HomeMy WebLinkAboutAgenda Packet - CC - 10/21/2019Page 1 of 4
Joe Lockwood, Mayor
CITY COUNCIL
Peyton Jamison
Matt Kunz
Laura Bentley
Carol Cookerly
Joe Longoria
Rick Mohrig
CITY COUNCIL CHAMBERS
City Hall
Monday, October 21, 2019 Regular Council Meeting Agenda 6:00 PM
INVOCATION – Jason Howard, Chaplain for Milton Police and Fire
Care Pastor - Stonecreek Church, Milton, Georgia
1)CALL TO ORDER
2)ROLL CALL
3)PLEDGE OF ALLEGIANCE (Led by Mayor Joe Lockwood)
4)APPROVAL OF MEETING AGENDA (Add or remove items from the agenda)
(Agenda Item No. 19-224)
5)PUBLIC COMMENT (General)
MILTON CITY COUNCIL REGULAR COUNCIL MEETING OCTOBER 21, 2019
Page 2 of 4
6) CONSENT AGENDA
1. Approval of the September 23, 2019 City Council Meeting Minutes.
(Agenda Item No. 19-225)
2. Approval of an Agreement between the City of Milton and the Georgia Bureau
of Investigation (GBI) Regarding a Memorandum of Understanding (MOU) and
an Equipment Agreement Relating to the Startup of a Georgia Internet Crimes
Against Children Task Force (ICAC) in the City of Milton Police Department.
(Agenda Item No. 19-226) (Rich Austin, Police Chief)
3. Approval of an Access Agreement between the City of Milton, Georgia and
Ring which will provide the Milton Police Department Access to the Neighbors
Portal to Communicate with Users of the Neighbors App ("Ring Neighbors").
(Agenda Item No. 19-227)
(Rich Austin, Police Chief)
4. Approval of a Settlement Agreement with Comcast Cable Communications, LLC
for Underpayment of Franchise Fees.
(Agenda Item No. 19-228)
(Stacey Inglis, Assistant City Manager)
5. Approval of an Agreement Between the City of Milton, Georgia and Flock
Group, Inc. for the Milton Police Department to Participate in the Flock Data
Sharing Program.
(Agenda Item No. 19-229)
(Rich Austin, Police Chief)
6. Approval of the Following Subdivision Plat and Revisions:
Name of Development /
Location Action Comments / #
lots
Total
Acres Density
1. Nix Crossing
LL 452 & 485
910 NIX Road
Minor
Plat
Reassign
addresses 5.14 0.58 Lots /
acre
(Agenda Item No. 19-230)
(Parag Agrawal, Community Development Director)
7) REPORTS AND PRESENTATIONS
1. Proclamation In Recognition and Celebration of New United States of
America Citizens Residing in the City of Milton.
(Mayor Joe Lockwood)
MILTON CITY COUNCIL REGULAR COUNCIL MEETING OCTOBER 21, 2019
Page 3 of 4
2. Proclamation Recognizing 2019 Breast Cancer Awareness Month.
(Councilmembers Joe Longoria and Rick Mohrig)
3. Presentation of 2020 Census.
(Michele McIntosh-Ross, Principal Planner)
8) FIRST PRESENTATION
1. Consideration of an Ordinance Amendment to the City of Milton’s
Code of Ordinances, Chapter 32, Article II – Offenses Against
Public Peace, Order and Morals.
(Agenda Item No. 19-231)
(Rich Austin, Police Chief)
9) PUBLIC HEARING
ALCOHOL BEVERAGE LICENSE APPLICATION
1. Consideration of the Issuance of an Alcohol Beverage License to Trophy Atlanta
Management, LLC d/b/a Trophy Club of Atlanta, 15135 Hopewell Rd., Milton,
GA 30004.
(Agenda Item No. 19-232)
(Bernadette, Harvill, Finance Director)
2. Consideration of the Issuance of an Alcohol Beverage License to Deep Roots
Wine Market and Tasting Room, LLC, d/b/a Deep Roots Milton, 12220
Birmingham Hwy., Bldg. 80, Suite 102, Milton, GA 30004.
(Agenda Item No. 19-233)
(Bernadette, Harvill, Finance Director)
10) ZONING AGENDA (None)
11) UNFINISHED BUSINESS
1. Consideration an Ordinance Amendment to Chapter 48, Article VII,
Division 3, Section 48-585 for Prohibitions and Uses in the Public-Rights-of-Way
to Address Fixed Objects with the Right-of-Way.
(Agenda Item No. 19-221)
(Robert Drewry, Public Works Director)
12) NEW BUSINESS
1. Consideration and Possible Adoption of a Conflict Waiver Authorizing
Jarrard & Davis, LLP to Serve as Local Counsel (for both the Council and the
PBFA) Regarding a Revenue Bond Transaction between the Milton Public
MILTON CITY COUNCIL REGULAR COUNCIL MEETING OCTOBER 21, 2019
Page 4 of 4
Building and Facilities Authority and the City Council, to Include Review of the
Pertinent Intergovernmental Agreement.
(Agenda Item No. 19-234)
(Ken Jarrard, City Attorney)
2. Consideration of a Resolution Establishing the Partnership Between the City of
Milton and the 2020 United States Census.
(Agenda Item No. 19-235)
(Michele McIntosh-Ross, Principal Planner)
3. Consideration of a Land Acquisition Agreement for Purchase of Realty between
the City of Milton and US Bank National Association for Fulton Tax Parcel No. 22
442006710238, 14620 Freemanville Road (12 acres), for a purchase price of
$1,250,000.
(Agenda Item No. 19-236) (Ken Jarrard, City Attorney)
13) MAYOR AND COUNCIL REPORTS
STAFF REPORTS
Department Updates
1. Community Development
2. Finance
14) EXECUTIVE SESSION (Land Acquisition)
15) ADJOURNMENT
(Agenda Item No. 19-237)
TO:
FROM:
MILTON't
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
City Council
DATE: October 14, 2019
Steven Krokoff, City Manager
AGENDA ITEM: Approval of an Agreement between the City of Milton and
the Georgia Bureau of Investigation (GBI) Regarding a
Memorandum of Understanding (MOU) and an Equipment
Agreement Relating to the Startup of a Georgia Internet
Crimes Against Children Task Force (ICAC) in the City of
Milton Police Department.
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (.APPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (.U'S'ES () NO
CITY ATTORNEY REVIEW REQUIRED: (ehS () NO
APPROVAL BY CITY ATTORNEY: (,APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: 101 l 261
2006 Heritage Walk Milton, GA
Lf ® yr
P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltonga.us
To: Honorable Mayor and City Council Members
From: Chief Rich Austin
Date: Submitted on October 2, 2019 for the October 21, 2019 Regular City
Council Meeting
Agenda Item: Approval of an Agreement between the City of Milton and the
Georgia Bureau of Investigation (GBI) Regarding a Memorandum of
Understanding (MOU) and an Equipment Agreement Relating to the
Startup of a Georgia Internet Crimes Against Children Task Force
(ICAC) in the City of Milton Police Department
_____________________________________________________________________________________
Department Recommendation:
The Police Department recommends approval of this agreement.
Executive Summary:
It is the intention of the Milton Police Department’s Criminal Investigations Unit to partner
with the Georgia Bureau of Investigations (GBI) Internet Crimes Against Children Task
Force (ICAC).
The Milton Police Department agrees to conduct internet crimes against children
investigations following the procedures of the Office of Juvenile Justice and Delinquency
Prevention (OJJDP) Internet Crime Against Children Task Force Board of Directors’
protocol. The Milton Police Department will have sole discretion in deciding what
investigations to initiate, the personnel assigned to the investigation and the methods
used to conduct the investigation, except only sworn personnel trained to conduct on-
line proactive investigations will be assigned to these cases.
The mission of the ICAC Task Force program is to assist state and local law enforcement
agencies in developing an effective response to cyber enticement and child
pornography cases. The Internet Crimes Against Children (ICAC) program is a national
network of coordinated state and local task forces engaged in proactive investigations,
forensic examinations, effective prosecutions and community education. The ICAC
program was developed in response to the increasing number of children and teenagers
using the Internet, the proliferation of child pornography, and the heightened online
activity by predators searching for unsupervised contact with underage victims. By
helping state and local law enforcement agencies develop effective and sustainable
responses to online child victimization and child pornography, the ICAC program delivers
national resources at the local level. In addition, the ICAC program believes that building
partnerships will reduce child victimization, locally, in the United S tates and internationally.
Funding and Fiscal Impact:
None.
Alternatives:
Continue without an ICAC task force and the related training and equipment that is
furnished to the department.
Legal Review:
Sam VanVolkenburgh– Jarrard & Davis (October 1, 2019)
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
Georgia Internet Crimes Against Children Task Force (ICAC) Memorandum of
Understanding (MOU)
MILTON'*
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 14, 2019
(
FROM: Steven Krokoff, City Manager 7`
AGENDA ITEM: Approval of an Access Agreement between the City of
Milton, Georgia and Ring which will provide the Milton Police
Department Access to the Neighbors Portal to Communicate
with Users of the Neighbors App ('Ring Neighbors").
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (41 PPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (, IYES () NO
CITY ATTORNEY REVIEW REQUIRED: (U'S'ES () NO
APPROVAL BY CITY ATTORNEY: (,APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: t `12'1 lc'S
2006 Heritage Walk Milton, GA
P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltongo.us
To: Honorable Mayor and City Council Members
From: Chief Rich Austin
Date: Submitted on October 2, 2019 for the October 21, 2019 Regular City
Council Meeting
Agenda Item: Approval of an Access Agreement between the City of Milton,
Georgia and Ring which will provide the Milton Police Department
Access to the Neighbors Portal to Communicate with Users of the
Neighbors App ("Ring Neighbors")
_____________________________________________________________________________________
Department Recommendation:
The Police Department recommends approval of this agreement.
Executive Summary:
Ring has recently developed the Neighbors App which encourages community
engagement to work with local law enforcement to make neighborhoods safer.
When new law enforcement agencies come on board, Ring announces the
partnership in-app via a regional announcement, so users are aware. When using
Neighbors, law enforcement sees the same interface that all users see; the content is
the same, the exact locations of posts are obscured, and the user' s personal identity is
not displayed. There are two key differences, though: 1) law enforcement can view
public posts from within their jurisdiction (instead of just their 'neighborhood') and 2) law
enforcement posts are identified so users can clearly see that they are the source of the
content. This means that posts or comments made by law enforcement are clearly
marked with their official title and name.
Law enforcement can only view the publicly available content in the Neighbors App,
unless a user explicitly and voluntarily chooses to share their own recordings with law
enforcement.
Exact locations of devices and user information are never provided to law enforcement
without a user's express permission or a valid and binding legal demand properly served
on us.
Page 2 of 2
Law enforcement can request information from users within their jurisdiction (Ring sends
the official request to users). Law enforcement must reference a relevant case number
in order to make a request within a specific, limited time range and area. Ring will then
ask a targeted group of users in that area if they are willing to share any relevant
footage with law enforcement. It's then up to the user to share their video file(s) or
decline the request. Users can also opt out of all future requests by law enforcement.
Again, Ring will not release user information without a user's express permission or a valid
and binding legal demand properly served on us.
By entering into this Access Agreement with Ring, the Milton Police Department will
enhance its ability to potentially solve crimes. This will be another resource in addition
to the S.C.R.A.M(Security Registration and Mapping) program
Funding and Fiscal Impact:
None.
Alternatives:
None.
Legal Review:
Jeff Strickland– Jarrard & Davis (October 1, 2019)
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
An agreement between the City of Milton, Georgia and Ring.
Page 1 of 1
MILTON, r
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 16, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Approval of a Settlement Agreement with Comcast Cable
Communications, LLC for Underpayment of Franchise Fees.
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (.APPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: ({IVES () NO
CITY ATTORNEY REVIEW REQUIRED: (,'YES () NO
APPROVAL BY CITY ATTORNEY: (APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: tt"I
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltongo.us
To: Honorable Mayor and City Council Members
From: Stacey Inglis, Assistant City Manager
Date: Submitted on October 16, 2019 for the October 21, 2019 Regular City Council
Meeting
Agenda Item: Approval of a Settlement Agreement with Comcast Cable Communications, LLC
for Underpayment of Franchise Fees
Department Recommendation:
The recommendation is to approve the attached settlement agreement with Comcast Cable
Communications, LLC for franchise fees due to the City.
Executive Summary:
In February 2018, the City adopted a new franchise fee agreement with Comcast to replace and
update the previous agreement that had expired. The new definition of “gross revenues,” the
basis for the franchise fee calculation, now includes late fees, advertising and home shopping
services. After comparing the year-over-year franchise fees paid by Comcast, we noticed they
weren’t trending how we anticipated and requested that Local Government Services, Inc (LGS)
perform a compliance review. Through our agreement with Georgia Municipal Association
(GMA), LGS is the third-party firm that provides telecommunications and right-of-way
management, including franchise compliance monitoring services. LGS’ audit confirmed that
Comcast failed to include the new revenue items in their gross revenue calculations, resulting in
an underpayment of $34,896.40.
It is worth noting that our partnership with GMA and LGS has generated nearly $160,000 in
additional revenue to the City since 2017.
Funding and Fiscal Impact:
An increase in revenues by $34,896.40.
Alternatives:
No alternatives
Legal Review:
Approved by Jeff Strickland with Jarrard & Davis on 10/15/19
Concurrent Review:
Steven Krokoff, City Manager
Attachment:
Settlement Agreement
SETTLEMENT AGREEMENT
FRANCHISE FEE AUDIT/REVIEW
This Settlement Agreement (the "Settlement Agreement") is dated this day of
2019, between Comcast Cable Communications, LLC ("Comcast"), and the
City of Milton, GA (the "City"). Comcast and the City may be individually referred to
hereafter as a "Party" or jointly as the "Parties."
RECITALS
WHEREAS, pursuant to Section 4. 1.1 of the franchise agreement, the City is
permitted to receive from Comcast a franchise fee in the amount of five percent of
Comcast's gross revenues (the "Franchise Fee");
WHEREAS, the City engaged the firm of Local Government Services to conduct a
review of Comcast's Franchise Fee payments for the period from October 1, 2017 through
June 30, 2019 ("Audit Period");
WHEREAS, the City has provided Comcast with a copy of a report prepared by
Local Government Services dated October 8, 2019 ("Report"), which report concludes that
Comcast owes additional franchise fees for the Audit Period;
WHEREAS, the Parties deem it to be to their mutual benefit to settle their
differences for all Franchise Fee payment issues for the period of October 1, 2017 through
June 30, 2019 (the "Settlement Period"), by this Settlement Agreement, resolve all such
disputes and specify the terms under which Comcast will pay the City the sum of
$34,896.40 in full settlement of all Franchise Fee payment obligations for the Settlement
Period.
NOW THEREFORE, in exchange for the mutual benefits and undertakings
described herein, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
PAYMENT BY COMCAST
Within thirty (30) days of delivery to Comcast of a counterpart original of this
Settlement Agreement executed by the City, Comcast shall deliver to the City a check
made payable to the City of Milton in the amount of $34,896.40. Comcast reserves the
right to pass through to customers any such sums of this franchise fee payment which have
not already been collected as franchise fees.
2. RELEASE OF ALL CLAIMS AND FINAL SATISFACTION AND RELEASE
OF PAYMENT OBLIGATIONS
The Parties hereby release and discharge each other from all claims related to
Franchise Fee payments for the Settlement Period. Payment by Comcast to the City
pursuant to Section 1 hereof shall be deemed full and final satisfaction and release of
Comcast's Franchise Fee payment obligations for the Settlement Period.
3. NO WAIVER OR CONCESSION OF THE METHOD OF CALCULATION OF
GROSS REVENUES
The Parties mutually agree that this Settlement Agreement controls only the
Settlement Period and is neither precedent nor waiver by either Party of any claim,
methodology or interpretation of the Franchisee's gross revenues for any future audit of
periods not within the Settlement Period.
4. GENERAL PROVISIONS
(a) Each Party covenants and agrees that it will not make, assert or maintain
any claim, demand, action or cause of action that is discharged by this Settlement
Agreement against the other Party; provided, however, that either Party may bring an
action against the other Party to enforce this Settlement Agreement.
(b) Each Party represents that it has not conveyed or assigned any claims
released by this Settlement Agreement to any third parties. Each Party represents and
warrants that it has the power and authority to enter into this Settlement Agreement. Any
breach of this Settlement Agreement shall be subject to all remedies available to the Parties
at law or in equity. In addition, any breach of this Settlement Agreement shall be deemed
a breach of the Franchise Agreement and shall be subject to all of the remedies available
under the Franchise Agreement.
(c) The Settlement Agreement sets forth the entire agreement of the Parties
with respect to its subject matter, there being no other promise or inducement to or for the
execution of this Settlement Agreement other than the consideration cited above. There
are no contingencies, conditions precedent, representations, warranties, or other agreement,
oral or otherwise, regarding settlement between the Parties not stated herein.
(d) The Parties acknowledge that this Settlement Agreement is the product of
negotiations between the Parties and does not constitute, and shall not be construed as, an
admission of liability on the part of any Party.
(e) This Settlement Agreement shall inure to the benefit of, and shall be
binding on, the Parties' respective successors and assigns.
(f) This Settlement Agreement may not be modified or amended, nor any of its
terms waived, except by an amendment signed by duly authorized representatives of the
Parties.
(g) This Settlement Agreement shall be construed and enforced in accordance
with the laws of the State of Georgia without regard to conflicts of law principles. All
actions or suits brought hereunder or arising out of this Settlement Agreement shall be
brought in the appropriate State or Federal courts in Georgia, and in no other courts.
(h) This Settlement Agreement shall be effective upon the date when it is
executed on behalf of the City.
- 2 -
– 3 –
(i) All time frames expressed in terms of days shall mean calendar days, and if
the time allowed for action required hereunder shall expire on a Saturday, Sunday, or
holiday as defined, and if the time allowed for action required hereunder shall expire on a
Saturday, Sunday, or holiday as defined by the laws of the State of Georgia, then the
expiration shall automatically be the next calendar day that is not a Saturday, Sunday, or
holiday. All time frames are agreed to be of the essence.
IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to
be executed by duly authorized representatives of each Party on the dates written below.
ATTEST:
CITY OF MILTON, GA
By: ______________________________
Joe Lockwood, Mayor
By: _____________________________
City Clerk
Date: ____________________________
[CITY SEAL]
Approved as to Form:
By: _____________________________
Milton City Attorney
ATTEST:
COMCAST CABLE
COMMUNICATIONS, LLC
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
By: __________________________
Name: ________________________
Title: _________________________
Franchise Agreement
between the
City of Milton, Georgia
and
Comcast Cable Communications, LLC
TABLE OF CONTENTS
Page
SECTION 1 GRANT OF AUTHORITY .......................................................... 1
SECTION 2 THE CABLE SYSTEM ............................................................... 4
SECTION 3 CUSTOMER SERVICE............................................................... 6
SECTION 4 COMPENSATION AND OTHER PAYMENTS ....................... 7
SECTION 5 COMPLIANCE REPORTS ......................................................... 8
SECTION 6 ENFORCEMENT ......................................................................... 9
SECTION 7 ASSIGNMENT AND OTHER TRANSFERS .......................... 11
SECTION 8 INSURANCE AND INDEMNITY ........................................... 11
SECTION 9 MISCELLANEOUS ................................................................... 12
APPENDIX A DEFINED TERMS ................................................................... A-1
APPENDIX B CUSTOMER SERVICE STANDARDS ................................. B-1
1
AGREEMENT
This AGREEMENT is effective as of the ____ day of _________, 2018 (the “Effective
Date”), and is between the City of Milton, Georgia, an incorporated Georgia City (the “Franchising
Authority” or the “City”), and Comcast Cable Communications, LLC whose principal place of
business is located at 2925 Courtyards Drive, Norcross, Georgia 30071 (the “Company”). For
purposes of this Agreement, unless otherwise defined in this Agreement, the capitalized terms,
phrases, words, and their derivations, shall have the meanings set forth in Appendix A.
The Franchising Authority, having determined that the financial, legal, and technical ability
of the Company is reasonably sufficient to provide the services, facilities, and equipment necessary
to meet the current and future cable-related needs of the community and that, as of the Effective Date,
the Company is in material compliance with the terms and conditions of the cable franchise preceding
this Agreement, desires to enter into this Agreement with the Company for the construction,
operation, and maintenance of a Cable System on the terms and conditions set forth herein. In
consideration of the mutual covenants and agreements contained in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby covenant and agree as follows:
SECTION 1
GRANT OF AUTHORITY
1.1 Grant of Franchise. The Franchising Authority hereby grants under the Cable Act a
nonexclusive franchise (the “Franchise”) to occupy and use the Streets within the Franchise Area
in order to construct operate, maintain, upgrade, repair, and remove the Cable System, and provide
Cable Services through the Cable System, subject to the terms and conditions of this Agreement.
This Franchise authorizes Cable Service only, and it does not grant or prohibit the right(s) of the
Company to provide other services.
1.2 Term of Franchise. This Franchise shall be in effect for a period of ten (10) years
commencing on the Effective Date, unless renewed or lawfully terminated in accordance with this
Agreement and the Cable Act.
1.3 Renewal. Subject to Section 626 of the Cable Act (47 U.S.C. § 546) and such terms and
conditions as may lawfully be established by the Franchising Authority, the Franchising Authority
reserves the right to grant or deny renewal of the Franchise.
1.4 Reservation of Authority. Nothing in this Agreement shall (i) abrogate the right of the
Franchising Authority to perform any public works or public improvements of any description, (ii) be
construed as a waiver of any codes or ordinances of the Franchising Authority or of the Franchising
Authority’s right to require the Company or any Person utilizing the Cable System to secure the
appropriate permits or authorizations for its use, or (iii) be construed as a waiver or release of the
rights of the Franchising Authority in and to the Streets. Notwithstanding the above, in the event of
any conflict between this Agreement and any code or ordinance adopted by the Franchising Authority,
the terms and conditions of this Agreement shall prevail.
2
1.5 Competitive Equity and Subsequent Action Provisions.
1.5.1 Purposes. The Company and the Franchising Authority acknowledge that there is
increasing competition in the video marketplace among cable operators, direct broadcast
satellite providers, telephone companies, broadband content providers, and others; new
technologies are emerging that enable the provision of new and advanced services to City
residents; and changes in the scope and application of the traditional regulatory framework
governing the provision of Video Services are being considered in a variety of federal,
state, and local venues. To foster an environment where all Cable Service Providers and
Video Service Providers using the Streets can compete on a competitively neutral and
nondiscriminatory basis; encourage the provision of new and advanced services to City
residents; promote local communications infrastructure investments and economic
opportunities in the City; and provide flexibility in the event of subsequent changes in the
law, the Company and the Franchising Authority have agreed to the provisions in this
Section 1.5, and these provisions should be interpreted and applied with these purposes in
mind. The parties agree that the Franchising Authority shall not be required to execute a
franchise agreement or authorization with a competitive CSP or VSP that is identical,
word-for-word, with this Agreement to avoid triggering the provisions of this Section 1.5,
so long as the regulatory and financial burdens on and benefits to each CSP or VSP are
materially equivalent to the burdens on and benefits to the Company. “Materially
equivalent” provisions include but are not limited to: franchise fees and the definition of
Gross Revenues; system build-out requirements; security instruments; public, education
and government access channels and support; customer service standards; and audits.
1.5.2 Fair Terms for All Providers. Notwithstanding any other provision of this
Agreement or any other provision of law,
(a) If any VSP or CSP enters into any agreement with the Franchising Authority to
provide Video Services or Cable Services to Subscribers in the Franchise Area, the
Franchising Authority and the Company, upon written request of the Company, will
use best efforts in good faith to negotiate the Company’s proposed Franchise
modifications, and such negotiation will proceed and conclude within sixty (60)
days, unless that period is reduced or extended by mutual agreement of the parties.
If the Franchising Authority and the Company agree to Franchise modifications
pursuant to such negotiations, then the Franchising Authority shall amend this
Agreement to include the modifications.
If there is no written agreement or other authorization between the new VSP or CSP
and the Franchising Authority, the Company and the Franchising Authority shall
use the sixty (60) day period to develop and enter into an agreement or other
appropriate authorization (to the extent the Company determines an agreement or
authorization is necessary) that to the maximum extent possible contains provisions
that will ensure competitive equity between the Company and other VSPs or CSPs,
taking into account the terms and conditions under which the new VSP or CSP is
allowed to provide Video Services or Cable Services to Subscribers in the Franchise
Area.
3
(b) Following the Franchise modification negotiations provided for in Section
1.5.2(a), if the Franchising Authority and the Company fail to reach agreement in
such negotiations, the Company may, at its option, elect to replace this Agreement
by opting in to the same franchise agreement or other lawful authorization that the
Franchising Authority has granted to the new VSP or CSP. If the Company so
elects, the Franchising Authority shall adopt the Company’s replacement
agreement at the next regularly scheduled City council meeting.
(c) The Franchising Authority shall at all times enforce the City code, state, and
federal ban on providing Cable Service without a franchise. The Franchising
Authority’s enforcement efforts shall be continuous and diligent throughout the
term of this Agreement. Should the Franchising Authority not commence
enforcement efforts within sixty (60) days of becoming aware of a VSP or CSP
providing Video Service or Cable Service within the Franchise Area, the Company
shall have the right to petition the Franchising Authority for the relief provided in
Section 1.5.2 above.
(d) This Section 1.5.2 shall not apply for VSPs or CSPs providing Video Service
or Cable Service in the Franchise Area under the authorization of the Georgia
Consumer Choice for Television Act (O.C.G.A. § 36-76-1, et seq.).
1.5.3 Subsequent Change in Law. If there is a change in federal, state, or local law that
provides for a new or alternative form of authorization, subsequent to the Effective Date,
for a VSP or CSP utilizing the Streets to provide Video Services or Cable Services to
Subscribers in the Franchise Area, or that otherwise changes the nature or extent of the
obligations that the Franchising Authority may request from or impose on a VSP or CSP
providing Video Services or Cable Services to Subscribers in the Franchise Area, the
Franchising Authority agrees that, notwithstanding any other provision of law, upon the
written request and at the option of the Company, the Franchising Authority shall:
(i) permit the Company to provide Video Services or Cable Services to Subscribers in the
Franchise Area on substantially the same terms and conditions as are applicable to a VSP
or CSP under the changed law; (ii) modify this Agreement to comply with the changed
law; or (iii) modify this Agreement to ensure competitive equity between the Company and
other VSPs or CSPs, taking into account the conditions under which other VSPs or CSPs
are permitted to provide Video Services or Cable Services to Subscribers in the Franchise
Area. The Franchising Authority and the Company shall implement the provisions of this
Section 1.5.3 within sixty (60) days after the Company submits a written request to the
Franchising Authority. Should the Franchising Authority fail to implement these
provisions within the time specified, this Agreement shall, at the Company’s option and
upon written notice to the Franchising Authority, be deemed amended as initially requested
by the Company under this Section 1.5.3. Notwithstanding any provision of law that
imposes a time or other limitation on the Company’s ability to take advantage of the
changed law’s provisions, the Company may exercise its rights under this Section 1.5.3 at
any time, but not sooner than thirty (30) days after the changed law goes into effect.
1.5.4 Effect on This Agreement. Any agreement, authorization, right, or determination to provide Cable Services
or Video Services to Subscribers in the Franchise Area under this Section 1.5 shall supersede this Agreement.
4
SECTION 2
THE CABLE SYSTEM
2.1 The System and Its Operations.
2.1.1 Service Area. As of the Effective Date, the Company operates a Cable System within
the Franchise Area.
2.1.2 System. As of the Effective Date, the Company maintains and operates a Cable
System capable of providing over 250 Channels of Video Programming, which Channels
may be delivered by analog, digital, or other transmission technologies, at the sole
discretion of the Company.
2.1.3 System Technical Standards. Throughout the term of this Agreement, the Cable
System shall be designed, maintained, and operated such that quality and reliability of System
Signal will be in compliance with all applicable consumer electronics equipment
compatibility standards, including but not limited to Section 624A of the Cable Act (47 U.S.C.
§ 544a) and 47 C.F.R. § 76.630, as may be amended from time to time.
2.1.4 Testing Procedures; Technical Performance. Throughout the term of this Agreement,
the Company shall operate and maintain the Cable System in accordance with the testing
procedures and the technical performance standards of the FCC.
2.2 Requirements with Respect to Work on the System.
2.2.1 General Requirements. The Company shall comply with ordinances, rules, and
regulations established by the Franchising Authority pursuant to the lawful exercise of its
police powers and generally applicable to all users of the Streets. To the extent that local
ordinances, rules, or regulations clearly conflict with the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall prevail, except where such
conflict arises from the Franchising Authority’s lawful exercise of its police powers.
2.2.2 Protection of Underground Utilities. Both the Company and the Franchising
Authority shall comply with the Georgia Utility Facility Protection Act (O.C.G.A. § 25-9-1,
et seq.), relating to notification prior to excavation near underground utilities, as may be
amended from time to time.
2.3 Permits and General Obligations.
2.3.1 The Company shall be responsible for obtaining all permits, licenses, or other forms
of approval or authorization necessary to construct, operate, maintain, or repair the Cable
System, or any part thereof, prior to the commencement of any such activity. The
Franchising Authority shall not charge the Company, and the Company shall not be
required to pay, any fee or charge for the issuance of permits, licenses, or other approvals,
as such payments are included in the franchise fees described in Section 4 below. The
issuance of permits, licenses, or other approvals shall not be unreasonably delayed or
withheld by the Franchising Authority. Construction, installation, and maintenance of the
Cable System shall be performed in a safe, thorough, and reliable manner using materials
5
of good and durable quality. All transmission and distribution structures, poles, other lines,
and equipment installed by the Company for use in the Cable System in accordance with
this Agreement shall be located so as to minimize interference with the proper use of the
Streets and the rights and reasonable convenience of property owners who own property
adjoining the Streets.
2.3.2 Code Compliance. The Company shall comply with all applicable building, safety,
and construction codes. The parties agree that at present, Cable Systems are not subject to the
low voltage regulations of the National Electric Code, National Electrical Safety Code, or
other such codes or regulations. In the event that the applicable codes are revised such that
Cable Systems become subject to low voltage regulations without being grandfathered or
otherwise exempted, the Company will thereafter be required to comply with those
regulations.
2.4 Conditions on Street Occupancy.
2.4.1 New Grades or Lines. If the grades or lines of any Street within the Franchise Area
are lawfully changed at any time during the term of this Agreement, then the Company
shall, upon at least ninety (90) days’ advance written notice from the Franchising Authority
and at its own cost and expense, protect or promptly alter or relocate the Cable System, or
any part thereof, so as to conform with the new grades or lines. If public funds are available
to any Person using the Street for the purpose of defraying the cost of any of the foregoing
work, the Franchising Authority shall make application for such funds on behalf of the
Company. The Company shall be entitled to reimbursement of its costs should any other
utility be so compensated as a result of a required protection, alteration, or relocation of its
facilities. Notwithstanding the above, the Company shall not be liable for the cost of
protecting, altering, or relocating facilities, aerial or underground, where such work is
required to accommodate a streetscape, sidewalk, or private development project.
2.4.2 Relocation at Request of Third Party. The Company shall, upon reasonable prior
written request of any Person holding a permit issued by the Franchising Authority to move
any structure, temporarily move its wires to permit the moving of such structure; provided
(i) the Company may impose a reasonable charge on any Person for the movement of its
wires, and such charge may be required to be paid in advance of the movement of its wires;
and (ii) the Company agrees to arrange for such temporary relocation to be accomplished
as soon as reasonably practicable, not to exceed ninety (90) days without the prior
agreement of the Franchising Authority.
2.4.3 Restoration of Streets. If in connection with construction, operation, maintenance,
or repair of the Cable System, the Company disturbs, alters, or damages any Street, the
Company agrees that it shall at its own cost and expense restore the Street according to the
standards set forth in the Georgia Department of Transportation’s Utility Accommodation
Policy and Standards Manual. If the Franchising Authority reasonably believes that the
Company has not restored the Street appropriately, then the Franchising Authority, after
providing ten (10) business days’ advance written notice and a reasonable opportunity to
cure, may have the Street restored and bill the Company for the cost of restoration.
6
2.4.4 Trimming of Trees and Shrubbery. The Company shall have the authority to trim
trees or other natural growth overhanging any of its Cable System in the Franchise Area so
as to prevent contact with the Company’s wires, cables, or other equipment, the cost of
which trimming shall not be borne by the Franchising Authority.
2.4.5 Aerial and Underground Construction. If at the time of Cable System construction
all of the transmission and distribution facilities of all of the respective public or municipal
utilities in the construction area are underground, the Company shall place its Cable
System’s transmission and distribution facilities underground. At the time of Cable System
construction, in any place within the Franchise Area where the transmission or distribution
facilities of the respective public or municipal utilities are both aerial and underground, the
Company shall have the discretion to construct, operate, and maintain all of its transmission
and distribution facilities, or any part thereof, aerially or underground; however, at such
time as all existing aerial facilities of the respective public or municipal utilities are placed
underground, the Company shall likewise place its facilities underground, subject to the
provisions of Section 2.4.1. Company facilities placed underground at the property
owner’s request in any area where any of the transmission or distribution facilities of the
respective public or municipal utilities are aerial shall be installed with the additional
expense paid by the property owner. Nothing in this Section 2.4.5 shall be construed to
require the Company to construct, operate, or maintain underground any ground-mounted
appurtenances such as customer taps, line extenders, system passive devices, amplifiers,
power supplies, pedestals, or other related equipment.
2.4.6 Use of Existing Poles. Where possible, the Company shall attach its facilities to
existing utility poles and shall use all reasonable efforts to enter into a pole attachment
agreement with the owners of such existing utility poles.
2.5 Change in Franchise Area. In the event that the borders of the Franchise Area change,
through annexation or otherwise, the Franchising Authority shall provide to the Company written
notice of such change, including an updated map and an electronic list of all addresses in the
Franchise Area. The Company shall not be required to pay franchise fees on gross revenues earned
from Subscribers in annexed areas until sixty (60) days after receiving such notice.
SECTION 3
CUSTOMER SERVICE
Customer Service. The Company shall comply in all respects with the requirements set forth in
Appendix B. Individual violations of those requirements do not constitute a breach of this Agreement.
SECTION 4
COMPENSATION AND OTHER PAYMENTS
4.1 Compensation to the Franchising Authority. As compensation for the Franchise, the
Company shall pay or cause to be paid to the Franchising Authority the amounts set forth in this
Section 4.1.
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4.1.1 Franchise Fees—Amount. The Company shall pay to the Franchising Authority
franchise fees in an amount equal to five percent (5%) of Gross Revenues derived from the
operation of the Cable System to provide Cable Services in the Franchise Area.
4.1.2 Franchise Fees—Payment. Payments of franchise fees shall be made on a quarterly
basis and shall be remitted not later than thirty (30) days after the last day of March, June,
September, and December throughout the term of this Agreement.
4.1.3 Company to Submit Franchise Fee Report. The Company shall submit to the
Franchising Authority, not later than thirty (30) days after the last day of March, June,
September, and December throughout the term of this Agreement, a report setting forth the
basis for the computation of Gross Revenues on which the quarterly payment of franchise
fees is being made, which report shall enumerate, at a minimum, the following revenue
categories: limited and expanded basic video service, digital video service, premium video
service, pay-per-view and video-on-demand, equipment, installation and activation,
franchise fees, guide, late fees, ad sales, home shopping commissions and bad debt.
4.1.4 Franchise Fee Payments Subject to Audit; Remedy for Underpayment. No acceptance
of any franchise fee payment by the Franchising Authority shall be construed as an accord
and satisfaction that the amount paid is in fact the correct amount or a release of any claim
that the Franchising Authority may have for further or additional sums payable under this
Agreement. The Franchising Authority may conduct an audit no more than once annually to
ensure payments in accordance with this Agreement. The audit of the Company’s records
shall take place at a location, in the State of Georgia, determined by the Company. The
Franchising Authority is prohibited from removing any records, files, spreadsheets, or any
other documents from the site of the audit. In the event that the Franchising Authority takes
notes of any documents, records, or files of the Company for use in the preparation of an audit
report, all notes shall be returned to the Company upon completion of the audit. The audit
period shall be limited to three (3) years preceding the end of the quarter of the most recent
payment. Once the Company has provided information for an audit with respect to any period,
regardless of whether the audit was completed, that period shall not again be the subject of
any audit.
If, as a result of an audit or any other review, the Franchising Authority determines that the
Company has underpaid franchise fees in any twelve (12) month period by ten percent (10%)
or more, then, in addition to making full payment of the relevant obligation, the Company
shall reimburse the Franchising Authority for all of the reasonable costs associated with the
audit or review, including all reasonable out of pocket costs for attorneys, accountants, and
other consultants. The Franchising Authority shall provide the Company with a written notice
of audit results and a copy of the final report presented to the Franchising Authority. The
Company shall remit any undisputed amounts owed to the Franchising Authority as the result
of the audit within forty-five (45) days, or other mutually acceptable timeframe, after the date
of an executed settlement and release agreement.
4.2 Payments Not to Be Set Off Against Taxes or Vice Versa. The parties agree that the
compensation and other payments to be made pursuant to this Section 4 are not a tax and are not in
the nature of a tax. The Company and the Franchising Authority further agree that the provisions
8
of O.C.G.A. § 36-76-6(h) apply to this Agreement. The Franchising Authority and the Company
further agree that no additional business license fees, occupational license fees, or permits shall be
assessed on the Company related to the provision of services or the operation of the Cable System,
nor shall the Franchising Authority levy any other tax, license, fee, or assessment on the Company
or its Subscribers that is not generally imposed and applicable to a majority of all other businesses.
4.3 Interest on Late Payments. If any payment required by this Agreement is not actually received
by the Franchising Authority on or before the applicable date fixed in this Agreement, the Company
shall pay interest thereon, from the due date to the date paid, at a rate of one percent (1%) per month.
4.4 Service to Governmental and Institutional Facilities.
4.4.1 Complimentary Installation and Service. The Company shall, within thirty (30) days
of receipt of a written request by the Franchising Authority, provide complimentary standard
installation and complimentary Basic Service on one outlet for each public primary or
secondary school and public library located within the Franchise Area no more than one
hundred twenty-five (125) feet from the nearest point of connection to the distribution plant.
If a public primary or secondary school or public library within the Franchise Area is located
more than one hundred twenty-five (125) feet from the nearest point of connection to the
distribution plant, the Company shall, within thirty (30) days of receipt of a written request
from the Franchising Authority, provide a written estimate for the cost of extending the
distribution plant to the school or library, as well as any necessary interior wiring costs.
4.4.2 Government Discounts. The Company may provide a government discount rate if the
Franchising Authority requests additional outlets at a public school or public library or
requests Cable Service to any other government facility within the Franchise Area.
SECTION 5
COMPLIANCE REPORTS
5.1 Compliance. The Franchising Authority hereby acknowledges that as of the Effective
Date, the Company is in material compliance with the terms and conditions of the cable franchise
preceding this Agreement and all material laws, rules, and ordinances of the Franchising Authority.
5.2 Reports. Upon written request by the Franchising Authority and subject to Section 631 of the
Cable Act, the Company shall promptly submit to the Franchising Authority such information as may
be necessary to reasonably demonstrate the Company’s compliance with any term or condition of this
Agreement.
5.3 File for Public Inspection. Throughout the term of this Agreement, the Company shall
maintain, in a file available for public inspection during normal business hours, those documents
required pursuant to the FCC’s rules and regulations.
5.4 Treatment of Proprietary Information. The Franchising Authority agrees to treat as
confidential, to the maximum extent allowed under the Georgia Open Records Act (O.C.G.A. § 50-
18-70, et seq.) or other applicable law, any requested documents submitted by the Company to the
Franchising Authority that are labeled as “Confidential” or “Trade Secret” prior to submission. In
the event that any documents submitted by the Company to the Franchising Authority are subject
9
to a request for inspection or production, including but not limited to a request under the Georgia
Open Records Act, the Franchising Authority shall notify the Company of the request as soon as
practicable and in any case prior to the release of such information, by email or facsimile to the
addresses provided in Section 9.6 of this Agreement, so that the Company may take appropriate
steps to protect its interests in the requested records, including seeking an injunction against the
release of the requested records. Upon receipt of said notice, the Company may review the
requested records in the Franchising Authority’s possession and designate as “Confidential” or
“Trade Secret” any additional portions of the requested records that contain confidential or
proprietary information.
5.5 Emergency Alert System. Company shall install and maintain an Emergency Alert System
in the Franchise Area only as required under applicable federal and state laws. Additionally, the
Franchising Authority shall permit only those Persons appropriately trained and authorized in
accordance with applicable law to operate the Emergency Alert System equipment and shall take
reasonable precautions to prevent any use of the Company’s Cable System in any manner that results
in inappropriate use thereof, or any loss or damage to the Cable System. The Company shall have
no liability nor shall it be required to provide indemnification to the Franchising Authority for its
use of the Emergency Alert System.
SECTION 6
ENFORCEMENT
6.1 Notice of Violation. If the Franchising Authority believes that the Company has not complied
with the terms of this Agreement, the Franchising Authority shall first informally discuss the matter
with the Company. If discussions do not lead to a resolution of the problem, the Franchising Authority
shall notify the Company in writing of the nature of the alleged noncompliance (“Violation Notice”).
6.2 Company’s Right to Cure or Respond. The Company shall have thirty (30) days from the
receipt of the Violation Notice, or any longer period specified by the Franchising Authority, to
respond; cure the alleged noncompliance; or, if the alleged noncompliance, by its nature, cannot be
cured within thirty (30) days, initiate reasonable steps to remedy the matter and provide the
Franchising Authority a projected resolution date in writing.
6.3 Hearing. If the Company fails to respond to the Violation Notice received from the
Franchising Authority, or the alleged noncompliance is not remedied within the cure period set forth
above, the Franchising Authority’s governing body shall schedule a hearing if it intends to continue
its investigation into the matter. The Franchising Authority shall provide the Company at least thirty
(30) days’ prior written notice of the hearing, specifying the time, place, and purpose of the hearing.
The Company shall have the right to present evidence and to question witnesses. The Franchising
Authority shall determine if the Company has committed a violation and shall make written findings
of fact relative to its determination. If a violation is found, the Company may petition for
reconsideration before any competent tribunal having jurisdiction over such matters.
6.4 Enforcement. Subject to applicable federal and state law, if after the hearing provided for in
Section 6.3, the Franchising Authority determines that the Company is in default of the provisions
addressed in the Violation Notice, the Franchising Authority may
10
(a) seek specific performance;
(b) commence an action at law for monetary damages or seek other equitable relief; or
(c) in the case of a substantial default of a material provision of this Agreement, seek to
revoke the Franchise in accordance with subsection 6.5 below.
6.5 Revocation.
6.5.1 After the hearing and determination provided for in Section 6.3 and prior to the
revocation or termination of the Franchise, the Franchising Authority shall give written notice
to the Company of its intent to revoke the Franchise on the basis of an alleged substantial
default of a material provision of this Agreement. The notice shall set forth the exact nature
of the alleged default. The Company shall have thirty (30) days from receipt of such notice
to submit its written objection to the Franchising Authority or to cure the alleged default. If
the Franchising Authority is not satisfied with the Company’s response, the Franchising
Authority may seek to revoke the Franchise at a public hearing. The Company shall be given
at least thirty (30) days’ prior written notice of the public hearing, specifying the time and
place of the hearing and stating the Franchising Authority’s intent to revoke the Franchise.
6.5.2 At the public hearing, the Company shall be permitted to state its position on the
matter, present evidence, and question witnesses, after which the Franchising Authority’s
governing board shall determine whether or not the Franchise shall be revoked. The public
hearing shall be on the record and a written transcript shall be made available to the Company
within ten (10) business days. The decision of the Franchising Authority’s governing board
shall be made in writing and shall be delivered to the Company. The Company may appeal
such decision to an appropriate court, which shall have the power to review de novo the
decision of the Franchising Authority’s governing board. The Company may continue to
operate the Cable System until all legal appeals procedures have been exhausted.
6.5.3 Notwithstanding the provisions of this Section 6, the Company does not waive any of
its rights under federal law or regulation.
SECTION 7
ASSIGNMENTS AND OTHER TRANSFERS
The Franchise shall be fully transferable to any successor in interest to the Company. A notice of
transfer shall be filed by the Company to the Franchising Authority within forty-five (45) days of
such transfer. The transfer notification shall consist of an affidavit signed by an officer or general
partner of the transferee that contains the following:
(a) an affirmative declaration that the transferee shall comply with the terms and conditions
of this Agreement, all applicable federal, state, and local laws, regulations, and ordinances
regarding the placement and maintenance of facilities in any public right-of-way that are
generally applicable to users of the public right-of-way and specifically including the
Georgia Utility Facility Protection Act (O.C.G.A. § 25-9-1, et seq.);
(b) a description of the transferee’s service area; and
11
(c) the location of the transferee’s principal place of business and the name or names of the
principal executive officer or officers of the transferee.
SECTION 8
INSURANCE AND INDEMNITY
8.1 Insurance.
8.1.1 Liability Insurance. Throughout the term of this Agreement, the Company shall, at
its sole expense, maintain comprehensive general liability insurance, issued by a company
licensed to do business in the State of Georgia with a rating of not less than “A minus,”
and provide the Franchising Authority certificates of insurance demonstrating that the
Company has obtained the insurance required in this Section 8.1.1. This liability insurance
policy or policies shall be in the minimum amount of One Million Dollars ($1,000,000.00)
for bodily injury or death of any one person, One Million Dollars ($1,000,000.00) for
bodily injury or death of any two or more persons resulting from one occurrence, and One
Million Dollars ($1,000,000.00) for property damage resulting from any one accident. The
policy or policies shall not be canceled except upon thirty (30) days’ prior written notice
of cancellation to the City.
8.1.2 Workers’ Compensation. The Company shall ensure its compliance with the Georgia
Workers’ Compensation Act.
8.2 Indemnification. The Company shall indemnify, defend, and hold harmless the Franchising
Authority, its officers, employees, and agents acting in their official capacities from and against any
liability or claims resulting from property damage or bodily injury (including accidental death) that
arise out of the Company’s construction, operation, maintenance, or removal of the Cable System,
including, but not limited to, reasonable attorneys’ fees and costs, provided that the Franchising
Authority shall give the Company written notice of its obligation to indemnify and defend the
Franchising Authority within ten (10) business days of receipt of a claim or action pursuant to this
Section 8.2. If the Franchising Authority determines that it is necessary for it to employ separate
counsel, the costs for such separate counsel shall be the responsibility of the Franchising Authority.
8.3 Liability and Indemnity. In accordance with Section 635A of the Cable Act, the Franchising
Authority, its officials, employees, members, or agents shall have no liability to the Company arising
from the regulation of Cable Service or from a decision of approval or disapproval with respect to a
grant, renewal, transfer, or amendment of this Franchise. Any relief, to the extent such relief is
required by any other provision of federal, state, or local law, shall be limited to injunctive relief and
declaratory relief.
SECTION 9
MISCELLANEOUS
9.1 Controlling Authorities. This Agreement is made with the understanding that its provisions
are controlled by the Cable Act, other federal laws, state laws, and all applicable local laws,
ordinances, and regulations. To the extent such local laws, ordinances, or regulations clearly
conflict with the terms and conditions of this Agreement, the terms and conditions of this
12
Agreement shall prevail, except where such conflict arises from the Franchising Authority’s lawful
exercise of its police powers.
9.2 Appendices. The Appendices to this Agreement and all portions thereof are, except as
otherwise specified in this Agreement, incorporated by reference in and expressly made a part of this
Agreement.
9.3 Enforceability of Agreement; No Opposition. By execution of this Agreement, the Company
and the Franchising Authority acknowledge the validity of the terms and conditions of this Agreement
under applicable law in existence on the Effective Date and pledge that they will not assert in any
manner at any time or in any forum that this Agreement, the Franchise, or the processes and
procedures pursuant to which this Agreement was entered into and the Franchise was granted are not
consistent with the applicable law in existence on the Effective Date.
9.4 Governmental Powers. The Franchising Authority expressly reserves the right to exercise the
full scope of its powers, including both its police power and contracting authority, to promote the
public interest and to protect the health, safety, and welfare of the citizens of the City of Milton,
Georgia.
9.5 Entire Agreement. This Agreement, including all Appendices, embodies the entire
understanding and agreement of the Franchising Authority and the Company with respect to the
subject matter hereof and merges and supersedes all prior representations, agreements, and
understandings, whether oral or written, between the Franchising Authority and the Company with
respect to the subject matter hereof, including, without limitation, all prior drafts of this Agreement
and any Appendix to this Agreement, and any and all written or oral statements or representations by
any official, employee, agent, attorney, consultant, or independent contractor of the Franchising
Authority or the Company. All ordinances or parts of ordinances or other agreements between the
Company and the Franchising Authority that are in conflict with the provisions of this Agreement are
hereby declared invalid and superseded.
9.6 Notices. All notices shall be in writing and shall be sufficiently given and served upon the
other party by first class mail, registered or certified, return receipt requested, postage prepaid, or via
facsimile (with confirmation of transmission) and addressed as follows:
THE FRANCHISING AUTHORITY:
City of Milton
Attn: City Manager
2006 Heritage Walk
Milton, Georgia 30004
COMPANY:
Comcast Cable Communications, LLC
Attn: Vice President, External Affairs
2925 Courtyards Drive
Norcross, GA 30071
With a copy to: Comcast Cable Communications, Inc.
13
Attn: Vice President, Government Affairs
600 Galleria Parkway, Suite 1100
Atlanta, GA 30339
And: Comcast Cable Communications, Inc.
Attn: Legal Dept.
One Comcast Center
Philadelphia, PA 19103
9.7 Additional Representations and Warranties. In addition to the representations, warranties, and
covenants of the Company to the Franchising Authority set forth elsewhere in this Agreement, the
Company represents and warrants to the Franchising Authority and covenants and agrees (which
representations, warranties, covenants and agreements shall not be affected or waived by any
inspection or examination made by or on behalf of the Franchising Authority) that, as of the Effective
Date:
9.7.1 Organization, Standing, and Authorization. The Company is a limited liability
company validly existing and in good standing under the laws of the State of Georgia and is
duly authorized to do business in the State of Georgia and in the Franchise Area.
9.7.2 Compliance with Law. The Company, to the best of its knowledge, has obtained all
government licenses, permits, and authorizations necessary for the operation and maintenance
of the Cable System.
9.8 Maintenance of System in Good Working Order. Until the termination of this Agreement and
the satisfaction in full by the Company of its obligations under this Agreement, in consideration of
the Franchise, the Company agrees that it will maintain all of the material properties, assets, and
equipment of the Cable System, and all such items added in connection with any upgrade, in good
repair and proper working order and condition throughout the term of this Agreement.
9.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted transferees, and assigns. All of the provisions of this
Agreement apply to the Company, its successors, and assigns.
9.10 No Waiver; Cumulative Remedies. No failure on the part of the Franchising Authority or the
Company to exercise, and no delay in exercising, any right or remedy hereunder including, without
limitation, the rights and remedies set forth in this Agreement, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or remedy preclude any other right or remedy, all
subject to the conditions and limitations established in this Agreement. The rights and remedies
provided in this Agreement including, without limitation, the rights and remedies set forth in Section
6 of this Agreement, are cumulative and not exclusive of any remedies provided by law, and nothing
contained in this Agreement shall impair any of the rights or remedies of the Franchising Authority
or Company under applicable law, subject in each case to the terms and conditions of this Agreement.
9.11 Severability. If any section, subsection, sentence, clause, phrase, or other portion of this
Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission,
legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate,
14
distinct, and independent portion. Such declaration shall not affect the validity of the remaining
portions of this Agreement, which shall continue in full force and effect.
9.12 No Agency. The Company shall conduct the work to be performed pursuant to this
Agreement as an independent entity and not as an agent of the Franchising Authority.
9.13 Governing Law. This Agreement shall be deemed to be executed in the City of Milton, State
of Georgia, and shall be governed in all respects, including validity, interpretation, and effect, by and
construed in accordance with the laws of the State of Georgia, as applicable to contracts entered into
and to be performed entirely within that state.
9.14 Claims Under Agreement. The Franchising Authority and the Company, agree that, except
to the extent inconsistent with Section 635 of the Cable Act (47 U.S.C. § 555), any and all claims
asserted by or against the Franchising Authority arising under this Agreement or related thereto shall
be heard and determined either in a court of the United States located in Georgia (“Federal Court”) or
in a court of the State of Georgia of appropriate jurisdiction (“Georgia State Court”). To effectuate
this Agreement and intent, the Company agrees that if the Franchising Authority initiates any action
against the Company in Federal Court or in Georgia State Court, service of process may be made on
the Company either in person or by registered mail addressed to the Company at its offices as defined
in Section 9.6, or to such other address as the Company may provide to the Franchising Authority in
writing.
9.15 Modification. The Company and Franchising Authority may at any time during the term of
this Agreement seek a modification, amendment, or waiver of any term or condition of this
Agreement. No provision of this Agreement nor any Appendix to this Agreement shall be amended
or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the
Franchising Authority and the Company, which amendment shall be authorized on behalf of the
Franchising Authority through the adoption of an appropriate resolution, letter of agreement, or order
by the Franchising Authority, as required by applicable law.
9.16 Delays and Failures Beyond Control of Company. Notwithstanding any other provision of
this Agreement, the Company shall not be liable for delay in performance of, or failure to perform,
in whole or in part, its obligations pursuant to this Agreement due to strike, war or act of war
(whether an actual declaration of war is made or not), insurrection, riot, act of public enemy,
accident, fire, flood or other act of God, technical failure, sabotage, or other events, where the
Company has exercised all due care in the prevention thereof, to the extent that such causes or
other events are beyond the control of the Company and such causes or events are without the fault
or negligence of the Company. In the event that any such delay in performance or failure to
perform affects only part of the Company’s capacity to perform, the Company shall perform to the
maximum extent it is able to do so and shall take all steps within its power to correct such cause(s).
The Company agrees that in correcting such cause(s), it shall take all reasonable steps to do so in
as expeditious a manner as possible. The Company shall promptly notify the Franchising
Authority in writing of the occurrence of an event covered by this Section 9.16.
9.17 Duty to Act Reasonably and in Good Faith. The Company and the Franchising Authority
shall fulfill their obligations and exercise their rights under this Agreement in a reasonable manner
15
and in good faith. Notwithstanding the omission of the words “reasonable,” “good faith,” or similar
terms in the provisions of this Agreement, every provision of this Agreement is subject to this section.
9.18 Contractual Rights Retained. Nothing in this Agreement is intended to impair the contractual
rights of the Franchising Authority or the Company under this Agreement.
9.19 No Third Party Beneficiaries. Nothing in this Agreement, or any prior agreement, is or
was intended to confer third-party beneficiary status on any member of the public to enforce the
terms of such agreements or Franchise.
IN WITNESS WHEREOF, the party of the first part, by its Mayor, thereunto duly authorized
by the City Council of said Franchising Authority, has caused the corporate name of said Franchising
Authority to be hereunto signed and the corporate seal of said Franchising Authority to be hereunto
affixed, and the Company, the party of the second part, by its officers thereunto duly authorized, has
caused its name to be hereunto signed and its seal to be hereunto affixed as of the date and year first
above written.
City of Milton, Georgia
By: ____________________________
Name: ____________________________
Title: Mayor
(Seal)
Attest: _____________________________
Date: _____________________________
Approved as to form: ________________________
City Attorney
Comcast Cable Communications, LLC
By: ______________________________
Name: ______________________________
Title: ______________________________
Attest: _____________________________
Date: _____________________________
A-1
APPENDIX A
DEFINED TERMS
For purposes of the Agreement to which this Appendix A is appended, the following terms, phrases,
words, and their derivations shall have the meanings set forth herein, unless the context clearly
indicates that another meaning is intended.
“Agreement” means the Agreement to which this Appendix A is appended, together with all
Appendices attached thereto and all amendments or modifications thereto.
“Basic Service” means any service tier that includes the retransmission of local television
broadcast Signals and any equipment or installation used in connection with Basic Service.
“Cable Act” means Title VI of the Communications Act of 1934 as amended, 47 U.S.C.
§ 521, et seq.
“Cable Service” means the one-way transmission to Subscribers of Video Programming
or other programming service and Subscriber interaction, if any, which is required for the
selection or use of such Video Programming or other programming service. “Cable
Service” does not include any Video Programming provided by a commercial mobile
service provider as defined in 47 U.S.C. §332(d).
“Cable Service Provider” or “CSP” means any person or group of persons (A) who
provides Cable Service over a Cable System and directly or through one or more affiliates
owns a significant interest in such Cable System, or (B) who otherwise controls or is
responsible for, through any arrangement, the management and operation of such a Cable
System.
“Cable System” means a facility, consisting of a set of closed transmission paths and
associated Signal generation, reception, and control equipment, that is designed to provide
Cable Service, which includes Video Programming and which is provided to multiple
Subscribers within a community, but “Cable System” does not include:
(A) a facility that serves only to retransmit the television Signals of one (1) or more
television broadcast stations;
(B) a facility that serves Subscribers without using any public right-of-way as
defined herein;
(C) a facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. §§201–276, except that such facility shall be considered a
Cable System, other than for purposes of 47 U.S.C. § 541(c), to the extent such
facility is used in the transmission of Video Programming directly to Subscribers,
unless the extent of such use is solely to provide interactive on-demand services;
(D) an open video system that complies with 47 U.S.C. § 573; or
A-2
(E) any facilities of any electric utility used solely for operating its electric utility
system.
“Channel” means a “cable channel” or “channel” as defined in 47 U.S.C. § 522(4).
“Company” means Comcast Cable Communications, LLC, a limited liability company
validly existing under the laws of the State of Delaware or lawful successor, transferee,
designee, or assignee thereof.
“FCC” means the Federal Communications Commission, its designee, or any successor
thereto.
“Franchise Area” means the incorporated areas of the City of Milton, Georgia, including any
areas annexed by the Franchising Authority during the term of the Franchise.
“Franchising Authority” means the City of Milton, Georgia, or lawful successor, transferee,
designee, or assignee thereof.
“Gross Revenues” means all revenues received from Subscribers for the provision of
Cable Service or Video Service, including franchise fees for Cable Service Providers and
Video Service Providers and advertising and home shopping services , and shall be
determined in accordance with Generally Accepted Accounting Principles (“GAAP”).
Gross Revenues shall not include:
(A) amounts billed and collected as a line item on the Subscriber’s bill to recover
any taxes, surcharges, or governmental fees that are imposed on or with respect to
the services provided or measured by the charges, receipts, or payments therefore;
provided, however, that for purposes of this definition of “Gross Revenue,” such
tax, surcharge, or governmental fee shall not include any ad valorem taxes, net
income taxes, or generally applicable business or occupation taxes not measured
exclusively as a percentage of the charges, receipts, or payments for services to the
extent such charges are passed through as a separate line item on Subscriber’s bills;
(B) any revenue not actually received, even if billed, such as bad debt;
(C) any revenue received by any affiliate or any other person in exchange for
supplying goods or services used by the provider to provide Cable or Video
Programming;
(D) any amounts attributable to refunds, rebates, or discounts;
(E) any revenue from services provided over the network that are associated with
or classified as non-Cable or non-Video Services under federal law, including,
without limitation, revenues received from telecommunications services,
information services other than Cable or Video Services, Internet access services,
directory or Internet advertising revenue including, without limitation, yellow
pages, white pages, banner advertisements, and electronic publishing advertising.
Where the sale of any such non-Cable or non-Video Service is bundled with the
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sale of one or more Cable or Video Services and sold for a single non-itemized
price, the term “Gross Revenues” shall include only those revenues that are
attributable to Cable or Video Services based on the provider’s books and records,
such revenues to be allocated in a manner consistent with generally accepted
accounting principles;
(F) any revenue from late fees not initially booked as revenues, returned check fees
or interest;
(G) any revenue from sales or rental of property, except such property as the
Subscriber is required to buy or rent exclusively from the Cable or Video Service
Provider to receive Cable or Video Service;
(H) any revenue received from providing or maintaining inside wiring;
(I) any revenue from sales for resale with respect to which the purchaser is required
to pay a franchise fee, provided the purchaser certifies in writing that it will resell
the service and pay a franchise fee with respect thereto; or
(J) any amounts attributable to a reimbursement of costs including, but not limited
to, the reimbursements by programmers of marketing costs incurred for the
promotion or introduction of Video Programming.
“Person” means any natural person or any association, firm, partnership, joint venture,
corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall
not mean the Franchising Authority.
“Signal” means any transmission of radio frequency energy or of optical information.
“Streets” means the surface of, and the space above and below, any and all streets, avenues,
highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways,
docks, bulkheads, wharves, piers, public grounds, and public places or waters within and
belonging to the Franchising Authority and any other property within the Franchise Area to
the extent to which there exist public easements or public rights-of-way.
“Subscriber” means any Person lawfully receiving Video Service from a Video Service
Provider or Cable Service from a Cable Service Provider.
“Video Programming” means programming provided by or generally considered
comparable to programming provided by a television broadcast station, as set forth in 47
U.S.C. § 522(20).
“Video Service” means the provision of Video Programming through wireline facilities
located at least in part in the public rights-of-way without regard to delivery technology,
including Internet protocol technology. This definition does not include any Video
Programming provided by a commercial mobile service provider as defined in 47 U.S.C.
§ 332(d) or Video Programming provided as part of, and via, a service that enables users
A-4
to access content, information, electronic mail, or other services offered over the public
Internet.
“Video Service Provider” or “VSP” means an entity providing Video Service as defined
herein, but does not include a Cable Service Provider.
B-1
APPENDIX B
CUSTOMER SERVICE STANDARDS
Code of Federal Regulations
Title 47, Volume 4, Parts 70 to 79
Revised as of October 1, 1998
From the U.S. Government Printing Office via GPO Access
47 C.F.R. § 76.309
Page 561–63
TITLE 47—TELECOMMUNICATION
CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION
PART 76—CABLE TELEVISION SERVICE
Subpart H—General Operating Requirements
§ 76.309 Customer service obligations.
(a) A cable franchise authority may enforce the customer service standards set forth in
paragraph (c) of this section against cable operators. The franchise authority must provide
affected cable operators ninety (90) days written notice of its intent to enforce the standards.
(b) Nothing in this rule should be construed to prevent or prohibit:
(1) A franchising authority and a cable operator from agreeing to customer service
requirements that exceed the standards set forth in paragraph (c) of this section;
(2) A franchising authority from enforcing, through the end of the franchise term, pre-
existing customer service requirements that exceed the standards set forth in paragraph
(c) of this section and are contained in current franchise agreements;
(3) Any State or any franchising authority from enacting or enforcing any consumer
protection law, to the extent not specifically preempted herein; or
(4) The establishment or enforcement of any State or municipal law or regulation
concerning customer service that imposes customer service requirements that exceed, or
address matters not addressed by the standards set forth in paragraph (c) of this section.
(c) Effective July 1, 1993, a cable operator shall be subject to the following customer service
standards:
(1) Cable system office hours and telephone availability—
(i) The cable operator will maintain a local, toll-free or collect call telephone
access line which will be available to its subscribers 24 hours a day, seven days a
week.
(A) Trained company representatives will be available to respond to
customer telephone inquiries during normal business hours.
B-2
(B) After normal business hours, the access line may be answered by a
service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be
responded to by a trained company representative on the next business
day.
(ii) Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time shall not
exceed thirty (30) seconds. These standards shall be met no less than ninety (90)
percent of the time under normal operating conditions, measured on a quarterly
basis.
(iii) The operator will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an
historical record of complaints indicates a clear failure to comply.
(iv) Under normal operating conditions, the customer will receive a busy signal
less than three (3) percent of the time.
(v) Customer service center and bill payment locations will be open at least
during normal business hours and will be conveniently located.
(2) Installations, outages and service calls. Under normal operating conditions, each of
the following four standards will be met no less than ninety five (95) percent of the time
measured on a quarterly basis:
(i) Standard installations will be performed within seven (7) business days after
an order has been placed. “Standard” installations are those that are located up to
125 feet from the existing distribution system.
(ii) Excluding conditions beyond the control of the operator, the cable operator
will begin working on “service interruptions” promptly and in no event later than
24 hours after the interruption becomes known. The cable operator must begin
actions to correct other service problems the next business day after notification
of the service problem.
(iii) The “appointment window” alternatives for installations, service calls, and
other installation activities will be either a specific time or, at maximum, a four-
hour time block during normal business hours. (The operator may schedule
service calls and other installation activities outside of normal business hours for
the express convenience of the customer.)
(iv) An operator may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
(v) If a cable operator representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer
will be contacted. The appointment will be rescheduled, as necessary, at a time
which is convenient for the customer.
B-3
(3) Communications between cable operators and cable subscribers—
(i) Notifications to subscribers—
(A) The cable operator shall provide written information on each of the
following areas at the time of installation of service, at least annually to all
subscribers, and at any time upon request:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of
subscription to programming and other services;
(3) Installation and service maintenance policies;
(4) Instructions on how to use the cable service;
(5) Channel positions programming carried on the system; and,
(6) Billing and complaint procedures, including the address and
telephone number of the local franchise authority's cable office.
(B) Customers will be notified of any changes in rates, programming
services or channel positions as soon as possible in writing. Notice must
be given to subscribers a minimum of thirty (30) days in advance of such
changes if the change is within the control of the cable operator. In
addition, the cable operator shall notify subscribers thirty (30) days in
advance of any significant changes in the other information required by
paragraph (c)(3)(i)(A) of this section. Notwithstanding any other
provision of Part 76, a cable operator shall not be required to provide prior
notice of any rate change that is the result of a regulatory fee, franchise
fee, or any other fee, tax, assessment, or charge of any kind imposed by
any Federal agency, State, or franchising authority on the transaction
between the operator and the subscriber.
(ii) Billing—
(A) Bills will be clear, concise and understandable. Bills must be fully
itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional charges,
rebates and credits.
(B) In case of a billing dispute, the cable operator must respond to a
written complaint from a subscriber within 30 days.
(iii) Refunds—Refund checks will be issued promptly, but no later than either—
(A) The customer's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier, or
(B) The return of the equipment supplied by the cable operator if service
is terminated.
(iv) Credits—Credits for service will be issued no later than the customer's next
billing cycle following the determination that a credit is warranted.
B-4
(4) Definitions—
(i) Normal business hours—The term “normal business hours” means those hours
during which most similar businesses in the community are open to serve
customers. In all cases, “normal business hours” must include some evening
hours at least one night per week and/or some weekend hours.
(ii) Normal operating conditions—The term “normal operating conditions”
means those service conditions which are within the control of the cable operator.
Those conditions which are not within the control of the cable operator include,
but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the cable operator include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
(iii) Service interruption—The term “service interruption” means the loss of
picture or sound on one or more cable channels.
[58 FR 21109, Apr. 19, 1993, as amended at 61 FR 18977, Apr. 30, 1996]
SETTLEMENT AGREEMENT
FRANCHISE FEE AUDITIREVIEW
This Settlement Agreement (the "Settlement Agreement") is dated this 4 Ir7 of
f:)�q-nl. 2018, between Comcast Cable Communications, LLC ("Comcast'), and the
City of Milton, GA (the "City"). Comcast and the City may be individually referred to
hereafter as a "Party" orjointly as the "Parties."
RECITALS
WHEREAS, Section 7.1 of the City's Franchise Agreement requires Comcast to pay
a franchise fee in the amount of five percent of Comeast's gross revenues (the "Franchise
Fee");
WHEREAS, the City engaged the firm of Local Government Services to conduct a
review of Comcast's Franchise Fee payments for the period from July 1, 2014 through
June 30, 2017 ("Audit Period");
WHEREAS, the City has provided Comcast with a copy of a report prepared by
Local Government Services December 8, 2017 ("Report"), which report concludes that
Comcast owes additional franchise fees for the Audit Period;
WHEREAS, the Parties deem it to be to their mutual benefit to settle their
differences for all Franchise Fee payment issues for the period of July 1, 2414 through
September 30, 2017 (the "Settlement Period"), by this Settlement Agreement, resolve all
such disputes and specify the terms under which Comcast will pay the City the sum of
$65,398.44 in full settlement of all Franchise Fee payment obligations for the Settlement
Period_
NOW THEREFORE, in exchange for the mutual benefits and undertakings
described herein, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. PAYMENT BY COMCAST
Within thirty (30) days of delivery to Comcast of a counterpart original of this
Settlement Agreement executed by the City, Comcast shall deliver to the City a check
made payable to the City of Milton in the amount of $65,398.44. Comcast reserves the
right to pass through to customers any such sums of this franchise fee payment which have
not already been collected as franchise fees.
2. RELEASE OF ALL CLAIMS AND FINAL SATISFACTION AND RELEASE
OF PAYMENT OBLIGATIONS
The Parties hereby release and discharge each other from all claims related to
Franchise Fee payments for the Settlement Period. Payment by Comcast to the City
pursuant to Section l hereof shall be deemed full and final satisfaction and release of
Comeast's Franchise Fee payment obligations for the. Settlement Period.
3. NO WAIVER OR CONCESSION .OF THE METHOD OF CALCULATION OF
GROSS REVENUES
The Parties mutually agree that this Settlement. Agreement controls only the
Settlement Period and is neither precedent nor .waiver by either Party, of any claim,
methodology or interpretation of the Franchisee's gross revenues for any future audit of
periods not within the Settlement Period.
4. GENERAL PROVISIONS
(a) Each Party covenants and agrees that it: will not make, assert or maintain
any claim, demand, action or cause of action that is discharged by this Settlement
Agreement against.the other Party; provided, however, that either Party may bring an
action against the other Party to enforce this Settlement Agreement.
(b) Each Party represents that it has. not conveyed or assigned any claims
released by this Settlement Agreement to any third parties. Each Party represents and
warrants that it has the power and authority to enter into. this Settlement Agreement. Any
breach ofthis Settlement Agreement shall be subject to all remedies available to the Parties
at law.or in equity. In. addition., any breach of this Settlement Agreement shall be deemed
a breach of the Franchise Agreement, and shall be subject to all of the remedies available
under the Franchise .Agreement:
(c) The Settlement Agreement sets forth the entire agreement. of the Parties
with respect to its subject matter, there being no other promise or inducement to or Voir the
execution of this Settlement. Agreement other than the consideration cited above. There
are no contingencies, conditions precedent, representations; warranties, or other agreement,
oral. or otherwise, regarding. settlement between the Parties not stated herein.
.(d) The Parties acknowledge that this Settlement Agreement is the product of
negotiations between the Parties and does not constitute, and shall not be construed as, an
admission.of liability on. the part of any Party.
(e) This Settlement Agreernent.shall inure to the benefit of, and shall be
binding on, the Parties' respective successors and assigns.
(t) This Settlement Agreement may not be modified or amended, nor any of its
terms waived, except by an.amendment signed by duly authorized representatives: of the
Parties.
(g). This SettlementAgreement shall be construed and enforced in accordance
with the laws of the State of Georgia without regard to. conflicts of law principles. All
actions or suits brought hereunder or arising out of this Settlement Agreement shall be
brought in the appropriate State or Federal courts in Georgia, and in no other courts.
(h) This Settlement Agreement.shall be effective:upon the: date when it is
executed on behalf of the City.
- 2 -
(i) All time frames expressed in terms of days shall mean calendar days, and if
the time allowed for action required hereunder shall expire on a Saturday, Sunday, or
holiday as defined, and if the time allowed for action required hereunder shall expire on a
Saturday, Sunday, or holiday as defined by the laws of the State of Georgia, then the
expiration shall automatically be the next calendar day that is not a Saturday, Sunday, or
holiday. All time frames are agreed to be of the essence.
IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to
be executed by duly authorized representatives of each Party on the dates written below.
CITY OF MILTON
By.
Name: �roe 2--D G 1f 1)6b0(
Title: a�-
Date:—
Approved as to Form:
COMCAST CABLE COMMUNICATIONS, LLC
By: _
Name:
Title:
Date:
- 3 --
MILTON*t
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: �Oc7ttober 16, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Approval of an Agreement Between the City of Milton,
Georgia and Flock Group, Inc. for the Milton Police
Department to Participate in the Flock Data Sharing Program
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (.%APPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (44ES () NO
CITY ATTORNEY REVIEW REQUIRED: (4"YES () NO
APPROVAL BY CITY ATTORNEY: (/APPROVED () NOT APPROVED
PLACED ON AGENDA FOR: 1 0 L'I h"`t
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltonga.us
To: Honorable Mayor and City Council Members
From: Chief Rich Austin
Date: Submitted on October 16, 2019 for the October 21, 2019 Regular
City Council Meeting
Agenda Item: Approval of an Agreement Between the City of Milton, Georgia
and Flock Group Inc. for the Milton Police Department to
Participate in the Flock Data Sharing Program
_____________________________________________________________________________________
Department Recommendation:
The Police Department recommends approval of this agreement.
Executive Summary:
This agreement will give the Milton Police Department acc ess to the Flock Data Sharing
Program . The Flock Data Sharing Program includes access to one automatic license
plate reader, warranty, cellular service, installation, along with access to other Flock
Cameras within the City of Milton.
Funding and Fiscal Impact:
$2,000 annual fee
Alternatives:
None
Legal Review:
Sam P. VanVolkenburgh – Jarrard & Davis (August 14, 2019)
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
An agreement between the City of Milton, Georgia and Flock Group Inc, for the Milton
Police Department to participate in the Flock Data Sharing Program.
Page 1 of 4
MEMORANDUM OF UNDERSTANDING
This Data Sharing Memorandum of Understanding (this “MOU”) is entered into by and between Flock
Group, Inc. with a place of business at 2588 Winslow Drive, Atlanta, GA 30305 (“Flock”) and the police
department or agency identified in the signature block below (“Agency”) with a place of business at 2006
Heritage Walk, Milton, GA 30004 (each a “Party, and together, the “Parties”).
Whereas, Agency desires to access Flock’s technology platform (the “Flock Service”) in order to view
and search videos recorded by Flock (“Recordings”) which are stored for no longer than 30 days,
utilizing its software for automatic license plate detection;
Whereas, Flock desires to share such videos with Agency pursuant to the following terms and conditions.
1. Purpose. To allow the Agency to utilize the Flock Services for the following purpose: [to gain
awareness with respect to the communities for which they serve to protect] (the “Purpose”).
2. Access Rights to Flock Services. Subject to the terms and conditions contained in this MOU,
Flock hereby grants to Agency a non-exclusive, non-transferable right to access the features and
functions of the Flock Service during the Term (as defined below), solely for use by Authorized
Users in accordance with the terms and conditions herein. For purposes of this MOU, “Authorized
Users” will mean employees, agents, or officers of Agency accessing or using the Flock Services
for the Purpose. Agency acknowledges and agrees that, as between Agency and Flock, Agency
shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an
Authorized User which, if undertaken by Agency, would constitute a breach of this MOU, shall
be deemed a breach of this MOU by Agency. Agency shall undertake reasonable efforts to make
all Authorized Users aware of the provisions of this MOU as applicable to such Authorized User’s
use of the Flock Service and shall cause Authorized Users to comply with such provisions.
3. Restrictions on Use. Agency will not, and will not permit any Authorized Users or any third party
to, (i) copy or duplicate any of the Flock Service; (ii) decompile, disassemble, reverse engineer or
otherwise attempt to obtain or perceive the source code from which any software component of any
of the Flock Service is compiled or interpreted; (iii) modify, alter, or tamper with any of the Flock
Service, or create any derivative product from any of the foregoing; (iv) interfere or attempt to
interfere in any manner with the functionality or proper working of any of the Flock Service; (v)
remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on
or contained within any of the Flock Service; or (vi) assign, sublicense, sell, resell, lease, rent or
otherwise transfer or convey, or pledge as security or otherwise encumber, Agency’s rights under
Sections 2.
4. Ownership. As between the Parties, subject to the rights granted in this MOU, Flock and its
licensors retain all right, title and interest in and to the Flock Service, and its components and any
Recordings or data provided by Flock through the Flock Service, and Agency acknowledges that
it neither owns nor acquires any additional rights in and to the foregoing not exp ressly granted by
this MOU. Agency further acknowledges that Flock retains the right to use the foregoing for any
purpose in Flock’s sole discretion. There are no implied rights.
Page 2 of 4
5. Financial Implications to Agency. No financial commitment by Agency is required to access the
Flock Services or Recordings.
6. Term; Termination.
A. Term. This MOU will commence once executed by both Parties and shall continue for a
period of [5] years.
B. Termination. Flock may terminate this MOU for its convenience, and in its sole
discretion, by providing Agency thirty (30) days prior written notice of termination.
Agency may terminate this MOU for its convenience, and in its sole discretion, by
providing Flock ninety (90) days prior written notice of terminatio n. Either party may
terminate this MOU upon written notice if the other party has breached a material term
of this MOU and has not cured such breach within thirty (30) days of receipt of notice from
the non-breaching party specifying the breach. Upon termination of this MOU, Agency
will immediately cease all use of Flock Services.
7. Responsibility for Acts of Agents. Each Party to this MOU shall assume the responsibility and
liability for the acts and omissions of its own employees, deputies, officers, or agents, in connection with
the performance of their official duties under this MOU. For tort liability purposes, no participating Party
shall be considered the agent of the other participating Party. Each Party to this MOU shall be liable (if
at all) only for the torts of its own officers, agents, or employees that occur within the scope of their
official duties. Under no circumstances shall this MOU be interpreted to create a partnership or agency
relationship between the Parties.
8. Limitation of Liability.
A. Limitation on Direct Damages. IN NO EVENT SHALL FLOCK’S AGGREGATE
LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
MOU EXCEED $100, WITHOUT REGARD TO WHETHER SUCH CLAIM IS
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE.
B. Waiver of Consequential Damages. IN NO EVENT SHALL FLOCK OR ITS
LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD
TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN
IF FLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Confidentiality.
A. Obligations. Each of the Parties agrees to maintain in confidence any non-public
information of the other party, whether written or otherwise, disclosed by the other party in
the course of performance of this MOU that a party knows or reasonably should know is
considered confidential by the disclosing party (“Confidential Information”). The parties
hereby agree that Confidential Information includes the information received from Flock
Services. The receiving party shall not disclose, use, transmit, inform or make available to
any entity, person or body, other than their own officers, employees and agents, any of the
Confidential Information, except as a necessary part of performing their law enforcement
Page 3 of 4
duties, and shall take all such actions as are reasonably necessary and appropriate to
preserve and protect the Confidential Information and the parties’ respective rights therein,
at all times exercising at least a reasonable level of care. Each Party agrees to restrict
access to the Confidential Information of the other party to those off icers, employees or
agents who require access, and, except as otherwise provided, neither party shall make
Confidential Information available to any other person or entity without the prior written
consent of the other party.
B. Exclusions. Confidential Information shall not include any information that is (i) already
known to the receiving party at the time of the disclosure; (ii) publicly known at the time
of the disclosure or becomes publicly known through no wrongful act or failure of the
receiving party; (iii) subsequently disclosed to the receiving party on a non -confidential
basis by a third party not having a confidential relationship with the other party hereto that
rightfully acquired such information; or (iv) communicated to a third party by the receiving
party with the express written consent of the other party hereto. A disclosure of
Confidential Information that is legally compelled to be disclosed pursuant to a subpoena,
summons, order or other judicial or governmental process shall not be considered a breach
of this MOU; provided the receiving party provides prompt notice of any such subpoena,
order, or the like to the other party so that such party will have the opportunity to obtain a
protective order or otherwise oppose the disclosure. In addition, the confidentiality
obligations above will not apply to Agency’s compliance with valid requests for
information under Georgia’s Open Records Act and the Parties acknowledge that pursuant
to the Georgia’s Open Meetings Act and the Cit y of Milton Charter, the terms and
conditions of this MOU must be approved in a public meeting and spread upon the minutes
thereof. Flock further acknowledges that if it submits records containing trade secret
information, and if Flock wishes to keep such records confidential against an Open Records
Act request, Flock must submit and attach to such records (at the time of disclosure) an
affidavit affirmatively declaring that specific information in the records constitutes trade
secrets pursuant to Article 27 of Chapter 1 of Title 10 of the Georgia Code, and the Parties
shall follow the requirements of O.C.G.A. § 50-18-72(a)(34) related thereto.
10. Miscellaneous. All notices, requests, demands, or other communications required or permitted to
be given hereunder must be in writing and must be addressed to the Parties at their respective
addresses set forth on the first page of the MOU and shall be deemed to have been duly given
when(a) delivered in person; (b) one (1) business day after being deposited with a reputable
overnight air courier service; or (c) three (3) business days after being deposited with the United
States Postal Service, for delivery by certified or registered mail, postage pre-paid and return
receipt requested. This MOU shall be governed by the laws of the State of Georgia, excluding its
conflict of laws rules. The Parties agree that the United Nations Convention for the International
Sale of Goods is excluded in its entirety from this MOU.
Page 4 of 4
IN WITNESS WHEREOF, Flock and the Agency have caused this MOU to be signed on the date set
forth below and be effective on the last date specified below.
Flock Group, Inc.: Agency: City of Milton, Georgia (on behalf of
the City of Milton Police Department)
MILTON'llk
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 16, 2019
FROM: Steven Krokoff, City Manager 0
AGENDA ITEM: Approval of the Following Subdivision Plat and Revisions:
Name of Development/
Location
Action
Comments / #
lots
Total
Acres
Density
1. Nix Crossing
LL 452 & 485
Minor
Reassign
5.14
0.58 Lots /
910 NIX Road
Plat
addresses
acre
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (,'APPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: () YES (AC,
CITY ATTORNEY REVIEW REQUIRED: () YES (/NO
APPROVAL BY CITY ATTORNEY: () APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: I tl 2,011W7
2006 Heritage Walk Milton, GA P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltonga.us
Cfl® y a i
To: Honorable Mayor and City Council Members
From: Parag Agrawal , Community Development Director
Date: Submitted on October 15, 2019 for the October 21, 2019 Regular
Council Meeting
Agenda Item: Approval of Subdivision Plats and Revisions Approval
____________________________________________________________________________
Department Recommendation:
To approve the subdivision related plats and revisions as stated below.
Executive Summary:
The Milton Subdivision Regulations require that the Mayor and City Council approve all
Final Plats, final Plat Re-recording, Revisions and Minor Plats once the matter has been
reviewed and certified by the Community Development Director in accordance with
the Subdivision Regulations.
1. The Nix Crossing minor plat described herein consists of 3 previously subdivided
lots located at the corner of Birmingham Highway and Nix Road. The purpose of
this plat is to reassign addresses. No lots are being reconfigured or created.
Funding and Fiscal Impact:
None.
Alternatives:
Do not approve.
Legal Review:
None – not required.
Concurrent Review:
Steven Krokoff, City Manager
Attachment(s):
Consent Agenda Plats Staff Memo
Page 2 of 5
Plat List, Location Map, Plats
Name of Development /
Location Action Comments / #
lots
Total
Acres Density
1. Nix Crossing
LL 452 & 485
910 NIX Road
Minor
Plat
Reassign
addresses 5.14 0.58 Lots /
acre
Consent Agenda Plats Staff Memo
Page 3 of 5
Consent Agenda Plats Staff Memo
Page 4 of 5
Consent Agenda Plats Staff Memo
Page 5 of 5
MILTON*t
TO:
FROM:
AGENDA ITEM:
MEETING DATE:
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
City Council
DATE: October 14, 2019
Steven Krokoff, City Manager rJ
Proclamation Recognizing United States Citizenship.
Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (,APPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: () YES ( KNO
CITY ATTORNEY REVIEW REQUIRED: () YES (.1'NO
APPROVAL BY CITY ATTORNEY: () APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: )s,1 zU;" I
2006 Heritage Walk Milton, GA
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In Recognition and Celebration of New United States of America
Citizens Residing in the City of Milton.
WHEREAS, the City of Milton values the contributions of immigrants and new citizens
who help foster a spirit of inclusion that enriches our community and
preserves its legacy as a City of freedom and opportunity; and
WHEREAS, the City of Milton wishes to acknowledge immigrants’ commitment to the
United States of America and its Constitution and to the idea of liberty and
justice for all on which this country has been founded; and
WHEREAS, the City of Milton recognizes those becoming citizens of the United States of
America who live in Milton and choose to enjoy the rights and privileges of
full United States citizenship as we a ll strive for a “more perfect union.”
Now, therefore be it resolved, that the Mayor and City Council of the City of Milton recognize
residents of the City who have recently earned the rights and responsibilities incumbent upon
every citizen of the United States of America.
Presented to Alvaro Galvis and Sandra Cornejo Persales, City of Milton residents and New
United States of American Citizens.
Given under our hand and seal of the City of Milton, Georgia on this 21st day of October
2019.
_________________________________
Joe Lockwood, Mayor
MILTON *k
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 14, 2019
FROM: Steven Krokoff, City Manager �-f-) "
AGENDA ITEM: Proclamation Recognizing 2019 Breast Cancer Awareness
Month.
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (APPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: () YES (kilo
CITY ATTORNEY REVIEW REQUIRED: () YES (440
APPROVAL BY CITY ATTORNEY. () APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: fb 11, 1 lore,
2006 Heritage Walk Milton, GA
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P: 678.242.25001 F: 678.242.2499 info@cityofmiltongo.us I www.cityofmiltonga.us
2019 National Breast Cancer Awareness Month
WHEREAS, October is National Breast Cancer Awareness Month; and
WHEREAS, breast cancer is the second most common cancer among women, after
skin cancer; and
WHEREAS, one in eight women will be diagnosed with breast cancer at some point in
their life; and
WHEREAS, over 268,600 women and approximately 2,670 men will likely be diagnosed
with breast cancer in 2019 and about 40,000 women will die from the
disease; and
WHEREAS, in 2019, there are more than 3.1 million women with a history of breast
cancer in the United States. This includes women currently being treated
and women who have finished treatment; and
WHEREAS, every woman is at risk for breast cancer even if she has no family history or
other risk factors of the disease; and
WHEREAS, the percentage of survivors, 5 years or more after being diagnosed, is now
89.7% because of the efforts of various organizations have made regular
contributions to spreading breast cancer awareness through outreach
education and screening programs, and, have empowered women with
the life-saving message of early detection and the importance of having
annual mammograms.
NOW, THEREFORE, we, the Mayor and City Council of the City of Milton, Georgia hereby
dedicate and proclaim October as NATIONAL BREAST CANCER AWARENESS MONTH in the
City of Milton and call this observance to the attention of all of our citizens.
Given under my hand and seal of the City of Milton, Georgia on this 21st day of October
2019.
______________________
Joe Lockwood, Mayor
MILTON
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 14, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Consideration of an Ordinance Amendment to the City of
Milton's Code of Ordinances, Chapter 32, Article II - Offenses
Against Public Peace, Order and Morals
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: („ pAPPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (�'YES (J NO
CITY ATTORNEY REVIEW REQUIRED: (rl'ES () NO
APPROVAL BY CITY ATTORNEY: (, -APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: �l � I& ^i
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cifyofmiltonga.us I www.cityofmiltongo.us
To: Honorable Mayor and City Council Members
From: Rich Austin, Chief of Police
Date: Submitted on October 9, 2019 for the October 21, 2019 Regular City
Council Meeting (First Presentation) and November 4, 2019 Regular
City Council Meeting (Unfinished Business)
Agenda Item: Consideration of an Ordinance Amendment to the City of Milton’s
Code of Ordinances, Chapter 32, Article II – Offenses Against
Public Peace, Order and Morals
_____________________________________________________________________________________
Department Recommendation:
Approval .
Executive Summary:
This is a proposed update to City’s Code Chapter 32 (Offenses and Miscellaneous
Provisions). The purpose of this update is to add a provision under Disorderly Conduct
specifically related to trespassing on private property.
Funding and Fiscal Impact:
None
Alternatives:
N/A
Legal Review:
Ken Jarrard, Jarrard and Davis (October 9, 2019)
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
Ordinance Revision
1
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
ORDINANCE AMENDMENT TO THE CITY OF MILTON’S CODE OF ORDINANCES,
CHAPTER 32, ARTICLE II – OFFENSES AGAINST PUBLIC PEACE, ORDER AND
MORALS
The Council of the City of Milton hereby ordains, while in regularly called Council meeting on
the 4th day of November at 6:00 p.m., as follows:
WHEREAS, pursuant to Section 1.12(b)(14) of the City Charter, the City is authorized to
define, regulate, and prohibit any act, practice, conduct, or use of property which is
detrimental to the welfare and safety of the inhabitants of the city and to provide for the
enforcement of such standards; and,
WHEREAS, the City desires to update its regulations and restrictions applicable to
vehicle parking.
NOW THEREFORE, the Council of the City of Milton hereby ordains that T he Code of
the City of Milton, Georgia, is hereby amended by incorporating the insertions and
deletions and shall read as shown in Exhibit A attached hereto and incorporated herein
by reference.
ORDAINED this 4th of November 2019.
Approved:
_______________________________
Joe Lockwood, Mayor
Attest:
___________________________
Sudie Gordon, City Clerk
(Seal)
Page 2 of 3
EXHIBIT A
ARTICLE II. - OFFENSES AGAINST PUBLIC PEACE, ORDER AND MORALS
DIVISION 1. - GENERALLY
Sec. 32-19. - Disorderly conduct.
(a) It shall be unlawful for any person to disturb or endanger the public peace or decency by
any disorderly conduct.
(b) The following acts, among others, are declared to be disorderly conduct:
(1) Act in a violent or tumultuous manner toward another whereby any person is placed
in fear of the safety of such person's life limb or health;
(2) Act in a violent or tumultuous manner toward another whereby the property of any
person is placed in danger of being damaged or destroyed;
(3) Cause, provoke or engage in any fight, brawl or riotous conduct so as to endanger
the life, limb, health or property of another;
(4) Assemble or congregate with another or others for the purpose of gaming;
(5) Be in or about any place, alone or with others, with the purpose of or intent to engag e
in any fraudulent scheme, trick or device to obtain any money or valuable thing or to aid
or abet any person doing so;
(6) Be in or about any place where gaming or the illegal sale or possession of alcoholic
beverages or narcotics or dangerous drugs are practiced, allowed or tolerated, for the
purpose of or intent to engage in gaming or the purchase, use, possession or
consumption of such illegal drugs, narcotics or alcohol;
(7) Direct fighting words toward another, that is, words which by their very nature tend
to incite an immediate breach of the peace;
(8) Interfere, by acts of physical obstruction, with another's pursuit of a lawful
occupation;
(9) Congregate with another or others in or on any public way so as to halt the flow of
vehicular or pedestrian traffic, and to fail to clear that public way after being ordered to
do so by a city police officer or other lawful authority;
(10) Stand or remain in or about any street, sidewalk, overpass, or public way so as to
impede the flow of vehicular or pedestrian traffic, and to fail to clear such street,
sidewalk, overpass or public way after being ordered to do so by a police officer or other
lawful authority;
(11) Disrupt by actions which tend to cause an immediate breach of the peace the
undisturbed activities of any house of worship, hospital or home for the elderly; or
(12) Throw bottles, paper, cans, glass sticks, stones, missiles, or any other debris on
public property.
(13) Enter onto the property of another for a purpose that could reasonably be deemed
to disturb its tranquility or peaceable enjoyment, or cause hurt, inconvenience, or
damage to the property, its owner, or authorized occupants. For purposes of this
subparagraph, a single occurrence is sufficient to cause a violation.
(Ord. No. 06-11-16, § 1(ch. 12, art. 1, § 1), 11-21-2006)
3
State Law reference— Reckless conduct, O.C.G.A. § 16-5-60; riot, O.C.G.A. § 16-11-30; fighting,
O.C.G.A. § 16-11-32; loitering, O.C.G.A. § 16-11-36; profanity, O.C.G.A. § 16-11-39.
MILTON*k
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 14, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Consideration of the Issuance of an Alcohol Beverage
License to Trophy Atlanta Management, LLC d/b/a Trophy
Club of Atlanta, 15135 Hopewell Rd., Milton, GA 30004
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (jIAPPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: () YES (kiVo
CITY ATTORNEY REVIEW REQUIRED: () YES U'NO
APPROVAL BY CITY ATTORNEY: () APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: i L'I1') W0
2006 Heritage Walk Milton, GA P: 678.242.25001 F: 678.242.2499
info@cityofmiltongo.us I www.cityofmiltonga.us
To: Honorable Mayor and City Council Members
From: Bernadette Harvill, Finance Director
Date: Submitted on October 3, 2019 for the October 21, 2019 Regular
Council Meeting
Agenda Item: Consideration of the Issuance of an Alcohol Beverage License to
Trophy Atlanta Management, LLC d/b/a Trophy Club of Atlanta, 15135
Hopewell Rd, Milton, Ga. 30004
_____________________________________________________________________________________________
Department Recommendation:
Approve the issuance of an alcohol beverage license for Trophy Atlanta Management,
LLC d/b/a Trophy Club of Atlanta for consumption on premise of Wine, Malt Beverages
and Distilled Spirits.
Executive Summary:
City of Milton Code of Ordinance Chapter 4 allows for the issuance of alcohol beverage
licenses to businesses that properly submit application for and meet all of the legal
requirements to hold such license. This application was submitted due to change in
ownership.
Staff has processed the application and recommends issuance of the applicable license
for:
Business Name: Trophy Atlanta Management, LLC d/b/a Trophy Club of Atlanta
Contact Name: Mike Field
Business Address: 15135 Hopewell Rd, Milton, Ga. 30004
Type of License: Consumption on Premise – Wine, Malt Beverages and Distilled Spirits
Funding and Fiscal Impact:
There is a positive fiscal impact of license fees and/or monthly excise taxes.
Alternatives:
None.
Legal Review:
Not required.
Concurrent Review:
Steven Krokoff, City Manager
MILTOR*k
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: ,,011ctober 14, 2019
FROM: Steven Krokoff, City Manager Vj
AGENDA ITEM: Consideration of the Issuance of an Alcohol Beverage
License to Deep Roots Wine Market and Tasting Room, LLC,
d/b/a Deep Roots Milton, 12220 Birmingham Hwy., Bldg. 80,
Suite 102, Milton, GA 30004
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (YAPPROVED NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: () YES (A0
CITY ATTORNEY REVIEW REQUIRED: () YES (00
APPROVAL BY CITY ATTORNEY: () APPROVED () NOT APPROVED
PLACED ON AGENDA FOR: 11, il'4 1t'i`.
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cityofmiltongo.us I www.cifyofmiltonga.us
To: Honorable Mayor and City Council Members
From: Bernadette Harvill, Finance Director
Date: Submitted on October 3, 2019 for the October 21, 2019 Regular
Council Meeting
Agenda Item: Consideration of the Issuance of an Alcohol Beverage License to Deep
Roots Wine Market and Tasting Room, LLC, d/b/a Deep Roots Milton,
12220 Birmingham Hwy, Bldg 80, Suite 102, Milton, Ga. 30004
_____________________________________________________________________________________________
Department Recommendation:
Approve the issuance of an alcohol beverage license for Deep Roots Wine Market and
Tasting Room, LLC, d/b/a Deep Roots Milton for retail package Wine and Malt Beverages
and Ancillary Wine Tasting.
Executive Summary:
City of Milton Code of Ordinance Chapter 4 allows for the issuance of alcohol beverage
licenses to businesses that properly submit application for and meet all of the legal
requirements to hold such license. This application is submitted as a new establishment.
Staff has processed the application and recommends issuance of the applicable license
for:
Business Name: Deep Roots Wine Market and Tasting Room, LLC,
d/b/a Deep Roots Milton
Contact Name: Dana Gurela
Business Address: 12220 Birmingham Hwy, Bldg 80, Suite 102, Milton, Ga. 30004
Type of License: Retail Package – Wine and Malt Beverages
Ancillary Wine Tasting
Funding and Fiscal Impact:
There is a positive fiscal impact of license fees and/or monthly excise taxes.
Alternatives:
None.
Legal Review:
Not required.
Concurrent Review:
Steven Krokoff, City Manager
TO:
FROM:
MILTON*k
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
City Council
DATE: October 14, 2019
Steven Krokoff, City Manager (2)
AGENDA ITEM: Consideration of an Ordinance Amendment to Chapter 48,
Article VII, Division 3, Section 48-585 for Prohibitions and Uses in
the Public -Rights -of -Way to Address Fixed Objects with the
Right -of -Way
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: ()APPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (k(ES () NO
CITY ATTORNEY REVIEW REQUIRED: (;' ES () NO
APPROVAL BY CITY ATTORNEY: (1APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: I Ll 7,11 t LSC'
2006 Heritage Walk Milton, GA
0000
P: 678.242.2500 1 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltonga.us
To: Honorable Mayor and City Council Members
From: Robert W. Drewry, Director of Public Works
Date: Submitted on September 23, 2019 for First Reading on October 7,
2019 Regular City Council Meeting and Second Reading on
October 21, 2019 Regular City Council Meeting
Agenda Item: Consideration of an Ordinance Amendment to Chapter 48, Article
VII, Division 3, Section 48-585 for Prohibitions and Uses in the Public
Rights-of-Way to Address Fixed Objects within the Right-of-Way
_____________________________________________________________________________________
Department Recommendation: Approval .
Executive Summary:
The current municipal code section addresses fixed objects encroaching in the public
right-of-way. However, the current code language implies that fixed objects in the right-
of-way are safety hazards. Not all fixed objects and encroachments in the right-of-way
constitute a safety hazard. Often times those fixed objects are within the right-of-way but,
not all those fixed objects are within “clear zones” to allow the operator of a vehicle to
re-enter the roadway after leaving the roadway and therefore, not all those fixed objects
are foreseen as a safety hazard. Th e recommendation is to replace the ordinance
language stating that “fixed objects within the right-of-way are safety hazards” with
language to the effect that objects that “in the reasonable opinion of the City traffic
engineer or his/her designee, may pose a safety hazard” are not allowed in the right of
way. It is also recommended that language in the code providing that fixed mailboxes
are not allowed in the right of way be modestly adjusted to account for the traffic
engineer’s discretion regarding other objects in the right of way. The code further directs
City staff to perform safety evaluations of those encroachments. Those evaluations may
result in action by the City to direct the owner to remove those encroachments.
Funding and Fiscal Impact:
None
Alternatives:
1. Amend ordinance per staff’s recommendation.
2. Not to amend ordinance.
Legal Review:
Ken Jarrard, Jarrard & Davis, 9/18/19
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
Redline of Ordinance Revision
Ordinance to Amend 48-585
Exhibit “A” to Ordinance
Amendment to Chapter 48 Section 48-585
Sec. 48-585. - Location within the right-of-way.
(a) A right-of -way and utility encroachment permit is required for all activities within the right-of -way
including, but not limited to, the construction, installation, repair or replacement of pipe, conduit, cable
or other facilities vital to the function of the utility or construction site referenced for the flow of traffic
(vehicles and pedestrians) (i.e., a driveway, shoulder, or road construction) at the referenced location.
Such permit shall be managed by the public works department.
(b) Irrigation systems, landscaping, fences, walls, non-operable vehicles, trailers, boats, dumpsters and
other fixed objects within the right-of -way are that, in the reasonable opinion of the City traffic engineer
or his/her designee, may pose a safety hazard are not allowed within the right-of -way. However; certain
landscaping and irrigation systems may be permitted upon the submittal of an indemnification form
and other documents as may be required by the public works department.
(1) New unpermitted installations of such encroachments shall be removed and shoulders dressed
at the cost of the property owner within 30 calendar days of the citation plus a fine of one-half the
cost of the largest permit fee for the site. Should such installations be on an active construction
site, all CO's, LDP's, final plats, or other pressing applications to the city will be held until such
fine is paid by the property owner.
(2) Existing installations shall be subject to safety evaluations and must be relocated outside of the
right-of -way when major repairs or replacement occurs. Safety evaluations by public works may
result in an eviction notice and subsequent removal of such installation. Such removal shall occur
within 30 calendar days; however, no fine shall be assessed for existi ng permitted installations.
The burden of proof for the date of existing installations shall be by the Fulton County permit date,
dated construction drawings, or receipts. Without these, a fine shall be assessed as if it was a
new unpermitted installation.
(3) Temporary items such as dumpsters, parked semi-trucks, and other related items as determined
by the public works department shall be given a citation and will be towed from the right-of-way
immediately to the subject parcel. The cost to the city will be reimbursed at a rate of 125 percent
plus a $500.00 fine awarded to the property owner. An exception shall be moving to or from a
house: a semi without a tractor is allowed to park on a neighborhood street when a right-of -way
encroachment permit is approved and proper advance warning signage is used. The maximum
length of time this permit for this application will be valid shall be 48 hours.
(c) Mailboxes. Mailboxes are subject to all regulations of the United States Postal Service (USPS). In
addition:
(1) Single breakaway post mailboxes shall be the standard installation, placed five feet from the
edge of pavement. This installation shall not require a permit.
(2) Notwithstanding the discretion in section 48-585(b) for certain fixed objects in the right of way,
fixed object mailboxes (i.e., brick, stone, concrete, stucco, anything other than a standard
mailbox) are not allowed within the right-of -way. Installations of such mailboxes shall also be
subject to other requirements of this chapter and the AASHTO Roadside Design Guide, current
edition.
Exhibit “A”
Chapter 48, Article VII, Division 3, Section 48-585
Sec. 48-585. - Location within the right-of-way.
(a) A right-of -way and utility encroachment permit is required for all activities within the right-of -way
including, but not limited to, the construction, installation, repair or replacement of pipe, conduit, cable
or other facilities vital to the function of the utility or construction site referenced for the flow of traffic
(vehicles and pedestrians) (i.e., a driveway, shoulder, or road construction) at the referenced location.
Such permit shall be managed by the public works department.
(b) Irrigation systems, landscaping, fences, walls, non-operable vehicles, trailers, boats, dumpsters and
other fixed objects within the right-of -way that, in the reasonable opinion of the City traffic engineer or
his/her designee, may pose a safety hazard are not allowed within the right-of -way. However; certain
landscaping and irrigation systems may be permitted upon the submittal of an indemnification form
and other documents as may be required by the public works department.
(1) New unpermitted installations of such encroachments shall be removed and shoulders dressed
at the cost of the property owner within 30 calendar days of the citation plus a fine of one-half the
cost of the largest permit fee for the site. Should such installations be on an active construction
site, all CO's, LDP's, final plats, or other pressing applications to the city will be held until such
fine is paid by the property owner.
(2) Existing installations shall be subject to safety evaluations and must be relocated outside of the
right-of -way when major repairs or replacement occurs. Safety evaluations by public works may
result in an eviction notice and subsequent removal of such installation. Such removal shall occur
within 30 calendar days; however, no fine shall be assessed for existing permitted installations.
The burden of proof for the date of existing installations shall be by the Fulton County permit date,
dated construction drawings, or receipts. Without these, a fine shall be assessed as if it was a
new unpermitted installation.
(3) Temporary items such as dumpsters, parked semi-trucks, and other related items as determined
by the public works department shall be given a citation and will be towed from the right-of-way
immediately to the subject parcel. The cost to the city will be reimbursed at a rate of 125 percent
plus a $500.00 fine awarded to the property owner. An exception shall be moving to or from a
house: a semi without a tractor is allowed to park on a neighborhood street when a right-of -way
encroachment permit is approved and proper advance warning signage is used. The maximum
length of time this permit for this application will be valid shall be 48 hours.
(c) Mailboxes. Mailboxes are subject to all regulations of the United States Postal Service (USPS). In
addition:
(1) Single breakaway post mailboxes shall be the standard installation, placed five feet from the
edge of pavement. This installation shall not require a permit.
(2) Notwithstanding the discretion in section 48-585(b) for certain fixed objects in the right of way,
fixed object mailboxes (i.e., brick, stone, concrete, stucco, anything other than a standard
mailbox) are not allowed within the right-of -way. Installations of such mailboxes shall also be
subject to other requirements of this chapter and the AASHTO Roadside Design Guide, current
edition.
STATE OF GEORGIA ORDINANCE NUMBER ____________
COUNTY OF FULTON
AN ORDINANCE TO AMEND CHAPTER 48 - STREETS, SIDEWALKS AND OTHER PUBLIC
PLACES; TO PROVIDE FOR THE REPEAL OF CONFLICTING ORDINANCES; TO
PROVIDE AN EFFECTIVE DATE; AND FOR OTHER LAWFUL PURPOSES.
WHEREAS, Chapter 48 of the City of Milton Code of Ordinances regulates streets, sidewalks and other
public places within the City of Milton; and
WHEREAS, the Mayor and Council have therefore determined that it is in the best interest of the City’s
residents to amend Chapter 48 to clarify that objects in the right of way may pose a safety hazard.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS , while
in a Regular called Council meeting on the ____ day of ____________, 2019 at 6 p.m. as follows:
SECTION 1. That Chapter 48 of the City of Milton Code of Ordinances, Section 48-585 shall be
amended to the Ordinance attached hereto as Exhibit “A” as if fully set forth her ein.
SECTION 2. That all Ordinances, parts of Ordinances, or regulations in conflict herewith are
hereby repealed.
SECTION 3. This Ordinance shall become effective upon its adoption.
ORDAINED this the _____ day of __________, 2019.
Approved:
______________________________
Attest: Joe Lockwood, Mayor
__________________________
City Clerk
(Seal)
MILTOR4t
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 14, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Consideration and Possible Adoption of a Conflict Waiver
Authorizing Jarrard & Davis, LLP to Serve as Local Counsel (for
both the Council and the PBFA) Regarding a Revenue Bond
Transaction between the Milton Public Building and Facilities
Authority and the City Council, to Include Review of the
Pertinent Intergovernmental Agreement
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: ( ,✓APPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: WYES () NO
CITY ATTORNEY REVIEW REQUIRED: (OES () NO
APPROVAL BY CITY ATTORNEY: (APPROVED (J NOT APPROVED
PLACED ON AGENDA FOR: i �I u) tc;�l
2006 Heritage Walk Milton, GA
L I CA 1#1101
P: 678.242.25001 F: 678.242.2499 info@cityofmiltongo.us I www.cityofmiltonga.us
WAIVER REGARDING JOINT REPRESENTATION OF
THE CITY OF MILTON AND THE PUBLIC BUILDINGS AND FACILITIES
AUTHORITY RELATED TO REVENUE BOND
WHEREAS, Jarrard & Davis, LLP is the City Attorney for the City of Milton,
Georgia (the “City”);
WHEREAS, Jarrard & Davis, LLP is the general counsel for the Milton Public
Buildings and Facilities Authority (the “PBFA”);
WHEREAS, the City and the PBFA are presently considering the issuance of a
revenue bond by the PBFA;
WHEREAS, Jarrard & Davis, LLP proposes to represent (and has represented) the
City and the PBFA with respect to this bond transaction;
WHEREAS, Jarrard & Davis, LLP seeks the informed consent of the City and the
PBFA to undertake joint representation of the City and the PBFA for the following reasons:
• The interests of the PBFA and the City are aligned;
• The PBFA is the alter ego of the City;
• There is a low probability that an actual conflict will arise;
• The City has previously approved Jarrard & Davis, LLP’s representation of both
entities; and,
• If an actual conflict occurred where independent and zealous representation could
not be provided, withdrawal would occur.
NOW THEREFORE, in light of the above, the City does hereby approve the joint
representation of the PBFA and the City and correspondingly waives any apparent or
potential conflict of interest arising from or attributable to the representation of the PBFA
and the City by the law firm of Jarrard & Davis, LLP in the 2019 Public Buildings and
- 2 -
Facilities Authority bond transaction, and Jarrard & Davis, LLP, shall continue to represent
both the City and the PBFA on this matter and those actions already taken by Jarrard &
Davis, LLP with respect to this transaction are ratified.
This waiver having been approved by the City of Milton.
This ______ day of _______________, 2019.
____________________________
Joe Lockwood, Mayor
MILTON At
TO:
FROM:
AGENDA ITEM:
MEETING DATE:
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
City Council
DATE: October 14, 2019
Steven Krokoff, City Manager
Consideration of a Resolution Establishing the Partnership
Between the City of Milton and the 2020 United States Census
Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (4. -APPROVED () NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (eES () NO
CITY ATTORNEY REVIEW REQUIRED: (.'YES () NO
APPROVAL BY CITY ATTORNEY: (✓APPROVED () NOT APPROVED
PLACED ON AGENDA FOR:
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltongo.us
To: Honorable Mayor and City Council Members
From: Parag Agrawal, Director Community Development
Date: Submitted on October 15, 2019 for the October 21, 2019 Regular
Council Meeting
Agenda Item: Consideration of a Resolution Establishing the Partnership Between the
City of Milton and the 2020 United States Census
_______________________________________________________________________________________
Department Recommendation:
Approval .
Executive Summary:
The National Decennial Census is April 1, 2020.
Milton’s first decennial census was in 2010 and counted 32,661 people. This was based on
a 77% mail in response rate. Estimates indicate that Milton’s current population is closer to
40,000 residents. The City of Milton wants to improve the upcoming census response rate.
We are encouraging each resident (100%) to respond to the upcoming census in 2020 so
that Milton can account for each resident and plan to provide services for the community.
The census is important because it is used to determine the proportional distribution of
nearly $1 trillion in federal funding for programs. Non-response to the census questionnaire
can result in an undercount and less funding allotted to Milton.
The census is also used to determine representation at every level of government including
the state of Georgia and Milton’s city council districts. An undercount in any area of the
city can skew district lines.
The 2020 U.S. census will be the first to allow the census survey to be completed online ,
with the option to receive a traditional paper questionnaire.
Milton is committed to encouraging a 100% response rate for the 2020 census and
contributing the complete count of its residents. To assist with this effort, we will work with
stakeholders from a wide spectrum of the community to form a complete count
committee to help provide an accurate count by encouraging residents to respond to the
2020 census questionnaire.
Funding and Fiscal Impact:
None.
Page 2 of 2
Alternatives:
None.
Legal Review:
Paul Frickey, Jarrard & Davis 10/09/2019
Concurrent Review:
Steve Krokoff, City Manager
Attachment(s):
• Resolution to approve Milton’s participation in the 2020 US Census
Page 1 of 2
STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO. 19-
A RESOLUTION ESTABLISHING THE PARTNERSHIP BETWEEN THE CITY OF MITLON AND THE
2020 UNITED STATES CENSUS
WHEREAS, the U.S. Census Bureau is required by the U.S. Constitution to conduct a count
of the population and provides a historic opportunity to help shape the foundation of our
society and play an active role in American democracy; and
WHEREAS, the City of Milton is committed to ensuring every resident is counted; and
WHEREAS, federal and state funding is allocated to communities, and decisions are
made on matters of national and local importance based, in part, on census data and
housing; and
WHEREAS, census data helps determine how many seats each state will have in the U.S.
House of Representatives and is necessary for an accurate and fair redistricting of state
legislative seats, county and city councils and voting districts; and
WHEREAS, information from the 2020 Census and American Community Survey are vital
tools for economic development and increased employment; and
WHEREAS, the information collected by the census is confidential and protected by law;
and
WHEREAS, a united voice from business, government, community-based and faith-based
organizations, educators, media and others will enable the 2020 Census message to
reach more of our citizens; and
BE IT THEREFORE RESOLVED that the City of Milton is committed to partnering with the U.S.
Census Bureau and the State of Georgia and will:
1. Support the goals and ideals for the 2020 Census and will disseminate 2020 Census
information.
2. Encourage all City residents to participate in events and initiatives that will raise the
overall awareness of the 2020 Census and increase participation.
Page 2 of 2
3. Provide Census advocates to speak to City and Community Organizations.
4. Support census takers as they help our City complete an accurate count.
5. Strive to achieve a complete and accurate count of all persons within our borders.
RESOLVED this 21st day of October 2019.
_________________________
Joe Lockwood, Mayor
Attest:
_____________________________
Sudie Gordon, City Clerk
MILTON
ESTABLISHED 2006
CITY COUNCIL AGENDA ITEM
TO: City Council DATE: October 17, 2019
FROM: Steven Krokoff, City Manager
AGENDA ITEM: Consideration of a Land Acquisition Agreement for Purchase
of Realty between the City of Milton and US Bank National
Association for Fulton Tax Parcel No. 22 442006710238, 14620
Freemanville Road (12 acres, for a purchase price of
$1,250,000.
MEETING DATE: Monday, October 21, 2019 Regular City Council Meeting
BACKGROUND INFORMATION: (Attach additional pages if necessary)
See attached memorandum
APPROVAL BY CITY MANAGER: (,KAPPROVED (J NOT APPROVED
CITY ATTORNEY APPROVAL REQUIRED: (-'YES () NO
CITY ATTORNEY REVIEW REQUIRED: (,KYES () NO
APPROVAL BY CITY ATTORNEY: (rAPPROVED () NOT APPROVED
PLACED ON AGENDA FOR: la/u/10'I
2006 Heritage Walk Milton, GA
0000
P: 678.242.25001 F: 678.242.2499 info@cityofmiltongo.us I www.cityofmiltonga.us
MItTON*
ESTABLISHED 2006
To: Honorable Mayor and City Council Members
From: Teresa Stickels, Conservation Project Manager
Date: Submitted October 17, 2019 for the October 21, 2019 Regular
City Council Meeting
Agenda Item: Consideration of a Land Acquisition Agreement for Purchase
of Realty between the City of Milton and US Bank National
Association for Fulton Tax Parcel No. 22 442006710238, 14620
Freemanville Road (12 acres), for a purchase price of
$1,250,000.
Department Recommendation: Staff recommends approval of the contract for the
purchase of the above referenced Fulton County tax parcel to be paid for out of
greenspace bond funds.
Executive Summary: The City of Milton has already acquired an adjacent property (the
former Milton Country Club or FMCC) as greenspace. Currently, there is no southern
access to FMCC. The Milton Greenspace Advisory Committee (MGAC) recommended
purchase of this property to the City Council to provide needed southern access.
Procurement Summary:
Purchasing method used: Other See Comment Above)
Account Number: 310-6210-541100001
Requisition Total: $1,250,000
Financial Review: Bernadette Harvill, October 17, 2019
Legal Review: Jeff Strickland - Jarrard & Davis, October 7, 2019
Concurrent Review: Steve Krokoff, City Manager
Attachment: Contract to purchase
2006 Heritage Walk Milton, GA P: 678.242.25001 F: 678.242.2499 info@cityofmiltonga.us I www.cityofmiltonga.us
0000
THIS
AGREEMENT
FOR SALE
OF REALTY
(the "Agreement") is
made
and
entered into
this day
of
, 2019,
by and between the
CITY
OF
MILTON, a Georgia municipal corporation ("Buyer"), and TOWD POINT MORTGAGE
(referred to herein as "Seller").
.,
r
1. PropeKly. The Buyer agrees to buy, and the Seller agrees to sell, all that tract of
land located in Land Lot 671, Second District, Second Section, Fulton County, Georgia, with
assigned property address of 14620 Freemanville Road, Milton, Georgia, and containing a total
of twelve ,(12) acres, more or less, as more fully described on Exhibit "A," attached hereto and
incorporated herein by reference, and otherwise known as Fulton County Tax Parcel 22
442006710238, and including all structures, fixtures and appurtenances attached thereto
(hereinafter referred to as the "Property").
Prior to or contemporaneous with closing this transaction, Buyer shall have prepared a
survey and associated plat of the Property by a licensed land surveyor and shall make same
available for Seller's prior review and approval.: The final survey contemplated in this paragraph
shall establish the boundary of the Property.
2. Purchase Price. The purchase price of the Property shall be ONE MILLION
TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS ($1,250,000.00).
3. Earnest Money. Promptly following execution of this Agreement, Buyer will pay
to Seller or to the order of Seller TWENTY-FIVE THOUSAND U.S. DOLLARS ($25,000,00)
by cashier's check or wire transfer as earnest money to be held by Seller ("Earnest Money") until
the Closing, which Earnest Money shall be applied as part payment of the purchase price of the
Property at the time of closing, and in the event the sale is not closed, then in that event the
earnest money shall be immediately returned to Buyer, except as otherwise provided for herein.
Upon execution of this Agreement, Seller shall provide a completed IRS Form W-9 (a
form of which is attached hereto marked Exhibit "B") to Buyer to facilitate the processing of any
and all payments hereunder, including the Earnest Money. Buyer's obligation to pay Earnest
Money shall not arise until Buyer has received a completed IRS Form W-9 from Seller.
4. Due Diligence. The Buyer shall have a forty -lave (45) clay Due Diligence period
commencing immediately upon execution of this Agreement by all Parties hereto. During the
Due Diligence period, the Buyer may enter the property and may conduct geotechnical and
environmental testing, including but not limited to soil borings, and may otherwise generally
inspect the Property, to include surveying same, and may terminate this Agreement with or
without cause, and in the event of such termination Buyer shall receive a full refund of the
Earnest Money. At the conclusion of the Due Diligence period, the Buyer's right to terminate as
described in this Section shall expire. Buyer shall procure, at Buyer's cost, a written title opinion
establishing that title to the Property is good, insurable, and marketable, and vested in Seller.
Buyer, after cnamining said title opinion, shall notify Seller of any defects or unacceptable
exceptions thereto at least five (5) days prior to the end of the Due Diligence period. All issues as
to title defects and/or unacceptable exceptions to title shall be satisfactorily resolved by Seller
prior to closing. It is agreed that such papers that may be legally necessary to carry out the terms
of this Agreement shall be executed and delivered by the parties prior to closing. If the Buyer
shall decline to accept the Property due to a title defect or other exception to title, then this
Agreement shall be null and void, whereupon the parties hereto shall have no further rights,
2
duties, obligations, or liabilities to one another hereunder, and Buyer shall receive a full refund
of the Earnest Money.
5. Marketable Title. Seller agrees to furnish to the Buyer good, insurable, and
marketable title to the Property. For the purposes of this Agreement, "good, insurable, and
marketable title" shall mean fee simple ownership which is: (i) free from all claims, liens, and
monetary encumbrances of any kind or nature whatsoever other than permitted exceptions
expressly agreed to in writing by the Buyer; (ii) insurable by a reputable title insurance company
at then -current standard rates under the standard form of ALTA owner's policy of title insurance
with all standard or printed exceptions therein deleted and without exception other than for
permitted exceptions expressly agreed to in writing by Buyer. The Property is sold subject only
to the valid and agreed upon exceptions to title disclosed to the Buyer as of the date of closing
and as presented in accordance with this Agreement.
6. Warranty. The Seller hereby affirmatively warrants that it has no knowledge of
any latent or patent physical condition(s), hazards(s) or feature(s) of, on or below the Property
that will in any material way impede or frustrate the reasonable use of the Property by Buyer.
7. Closing Date. A closing shall be conducted within forty -rive (45) days following
the execution of this Agreement by all Parties hereto. Title to the Property shall transfer at the
time of closing. At the closing, the Seller shall deliver to the Buyer a Limited Warranty Deed to
the Property conveying good, insurable, and marketable title to the Property, and all of Seller's
interest in mineral and sub -surface rights (if any), with the hereditaments and appurtenances, to
the Buyer and its assigns, in fee simple, free and clear of all liens, encumbrances, or exceptions
on all or any part of the Property, except for easements, restrictions, and other exceptions of
record, together with all right, title, and interest of the Seller in and to the Property.
K
8. Extension of Due Diligence Period and Closing Date Deadline. The Parties
hereto agree that the Due Diligence Period and the Closing Date deadline shall be extended as
necessary for the Buyer to complete all necessary due diligence matters and, in such event, the
Buyer agrees to pay an additional ONE HUNDRED U.S. DOLLARS (5100.00) per day for such
extension calculated through the Closing Date.
9. Taxes. All taxes, assessments, and encumbrances which are a Lien against the
Property and are due and payable at the time of conveyance to the Buyer shall be satisfied by the
Seller. Real estate taxes which are a lien (but are not yet due and payable) will be prorated as of
the date of closing.
10. Risk of Loss. All risk of loss or damage to the Property will pass from the Seller
to the Buyer at closing. In the event that loss or damage occurs to the Property prior to closing,
the Buyer may, without liability, refuse to accept the conveyance of title and receive a full refund
of the Earnest Money, or it alternatively may elect to accept the conveyance of title to the
Property "AS IS." The Seller shall deliver possession of the Property to the Buyer at the time of
closing.
11. Right of Entry. The Buyer may enter upon the Property at reasonable times for
surveying and other reasonable purposes related to this transaction from the date of execution of
this Agreement, through and including the time of delivery of possession of the Property to the
Buyer by the Seller. This right of entry is in addition to those Due Diligence period rights as
identified in Section 4 above. The Buyer's entry upon the Property in accordance with this
paragraph shall be undertaken in such a manner so as to not unreasonably interfere with Seller's
ongoing operations or in such a manner as would do permanent or long-term damage to the
Property.
4
12. Preservation of Property. The Seller agrees that the Property shall remain as it
now is until the delivery of possession of the Property by the Seller to the Buyer, and that the
Seller will prevent and refrain from any use of the Property for any purpose or in any manner
which would adversely affect the Buyer's use and enjoyment of the Property in the future. In the
event of such actions, the Buyer may, without liability, refuse to accept the conveyance of title
and receive a full refund of the Earnest Money, or the Buyer alternatively may elect to accept
conveyance of title to the Property.
13. Specific Performance. The parties agree that in the event of a breach hereof by the
Seller (i.e., the refusal to execute the deed at closing or to deliver possession of the Property to
the Buyer at the appointed time), damages will be inadequate, and therefore the court having
jurisdiction herein may award the Buyer specific performance in lieu of damages or any other
remedies allowed by law.
14. Binding Effect. The agreements set forth herein are to apply to and bind the heirs,
executors, administrators, successors, personal representatives and assigns of the Seller.
15. Final Agreement. This Agreement terminates and supersedes all prior
understandings or agreements on the subject matter hereof. This Agreement may be modified
only by a further writing that is duly executed by both parties.
16. Severability. If any paragraph, subparagraph, sentence, clause, phrase, or any
portion of this Agreement shall be declared invalid or unconstitutional by any court of competent
jurisdiction or if the provisions of any part of this Agreement as applied to any particular
situation or set of circumstances shall be declared invalid or unconstitutional, such invalidity
shall not be construed to affect the portions of this Agreement not held to be invalid. It is hereby
5
declared to be the intent of the parties to provide for separable and divisible parts, and they do
hereby adopt any and all parts hereof as may not be held invalid for any reason.
17. Governing Law. This Agreement shall be governed, construed and interpreted by,
through and under the Laws of the State of Georgia, including but not limited to the Georgia
Open Meetings Act (O.C.G.A. § 50-14-1 et seq.) and the Georgia Open Records Act (O.C.G.A. §
50-18-70 et seq.).
18. Public Meeting Requirement. In accordance with the Georgia Open Meetings
Act, Buyer's decision to enter into this Agreement to acquire the Property must be made in an
open (i.e., public) meeting where the identity of the Property and the terms of the acquisition are
disclosed before the vote. See O.C.G.A. § 50-14-3(b).
19. Broker or Agent. Seller agrees to pay a six percent (6%) commission on the sale
of the Property calculated against the sale price and paid out of the closing proceeds as follows;
one-half of the commission (3% of the sale price) shall be paid to the Seller's agent and one-half
of the commission (3% of the sale price) shall be paid to the Buyer's Agent.
20. Seller's Addendum. An "Addendum to Contract" is attached hereto marked
Exhibit C and by this reference incorporated herein of even date herewith and signed by all
parties hereto.
[Remainder Intentionally Left Blank]
[Signature Page(s) Follow]
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above (the "Effective Date"), which shall be the date this Agreement is
executed by all parties.
SIGNED, SEALED, AND DELIVERED
in the presence of:
Witness
Notary Public
[NOTARY SEAL]
My Commission Expires:
01111RO101111
11ANK NATIONAL ASSOCIATION, AS
I NDENTURE TRUSTEE
by Select Portfolio Servicing, Inc., as attorney-in-fact
0
Printed Name:
Title:
[Signatures Continue on Following Page(s)]
[Signatures Continued from Previous Page]
M
SIGNED, SEALED, AND DELIVERED
in the presence of -
Witness
Notary Public
[NOTARY SEAL]
My Commission Expires:
Joe Lockwood, Mayor
[CITY SEAL]
This Agreement has been REVIEWED by City Attorneys for the City of Milton, Buyer
herein, and is APPROVED AS TO FORM.
M
Milton City Attorneys
8
All that tract or parcel of land lying and being in Land Lot 671 of the 2nd District, 2nd Section of
Fulton County, Georgia, and being more particularly described as follows:
Beginning at an iron pin on the east line of Land Lot 671, said beginning point being located
210.0 feet north of the southeast corner of Land Lot 671, said District and Section, running
thence south 89 degrees 30 minutes west 922.1 feet to an iron pin on the easterly side of
Freemanville Road, having a 60 foot right-of-way; running thence north, northwesterly and
northeasterly along the easterly side of said road and following the curvature thereof 557 feet to
an iron pin; running thence north 89 degrees 30 minutes east 908.5 feet to an iron pin; thence
running south 00 degrees 12 minutes east and forming an interior angle of 89 degrees 42 minutes
with the preceding course 554.7 feet to an iron pin and the point of beginning and being a 12.00
acre tract according to a survey by Dorsey R. Brumbelow, RLS, dated June 19, 1972.
I;D►N: i-IR'Y:
WoU
11
https://www.exceleras.com/docpgs/db-Addendum-A.aspx?d= 1972998&...
ADDENDUM TO CONTRACT - Select Portfolio Servicing
Street Address 14620 FREEMANVILLE ROAD, ALPHARETTA, GA 30004
Property #: 0022597306
Seller: Towd Point Mortgage Trust 2018-2, U.S. Bank National Association, as Indenture Trustee
Buyer(s): City of Milton
Date: 10/4/2019
Accepted Offer Details
Item
Detail
Item
Detail
Offer/AddendumsNc
Loan Down Payment
Signed _
Loan Amount
Reason For
Non -Profit
_
Buyer's points/$
No
Purchase
-- --
Offer Price
$1,250,000
Other Seller's Costs
No
Closing Date
- -- --
11/16/2019
Buyer Termite Report cost credit
$0
Initial Earnest
----- ---
Buyer Home Protection Plan cost credit
$0
Money
$25.,000
Buyer FHA/VA cost credit as amount
$0
Earnest Money in
Concession #1:
form of
Cashier check
Concession #2:
Per Diem Rate
$1_00_ _ _ _
Concession #3:�
Attorney
YES in 45 days
Concession #4: This is an As -Is purchase. The seller will
Contingency
from Executed
NOT make any repairs. The buyer acknowledges that the
Contract
utilities will NOT be turned on for inspections.
Inspection(s)
YES in 45 days
Buyer premium:
Contingency
from Executed
-
---
Contract
__
Mortgage
No
Contingency
Cash Offer
Yes
Proof of Funds
No
Mortgage Pre-
_
Approved
Mortgage
Conditions
Loan Type
Select Portfolio Servicing, Inc.
Addendum to Real Estate Purchase Contract
LOAN No.: Refer to Property#:
NOTICE: The property that is the subject of this Addendum is subject to prior sale or withdrawal from the market at any time, without
notice, and Select Portfolio Servicing, Inc. reserves the right to consider and reject any and all offers received for the property. Any offer
to purchase must be based solely on the purchaser's own investigation and no representations or warranties will be made by Select
Portfolio Servicing, Inc. except as may be provided in this Addendum, and any sale will be subject to the terms and conditions of this
Addendum.
THIS ADDENDUM TO REAL ESTATE PURCHASE CONTRACT ("Addendum") is made a part of, and incorporated into, that certain Real Estate
Purchase Contract dated the [Refer to Date] ("Contract") between Seller and Purchaser with regard to the Property (as such terms are defined
below). This Addendum and the Contract are sometimes herein referred to collectively as the "Agreement."
"Seller" Name: Select Portfolio Servicing, Inc., as attorney-in-fact
"Purchaser" Name:
[Refer to Buyers)]
1 of 13 10/4/2019,11:27 AM
https://www.exceleras.com/docpgs/db—Addendum—A.aspx?d=l 972998&...
"Property" address: [Refer to Street Address)
Closing Date: [Refer to Closing Date]
Purchase Price: [Refer to Offer Price]
Lead Paint Disclosure:. Does the Property include a residential dwelling built prior to 1978? Check One Yes; (__) No. If yes, the
parties must complete the attached Disclosure Of Information On Lead -Based Paint and/or Lead -Based Paint Hazards.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. Not Binding Until Accepted By Seller. Notwithstanding any verbal acknowledgment by Seller or any agent of Seller, Purchaser
acknowledges and agrees that the Agreement is not binding on Seller unless and until approved by Seller's management and this Addendum is
executed by all parties. The date of execution by Seller of this Addendum shall be referred to herein as the "Seller Acceptance
Date." Notwithstanding Seller's acceptance, Purchaser acknowledges and agrees that the Property is subject to prior sale or withdrawal from the
market by Seller at any time, without notice, and Seller reserves the right to consider and reject any and all offers received for the Property
including Purchaser's offer.
2. Purchase Price. The purchase price for the Property shall be paid to Seller in immediately available funds (cashier's check, certified
check or wire transfer) at the Closing (defined below).
3. Earnest Money. Immediately following Seller's acceptance of the Agreement, escrow will be opened by both parties with an escrow
agent designated by Seller or otherwise acceptable to Seller. The Earnest Money deposit shall be deposited into the selling agents earnest money
trust account in accordance with the terms of the sales contract and statutory requirements. The Earnest Money shall be equal to the greater of (A)
amount negotiated by the parties, (B) 3% of the Purchase Price or (C) $1,000. [Refer to Earnest Money] to Listing Agreement and Escrow
Agent. The selling agent shall provide proof to Listing Agent and Escrow Agent that the Earnest Money has been deposited into its real estate
trust account prior to opening escrow.
Time of the Essence; Closing Date.
(a) Subject to Seller's right to extend the Closing Date (defined below), the parties agree that time is of the essence with respect to all dates
specified herein, and Purchaser's performance under the Agreement and any addenda, riders or amendments thereto.
(b) The closing of the purchase and sale of the Property ("Closing") shall be held in the offices of Seller's attorney or agent, or at a place
designated and approved by Seller, unless otherwise required by applicable law. The date of the Closing [Refer to Closing Date] shall take place
on or before the date set forth [Refer to Closing Date], or within five (5) days of final loan approval by Purchaser's lender, whichever is earlier,
unless the Closing Date is extended in a writing signed by Seller and Purchaser pursuant to Section 4(c) or otherwise extended by Seller under the
terms of Section 19 of this Addendum. If the Closing does not occur by the Closing Date, or in any written extension, the Agreement shall
automatically terminate and Seller shall retain any Earnest Money as liquidated damages.
(c) In the event Purchaser requests an extension of the Closing Date (which request shall be made in writing) and the Seller agrees to the
extension, Purchaser shall pay to Seller a per diem extension fee ("Extension Fee") in the amount of [Refer to Per Diem] for each calendar day
through and including the Closing Date specified in the written extension agreement. The Extension Fee shall be deposited in immediately
available funds (cashier's check, certified check or wire transfer) with Seller or other party designated by Seller at the time of Purchaser's request
to extend the Closing Date. Purchaser acknowledges and agrees that Seller will incur carrying costs related to any extension of the Closing Date
and accordingly that the Extension Fee shall not be credited to Buyer at Closing and shall be in addition to the Purchase Price. The
Extension Fee shall be nonrefundable to Purchaser except in the event Seller terminates the Agreement pursuant to Section 19.
5. Financing Contingency. Purchaser's obligation to purchase the Property under the Agreement: IS or IS NOT contingent [Refer to
Mortgage Contingency] on Purchaser obtaining financing for the purchase of the Property.
(a) If Purchaser's obligation to purchase the Property is contingent on financing, Purchaser shall apply for and diligently pursue thereafter a
loan at prevailing rates, terms and conditions. Purchaser shall complete and submit to a mortgage lender an application fora mortgage loan prior
to the Seller's Acceptance of the offer. Purchaser shall use diligent efforts to obtain a mortgage loan commitment within the time period.
[Refer to Mortgage Contingency] of the date of Seller Acceptance Date. If, despite Purchaser's diligent efforts, Purchaser cannot obtain a
mortgage loan commitment within the specified period, then either Purchaser or Seller may terminate the Agreement by giving written notice to the
other party. In the event of a proper and timely termination of the Agreement under this Section 5(a), the Earnest Money shall be returned to
Purchaser and the parties shall have no further obligation to each other under the Agreement.
(b) Purchaser shall ensure that the lender selected by Purchaser to finance the sale shall provide applicable funding to the settlement agent
selected by Seller on or before the date of settlement. Purchaser shall further ensure that the selected lender shall provide all lenders prepared
closing documentation to the settlement agent no later than 48 hours prior to settlement or such earlier date as required by law. Purchaser
acknowledges and agrees that Purchaser shall be in default under Section 20 of this Addendum if Purchaser's lender fails to fund and/or provide
closing documentation as required by this Section 5(b) and that any extensions to Closing shall be subject to the provisions of Section 4(c) of this
Addendum.
Inspection.
(a) On or before [Refer to Inspection Contingency Date] of the Seller Acceptance Date, Purchaser shall inspect the Property or
obtain for its own use, benefit and reliance, inspections and/or reports on the condition of the Property; otherwise, Purchaser shall be deemed to
have waived such inspection and any objections to the condition of the Property and to have accepted the condition of the Property for all
purposes. Purchaser shall keep the Property free and clear of liens and indemnify and hold Seller harmless from all liability, claims, demands,
damages, and costs, including attorney and paralegal fees, related to Purchaser's inspection. Purchaser shall promptly repair all damages arising
from or caused by the inspections.
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(b) Purchaser shall not directly or indirectly cause any inspection to be made by any government building or zoning inspector or government
employee without the prior written consent of Seller, unless such inspection is required by law. In any event; Purchaser shall provide written notice
to Seller prior to any inspection to be made by any government building or zoning inspector or government employee.
(c) If Seller has winterized the Property and Purchaser desires to have the Property inspected, the listing agent will, with Seller's prior
consent, have the Property de -winterized prior to inspection and re -winterized after inspection.. (d) Within three (3) calendar days of receipt
of any inspection report prepared by or for Purchaser, but not later than (the expiration of the [Refer to Inspection Contingency Date], whichever
first occurs, Purchaser will provide written notice to Seller of any disapproved items. Purchaser's failure to provide written notice shall be deemed
as acceptance of the condition of the Property. Upon request by Seller, Purchaser shall provide to Seller, at no cost, complete copies of all
inspection reports upon which Purchaser's disapproval of the condition of the Property is based. In no event shall Seller be obligated to make any
repairs or replacements whatsoever that may be indicated in Purchaser's inspection reports. Seller may, in its sole discretion, make such repairs to
the Property under the terms described in Section 8 of this Addendum. If Seller elects not to repair the Property, Purchaser may cancel the
Agreement not later than three (3) calendar days from the Sellers notification of election not to repair the property and the Earnest Money shall be
returned to Purchaser. If Seller elects to make any such repairs to the Property, Seller shall notify Purchaser after completion of the repairs and
Purchaser shall have three (3) calendar days from the date of notice to inspect the repairs and notify Seller of any disapproved items. Purchaser's
failure to disapprove in writing such repairs shall be deemed as Purchaser's acceptance thereof.
(e) In situations that are applicable, a structural, electrical, mechanical or termite inspection report may have been prepared for the benefit
of Seller. Upon request, Purchaser will be allowed to review the report to obtain the same information and knowledge Seller has about the
condition of the Property but Purchaser acknowledges that the inspection reports were prepared for the sole use and benefit of Seller. Purchaser
shall not rely upon any such inspection reports obtained by Seller in making a decision to purchase the Property.
(f) If the Property is a condominium or planned unit development or co-operative, unless otherwise required by law, Purchaser; at
Purchaser's own expense, is responsible for obtaining and reviewing the covenants, conditions and restrictions and bylaws of the condominium,
the planned unit development or the cooperative within seven (7) days of the Seller Acceptance Date. Seller agrees to use reasonable efforts, as
determined in Seller's sole discretion, to assist Purchaser in obtaining a copy of the covenants, conditions and restrictions and bylaws. Purchaser
will be deemed to have accepted the covenants, conditions and restrictions and bylaws if Purchaser does not notify Seller in writing, within ten (10)
days of the Seller Acceptance Date, of Purchaser's objection to the covenants, conditions and restrictions and/or bylaws.
(g) This Section 6(g) shall govern and apply if the Property includes a residential dwelling built prior to 1978. The parties agree to execute
and deliver the attached DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS. Unless
Purchaser has waived the right to conduct an inspection; the following shall apply:
OPPORTUNITY TO CONDUCT A LEAD PAINT RISK ASSESSMENT OR INSPECTION
Purchaser's obligation to purchase the Property is conditioned upon Purchaser's approval of a risk assessment or inspection of the Property for
the presence of lead-based paint and/or lead-based paint hazards. The risk assessment or inspection ("Risk Assessment") of the Property shall be
paid for by Purchaser and shall be conducted by individuals or entities of Purchaser's choice. Seller shall cooperate in making the Property
available for the Risk Assessment. The deadline for Purchaser to complete and review the Risk Assessment ('Risk Assessment Deadline") shall
be ten (10) calendar days after Seller Acceptance Date.
If the results of the Risk Assessment are not acceptable to Purchaser, Purchaser may either (a) provide written objections to Seller as provided in
Section 6 of this Addendum; or (b) immediately cancel the Agreement by providing written notice of cancellation to Seller by the Risk Assessment
Deadline, together with a copy of the Risk Assessment report. Upon receipt of a copy of Purchaser's written notice of cancellation, the Earnest
Money shall be returned to Purchaser.
If Purchaser does not immediately cancel the Agreement as provided above, Purchaser may, by the Risk Assessment Deadline, provide Seller
with written objections and a copy of the Risk Assessment report. Purchaser and Seller shall have seven (7) calendar days after Seller's receipt of
the objections (the "Response Period") in which to agree in writing upon a manner of resolving Purchaser's objections. Seller may, but shall not be
required to, resolve Purchaser's objections.
If Purchaser and Seller have not agreed in writing upon the manner of resolving Purchaser's objections, Purchaser may cancel the Agreement by
providing written notice to seller no later than three (3) calendar days after expiration of the Response Period. Upon receipt of a copy of
Purchaser's written notice of cancellation, the Earnest Money shall be returned to Purchaser.
If Purchaser does not deliver a written objection to Seller regarding the results of the Risk Assessment, or cancel the Agreement, any objections to
the results of the Risk Assessment shall be deemed waived by Purchaser and Purchaser shall take the Property "AS -IS" with regard to any lead-
based paint or lead-based paint hazards that may be present in the Property.
7. Condition of Property. PURCHASER ACKNOWLEDGES AND UNDERSTANDS THAT SELLER ACQUIRED THE PROPERTY BY
FORECLOSURE, DEED IN LIEU OF FORECLOSURE, FORFEITURE, TAX SALE, RIGHT OF EMINENT DOMAIN OR SIMILAR PROCESS, AND
SELLER CONSEQUENTLY HAS NO DIRECT KNOWLEDGE CONCERNING THE CONDITION OF THE PROPERTY. AS A MATERIAL PART OF
THE CONSIDERATION TO BE RECEIVED BY SELLER UNDER THIS AGREEMENT AS NEGOTIATED AND AGREED TO BY PURCHASER
AND SELLER, PURCHASER ACKNOWLEDGES AND AGREES TO ACCEPT THE PROPERTY IN "AS -IS," "WHERE -1S" CONDITION AT THE
TIME OF CLOSING, INCLUDING, WITHOUT LIMITATION, ANY HIDDEN DEFECTS, ENVIRONMENTAL CONDITIONS AFFECTING THE
PROPERTY, OR THE EXISTENCE OF MOLD (AS DEFINED BELOW), WHETHER KNOWN OR UNKNOWN, WHETHER SUCH DEFECTS OR
CONDITIONS WERE DISCOVERABLE THROUGH INSPECTION OR NOT. PURCHASER ACKNOWLEDGES THAT SELLER, ITS AGENTS AND
REPRESENTATIVES HAVE NOT MADE, AND SELLER SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES, IMPLIED OR EXPRESS, ORAL OR WRITTEN IN RESPECT TO:
(a) THE PHYSICAL CONDITION OR ANY OTHER ASPECT OF THE PROPERTY, INCLUDING THE STRUCTURAL INTEGRITY OR THE
QUALITY OR CHARACTER OF MATERIALS USED IN CONSTRUCTION OF ANY IMPROVEMENTS, AVAILABILITY AND QUANTITY OR
QUALITY OF WATER, STABILITY OF THE SOIL, SUSCEPTIBILITY TO LANDSLIDE OR FLOODING, SUFFICIENCY OF DRAINAGE, WATER
LEAKS, WATER DAMAGE, MOLD OR ANY OTHER MATTER AFFECTING THE STABILITY, INTEGRITY OR SAFETY OF THE PROPERTY OR
IMPROVEMENTS.
(b) THE CONFORMITYOF THE PROPERTY OR THE IMPROVEMENTS TO ANY ENVIRONMENTAL, ZONING, LAND USE OR
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BUILDING CODE REQUIREMENTS OR COMPLIANCE WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY FEDERAL,
STATE OR LOCAL GOVERNMENTAL AUTHORITY, OR THE GRANTING OF ANY REQUIRED PERMITS OR APPROVALS, IF ANY, OF ANY
GOVERNMENTAL BODIES WHICH HAD JURISDICTION OVER THE CONSTRUCTION OF THE ORIGINAL STRUCTURE, ANY
IMPROVEMENTS AND/OR ANY REMODELING OF THE STRUCTURE.
(c) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY OR IMPROVEMENTS, INCLUDING REDHIBITORY VICES AND DEFECTS, APPARENT, NONAPPARENT OR LATENT, WHICH
NOW EXIST OR WHICH MAY HEREAFTER EXIST AND WHICH IF KNOWN TO PURCHASER, WOULD CAUSE PURCHASER TO REFUSE TO
PURCHASE THE PROPERTY.
(d) Mold, mildew, spores and/or other microscopic organisms and/or allergens (collectively referred to herein as "Mold") are environmental
conditions that are common in residential properties and may affect the Property. Mold, in some forms, has been reported to be toxic and to cause
serious physical injuries, including but�not limited to allergic and/or respiratory reactions or other problems, particularly in persons with immune
system problems, young children and/or elderly persons. Mold has also been reported to cause extensive damage to personal and real
property. Mold may have been removed or covered in the course of any cleaning or repair of the Property. Purchaser acknowledges that if Seller or
any of Seller's employees; contractors, or agents cleaned or repaired the Property or remediated Mold contamination, Seller does not in any way
warrant the cleaning, repair or remediation. Purchaser accepts full responsibility for all hazards that may result from the presence of Mold in or
around the Property. Purchaser is satisfied with the condition of the Property notwithstanding the past or present existence of Mold in or around the
Property, and Purchaser has not in any way relied upon any representations of Seller, Seller's employees, officers, directors, contractors, or agents
concerning the past or present existence of Mold in or around the Property.
(e) In the event the Property is affected by an environmental hazard, as determined by Seller, either party may terminate the Agreement. In
the event Seller decides to sell the Property to Purchaser and Purchaser agrees to purchase the Property, Purchaser agrees to execute an
indemnity and general release at Closing, in a form acceptable to Seller, releasing Seller from any liability related to environmental hazards or
conditions on the Property. In the event Purchaser elects not to execute the disclosure and release, the Agreement shall, at Seller's discretion,
automatically terminate and be of no further force or effect.
(0 In the event Seller has received official notice that the Property is in violation of building codes or similar laws or regulations, Seller may
terminate the Agreement or delay the Closing Date or Purchaser may terminate the Agreement. In the event the Agreement is terminated by either
Purchaser or Seller pursuant to this Section 7(0, any Earnest Money shall be returned to Purchaser. If there is an enforcement proceeding arising
from allegations of such violations before an enforcement board; special master, court or similar enforcement body, and neither Purchaser nor
Seller terminate the Agreement, Purchaser agrees (a)to accept the Property subject to the violations, (b) to be responsible for compliance with the
applicable code or regulation and with orders issued in any code enforcement proceeding, and (c) to resolve the deficiencies as soon as possible
after the Closing. Purchaser agrees to execute any and all documents necessary or required for Closing by any agency with jurisdiction over the
Property. Purchaser further agrees to indemnify Seller from any and all claims or liability arising from Purchaser's breach of this Section 7(f),
(g) The Closing shall constitute acknowledgment by Purchaser that Purchaser had the opportunity to retain an independent, qualified
professional to inspect the Property and that the condition of the Property is acceptable to Purchaser. Purchaser agrees that Seller shall have no
liability for any claims or losses Purchaser or Purchaser's successors or assigns may incur as a result of construction or other defects which may
now or hereafter exist with respect to the Property.
(h) Purchaser acknowledges and agrees that neither Seller nor Seller's agents have made nor will make any oral or written representation
or warranty regarding the accuracy of the address of the Property.
(i) Purchaser acknowledges and agrees that the Property was acquired through foreclosure, deed in lieu of foreclosure, forfeiture, tax sale
eminent domain or similar process. Accordingly, to the fullest extent allowed by law, Seller shall be exempt from providing or filing any disclosure
statement with respect to the Property and Purchaser acknowledges and agrees to assume any disclosure obligations of Seiler. Purchaser shall
execute and deliver to Seller at or prior to Closing such further documents as Seller or its representatives may request with respect to the
foregoing. If disclosures are required by state law, Purchaser hereby agrees to waive such requirements. If required by state law, Purchaser shall;
upon request, execute a written waiver of the disclosure provisions of state law.
S. Repairs. Unless otherwise provided in Section 30 of this Addendum, Seller shall have no obligation to pay for or perform any inspections
or repairs to the Property whatsoever. In the event Seller agrees to pay for or perform any inspections or repairs, this Section 8 shall govern such
inspections or repairs.
(a) If Seller has agreed to pay for treatment of wood infesting organisms, Seller shall treat only active infestation. All treatments for
wood infesting organisms and other repairs will be completed by a vendor approved by Seller, and will be subject to Seller's satisfaction
only. Neither Purchaser nor its representatives shall enter upon the Property to make any repairs and/or treatments prior to the Closing without the
prior written consent of Seller. To the extent that Purchaser or its representatives make repairs and/or treatments to the Property prior to the
Closing, Purchaser hereby agrees to release and indemnify Seller from and against any and all claims related in any way to the repairs and/or
treatments and further agrees to execute a release and indemnification and provide proof of liability insurance naming Seller as a loss payee, both
in a form acceptable to Seller, prior to entry on the Property and commencement of any such repairs or treatments.
(b) Purchaser acknowledges that all repairs and treatments are done for the benefit of Seller and not for the benefit of Purchaser and that
Purchaser has inspected or has been given the opportunity to inspect such repairs and treatments. Any repairs or treatments made or caused to
be made by Seller shall be completed prior to the Closing. Under no circumstances shall Seller be required to make any repairs or treatments after
the Closing Date.
(c) Purchaser acknowledges that the Closing of this transaction shall be deemed Purchaser's reaffirmation that Purchaser is satisfied with
the condition of the Property for all purposes and satisfied with all repairs and treatments to the Property and waives all claims related to such
condition and to the quality of the repairs or treatments to the Property. Any repairs or treatments shall be performed for functional purposes only
and exact restoration of appearance or cosmetic items following any repairs or treatments shall not be required. Seller shall not beobligatedto
obtain or provide to Purchaser any receipts for repairs or treatments, written statements indicating dates or types of repairs or treatments
performed, or copies of such receipts or statements, nor any other documentation regarding any repairs and treatments to the Property. SELLER
DOES NOT WARRANT OR GUARANTEE ANY WORK, REPAIRS OR TREATMENTS TO THE PROPERTY WHATSOEVER.
Occupancy Status of Property.
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(a) Purchaser acknowledges that neither Seller nor its representatives, agents or assigns have made any warranties or
representations, implied or expressed, relating to the existence of any tenants or occupants at the Property, unless otherwise noted in Section 30
of this Addendum. Purchaser acknowledges and agrees that the Closing of this transaction shall be deemed Purchaser's reaffirmation that neither
Seller nor its representatives; agents or assigns have made any warranties or representations, implied or expressed, relating to the existence of
any tenants or occupants at the Property unless otherwise noted in Section 30 of this Addendum. Seller, its representatives, agents and assigns
shall not be responsible for evicting or relocating any tenants or occupants or personal property at the Property prior to or subsequent to the
Closing unless otherwise specifically agreed to in writing by Seller..
(b) Purchaser further acknowledges and agrees that Seller is not, to the best of Purchaser's knowledge, holding any security deposits from
former or current tenants and has no information as to such security deposits as may have been paid by the former or current tenants to anyone,
and Purchaser agrees that no sums representing such tenant security deposits shall be transferred to Purchaser as part of this
transaction. Purchaser further agrees to assume all responsibility and liability for the refund of such security deposits to the tenants pursuant to the
provisions of applicable laws and regulations. All rent; due and payable and collected from tenants for the month in which the Closing occurs, will
be prorated according to the provisions of Section 11 of this Addendum.
(c) Purchaser acknowledges and agrees that the Property may be subject to the provisions of local rent control ordinances and
regulations. Purchaser agrees that as of the Closing all eviction proceedings and other duties and responsibilities of a property owner and landlord,
including but not limited to those proceedings required for compliance with such local rent control ordinances and regulations, shall be Purchaser's
sole responsibility and cost.
(d) If the Property is located in Alabama,. Purchaser understands that the Property may be subject to redemption by the prior owner upon
payment of certain sums and Purchaser may be dispossessed of the Property. Purchaser is advised to consult with an attorney to fully understand
the import and impact of the foregoing. Purchaser acknowledges and agrees Purchaser shall have no recourse against Seller whatsoever in the
event the right of redemption is exercised.
10. Personal Property. Purchaser acknowledges and agrees that items of equipment, fixtures, and other items of personal property,
including but not limited to window coverings, appliances, manufactured homes, mobile homes, vehicles, spas, antennas, satellite dishes and
garage door openers, now or hereafter located on the Property (collectively, "Personal Property") shall not be included in the sale of the Property or
the Purchase Price unless each item of Personal Property is specifically described and referenced in Section 30 of this Addendum. Any Personal
Property at or on the Property may be subject to claims by third parties and, therefore, may be removed from the Property prior to or after the
Closing Date, Seller makes no representation or warranty as to the condition of any Personal Property, title thereto, or whether any personal
property is encumbered by any liens or other adverse claims by third parties. Purchaser assumes full responsibility for any Personal Property
remaining on the Property at the time of the Closing. ANY PERSONAL PROPERTY SOLD BY SELLER SHALL BE ACCEPTED BY PURCHASER
ON AN "AS IS, WHERE IS" BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, AND SPECIFICALLY
EXCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
11. Closing Costs and Adjustments.
(a) Purchaser and Seller agree to prorate the following expenses as of Closing and funding: municipal water and sewer charges, utility
charges, real estate taxes and assessments, common area charges, condominium or planned unit development or similar community
assessments, cooperative fees, maintenance fees, and rents, if any. In determining proration, responsibility for the day on which funding occurs
shall be allocated to Purchaser. Payment of special assessment district bonds and assessments, and payments of homeowner's association of
special assessments shall be paid current and prorated between Purchaser and Seller as of the Closing Date with payments not yet due and
owing to be assumed by Purchaser without credit toward the Purchase Price. Property taxes shall be prorated based on an estimate or actual
taxes from the previous year on the Property. All proration shall be based upon a 30 -day month and, except as otherwise provided herein, all such
proration shall be final. Seller shall not be responsible for any amounts due, paid or to be paid after Closing, including, but not limited to, any taxes,
penalties or interest assessed or due as a result of retroactive, postponed or additional taxes resulting from any change in use of, or construction
on, or improvement to the Property, or an adjustment in the appraised value of the Property. In the event Seller has paid any taxes, special
assessments or other fees and there is a refund of any such taxes, <assessments or fees after the Closing; and Purchaser as current owner of the
Property receives the payment, Purchaser will immediately submit the refund to Seller. If the Property is heated or has storage tanks for fuel oil,
liquefied petroleum gases or similar fuels, Purchaser will buy the fuel in the tank at Closing at the current price as calculated by the supplier.
(b) Except as expressly assumed by Seller in Section 30 of this Addendum, Purchaser shall bear its own costs (including attorneys' fees) in
connection with its negotiation, due diligence investigation and conduct of the transaction contemplated by the Agreement.
(c) Purchaser shall pay the cost of any survey. Recording fees, escrow fees and other customary closing costs shall be allocated between
Seller and Purchaser in the manner customary for residential real estate transactions in the metropolitan area or city in which the Property is
located.
(d) SELLER AGREES TO PAY THE PREMIUM FOR AN OWNER'S POLICY OF TITLE INSURANCE ONLY IF THE OWNER'S POLICY
IS ISSUED BY SELLER'S SELECTED TITLE AGENT. NOTWITHSTANDING LOCAL CUSTOM, REQUIREMENTS OR PRACTICE, OR
ANYTHING IN THE AGREEMENT TO THE CONTRARY, IF PURCHASER SELECTS A TITLE AGENT TO ISSUE THE OWNER'S POLICY OF
TITLE INSURANCE; PURCHASER SHALL BE OBLIGATED TO PAY THE ENTIRE PREMIUM FOR SUCH POLICY AND SELLER SHALL HAVE
NO OBLIGATION TO PAY ANY PORTION OF SUCH PREMIUM.
(e) Seller shall pay a real estate commission pursuant to the listing agreement between Seller and Seller's listing broker.
(f) All other costs and expenses, includingany cost, expense or tax imposed by any state or local entity not otherwise addressed herein,
shall be paid by Purchaser.
12. Delivery of Funds. Regardless of local custom, requirements, or practice, upon delivery of the Deed by Seller to Purchaser, Purchaser
shall deliver all funds due Seiler from the sale in the form of certified check, cashier's check, or wire transfer.
13. Governmental Required Permits and Repairs. Except as prohibited by law, if the Property is located in a jurisdiction that requires a
certificate of occupancy, smoke detector certification, septic certification or any similar certification or permit or any form of improvement or repair
to the Property (collectively, "Permits and Repairs"), Purchaser acknowledges and agrees that Purchaser shall be responsible for obtaining any
and all of the Permits and Repairs at Purchaser's sole cost and expense. Purchaser shall make application for all Permits and Repairs within ten
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(10) days of the Seller Acceptance Date. Purchaser shall not have the right to delay the Closing due to Purchaser's failure or inability to obtain any
required Permits and Repairs. Unless Seller declines to consent to a required inspection or repair to the Property, the failure of Purchaser to obtain
and furnish the Permits and Repairs shall constitute a material breach of the Agreement. Notwithstanding the foregoing, neither Purchaser nor its
representatives shall enter upon the Property to make any repairs or treatments prior to the Closing without the prior written consent of Seller. To
the extent the Purchaser or its representatives make repairs or treatments to the Property prior to the Closing, Purchaser hereby agrees to release
and indemnify Seller from and against any and all claims related in anyway to the repairs and/or treatments and further agrees to execute a
release and indemnification and provide proof of liability insurance naming Seller as a loss payee, both in a form acceptable to Seller, prior to entry
on the Property and commencement of any such repairs or treatments. If the Property is located in a jurisdiction that requires Permits and Repairs
and Seller declines to consent to a required inspection or repair to the Property, the Agreement shall terminate and the Earnest Money shall be
refunded to Purchaser.
14. Delivery of Possession of Property. Seller shall deliver possession of the Property to Purchaser at the Closing and funding of the
sale. Pursuant to Section 9 of this Addendum, the delivery of possession shall be subject to the rights of any tenants or parties in possession. If
Purchaser alters the Property or causes the Property to be altered in any way and/or occupies the Property or allows any other person to occupy
the Property prior to Closing and funding without the prior written consent of Seller, such event shall constitute a breach by Purchaser under the
Agreement and Seller may terminate the Agreement and Purchaser shall be liable to Seiler for damages (including attorneys' fees and costs)
caused by any such alteration or occupation of the Property prior to Closing and funding, and Purchaser waives any and all claims for damages or
compensation for improvements made by Purchaser to the Property, including but not limited to any claims for unjust enrichment. Without limiting
any remedy of Seller under this Addendum at law or in equity, Seller shall also have the right to terminate the Agreement and retain the Earnest
Money as liquidated damages for Purchaser's default under this Section.
15. Form of Deed. The deed to be delivered at Closing shall be a deed that covenants that grantor grants only that title which grantor may
have and that grantor will only defend title against persons claiming by, through, or under the grantor, but not otherwise (which deed may be known
as a Special Warranty, Limited Warranty, Quit Claim or Bargain and Sale Deed). Any reference to the term "Deed" in the Agreement shall be
construed to such form of deed.
16. Defects in Title. If Purchaser raises an objection to title to the Property or if the seller discovers a defect in title which, if valid, would
make title to the Property uninsurable, Seller shall have the right unilaterally to terminate the Agreement by giving written notice of the termination
to Purchaser. If Seller chooses to correct the problem through reasonable efforts, as determined by Seller in its sole and absolute discretion, prior
to the Closing Date, including any written extensions, or if title insurance is available from a reputable title insurance company selected by Seller at
regular rates containing affirmative coverages for the title objections, then the Agreement shall remain in full force and Purchaser shall perform
pursuant to the terms set forth in the Agreement. Seller shall not be obligated to remove any exception or to bring any action or proceeding or bear
any expense in order to convey title to the Property or to make the title marketable or insurable, and any attempt by Seller to remove such title
exceptions shall not impose an obligation upon Seller to remove those exceptions. Purchaser acknowledges that Seller's title to the Property may
be subject to court approval of a foreclosure or to a mortgagor's right of redemption. In the event Seller is not able to (a) make the title insurable or
correct any problems or (b) obtain title insurance from a title insurance company selected by Seller, all as provided herein, either party may
terminate the Agreement and any Earnest Money shall be returned to Purchaser and Seller shall have no further obligation or liability to Purchaser
hereunder. Section 19(b) of this Addendum also provides that Seller may extend the Closing Date or terminate the Agreement if Seller determines,
in Seller's sole and absolute discretion, that Seller is unable to convey insurable title to the Property.
17. Representations and Warranties. Purchaser hereby represents and warrants to, and covenants and agrees with, Seller as to the
following matters (all representations, warranties and covenants are true on the date hereof and shall be true as of the Closing) with the
understanding that Seller is relying on these representations, warranties and covenants in effecting the transactions contemplated hereby:
(a) Purchaser is purchasing the Property solely in reliance on its own investigation and inspection of the Property and not on any
information, representation or warranty provided or to be provided by Seller; its servicers, representatives, brokers, employees; agents or assigns;
(b) This Addendum shall be binding and enforceable against Purchaser in accordance with its terms, and upon Purchaser's execution of the
additional documents contemplated by this Addendum, they shall be binding and enforceable against Purchaser in accordance with their
terms. The execution and delivery of this Addendum and Purchaser's performance of the obligations hereunder does not require any consents or
approvals of any third persons;
(c) This Addendum will not, with or without the giving of notice or the lapse of time or both, violate or conflict with, result in a breach of, or
constitute a default under, any agreement, contract, lease, license, instrument, or other arrangement to which Purchaser is a party, or by which
Purchaser is bound;
(d) Neither Seller nor its servicers, employees, representatives, brokers, agents or assigns, have made any representations or warranties,
implied or expressed, relating to the marketability, insurability or condition of the Property or the contents thereof, except as expressly set forth in
Section 30 of this Addendum;
(e) Purchaser has not relied on any representation or warranty from the Seller regarding the marketability, insurability or condition of the
Property or the contents thereof, or the nature, quality, or workmanship of any repairs made by Seller; and
(f) Purchaser will not occupy, or cause or permit others to occupy, the Property prior to Closing and funding and; unless and until any
necessary Certificate of Occupancy has been obtained from the appropriate governmental entity, will not occupy or cause or permit others to
occupy the Property after Closing.
18. WAIVERS BY PURCHASER. AS A MATERIAL PART OF THE CONSIDERATION TO BE RECEIVED BY SELLER UNDER THE
AGREEMENT AS NEGOTIATED AND AGREED TO BY PURCHASER AND SELLER, PURCHASER WAIVES THE FOLLOWING:
(a) ALL RIGHTS TO FILE AND MAINTAIN AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE;
(b) ANY RIGHT TO RECORD A LIS PENDENS AGAINST THE PROPERTY OR TO RECORD OR FILE THE CONTRACT, THIS
ADDENDUM OR ANY MEMORANDUM THEREOF IN THE REAL PROPERTY RECORDS;
(c) ANY RIGHT TO INVOKE ANY OTHER EQUITABLE REMEDY THAT MAY BE AVAILABLE THAT, IF INVOKED, WOULD PREVENT
SELLER FROM CONVEYING THE PROPERTY TO A THIRD -PARTY PURCHASER;
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(d) ANY AND ALL CLAIMS ARISING FROM THE ADJUSTMENTS OR PRORATIONS OR ERRORS IN CALCULATING THE
ADJUSTMENTS OR PRORATIONS THAT ARE OR MAY BE DISCOVERED AFTER CLOSING;
(e) ANY AND ALL CLAIMS FOR FAILURE OF CONSIDERATION OR MISTAKE OF FACT AS SUCH CLAIMS RELATE TO THE
PURCHASE OF THE PROPERTY OR ENTERING INTO OR EXECUTION OF OR CLOSINGUNDER THE AGREEMENT;
M ANY REMEDY OF ANY KIND, INCLUDING BUT NOT LIMITED TO RESCISSION OF THE AGREEMENT, OTHER THAN AS
EXPRESSLY PROVIDED IN THIS ADDENDUM, TO WHICH PURCHASER MIGHT OTHERWISE BE ENTITLED AT LAW OR IN EQUITY,
WHETHER BASED ON MUTUAL MISTAKE OF FACT OR LAW OR OTHERWISE;
(g) ANY RIGHT TO TRIAL BY JURY, EXCEPT AS WAIVER THEREOF IS PROHIBITED BY LAW, IN ANY LITIGATION ARISING FROM,
OR CONNECTED WITH OR RELATED TO THE AGREEMENT;
(h) ANY CLAIMS FOR LOSSES PURCHASER MAY INCUR AS A RESULT OF PURCHASER'S DUE DILIGENCE, INCLUDING BUT NOT
LIMITED TO COST OF ANY INSPECTIONS OF OR REPORTS FOR THE PROPERTY, AND CONSTRUCTION ON, REPAIR TO, OR
TREATMENT OF THE PROPERTY, OR OTHER DEFECTS WHICH MAY NOW OR HEREAFTER EXIST WITH RESPECT TO THE PROPERTY:
(i) ANY CLAIM FOR LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING FROM, BASED UPON, DUE TO OR OTHERWISE RELATED TO ENVIRONMENTAL CONDITIONS AFFECTING THE
PROPERTY, INCLUDING BUT NOT LIMITED TO MOLD, LEAD PAINT, FUEL OIL, ALLERGENS OR OTHER TOXIC SUBSTANCES OF ANY
KIND;
Q) ANY RIGHT TO AVOID THIS SALE OR REDUCE THE PRICE OR HOLD SELLER RESPONSIBLE FOR DAMAGES ON ACCOUNT OF
THE MARKETABILITY, INSURABILITY OR CONDITION OF THE PROPERTY, HABITABILITY, LACK OF SUITABILITY AND FITNESS OF THE
PROPERTY FOR A PARTICULAR PURPOSE, OR REDHIBITORY VICES AND DEFECTS, APPARENT, NONAPPARENT OR LATENT,
DISCOVERABLE OR NONDISCOVERABLE;
(k) ANY CLAIM FOR LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING FROM, BASED UPON, DUE TO OR OTHERWISE RELATED TO ENCROACHMENTS, EASEMENTS, SHORTAGES IN
AREA OR ANY OTHER MATTER WHICH WOULD BE DISCLOSED OR REVEALED BY A SURVEY OR INSPECTION OF THE PROPERTY OR
SEARCH OF PUBLIC RECORDS; AND
(1) ANY CLAIM FOR LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS OR
DAMAGE ARISING FROM, BASED UPON, DUE TO OR OTHERWISE RELATED TO: ANY DISCREPANCY BETWEEN THE PROPERTY'S
ADDRESS AND THE PROPERTY INSPECTED BY PURCHASER; THE PROPERTY HAVING AN INCORRECT MUNICIPAL ADDRESS; OR
EITHER SELLER'S OR PURCHASER'S AGENT SHOWING PURCHASER AN INCORRECT PROPERTY. IN THE EVENT OF CONFLICT
BETWEEN THE MUNICIPAL ADDRESS OF THE PROPERTY AND THE LEGAL DESCRIPTION OF THE PROPERTY, THE LEGAL
DESCRIPTION SHALL CONTROL.
References to the "Seller" in this Section 18 shall include Seller and Seller's servicers, representatives, agents, brokers, employees and
assigns. In the event that the Purchaser breaches or disregards, or attempts to disavow, any of the representations, warranties or waivers
described or contemplated under Section 17 or Section 18 of this Addendum, the Purchaser shall pay all reasonable attorney's fees and costs
incurred by the Seller in (i) seeking reaffirmation or enforcement of any such representation, warranty or waiver, or (ii) defending any action
initiated by the Purchaser for the purpose or relating to any such breach, disregard or disavowal, and Purchaser shall pay Five Thousand Dollars
($5,000.00) as liquidated damages for such attempted or actual breach, disregard or disavowal, which amount shall be in addition to any liquidated
damages held or covered by the Seller pursuant to Section 25 of this Addendum.
19. Conditions to Seller's Performance. Seller shall have the unilateral right, at Seller's sole and absolute discretion, to extend the Closing
Date or to terminate the Agreement if.
(a) Full payment of any mortgage insurance claim related to the loan previously secured by the Property is not confirmed prior to the Closing
Date or the mortgage insurance company exercises its right to acquire title to the Property:
(b) Seller determines, in its sole and absolute discretion, that it is unable to convey insurable title to the Property through a title insurance
company selected by Seller at regular rates;
(c) Seller has either sold or has agreed to sell the loan secured by the Property to another party;
(d) Full payment of any property, fire or hazard insurance claim is not confirmed prior to the Closing or the date set forth herein for closing;
(e) Any third party, whether tenant, homeowner's association or otherwise, exercises rights under a right of first refusal, option or similar
right to purchase the Property;
(f) Seller determines, in its sole and absolute discretion, that the sale of the Property to Purchaser or any related transactions are in any
way associated with illegal activity of any kind;
(g) Seller has transferred and conveyed the Property to a third party;
(h) the Purchaser is the former mortgagor of the Property whose interest was foreclosed, or is related to or affiliated in any way with the
former mortgagor, and Purchaser has not disclosed this fact to the Seller prior to the Seller's acceptance of the Agreement. Such failure to disclose
shall constitute default under the Agreement, entitling the Seller to exercise any of its rights and remedies, including, without limitation, retaining
the earnest money deposit; or
(i) The Purchase Price is insufficient to pay the sum of the closing costs, taxes, commissions, and any liens on or obligations secured by the
Property that Seller has agreed to pay hereunder.
In the event Seller elects to terminate the Agreement as a result of any of the foregoing, the Earnest Money shall be returned to Purchaser and the
parties shall have no further obligation under the Agreement except the rights and obligations that survive termination pursuant to Section 26 of
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this Addendum.
20. Remedies for Default.
(a) In the event of Purchaser's default, material breach or material misrepresentation of any fact under the terms of the Agreement, Seller,
at its option, may retain the Earnest Money and any other funds paid by Purchaser as liquidated damages and/or invoke any other remedy
expressly set forth in the Agreement and Seller is automatically released from the obligation to sell the Property to Purchaser and neither Seller nor
its representatives, agents, attorneys, successors or assigns shall be liable to Purchaser for any damages of any kind as a result of Seller's failure
to sell and convey the Property. PURCHASER ACKNOWLEDGES AND AGREES THAT BY SIGNING THIS ADDENDUM, SELLER SHALL HAVE
THE RIGHT TO RETAIN OR SEEK THE RELEASE OF THE EARNEST MONEY UNDER THIS SECTION 20, WITHOUT ANY FURTHER
ACTION, CONSENT OR DOCUMENT FROM PURCHASER.
(b) Seller shall only be in default under the Agreement if Purchaser delivers written notice to Seller detailing the default and Seller fails to
cure such default within 20 days of receipt of such written notice (or such longer period of time as may be necessary, provided that Seller diligently
pursues such cure).. If Seller is in default hereunder or if Seller terminates the Agreement as provided under the provisions of thereof, Purchaser
shall be entitled to the return of the Earnest Money as Purchaser's sole and exclusive remedy at law or in equity. Any reference to a return of the
Earnest Money in the Agreement shall mean a return of the Earnest Money less any escrow cancellation fees applicable to Purchaser under the
Agreement, and less fees and costs payable for services and products provided during escrow at Purchaser's request. Purchaser waives any
claim that the Property is unique and Purchaser acknowledges that a return of its Earnest Money can adequately and fairly compensate
Purchaser. Upon return of the Earnest Money to Purchaser, the Agreement shall be terminated, and Purchaser and Seller shall have no further
liability, no further obligation, and no further responsibility each to the other, and Purchaser and Seller shall be released from any further obligation
each to the other in connection with the Agreement, except the rights and obligations that survive pursuant to Section 26 of this Addendum.
(c) Purchaser agrees that Seller shall not be liable to Purchaser for any special, consequential or punitive damages whatsoever, whether in
contract, tort (including negligence and strict liability) or any other legal or equitable principle, including but not limited to any cost or expense
incurred by Purchaser in selling or surrendering a lease on a prior residence, obtaining other living Accommodations, moving, storage or relocation
expenses or any other such expense or cost arising from or related to the Agreement or a breach thereof.
(d) Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of or
excuse for any different or subsequent breach.
(e) In the event either party elects to exercise its remedies as described in this Section 20 or the Agreement is terminated, the parties shall
have no further obligation under the Agreement except the rights and obligations that survive termination pursuant to Section 26 of this Addendum
21. Indemnification. Purchaser agrees to indemnify and fully protect, defend and hold Seller, its officers, directors, employees, shareholders,
servicers, representatives, agents, attorneys, tenants, brokers, successors and assigns harmless from and against any and all claims, costs, liens,
loss, damages, attorneys' fees and expenses of every kind and nature that may be sustained by or made against Seller, its officers, directors,
employees, shareholders, servicers, representatives, agents, attorneys, tenants, brokers, successors or assigns, resulting from or arising out of:
(a) Inspections or repairs made by Purchaser or its agents, employees, contractors, successors or assigns;
(b) the imposition of any fine or penalty imposed by any governmental entity resulting from Purchaser's failure timely to obtain any permits,
approvals, repairs or inspections, or to comply with all applicable laws, rules, ordinances and regulations;
(c) claims for amounts due and owing by Seller for taxes, homeowner's association dues or assessment, or any other terms prorated at
Closing under Section 11 of this Addendum;
(d) The breach by Purchaser of any of the terms and conditions of the Agreement; and
(e) Purchaser's or Purchaser's tenants, agents or representative's use or occupancy of the Property prior to Closing and funding.
22. Risk of Loss. Regardless of local custom or practice, Purchaser assumes all risk of loss related to damage to the Property. In the event
of fire, destruction or other casualty loss to the Property after Seller's acceptance of the Agreement and prior to Closing and funding, Seller may, at
its sole discretion, repair or restore the Property, or Seller may terminate the Agreement. If Seller elects to repair or restore the Property, then
Seller may, at its sole discretion, limit the amount to be expended. If Seiler elects to repair or restore the Property, Purchaser's sole and exclusive
remedy shall be either to acquire the Property in its then current condition at the Purchase Price with no reduction thereof by reason of such loss,
or terminate the Agreement and receive a refund of any Earnest Money.
23. Eminent Domain. In the event that Seller's interest in the Property, or any part thereof, shall have been taken by eminent domain or shall
be in the process of being taken on or before the Closing Date, either party may terminate the Agreement and the Earnest Money shall be returned
to Purchaser and neither party shall have any further rights or liabilities hereunder except the rights and obligations that survive termination
pursuant to Section 26 of this Addendum.
24. Keys. Purchaser understands that if Seller is not in possession of keys, including but not limited to mailbox keys, recreation area keys,
gate cards or automatic garage door remote controls, then the cost of obtaining the same will be the responsibility of Purchaser. Purchaser also
understands that if the Property includes an alarm system, Seller cannot provide the access code or key, Purchaser shall be responsible for any
costs associated with the alarm, changing the access code or obtaining keys. Purchaser is encouraged to re -key the Property after
Closing. Purchaser agrees to hold Seller harmless regarding any theft or damage of personal property.
25. Liquidated Damages. THE PARTIES ACKNOWLEDGE THAT IN THE EVENT OF ANY MATERIAL DEFAULT BY PURCHASER
UNDER THE AGREEMENT; SELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO COMPUTE AND THAT THE EARNEST
MONEY REPRESENTS A REASONABLE ESTIMATE OF SUCH DAMAGES AS ESTABLISHED BY THE PARTIES THROUGH GOOD FAITH
CONSIDERATION OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE TRANSACTION CONTEMPLATED UNDER THE
AGREEMENT AS OF THE DATE HEREOF. IN THE EVENT OF SUCH DEFAULT BY PURCHASER UNDER THE AGREEMENT, SELLER SHALL
HAVE THE RIGHT (BUT NOT THE OBLIGATION) TO RETAIN SUCH AMOUNTS AS LIQUIDATED DAMAGES. THE PURCHASER HAS
INITIALED BELOW TO ESTABLISH THIS INTENT TO ESTABLISH LIQUIDATED DAMAGES.
26. Survival Delivery of the Deed to the Property to Purchaser by Seller shall be deemed to be full performance and discharge of all of
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Seller's obligations under the Agreement. Notwithstanding anything to the contrary to the Agreement, the provisions of Sections 6, 7, 8, 9, 10, 11,
13, 14, 16, 17, 18, 20, 21, 22, 25 and 27(a) of this Addendum, as well as any other provision which contemplates performance or observance
subsequent to any termination or expiration of the Agreement, shall survive the Closing, funding and the delivery of the Deed and/or termination of
the Agreement by any party and continue in full force and effect.
27. General Provisions.
(a) Attorneys' Fees. If either party commences any litigation or judicial action to determine or enforce any of the provisions of the
Agreement, the prevailing party in any such litigation or judicial action is entitled to recover all of its costs and expenses (including but not limited to
reasonable attorneys' fees, costs and expenditures) from the non -prevailing party.
(b) Further Assurances. Purchaser agrees to execute and deliver to Seller at Closing or as otherwise requested by Seller, documents
referenced in this Addendum or requested by Seller, and to take such other action as may be reasonably necessary to further the purpose of the
Agreement. Copies of referenced documents are available from Seller's listing agent upon request by Purchaser.
(c) Severability: If any provision of this Addendum shall be held to be invalid or unenforceable by any court of competent jurisdiction or as a
result of any legislative action, such holding or action shall be strictly construed. Furthermore, provided the parties are still able to retain all of the
material benefits of their bargain hereunder, such provision shall be construed, limited or, if necessary, severed, but only to the extent necessary to
eliminate such invalidity or unenforceability, and the other provisions of this
Addendum shall remain unaffected and this Addendum shall be construed and enforced as if such provision in its original form and content had
never comprised a part hereof.
(d) Assignment of Agreement. Purchaser shall not assign the Agreement without the express written consent of Seller. Seller may assign
the Agreement at its sole discretion without prior notice to or consent of Purchaser.
(e) EFFECT OF ADDENDUM. IN THE EVENT THERE IS ANY CONFLICT BETWEEN THIS ADDENDUM AND THE CONTRACT OR
ESCROW INSTRUCTIONS OR NOTICE OR OTHER DOCUMENTS ATTACHED TO AND MADE A PART OF THE AGREEMENT, THE TERMS
OF THIS ADDENDUM TAKE PRECEDENCE AND SHALL PREVAIL EXCEPT AS OTHERWISE PROVIDED BY LAW. THIS ADDENDUM
AMENDS AND SUPPLEMENTS THE CONTRACT AND ANY ESCROW INSTRUCTIONS.
(f) Authority. The undersigned if executing this Addendum and the Contract on behalf of a Purchaser that is a corporation, partnership, trust
or other entity, represents and warrants that he or she is authorized by that entity to enter into this Addendum and the Contract and bind the entity
to perform any duties and obligations stated in this Addendum and the Contract.
(g) Entire Agreement. The Agreement, including the disclosure of information on lead-based paint or lead-based paint hazard or Seller
Disclosure and Release Addendum or other disclosure forms or notices required bylaw, constitutes the entire agreement between Purchaser and
Seller concerning the subject matter hereof and supersedes all previous communications, understandings, representations, warranties, covenants
and agreements, whether written or oral and there are no oral, or other written agreements between Purchaser and Seller. NO ORAL PROMISES,
REPRESENTATIONS (EXPRESS OR IMPLIED) WARRANTIES OR AGREEMENTS MADE BY SELLER OR BROKER OR ANY PERSON
ACTING ON BEHALF OF SELLER SHALL BE DEEMED VALID OR BINDING UPON SELLER UNLESS EXPRESSLY INCLUDED IN THE
AGREEMENT. All negotiations are merged into the Agreement. Seller shall not be obligated by any other written or verbal statements made by
Seller, Seller's representatives or any real estate licensee.
(h) Modification. No provision, term or clause of the Agreement shall be revised, modified, amended or waived except by an instrument in
writing signed by Purchaser and Seller.
(i) No Third -Party Beneficiaries. The Agreement does not create any rights, claims or benefits inuring to any person or entity, other than
Seller's successors or assigns, that is not a party to the Agreement, nor does it create or establish any third -party beneficiary to the Agreement.
(j) Counterparts. This Addendum may be executed in any number of counterparts, and each such counterpart shall be deemed to be an
original, but all of which, when taken together, shall constitute one agreement. This Addendum may be delivered by facsimile.
(k) Headings. The titles to the sections and headings of various paragraphs of this Addendum are placed for convenience of reference only
and in case of conflict, the text of the Addendum, rather than such titles or headings, shall control.
(1) No Partnership. The Agreement is not intended to create and does not create a joint venture or partnership between Purchaser and
Seller.
(m) Gender. Unless the context otherwise requires, singular nouns and pronouns, when used herein, shall be deemed to include the plural of
such nouns or pronouns, and pronouns of one gender shall be deemed to include the equivalent pronoun of the other gender.
(n) Force Majeure. Except as provided in Section 22, no party shall be responsible for delays or failure of performance resulting from acts of
God, riots, acts of war, epidemics, power failures, acts of terrorism, earthquakes or other disasters, providing such delay or failure of performance
could not have been prevented by reasonable precautions and cannot reasonably be circumvented by such party through use of alternate sources,
workaround plans or other means.
(o) Attorney Review. Purchaser acknowledges that Purchaser has had the opportunity to consult with its legal counsel regarding the
Agreement; accordingly, the terms of the Agreement are not to be construed against any party because that party drafted the Agreement or
construed in favor of any Party because that Party failed to understand the legal effect of the provisions of the Agreement.
(p) Notices. Any notices required to be given under the Agreement shall be deemed to have been delivered when actually received in the
case of hand or overnight delivery, or five (5) days after mailing by first class mail, postage paid, or by fax with confirmation of transmission to the
numbers below. All notices to Seller will be deemed sent or delivered to Seller when sent or delivered to Seller's listing broker or agent or Seller's
attorney, at the address or fax number shown below. All notices to Purchaser shall be deemed sent or delivered when sent or delivered to
Purchaser or Purchaser's attorney or agent at the address or fax number shown below.
(q) Dispute Resolution. Notwithstanding any provision of the Contract to the contrary, the parties acknowledge and agree that any alternative
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dispute resolution, mediation and/or arbitration provisions contained in the Contract are expressly voided and are of no force or effect.
(r) Facsimile or Electronic Signatures. Seller and Purchaser agree that a signature on this document that is electronically
transmitted via facsimile or the internet is intended to have the same legal effect and shall be as enforceable against the signor as an original
signed counterpart where the signature is affixed manually.
28. As a precondition to the purchase of the Property and by signing this Addendum, the Buyer(s) hereby certifies that he/she
/they/it is or are not an employee or immediate family member of an employee of Select Portfolio Servicing, Inc. or an affiliate, direct or
indirect subsidiary and the same with respect to any SPS vendor including but not limited to real estate agents and those who perform
property preservation and is/are therefore prohibited from purchasing the Property for this reason.
29. Name in which Property will be purchased. Purchaser acknowledges and agrees that title to the property will be held in name(s) of [Refer
to Buyer] on page one of this addendum. Any changes to the spelling, grammar or name in which title should be vested must be
completed below.
Purchaser Name (Please print legibly)
Purchaser Name (Please print legibly)
PURCHASER'S OFFER
Purchaser has executed this Addendum as of the day of , 20_
Signature:
Print Name (or name if a company):
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Title (if a company):
Address:
Telephone:
Facsimile:
Signature:
Print Name (or name if a company):
Title (if a company):
Address:
Telephone:
Facsimile:
SELLER'S ACCEPTANCE
Select Portfolio Servicing, Inc., a Utah corporation
By:
Print Name:
Title:
Date:
AGENT ACKNOWLEDGEMENT
Accepted and
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DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS
Lead Warning Statement
Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property
may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young
children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and
impaired memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required
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to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession and notify
the buyer of any known lead-based paint hazards. A risk assessment or inspection for possible lead-based paint hazards is recommended prior
to purchase.
Seller's Disclosure
(a) Presence of lead-based paint and/or lead-based paint hazards (check (i) or (ii) below):
(i) Known lead-based paint and/or lead-based paint hazards are present in the housing
(explain).
(ii) Seller has no knowledge of lead-based paint and/or lead-based paint hazards in the housing.
(b) Records and reports available to the seller (check (i) or (ii) below):
(i) Seller has provided the purchaser with all available records and reports pertaining to lead based paint and/or lead-based paint hazards
in the housing (list documents below).
(ii) Seller has no reports or records pertaining to lead-based paint and/or lead-based paint
hazards in the housing.
Purchaser's Acknowledgment (initial)
(c) Purchaser has received copies of all information listed above.
(d) Purchaser has received the pamphlet Protect Your Family from Lead in Your Home.
(e) Purchaser has (check (i) or (ii) below):
(i) received a 10 -day opportunity (or mutually agreed upon period) to conduct a risk assessment or inspection for the presence of lead-
based paint and/or lead-based paint hazards; or
(ii) waived the opportunity to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint
hazards.
Agent's Acknowledgment (initial)
(f) Agent has informed the seller of the seller's obligations under 42 U.S.C. 4852(d) and is aware of his/her responsibility to ensure
compliance.
Certification of Accuracy
The following parties have reviewed the information above and certify, to the best of their knowledge, that the information they have provided is
true and accurate.
SELLER:
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Select Portfolio Servicing, Inc., a Utah Corporation
By:
Name:
(Print)
Title
Date:
PURCHASER:
By:
Name:
(Print)
Date:
AGENT -
By:
Name:
(Print)
Date:
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