terms used, but not defined herein, shall have the meanings assigned to them in the
Contract.
The undersigned authorized representative of the City hereby certifies as follows:
1. The Projects have been completed.
2. Except for amounts retained by the City to pay any costs of the Projects not then
due and payable, all costs of labor, services, materials and supplies have been paid.
The foregoing certifications have been made without prejudice to any rights against third
parties which exist at the date of this certificate or which may subsequently come into being.
[Include the following only if there are excess moneys in the Project Fund]
You are hereby directed to transfer all moneys in the Project Fund to the Sinking Fund.
CITY OF MILTON, GEORGIA
IM
Authorized City Representative