HomeMy WebLinkAbout2017-11-07 Meeting AgendaCommission Meeting Agenda
Commission Chamber
11/7/2017
2:00 PM
INVOCATION:Elder Daniel Gant, Pastor, Mason Chapel Church of God in Christ.
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA.
RECOGNITION(S)
Employee of the Month
A. Congratulations! Mr. Melvin Tyler, Planning and Development
Department October 2017 Employee of the Month.
Attachments
Five (5) minute time limit per delegation
DELEGATIONS
B.Ms. Zellena Jennings regarding over grown vacant lot not being
maintained.
Attachments
C.Mr. Brian Green regarding the feasibility of a South Augusta Villa.Attachments
CONSENT AGENDA
(Items 1-28)
PUBLIC SERVICES
1.Motion to approve award of the contract for Bid Item 17-230, 5-Row
Bleachers at Diamond Lakes, Eisenhower, Fleming Complex and
Portable Bleachers with Safety Cages to the low, responsive bidder,
Bleachers International for $194,152. (Approved by Public Services
Committee October 31, 2017)
Attachments
2.Motion to approve New Ownership Application: A.N. 17-30: request
by Ritaben Patel for a retail package Beer & Wine License to be used in
connection with Super Express #1 located at 3150 Wrightsboro Rd.
District 2. Super District 9. (Approved by Public Services Committee
October 31, 2017)
Attachments
3.Motion to approve New Ownership Application: A.N. 17-31: request
by Ritaben Patel for a retail package Liquor License to be used in
connection with H&S Wine & Spirits located at 3150 Wrightsboro Rd
Suite B. District 2. Super District 9. (Approved by Public Services
Committee October 31, 2017)
Attachments
4.Motion to approve New Location: A.N. 17-33: A request by John
Canouse for an on premise consumption Liquor, Beer, & Wine License
to be used in connection with Augusta Entertainment, LLC dba Stars &
Strikes located at 3238 Wrightsboro Rd. There will be Sunday Sales.
District 2. Super District 9. (Approved by Public Services Committee
October 31, 2017)
Attachments
5.Motion to approve amendments to the Augusta, Georgia Code, Title 6,
Chapter 2 Article 1, Alcoholic Beverages, Section 6-2-2 Definitions,
Section 6-2-8 Days Sales Allowed, and Section 6-2-77 License for
Single Event, so as to provide for the designation of one Sunday during
the calendar year that bars are authorized to be open, and approve
resolutions designating the selected Sunday for 2017 and
2018. (Approved by Public Services Committee October 31, 2017)
Attachments
6.Motion to approve New Ownership application: A.N. 17-32: A request
by John Canouse for a Game Room/Arcade License to be used in
connection with Augusta Entertainment, LLC dba Stars & Strikes
located at 3238 Wrightsboro Rd. District 2. Super District 9. (Approved
by Public Services Committee October 31, 2017)
Attachments
7.Motion to approve authorization for Augusta to submit a Pre-
Application with the Georgia Natural Resources Department for 2017
Land and Water Conservation Funds grant. (Approved by Public
Services Committee October 31, 2017)
Attachments
8.Motion to approve amendments (Ordinance) to the Augusta, Georgia
Code, Title 7, Chapter 2, Article 1 Nuisances, Section 7-2-
2 Nuisances Prohibited so as to clarify the responsibility
of property owners with regard to occupied properties. (Approved by
Commission October 17, 2017 - second reading)
Attachments
ADMINISTRATIVE SERVICES
9.Motion to approve tasking the Administrator's Office to send out the
appropriate memos to departments relative to consistency regarding
advertising/ marketing campaigns/efforts to include "The City of
Augusta" regarding events sponsored and paid for by Augusta, GA.
(Approved by Administrative Services Committee October 31,
2017)
Attachments
10.Motion to approve award for installation of a 60 kW photovoltaic solar
array on Friedman Branch Library to Hannah Solar of Atlanta, GA in the
amount of $112,746.00. (RFP 17-213) (Approved by Administrative
Services Committee October 31, 2017)
Attachments
PUBLIC SAFETY
11.Motion to approve the agreement and acceptance of grant funds in the
amount of $7,975.00 from the Georgia Emergency Management &
Homeland Security Agency to purchase training material & equipment
and authorize the Mayor to execute the required documents. (Approved
by Public Safety Committee October 31, 2017)
Attachments
12.Motion to approve the Agreement with the Georgia Emergency
Management & Homeland Security Agency and approve acceptance of
the grant award in the amount of $58,000.00 (Grant No.: SHO17-092)
and authorize the Mayor to execute all required documents. (Approved
by Public Safety Committee October 31, 2017)
Attachments
13.Motion to approve the application and acceptance of grant funds in the
amount of $33,329.00 from Georgia Emergency Management &
Homeland Security Agency and authorize the Mayor to execute the
necessary documents. (Approved by Public Safety Committee
October 31, 2017)
Attachments
14.Motion to approve resolution of Support regarding the
Georgia Department of Human Services, Division of Aging Services,
Yellow Dot Program. (Approved by Public Safety Committee October
31, 2017)
Attachments
15.Motion to approve receiving input from the Sheriff and Chief Judges on
the matter of reducing the penalty for possession of small quantities
marijuana to a paid fine oppose to incarceration before a draft
amendment to the ordinance is prepared. (Approved by Public Safety
Committee October 31, 2017)
Attachments
16.Motion to approve a request from the Richmond County Sheriff's
Office to purchase a Patrol Boat for use by the agency from Augusta
Marine. ($48,098.00) (BID #17-219A) (Approved by Public Safety
Committee October 31, 2017)
Attachments
17.Motion to approve a request from Richmond County Juvenile Court
for the Commission and Mayor to accept the modification of these
revised and new MOU providers for the fifth Criminal Justice
Coordinating Council (CJCC) Juvenile Justice Grant Award of
$300,000.00. We have included the MOU agreement with CSI, Inc. for
$145,000.00 remaining in the grant ending on June 30, 2018 and the new
MOU with Family Connections of Columbia County, Inc., (CCCC) for
$84,000 to provide Aggression Replacement Training® (ART) groups
beginning October 1, 2017 to June 30, 2018. Richmond County has
provided evidence-based programs this grant year beginning July 1st to
ten (10) youth qualifying males and female juveniles charged with
serious felonies and property crimes. (Approved by Public Safety
Committee October 31, 2017)
Attachments
ENGINEERING SERVICES
18.Motion to approve and adopt proposed Ordinance changes to the
Augusta, Georgia code section 3-5-95.11 to create a Residential Parking
Permit Program. (Approved by Commission October 17, 2017-second
reading)
Attachments
19.Motion to approve and authorize Augusta Engineering Department Attachments
(AED) to submit, accept and receive Georgia Department of
Transportation (GDOT) Financial Assistance from GDOT FY2018 Local
Maintenance and Improvement Grant (FY18 LMIG) for Road &
Drainage Improvements & maintenance projects as requested by AED.
(Approved by Engineering Services Committee October 31, 2017)
20.Motion to approve the deeds of dedication, maintenance agreements,
and road resolutions submitted by the Engineering and Augusta Utilities
Departments for Granite Hill, Section Four, Phase One, including utility
and access easement up to detention pond (pond not being dedicated).
(Approved by Engineering Services Committee October 31, 2017)
Attachments
21.Motion to approve entering into a Construction Contract Agreement
with the Georgia Department of Transportation for the Marvin Griffin
Road Improvements Project (PI #0015580) as requested by AED.
(Approved by Engineering Services Committee October 31, 2017)
Attachments
22.Motion to determine that Woodsedge Drive, as shown on the attached
plat has ceased to be used by the public to the extent that no substantial
public purpose is served by it or that its removal from the county road
system is otherwise in the best public interest, and to receive as
information the results of the public hearing held regarding the issue of
abandonment pursuant to O.C.G.A. §32-7-2, with the abandoned
property to be quit-claimed to the appropriate party(ies), as provided by
law and an easement to be retained over the entire abandoned portion for
existing or future utilities as directed by Augusta Engineering
Department and Augusta Utilities Department and adopt the attached
Resolution. (Approved by Engineering Services Committee October
31, 2017)
Attachments
23.Motion to determine that Canterbury Drive as shown on the attached
map has ceased to be used by the public to the extent that no substantial
public purpose is served by it or that its removal from the county road
system is otherwise in the best public interest, pursuant to O.C.G.A. §32-
7-2, with the abandoned property to be quit-claimed to the appropriate
party(ies), as provided by law and an easement to be retained over the
entire abandoned portion for existing or future utilities as directed by
Augusta Engineering Department and Augusta Utilities Department.
(Approved by Engineering Services Committee October 31, 2017)
Attachments
24.Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-087-00-0) - 1938 Alabama Road. (Approved by
Engineering Services Committee October 31, 2017)
Attachments
25.Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-088-00-0) - 1934 Alabama Road. (Approved by
Engineering Services Committee October 31, 2017)
Attachments
26.Motion to authorize condemnation to acquire title of a portion of
property for permanent easement (Parcel 099-3-003-00-0) - 2601 Mike
Padgett Highway. (Approved by Engineering Services Committee
October 31, 2017)
Attachments
PETITIONS AND COMMUNICATIONS
27.Motion to approve the minutes of the regular meeting held October 17,
2017, and Special Called meeting held October 31, 2017.
Attachments
APPOINTMENT(S)
28.Motion to approve the appointment of Mr. Erich Braun to the General
Aviation Commission - Daniel Field representing District 1. (Requested
by Commissioner Bill Fennoy)
Attachments
****END CONSENT AGENDA****
AUGUSTA COMMISSION
11/7/2017
AUGUSTA COMMISSION
REGULAR AGENDA
11/7/2017
(Items 29-33)
ADMINISTRATIVE SERVICES
29.Motion to adopt the Authorizing Resolution providing for approval of an
Intergovernmental Redevelopment Contract, between Augusta and the
Urban Redevelopment Agency of Augusta, in support of the Foundry
Place project to be leased by the Urban Redevelopment Agency of
Augusta to Columbia Ventures, LLC pursuant to the referenced Lease
Agreement, subject to incorporating the modification terms contained in
the October 2, 2017 Columbia Ventures, LLC memorandum to Augusta.
(Requested by Commissioner Bill Fennoy)
Attachments
PUBLIC SAFETY
30.Report from the Augusta Fire Department relative to the
department's First Responders process/procedure to address/treatment of
drug overdoses. (Requested by Commissioner Bill Fennoy)
Attachments
APPOINTMENT(S)
31.Approve Commission Consensus Appointments to the Richmond County
Board of Health. (Requested by Commissioner Sammie Sias)
1. Dr. Cheryl Newman to fill unexpired term of Ms. LeValle-Evans;
2. Ms. Merian Robinson. (Stoney Medical, Dental and Pharmaceutical
Society)
3. Ms Patricia Lynch-Hayes. (10th District of GA Nurses Association)
Vacant
4. Mr. W. Stewart Flanagin, At-large member
Attachments
32.Motion to approve adding the position of Warden of the Richmond
County Correctional Institution (RCCI) as a member of the E911
Advisory Board.
Attachments
LEGAL MEETING
A. Pending and Potential Litigation.
B. Real Estate.
C. Personnel.
33.Motion to approve execution by the Mayor of the affidavit of
compliance with Georgia's Open Meeting Act.
Upcoming Meetings
www.augustaga.gov
Commission Meeting Agenda
11/7/2017 2:00 PM
Invocation
Department:
Department:
Caption:Elder Daniel Gant, Pastor, Mason Chapel Church of God in
Christ.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Employee of the Month
Department:
Department:
Caption: Congratulations! Mr. Melvin Tyler, Planning and Development
Department October 2017 Employee of the Month.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
November 7, 2017
Mayor Davis:
The Employee Recognition Committee has selected Melvin Tyler as Augusta, Georgia’s
Employee of the Month for October 2017.
Melvin Tyler has been employed with the City of Augusta since May 22, 2015. He transferred from the
Marshal’s Office to Planning and Development on 10/24/2015.
Since joining Planning and Development, he has progressed at a rapid pace. Within ten weeks, he
completed two separate International Code Council Certifications in the fields of plumbing and
mechanics. This is a great achievement and warrants recognition at the highest level.
Shortly before the arrival of Hurricane Irma, Planning and Development began the urgent and arduous
task of relocating the fleet vehicles to a location with higher ground. It was crucial to find a secure
location to avoid potential wind and flood damage from the storm. The department had come to an
agreement with a big box store to move the fleet vehicles to their lot. While the relocation of these
vehicles was to have begun on a Sunday afternoon, Mr. Tyler, with conviction and ingenuity, set out to
secure an even higher location that was much closer to the original site than the big box store. He then
oversaw the transfer of the fleet vehicles and ensured that all was handled properly and efficiently. Had
this endeavor not been handled as well as it was and the fleet vehicles not protected from storm
damage, the financial loss could have resulted in hundreds of thousands of dollars.
Mr. Tyler is an excellent employee and asset to the department. He is willing to assist with any office
functions to promote unity among the workforce. During his off time, he coaches baseball, football and
several other sports for Augusta Richmond County Parks and Recreation. He has collaborated with
community leaders and businesses to help raise money for such things as children’s uniforms and social
events. Working with the youth and giving back to the community are among Mr. Tyler’s personal
passions. Mr. Tyler’s future endeavors include continued professional growth in Planning and
Development and pursuing his bachelor’s degree in Mechanical Engineering at Georgia Southern
University.
Based on this nomination, Melvin Tyler’s outstanding contribution to the Augusta Planning and
Development Department and his service to Augusta, Georgia, the Employee Recognition
Committee would appreciate you joining us in recognizing Melvin Tyler as the October 2017
Employee of the Month.
Thank you,
The Employee Recognition Committee:
Sylvia Williams, Committee Chairperson
Judith Sink
Takiyah A. Douse
Edeltraud Coleman
Linda Jones
Carla S. Moore
Commission Meeting Agenda
11/7/2017 2:00 PM
Zellena Jennings
Department:
Department:
Caption:Ms. Zellena Jennings regarding over grown vacant lot not being
maintained.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
AGEI\{DA ITEM RE,QUEST FORM
Commission meetings: First and third Tuesdays of each month -2:00 p.m.
Committee meetings: Second and last Tuesdays of each month - l:fi) p.m.
Commission/Committee: (Please check one and insert meeting date)
J Commission f ate of Se "tinegralE+& A / 7
Date of Meeting_Public Safety Committee
Public Services Commiffee
Administrative Services Committee
Engineering Services Committee
Finance Committee
Date of Meeting
Date of Meeting
Date of Meeting
Date of Meeting
Contact Information for IndividuaUPresenter Making the Request:
Telephone Number:
Fax Number:
E-Mail Address:
opic of_Discussion to be placed on the
Ms. Lena J. Bonner
Clerk of Commission
Suite 220 Municipal Building
535 Telfair Street
Augusta, GA 30901
Telephone Number: 706-821-1820
Fax Number: 706-821-1838
E-Mail Address: nmorawski@augustaga.gov
Requests may be faxed, e-maild or ddivered in per on and mu$ be recdved in the Clerk's
Oflice no later than 5:(X) p.m. on the Wednesday preceding the Commission meeting and
5:00 p.m. on the Tuesday preceding the Committee meeting of the following week A five-
minute time limitwill be allowed for presentations.
Please send this request form to the following address:
Commission Meeting Agenda
11/7/2017 2:00 PM
Mr. Brian Green
Department:
Department:
Caption:Mr. Brian Green regarding the feasibility of a South Augusta
Villa.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Nancy Morawski
From:
Sent:
To:
Subject:
Brian Green < briangreen2009@gmail.com>
Wednesday, November 0L,20L7 3:19 PM
Nancy Morawski
Request to appear before the county commission board
I am requesting to appear before the Richmond County Commission. The subject I will speak on, is the
feasibility of a South Augusta Villa.
Brian Green
706-627-38s9
Commission Meeting Agenda
11/7/2017 2:00 PM
5-Row Bleachers – Diamond Lakes, Eisenhower, Fleming Complex and Portable Bleachers with Safety
Cages, Bid Item 17-230
Department:Recreation and Parks
Department:Recreation and Parks
Caption:Motion to approve award of the contract for Bid Item 17-230, 5-
Row Bleachers at Diamond Lakes, Eisenhower, Fleming Complex
and Portable Bleachers with Safety Cages to the low, responsive
bidder, Bleachers International for $194,152. (Approved by
Public Services Committee October 31, 2017)
Background:Augusta Recreation and Parks Department’s current 5-Row
Bleachers do not comply with the International Building Code
(IBC): After researching the issue about the bleachers, it is the
Law Department’s professional opinion that any of the bleachers
that are over three rows must have the basket and guards for safety
reasons. This opinion is based upon the fact that Augusta has
adopted the International Building Code in the Augusta Code,
Section 7-1-16. By doing so, it made all of the non-conflicting
code sections of the IBC applicable to Augusta, Georgia. The
International Building Code (IBC) requires that guardrails be
provided if the rear of the bleacher is higher than 30”: IBC
CODE SECTION 1003 Section 1003.2.12 Guards. Guards shall
be located along open-sided walking surfaces, platforms and
landings, which are, located more than 30 inches above the floor
or grade below. Guards shall also be located along sides of
stairways and landings that are located more than 30 inches above
the floor or grade below. IBC CODE SECTION 1008 Section
1008.13.3 Guards at the end of aisles. A fascia or railing system
complying with the guard requirements of Section 1003.2.12 shall
be provided for the full width of the aisle where the foot of the
aisle is more than 30 inches above the floor or grade below. The
railing shall be a minimum of 36 inches high and shall provide a
minimum 42 inches between the top of the rail and the nosing of
the nearest tread.
Analysis:Request for Bids (RFB), Bid Item 17-230 was issued for purchase,
deliver and installation up to 36 sets 5-row bleachers with safety
Cover Memo
enclosures not less than 27' long nor more than 33' long; purchase
up to four (4) sets of 5-row, 15' long bleachers which are portable.
Of the six bids received, five were deemed noncompliant.
Financial Impact:Funds are available in SPLSOT VI and SPLOST VII to satisfy the
requirements of this bid.
Alternatives:Approve award of the contract of Bid Item 17-230, 5-Row
Bleachers at Diamond Lakes, Eisenhower, Fleming Complex and
Portable Bleachers with Safety Cages to the low bidder, Bleachers
International of Denver, CO, for the lump sum price of $194,152.
2. Move no action
Recommendation:1. To approve award of the contract for Bid Item 17-230. 5-Row
Bleachers at Diamond Lakes, Eisenhower, Fleming Complex and
Portable Bleachers with Safety Cages to low bidder, Bleachers
International of Denver, CO; Bleacher International met all
requirements through Procurement and Compliance. They also
submitted the lowest bid at $5,240 per bleacher for 33ft permanent
bleachers and $2,756 per bleacher for 15ft portable bleachers. It is
our recommendation to award the bid for 36 sets of 33ft 5-row
permanent bleachers with safety cages and 2 sets of 15ft 5-row
portable bleachers with safety cages.
Funds are Available
in the Following
Accounts:
Funds are available to cover the cost through SPLOST VI 328-06-
1110 and SPLOST VI 329-06-1110.
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Alcohol Application
Department:Planning & Development
Department:Planning & Development
Caption:Motion to approve New Ownership Application: A.N. 17-30:
request by Ritaben Patel for a retail package Beer & Wine
License to be used in connection with Super Express #1 located at
3150 Wrightsboro Rd. District 2. Super District 9. (Approved by
Public Services Committee October 31, 2017)
Background:The is a New Ownership Application. Formerly in the name of
Jamila Fazalbhoy.
Analysis:The applicant meets the requirement of the City of Augusta's
Alcohol Ordinance.
Financial Impact:The applicant will pay a pro-rated fee of $665.00.
Alternatives:
Recommendation:The Planning & Development recommends approval. The
R.C.S.O. recommends Approval.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Law
Administrator
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Alcohol Application
Department:Palnning & Development
Department:Palnning & Development
Caption:Motion to approve New Ownership Application: A.N. 17-31:
request by Ritaben Patel for a retail package Liquor License to be
used in connection with H&S Wine & Spirits located at 3150
Wrightsboro Rd Suite B. District 2. Super District 9. (Approved
by Public Services Committee October 31, 2017)
Background:This is a New Ownership Application. Formerly in the name of
Jamila Fazalbhoy.
Analysis:The applicant meets the requirements of the City of Augusta's
Alcohol Ordinance.
Financial Impact:The applicant will pay a pro-rated fee of $1,665.00.
Alternatives:
Recommendation:The Planning & Development recommends approval. The
R.C.S.O. recommends approval.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Law
Administrator
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Alcohol Application
Department:Planning & Development
Department:Planning & Development
Caption:Motion to approve New Location: A.N. 17-33: A request by John
Canouse for an on premise consumption Liquor, Beer, & Wine
License to be used in connection with Augusta Entertainment, LLC
dba Stars & Strikes located at 3238 Wrightsboro Rd. There will be
Sunday Sales. District 2. Super District 9. (Approved by Public
Services Committee October 31, 2017)
Background:This is a New Location for a family entertainment center to include
bowling, arcade and restaurant.
Analysis:The applicant meets the requirements of the City of Augusta's
Alcohol Ordinance.
Financial Impact:The applicant will pay a pro-rated fee of $3,660.00
Alternatives:
Recommendation:The Planning & Development recommends approval. The R.C.S.O.
recommends approval.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Law
Administrator
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Alcohol Ordinance Amendment
Department:Planning & Development
Department:Planning & Development
Caption:Motion to approve amendments to the Augusta, Georgia Code,
Title 6, Chapter 2 Article 1, Alcoholic Beverages, Section 6-2-2
Definitions, Section 6-2-8 Days Sales Allowed, and Section 6-2-
77 License for Single Event, so as to provide for the designation
of one Sunday during the calendar year that bars are authorized to
be open, and approve resolutions designating the selected Sunday
for 2017 and 2018. (Approved by Public Services Committee
October 31, 2017)
Background:The Augusta Commission at their regular meeting on September
19, 2017 approved changing the one Sunday during the year bars
can be open to Sunday, December 31, 2017 (New Year’s Eve).
The attached ordinance amends the Alcohol Ordinance to provide
that by resolution the Commission can designate one Sunday a
calendar year that bars can be open.
Analysis:The Augusta Commission previously approved an amendment to
the Alcohol Ordinance, under the terms of a Georgia State law
passed in 2014, that provided bars could be open on any Sunday
that occurs during the St. Patrick’s Day holiday period (March 16
through March 18). The State subsequently amended the St.
Patrick’s holiday law to provide that municipalities by resolution
or ordinance may designate one Sunday during the year when bars
can remain open. The Commission recently approved Sunday,
December 31, 2017 as the Sunday bars can be open in the year
2017…. This agenda item amends the Alcohol Ordinance to
provide for designating one Sunday bars can be open, the hours
for selling alcohol, the application process, and the fee amount.
Also included is a resolution for approving New Year’s Eve,
Sunday, December 31 as the date for 2017, and a resolution for
approving Super Bowl Sunday, February 4 as the date for 2018.
Financial Impact:Approximately $60,000 if all bars participate. Cover Memo
Alternatives:N/A
Recommendation:Approve
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
ORDINANCE NO. ___________
AN ORDINANCE TO AMEND THE AUGUSTA, GEORGIA CODE, TITLE 6,
CHAPTER 2, ARTICLE 1, ALCOHOLIC BEVERAGES, SECTION 6-2-2 DEFINITIONS;
SECTION 6-2-8 DAYS SALES ALLOWED; SECTION 6-2-77 LICENSE FOR
SINGLE EVENT; SO AS TO PROVIDE FOR THE DESIGNATION OF ONE SUNDAY
DURING THE CALENDAR YEAR THAT BARS ARE AUTHORIZED TO BE OPEN; TO
PROVIDE FOR THE HOURS OF SALE; TO PROVIDE THE APPLICATION PROCESS; TO
AMEND SECTION 6-2-67 LICENSE FEE, SO AS TO ESTABLISH THE LICENSE FEE; TO
PROVIDE AN EFFECTIVE DATE; TO REPEAL CONFLICTING ORDINANCES, AND FOR
OTHER PURPOSES.
NOW, BE IT ORDAINED BY THE AUGUSTA, GEORGIA COMMISSION AND IT IS
HEREBY ORDAINED BY THE AUTHORITY OF SAME THAT THE COMMISSION WILL
AMEND THE ALCOHOL ORDINANCE, AND BY RESOLUTION DESIGNATE ONE
SUNDAY A CALENDAR YEAR THAT BARS ARE AUTHOTHORIZE TO BE OPEN.
SECTION 1. TITLE 6, CHAPTER 2, ARTICLE 1, ALCOHOLIC BEVERAGES, SECTION 6-
2-2 DEFINITIONS, IS HEREBY AMENDED BY DELETING SUBSECTION (z) IN ITS
ENTIRETY AS SET FORTH IN “EXHIBIT A” HERETO.
SECTION 2. TITLE 6, CHAPTER 2, ARTICLE 1, ALCOHOLIC BEVERAGES, SECTION 6-
2-8 DAYS SALES ALLOWED, IS HEREBY AMENDED BY DELETING THIS SECTION IN
ITS ENTIRETY, AND NEW SECTION 6-2-8 IS HEREBY INSERTED TO REPLACE THE
REPEALED SECTIONS AS SET FORTH IN “EXHIBIT A” HERETO.
SECTION 3. TITLE 6, CHAPTER 2, ARTICLE 1, ALCOHOLIC BEVERAGES, SECTION 6-
2-77 LICENSE FOR A SINGLE EVENT, IS HEREBY AMENDED BY DELETING THIS
SECTION IN ITS ENTIRETY AND NEW SECTION 6-2-77 IS HEREBY INSERTED TO
REPLACE THE REPEALED SECTIONS ASSET FORTH IN “EXHIBIT A” HERETO.
SECTION 4. TITLE 6, CHAPTER 2, ARTICLE 1, ALCOHOLIC BEVERAGES, SECTION 6-
2-67 IS HEREBY AMENDED BY DELETING THIS SECTION IN ITS ENTIRETY, AND NEW
SECTION 6-2-67 IS HEREBY INSERTED TO REPLACE THE REPEALED SECTIONS AS
SET FORTH IN “EXHIBIT A” HERETO.
SECTION 5. This ordinance shall become effective upon adoption.
SECTION 6. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Adopted this ___ day of ___________, 2017.
__________________________ Attest:______________________________
Hardie Davis, Jr. Lena J. Bonner, Clerk of Commission
As its Mayor Seal:
CERTIFICATION
The undersigned Clerk of Commission, Lena J. Bonner, hereby certifies that the foregoing
Ordinance was duly adopted by the Augusta, Georgia Commission on ________________, 2017
and that such Ordinance has not been modified or rescinded as of the date hereof and the
undersigned further certifies that attached hereto is a true copy of the Ordinance which was
approved and adopted in the foregoing meeting(s).
______________________________
Lena J. Bonner, Clerk of Commission
Published in the Augusta Chronicle.
Date: _________________________
First Reading ______________________
Second Reading ______________________
“EXHIBIT A”
Sec. 6-2-2. Definitions.
The following are definitions of terms as used in this Chapter:
(z) St. Patrick’s Day holiday period means March 16 through March 18 of each year.
(z) deleted
Sec. 6-2-8. Days sales allowed.
(a) Consumption On-Premise licensees hereunder are allowed to sale on Sundays during
the St. Patrick’s Day holiday period (as defined) during the hours specified in 6-2-15; otherwise On-
Premise licensees shall not permit the sale of any alcoholic beverage on Sunday (except as provided in
sections 6-2-15 and 6-2-16).
(a) Off-Premise Consumption licensees hereunder may permit the sale of packaged
alcoholic beverages seven-days a week as provided in sections 6-2-14. Furthermore, no liquor store may
be open Christmas Day.
(b) Election days. Pursuant to the delegation of authority granted to Richmond County by Act No.
750 (House Bill No. 247) approved April 10, 1985, amending Official Code of Georgia Annotated section
3-3-20(b)(B), the sale by wholesale and retail of alcoholic beverages, to wit: distilled spirits, wine and
malt beverages, shall be lawful during the polling hours of any election; however, nothing herein shall
authorize the sale of alcoholic beverages within two hundred fifty (250) feet of a polling place during
such time as the polls are opened.
(c) Notwithstanding the foregoing, no alcoholic beverages of any kind shall be sold
during any day or part of the day when the sale of said alcoholic beverage is prohibited by state law.
(e) On all days and times that the sale of alcoholic beverages is prohibited by state law,
consumption-on-premises licensees shall not open for any purposes (except as provided in sections 6-2-15
and 6-2-16 except with the prior written permission and consent of the Richmond County Sheriff's
Department, for maintenance or similar purposes.
(d) On all days and times that the sale of alcoholic beverages is prohibited by state law,
consumption-on-premises licensees shall not open for any purposes (except as provided in sections 6-2-
15, 6-2-16, 6-2-52, and 6-2-77) except with the prior written permission and consent of the Richmond
County Sheriff's Department for maintenance or similar purposes.
Sec. 6-2-77. License for single event; occasional license.
(a) Application may be made for an occasional, single event license for on-premises
consumption of alcoholic beverages as follows:
(1) For-profit applicant. If the applicant is an agent for a for-profit business, the applicant
must possess a valid license for the sale of alcoholic beverages for on-premises
consumption under this chapter.
(2) Nonprofit applicant. An agent for a non-profit organization may apply for a single
event license whether or not he/she possesses a license under this chapter.
(3) Sunday Sales Single Event. Restaurants as defined in Section 6-2-52 with a current
Alcohol License that are not otherwise licensed for Sunday sales, are allowed to apply for
a single event Sunday sales license two (2) times in a calendar year.
(3a) Sunday Sales Single Event for Bars. In accordance with O.C.G.A. 3-3-7, Augusta
Georgia Commission by adoption of a resolution may authorize the sale of alcoholic
beverages for consumption on the premises from 12:30 P.M. until 12:00 Midnight on one
Sunday during each calendar year that shall be designated in such resolution.
1. The sale of alcoholic beverages is authorized for consumption on-premises in bars on
the designated Sunday between the hours of 12:30 P.M. until 12:00 Midnight;
provided further that said premises shall be vacated of all persons, including
employees, by no later than 1:30 A.M. Monday.
(4) Advertisement. All persons, firms or corporations desiring to engage in the sale of
alcoholic beverages for a single event shall give notice of their intention to make such
application by advertisement in form prescribed by Augusta-Richmond County Director
of Planning & Development. Advertising, as referred to in this section, means there shall
be a sign posted thirty (30) days prior to the hearing of the application in a prominent
position on the property (e.g., front window where it can be read from the road); also, all
new license applicants shall be required to advertise three (3) times in the legal gazette
(Augusta Chronicle) before applications are heard by the Commission. Advertising in the
legal gazette shall be during the thirty-day period prior to the hearing of the application
by the Commission. Before the application is presented to the Commission, the applicant
shall furnish proof that the advertisement has been completed as required hereinabove.
The above provisions regarding advertisement shall not apply to an application to sell
alcoholic beverages in or on any museum, cultural center or facility, public park,
playground, or building owned or operated by Augusta-Richmond County, Georgia Port
Authority, or at a location on Riverwalk which has been designated as An Alcohol
Beverage Location by Riverwalk Augusta, nor shall the above provisions regarding
advertisement apply to events held by non-profit organizations or restaurants or bars
applying for a single event Sunday sales license.
(5) Form; information to be provided. Application for a single event license must be
made in writing as provided in section 6-2-58 hereof; provided, however, that no plat
shall be required, but the approximate distance of the premises for which the license is
being applied from the nearest church, school, library, public recreation area, housing
authority property, or alcohol treatment center shall be stated on the application.
(6) Date due; fee. The application for a license hereunder shall be made at least one (1)
month prior to the date of the scheduled event and / or in sufficient time to allow for
advertisement, as required herein. For-Profit applicants and Non-Profit applicants shall
pay a regulatory fee of one hundred dollars ($100.00) per day of the event by certified
check, cashier's check or money order made payable to the Augusta-Richmond County
Commission. A bar or restaurant shall pay a regulatory fee of two hundred fifty dollars to
three hundred twenty-five dollars ($250.00 - $325.00) per Sunday Sales Single Event by
certified check, cashier's check or money order made payable to the Augusta-Richmond
County Commission. (Fees are subject to change / contact the Planning & Development
Department for the current fee schedule.)
(7) Occasional, single event. The event for which the occasional, single event license is
sought by the For-Profit and Non-Profit applicants may not exceed seven (7) calendar
days in duration and the licensee shall not be eligible for an occasional event license
more frequently than once every three (3) months, except in any area in which no
advertisement is necessary pursuant to Section (a) (3) above. A Sunday Sales Single
Event restaurant licensee shall not be eligible for an occasional single event license more
frequently than two (2) times in a calendar year.
(8) Untrue or misleading information; material omissions. Any untrue or misleading
information contained in, or material omission left out of, an application for a license
hereunder shall be cause for the denial of the license; and, if any license has been granted
under such circumstances, the license shall be subject to revocation.
(9) Grounds for denial. In addition to the other grounds provided in this Ordinance for
the denial of a license, an application for an occasional, single event license may be
denied on one or more of the following grounds:
a. The location or terrain for the proposed event may be hazardous to a person
consuming alcoholic beverages.
b. The number of anticipated attendants of the event renders the consumption of
alcoholic beverages a danger to the safety of the public.
c. The proposed location for the event is in an area in which numerous incidents
requiring police intervention occurred.
d. The applicant is not eligible for a license under this Ordinance pursuant to
sections 6-2-61, 6-2-62 and/or 6-2-63.
e. There is evidence from this or other jurisdictions that the activities combined
with consumption of alcoholic beverages, may cause a danger to the safety of the
attendants or the public.
(10) Procedures.
a. The Director of Planning & Development shall forward the application to the
Recreation Department Director, if applicable, and then forward to the Richmond
County Sheriff, who shall indicate his approval or disapproval of the application.
The Sheriff may condition the approval of such application on the licensee's
providing a sufficient number of security personnel for the protection of the
public during the event. If approved, the application shall be forwarded back to
the Planning & Development Department for processing as stated in 6-2-77(a) 4.
b. For such applications from Non-Profit organizations and Sunday Sales Single
Event Restaurant and Bar applicants, the Director of Planning & Development
Department with a written approval report from the Sheriff, and Recreation
Department if applicable, shall grant the license. The Director of Planning &
Development shall issue the license. The license shall be valid for the location,
date(s) and time(s) specified therein only.
c. If the Sheriff and / or Recreation Department if applicable, denies the
application, the Director of Planning & Development shall promptly notify the
applicant in writing of the reason(s) for the denial.
(11) Appeal. An applicant may appeal the denial of a license under this subsection by
filing written notice with the Augusta-Richmond County Commission Chief
Administrative Officer within five (5) days of receiving notice of the denial. The
Commission shall hear the evidence and make its determination at its next regularly
scheduled meeting. Notice of the next scheduled meeting of the Commission shall be
served on the applicant at least three (3) days prior to the meeting, unless the three-day
period is waived by the applicant. The Commission shall receive evidence in the manner
provided in section 6-2-74 herein and shall decide to uphold or reverse the decision of the
Chairman-Mayor of Augusta-Richmond County.
Sec. 6-2-67. License fee.
(a) When due and payable. When a license has been approved and granted, the same shall be paid
for by certified check, cashier's check or money order for the full amount of the license fee.
(b) Amount. Each applicant shall pay a license fee as set out herein:
(Fees are subject to change / contact the Planning & Development Department for the
current fee schedule.)
Retail and Wholesale: Fee
(1) Class A: Consumption on-premises beer $625.00 - $665.00
(2) Class B: Retail beer $665.00
(3) Class C: Consumption on-premises wine $625.00 - $665.00
(4) Class D: Retail wine $665.00
(5) Class E: Consumption on-premises liquor $3,115.00 - $3,330.00
(6) Class F: Retail liquor $3,330.00
(7) Class G: Brewer, Manufacturer of Malt Beverages $665.00
(8) Class H: Brewpub Operator $665.00
(9) Wholesale liquor $6,050.00
(10) Wholesale beer $665.00
(11) Wholesale wine $135.00
(12) Sunday sales $1,245 - $1,330.00
(13) Alcohol Catering $340.00 - $365.00
(14) Second Alcohol License $625.00 - $665.00
Restaurants and Bars (On-premise consumption)
Occupancy Load / Fee
1 – 100 101 – 200 201 – 300 301+
Beer $625 $635 $650 $665
Wine $625 $635 $650 $665
Liquor $3115 $3175 $3235 $3330
Sunday Sales $1245 $1270 $1295 $1330
Alc. Catering $340 $345 $355 $365
Second Alcohol Lic. $625 $635 $650 $665
Sunday Sales Single $250 $275 $300 $325
Event Restaurant and Bars
(c) Proration. The full license fee must be paid for a license issued prior to July 1 of the license
year. One-half (1/2) of the full license fee shall be paid for a license issued after July 1 of the license year.
(d) Refund. In case of the revocation or surrender of such license before the expiration of the
calendar year, the holder thereof shall not be entitled to receive any refund whatsoever.
RESOLUTION
RESOLUTION AUTHORIZING BARS TO BE OPEN ON ONE SUNDAY IN THE CALENDAR YEAR.
WHEREAS, the Augusta, Georgia Commission (the Commission) has determined that in
accordance with the Official Code of Georgia Annotated Section 3-3-7, Bars will be authorized to sale
alcoholic beverages for consumption on the premises on one designated Sunday in the calendar year.
WHEREAS, the Commission approved amendments to the Augusta Alcohol Ordinance that
allows for Sunday Sales Single Event for Bars upon resolution by the Commission designating the
date; that provides the hours of sale for alcoholic beverages; that provides the hour the premises is
to be vacated; and that provides the associated fee.
WHEREAS, it is necessary and appropriate for a resolution to be adopted by the Augusta
Commission designating the calendar date for the year 2017 that bars can be open.
NOW, THEREFORE, BE IT RESOLVED by the Augusta, Georgia Commission,
Section 1: The Augusta Commission is designating December 31st as the Sunday for 2017
that bars can apply for the Sunday Single Sales Event license.
Duly adopted by the Augusta, Georgia Commission this _______ day of _____________, 2017
_____________________________________________
Hardie Davis, Jr.
As its Mayor
Resolution
Bars Sunday Sale
Page 2 of 2
CERTIFICATION
The undersigned Clerk of Commission, Lena J. Bonner, hereby certifies that the foregoing Resolution
was duly adopted by the Augusta, Georgia Commission on __________________________, 2017 and
that such Resolution has not been modified or rescinded as of the date hereof and the undersigned
further certifies that attached hereto is a true copy of the Resolution which was approved and
adopted in the forgoing meeting(s).
__________________________________________________________
Lena J. Bonner, Clerk of Commission
RESOLUTION
RESOLUTION AUTHORIZING BARS TO BE OPEN ON ONE SUNDAY IN THE CALENDAR YEAR.
WHEREAS, the Augusta, Georgia Commission (the Commission) has determined that in
accordance with the Official Code of Georgia Annotated Section 3-3-7, Bars will be authorized to sale
alcoholic beverages for consumption on the premises on one designated Sunday in the calendar year.
WHEREAS, the Commission approved amendments to the Augusta Alcohol Ordinance that
allows for Sunday Sales Single Event for Bars upon resolution by the Commission designating the
date; that provides the hours of sale for alcoholic beverages; that provides the hour the premises is
to be vacated; and that provides the associated fee.
WHEREAS, it is necessary and appropriate for a resolution to be adopted by the Augusta
Commission designating the calendar date for the year 2018 that bars can be open.
NOW, THEREFORE, BE IT RESOLVED by the Augusta, Georgia Commission,
Section 1: The Augusta Commission is designating February 4th as the Sunday for 2018
that bars can apply for the Sunday Single Sales Event license.
(Super Bowl LII will be held at U.S. Bank Stadium in Minneapolis)
Duly adopted by the Augusta, Georgia Commission this _______ day of _____________, 2017
_____________________________________________
Hardie Davis, Jr.
As its Mayor
Resolution
Bars Sunday Sale
Page 2 of 2
CERTIFICATION
The undersigned Clerk of Commission, Lena J. Bonner, hereby certifies that the foregoing Resolution
was duly adopted by the Augusta, Georgia Commission on __________________________, 2017 and
that such Resolution has not been modified or rescinded as of the date hereof and the undersigned
further certifies that attached hereto is a true copy of the Resolution which was approved and
adopted in the forgoing meeting(s).
__________________________________________________________
Lena J. Bonner, Clerk of Commission
Commission Meeting Agenda
11/7/2017 2:00 PM
Arcade License
Department:Planning & Development
Department:Planning & Development
Caption:Motion to approve New Ownership application: A.N. 17-32: A
request by John Canouse for a Game Room/Arcade License to
be used in connection with Augusta Entertainment, LLC dba Stars
& Strikes located at 3238 Wrightsboro Rd. District 2. Super
District 9. (Approved by Public Services Committee October
31, 2017)
Background:This is a New Location for a family entertainment center to
include bowling, arcade and restaurant.
Analysis:The applicant meets the requirements of the City of Augusta's
Arcade and Amusement Game Ordinance.
Financial Impact:The applicant will pay a regulatory fee and occupation tax based
on gross revenue.
Alternatives:
Recommendation:The Planning & Development recommends approval. The
R.C.S.O. recommends approval.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Land and Water Conservation Fund Grant
Department:Recreation and Parks
Department:Recreation and Parks
Caption:Motion to approve authorization for Augusta to submit a Pre-
Application with the Georgia Natural Resources Department for
2017 Land and Water Conservation Funds grant. (Approved by
Public Services Committee October 31, 2017)
Background:The Land and Water Conservation Fund is a federal grant program
established by Congress in 1964. The program statewide is
administered through the Georgia Department of Natural
Resources. Competitive grants require a 50-50 local match, with a
minimum project cost of $25,000 and a maximum total project
cost of $200,000 inclusive of the grant.
Analysis:Upon submittal and review of the pre-application, Augusta will be
notified in the spring of 2018 if our pre-application will score high
enough to submit a formal application. Augusta’s project will
focus on planned improvements at Lake Olmstead Regional Park.
Financial Impact:This is a 50-50 match grant. The maximum project cost is capped
at $200,000, with an Augusta match, if approved for the
maximum amount, would be $100,000.
Alternatives:1. To Approve the Resolution to authorize the Augusta to submit a
pre-application for LWCF grant administered through the Georgia
DNR. 2. Move No Action.
Recommendation:1. Move to Approve.
Funds are Available
in the Following
Accounts:
If grant approved: 328061110 and 329061110
Cover Memo
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Land and Water Conservation Fund Grant
Caption
Motion to approve authorization for Augusta to submit a Pre-Application with the
Georgia Natural Resources Department for 2017 Land and Water Conservation Funds
grant.
Background
The Land and Water Conservation Fund is a federal grant program established by
Congress in 1964. The program statewide is administered through the Georgia
Department of Natural Resources. Competitive grants require a 50-50 local match, with a
minimum project cost of $25,000 and a maximum total project cost of $200,000 inclusive
of the grant.
Analysis
Upon submittal and review of the pre-application, Augusta will be notified in the spring
of 2018 if our pre-application will score high enough to submit a formal application.
Augusta’s project will focus on planned improvements at Lake Olmstead Regional Park.
Financial Impact
N/A
Alternatives
1. To Approve the Resolution to authorize the Augusta to submit a pre-application
for LWCF grant administered through the Georgia DNR.
2. Move No Action.
Recommendation
1. Move to Approve.
FUNDS ARE AVAILABLE IN ACCOUNT:
N/A
Summary - LWCF Grant Pre-Application
october 26,20L7
Proiect Summary
This rehabilitation project includes the installation of an ADA-accessible picnic shelter and accessibility
upgrades within Lake Olmstead Park, a historic urban park located adjacent to the Augusta Central
Business District and within the Augusta Canal National Heritage Area. According to the recently
completed Recreation and Parks Master Plan (August 2016) and accompanying public survey, 64Yo of
residents who had accessed our park system within the previous year had visited Lake Olmstead, which
was rated as one of the City's top three most important parks. Projects occurring at Lake Olmstead Park
have the ability to reach a majority of our users and raise expectations for facilities across our park
system. This park serves a diverse range of neighborhoods and user groups, and it is home to two of the
City's most affordable and most popular public rental facilities, the Julian Smith Casino and the Julian
Smith Barbeque Pit. However, the park lacks a picnic shelter that could be used to host outdoor
gatherings. The picnic shelter would complement the existing park features, and bring a new option and
source of activity to the park. ln doing so, it would accomplish one of the outstanding objectives put
forth in the Lake Olmstead Park Master Plan (October, 1996). ln addition, the project will be done in
coordination with an ongoing ADA compliance study the City is performing on all of our parks. As an
ADA accessible facility, the picnic shelter will bring updates to better connect residents of all ages and
abilities with the park amenities and outdoor resources.
The City of Augusta Recreation and Parks Department is seeking funding to construct a 25 x 50' covered
picnic shelter, including site work, utilities, concrete work, eight picnic tables, and one ADA compliant
water fountain. The total estimated cost of this project is S108,982, and the requested grant funding
amount is 554,491. The remaining50% of the project cost will be provided from local SPLOST funding
that has already been allocated for park improvements in Lake Olmstead Park. This grant funding will
enable the rehabilitation of this existing park to provide improvements that meet modern accessibility
standards.
Item Quantity Estimated
Brrdset Details citation
Picnic Table-6' vinyl coated 8 s 16,800.00 2 ADA tables lost is Der master olan
concrete work L75 s 875.00
additional sq ft here is to connect the
shelter to the exsiting walkway; shelter
concrete included in shelter cost
:ost is per master plan
utilities (water and electric)s s,000.00
shelter t s 80,0o7.s0 25x50'Park Master Plan cites S32,003k for
2Ox2O'
n ater fountain 1 $s,ooo.00
lrash recepticles 1 s 1,300.00 cost is Der master olan
Proiect Cost S 108.982.so
Srant Request s 54,491.25
Lake Olmstead Picnic Shelter
Lcaend
-
Interstele
I .ail other value+
I Auguda cenat tlational HeritageArea
] centrat BusinPs5 oidricl
I ftoposed Shelter Size and Location
* Bojedtuea
Commission Meeting Agenda
11/7/2017 2:00 PM
Nuisance Ordinance Code Amendment
Department:Planning & Development
Department:Planning & Development
Caption:Motion to approve amendments (Ordinance) to the Augusta,
Georgia Code, Title 7, Chapter 2, Article 1 Nuisances, Section 7-
2-2 Nuisances Prohibited so as to clarify the responsibility
of property owners with regard to occupied
properties. (Approved by Commission October 17, 2017 -
second reading)
Background:The Nuisance Code is not clear in stating that property owners are
responsible for maintaining their parcel and the portion of the
adjoining public right-of-way between the parcel and the street.
Analysis:The proposed code amendment will clarify the responsibility of
owner’s of occupied property with regard to maintaining their
parcel and the portion of the adjoining public right-of-way
between the parcel and the street.
Financial Impact:N/A
Alternatives:Do not approve.
Recommendation:Approve
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Cover Memo
ORDINANCE NO. ___________
AN ORDINANCE TO AMEND THE AUGUSTA, GEORGIA CODE, TITLE 7,
CHAPTER 2, ARTICLE 1, NUISANCES; SECTION 7-2-2, NUISANCES - PROHIBITED,
SO AS TO CLARIFY THAT OWNERS OF OCCUPIED PARCELS ARE REQUIRED TO
MAINTAIN THE PARCEL AND THE PORTION OF THE ADJOINING PUBLIC RIGHT-OF-
WAY BETWEEN THE PARCEL AND THE STREET; TO PROVIDE AN EFFECTIVE DATE;
TO REPEAL CONFLICTING ORDINANCES, AND FOR OTHER PURPOSES.
NOW, BE IT ORDAINED BY THE AUGUSTA, GEORGIA COMMISSION AND IT IS
HEREBY ORDAINED BY THE AUTHORITY OF SAME THAT IT IS A VIOLATION OF
AUGUSTA, GEORGIA CODE TO NOT COMPLY WITH THE ADOPTED CODE AS STATED
IN THE REGULATIONS HEREWITH, AS FOLLOWS:
SECTION 1. TITLE 7, CHAPTER 2, ARTICLE 1, NUISANCES, SECTION 7-2-2 IS
HEREBY DELETED BY STRIKING THIS SECTION IN ITS ENTIRETY, AND NEW
SECTION 7-2-2 IS HEREBY INSERTED TO REPLACE THE REPEALED SECTION AS
SET FORTH IN “EXHIBIT A” HERETO.
SECTION 2. This ordinance shall become effective upon adoption.
SECTION 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Adopted this ___ day of ___________, 2017.
__________________________ Attest:______________________________
Hardie Davis, Jr. Lena J. Bonner, Clerk of Commission
As its Mayor Seal:
CERTIFICATION
The undersigned Clerk of Commission, Lena J. Bonner, hereby certifies that the foregoing
Ordinance was duly adopted by the Augusta, Georgia Commission on ________________, 2017
and that such Ordinance has not been modified or rescinded as of the date hereof and the
undersigned further certifies that attached hereto is a true copy of the Ordinance which was
approved and adopted in the foregoing meeting(s).
______________________________
Lena J. Bonner, Clerk of Commission
Published in the Augusta Chronicle.
Date: _________________________
First Reading ______________________
Second Reading ______________________
“EXHIBIT A”
NUISANCES
[ARTICLE 1 IN GENERAL]
Sec. 7-2-1. Generally.
The following conditions, in addition to those conditions recognized as such pursuant to State
law, are hereby declared to constitute nuisances: substances emitting noxious odors, carcasses of
animals, establishments or structures emitting noxious odors, vapors, or fumes; deposits of
waste-water; litter, trash, refuse, rubble, and rubbish of all sorts; overgrown vegetation, weeds,
brambles, brush or thickets; malfunctioning private sewage disposal systems; dilapidated
buildings open to unauthorized or unlawful entry; hazardous trees; all articles, conditions, acts,
or things whatsoever, kept, maintained or permitted by any person to pose a threat of injury,
inconvenience, or annoyance to the public; and, all pursuits followed or engaged in, behavior or
conduct performed by any person, which pose a threat of injury, annoyance, or inconvenience to
the public.
Sec. 7-2-2. Nuisances—Prohibited.
It shall be unlawful for any owner or occupant of any parcel of land lying within Augusta-
Richmond County to cause or permit any nuisance to be created or remain upon such premises;
and it shall be the duty of such owner or occupant to abate and remove any such nuisance from
such premises. No owner or occupant of any parcel of land lying within Augusta-Richmond
County shall permit, cause, keep, maintain, or engage in any activity constituting a nuisance, as
defined herein, or as otherwise defined by the law of the State of Georgia, within Augusta-
Richmond County.
Sec. 7-2-2. Nuisances—Prohibited.
(a) It shall be unlawful for any owner or occupant of any parcel of land lying within Augusta-
Richmond County to cause or permit any nuisance to be created or remain upon such premises;
and it shall be the duty of such owner or occupant to abate and remove any such nuisance from
such premises. No owner or occupant of any parcel of land lying within Augusta-Richmond
County shall permit, cause, keep, maintain, or engage in any activity constituting a nuisance, as
defined herein, or as otherwise defined by the law of the State of Georgia, within Augusta-
Richmond County.
(b) No owner of any occupied parcel of land within Augusta, Georgia shall permit or allow the
existence of excessive accumulation or untended growth of weeds, undergrowth or other plant
life to grow to a height exceeding twelve (12) inches upon any parcel of land, or on the area
between the parcel of land and the street curb.
Sec. 7-2-3. Nuisances—Notice.
Whenever an inspector of the Planning & Development Department or any other duly
constituted inspecting authority of the Augusta-Richmond County Commission determines that a
nuisance exists on any premises within Augusta-Richmond County, he may serve written notice
upon the owner or occupant, or his agent having control thereof, to abate such nuisance. The
notice shall, at a minimum, set forth the nature of the nuisance and the fact that the same
constitutes a nuisance upon said property; describe the premises where the nuisance is alleged to
exist or to
have been committed; and specify a reasonable period of time for the abatement of said nuisance.
Said notice shall be served upon the owner or occupant of the premises by personal delivery, or
by mailing said notice, certified mail, return receipt requested, addressed to the owner, occupant
or agent. If service cannot be effectuated in such a manner after diligent effort to do so, service
may be made by conspicuously posting the notice in or about the premises described in the
notice, or by causing such notice to be published once in a newspaper of general circulation in
Augusta-Richmond County. If the owner or occupant is a corporation, notice may be served
upon an officer, a manager or person in charge of any local business office of such corporation,
or the corporation's registered agent for service of process.
Sec. 7-2-4. Nuisances—Procedures in the event nuisance not abated when specified.
In the event that such nuisance is not abated by the owner or occupant within the time specified,
then the owner and/or occupant may be cited for violation of this chapter.
Sec. 7-2-5. Nuisances—Penalties.
Violations of the provisions of this chapter shall be punished as provided in section 1-6-1 of this Code.
Commission Meeting Agenda
11/7/2017 2:00 PM
City Advertising Campaigns
Department:
Department:
Caption:Motion to approve tasking the Administrator's Office to send out
the appropriate memos to departments relative to consistency
regarding advertising/ marketing campaigns/efforts to include
"The City of Augusta" regarding events sponsored and paid
for by Augusta, GA. (Approved by Administrative Services
Committee October 31, 2017)
Background:
Analysis:How to effectively advertise our events and/or services is
something that should constantly be re-evaluated.
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Friedman Library Solar Array
Department:Augusta Richmond County Public Library System (ARCPLS)
Department:Augusta Richmond County Public Library System (ARCPLS)
Caption:Motion to approve award for installation of a 60 kW photovoltaic
solar array on Friedman Branch Library to Hannah Solar of
Atlanta, GA in the amount of $112,746.00. (RFP 17-213)
(Approved by Administrative Services Committee October 31,
2017)
Background:Earlier this year, the Augusta Commission approved installation of
a 60kW photovoltaic array on the roof of the Friedman Branch
Library based upon the Augusta Richmond County Public Library
System (ARCPLS) receiving an award of a rebate of up to
$50,000 for the installation. RFP 17-213 was issued to receive
proposals from qualified firms to perform the installation.
Analysis:Proposals were received from two firms on July 27th. The firms
qualifications were reviewed and scored. The firm with the higher
score, True Energy, submitted a pricing component that was over
the project budget. A pricing breakdown was requested for
clarification and it was determined that the True Energy had
included additional scope that was not requested or needed.
Clarification of our expectations was issued to both vendors and
they were asked to provide their best and final pricing based upon
the desired scope. True Energy’s best and final was less than the
original price, but still exceeds the project budget. The cost of the
proposal submitted by Hannah Solar is within the project budget
and they are well qualified to do the installation.
Financial Impact:The cost of the solar installation is $112,746.00
Alternatives:1. Approve award for installation of a 60 kW photovoltaic solar
array on Friedman Branch Library to Hannah Solar of Atlanta, GA
in the amount of $112,746.00 2. Do not approve the purchase.
Cover Memo
Recommendation:Approve award for installation of a 60 kW photovoltaic solar
array on Friedman Branch Library to Hannah Solar of Atlanta, GA
in the amount of $112,746.00
Funds are Available
in the Following
Accounts:
This project is funded through SPLOST designated for Friedman
Library. The State of Georgia has awarded ARCPLS a $50,000
rebate for this installation which will be returned to the SPLOST
allocation for the Library.
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Request for Proposal
Request for Proposals will be received at this office until Thursday, July 27, 2017 @ 11:00 a.m. for furnishing:
RFP Item # 17-213 Install Roof Mounted Solar Array for Augusta, GA – Central Services Department
RFPs will be received by: The Augusta Commission hereinafter referred to as the OWNER at the offices of:
Geri A. Sams, Director
Augusta Procurement Department
535 Telfair Street - Room 605
Augusta, Georgia 30901
RFP documents may be viewed on the Augusta Georgia web site under the Procurement Department ARCbid. RFP
documents may be obtained at the office of the Augusta, GA Procurement Department, 535 Telfair Street – Room 605,
Augusta, GA 30901.
A Mandatory Pre Proposal Conference will be held on Wednesday, July 12, 2017 @ 10:00 a.m. in the Procurement
Department, 535 Telfair Street, Room 605. A Mandatory Site Visit will follow.
All questions must be submitted in writing by fax to 706 821-2811 or by email to
procbidandcontract@augustaga.gov to the office of the Procurement Department by Thursday, July 13, 2017, @
5:00 P.M. No RFP will be accepted by fax, all must be received by mail or hand delivered.
No RFP may be withdrawn for a period of 60 days after bids have been opened, pending the execution of contract
with the successful bidder(s). A 100% performance bond and a 100% payment bond will be required for award.
Request for proposals (RFP) and specifications. An RFP shall be issued by the Procurement Office and shall include
specifications prepared in accordance with Article 4 (Product Specifications), and all contractual terms and conditions,
applicable to the procurement. All specific requirements contained in the request for proposal including, but not
limited to, the number of copies needed, the timing of the submission, the required financial data, and any other
requirements designated by the Procurement Department are considered material conditions of the bid which are
not waivable or modifiable by the Procurement Director. All requests to waive or modify any such material condition
shall be submitted through the Procurement Director to the appropriate committee of the Augusta, Georgia
Commission for approval by the Augusta, Georgia Commission. Please mark RFP number on the outside of the
envelope.
Proponents are cautioned that acquisition of RFP documents through any source other than the office of the
Procurement Department is not advisable. Acquisition of RFP documents from unauthorized sources places the
proponent at the risk of receiving incomplete or inaccurate information upon which to base his qualifications.
Correspondence must be submitted via mail, fax or email as follows:
Augusta Procurement Department
Attn: Geri A. Sams, Director of Procurement
535 Telfair Street, Room 605
Augusta, GA 30901
Fax: 706-821-2811 or Email: procbidandcontract@augustaga.gov
GERI A. SAMS, Procurement Director
Publish:
Augusta Chronicle June 15, 22, 29, July 6, 2017
Metro Courier June 21, 2017
OFFICIAL
VENDORS Attachment
"B"E-Verify SAVE
Form
Addendum
1
Addendum
2 Original Copies
6
Fee
Proposal
Hannah Solar, LLC.
1311 Collier Road NW
Atlanta, GA 30318
YES 379609 YES YES YES YES YES YES
True Energy USA, LLC.
3840 Windermere Pkwy STE 403
Cummings, GA 30041
YES 1121140 YES YES YES YES YES YES
RFP Opening Item #17-213
Install Roof Mounted Solar Array
for Augusta, GA- Central Services Department
RFP Due: Thursday, July 27, 2017 @ 11:00 a.m.
Total Number Specifications Mailed Out:
Total Number Specifications Download (Demandstar):
Total Electronic Notifications (Demandstar):
Mandatory Pre Proposal Conference Attendees:
Total packages submitted:
Total Noncompliant:
Page 1 of 1
Hannah Solar, LLC.
1311 Collier Road NW
Atlanta, GA 30318
True Energy USA, LLC.
3840 Windermere Pkwy
STE 403
Cummings, GA 30041
A. Package submitted by the deadline Pass/Fail PASS PASS
B. Package is complete (includes requested
information as required per this solicitation)Pass/Fail PASS PASS
C. Overall Quality of RFP
(concise and to-the-point) 50 45.0 46.7
1. Technical Approach 100 90.0 91.7
2. Financial Responsibility 100 50.0 60.0
3. Project Management 95 85.0 90.0
4. Key Personnel & Staff 90 86.7 86.7
5. Organizational Qualifications 75 85.0 78.3
6. Optional Interview (Potential Bonus Points)10
D. TOTAL 470 396.7 406.7
1. Project Specific Experience 100 91.7 96.7
2. Past performance on projects similar in nature 50 46.7 45.0
3. Evidence that firm fully understands Owner’s
goals and project scope. 50 44.7 46.7
Total 200 183.0 188.3
Within Richmond County 10
Within CSRA 8
Within Georgia 6 6 6
Within SE United States (includes AL, TN, NC, SC,
FL) 4
All Others 2
TOTAL 10 6 6
Lowest Fees 10 10
Second 8 2
Third 6
Forth 4
Fifth 2
TOTAL 10 10 2
H. References 10 10 10
Total 750 650.7 659.7
Evaluation Sheet RFP Opening Item #17-213
Install Roof Mounted Solar Array
for Augusta, GA- Central Services Department
RFP Due: Thursday, July 27, 2017 @ 11:00 a.m.
Vendors
Total (Total Possible Score 750)
Second Round Elimination (Total Points 50) (MUST ACHIEVE 35 POINTS FOR CONTINUED CONSIDERATION)
(MUST PASS FOR CONTINUED CONSIDERATION)
RANKING - First Round Elimination
Proximity to Area (Total Points 10)
F. Proximity to Area
Scope of Services (Total Points 200)
Proposer’s Overall Ability to Provide the Services (Total Points 470)
Cost/Fee Consideration
Reference(s) (Total Points 10
Procurement DepartmentRepresentative:___Nancy Williams ____________________
Evaluator: Cumulative Date: 8/16/17
Procurement Department Completion Date: 8/16/17
Internal Use Only
Note: Respondent/Offeror(s) receiving 600 or more points will be invited to do presentations
Submittal and Quality of RFP
D. Narrative
E. Scope of Services
G. Proximity to Area
Quality of RFP
True Solar USA
3840 Windemere Pkwy
Cumming, GA 30041
Solar Crave
4145 Thruman Road
Hampton, GA 30228
RETURNED MAIL
White Electrical
1730 Chattahoochee Ave
Atlanta, GA 30318
Energy Consulting Group
One Overton Park
3625 Cumberland Blvd, Suite 1525
Atlanta, GA 30339
RETURNED MAIL
Solar Art Group
50 Royal Oak Drive
Rossville, GA 30741
Okefenokee Solar, Inc
2889 Bob Bowen Road
Blackshear, GA 31516
SolarFlex Technologies – Watkinsville
3001 Monroe Hwy, Suite 200 B
Watkinsville, GA 30677
RETURNED MAIL
Southern View Energy
5022 BU Bowman Dr
Buford, GA 30518
RETURNED MAIL
All American Solar Services
P.O. Box 554
Murrayville, GA 30564
RETURNED MAIL
Solar Energy USA
7565 Industrial Court
Alpharetta, GA 30004
Georgia Solar Power Company
56 Hamby Road
Marietta, GA 30061
RETURNED MAIL
Hannah Solar
2135 Defoor Hills Road
Atlanta, GA 30318
RETURNED MAIL
Solarsmith LLC
601 Wild Turkey Rd
Savannah, GA 31406
Ecomech Geothermal Heating and Air
Service
1100 Peachtree St NE
Atlanta, GA 30309
RETURNED MAIL
One World Sustainable – Savannah
229 East 50th St
Savannah, GA 31405
RETURNED MAIL
OneWorld Sustainable – Lexington
206 South Gilmer St
Lexington, GA 30648
RETURNED MAIL
Coastal Solar Power Company
229 W. General Screven Way
Suite M4
Hinesville, GA 31313
Solar USA
3355 Lenox Road
Atlanta, GA 30326
RETURNED MAIL
US Power Solutions
5028S Atlanta Road SE, Ste 28
Atlanta, GA30080
RETURNED MAIL
Summit Green Solutions
3070 Damascus Road
Augusta, Ga 30909
RETURNED MAIL
UNITED RENEWABLE ENERGY
5895 SHILOH ROAD, SUITE 104
ALPHARETTA GA 30005
INMAN SOLAR
320 N HIGHLAND AVENUE NE
ATLANTA, GA 30307
RETURNED MAIL
SUNSHINE SOLAR
4880 LOWER ROSWELL RD, STE 165-
341
MARIETTA, GA 30068
SOLAMERICA ENERGY LLC
1819 PEACHTREE ROAD
SUITE 100
ATLANTA, GA 30309
STRATA SOLAR
50101 GOVERNORS DRIVE
SUITE 280
CHAPEL HILL NC 27517
HANNAH
1311 COLLIER ROAD
ATLANTA, GA 30318
UNITED RENEWABLE ENERGY
5895 SHILOH ROAD, SUITE 104
ALPHARETTA GA 30005
RBA ENERGY COMPANY
P. O. BOX 14517
SAVANNAH, GA 31416
RADIANCE
916 JOSEPH E LOWERY BLVD NW
ATLANTA, GA 30318
Kellie Irving
Compliance Rick Acree
Central Services Takiyah Douse
Central Services
RFP Item# 17-213
Install Roof Mounted Solar Array
for Augusta, GA Central Services
Department
RFP Due: Thurs, 7/27/2017@ 11 a.m.
RFP Item# 17-213
Install Roof Mounted Solar Array
for Augusta, GA Central Services
Department
Mailed: 6/15/2017
Commission Meeting Agenda
11/7/2017 2:00 PM
2017 EMA Agreement & Grant in the amount of $7,975.00
Department:EMA
Department:EMA
Caption:Motion to approve the agreement and acceptance of grant funds
in the amount of $7,975.00 from the Georgia Emergency
Management & Homeland Security Agency to purchase training
material & equipment and authorize the Mayor to execute the
required documents. (Approved by Public Safety Committee
October 31, 2017)
Background:The Richmond County Emergency Management Agency (EMA)
trains Richmond County citizens to assist in disaster related
incidents in their neighborhoods until First Responders, Police, or
medical help arrives. The citizens are the first to know of the
damage in their area and are trained to provide initial basic
assistance. These individuals are members of CERT (Community
Emergency Response Teams) and prior to any member being
included in the program, they must successfully complete CERT
classes.
Analysis:The grant funds allow the purchase of training materials and
supplies to continue with the CERT training classes. CERT
members are trained to provide immediate assistance in their area
prior to the arrival of officially trained personnel in a disaster
incident.
Financial Impact:none
Alternatives:none
Recommendation:Approve the agreement and acceptance of the grant in the amount
of $7,975.00 from the Georgia Emergency Management &
Homeland Security Agency and authorize the Mayor to execute
the required documents.
Cover Memo
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Agreement with the GA Emergency Management & Homeland Security Agency and acceptance of the
Grant Award in the amount of $58,000.00
Department:Fire Department
Department:Fire Department
Caption:Motion to approve the Agreement with the Georgia Emergency
Management & Homeland Security Agency and approve
acceptance of the grant award in the amount of $58,000.00 (Grant
No.: SHO17-092) and authorize the Mayor to execute all required
documents. (Approved by Public Safety Committee October
31, 2017)
Background:If an active shooter event happens in Augusta, Georgia, First
Responders do not have adequate protection to provide a rapid
response to the injured. Not having adequate protection, such as
ballistics vents and helmets, our First Responders will have to
wait longer to enter the area to provide firefighting services and
more importantly, to provide medical attention or evacuation for
any injured.
Analysis:Approving this Agreement and acceptance of the grant award will
allow the fire department to purchase ballistic vests, ballistic
helmets and EMS side packets tactical. This will allow our
firefighters/EMS and Special Operations Units to respond more
readily to active shooter incidents after a "warm zone" is
established by the Sheriff's office in order to save lives.
Financial Impact:none
Alternatives:none
Recommendation:Approve the Agreement with the Georgia Emergency
Management & Homeland Security Agency and approve
acceptance of a grant award in the amount of $58,000.00 (Grant
No.: SHO17-092) and authorize the Mayor to execute all required
documents.Cover Memo
Funds are Available
in the Following
Accounts:
220
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Applicaton and acceptance of grant from GA Emergency Management & Homeland Security Agency
Department:EMA
Department:EMA
Caption:Motion to approve the application and acceptance of grant funds
in the amount of $33,329.00 from Georgia Emergency
Management & Homeland Security Agency and authorize the
Mayor to execute the necessary documents. (Approved by Public
Safety Committee October 31, 2017)
Background:Georgia Emergency Management & Homeland Security Agency
offers grant funds to assist communities in providing Emergency
Management programs. This application and acceptance of the
grant funds would require a 50/50 match in the amount of
$33,329.00 from Augusta to receive a like amount of $33,329.00
grant money from the Georgia Emergency Management &
Homeland Security Agency.
Analysis:This application and acceptance of the grant funds would assist in
funding for Crisis Track Software, Storm Tracker Software,
Community Emergency Notification System and EMA employee's
salary for 2017.
Financial Impact:$33,329.00 from the county as a 50/50 match
Alternatives:Not approving the application and acceptance of the matching
grant would place the financial burden solely on Augusta,
Georgia, without any assistance from the Georgia Emergency
Management & Homeland Security Agency grant assistance.
Recommendation:Approve the application and acceptance of $33,329.00 grant funds
from the Georgia Emergency Management & Homeland Security
Agency with Augusta matching 50/50 funds and authorize the
Mayor to execute the necessary documents.
Funds are Available Cover Memo
in the Following
Accounts:101039210 5111110
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
GDHS Yellow Dot Program
Department:Augusta's AARP Liaison
Department:Augusta's AARP Liaison
Caption:Motion to approve resolution of Support regarding the
Georgia Department of Human Services, Division of Aging
Services, Yellow Dot Program. (Approved by Public Safety
Committee October 31, 2017)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Last Name:First Name:MI:
Primary Language: Female Male Height:Weight:
Address:City:
Emergency Contact 2:Relationship:Phone:
Primary Doctor: Phone:
Pharmacy:Phone:
EMERGENCY INFORMATION FORMUpdate when your information changes. Review the form at least every six months when you
change the time on your clocks. If you need a new form, scan the code to the left with your
smart phone or visit http://aging.dhs.georgia.gov/yellow-dot-program.
Personal Information Please print legibly.
No Known Allergies
Latex
Reaction:_________________________
X-ray Dyes
Reaction:_________________________
Foods
Type(s):__________________________
Reaction:_________________________
_________________________
Insect Stings
Type(s):__________________________
Reaction:_________________________ Medications
Aspirin
Reaction:_________________________
Penicillin
Reaction:_________________________
Morphine
Reaction:_________________________
Other Medication(s) Type(s):_________________________
_______________________________
Reaction: _______________________
_______________________________
Other Allergies Type(s):_________________________
_______________________________
Reaction:_______________________
DATE
___ /___ /___
Advance Directive, Living Will or POLST (If not in Yellow Dot packet, include document location in the yellow OTHER IMPORTANT
INFORMATION box at the bottom of this page)
Organ Donor
Use of this form is voluntary. By using this form, you understand that first responders
and medical personnel will use this information as they see fit.
Relationship:
State: Zip:
__________________
__________________
_____
__________________
__________________
_____
__________________
__________________
_____
Medical Conditions Indicate all past and present health conditions.
Medical History Check all boxes that apply to you. Please print legibly.
Heart Conditions
Heart Rhythm/AFIB/
Abnormal Heart Rate
Angina/Chest Pain
Defibrillator/Pacemaker
Heart Attack
Date of Last __ /__ /__
Heart Failure/CHF
Heart Valve Replacement
High Blood Pressure
Brain/Nervous System Conditions
Lung Conditions
Auto-Immune Conditions
Hepatitis
Lupus
HIV/AIDS
Myasthenia Gravis
Anxiety
Dementia/Alzheimers
Depression
Multiple Sclerosis
Parkinson's Disease
Schizophrenia
Seizure Disorder
Stroke/TIA
Asthma COPD/Emphysema
Bleeding/Clotting Disorder
Cancer (Type:___________)
Currently Pregnant
Due Date: __/__/__
Diabetes
Dialysis/Kidney
Sickle Cell Disease
Tuberculosis
Last Tetanus Shot
Date: __/__/__
Other_________________
_____________________
Health Habits
Tobacco Use
Type________________________
Alcohol Use
_____times per ______________
Illicit Drug Use
Type(s):_____________________________________________________
Sensory Impairments
Visually Impaired/Blind
Hearing Impaired/Deaf
Emergency Contact 1:
Other Medical Conditions:
Major Surgeries (Types and Date): ____________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
Allergies Indicate all allergies and reactions
(rash, hives, swelling of the face or tongue,
wheezing/trouble breathing, etc.)
Other Important Information: ____________________ _____________________________________________
_____________________________________________
_____________________________________________ _____________________________________________
_______________
Phone:
Medication Dose Directions
Vitamins & Supplements Dose Directions
Medications
Indicate all prescription and over-the-counter medications, vitamins and supplements along
with dose and directions. Update this list whenever your medications change. Add
additional pages if needed. Please print legibly. Example: Aspirin 81mg once daily
Place Your
Most Recent
Photo Here
This document contains
Emergency Information for:
Participant Name
Year of Birth
DATE
___ /___ /___
This Yellow Dot Program is made
possible by the Georgia Department of
Human Services, Division of Aging
Services, the Georgia Department of
Public Health, the Governor’s Office of
Highway Safety and Alliant Georgia
Medical Care Foundation. All information
contained is the sole responsibility of
the participant or participant’s agent.
Enrollment Site
Georgia’s Yellow Dot Program
Frequently Asked Questions
What is Georgia’s Yellow Dot Program?
Georgia’s Yellow Dot program is a free program designed to help first responders
provide life-saving medical attention during that first “golden hour” after a medical
emergency. A Yellow Dot in the driver's side rear window of your vehicle or the "triple
tree" of your motorcycle will alert first responders that vital medical information is
stored in the glove compartment. The Yellow Dot program can also be used in the home
by placing the decal on or beside your front or entry door and placing the packet on your
refrigerator.
Who should use Georgia’s Yellow Dot Program?
Georgia’s Yellow Dot Program can be used by anyone but may be most helpful for:
People with multiple or serious medical conditions
People with severe allergies
Children with special needs
Individuals with dementia who may be prone to driving
I think I’ve seen Yellow Dot in other states. Is this the same program?
The Yellow Dot program began in Connecticut in 2002. Many states have adopted the
program. In other states, the Yellow Dot program is used for motor vehicle crashes.
Georgia has expanded the program to include medical emergencies in the home. The
Georgia Yellow Dot logo was created to look similar to other Yellow Dots so it could be
recognized when you travel in other states.
Is Yellow Dot in my community?
At this time, Yellow Dot is only in two areas: Laurens County and Athens-Clarke County.
These counties are participating in our pilot project and evaluation. Stay tuned to the
website for more information on other sites!
What is the cost for Yellow Dot?
At this time, Georgia’s Yellow Dot program is free for those participating in the
pilot/evaluation project in Laurens and Athens counties.
I’ve seen Yellow Dot for sale online, should I get my materials there?
No, for two reasons:
First, Georgia’s yellow dot is free for those participating in the pilot
program (Laurens and Athens-Clarke Counties, respectively).
Second, only emergency personnel in the piloting counties have been
trained to look for the Yellow Dot and to know where to find your medical
information.
If you order a Yellow Dot packet online but live in a county where your emergency
personnel isn’t trained on the program, it will not be as beneficial to you.
Why can’t I just print off a form and use it if I live in another county?
The program only works if emergency responders and medical personnel at the hospital
are trained to recognize the Yellow Dot decal, look for the form and use the information.
Other counties have not been trained on the program.
Where do I get a Yellow Dot Packet?
Packets can be picked up at local enrollment sites. You can find a list of enrollment sites
at www.aging.ga.gov/yellow-dot-program. New forms can be printed from the website if
you need to update your form.
How can my agency become an enrollment site?
Please email yellowdot.info@dph.ga.gov for information on becoming an enrollment
site.
What type of picture should I use?
Any picture can be used as long as you can clearly identify the person in the picture and
there is only one person in the picture. The best photos have good lighting and a neutral
background so it is easy to identify the person. Also, make sure to choose a photo that
looks like you now, not you 10 years ago. You do not need your entire body in the photo.
In fact, a photo from the shoulders up would work best. If you don’t already have a
photo, the cheapest option is to have someone take a photo for you and either print it at
home or have it printed at a store that prints pictures. You can usually get a single photo
printed for less than $1. You will need to trim the photo to make it fit so be mindful of
that when taking the photo. Don’t get too close. You can also choose to get a passport
photo taken. These photos are a great size for the form but will cost more. Prices vary
but are usually between $10 and $15 dollars. Many stores that print photos offer this
service as well.
I don’t want to put the decal on my car or house. Can I still participate in
Georgia’s Yellow Dot Program?
The decal alerts first responders to look for the form in the glove compartment,
motorcycle saddle bag, or on the refrigerator. If you do not use the decal, there is no
guarantee that first responders will know to look for the form; however, first responders
have been encouraged to look for the form even without the decal if time permits. To
save time and help your emergency responders, it is recommended to use the decal.
I have information that I’m not comfortable putting on the form in case my
family sees it. What should I do?
Emergency responders and medical personnel will use the information that you put on
the form. If information is blank or not checked, they will not assume you do not have
that condition. They will use the protocols they use when they do not have information
available.
Are first responders and medical personnel required to utilize all of the
information I put on my form?
No. First responders will determine the most useful information from your form as it
applies to the situation. They will also determine whether or not to use the forms based
on how up-to-date they feel the forms are.
How often should I update the form?
You should update the form any time your information changes. At a minimum, you
should review the form every six months. Even if you don’t make any changes, be sure to
change the date updated fields on each page.
Where can I get a new form?
You can print a new form at www.aging.ga.gov/yellow-dot-program.
I take a lot of medications. Do I have to write them out?
It is important that medical professionals know the medications you are taking. If you
already have a list of your medications, you can include a copy in your packet instead of
writing them down. You can also ask your pharmacy to print out your medications and
include the copy in your packet.
What do I put in the yellow OTHER IMPORTANT INFORMATION box?
This box is intended for any information you feel is important and was not captured on
the form. Since this box will stand out to emergency responders and medical personnel,
you can also highlight something you feel is especially important even if it is on the
form. If you have an advance directive, living will or Physician Orders for Life-
Sustaining Treatment (POLST) and did not include it in your Yellow Dot packet, you
should list its location here.
The form mentions POLST. What is that?
Physician Orders for Life Sustaining Treatment (POLST) is a medical order that aims to
enable seriously ill patients to designate the treatments they want and to ensure that
those preferences are honored by medical professionals. The POLST is based on a
conversation between you and your health care professional. The POLST conversation is
about: (a) your specific disease, treatment options (including benefits and alternatives),
and what will happen as the disease continues; and (b) your goals of care and values.
After the conversation, your health care professional will fill out a POLST form, marking
what treatments you do or do not want at the end of your life. Since the POLST is a
medical order, once your health care professional signs it, it means that your treatment
wishes will be known and should be followed during a medical emergency, regardless of
where you are. You can read more about POLST at http://www.gapolst.org/ and
http://www.polst.org/.
My community is interested in participating in the Yellow Dot program.
How do we get started?
Currently, there is only funding for the Georgia Yellow Dot Program in the two pilot
counties. If your community is able to purchase the packets, we are happy to work with
you. The goal is for the program to become statewide if the pilot evaluation shows the
program is effective. Therefore, we do not want multiple Yellow Dot programs in the
state that would conflict with one another. If you want to bring Yellow Dot to your
community, we ask that you use the Georgia Yellow Dot materials and do not make any
changes to the form or instructions. You are able to add verbiage giving credit to the
community partners that funded the program. We will put your information on the
Georgia Yellow Dot Program website. Please email yellowdot.info@dph.ga.gov if your
community is interested.
If your question was not answered here, please email
yellowdot.info@dph.ga.gov.
Lena Bonner
From:
Sent:
To:
Cc:
Subject:
Bill Lockett <wlockettO4@comcast.net>
Tuesday, October 11,2077 10:47 AM
Lena Bonner;Janice Allen Jackson
Carole Burrowbridge; Romell Cooks;Alice B Bennett; glyniskey@unitedvoom.com;
jcummings@csrarc.ga.gov; DTylerhorton@aarp.org; Kel lie Irving
Yellow Dot Program
Good Morning Ms, Bonner:
I would like to be placed on the next committee cycle to discuss the Department of Human Services,
Division of Aging Services, Yellow Dot Program and to solicit the support of the governing body in
establishing such program in Augusta.
See link for additional information:
Https : / /aging- georgia. gov/yellow-dot-program
This program requires the support of first responders. I believe the Public Safety Committee would be
appropriate.
Bill Lockett
Sent from my iPad
Commission Meeting Agenda
11/7/2017 2:00 PM
Penalty for possession of small quantities of marijuana
Department:
Department:
Caption:Motion to approve receiving input from the Sheriff and Chief
Judges on the matter of reducing the penalty for possession of
small quantities marijuana to a paid fine oppose to incarceration
before a draft amendment to the ordinance is
prepared. (Approved by Public Safety Committee October 31,
2017)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Atlanta, GA : News List : Mayor Kasim Reed Signs Marijuana Ordinance into Law Page I of 3
News List
Mayor Kasim Reed Signs Marijuana Ordinance into Law
Post Date: loltr/zot7 9:37 AM
Mayor's Office of Communications
55 TrinityAvenue, Suite 25oo . Atlanta, Georgia BoBoB
Anne Torres, Director Jenna Garland, Press Secretary
404-330-6423, office 404-330-6612, office
404-904-2618, cell 404-357-5579, cell
amtorres@atlantaoa.gov ioarland@atlantaqa.gov
FOR IMMEDIATE RELEASE: October \t,2or7
News Release
Mayor Kasim Reed Signs Mari$uana Ordinance into Law
Ordinance changes penalty for possessfon of small quantities of marijuana
ATI-ANTA - The City of Atlanta today announced that Mayor Kasim Reed has signed ordinance r7-O-
rr5z, which reduces the penalty for possession of one ounce of marijuana or less to a maximum of $75,
and instructs the Atlanta Police Department to conduct training on the new penalty provision. The
ordinance eliminates jail time as a penalty for a conviction of possession of one ounce or less under the
City Code. Possession of any amount of marijuana is still illegal under state law, and penalties can
include jail time.
"I am pleased to sign this ordinance, which eliminates jail time as a penalty for a conviction for
possession of less than an ounce, into law. I also want to thank Councilmembers Keisha Lance Bottoms
and Kwanza Hall for their work not only to pass this ordinance, but also to make sure our officers in the
Atlanta Police Department receive the appropriate training," said Mayor Reed. "People of color, young
and low-income people are disproportionately jailed - with sentences up to six months - for possessing
small amounts of marijuana. An average of r,ooo people are arrested each year in Atlanta for
possession only. We needed to change that. I believe our public safety resources are better directed to
stopping and preventing violent crime."
The ordinance does not legalize or decriminalize possession of marijuana. It addresses the disparity in
the punishment for possession. Research shows that white and black Americans use marijuana at
similar levels, yet black Americans are arrested and charged at higher rates.
https ://www. atlantaga. gov/Home/ComponentsA{ewsArlew s/ 81921 1338 t0/12/20t7
Atlanta, GA : News List : Mayor Kasim Reed Signs Marijuana Ordinance into Law Page 2 of 3
During Mayor Reed's two terms in office, the Atlanta Police Department has been focused on reducing
violent crime and getting violent criminals offthe street. Crime has dropped by more than 35 percent
since he took office. The City of Atlanta is a second chance employer, and removed questions related to
prior convictions from emplo5rment applications in zor3. The Atlanta City Council formalized this
policy in zor4 when it passed a 'Ban the Box' ordinance.
In December 2cL4, President Barack Obama announced a Task Force on ztst Century Policing, which
brought law enforcement officers together with experts from academia, youth activists and community
and civil rights leaders to develop recommendations to help strengthen trust between communities and
law enforcement, while also reducing crime rates. The Atlanta Police Department is one of 15law
enforcement agencies recognized for excellence in the adoption of zrst Century Policing principles.
The City of Atlanta has also launched a pilot pre-arrest diversion program, which aims to direct people
to social services rather than the criminal justice system, when the criminal activity is likely related to
untreated mental illness, addiction and extreme poverty. The program launched with multiple agency
partners earlier this year, including Fulton County.
https ://www. atlantaga. gov/F{ome/ComponentsA.lews/lrtrew s I 8 1 921 I 33 8 t0/t2120t7
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17-()-i 152
.,TN ORI}I]\An-(]f ITY COTJNCIL}TT:ilIBIIR KWANZ,{ HAI,I, AS SUBSTITUTED AND AMENDED BY
PI"JI}I,IC SAFET'\' AND I,[G"\L ADMINISTRATION AS AMENDED BY THE ATLANTA CITYcouN[:ll- col]IMl'l'"rlifi AMENDING CHAPTER 106, (OFFENSES AND MISCELLANEOUSPRovlslolis), sIic:TIoN t82, (MARI.|t]ANA) oF Tr{E cITy or ATLANTA coDE oF
0RDIN'TN('I,:S SO .\STO PRI..SCRII}}: :I'H[ ]\IA.XINIU]VI P};NAI,l'Y "TO B[ IMPOSED T}\'TI{El!ItrNl(lll',\l- C'()tiR'I' Or A'ILAN'I;\ FOR A VIOLATION TH[Rf,OFr TO Df,CLARf, THAT A
VIOLAI'ION ]'U}:RI,:0F SIIAI,I, NOT BE PTINISHABLE BY ANY TERM OF IMPRISONMENT; ANDrOR (}'[I.I[]R I,ITRPOSES.(REFIIRITED BACK "I'O PUBLIC SAFETY AND Lf,GAL
AI)]\'IINlS',l'RA',I'ION CONI&IIT'rIiE BY ATLANTA CITY COUNCIL ON 4/17/t7)(HELD ON 1t25fi7\
WHI':lttr,'\S. tlrc Cin' of'Atianta has a:r inlerest in nraintaining the public salbty and general rvellare of
citizcns ol'tlic ('itv ol'Atliiuta and its visitors: and
U'tll:i{}r,\S" ('ltitplcr 106 (ol'lenses *ncl N,liscellaneous Provisions) of the Citl,of Atlanta Code of
Ordil:ances ci.illlair'ls r"luasi-crirnin*i ofl'enscs adopteci ili accordnnce ivith the City's poliuc powers;
WIIIiRI:.'\S" thc \{unicipal Court ot't}re City ol Allanta is granted jurisdiction to try and dispose of cases
rvhcrc a perso,i is cherged rvith lhe possc'ssion ol'one ounce or less of marijuana il'the offense oc{..urred
u'ithin lhc er.rrporate linrits of'such nrunicipalit-v. The.iurisdiction of any such coufi shall be soncurrent
u'itir tlt*,iuriscliction ol'auv utlter courts rvitlrin tlre county having jurisdiction to try and iJispose of such
cascs {( )(.'( i:\ d -11i-.i]-fi(a)): iintl
WI"ll--RI:;\S. anv lincs tn,,l bond fi:rt-eitures arising tioru the prosecution ol such cmes shall he retained
b1'the C'itr i(X'GA $ j6-j3-6(b)): anrl
\\ill[:Itli,rS" uttrrctttlr tlicrc is urt spccilic punishnrenr prescribcd lirr vio]ation of Cit,v of Atlanta Cocle
106-llil rrliiclt proltibits titc possession ol-one ouncc or less oI'nrarijuana: antj
WI-llrl{l:/\S. irsl.:ail a violution ol'(his section is punishable in accordance with Section l-8 ol'the City
ttl'r\tlatltrt (liidc ril'()rdinances u,ltich provides that a pcrson convictecl ol'a rriolation thereof'shall be
prrnislrerl trr ltllttctio{crec*dinsSl.(XXl.t"X).imprisonnrentlbratemlnotexceedingsixlnonths;and
wllERIiAS, it is thc dcsire ril''thc Atlanta C'in,Council tr: specilically provide that a person convicred ol
a violation ti'scctir:n l()6-182 shall he punislretl b.v a line not exceeding $75.00. and shall not be
punishablc lrr a Lcrn: ol'anr. irnprisrlmrcnl.
]'IIE CITY (-OTiNCII, OF 'TIIL: (TTY OF ATLANTA. CEORGIA. I{ERI][r}- ORDAINS. ASFOI.I,O\\iS:
SHCTIQN l; l'lut Chaptcr 106. .{rticlc lV. Division
Ordinances sirrll hr lmendeil such that it shall reacl as
bold lbnt end pernranent clelelions in strikeor:t lclrt):
i. Section 181 ol'the City r;t'Allanta Code ol'
lollorvs (with pcmtanent additions undcrlined in
Sec. l()6-lti2. - \larilr-iarra.
[t shall hc uitliiulirl tiri'lurv l']crs()l lr) l)()ssess one ounce or less ol'm*rijuanau,ithin the cotporate limits
ol' tlie citi . .\n\ l]crson tiruncl guilty of violating this section shall be punishcd b!' a fine not exceeding
$75.00.-1uril :rhatl n{rl bc pun iuplsoninqrI lbr an : suhjee++@in
set'{itxr"l*{11 prpf ilicrl thnt tnv detcrtelant c}rru'gr-d rvith posscssion ol'one ounce or less ot'rnariiuana shall
hc cntitled ott rei.1ues1 to lrlve the case againsl such def'endant transten'ecl to the coufi having ger:eral
tnisdcntcrn,.rr iirrisdiction in the counly u'herein the alleged ofl'ense ocourred.
SL.('llQltj: l'hat rll triiinanccs::nd pans o{'rrrdinances in contlict herc*'ith are herc'by waivt-"d to the
extcnt ol'iirc crrnllict onlr .
$LellQN l:-.fhu the \4unicipal ("lctk is
codillcd rersiorr ol"Chaptc'r 106. including
shall anrencl thcnr to incluelc this ordinarrce.
instruct*d to retain all legislative history rel'erences in the
Editor's notesi and shall not delete any such references. but
S-1l-t:"l"lllN -l: llrat lhc .\tlenla l'olier: Dcparlrucnl nrat' implerr:ent a rnalrdatr:r1, training curriculum that
u'ill aeielruss th* ditterenccs betteen the C'it,v ol'i\tlaltta ordinance and State larv rvith respect tc)
ttrari.jrrlnt possession. itrrrst. dctention and prt'rsecution.
A true copy,ADOPTED as amended by the Atlanta City Councit
ftlZd-trr"i ls.R,."*$Aur,- ,l * {: lrs&r-Municipal Clerk - j ;
ocT 02, 2017
ocT 10,20't7
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Marijirana us(i Cirrinq Ilre!rrrnncy citn be harnrful t() y()ur
baby's h*;iith. T!re cL,,r:-rrr;ilr in rri;rrrjuana iin partit.ular,
telr;ri-ryCrr,r:ann;ri,ririol or fHC) pass throuqh yoitr system
lo ylrrrr i.r;l.rv .irrrJ .afi r-1e giiiiv*lv aff*r:l your bai:y's
cleveloptri:r'r 1.. i
Althouqh n"tor.e research is rr*eded to better understand
how nrariju;lrra nray dffert ynu aricl your baby durirrg
preEnan(y, lho {errtr:rs ior Dis*.ase Control arrd
Preventiorr (CDL) r+citm;ttends nUainst usinq niatijudna
dr:ring y{rLir f)reqnail(y.
ffitrhat i$rtr gh* g:cltwmt&eN l"tealt$"1 eff*cts of
usEfi q 1', I;t rijj{s il /t,\ c{ttalrtg ffi y presnancy?
" Sorlr rus{ri}rch iiroivs thal usinq rnarijr.rarra wlrile you
are pregnill"tl rrfi {ituii{: lrealtlr proi:lems in n*wborns*
includrnr; lci.r, hrrth wcirJht .tnd rlev*loprnental
problrirrt. "'!
. Bre:ill',irrri nr.iriju,tnl srnr_:ke r:ll *lstr i:e i:ad fr:r yoit
ancj vi:ur i:,iiry. 1,1;rr Ijuarr,: :rrr;Jkr h,ri rrt;,rrry r;f thc sarn*
chenric;iis as ti:l:acr-o snroke and nray incre;lse the
clr,rncts ii,lr der.;elt,L-.rnerrlai 6:r*blerris in your baby.,r,]
(an using m*rijuxu*,d*ring my',,
p reg ne n cy n e gstlvely.,i*p,$ n{}iffi
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, Researclr slrows nrarijuana use during preEnancy may
make it hard for your child to pay attention or to learn,
tlrese issues rrray only become noticeable as your child
grows c,lder.r-?
Does using mariiuana affect
hrs*stfesdi*$?',: ' ,' ,.,ii ,,"'
" Cliemicals from marijuana can be passed to your
baby througlr breast milk. THC is stored in fat and is
slowly releaserJ over time, meaning an infant could be
exposed for a longer period of time.
. Hi:wever. data on the effects of marijuana exposure
to the infant through breastfeeding are limited and
conflicting.
. Io limit potential risk to the infant, breastfeeding
mothers should reduce or avoid rnarijuana use,rr, rr-16
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tt: ri:L:rJ$,,"1 ,;r vin.;.
Becarise tjrivl-,.-J i: ti:.:li rl i,.jtli'tir-)ri activil,/, it's e.lsy to
fr:r"gei lrcl,.n,,yl,Lr re.:ii"v n1l.i5t stry alert to rl;y i*ie. Wlrile
il nr.ry si:cr: irk..i,1j,,, i:irriy rJtel on .lLrtorrralil'u,;lrerr
;(rr: ler;rtiriq i;r , ii,.uylinq liiri95, y6,1-;1" lrroiri i: actr..rally
irr lr;r1li,1l,ir.
Drr:tjs ,,trttl ,llct-rly..;l ii:leri.ere "liith tlrs hrain'r ,.rbility to
funqlior r ptrper I y. Tet r.rhyd rr:ca rr rrabi rrr,tl (TFl Ci, wlrich i s
the rnairr oltirre in,Jreciient irr nrarijr.iana, affccts areas of
the i:r'ain lli.ii rontroi vour body's nlovtrT.!*n.a\, bal,,rrrre,
(t-l<-rrd irr;ilriln, {nernory. anci judgrnenl. i
h{*w r.***s ffi*}si"}u,{iffiffi affe{t c*riwing?
Drivinrl rvl'rilc rrrr;:airecl by any rubstan{e, inclueling
rna rij u a rr a, i s r:l a n q ero u s. I'l a rij u a n a, I i ke a i cr:rh o l.
neqativrly ;iftt(is a irurlber c,f skills requiretl for
safe iirivinrl.
, Mari.1u.,ir,r l.llt :,lci,,v vilrlr re;:ctron tirne ;iirrJ abiiity
lu rrt.ri. .1 .,.i ,rl.
' M.rriir.rarrir Ii.!(:r i:ilrl irlparr c.cordirraliuri, disicirt
p(:rcf lltioti. lrH] leaci to ,lt{:trory losl .rrrd clil{ir:ulty
in ilrr,r)i(,r1, i;iving.
, Tli* risk ol inili.rir*d tlrivirig ;issiiciatrd with nrarijuarra
irr ct-rrrri-rin;itiali lvith alcoirol ;,rpperarr to b* qrrlaler than
llr.rt i,.r ,.rtl:r'r by Ii:i:ii.
What do we knaur &hnufimpriiuanq use
frnd th* risk of car crnsh€$?r ,
Although ra"re knr:w marijuana negatively affects a
nLrrnber of skills needed for safe driving. and sonre
studies have shown an association between marijuana
use and car {rashes, it ls unclear whether marijuana use
actually increases the risk of car crashes. This is because:
. An accurate roadside test for drug levels in the body
dorsn't exist.
' Marijuana can remain in a user's system for days or
weeks after last use {depending on how much a person
uses and how often they use marijuana),
. Drivers are not always tested for drug use, especially if
they have an illegal blood alcohol concentration level
because that is enough evidence for a driving-while-
impaired clrarge.
. lVhen tested for sulrstance use lollorving a crash,
clrivers can have both drugs and alcohol or multiple
dn"rgs in their system, making it hard to know wlrich
substarrce contributed n"lore to the crash.
ls there a legal limit for marijuana
impairment tuhile nperatins a vehicle?
Lar,trs vary fronr rtate to state. lf you Intend to drive, the
safest option is not to have any alcohol or drugs in your
system at all.
For more information, visit:
(0('s lmpaired Driving: GEt the Facts; lrttp:i/iruww.
cd{.c;ovr'nrl.lorv*lriciesaf*ty/irrrpaired ririvinqlimpairecl-
;.:ir y. lar: lrhe*f , liti"irl
Drr.lg F;icts: Orugged firiving: httpsti,rwww.dnrgabr:sr.
qr,rvi;:r-: bi!c;i rir;rriltlr*gl..rr- I r,'druclq*d -i! rivi nq
Cannabis; hrlp;#',vr,u',v"s0 iYrl**.qov,iij t<;iic; n nahis
Nxtional H ighway Traffi c Safety Aelminirtration
lmpaired Driving Fact Sheet: lrttp:ii.ovww.r'rhisa-g1ov.r'
lnrlra ir* ri
Offire of Nonr*mrr-runieabl* Diseases, lnjury. * Environmental Health .
Re$er*n***
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i!,1{., , rt' .i...'ri .t,. i 'r,.rya'l
1r.,1;j. :.'.,,r,rl .,il:, ...'rr)(tt"If.
fhe ti:elr yij,rri .rr,; a linrr: cf rapicj growth, exllloration,
enci oirsr.t iJi ti!i., l,rk;r'icl. T;:kitig rirks rr",ilh ney/ l)ehaviors
llrOVidfl-., l';iril ;trrtJ trrir:\ !ilt opF,lOrtunitv i:Cr te.s1. tlrCir skilis
iJilid 3l-1illti,',,,Itd dii( Lrv.tf "vho tht'y:lr{:. Bi.ll_ iC,irrt ti5k
i:*frar;ior.t *iil,alr {)5 r-riililJ rrrilri.i!..t.}na -'can have harrnful
anrJ lr_:lirl-la:tinq i-.ffi,r.is on d t(cn,s h,:nitlr arrd vJ{:ll-beinq.
fijlarijumnx *&d ths teen brain
Utrlike :rrjLilt:. Lhr\ ti-'i'11 lrroir"r i:, .lctivcl,,r iicvelr;prng
enr.j Crttilrr',^.,i{i itr;l i:r fully devf lop1d u*til th* nrif1
l0s. fularijuar:;r lisr ilLtring this period rnay harnr the
developirrg tr:*n i,rrai n.
Itiegatlve *#'**{:n irlrtrr;r *l
" Diflicirlly lliir:kirrg ,rrlrj prrtt lern 5olving.
. Pro[:llrls i,,urith i'iri:*rr:ry anc1 lr:arriir"tg.
. Inlp;iirr:r.l i.<lrlrcJirraliori.
' D i'rrL r.. u i I y i 11,1 i t: l ;) i il i ri iJ,) t te n [i o n. ]r
2017
N*gative *ffec* $n sehgtl and,roii*l lif€,
Mariluana use in adolescence or early adulthood can
have a serious impact otr a teens life.
' l}*elin* in sqho*l perf*rmance. Students who smoke
marijuana may get lower grades and may nrore likely
to drop out of high srhool than their peers rvho do not
u 5e.1
" lficreased risk of mental h*alth issues. Marijuana use
has been linked ti: a range of nrental health problems in
teens such as depression or anxiety.i. Psychosis has also
been seerr in teens at higher risk like those with
a family history.'l
' Impaired driving. Driving while impaired by any
substance, including marijuana. is dangerous.
Marijuarra negatively affects a number of skills
required for safe driving, such as reaction time,
coordirraticn, and concentration.:', I
. Patential for addirtion"u Research shows that about I
in 6 teens who repeatedly use marijuana can become
addicted, wlrich means that they may make
unsuccessf ul efforts to quit using marijuarra or may give
up important activities rvith friends and family in favor of
using marijuana.
For more information, visit:
YRB55 Results, Slides, and MMWff publicatians:
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4:57 PIil
Atlanta City Council
l.? -o- 1152 AMENDTNG CODE SEC?rOII l-06 - 182 (MARI,JUANA)
VIOLATION NOT PUNISI{ABIJE BY IMPRISONMENT
ADOPT AS AMNDED
YEAS: 15
NAYS: O
ABSTENTIONS: 0
NOT VO?ING: l"
EXCUSED: 0
ABSENT O
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Adopted hy tht Atlan!1 glty Council
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MAYOR'S ACTICN
Commission Meeting Agenda
11/7/2017 2:00 PM
Purchase Patrol Boat from Augusta Marine for the Richmond County Sheriff's Office
Department:Richmond County Sheriff's Office
Department:Richmond County Sheriff's Office
Caption:Motion to approve a request from the Richmond County Sheriff's
Office to purchase a Patrol Boat for use by the agency from
Augusta Marine. ($48,098.00) (BID #17-219A) (Approved by
Public Safety Committee October 31, 2017)
Background:The Richmond County Sheriffs Office is responsible for patrolling
the waterways of the Savannah River which are within the
boundaries of Richmond County. The sheriff's office currently
operates a boat, but the boat is aging and inadequate. The Sheriff's
office received equipment from the Department of Defense
reutilization program which became surplus for this agency.
RCSO was able to sell this equipment through fleet management
department with the intent to use funds from the sale to purchase a
patrol boat to meet the needs of the agency. A request for bid was
submitted to the Procurement Department at which time the
department placed the boat out for bid (Bid #17-219A). Upon
receiving a response, Augusta Marine met the specifications for
the patrol boat with a purchase price of $48,098.00.
Analysis:None
Financial Impact:Funds are available from the sale of surplus equipment the agency
had obtained from DOD, no impact to the agency budget.
Alternatives:none
Recommendation:Approve the purchase of a Patrol Boat for the Richmond County
Sheriffs Office from Augusta Marine ($48,098.00) (BID #17-
219A
Funds are Available
in the Following 273031310/5422910 Cover Memo
Accounts:
REVIEWED AND APPROVED BY:
Finance.
Procurement.
Sheriff’s Office
Finance.
Procurement.
Law.
Administrator.
Clerk of Commission
Cover Memo
Sheriff Richard Roundtree
Law Enforcement Center
400 Walton WaY
Augusta, GA 30901
Phone: 706.82L 1000 Fax: 706.821.1064
September L,2OL7
Geri A. Sams, Procurement Director
535 Telfair Street Room 605
Augusta, GA 30901
Dear Ms. Sams,
Ref: Recommendation for Award Bid ltem t7-ZtgA, Patrol Boat for Richmond County Sheriffs Office'
The sheriffs office request Bid 17-21gA awarded to Augusta Marine who submitted the only bid for the
patrol boat and met the specifications.
zuCHMOND COUNTY SHERIFF'S OFFICE
Invitation to Re-Bid
Sealed bids will be received at this office until Tuesday, August 29, 2017 @ 3:00 p.m. for furnishing:
Re-Bid Item #17-219A Patrol Boat for Augusta, Georgia – Sheriff’s Office
Re-Bids will be received by Augusta, GA Commission hereinafter referred to as the OWNER at the offices of:
Geri A. Sams, Director
Augusta Procurement Department
535 Telfair Street - Room 605
Augusta, Georgia 30901
Re-Bid documents may be viewed on the Augusta, Georgia web site under the Procurement Department ARCbid. Re-Bid
documents may be obtained at the office of the Augusta, GA Procurement Department, 535 Telfair Street – Room 605,
Augusta, GA 30901. Documents may be examined during regular business hours at the offices of Augusta, GA Procurement
Department.
All questions must be submitted in writing by fax to 706 821-2811 or by email to procbidandcontract@augustaga.gov to the office
of the Procurement Department by Friday, August 18, 2017 @ 5:00 P.M. No bid will be accepted by fax, all must be received by
mail or hand delivered.
The local bidder preference program is applicable to this project. To be approved as a local bidder and receive bid preference an
eligible bidder must submit a completed and signed written application to become a local bidder at least thirty (30) days prior to
the date bids are received on an eligible local project. An eligible bidder who fails to submit an application for approval as a local
bidder at least thirty (30) days prior to the date bids are received on an eligible local project, and who otherwise meets the
requirements for approval as a local bidder, will not be qualified for a bid preference on such eligible local project.
No re-bids may be withdrawn for a period of sixty (60) days after re-bids have been opened, pending the execution of contract with
the successful bidder.
Invitation for bids and specifications. An invitation for bids shall be issued by the Procurement Office and shall include specifications
prepared in accordance with Article 4 (Product Specifications), and all contractual terms and conditions, applicable to the
procurement. All specific requirements contained in the invitation to bid including, but not limited to, the number of copies
needed, the timing of the submission, the required financial data, and any other requirements designated by the Procurement
Department are considered material conditions of the bid which are not waiveable or modifiable by the Procurement Director.
All requests to waive or modify any such material condition shall be submitted through the Procurement Director to the appropriate
committee of the Augusta, Georgia Commission for approval by the Augusta, Georgia Commission. Please mark BID number on the
outside of the envelope.
Bidders are cautioned that acquisition of RE-BID documents through any source other than the office of the Procurement
Department is not advisable. Acquisition of RE-BID documents from unauthorized sources placed the bidder at the risk of
receiving incomplete or inaccurate information upon which to base his qualifications.
Correspondence must be submitted via mail, fax or email as follows:
Augusta Procurement Department
Attn: Geri A. Sams, Director of Procurement
535 Telfair Street, Room 605
Augusta, GA 30901
Fax: 706-821-2811 or Email: procbidandcontract@augustaga.gov
No bid will be accepted by fax, all must be received by mail or hand delivered.
GERI A. SAMS, Procurement Director
OFFICIAL
VENDORS Attachment
"B"E-Verify SAVE
Form Bid Price
Augusta Marine
4250 Belair Frontage
Road
Augusta, GA 30909
YES 729810 YES $48,098.00
Total Number Specifications Mailed Out: 21
Total Number Specifications Download (Demandstar): 0
Total Electronic Notifications (Demandstar):50
Mandatory Pre-Bid Attendees: NA
Total packages submitted: 1
Total Noncompliant: 0
Re-Bid Item #17-219A
Patrol Boat for Augusta, GA- Sheriff's Office
Bid Date: Wednesday, August 29, 2017 @
3:00 p.m.
Page 1 of 1
Augusta Marine
4250 Belair Frontage Road
Augusta, GA 30909
Boating Atlanta
Attn: David Freeman
3090 Buford Hwy NE
Buford, GA 30518
Mid Carolina Marine
Attn: Frank Riley
718 Sunset Blvd
West Columbia, SC 29169
Custom Marine
104 Rushing Lane
Statesboro, GA 30458
Setcom Corporation
3019 Alvin DeVane Vlvd.
Suite 560
Austin, TX 78741
Cabela’s
833 Cabela Drive
Augusta, GA 30909
The Boat Center
4751 Washington Road
Evans, GA 30809
Platinum Marine
4738 Washington Road
Evans, GA 30809
Lincolnton Marine
1006 Lake Thurmond Pkwy
Lincolnton, GA 30817
MarineMax Buford
5800 Lanier Islands Pkwy
Buford, GA 30518
Park Marine Boating Centers
1989 Cobb Pkwy N
Kennesaw, GA 30152
American Boat Brokers
6516 Holiday Road
Buford, GA 30518
Gaineville Marina and Boat Sales
2145 Dawsonville Hwy
Gainesville, GA 30501
MarineMax Hall Marine Savannah
3518 Old Tybee Road
Thunderbolt, GA 31410
Singleton Marine-Atlanta
5529 Lanier Islands Pkwy
Buford, GA 30518
Tracker Boat Center
5000 Bass Pro Blvd
Macon, GA 31210
T&S Marine Inc.
4631 Smithson Blvd
Oakwood, GA 30566
72 Marine Sales
3336 Calhoun Falls Hwy
Elberton, GA 30635
Marietta Marine Boat Sales and
Services
6986 Bells Ferry Road
Canton, GA 30114
Sutton Marine
914 Park Avenue Southeast
Aiken, SC 29801
Mountain Top Marine
5028 Sunset Blvd
Lexington, SC 29072
Robert Pertain
Sheriff’s Office
Richard Roundtree
Sheriff’s Office
Kellie Irving
Compliance
Re-Bid Item# 17-219A
Patrol Boat
for Augusta, Georgia Sheriff’s Office
Bid Due: Tue 8/29/2017 @ 11:00 a.m.
Re-Bid Item# 17-219A
Patrol Boat for Augusta, Georgia
Sheriff’s Office
Bid Mailed: 8/3/2017
Commission Meeting Agenda
11/7/2017 2:00 PM
Revised MOU Agreement with Community Solutions, Inc.(CSI) in the amount of $145,000.00 for MST
services from October 16, 2017 to June 30, 2018. MOU agreement with Family Connections of Columbia
County, Inc., (CCCC) to provide Aggression Replacement Traini
Department:Richmond County Juvenile Court
Department:Richmond County Juvenile Court
Caption:Motion to approve a request from Richmond County Juvenile
Court for the Commission and Mayor to accept the modification
of these revised and new MOU providers for the fifth Criminal
Justice Coordinating Council (CJCC) Juvenile Justice Grant
Award of $300,000.00. We have included the MOU agreement
with CSI, Inc. for $145,000.00 remaining in the grant ending on
June 30, 2018 and the new MOU with Family Connections of
Columbia County, Inc., (CCCC) for $84,000 to provide
Aggression Replacement Training® (ART) groups beginning
October 1, 2017 to June 30, 2018. Richmond County has
provided evidence-based programs this grant year beginning July
1st to ten (10) youth qualifying males and female juveniles
charged with serious felonies and property crimes. (Approved by
Public Safety Committee October 31, 2017)
Background:The Richmond County Juvenile Court currently receives
$300,000.00 funding through the Criminal Justice Coordinating
Council (CJCC) Juvenile Incentive Grant (FY2017) to provide
Multi-systemic Therapy (MST) to targeted juvenile offenders in
Richmond County by Community Solutions, Inc. (CSI). The MST
program is currently providing intensive therapy to high-risk
offenders and their families in lieu of short term incarceration (30
days) or Commitment to DJJ (up to 5 years). The Aggression
Replacement Training® (ART) groups will meet for ten (10)
weeks and provide group therapy for twenty (20) youth to address
a variety of issues surrounding aggressive behaviors, moral
reasoning and social skills/decision making. The groups are
designed to help youth process the whys that lead to aggressive
behaviors and offer choice solutions to help avoid conflicts that
lead to criminal charges. The services will be provided through the
Family Connections of Columbia County, INC., organization
which has provided these groups to Columbia County Juvenile
Court for several years. Mrs. DaCara Brown will serve as the
Cover Memo
new Coordinator of the grant with transitional assistance from Bill
Dean, current coordinator, at no additional cost to the grant. A
new budget breakdown is also being presented to reflect the
adjusted expenses for the remainder of the year.
Analysis:The Court has continued to experience increasing referrals from
the Richmond County Sheriff’s Department and Board of
Education Public Safety Officer’s concerning felony and high and
aggravated misdemeanor offenses. ( since July 1st , 84 youth have
been adjudicated for serious felonies and over 100 + referrals
made to DJJ for aggressive misdemeanor and felony offenses)
Many of these youth come from high risk low socioeconomic
environments where the parents have little or no parenting skills to
control serious delinquent juvenile behaviors. Statistics show that
incarceration does not rehabilitate these young offenders.
However, if the parents and youth can learn and implement
evidence-based intervention at an early age, many of the
continued delinquent aggressive behaviors could be avoided.
Financial Impact:The funding for the grant began July 1, 2017. The grant continues
through June 30, 2018. The Juvenile Court expects in 2017-2018
to serve over forty juveniles and their families (20 through MST
and 20 with ART). The State Juvenile Justice Incentive Grant is
currently approved at $300,000.00. This includes an additional
$3200 for program operating expenses(internet, travel and
supplies) There are no matching funds required from the County.
According to statistics from the Department of Juvenile Justice the
cost to incarcerate a juvenile for one year is $90,000.00 to
$100,000.00. The savings to Georgia/Richmond County taxpayers
for the youth directed to the MST and/or ART program instead of
incarceration is significant.
Alternatives:Incarceration or county funded programs in lieu of incarceration.
Recommendation:The Court respectfully requests the Augusta/Richmond County
Commission and the Mayor accept the amended CSI and new
Family Connections of Columbia County, INC., MOU
agreements. Also approve DaCara Brown as new grant
Coordinator at no additional cost. Augusta/Richmond County will
serve as the funding agent and provide financial reimbursements
to Community Solutions Inc. for implementation of the MST
program and Family Connections of Columbia County, INC., for
implementation of Aggression Replacement Training® (ART).
This is the reimbursement system currently in place for the
existing grant. The State of Georgia will again reimburse Augusta-
Richmond County on a quarterly basis.
Funds are Available Cover Memo
in the Following
Accounts:220-02-2639
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
PRoJEcl }ir,AME: rruvenile rrustice rncentive Grant Eflg
NATURE OF ADT]IIS&IENI: REVISED BUDGET GO TO . . . . SECTION I
PRINE DlsE: LO/Lg/Ll
GMIS DOC!'I{ENT 3A
SIIBGRANTEE: Richuond County
Mark all that apply,
Adjustments of each type
shown should be enteredin the section indicated.
PERSONNEL
EQUTPMEN!
SUPPIJIES
TRA\ZEII
PRTNtrING
OSHER
IOEAT
Federal
Match
CRIMIIiTAL JuSTICE COORDII.IATING COT'NCIL
SLTBCRANT AD.7TJSII.{ENI REQUE Sf
EEDE&AI GR.AI.IT *
, +250
-150
PACE 1 OE 2
AD.' REQUEST *: 2
SUBGRANI #: y18-8-OO2
REQUEST DAIE: 70-2I-2017
_ PRO,IECT PERIOD AND/OR EXTENSION. Go To . . , SECTION II_ PROJECT oE!'ICIATS/ADDRESSES. Go To ._ PROJECT PERSONNEL. . Go To . ._ GOALS AND OB,JECTIVES . Go To .OTHER. Go To , .
REVTSIONS +l-
0
SECTION IlI. . SECTION III
SECTION III
MUST BE ,JUST]TIED AND EXPIJAINED THOROUGHLY IN SECTION IV.
sEcrroN r. nsQuEsr EoR BUDGET cItAIiIcE - .rusrrErr rN sEcrroN rv.
CURRENT APPROVED
$o
SECTTON TI. REQUEST FOR CHA!GE IN PBOJECT PERXOD - JUSUEY rN SECTION IV.
CURRENT GRENT PER]OD
iStart Date: O7 /07/17
End Date: L6/3OllB
NOTEs The maximum extension request cannot exceed 12 months.
sEcrroN rrr' REQUESIS FoR REvrgroNs lo PRoJEcr oFFrcrALs/ADDREssEs, pRo.rEct pERsoNNErr,
GOAI.S A}'ID oB,JEcTIl,Es, AI.ID,/oR oTHER NoN-BUDGEI, NoN-PERIoD CIIA}IGES(wsrrnr rN sEcTroN rv. )
296, 900
$ 300,000
$ 300,000
_100
-500
. -s00
0
REQUESTED GRANT PER]OD
Start Date:End Date:
REVISED BUDGET
$o
, 2.950
250
2q6.800
300,000
300.000
0
Mr. Dean will no longer be program Coordinator, but
as the new Coordinator. (see attached Designation of
rOR EXTENSION,
# OF MONTHS:
will assist to help DaCara Brown
Grant Official)
CONTINUED ON NEXT PAGE
SRMT DAaE: LO|L?|L1
G!(lrE DOCI r{Er{T 3A
cRIMItdAIJJUSIICE CQORDT!{ATING COUNCIL
SI,BGR,AIiII AD.,uSU{ENT REQUEST
EEDEEAT GRANT *
PA@2of2
AD.I REQUESI #: 2
, REQITEsT DAIE I LO-21-20L7
SIIBGRANIEE: Richoond Countl, S[IBGRAIiM {*: Y18-8-002
PRO,IECI lilAl'lE: .Iuvanile iluetice Incentive Grant E'!f18
sEclroN rv. wsIrFIcATroN oF ArJrJ REQITESTED AD\rUSTldENtS, REVrErONg, AIID/OR CHA}IGES
Al.1 requested adJustments 1n sections I, II & III (page 1) must be Justified in detail ia this Sectlon,
Include item costs, descriptions, eguipment 1ists, detailed explanations, BDd any other informatlon
that would further clarlfy and support your reguest fo! adjustment. Attach additional pages as needed.
hle have reduced our numbers for the MST prograu inorder to add twenty(20)
youth/families for the Aggression Replacement Training (ART) evidenced
bases Program. This will help serve a growing number of violent offenders.
(see attabhad budget and narrative summaries)
STIBDIITITED BY:
Y
Signature of ElffilQSS1 Officer or project DirectorOfficial
Mnwnr
TitLe Date
C.'CC ROUTING A}ID APPROVAIS:Approval Disapproval Reviewer Signature
Reviewed By:
Authorized Byl
Commission Meeting Agenda
11/7/2017 2:00 PM
Approve and Adopt Revised Ordinance Regarding Residential Parking Permit Zones File Reference:
013-017(a)
Department:Engineering
Department:Engineering
Caption:Motion to approve and adopt proposed Ordinance changes to the
Augusta, Georgia code section 3-5-95.11 to create a Residential
Parking Permit Program. (Approved by Commission October
17, 2017-second reading)
Background:The residents of the neighborhoods in and around the Augusta
University downtown campus have brought forward concerns
regarding nuisance parking related to students. Many residents
claim that students who attend the nearby colleges are parking for
long hours in front of their homes to avoid paying university
parking pass fees. This influx of vehicles is creating hardship and
safety issues for residents who live in these neighborhoods.
Analysis:Throughout the country, many communities who have similar
situations have programs in place to deal with nuisance parking
created by nearby facilities. The ordinance modifications involve
revising the residential parking section of code 3-5-95.11 to allow
for a residential application and study process, a public hearing,
and a petition and designation process. The proposed changes
have been vetted through the residents, Administrator’s Office,
Attorney’s Office, Richmond County Sheriff’s Office, and
Augusta University.
Financial Impact:None Currently
Alternatives:Do not approve proposed changes to Residential Parking
Ordinance 3-5-95.11.
Recommendation:
Approve proposed revisions to Residential Parking Ordinance 3-
5-95.11 to allow for the creation of a Residential Parking Pass
Program to be administered by the Augusta Engineering
Cover Memo
Department.
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Cover Memo
ORDINANCE NO.
AN ORDINANCE TO PROVIDE FOR RESIDENTAIL PARKING PERMIT ZONE.
THE AUGUSTA, GEORGIA COMMISSION ordains as follows:
SECTION 1. The Augusta-Richmond County Code by adding a new section to be numbered 3-5-
95.1 1, to read as follows:
Section 3-5-95.11. Residential parking permit zone.
..SEE ATTACHED HERETO"
Duly adopted by the Augusta, Georgia Commission on this day of
,2017 .
HARDIE DAVIS, JR.
As its Mayor
Attest:
Lena J. Bonner, Clerk of Commission
First Reading:
Second Reading:
CERTIFICATION
The undersigned Clerk of Commission, Lena J. Bonner, hereby certifies that the foregoing
ordinance was duly adopted by the Augusta, Georgia Commission on
, and the undersigned further certifies that attached hereto is a true
copy of the Ordinance which was approved and adopted in the foregoing meeting(s).
Lena J. Bonner, Clerk of Commission
Sec.3-5-95.11. Residential parking permit zone.
a) Study. Upon citizen request or on its own initiative, Augusta, Georgia maystudy the feasibility and desirability of establishing or eliminating one or moreresidential parking permit zones within the public right-of-way. A study shall
consider, among other things:
(1) The effect on the safefy of residents of the area under consideration from
intensive use by non-residents for parking of vehicres.
(2) The need of area residents for adequate on-street parking in the targeted
area.
(3) The difficulty or inability of area residents to secure on-street parking in
the targeted area due to the use of available parking spaces in that area
by non-resident motorists.
(4) The impact of major public facilities and programs on the health, safety,
and welfare of the area residents and any unreasonable burdens placed
on those residents in securing adequate on-street parking and gaining
access to their residences by virtue of such facilities and programs.
(5) The likelihood of alleviating, by use of a parking permit system, any
problem of unavailability of residential parking spaces.
(6) The desire of the residents in the area for the institution of a parking
permit system and the willingness of those residents to bear the
administrative costs incidental to the issuance of permits authorized by
this section.
(7) The need for parking spaces in the target area for use by visitors and the
general public.
(9) Such other factors as the Director of Engineering shall deem applicable.
(b) Public hearing. A public hearing may be held in accordance with the
following:
(1) Following the completion of a study conducted pursuant to subsection (a)
of this section, the Director of Engineering, or his or her designee, shall
Page I of3
conduct a public hearing at which time interested persons may appear
and be heard.
(2) Within 45 calendar days following the close of the pubtic hearing, the
Director of Engineering shall decide whether to propose the designation
of the area under consideration as a residential parking permit zone or
to remove the designation of an established residential parking permit
zone.
(c) Petition. Procedures for submitting a petition for creating of the
residential parking permit zone are as follows:
(1) If the Director of Engineering proposes to establish a residential parking
permit zone, residents within the targeted area may petition for the
establishment of the zone. Petitions shall be on forms prepared and
promulgated by the Director of Engineering. Petitions shall be submitted
to the Director of Engineering who shall determine their sufficiency.
rnsufficient and/or incomplete petitions will not be processed.
(2) No residential parking permit zone shall be established unless at least a
simple majority (50 percent plus one), of the property owners within the
proposed zone have properly signed a petition.
(3) Property tax records provided from the Board of Tax Assessors shall be
used to veriff the eligibility of property owner petition signatures.
(d) Designation. Procedures for adding residential parking pass zone areas
are as follows:
(1) Following the completion and vetting of the petition pursuant to
subsection (c) of this section, the Director of Engineering will provide the
Augusta, Georgia Commission the opportunity to add proposed
residential parking permit zone to a list of such designated areas by
majority vote of the Commission body.
(2) Upon approval of the establishment of a residential parking permit zone
by the Augusta, Georgia Commission, the Director of Engineering shall
cause parking signs to be posted in the zone. Such signs shatl prescribe
times, locations and conditions which govern parking in the targeted
area.
Page 2 of3
(3) The Director of Engineering shall have authority to promulgate
regulations necessary to the administration of this program, including,but not limited to, the issuance, display, renewal, revocationo und
replacement of decals, and the establishment of reasonable fees for the
users of the program.
Page 3 of3
Commission Meeting Agenda
11/7/2017 2:00 PM
GDOT FY 2018 Local Maintenance and Improvement Grant (LMIG)
Department:Engineering
Department:Engineering
Caption:Motion to approve and authorize Augusta Engineering
Department (AED) to submit, accept and receive Georgia
Department of Transportation (GDOT) Financial Assistance from
GDOT FY2018 Local Maintenance and Improvement Grant
(FY18 LMIG) for Road & Drainage Improvements &
maintenance projects as requested by AED. (Approved by
Engineering Services Committee October 31, 2017)
Background:GDOT restructured its State Aid Program and named it as “Local
Maintenance and Improvement Grant (LMIG).” LMIG is a
formula-based grant from GDOT that is funded through the motor
fuel tax. Grant funds are typically used to supplement local
projects for road/drainage improvements and road resurfacing
efforts based on priority. Augusta is eligible to receive
approximately $2.18 million through GDOT FY2018 LMIG
Program.
Analysis:GDOT LMIG financial assistance is critical for completing AED
projects such as roadway improvements and maintenance
construction projects. This financial assistance is available on
yearly basis. In addition to this yearly assistance, GDOT also
provides LMIG funds to AED on as requested basis depending on
LMIG additional funds availability on state level, demonstrated
need and local project connectivity to state road system.
Financial Impact:City of Augusta AED will receive approximately $2.18 million in
2018. A local funding match of 10% is required. FY2018 LMIG
proposed Allocation:Olive Road Resurfacing – $1.5M; Windsor
Spring Road Sidewalk (between Tobacco Rd and Cross Creek) -
$0.5M; Milledgeville at North Leg Roundabout $0.4M.
Alternatives:1). Approve and authorize the Augusta Engineering Department
(AED) to submit, accept and receive Georgia Department of
Cover Memo
Transpiration (GDOT) Financial Assistance through the GDOT
FY2018 Local Maintenance and Improvement Grant (FY18
LMIG) for Road & Drainage Improvements & maintenance
projects as requested by AED. 2). Do not approve and identify
alternate supplemental funds for completing road improvements
and maintenance projects, and do not claim future LMIG Funds
that are designated for Augusta.
Recommendation:Approve Alternative Number One.
Funds are Available
in the Following
Accounts:
LMIG Fund 335 and TIA Discretionary (local funding match of
10%)
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Granite Hill Section Four Phase One Subdivision Dedication
Department:Engineering
Department:Engineering
Caption:Motion to approve the deeds of dedication, maintenance
agreements, and road resolutions submitted by the Engineering
and Augusta Utilities Departments for Granite Hill, Section Four,
Phase One, including utility and access easement up to detention
pond (pond not being dedicated). (Approved by Engineering
Services Committee October 31, 2017)
Background:The final plat for Granite Hill, Section Four, Phase One, was
approved by the Commission on February 21, 2017. The
subdivision design and plat for this section, including the storm
drain system, have been reviewed and accepted by our
engineering staff and the construction has been reviewed by our
inspectors.The Utilities Department has inspected and reviewed
the water and sanitary sewer installations, and hereby requests
acceptance of the utility deed.
Analysis:This section meets all codes, ordinances and standards. There are
no wetlands or 100-year flood plain boundaries involved in this
section. Acceptance of said utility deed shall dedicate, as required,
the water and sanitary sewer mains along with the applicable
easements to Augusta, Georgia for operation and maintenance.
Financial Impact:By accepting these roads and storm drainage installations into the
County system and after the 18-month maintenance warranty by
the developer/contractor for the roads and storm drainage has
expired, all future maintenance and associated costs will be borne
by Augusta, Georgia. By acceptance of the utility deeds and
maintenance agreements, all future maintenance and associated
costs for water and sanitary sewer installations will be borne by
Augusta, Georgia, and positive revenue will be generated from the
sale of water and sanitary sewer taps and monthly billing of same.
Alternatives:1. Approve the deeds of dedication, maintenance agreements, and
Cover Memo
road resolutions submitted by the Engineering and Augusta
Utilities Departments for Granite Hill, Section Four, Phase One,
including utility and access easement up to detention pond (pond
not being dedicated). 2. Do not approve and risk litigation.
Recommendation:Approve Alternative Number One.
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Marvin Griffin Road Improvements
Department:Engineering
Department:Engineering
Caption:Motion to approve entering into a Construction Contract
Agreement with the Georgia Department of Transportation for the
Marvin Griffin Road Improvements Project (PI #0015580) as
requested by AED. (Approved by Engineering Services
Committee October 31, 2017)
Background:Marvin Griffin Road Improvements project is an approved
SPLOST project. This project is constructed in two phases. Phase
1 is completed and included clearing & grubbing and private
utilities relocation. The project phase 2 consists of roadway
widening & improvements, drainage improvements, Curb &
Gutter, water & sewer improvements, sidewalk, and traffic signal
upgrade between Mike Padgett Highway (SR56) and Doug
Barnard Parkway (SR56 Spur). Phase 2 of the project is under
construction. Awarded Construction cost excluding Railroad
Crossing Improvement is $9,578,429.25. Additional funds were
needed to complete the construction phase and Augusta
Engineering Department requested funding assistance from
GDOT.
Analysis:Agreement allows GDOT funding assistance to complete roadway
improvements as designed.
Financial Impact:GDOT is providing $1.8M state funds to complete construction
phase of the project.
Alternatives:1). Motion to approve entering into a Construction Contract
Agreement with the Georgia Department of Transportation for the
Marvin Griffin Road Improvements Project (PI #0015580) as
requested by AED. 2). Do not approve and identify alternate
funding source to complete the construction phase.
Cover Memo
Recommendation:Approve Alternative Number One.
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Motion for Abandonment of Woodsedge Drive - 2nd Reading
Department:Law
Department:Law
Caption:Motion to determine that Woodsedge Drive, as shown on the
attached plat has ceased to be used by the public to the extent that
no substantial public purpose is served by it or that its removal
from the county road system is otherwise in the best public
interest, and to receive as information the results of the public
hearing held regarding the issue of abandonment pursuant to
O.C.G.A. §32-7-2, with the abandoned property to be quit-
claimed to the appropriate party(ies), as provided by law and an
easement to be retained over the entire abandoned portion for
existing or future utilities as directed by Augusta Engineering
Department and Augusta Utilities Department and adopt the
attached Resolution. (Approved by Engineering Services
Committee October 31, 2017)
Background:The abandonment request has been reviewed by all essential
county departments and administrators and approvals were
received to this abandonment request. Pursuant to O.C.G.A. §32-
7-2, a public hearing was held on October 24, 2017 for this
matter. The plat of said Woodsedge Drive is attached.
Analysis:In addition to the information provided in the above Background
section, results of the public hearing will be presented to the
Commission. Notice to the property owners located thereon has
been provided, pursuant to O.C.G.A. §32-7-2(b)(1).
Financial Impact:Cost of publication and advertisement of public hearing.
Alternatives:Approve or deny request to determine that Woodsedge Drive be
abandoned.
Recommendation:
Approve determination and request for abandonment of
Woodsedge Drive pursuant to O.C.G.A. §32-7-2, with the
Cover Memo
abandoned property to be quit-claimed to the appropriate party
(ies) as allowed by law, and an easement(s) as directed by the
Augusta Engineering Department and the Augusta Utilities
Department to be retained over the entire abandoned portion for
existing or future utilities and drainage and adopt the attached
Resolution.
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
AGENDA ITEM
Engineering Services Committee
October 31, 2017
Motion to determine that Woodsedge Drive, as shown on the attached plat has ceased to be used by
the public to the extent that no substantial public purpose is served by it or that its removal from the
county road system is otherwise in the best public interest, and to receive as information the results of
the public hearing held regarding the issue of abandonment pursuant to O.C.G.A. §32-7-2, with the
abandoned property to be quit-claimed to the appropriate party(ies), as provided by law and an
easement to be retained over the entire abandoned portion for existing or future utilities as directed by
Augusta Engineering Department and Augusta Utilities Department and adopt the attached
Resolution.
Department: Law
Caption: Motion to determine that Woodsedge Drive, as shown on the attached plat has
ceased to be used by the public to the extent that no substantial public purpose
is served by it or that its removal from the county road system is otherwise in
the best public interest, and to receive as information the results of the public
hearing held regarding the issue of abandonment pursuant to O.C.G.A. §32-7-
2, with the abandoned property to be quit-claimed to the appropriate party(ies),
as provided by law and an easement to be retained over the entire abandoned
portion for existing or future utilities as directed by Augusta Engineering
Department and Augusta Utilities Department and adopt the attached
Resolution.
Background: The abandonment request has been reviewed by all essential county
departments and administrators and approvals were received to this
abandonment request. Pursuant to O.C.G.A. §32-7-2, a public hearing was held
on October 24, 2017 for this matter. The plat of said Woodsedge Drive is
attached.
Analysis: In addition to the information provided in the above Background section, results
of the public hearing will be presented to the Commission. Notice to the
property owners located thereon has been provided, pursuant to O.C.G.A. §32-
7-2(b)(1).
Financial Impact: Cost of publication and advertisement of public hearing.
Alternatives: Approve or deny request to determine that Woodsedge Drive be abandoned.
Recommendation: Approve determination and request for abandonment of Woodsedge Drive
pursuant to O.C.G.A. §32-7-2, with the abandoned property to be quit-claimed
to the appropriate party(ies) as allowed by law, and an easement(s) as directed
by the Augusta Engineering Department and the Augusta Utilities Department
to be retained over the entire abandoned portion for existing or future utilities
and drainage and adopt the attached Resolution.
Funds are available
In Following
Accounts:
REVIEWED AND APPROVED BY:
THIS RESOLUTION OF THE AUGUSTA-RICHMOND COUNTY COMMISSION TO
ABANDON WOODSEDGE DRIVE AS A PART OF THE ROAD SYSTEM OF AUGUSTA;
THIS RESOLUTION, adopted by the Augusta-Richmond County Commission
(“Commission”);
WHEREAS, it has been proposed that the Commission make a determination that
Woodsedge Drive as shown on the attached map, has ceased to be used by the public to the extent
that no substantial public purpose is served by it or that its removal from the county road system
is otherwise in the best public interest and that the right-of-way should be abandoned as part of the
Richmond County Road System; and
WHEREAS, it has been Augusta, Georgia’s policy, pursuant to O.C.G.A § 32-7-2, to
reduce the number of roads in Augusta, Georgia that are not utilized or useful to the public and to
abandon such roads; and
WHEREAS, a Public Hearing was held on October 24, 2017 at the Augusta-Richmond
County Municipal Building, 2nd Floor, 535 Telfair Street, Augusta, Georgia; and
WHEREAS, notice of such Public Hearing was published in The Augusta Chronicle, the
newspaper in which Sheriff’s advertisements for Richmond County are published, on October 12,
2017 and October 19, 2017, and that the property owners located on Woodsedge Drive were given
notice; and
WHEREAS, the results of the Public Hearing were reported to the Board of
Commissioners and considered thereby; and
WHEREAS, the Commission, at their meeting held, November 7, 2017, approved the
proposed abandonment, pursuant to O.C.G.A. § 32-7-2 and the requirements of said statute having
been met;
NOW THEREFORE, be it resolved by the Commission and it is hereby resolved by the
authority of same as follows:
1. It is hereby determined that all requirements of O.C.G.A. § 32-7-2 have been met for the
abandonment and removal above-said of the Right-of-Way and such Right-of-Way no
longer serves a substantial public purpose or that its removal from the county road system
is otherwise in the best public interest and is hereby abandoned as part of the Richmond
County Road System;
2. The land formerly comprising the Right-of-Way shall be quitclaimed as permitted by law
to the adjoining property owner, subject to easements and restrictions deemed necessary
by the Augusta Engineering Department and the Augusta Utilities Department, and the
Mayor and Clerk of Commission are hereby authorized to execute the documents necessary
to effectuate such transfer as directed by the Augusta Law Department.
3. This Resolution shall be recorded in the Minutes of the Augusta-Richmond County
Commission, accompanied by the exhibits referred to herein;
4. This Resolution shall become effective immediately upon its adoption.
DULY ADOPTED by the Augusta, Georgia Commission this ______ day of
_____________________, 2017.
AUGUSTA, GEORGIA COMMISSION
By: ________________________________
Hardie Davis, Jr.
As its Mayor
Attest: ______________________________
Lena J. Bonner
As its Clerk
Commission Meeting Agenda
11/7/2017 2:00 PM
Motion to Abandon Canterbury Drive - 1st Reading
Department:Law
Department:Law
Caption:Motion to determine that Canterbury Drive as shown on the
attached map has ceased to be used by the public to the extent that
no substantial public purpose is served by it or that its removal
from the county road system is otherwise in the best public
interest, pursuant to O.C.G.A. §32-7-2, with the abandoned
property to be quit-claimed to the appropriate party(ies), as
provided by law and an easement to be retained over the entire
abandoned portion for existing or future utilities as directed by
Augusta Engineering Department and Augusta Utilities
Department. (Approved by Engineering Services Committee
October 31, 2017)
Background:The abandonment request has been reviewed by all essential
county departments and administrators and approvals were
received to this abandonment request. The map of said
Canterbury Drive is attached.
Analysis:In addition to the information provided in the above Background
section, publication notices will be made for a public hearing to be
held, with results to be presented to the Commission. Notice to the
property owners located thereon will be made, pursuant to
O.C.G.A. §32-7-2(b)(1).
Financial Impact:Cost of publication and advertisement of public hearing.
Alternatives:Approve or deny request to determine that Canterbury Drive be
abandoned.
Recommendation:Approve request to determine that Canterbury Drive be
abandoned.
Funds are Available Cover Memo
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
AGENDA ITEM
Engineering Services Committee
October 31, 2017
Motion to determine that Canterbury Drive as shown on the attached map has ceased to be used by the
public to the extent that no substantial public purpose is served by it or that its removal from the county
road system is otherwise in the best public interest, pursuant to O.C.G.A. §32-7-2, with the abandoned
property to be quit-claimed to the appropriate party(ies), as provided by law and an easement to be
retained over the entire abandoned portion for existing or future utilities as directed by Augusta
Engineering Department and Augusta Utilities Department.
Department: Law
Caption: Motion to determine that Canterbury Drive as shown on the attached map has
ceased to be used by the public to the extent that no substantial public purpose
is served by it or that its removal from the county road system is otherwise in
the best public interest, pursuant to O.C.G.A. §32-7-2, with the abandoned
property to be quit-claimed to the appropriate party(ies), as provided by law and
an easement to be retained over the entire abandoned portion for existing or
future utilities as directed by Augusta Engineering Department and Augusta
Utilities Department.
Background: The abandonment request has been reviewed by all essential county
departments and administrators and approvals were received to this
abandonment request. The map of said Canterbury Drive is attached.
Analysis: In addition to the information provided in the above Background section,
publication notices will be made for a public hearing to be held, with results to
be presented to the Commission. Notice to the property owners located thereon
will be made, pursuant to O.C.G.A. §32-7-2(b)(1).
Financial Impact: Cost of publication and advertisement of public hearing.
Alternatives: Approve or deny request to determine that Canterbury Drive be abandoned.
Recommendation: Approve determination and request for abandonment of Canterbury Drive
pursuant to O.C.G.A. §32-7-2, with the abandoned property to be quit-claimed
to the appropriate party(ies) as allowed by law, and an easement(s) as directed
by the Augusta Engineering Department and the Augusta Utilities Department
to be retained over the entire abandoned portion for existing or future utilities
and drainage.
Funds are available
In Following
Accounts:
REVIEWED AND APPROVED BY:
Commission Meeting Agenda
11/7/2017 2:00 PM
Motion to Authorize Condemnation to Acquire Property in Fee Simple Interests (Parcel 087-2-087-00-0) -
1938 Alabama Road
Department:Law
Department:Law
Caption:Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-087-00-0) - 1938 Alabama Road. (Approved
by Engineering Services Committee October 31, 2017)
Background:The owner died intestate and all heirs cannot be determined or
located. In order to proceed and avoid further project delays, it is
necessary to condemn the subject property. The required property
consists of 6,170 sq. ft. in fee. The appraised value is $7,000.00.
Analysis:Condemnation is necessary in order to acquire the required property.
Financial Impact:The necessary costs will be covered under the project budget.
Alternatives:Deny condemnation.
Recommendation:Approve condemnation.
Funds are Available
in the Following
Accounts:
G/L: 328-041110-52.12122 J/L: 212828203-52.12122
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
AGENDA ITEM __________
EDITION __________
CAPTION: Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-087-00-0)
1938 Alabama Road
BACKGROUND: The owner died intestate and all heirs cannot be determined or
located. In order to proceed and avoid further project delays, it is
necessary to condemn the subject property. The required property
consists of 6,170 sq. ft. in fee.
The appraised value is $7,000.00.
ANALYSIS: Condemnation is necessary in order to acquire the required
property.
FINANCIAL IMPACT: The necessary costs will be covered under the project budget.
ALTERNATIVES: Deny condemnation.
RECOMMENDATION: Approve condemnation.
AGENDA DATE: October 31, 2017.
DEPARTMENT
DIRECTOR: FUNDS ARE AVAILABLE IN THE
FOLLOWING ACCOUNTS:
G/L: 328-041110-52.12122
J/L: 212828203-52.12122
ADMINISTRATOR: _________________________ FINANCE: _______________________________
DATE: October 31, 2017
TO: The Honorable Hardie Davis, Jr. Mayor
Members of the Augusta Commission
Members of the Engineering Services Committee
FROM: Randolph Frails, Esquire and Andrew MacKenzie, General Counsel
SUBJECT: Acquisition of 6,170 sq. ft. to City of Augusta, Georgia from
Robert E. Lee, by and through her known and unknown heirs
1938 Alabama Road
Augusta Information Technology - GIS Division, Augusta, GA
October 11, 2017 0 20 4010 ft
0 7 143.5 m
1:250
Disclaimer: While every effort is made to keep information provided over the internet accurate and up-to-date, Augusta does not certify the authenticity or accuracy of such information. No warranties, express or implied, are provided for the records and/or mapping data herein, or for their use or interpretation by the User.
Commission Meeting Agenda
11/7/2017 2:00 PM
Motion to Authorize Condemnation to Acquire Property in Fee Simple Interests (Parcel 087-2-088-00-0) -
1934 Alabama Road
Department:Law
Department:Law
Caption:Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-088-00-0) - 1934 Alabama Road. (Approved
by Engineering Services Committee October 31, 2017)
Background:The owner died intestate and all heirs cannot be determined or
located. In order to proceed and avoid further project delays, it is
necessary to condemn the subject property. The required property
consists of 6,825 sq. ft. in fee. The appraised value is $7,300.00.
Analysis:Condemnation is necessary in order to acquire the required property.
Financial Impact:The necessary costs will be covered under the project budget.
Alternatives:Deny condemnation.
Recommendation:Approve condemnation.
Funds are Available
in the Following
Accounts:
G/L: 328-041110-52.12122 J/L: 212828203-52.12122
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
AGENDA ITEM __________
EDITION __________
CAPTION: Motion to authorize condemnation to acquire property in fee simple
interests (Parcel 087-2-088-00-0)
1934 Alabama Road
BACKGROUND: The owner died intestate and all heirs cannot be determined or
located. In order to proceed and avoid further project delays, it is
necessary to condemn the subject property. The required property
consists of 6,825 sq. ft. in fee.
The appraised value is $7,300.00.
ANALYSIS: Condemnation is necessary in order to acquire the required
property.
FINANCIAL IMPACT: The necessary costs will be covered under the project budget.
ALTERNATIVES: Deny condemnation.
RECOMMENDATION: Approve condemnation.
AGENDA DATE: October 31, 2017.
DEPARTMENT
DIRECTOR: FUNDS ARE AVAILABLE IN THE
FOLLOWING ACCOUNTS:
G/L: 328-041110-52.12122
J/L: 212828203-52.12122
ADMINISTRATOR: _________________________ FINANCE: _______________________________
DATE: October 31, 2017
TO: The Honorable Hardie Davis, Jr. Mayor
Members of the Augusta Commission
Members of the Engineering Services Committee
FROM: Randolph Frails, Esquire and Andrew MacKenzie, General Counsel
SUBJECT: Acquisition of 6,825 sq. ft. to City of Augusta, Georgia from
Robert E. Lee, by and through her known and unknown heirs
1934 Alabama Road
Augusta Information Technology - GIS Division, Augusta, GA
October 11, 2017 0 50 10025 ft
0 10 205 m
1:564
Disclaimer: While every effort is made to keep information provided over the internet accurate and up-to-date, Augusta does not certify the authenticity or accuracy of such information. No warranties, express or implied, are provided for the records and/or mapping data herein, or for their use or interpretation by the User.
Commission Meeting Agenda
11/7/2017 2:00 PM
Motion to Authorize Condemnation to Acquire Title of a Portion of Property for Permanent Easement
(Parcel 099-3-003-00-0) - 2601 Mike Padgett Highway
Department:Law
Department:Law
Caption:Motion to authorize condemnation to acquire title of a portion of
property for permanent easement (Parcel 099-3-003-00-0) - 2601
Mike Padgett Highway. (Approved by Engineering Services
Committee October 31, 2017)
Background:Due to unclear title, the City seeks to acquire title through
condemnation. In order to proceed and avoid further project
delays, it is necessary to condemn a portion of subject property.
The required property consists of 9,653 square feet of permanent
easement. The appraised value is $1,448.00.
Analysis:Condemnation is necessary in order to acquire the required
property.
Financial Impact:The necessary costs will be covered under the project budget.
Alternatives:Deny condemnation.
Recommendation:Approve condemnation.
Funds are Available
in the Following
Accounts:
G/L 511043420-5411120 J/L 81700030-5411120
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Clerk of Commission
Cover Memo
AGENDA ITEM ______________
EDITION ______________
DATE: October 31, 2017
TO: The Honorable Hardie Davis, Mayor
Members of the Augusta Commission/Members of the Engineering Services
Committee
FROM: Daniel W. Hamilton and Andrew MacKenzie, General Counsel
SUBJECT: Acquisition of a portion of the property for permanent easement to Richmond
County, Georgia from the Estate of Fannie E. Williams
CAPTION: Motion to authorize condemnation to acquire title of a portion of
property for permanent easement (Parcel 099-3-003-00-0) 2601
Mike Padgett Highway.
BACKGROUND: Due to unclear title, the City seeks to acquire title through
condemnation. In order to proceed and avoid further project
delays, it is necessary to condemn a portion of subject property.
The required property consists of 9,653 square feet of permanent
easement. The appraised value is $1,448.00.
ANALYSIS: Condemnation is necessary in order to acquire the required
property.
FINANCIAL IMPACT: The necessary costs will be covered under the project budget.
ALTERNATIVES: Deny condemnation.
RECOMMENDATION: Approve condemnation.
AGENDA DATE: October 31, 2017
DEPARTMENT FUNDS ARE AVAILABLE IN THE
DIRECTOR:_________________________ FOLLOWING ACCOUNTS:
G/L 511043420-5411120
ADMINISTRATOR:____________________ J/L 81700030-5411120
FINANCE:__________________________
2601 Mike Padgett Highway
Augusta Information Technology - GIS Division, Augusta, GA
October 11, 2017 0 210 420105 ft
0 60 12030 m
1:2,257
Disclaimer: While every effort is made to keep information provided over the internet accurate and up-to-date, Augusta does not certify the authenticity or accuracy of such information. No warranties, express or implied, are provided for the records and/or mapping data herein, or for their use or interpretation by the User.
Commission Meeting Agenda
11/7/2017 2:00 PM
Minutes
Department:
Department:
Caption:Motion to approve the minutes of the regular meeting held
October 17, 2017, and Special Called meeting held October 31,
2017.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Commission Meeting Agenda Commission Chambe r - 10117 t2017
ATTENDANCE:
Present: Hons. Hardie Davis, Jr., Mayor; Jefferson, sias, Frantom, M.williams, Davis, Fennoy, D. williams, Hasan and Smith, members of
Augusta Richmond County Commission.
Absent: Hon. Guilfoyle, member of Augusta Richmond county
Commission.
INVOCATION:
PLEDGE OF ALLEGIANCE TO THE FLAG OF T}IE LINITED STATES OF AMERICA.
RECOGNTTTON(S)
Employee of the Month
A. 2017 October Employee of the Month.Item
Action:
None
Made Seconded MotionBy By Result
Unanimous consent is given to
delete this item from the agenda.
Five (il minute time limit per deleeation
DELEGATIONS
B. Mr. John Milton regarding World AIDS Day/Week- Angelic is a Non-profit Itemorganization hosting the Red Gala dnnual Event for fUV awarenesJ and Action:
education during the week of December lst. None
lB ItemAoorovalsheet.html
Motions
Y:ll" Motion rextrype
lB John Mittotr.pdf
lB ItemApprovalsheet html
Motions
Motion Motion TextType
Presentation is made by Mr. Ken
Bonds, Jr.
C. Ms. Bernice Hughes regarding Captain Robert
Dept. "Death Benefits" from retirement.
Made
By
Seconded
By
C. Hughes, Sr.
Motion
Result
Augusta Fire Item
Action:
None
lB Bernice_Hushes_Husband Death-Benefi ts.ndf
lB ltemAoorovalsheet html
Motions
Motion
r ype Motion Text
Presentation is made by Ms.
Hughes.
CONSENT AGENDA
Made Seconded MotionBy By Result
(Items 1-22)
PLANNING
l. Z-17-37 - A request for concurrence with the Augusta Georgia Planning Item
Commission to APPROVE with the conditions listed below a petition by Action:
Johnson Laschober and Associates, on behalf of CDM Southeast Inc., requesting Approved
a change of zoning from Zone LI (Light Industry) to Zone R-3B (Multiple-
family Residential) affecting property containing 9.49 acres and known as 1923Barton Chapel Road. Tax Map 068-0-003-00-0 DISTRICT 3 l. This
conceptual plan is for the purpose of rezoning the property from LI - Light
Industrial to R-38 - Multiple Family Residential and does not take the place of
the final development drawings required before construction can begin. 2. The
final development drawings cannot have any buildings located in the floodplain
and shall mee-t all applicable requirements of the Comprehensive Zoning
Ordinance of the City of Augusta, GA and Richmond County and the Flood
Damage Prevention Ordinance. 3. The sole access road to the site will need to
be moved to within 200 ft,. of the north property line to improve the ingress and
egress of residents to Barton Chapel Road. 4. A 175 ft. decelerationlane will
be required for ingress from southbound Barton Chapel Road. 5. The new
access road and deceleration lane shall require the approval of the Georgia
Department of Transportation since Barton Chapel Roid is a county road aJrd
Gordon Highway is a state road. 6. A sidewalk will be required along Barton
Chapel Road featuring a two-foot wide grass strip and a five-foot wide sidewalk
meeting ADA standards. 7 . An inventory of all trees on the site is required with
the final development plan to determine if the proposed project meets the
requirements of the Tree Ordinance and to determine the need for a variance.
E z-17-37.odf
lB ltemAoorovalsheet.html
Motions
Motion-j""-" Motion TextI ype
Unanimous consent is given to add
this item to the agenda.
Motion
Result
Motion to approve as
Approve stated on thi agenda. ff##,:'Jl*., fr""xlffi'i,l?il,L, passes
Motion Passes 9-0.
2. Z-17-38 - A request for concuffence with the Augusta Georgia Planning ltem
Commission to approve with the conditions listed below a petition by Southern Action:
Meadows Development LLC requesting a change of zoning from Zone A Approved
(Agriculture) to Zone R-1D (One-family Residential) affecting property
containing 1.04 acres and known as 3644 Belair Road. Tax Map 053-0-043-
00-0 DISTRICT 3 1. The development shall comply with all applicable
ordinances and regulations in place at the time of approval; 2. The proposal
shall be limited to the six units requested; 3. A materials schedule will include
split brick or stone and vinyl siding. 4. Any cost for road improvements
required by the Augusta Engineering Department shall be paid by the developer.
Motions
fr'J:"' Motion rext Made By Seconded By
Made Seconded MotionBy By Result
Made Seconded Motion
By By Result
lE z-17-38.pdf
lB z-17-38-concent.ndf
E ItemAnnrovalSheet.html
Motions
Motion Motion Textr ype
Unanimous consent is given to add
this item to the agenda.
Motions
X:tl'" Motion Text Made By seconded By Motion'l'ype Result
Motion to
Approve i||#;"sses e- i^"ffi'jJ["' Fr"#-*t"ner
Sean passes
0.
PUBLIC SERVICES
3. Motion to approve McCarthy Improvement Company Change Order #l to the Item
Airport Taxiway A Reconstruction and Extension Project as approved by the Action:
Augusta Aviation Commission at their September 28,2017 meeting. (Approved Approved
by Public Services Committee October l0r2017)
IB McCarthv Imorovement Chanqe-Order_#1 Trxiwav_A Extension proiect l.odf
B sxu cssletzogz8tloto.nor
lB ltemApprovalSheet html
Motions
X:11"' Motion Text Made By seconded By MotionlYPe - ----- -'t Result
Motion to
Approve ffiL',il'r"sses e- fi"rffi'jJi.'* flT#fit"ner
sean passes
0.
4. Motion to approve amendments (Ordinance) to the Augusta, Georgia Code, Item
Title 7, Chapter 2, Article I Nuisances, SectionT-2-2 Nuisances Prohibited so as Action:to clariff the responsibility of property owners with regard to occupied Approved
properties. (Approved by Public Services Committee October 10r2017)
IB Ordinance_Amendment Nuisance_prohibited 20170808.docx
lB ItemApprovalsheet.html
Motions
X:j*l"' Motion Text Made By Seconded By Motion
I ype - ---- -r Result
a ._.-..- Motion to Commissioner Commisioner SeanApprove _ .- ._ .. __,6 .-r_:-;^*_ _;--' ;-" . ^""'" passes- -rr- - ' - approve. Mary Davis Frantom
Motion Passes 9-
0.
5. Motion to approve a contract with Reeves Young LLC for the construction of Item
the Transit Bus Operations and Maintenance Facility for a fixed price of Action:
$14,375,000.00. (Bid Item 17-25q (Approved by Public Services Committee Approved
October L0,2017)
E roraL pnoJECt BUnGnt tnANsIT FACILmy.aocx
lB 17-250 ITB to Paper.pdf
B officiat Bid Tab.odf
B 17-250 pBc.pdf
E 17-250 Department Recommendation of Award.pdf
lE Meil List. Demandstar Planholders and Georqia Procurement Reqistrv lnfo.pdf
lB A10t-2007 - Final - I of 2.pdf
B A20l-2007 - Finet_-_2-of_2.pdf
lB ItemApprovalsheet.html
Motions
+#:" Motion rext Made Bv
Motion to
^ SDDrOVe.APProve vtltion passes 9-
0.
seconded By Motion
Result
Commissioner Commisioner Sean passesMary Davis Frantom
ADMINISTRATIVE SERVICES
6. Motion to approve award for coating of the metal roof at the Fire Department Item
Fleet Maintenance Facility on Broad Street to Horizon Roofing of Monroe, Action:
Georgia in the total amount of $46,800.00. Bid ltem 17-237 (Approved by Approved
Administrative Services Committee October 10, 2017')
E lz-zsz lrn - seNt to paprn.por
B orfiriat rid rab tz-z3z.ndf
lB Mandatorv Pre-Bid sisn-in sheet.pdf
IE l7-23? Department Recommendation of Award.pdf
lB Mail List and Demandstar Planholders.ndf
IE ltemAoorovalsheet,html
Motions
H:'1"' Motion Text Made Byr ype
Motion
ResultSeconded By
Motion to
^ aDDrove.APProve vtotion passes 9-
0.
Commissioner Commisioner Sean passesMary Davis Frantom
7. Motion to approve the transfer of $58,340 from 101022110-5224111 (Building
Rental) to 101022110-5111110 (Perf. Full-Time S&W-Reg) and other necessary
Object Codes for the creation of a new Law Clerk position. (Approved by
Administrative Services, Finance and Public Safety Committees October
10,2017)
Seconded
By
Motion
Result
Passes
Motion
Result
Passes
Item
Action:
Approved
E satrccpot ot Izogootsnso.pdr
lE ItemApprovalsheet html
Motions
Motion;-""- Motion Text'l'ype Made By
Commissioner Sammie
Sias
Approve
Motion to
approve.
Motion Passes 9-
0.
PUBLIC SAFETY
8. Motion to approve request for 911 system upgrade. (Approved by Public Item
Safety Committee October t0,2017) Action:
Approved
lB Augusta-911-GA-21034v2-ATT-southeast-Software-LIpgradeattS3lIT (005).pdf
lB 911 lhqrade Justificrtion Memo Final.ndf
[B 9ll l]psrade Sole Source Procuremetrt Document Sipned.pdf
[B ItemAnnrovalsheet html
Motions
i^;J:"' Motion rext Made Bv
Motion to
^ approve.APProve Motion passes 9-
0.
Seconded By
Commissioner Commisioner Sean
Mary Davis Frantom
FINANCE
9. Motion to approve the FY 2018 Metropolitan Transportation Planning Services Item
contract between Augusta, Georgia and the Georgia Department of Action:
Transportation. (Approved by Finance Committee October 10, 2017) Approved
IE FY 2018 PL Contract.pdf
lE F"Y 2018 Work ElemetrtsJrtl.odf
E FY 2018 Work Elements pt2 Appendices.pdf
[E ItemAoprovalSheet.html
Motions
f#1" Motion Text Made Bv Seconded Bv HXf
Motion to
Approve ffi5iX],'i,*ses e- fin:I$":Jir'* f;mmisioner
Sean passes
0.
10. Motion to approve a Memorandum of Understanding between Augusta and the Item
Downtown Development Authority of Augusta, Georgia ("DDA") regarding Action:
the use of SPLOST funds for the renovation and rehabilitation of the Miller Approved
Theater. (Approved by Finance Committee October 10, 2017)
E Outside Aqcncv Asreement DDA_siqned.pdf
E Lease for 708 Brord,odf
E Assisnment olLeases-and-Rents.odf
E Legal Description - 708 Broad Street pdf
B SNDaJror oo,q,.ndf
IB ItemAnprovalsheet html
Motions
[|11" Motion Text Made By seconded By Motion'f'ype -'---- -J Result
Motion to
A ___^_.^ approve. Commissioner CommisionerApprove Motion passes 9- Mary Davis Sean Frantom Passes
0.
ENGINEERING SERVICES
11. Motion to approve and adopt proposed Ordinance changes to the Augusta, Item
Georgia code section 3-5-95.11 to create a Residential Parking Permit Program. Action:
(Approved by Engineering Services Committee October lAr20L7) Approved
Motion to approve.
Voting No:
Approve commissioner commisioner commissioner
Marion Williams. Sean Frantom Sammie Sias Passes
Motion Passes 8-1.
12. Motion to approve entering into an agreement with Georgia Power stating that Item
the City ofAugusta, GA will pay for the GP Transmission (GPT) Facility Action:
Relocation Costs on the Berckmans Road Widening & Realignment Phase II Approved
Project in accordance with the estimate totaling $318,673.00. Also, approve
the Utility Relocation Agreement to be executed by the Augusta, GA Legal
Counsel and the Mayor and approve payment upon completion of the work as
requested by Augusta Engineering Department. (Approved by Engineering
Services Committee October 10, 2017)
E Ordinance Residential Prrkinq Zone.pdf
lH ItemAonrovalsheet html
Motions
Motion Motion Textr ype
E Apreement-GPT - Berckmans Road Phase Il.ndf
E CPB Ga Power Asmt 9.29.20l7.xtsx
IB ItemAnorovalsheet.html
Motions
X:j:"t Motion Text Made Byr ype
Made By Seconded By
Seconded By
Motion
Result
Motion
Result
Motion to
Approve flX5,,#r"sses e- fl:ilts"Tl;"' S:#Tl'u"ffi passes
0.
13. Motion to approve and authorize supplemental reimbursement to Georgia Item
Power Transmission (GPT) in amount of $186,300 for cost to relocate their Action:
transmission facilities for improving Druid Park Improvements Project. Also Approved
approve modifying the Utility Relocation Agreement befween GPT and theCity from $849,328.00 to $1,035,628.00 as requested by Augusta Engineering
Department. (Approved by Engineering Services Committee October 10,
20t7)
lB CMR Druid Park AYe GPT.pdf
E CPB Druid Park 09.27.17,xtsx
E ItemAoorovalsheet html
Motions
Motion--"-'-.. Motion Text Made Byrype
14. Motion to approve and award the Engineering Design Services Consultant Item
Services Agreement (CSA), to Hussey Gay Bell in the amount of Action:
$1,136,478.00 for the Enhance Operational Efficiency of Various Intersections Approved
for Augusta, Georgia Project as requested by AED/TE. Award is contingent
upon receipt of signed Agreement. RFQ 17-127 (Approved by Engineering
Services Committee October L0, 2017\
E PI 0012866 ExecutedPFA.pdf
B PI 0012867 Execut€d PFA.pdf
E Pl 0012868 Executed PFA.pdf
IB HussevGavBellProposrl.udf
IB l7-127 RFO_sent to-oewspaper.pdf
B 17-127 TAB OFFICIAL.Ddf
B Copy of Oper Elficiency Various Intersections-Pl 12866 - HGB 091217.pdf
lB 17-127 Cumulative,pdf
lB l7-127 Department Recommendetion of Award.pdf
E Process Resarding RFOs.odf
lB Mail Label and Demandstar Planholders.ndf
lE ItemAporovrlsheet.html
Motion to
^ aDDrove.APProve vtotion Passes 9-
0.
Motions
f#:" Motion rext Made Bv
Motion to
, aDDrove.APProve vtotio, passes 9-
0.
Commissioner Commisioner
Mary Davis sean Frantom Passes
Seconded By
Seconded By
Motion
Result
Motion
Result
Commissioner Commisioner
Mary Davis Sean Frantom Passes
15. Motion to authorize condemnation to acquire property in Fee Simple Interests Item
(Parcel 087-4-106-00-0) - 2046 Golden Rod Street. (Approved by Action:
Engineering Services Committee October 10, 2017) Approved
E Condemnation Reouest - 2046 Golden Rod Slreet.odf
E Map - 2046 Golden Rod Street.ndf
B ItemApprovalsheet.html
Motions
Y:j*1" Motion Text Made By seconded By Motion
Type --------- -r Result
Motion to
a - -^_--___ approve. Commissioner CommisionerApprove vtotio, Passes 9- Mary Davis Sean Frantom rasses
0.
16. Motion to authorize condemnation to acquire property in Fee Simple Interests Item
(Parcel 087-4-107-00-0) - 2048 Golden Rod Street. (Approved by Action:
Engineering Services Committee October 10, 20L7\ Approved
lB Condemnation Reouest - 2048 Golden Rod Street pdf
E Man - 2048 Golden Rod Street ndf
B ltemAoorovalsheet html
Motions
X:'i"' Motion Text Made By seconded By f*Xfrype
Motion to
a ^.-..^__^ approve. Commissioner CommisionerApprove trlto,io, passes 9- Mary Davis Sean Frantom Passes
0.
17. Motion to approve budget increase for on-call asphalt and concrete repairs for Item
Bid 16-224. (Approved by Engineering Services Committee December 13, Action:
2016 and October 10, 2017\ Approved
B Gerosie Carolinr Bid 16-224 Purchase Order.ndf
lE ItemApprovalsheet.html
Motions
f#:"' Motion rext Made By seconded By Hif
Motion to
aqpr.ove: ^ Commissioner CommisionerApprove Motion Passes 9- ."r"^::'il:'.;^""^ ;::=:^:-:; Passes
0.
"""" - Mary Davis Sean Frantom
18. Motion to approve the Award of RFP Item #17-167 for The Revenue Item
Enhancement and Recovery Project to Utility Revenue Management. Action:
(Approved by Engineering Services Committee October L0r20l7) Approved
B flRM Standard_Contract 2017.doc
lB 17-167 ITB to Newspaper.pdf
E 17.167 TAB OFFICIAL - COPV.Pdf
lB 17-167_Cummulative.pdf
B Recommendation Letter from Denartment.pdf
E Process-Resardins RFPs.odf
lB Mail List and Demandstar Planholders,pdf
IB ItemApprovalsheet.html
Motions
Y:j*1"" Motion Text Made By seconded By Motion
Tvne ResultJf
Motion to
a.-__, -_._ approve. Commissioner CommisionerApprove vtotion Passes 9- Mary Davis Sean Frantom rasses
0.
19. Motion to approve the installation of Twenty Streetlights on Covington Court, Item
Burlington Drive, and Marble Court at a cost of $124.80 per year. This is also Action:
to approve a new lighting tax district for the 51 lots associated with the above Approved
roads. Funding is available in the Street Lighting budget account
#2760416105312310. (Approved by Engineering Services Committee
October l0r20l7)
B ltemAporovalsheet,html
Motions
Motion Motioniro;- Motion Text Made By Seconded By Resutt
Motion to
a,- -..__-_ approve. Commissioner Commisioner DApprove vtotion Passes 9- Marion Williams Sean Frantom Passes
0.
PETITIONS AND COMMUNICATIONS
20. Motion to approve the minutes of the regular meeting held October 3, Item
2017, and Special Called meeting held October 10, 2017. Action:
Approved
lE Resular Commission Meetins October 3 20l7.pdf
IE Called-Commission MeetinLoctober-10 20l7.pdf
IB ItemApprovalSheet.html
Motions
Y:j*ill Morion Text Made By seconded By'r'ype
APPOTNTMENT(S)
21. Motion to approve the appointment of Mr.Kelvin Rhodes to the General Item
Aviation Commission (Daniel Field Airport) to fill the unexpired term of Frank Action:
Scharite representing District 3. Approved
B Kelvin Rhodes Telent Bankpdf
B ltemApprovalsheet.html
Motions
Motion;"""" Motion Text Made By Seconded By'I vDe
Motion to
^ aDDrove.APProve uotion passes 9-
0.
Motion to
^ approve.APProve Motion Passes 9-
0.
Commissioner Commisioner
Mary Davis Sean Frantom
Commissioner Commisioner
Mary Davis Sean Frantom
Motion
Result
Passes
Motion
Result
Passes
the Augusta Item
Action:
Approved
22. Motion to approve the appointment of Mr. Gaylon Tootle to
Public Transit Citizens Advisory Board representing District 6.
IB Gavlon L. Toolte.pdf
lH ItemAonrovalsheet.html
Motions
Motion Motion
Type Motion Text Made By Seconded By Result
Motion to
a ---^_,^ approve. Commissioner Commisioner
^pprove Motion Passes 9- Mary Davis Sean Frantom rasses
0.
,. r( r( rf END C0NSENT AGENDA,T TT * *
AUGUSTA COMMISSION
t0n7t20t7
AUGUSTA COMMISSION
REGULAR AGENDA
10117 t2017
(Items 23-24)
FINANCE
23. Approve Water and Sewer Revenue Bonds, Series 2017 supplemental bond Item
resolution and authorize the Mayor and Clerk to sign all necessary documents Action:
to refund the Augusta Georgia Water and Sewer Revenue Bonds, Series 2007, Approved
currently outstanding in the aggregate principal amount of $123,775,000.
E Supplemental Series 2017 bond resolution.pdf
B Auqusta Georgia Water and Sewerase Revenue Refundins Bonds Preliminarv Official Statement.odf
B Aususta-Georeia Water and Sewerase-Revenue Refundins Bonds-Notice_of Sale.pdf
IB ItemAoorovalsheet.html
Motions
X:^ti" Motion Text Made By seconded By Motion'l'ype ''^--- -r Result
Motion to
^ approve. Commisioner CommissionerApprove Motio, passes 9- sean Frantom Mary Davis Passes
0.
ADMINISTRATOR
24. Presentation of the 2018 FY Proposed Budget. Item
Action:
None
[B ItemApprovalsheet.html
Motions
Motion Made Seconded Motion
i;;- Motion Text By By Resuu
Presentation is made by the
Administrator regarding the 2018
budget.
LEGAL MEETING
A. Pending and Potential Litigation.
B. Real Estate.
C. Personnel.
25. Motion to approve execution by the Mayor of the affidavit of ltem
compliance with Georgia's Open Meeting Act.Action:
None
Upcolqtlng Megting;
www.ausustasa.sov
CALLED MEETING COMMISSION CHAMBER
October 31,2017
Augusta Richmond County Commission convened at 11:00 a.m., Tuesday, October 31,
2017, the Honorable Hardie Davis, Jr., Mayor, presiding.
PRESENT: Hons. Jefferson, Guilfoyle, Sias, Frantom, M. Williams, Davis, Fennoy, D.
Williams, Hasan and Smith, members of Augusta Richmond County Commission.
Mr. Mayor: We'll call this meeting to order. The Chair recognizes Attorney MacKenzie.
1. LEGAL MEETING
A. Pending and potential litigation
B. ReaI estate
C. Personnel
Mr. MacKenzie: I would entertain a motion to go into an executive session to discuss
pending and potential Htigation, real estate and personnel.
Mr. Fennoy: So move.
Mr. D. Williams: Second.
Mr. Mayor: I've got a motion and a second. Voting.
Mr. Smith out.
Motion carries 9-0.
IEXECUTTVE SESSTONI
Mr. Mayor: We'll come back to order. We've got some gifts from the Mayor's Office.
Hopefully you'll enjoy the treats. There are no tricks, just treats. I'll recognize Attorney
MacKenzie.
2. Motion to authorize execution by the Mayor of the affidavit of compliance with
Georgia's Open Meeting Act.
Mr. MacKenzie: I would entertain a motion to execute the closed meeting affidavit.
Mr. Fennoy: So move.
Mr. Frantom: Second.
Mr. Mayor: Voting.
Mr. Jefferson out.
Motion carries 9-0.
Mr. Mayor: At this moment we're going to hear a motion and the next order of business
is the matter concerning health benefits. There was a budget workshop to further affirm that
conversation that took place on last Friday. (inaudible) You'll have a very presentation from Ms.
Jackson and then we'll ratifu what you all discussed on last Friday. The Chair recognizes Attorney
MacKenzie first.
Mr. MacKenzie: I would entertain a motion to approve a settlement resolution for
the Workers Compensation claims of Robert Seymore in the amount of $3201000 with
Augusta's contribution being approximately $2671000 and to amend the budget to transfer
Augusta's contribution from the Utilities fund to the Workers Compensation fund.
Mr. Fennoy: So move.
Mr. Hasan: Second.
Mr. Mayor: A motion and a proper second. Voting.
Mr. Jefferson out.
Motion carries 9-0.
Mr. Mayor: All right, thank you. The Chair recognizes Madam Administrator.
Ms. Jackson: Thank you, sir. I will call your attention to the Administrative Services
Committee agenda item #1 relates to approving changes to our Blue Cross major medical
plan. This itern should have appeared on the special Called meeting agenda for today. As you
will recall from our discussion on Friday, we discussed the timeliness of being able to advise our
employees of plan changes. We would like to provide an electronic notification to our ernployees
by tomorrow that would give ADP, our private provider, sufficient time to make all of the changes
within their system and give our HR Department time to set up open enrollment beginning the
middle of this month. Those changes that would require your approval relate to what are
considered to be material changes. Those plan changes include addition of deductibles for our
plan. Currently we don't have any deductibles. Those deductibles are outlined as an attachment
to the agenda item that I referenced on Administrative Services number one. A deductible of $300
for the employee only plan, $600 for the employee plus one and $900 for the employee plus two
and above. Next increasing the co-pay for a primary care physicians and specialists, currently $30
and $50 respectively increasing those to $40 and $60 respectively, and also increasing the co-pay
for emergency room visits from the current $300 to $400. tn addition in the section above there it
talks about the proposed changes in premium amounts and that goes through every category for
each type of plan that we have, what those changes would be. All of this is consistent with the
information that we provided to you on Friday morning in our workshop. We do have Miss Kelly,
our consultant, available, we can make her available by phone if you have any questions but I
believe we had a pretty comprehensive discussion on Friday. If there are any questions, please
advise.
Mr. Mayor: All right, again is there any debate about this matter? I think it's time based
on the timeline that we have of wanting to one, corlmunicate to the anployees by way of notice
but as I understand it, Ms. Jackson, also open enrollment beginning tomorrow?
Ms. Jackson: It doesn't begin tomorrow. We'll notifu employees tomorrow with open
enrollment beginning at the middle of the month, I believe November 13ft.
Mr. Mayor: Which will then carry through December 13, is that correct?
Ms. Jackson: Yes.
Mr. Mayor: Okay. All right, very well. All right, the Chair will recognize the
commissioner from the I't.
Mr. Fennoy: Just for clarity, Mr.
going to address right now?
Ms. Jackson: That is correct.
Mayor, this is a special called meeting itern that we're
Mr. Fennoy: Motion to approve, Mr. Mayor.
Mr. Hasan: Second.
Mr. Mayor: I've got a motion and a second from the commissioner from the 6ft, Ms.
Bonner. Al1right, Commissioner Guilfoyle, is that your hand up? I'll recognize the commissioner
from the 8ft.
Mr. Guilfoyle: Thank you, Mr. Mayor. Madam Administrator, this has nothing to do with
the building of a new facility for the Wellness Program for our employees does it?
Ms. Jackson: As part of our presentation on Friday we did discuss it but no, what you're
asked to approve today is those co-pays, deductibles and premium changes. We have put out an
RFP for Wellness Center expansion. The result of that RFP will have to come before you in a
separate agenda itan.
Mr. Guilfoyle: Would you take this in consideration when we go to that moment to vote
on that? Some of the things I'm hearing as far as when people have to go to physicians and you
don't have an appointment they only accept four people that's standing in line after 1:30 in the
aftemoon and if you're the fifth person, you've either got to try to be there the next day or the
following day. Something that I was enlightened on as well if we can look into this is that a lot of
people, I asked an employee I said, "Why is people utilizing the anergency room which costs us,
you know, $1200 more than going to a normal physician?" And she was actually telling me the
reason why is because your primary care doctor at this time, if you go there and you need a
specialist, let's say a heart or any other type of specialist, that they don't have the referral, they
can't give you a referral to another specialist. And that's the reason why the employees are going
to the emergency room because they'll have direct referral. Can we find some kind of solution on
that? I know that the ernployee has to paythe $300 up front but I think if it's that much important
to thern that they will get the specialist that they do desire because they cannot obtain it through
their normal physician. That was just brought to me. I see certain people with eyes looking kind
of funny but can we look into that when we do address that issue?
Ms. Jackson: We can look into it, sir, but generally your primary care physician or the
Wellness Center should be able to make a referral to a specialist. On your first question about the
wait at the Wellness Center, that's precisely why we want to expand the Wellness Center because
we know right now they don't have the capacity to see as many people who want to come in to be
seen so that's why our recoflrmendation is to expand it.
Mr. Guilfoyle: All right, thank you.
Mr. Mayor: A1l right, the Chair recognizes the commissioner from the 9ft.
Mr. M. Williams: Thank you, Mr. Mayor. Ms. Jackson, I'm in support but I guess my
question would be if we vote and pass those increases, something that we have to do, is that because
of the change, because I'm thinking about how that's going to offset any increase we give the
ernployees it's going to be consumed with this vote we're fixing to take now.
Ms. Jackson: Sir, as we had discussed on Friday, for an employee only plan for instance,
the per pay period adjustment is less than $5.00 so it is a relatively small amount across the board.
I think we gave examples at different compensation levels of how much it would cost. I think most
of the costs were less than $200 for the year for the increase in the plan so I understand that that's
a consideration but we tried to make these increases as minimal as possible. Also our employees
have not had any increase in premiums since 2012 md the organization has been absorbing the
increased cost over that time period as healthcare costs have escalated so that is the reason we felt
it was important to make the recommendation at this time for a change.
Mr. M. Williams: Well, I'm just putting it out there. I'm not opposed, I'm just thinking
and you mentioned the employee only but most of our employees have a family associated with
their insurance, not just themselves. There's a few of us that's just worried about the one but then
most of us are considerate of their wife and at least two children if not more. So that changes all
that so I just wanted to put it on the record. If it's something we've got to do, then we have to do
it but it's kind of a catch22 in my opinion.
Ms. Jackson: Even, sir, employee plus two which actually over a thousand of our
employees are employee only. We've got about 700 plus that are in the employee plus two range.
At the recommended levels we'd be looking at an annual increase of $176.
Mr. Mayor: Okay. We've got a motion and a proper second. The Chair recognizes the
commissioner from the 6ft for a question.
Mr. Hasan: Thank you, Mr. Mayor. Madam Administrator, kind of looking at the PSO
and the HMO, can you give me some clarity between the difference between those two?
US?
Ms. Jackson: Yes, the, one of those is, is basically dealing with whether you're in network
or out of network. If you'll look at the wellness rate for the HMO plan, the majority of our
employees are in HMO plans. We only have a few employees that are at that higher level, the
PSO plan. I think it's less than 5o/o of our total contracts.
Mr. Hasan: So it's in network and out of network, that's what you're saying?
Ms. Jackson: Um-huh.
Mr. Hasan: Thank you, Mr. Mayor.
Mr. Mayor: All right, voting.
Motion carries 10-0.
Mr. Mayor: All right, fantastic. Attomey MacKenzie, is there any other business before
Mr. MacKenzie: That's all I have.
Mr. Mayor: All right, thank you. Committee meetings.
IMEETING ADJOURNED]
Lena J. Bonner
Clerk of Commission
CERTIFICATION:
I, Lena J. Bonner, Clerk of Commission, hereby certify that the above is a true and correct copy
of the minutes of the Called Meeting of the Augusta Richmond County Commission held on
October 31,2017.
Clerk of Commission
Commission Meeting Agenda
11/7/2017 2:00 PM
Appointment Dist. 1
Department:
Department:
Caption:Motion to approve the appointment of Mr. Erich Braun to the
General Aviation Commission - Daniel Field representing District
1. (Requested by Commissioner Bill Fennoy)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Foundry Place_Resolution Adoption
Department:Housing and Community Development Department
Department:Housing and Community Development Department
Caption:Motion to adopt the Authorizing Resolution providing for
approval of an Intergovernmental Redevelopment Contract,
between Augusta and the Urban Redevelopment Agency of
Augusta, in support of the Foundry Place project to be leased by
the Urban Redevelopment Agency of Augusta to Columbia
Ventures, LLC pursuant to the referenced Lease Agreement,
subject to incorporating the modification terms contained in the
October 2, 2017 Columbia Ventures, LLC memorandum to
Augusta. (Requested by Commissioner Bill Fennoy)
Background:FOUNDRY PLACE will be a newly constructed 221 unit
multifamily development to be located as a gateway to the historic
Laney Walker / Bethlehem Revitalization area (LW/B), and is one
of 6 targeted areas for development identified by the LW/B
Plan. This development encompasses 7.6 acres, has been re-zoned
as a Planned Urban Development (PUD), serves as one of the
primary gateway corridors into these historic neighborhoods, and
would provide impactful revitalization of a historically depressed
area. The completion of this project would significantly contribute
to LW/B’s goal of redeveloping the existing neighborhoods,
repopulating the communities, and leveraging both the City's
investment to date and over $175M of recent capital
improvements at Augusta University. The taxes generated from
this project would help pay back the funds expended by the City
previously in creating the LW/B Revitalization Area, and at the
conclusion of this project, the City will be paid additional funds to
deploy in the next identified area project. FOUNDRY PLACE,
will be developed, built and managed through the joint efforts of
Augusta, GA (through Housing and Community Development
Department), the Urban Redevelopment Agency, and Columbia
Ventures whose primary focus is centered on the development of
housing anchored mixed-use developments in urban locations in
the southeastern United States. Columbia Ventures, LLC, a
minority founded developer with 8,000+ units under management,
was created in collaboration with the principals of the award-
Cover Memo
winning affordable housing development and property
management firm Columbia Residential, and has created a market-
rate development and investment company with a unique skill set,
dynamic approach to urban development. This development will
consist of approximately 221 one, two, and three bedroom units
(avg. size of 996 sq. ft.) with an average rent of $1200/month.
Columbia Ventures will outlay its own cash in pre-development
and to begin the construction and then receive a loan in the form
of financing from economic development bonds. The project
marketing will be targeted to families returning to the revitalized
neighborhood, medical professionals, medical/graduate students,
area workers and professors to name a few.
Analysis:New Construction of a 221 market rate unit apartment community
(7.6 acres) in the Laney Walker/Bethlehem neighborhood as part
of the comprehensive LW/B Urban Redevelopment Plan. The
mission of the developer is to provide an impactful project to this
notated gateway corridor, utilize the support of civic
organizations, governmental authorities and residential neighbors
in providing neighborhoods that matter in a mixed income and
mixed tenure housing environment with first-class amenities in an
aesthetically superior combination of land planning, architectural
elements and landscaping.
Financial Impact:• Augusta, GA’s involvement: backing of a maximum of $27
million of “economic development” bonds (100% of bonds paid
by Developer) • Project to be sold or refinanced within 7 years at
which time all bonds are paid off and Augusta, GA has no
liability • Columbia Ventures pays 100% of bond and interest
costs through lease payments • Columbia Ventures is investing
20% of the total development cost (approximately $6,500,000) in
addition to making all debt payments •All of Columbia Ventures
investment must go into the project before bond funds are used •A
minimum of 15% of all construction costs will be spent via
contracts or materials in the Augusta MSA A competitive bid
process will be used to select a qualified general
contractor •Columbia Ventures pays Augusta for the land when
the project is sold •No federal money is in this project
Alternatives:If Augusta Commission does not vote favorably to adopt the
resolution as presented, this project will stop, but Augusta will
still own the land and need to find another project or leave it
vacant
Recommendation:Move to adopt the Authorizing Resolution providing for approval
of an Intergovernmental Redevelopment Contract, between
Augusta and the Urban Redevelopment Agency of Augusta, in
support of the Foundry Place project Cover Memo
Funds are Available
in the Following
Accounts:
•Economic Development Bonds •Developer Capital Infusion
REVIEWED AND APPROVED BY:
Cover Memo
35485061.v2
AUTHORIZING RESOLUTION
WHEREAS, the Augusta-Richmond County Commission (the “Commission”), which is
the governing body of Augusta, Georgia (the “Consolidated Government”), in order to exercise
the powers conferred upon the Consolidated Government by Chapter 61 of Title 36 of the
Official Code of Georgia Annotated, entitled the “Urban Redevelopment Law,” as amended (the
“Urban Redevelopment Law”), adopted a resolution on March 16, 2010, finding that one or more
slum areas exist in Augusta, Georgia and that the rehabilitation, conservation, or redevelopment,
or a combination thereof, of such area or areas is necessary in the interest of the public health,
safety, morals, or welfare of the residents of Augusta, Georgia; and
WHEREAS, the Commission, by resolution adopted on March 16, 2010, designated the
area covered by the hereinafter described urban redevelopment plan as a “slum area” that the
Commission designated as appropriate for urban redevelopment projects; and
WHEREAS, the Commission held public hearings on March 22, 2010 and April 1, 2010,
on a proposed urban redevelopment plan entitled “Laney-Walker and Bethlehem Urban
Redevelopment Plan” (the “Urban Redevelopment Plan”), a copy of which is on file with the
Consolidated Government; and
WHEREAS, public notice of such public hearings was published in The Augusta
Chronicle, a newspaper having a general circulation in the area of operation of the Consolidated
Government, and proof of such publication is on file with the Consolidated Government; and
WHEREAS, the Commission, by resolution adopted on April 1, 2010, approved the
Urban Redevelopment Plan and the urban redevelopment projects set forth therein; and
WHEREAS, the Urban Redevelopment Agency of Augusta (the “Issuer”) is a public
body corporate and politic duly created and validly existing under and pursuant to the Urban
Redevelopment Law; and
WHEREAS, the Consolidated Government, by resolution adopted on April 1, 2010,
activated the Issuer and elected to have the Issuer exercise the Consolidated Government’s
“urban redevelopment project powers” under the Urban Redevelopment Law, and the Issuer’s
commissioners have been appointed as provided in the Urban Redevelopment Law and are
currently acting in that capacity; and
WHEREAS, an Act of the General Assembly of the State of Georgia, which became
effective on July 1, 2015, amended the Urban Redevelopment Law to substitute the terms
“pocket of blight” and “pocket of blight clearance and redevelopment,” for the terms “slum area”
and “slum clearance and redevelopment,” although the meanings assigned to such terms were not
amended; and
WHEREAS, the Urban Redevelopment Law authorizes the Consolidated Government to
appropriate such funds and make such expenditures as may be necessary to carry out the
purposes of the Urban Redevelopment Law and to levy taxes and assessments for such purposes;
and
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35485061.v2
WHEREAS, Article IX, Section III, Paragraph I of the Constitution of the State of
Georgia of 1983 authorizes the Consolidated Government to contract for any period not
exceeding fifty years with any public corporation or public authority for joint services, for the
provision of services, or for the joint or separate use of facilities or equipment, if such contract
deals with activities, services, or facilities that the contracting parties are authorized by law to
undertake or provide; and
WHEREAS, in furtherance of the purposes for which it was created, the Issuer proposes
to issue not to exceed $28,000,000 in original aggregate principal amount of its Urban
Redevelopment Agency of Augusta Revenue Bonds (CV Foundry Apartments, LLC Project),
Federally Taxable Series 2017 (the “Bonds”), in order to finance the costs of acquiring,
constructing, and installing an urban redevelopment project consisting of land, buildings,
improvements, machinery, fixtures, furnishings, equipment, and other real and personal property
located within the territorial limits of Augusta, Georgia, constituting an approximately 221-unit
apartment community to be located on an approximately 7.6-acre site at the intersection of
Railroad Avenue and Wrightsboro Road (the “Project”), which site is in the area covered by the
Urban Redevelopment Plan, and to finance related costs; and
WHEREAS, the Issuer expects to lease the Project to CV Foundry Apartments, LLC, a
Georgia limited liability company (the “Lessee”), pursuant to a Lease Agreement, to be dated the
date of its execution and delivery (the “Lease Agreement”), under the terms of which the Issuer
will acquire, construct, and install the Project and the Lessee will lease the Project from the
Issuer and will pay to the Issuer such rentals at such times and in such amounts as will be
required to enable the Issuer to pay the principal of, premium, if any, and interest on the Bonds,
as and when the same become due; and
WHEREAS, to secure the Lessee’s obligations under the Lease Agreement, the Issuer
proposes to require the Lessee to cause Columbia Ventures, LLC (“Columbia”), a Georgia limited
liability company, and Noel Khalil, Jim Grauley, Dillon Baynes, and Jakob von Trapp, each
individuals (collectively the “Guarantors”), to execute and deliver a Limited Guaranty Agreement
(the “Limited Guaranty”), to be dated as of the first day of the month of its execution and
delivery, between the Guarantors and the Issuer, under the terms of which the Guarantors will agree
to absolutely and unconditionally, jointly and severally guarantee the obligations of the Lessee
under the Lease Agreement; provided, the Limited Guaranty will expire when the Project achieves
Project Stabilization (as defined in the Lease Agreement); and
WHEREAS, to secure its obligation to pay principal of, premium, if any, and interest on
the Bonds, the Issuer proposes to assign and pledge to U.S. Bank National Association (the
“Trustee”), as trustee, and proposes to grant a first priority security interest in, all of its right,
title, and interest in the Lease Agreement (except for the Unassigned Rights, as defined in the
Lease Agreement), the Limited Guaranty, the hereinafter described Security Deed, and the
hereinafter described Assignment of Contract Documents and in certain funds established and
held thereunder, pursuant to a Trust Indenture and Security Agreement (the “Indenture”), to be
dated as of the first day of the month of its execution and delivery, between the Issuer and the
Trustee; and
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35485061.v2
WHEREAS, to further secure the obligations of the Issuer under the revenue bonds to be
issued, the Issuer proposes to cause the Lessee to execute and deliver in favor of the Trustee a
Bond Guaranty Agreement (the “Bond Guaranty”), dated as of even date herewith, between the
Lessee and the Trustee, pursuant to which the Lessee will absolutely and unconditionally
guarantee the obligations of the Issuer under the Bonds; and
WHEREAS, to further secure the Lessee’s obligations under the Lease Agreement and
the Bond Guaranty, the Issuer proposes to require the Lessee to (1) grant to the Issuer a first lien
on and first security title to certain real property constituting the Project, will assign and pledge
to the Issuer the Lessee’s interest in certain rents and leases derived from the Project, and will
grant to the Issuer a first priority security interest in certain personal property constituting the
Project, in certain revenues derived from the Project, and in certain contracts to which the Lessee
is a party, pursuant to a Leasehold Deed to Secure Debt and Assignment of Rents and Leases
(the “Security Deed”), to be dated the date of its execution and delivery, from the Lessee to the
Issuer, and (2) collaterally assign and grant to the Issuer a first priority security interest in certain
contracts relating to the Project, pursuant to an Assignment of Contract Documents (the
“Assignment of Contract Documents”), dated the date hereof, by the Lessee in favor of the
Issuer; and
WHEREAS, in consideration of the issuance of the Bonds by the Issuer to finance the
costs of acquiring, constructing, and installing the Project in furtherance of the Urban
Redevelopment Plan, the Consolidated Government proposes to enter into an Intergovernmental
Redevelopment Contract, to be dated as of the first day of the month of its execution and
delivery (the “Contract”), with the Issuer, the form of which Contract has been filed with the
Consolidated Government and submitted to the Commission, under the terms of which Contract
the Consolidated Government (1) will agree to make payments to the Issuer in amounts sufficient
to enable the Issuer to pay the principal of, premium, if any, and interest on the Bonds when due,
to the extent the rental payments made by the Lessee pursuant to the Lease Agreement are
insufficient for such purposes, and (2) will agree to levy an annual ad valorem tax on all taxable
property located within the territorial limits of the Consolidated Government, at such rate or
rates, within the mill limit prescribed by an amendment to Article VII, Section I, Paragraph II of
the Constitution of the State of Georgia of 1945 (1980 Ga. Laws 2177 to 2180, inclusive), now
specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant to an
Act of the General Assembly of the State of Georgia (1983 Ga. Laws 3870 to 3872, inclusive), or
within such greater millage as may hereafter be prescribed by applicable law, as may be
necessary to produce in each year revenues that are sufficient to fulfill the Consolidated
Government’s obligations under the Contract; and
WHEREAS, pursuant to the terms of the Indenture, the Issuer will also pledge the
amounts received from the Consolidated Government under the Contract as security for payment
of the Bonds; and
WHEREAS, the Issuer proposes to authorize the marketing of the Bonds by means of a
Preliminary Official Statement (the “Preliminary Official Statement”) and an Official Statement,
to be dated the date of its execution and delivery (the “Official Statement”), both of which will
contain information about the Issuer, the Lessee, the Consolidated Government, and the Project;
and
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35485061.v2
WHEREAS, the Issuer adopted a Bond Resolution (the “Bond Resolution”) on June 21,
2017 pursuant to which the Issuer (1) authorized the issuance of the Bonds, (2) authorized the
execution, delivery, and performance by the Issuer of the Lease Agreement, the Limited
Guaranty, the Indenture, the Security Deed, the Assignment of Contract Documents, and the
Contract (collectively the “Issuer Documents”), and (3) approved the form and substance of the
Bond Guaranty; and
WHEREAS, pursuant to that certain Memorandum, dated October 2, 2017 (the
“Memorandum”), from Jakob von Trapp, Partner, Columbia Ventures, LLC, to Hawthorne
Welcher, Director, Augusta Department of Housing and Development, Columbia has proposed
certain modification terms in response to concerns raised by the Commission, and the Issuer
proposes to adopt a Supplemental Bond Resolution providing for such modification terms to be
incorporated into the Issuer Documents; and
WHEREAS, the Bond Resolution, with the forms of the Issuer Documents and the Bond
Guaranty attached as exhibits thereto, the Preliminary Official Statement, and the Memorandum
have been filed with the Commission; and
WHEREAS, after careful study and investigation, the Consolidated Government desires
to enter into the Contract;
NOW, THEREFORE, BE IT RESOLVED by the Augusta-Richmond County
Commission as follows:
1. The form, terms, and conditions and the execution, delivery, and performance of the
Contract, which has been filed with the Consolidated Government, are hereby approved and
authorized. The Contract shall be in substantially the form submitted to the Commission with
such changes, corrections, deletions, insertions, variations, additions, or omissions as may be
approved by the Mayor of the Consolidated Government, whose approval thereof shall be
conclusively evidenced by the execution of the Contract.
2. The Mayor of the Consolidated Government is hereby authorized and directed to
execute on behalf of the Consolidated Government the Contract, and the Clerk of Commission of
the Consolidated Government is hereby authorized and directed to affix thereto and attest the
seal of the Consolidated Government, upon proper execution and delivery of the other parties
thereto, provided, that in no event shall any such attestation or affixation of the seal of the
Consolidated Government be required as a prerequisite to the effectiveness thereof, and the
Mayor and Clerk of Commission of the Consolidated Government are authorized and directed to
deliver the Contract on behalf of the Consolidated Government to the other parties thereto, and to
execute and deliver all such other contracts, instruments, documents, affidavits, or certificates
(including, without limitation, a Rule 15c2-12 Certificate and a Continuing Disclosure
Certificate) and to do and perform all such things and acts as each shall deem necessary or
appropriate in furtherance of the issuance of the Bonds and the carrying out of the transactions
authorized by this Resolution or contemplated by the instruments and documents referred to in
this Resolution.
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35485061.v2
3. The use and distribution of the Preliminary Official Statement and the Official
Statement with respect to the Bonds shall be and is hereby authorized, ratified, confirmed, and
approved, and execution and delivery of the Official Statement in final form shall be and is
hereby authorized, ratified, confirmed, and approved. The Mayor is hereby authorized and
directed to ratify, confirm, approve, execute, and deliver the Official Statement on behalf of the
Consolidated Government, and the execution of an Official Statement by the Mayor shall
constitute conclusive evidence of the Mayor’s ratification, confirmation, approval, and delivery
thereof on behalf of the Consolidated Government.
4. The Mayor Pro Tem may take any action, or execute and deliver any document,
agreement, or other writing that the Mayor is authorized to execute and deliver pursuant to this
Authorizing Resolution. An Assistant or Deputy Clerk of Commission may attest any execution
of any document, agreement, or writing by the Mayor or the Mayor Pro Tem in the same manner
as the Clerk of Commission would be authorized to attest any such execution.
5. This Resolution and the Contract, as approved by this Resolution, which is hereby
incorporated in this Resolution by this reference thereto, shall be placed on file at the office of
the Consolidated Government and made available for public inspection by any interested party
immediately following the passage and approval of this Resolution.
PASSED, ADOPTED, SIGNED, APPROVED, AND EFFECTIVE this 7th day of
November 2017.
(SEAL)
AUGUSTA, GEORGIA
By:
Mayor
Attest:
Clerk of Commission
35485061.v2
CLERK OF COMMISSION’S CERTIFICATE
I, LENA J. BONNER, the duly appointed, qualified, and acting Clerk of Commission of
Augusta, Georgia (the “Consolidated Government”), DO HEREBY CERTIFY that the
foregoing pages of typewritten matter constitute a true and correct copy of a resolution adopted
on November 7, 2017, by the Augusta-Richmond County Commission (the “Commission”) in a
meeting duly called and assembled in accordance with applicable laws and with the procedures
of the Consolidated Government, by a vote of _____Yea and _____ Nay, which meeting was
open to the public and at which a quorum was present and acting throughout, and that the
original of the foregoing resolution appears of public record in the Minute Book of the
Commission, which is in my custody and control.
GIVEN under my hand and the seal of the Consolidated Government, this ____ day of
November 2017.
(SEAL)
Clerk of Commission
35876221v4
INTERGOVERNMENTAL REDEVELOPMENT CONTRACT
This INTERGOVERNMENTAL REDEVELOPMENT CONTRACT (this
“Contract”), made and entered into as of ______________, by and between Augusta, Georgia (the
“Consolidated Government”), a political subdivision of the State of Georgia, and the Urban
Redevelopment Agency of Augusta (the “Issuer”), a public corporation duly created and existing
under the laws of the State of Georgia;
W I T N E S S E T H:
In consideration of the respective representations and agreements hereinafter contained
and in furtherance of the mutual public purposes hereby sought to be achieved, the Consolidated
Government and the Issuer do hereby agree, as follows:
ARTICLE I
DEFINITIONS
Certain words and terms used in this Contract shall have the meaning given them in
Section 1.01 of the Lease Agreement, which by this reference is incorporated herein. In addition
to the words and terms defined elsewhere herein, the following words and terms shall have the
meanings set forth below. When used herein, such words and terms shall have the meanings
given to them by the language employed in Section 1.01 of the Lease Agreement and in this
Article I defining such words and terms, unless the context or use clearly indicates otherwise.
“Additional Contract” means a contract or supplemental agreement entered into after the
date hereof binding the Consolidated Government pursuant to Article IX, Section III, Paragraph I
of the Constitution of the State of Georgia of 1983, pursuant to the terms of which a payment
obligation is created or expanded from the Consolidated Government to the other party to such
contract.
“Constitutional Amendment” means an amendment to Article VII, Section I, Paragraph
II of the Constitution of the State of Georgia of 1945 (1980 Ga. Laws 2177 to 2180, inclusive),
now specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant
to an Act of the General Assembly of the State of Georgia (1983 Ga. Laws 3870 to 3872,
inclusive).
“Contract” means this Contract between the Consolidated Government and the Issuer, as
it may be supplemented and amended from time to time in accordance with the provisions hereof.
“Contracts” means the 2004 Solid Waste Authority Contract, the Prior Contracts, this
Contract, and all Additional Contracts.
“Fiscal Year” means any period of twelve consecutive months adopted by the
Consolidated Government as its fiscal year for financial reporting purposes and will initially mean
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35876221v4
the period beginning on January 1 of each calendar year and ending on December 31 of the same
calendar year.
“Governing Body” means, in the case of the Issuer, the Board of Commissioners of the
Issuer and, in the case of the Consolidated Government, the Augusta-Richmond County
Commission.
“Lease Agreement” means the Lease Agreement, dated the date hereof, between the
Issuer and the Lessee, as the same may be supplemented and amended from time to time in
accordance with the provisions thereof.
“Lessee” means CV Foundry Apartments, LLC, a Georgia limited liability company, and
its successors and assigns.
“Person” means natural persons, firms, joint ventures, associations, trusts, partnerships,
corporations, and public bodies.
“Prior Contracts” means, collectively, the Intergovernmental Contract, dated as of
December 7, 2010, between the Solid Waste Management Authority of Augusta and the
Consolidated Government; the Agreement of Sale, dated as of August 1, 2010, between the
Augusta-Richmond County Coliseum Authority and the Consolidated Government; the
Intergovernmental Service Agreement, dated as of August 1, 2010, between the Augusta-
Richmond County Coliseum Authority and the Consolidated Government; the Intergovernmental
Agreement, dated as of August 1, 2014, between the Issuer and the Consolidated Government;
the Intergovernmental Service Agreement, dated as of September 15, 2015, between the Issuer
and the Consolidated Government; and the Agreement of Sale, dated as of ______ 1, 2017,
between the Issuer and the Consolidated Government, as the same may be supplemented and
amended from time to time in accordance with the provisions thereof.
“Purchaser” means, for purposes of the Series 2017 Bonds, _____________.
“Series 2017 Bonds” means the revenue bonds designated “Urban Redevelopment
Agency of Augusta Revenue Bonds (Foundry Place Project), Federally Taxable Series 2017,” to
be dated the date of issuance and delivery thereof, in the aggregate principal amount of
$_________, to be issued pursuant to the Indenture.
“Series 2017 Disclosure Certificate” means the Continuing Disclosure Certificate
executed by the Consolidated Government and to be dated the date of issuance and delivery of the
Series 2017 Bonds, as originally executed and as it may be amended from time to time in
accordance with its terms.
“State” means the State of Georgia.
“2004 Solid Waste Authority Contract” means the Intergovernmental Contract, dated as
of September 1, 2004, between the Solid Waste Management Authority of Augusta and the
Consolidated Government, as the same may be supplemented and amended from time to time in
accordance with the provisions thereof.
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35876221v4
“Urban Redevelopment Area” means the area described in the Urban Redevelopment
Plan that the Governing Body of the Consolidated Government designated as appropriate for
urban redevelopment projects.
“Urban Redevelopment Law” means Chapter 61 of Title 36 of the Official Code of
Georgia Annotated, entitled the “Urban Redevelopment Law,” as amended, and as the same may
be from time to time additionally supplemented and amended.
“Urban Redevelopment Plan” means the urban redevelopment plan of the Consolidated
Government entitled the “Laney-Walker and Bethlehem Urban Redevelopment Plan,” a copy of
which is on file with the Consolidated Government.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations of the Consolidated Government. The Consolidated
Government makes the following representations as the basis for the undertakings on its part
herein contained:
(a) Creation and Authority. The Consolidated Government is a political subdivision
duly created and validly existing under the laws of the State. The Consolidated Government has
all requisite power and authority under the laws of the State to enter into, perform its obligations
under, and exercise its rights under this Contract. The Consolidated Government has taken all
actions required by the Urban Redevelopment Law to qualify the Project as an “urban
redevelopment project” thereunder, including, without limitation, designating the Urban
Redevelopment Area as an “urban redevelopment area” in accordance with the Urban
Redevelopment Law and approving the Urban Redevelopment Plan as an urban redevelopment
plan for the Project following public hearings required by the Urban Redevelopment Law. The
Urban Redevelopment Law authorizes the Consolidated Government to appropriate such funds
and make such expenditures as may be necessary to carry out the purposes of the Urban
Redevelopment Law and to levy taxes and assessments for such purposes. Article IX, Section
III, Paragraph I of the Constitution of the State of Georgia of 1983 authorizes the Consolidated
Government to contract for any period not exceeding fifty years with any public corporation or
public authority for joint services, for the provision of services, or for the joint or separate use of
facilities or equipment, if such contract deals with activities, services, or facilities that the
contracting parties are authorized by law to undertake or provide.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of the Consolidated Government, after making due
inquiry with respect thereto, threatened against or affecting the Consolidated Government in any
court or by or before any governmental authority or arbitration board or tribunal, which involve
the possibility of materially and adversely affecting the properties, activities, prospects, profits,
operations, or condition (financial or otherwise) of the Consolidated Government, or the ability
of the Consolidated Government to perform its obligations under this Contract, or the
transactions contemplated by this Contract or which, in any way, would adversely affect the
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35876221v4
validity or enforceability of this Contract or any agreement or instrument to which the
Consolidated Government is a party and which is used or contemplated for use in the
consummation of the transactions contemplated hereby or thereby, nor is the Consolidated
Government aware of any facts or circumstances presently existing that would form the basis for
any such actions, suits, or proceedings. The Consolidated Government is not in default with
respect to any judgment, order, writ, injunction, decree, demand, rule, or regulation of any court,
governmental authority, or arbitration board or tribunal.
(c) Agreement Is Legal and Authorized. The execution and delivery by the
Consolidated Government of this Contract, the consummation of the transactions herein
contemplated, and the fulfillment of or the compliance with all of the provisions hereof (i) are
within the power, legal right, and authority of the Consolidated Government, (ii) are legal and
will not conflict with or constitute on the part of the Consolidated Government a violation of or a
breach of or a default under, any organic document, indenture, mortgage, security deed, pledge,
note, lease, loan, or installment sale agreement, contract, or other agreement or instrument to
which the Consolidated Government is a party or by which the Consolidated Government or its
properties are otherwise subject or bound, or any license, law, statute, rule, regulation, judgment,
order, writ, injunction, decree, or demand of any court or governmental agency or body having
jurisdiction over the Consolidated Government or any of its activities or properties, and (iii) have
been duly authorized by all necessary and appropriate official action on the part of the Governing
Body of the Consolidated Government. This Contract is the valid, legal, binding, and
enforceable obligation of the Consolidated Government. The officials of the Consolidated
Government executing this Contract are duly and properly in office and are fully authorized and
empowered to execute the same for and on behalf of the Consolidated Government.
(d) Governmental Consents. Neither the Consolidated Government nor any of its
activities or properties, nor any relationship between the Consolidated Government and any other
Person, nor any circumstances in connection with the execution, delivery, and performance by
the Consolidated Government of its obligations under this Contract or the offer, issue, sale, or
delivery by the Issuer of the Series 2017 Bonds, is such as to require the consent, approval,
permission, order, license, or authorization of, or the filing, registration, or qualification with,
any governmental authority on the part of the Consolidated Government in connection with the
execution, delivery, and performance of this Contract or the consummation of any transaction
herein contemplated, or the offer, issue, sale, or delivery of the Series 2017 Bonds, except as
shall have been obtained or made and as are in full force and effect and except as are not
presently obtainable. To the knowledge of the Consolidated Government, after making due
inquiry with respect thereto, the Consolidated Government will be able to obtain all such
additional consents, approvals, permissions, orders, licenses, or authorizations of governmental
authorities as may be required on or prior to the date the Consolidated Government is legally
required to obtain the same.
(e) No Defaults. No event has occurred and no condition exists that would constitute
an Event of Default or that, with the lapse of time or with the giving of notice or both, would
become an Event of Default. To the knowledge of the Consolidated Government, after making
due inquiry with respect thereto, the Consolidated Government is not in default or violation in
any material respect under any organic document or other agreement or instrument to which it is
a party or by which it may be bound.
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35876221v4
(f) Compliance with Law. To the knowledge of the Consolidated Government, after
making due inquiry with respect thereto, the Consolidated Government is not in violation of any
laws, ordinances, or governmental rules or regulations to which it or its properties are subject
and has not failed to obtain any licenses, permits, franchises, or other governmental
authorizations (which are presently obtainable) necessary to the ownership of its properties or to
the conduct of its affairs, which violation or failure to obtain might materially and adversely
affect the properties, activities, prospects, profits, and condition (financial or otherwise) of the
Consolidated Government, and there have been no citations, notices, or orders of noncompliance
issued to the Consolidated Government under any such law, ordinance, rule, or regulation.
(g) Restrictions on the Consolidated Government. The Consolidated Government is
not a party to or bound by any contract, instrument, or agreement, or subject to any other
restriction, that materially and adversely affects its activities, properties, assets, operations, or
condition (financial or otherwise). Other than the Prior Contracts, the Consolidated Government
is not a party to any contract or agreement that restricts the right or ability of the Consolidated
Government to enter into intergovernmental agreements.
(h) Disclosure. The representations of the Consolidated Government contained in
this Contract and any certificate, document, written statement, or other instrument furnished by
or on behalf of the Consolidated Government to the Issuer in connection with the transactions
contemplated hereby, do not contain any untrue statement of a material fact and do not omit to
state a material fact necessary to make the statements contained herein or therein not misleading.
There is no fact that the Consolidated Government has not disclosed to the Issuer in writing that
materially and adversely affects or in the future may (so far as the Consolidated Government can
now reasonably foresee) materially and adversely affect the ability of the Consolidated
Government to perform its obligations under this Contract or any of the documents or
transactions contemplated hereby or thereby or any other transactions contemplated by this
Contract, which has not been set forth in the Official Statement relating to the Series 2017 Bonds
or in the certificates, documents, and instruments furnished to the Purchaser by or on behalf of
the Consolidated Government prior to the date of execution of this Contract in connection with
the transactions contemplated hereby.
(i) Financial Statements. The balance sheet of the Consolidated Government as of
December 31, 201_, and the statement of revenues, expenditures, and changes in fund balance
and the statement of cash flow for the year ended December 31, 201_ (copies of which, audited
by Mauldin & Jenkins, LLC, independent certified public accountants, have been furnished to
the Purchaser) present fairly the financial position of the Consolidated Government as of
December 31, 201_, and the results of its operations and its cash flows for the year ended
December 31, 201_, with such exceptions as may be disclosed in the audit report. Since
December 31, 201_, there has been no material adverse change in the financial position or results
of operations or cash flows of the Consolidated Government.
(j) Other Contracts. The Consolidated Government represents that there is not
presently in force and effect any other contract or agreement that obligates the Consolidated
Government to levy an annual ad valorem tax on all taxable property located within the
territorial limits of the Consolidated Government, as now existent and as the same may hereafter
be extended, at such rate or rates, within the mill limit prescribed by the Constitutional
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Amendment, to provide revenues to fulfill the Consolidated Government’s obligations under
such contract or agreement, except for the Prior Contracts and the 2004 Solid Waste Authority
Contract. The Consolidated Government has obtained documentation evidencing that the
conditions of the Prior Contracts have been satisfied, in order to permit the Issuer and the
Consolidated Government to enter into this Contract, which documentation is attached to this
Contract as Exhibit A.
Section 2.2. Representations of the Issuer. The Issuer makes the following
representations as the basis for the undertakings on its part herein contained:
(a) Creation and Agency. The Issuer is a public corporation duly created and validly
existing under the laws of the State, including the provisions of the Urban Redevelopment Law.
The Issuer has all requisite power and authority under the Urban Redevelopment Law and the
laws of the State (1) to issue the Series 2017 Bonds in order to finance the costs of acquiring,
constructing, and installing the Project and to finance related costs; (2) to acquire, construct, and
install the Project; (3) to lease the Project to the Lessee pursuant to the Lease Agreement; and (4)
to enter into, perform its obligations under, and exercise its rights under this Contract, the Lease
Agreement, and the Indenture. The Consolidated Government has elected to have its “urban
redevelopment project powers,” as defined in Section 36-61-17(b) of the Official Code of
Georgia Annotated, exercised by the Issuer, and the Issuer is vested with all of the “urban
redevelopment project powers” of the Consolidated Government conferred in the Urban
Redevelopment Law. The Urban Redevelopment Law authorizes the Issuer to issue bonds to
finance the undertaking of any “urban redevelopment project” under the Urban Redevelopment
Law, which bonds shall be made payable, as to both principal and interest, solely from the
income, proceeds, revenues, and funds of the Issuer derived from or held in connection with its
undertaking and carrying out of urban redevelopment projects under the Urban Redevelopment
Law. The Urban Redevelopment Law requires that all revenue bonds issued under the Urban
Redevelopment Law be issued and validated under and in accordance with the procedure set
forth in Article 3 of Chapter 82 of Title 36 of the Official Code of Georgia Annotated, known as
the “Revenue Bond Law.” The Urban Redevelopment Law authorizes the Issuer to undertake
and carry out within the territorial limits of the Consolidated Government “urban redevelopment
projects,” which are defined to include undertakings or activities of the Issuer in an urban
redevelopment area under the Urban Redevelopment Law for the elimination and for the
prevention of the development or spread of pockets of blight and may involve pockets of blight
clearance and redevelopment in an urban redevelopment area, rehabilitation or conservation in
an urban redevelopment area, or any combination or part thereof, in accordance with an urban
redevelopment plan adopted pursuant to the Urban Redevelopment Law. The Urban
Redevelopment Law authorizes the Issuer to make and execute contracts and other instruments
necessary or convenient to the exercise of its powers under the Urban Redevelopment Law, to
acquire, by purchase, grant, or otherwise, any real property (defined to include all lands,
including improvements and fixtures thereon and property of any nature appurtenant thereto or
used in connection therewith), to hold, improve, clear, or prepare for redevelopment any such
property, and to borrow money for the purposes of the Urban Redevelopment Law and to give
such security as may be required and to enter into and carry out contracts in connection
therewith. The Urban Redevelopment Law authorizes the Issuer to lease or otherwise transfer
real property in an urban redevelopment area or any interest therein acquired by it and may enter
into contracts with respect thereto, for residential, recreational, commercial, industrial or other
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uses, in accordance with the Urban Redevelopment Plan or any part thereof. The Project
constitutes an “urban redevelopment project” within the meaning of that term as defined in the
Urban Redevelopment Law and in accordance with the Urban Redevelopment Plan and all
proceeds of the Series 2017 Bonds have been or will be used only for the lawful and valid public
purposes set forth in the Urban Redevelopment Law.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of the Issuer, after making due inquiry with respect
thereto, threatened against or affecting the Issuer in any court or by or before any governmental
authority or arbitration board or tribunal, which involve the possibility of materially and
adversely affecting the transactions contemplated by this Contract or which, in any way, would
adversely affect the validity or enforceability of the Series 2017 Bonds, the Bond Resolution, this
Contract, or any agreement or instrument to which the Issuer is a party and which is used or
contemplated for use in the consummation of the transactions contemplated hereby or thereby,
nor is the Issuer aware of any facts or circumstances presently existing that would form the basis
for any such actions, suits, or proceedings.
(c) Agreements Are Legal and Authorized. The execution and delivery by the Issuer
of this Contract, the Lease Agreement, the Series 2017 Bonds, and the Indenture and the
compliance by the Issuer with all of the provisions of each thereof (i) are within the purposes,
powers, and authority of the Issuer; (ii) have been done in full compliance with the provisions of
the Urban Redevelopment Law and have been approved by the Governing Body of the Issuer
and are legal and will not conflict with or constitute on the part of the Issuer a violation of or a
breach of or a default under any organic document, indenture, mortgage, security deed, pledge,
note, lease, loan, or installment sale agreement, contract, or other agreement or instrument to
which the Issuer is a party or by which the Issuer or its properties are otherwise subject or bound,
or any license, judgment, decree, law, statute, order, writ, injunction, demand, rule, or regulation
of any court or governmental agency or body having jurisdiction over the Issuer or any of its
activities or properties; and (iii) have been duly authorized by all necessary action on the part of
the Issuer.
(d) Governmental Consents. Neither the nature of the Issuer nor any of its activities
or properties, nor any relationship between the Issuer and any other Person, nor any circumstance
in connection with the offer, issue, sale, or delivery of the Series 2017 Bonds is such as to
require the consent, approval, permission, order, license, or authorization of, or the filing,
registration, or qualification with, any governmental authority on the part of the Issuer in
connection with the execution, delivery, and performance of this Contract, the Lease Agreement,
and the Indenture or the consummation of any transaction therein contemplated, or the offer,
issue, sale, or delivery of the Series 2017 Bonds, except as shall have been obtained or made and
as are in full force and effect.
(e) No Defaults. To the knowledge of the Issuer, after making due inquiry with
respect thereto, no event has occurred and no condition exists that would constitute an event of
default under the Indenture or that, with the lapse of time or with the giving of notice or both,
would become such an event of default. To the knowledge of the Issuer, after making due
inquiry with respect thereto, the Issuer is not in default or violation in any material respect under
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the Urban Redevelopment Law or under any organic document or other agreement or instrument
to which it is a party or by which it may be bound.
(f) No Prior Pledge. Neither this Contract nor any of the payments or amounts to be
received by the Issuer hereunder have been or will be assigned, pledged, or hypothecated in any
manner or for any purpose or have been or will be the subject of a grant of a security interest by
the Issuer other than as provided in the Indenture.
(g) Disclosure. The representations of the Issuer contained in this Contract and any
certificate, document, written statement, or other instrument furnished to the Purchaser by or on
behalf of the Issuer in connection with the transactions contemplated hereby do not contain any
untrue statement of a material fact relating to the Issuer and do not omit to state a material fact
relating to the Issuer necessary in order to make the statements contained herein and therein
relating to the Issuer not misleading. Nothing has come to the attention of the Issuer that would
materially and adversely affect or in the future may (so far as the Issuer can now reasonably
foresee) materially and adversely affect the acquisition, construction, and installation of the
Project by the Issuer, or any other transactions contemplated by this Contract, the Lease
Agreement, and the Indenture that has not been set forth in the Official Statement relating to the
Series 2017 Bonds or in the certificates, documents, and instruments furnished to the Purchaser
by or on behalf of the Issuer prior to the date of execution of this Contract in connection with the
transactions contemplated hereby.
(h) Compliance with Conditions Precedent to the Issuance of the Series 2017 Bonds.
All acts, conditions, and things required to exist, happen, and be performed precedent to and in
the execution and delivery by the Issuer of the Series 2017 Bonds do exist, have happened, and
have been performed in due time, form, and manner as required by law; the issuance of the
Series 2017 Bonds, together with all other obligations of the Issuer, do not exceed or violate any
constitutional or statutory limitation, and the revenues, funds, property, and amounts pledged to
the payment of the principal of, premium, if any, and interest on the Series 2017 Bonds, as the
same become due, have been calculated to be sufficient in amount for that purpose.
ARTICLE III
TERM OF CONTRACT; CONTRACT AS SECURITY FOR BONDS
Section 3.1. Term. The term of this Contract shall commence with the execution and
delivery hereof and shall extend until 91 days after the principal of, premium, if any, and interest
on the Bonds have been paid in full or due provision is made therefor as provided in the Indenture,
but in no event shall the term hereof exceed fifty years from the date hereof. The obligations of
the Consolidated Government set forth in Section 5.1(c) hereof shall survive the termination of
this Contract, but in no event shall extend beyond fifty years from the date hereof.
Section 3.2. This Contract as Security for the Bonds. The parties hereto agree and
intend that:
(a) This Contract shall constitute security for the benefit of the owners of the Bonds and
the obligations of the Consolidated Government hereunder shall be absolute and unconditional
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irrespective of any defense or any rights of setoff, recoupment, or counterclaim, except for
payment, it may otherwise have against the Issuer. The Consolidated Government agrees that it
shall not (i) withhold, suspend, abate, reduce, abrogate, diminish, postpone, modify, or
discontinue any payments provided for in Section 5.1 hereof, (ii) fail to observe any of its other
agreements contained in this Contract, or (iii) terminate its obligations under this Contract for any
contingency, act of God, event, or cause whatsoever, including, without limiting the generality of
the foregoing, failure of the Issuer to complete the acquisition, construction, and installation of the
Project, failure of the Issuer to occupy or to use the Project as contemplated in the Lease
Agreement or otherwise, any change or delay in the time of availability of the Project, any acts or
circumstances that may impair or preclude the use or possession of the Project, any defect in the
title, design, operation, merchantability, fitness, or condition of the Project or in the suitability of
the Project for the Issuer’s purposes or needs, failure of consideration, any declaration or finding
that any of the Bonds are unenforceable or invalid, the invalidity of any provision of this Contract,
any acts or circumstances that may constitute an eviction or constructive eviction, destruction of
or damage to the Project, the taking by eminent domain of title to or the use of all or any part of
the Project, commercial frustration of purpose, any change in the tax or other laws of the United
States of America or of the State or any political subdivision of either thereof or in the rules or
regulations of any governmental authority, or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability, or obligation arising out of or
connected with this Contract. Nothing contained in this Section 3.2(a) shall be construed to
release the Issuer from the performance of any of the agreements on its part herein contained. In
the event the Issuer should fail to perform any such agreement on its part, the Consolidated
Government may institute such action against the Issuer as the Consolidated Government may
deem necessary to compel performance so long as such action does not abrogate the Consolidated
Government’s obligations hereunder. The Issuer hereby agrees that it shall not take or omit to
take any action that would cause this Contract to be terminated.
(b) The payments to be made hereunder by the Consolidated Government to the Issuer
will be assigned and pledged by the Issuer to the Trustee for the benefit of the owners of the
Bonds pursuant to the Indenture.
(c) Following the issuance of the Series 2017 Bonds, the payments to be made to the
Issuer by the Consolidated Government under the provisions of Section 5.1 of this Contract shall
be made directly to the Trustee for the account of the Issuer.
(d) This Contract may not be amended, changed, modified, altered, or terminated except
as provided in the Indenture and in each instance only with the prior written consent of the
Trustee.
(e) The Issuer may assign, grant a security interest in, or otherwise transfer its rights in
this Contract to any other person or entity, and such other person or entity shall thereupon become
vested with all the benefits in respect thereof granted to the Issuer herein or otherwise. As
provided in the Lease Agreement, it is understood and agreed that the Issuer, contemporaneously
with the execution and delivery of this Contract, will assign its rights under and grant a security
interest in its right, title, and interest in this Contract to the Trustee pursuant to the Indenture, and
the Consolidated Government hereby consents to the assignment and grant of the security interest
and hereby agrees that any notice given to the Issuer herein required shall in addition be given to
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the Trustee at the address provided for herein and that any consent of the Issuer shall not be
deemed to have been given unless such consent is obtained in writing from the Trustee. Upon
execution and delivery of the Indenture to the Trustee, all appointments, designations,
representations, warranties, covenants, assurances, remedies, title, interest, privileges, permits,
licenses, and rights of every kind whatsoever herein conferred upon the Issuer shall be deemed to
be conferred also upon the Trustee, and any reference herein to the Issuer shall be deemed, with
the necessary changes in detail, to include the Trustee, and the Trustee and the Bondholders are
deemed to be and are third party beneficiaries of the representations, covenants, and agreements of
the Consolidated Government herein contained.
ARTICLE IV
ISSUER’S OBLIGATIONS HEREUNDER
Section 4.1. Acquisition, Construction, and Installation of the Project. The Issuer
agrees to acquire title to the Premises and to construct the Building and to install the Equipment
(or to cause the same to be constructed and installed) substantially in the manner set forth in the
Section 4.01 of the Lease Agreement. The Issuer will not permit the construction of the Building
to be accomplished in any manner that is not in accordance with the Plans and Specifications.
Section 4.2. Issuance of Series 2017 Bonds; Use of Bond Proceeds and Other
Funds. The Issuer agrees that simultaneously with the execution and delivery hereof it will issue
the Series 2017 Bonds containing the terms, including principal amounts, interest rates, and
maturities, set forth in the Indenture, for the purpose of financing the costs of acquiring,
constructing, and installing the Project. The Issuer hereby covenants and agrees that it will
deposit the proceeds derived from the sale of the Series 2017 Bonds in the Bond Fund, the Debt
Service Reserve Fund, the Issuance Cost Fund, and the Project Fund, as provided in Article VII of
the Indenture and will use the moneys deposited in the Project Fund to pay the costs of acquiring,
constructing, and installing the Project. The Issuer will use all other funds received from the
Consolidated Government or from other sources for the acquisition, construction, and installation
of the Project for the intended purpose.
Section 4.3. The Project. The Issuer agrees that throughout the term of this Contract
title to the Project shall be vested in and shall be the sole property of the Issuer, subject to the
Lease Agreement (including any releases and Permitted Encumbrances allowed under the Lease
Agreement) and subject to any additional Liens or leases that the Issuer, with the written consent
of the Consolidated Government, subject to the terms of the Lease Agreement and the Indenture,
may create during the term of this Contract. The Issuer agrees that simultaneously with the
execution of this Contract it shall enter into the Lease Agreement with the Lessee, in substantially
the form presented to the Consolidated Government, under the terms of which (1) the Issuer will
agree to acquire, construct, and install the Project and lease the Project to the Lessee and (2) the
Lessee will agree to lease the Project from the Issuer and to pay to the Issuer such rentals at such
times and in such amounts as will be required to enable the Issuer to pay the principal of,
premium, if any, and interest on the Bonds when due. The Issuer agrees that, upon the payment
by the Consolidated Government of any amounts payable pursuant to this Contract, it shall, as
directed by the Consolidated Government, terminate the Lease Agreement as required by Section
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10.02(b) of the Lease Agreement or pursue such other remedies available under the Lease
Agreement as directed by the Consolidated Government. Upon the termination of the Lease
Agreement, the Issuer shall, as directed by the Consolidated Government, subject to the provisions
of the Indenture, negotiate sales and leases of the Project and work with prospective purchasers
and prospective tenants of the Project upon such terms and conditions as are directed by the
Consolidated Government. The Issuer shall investigate and make financial analyses and
recommendations to the Consolidated Government with respect to all proposals submitted by such
prospective purchasers or tenants desiring to purchase or lease the Project. Upon the termination
of the Lease Agreement, subject to the provisions of the Indenture, the Issuer agrees that the
proceeds of any sale, lease, or other disposition of any of the Project shall be deposited or
disposed of as directed by the Consolidated Government (including, if directed by the
Consolidated Government, transferred to the Consolidated Government). The Consolidated
Government agrees that neither the sale, lease, or other disposition of all or any portion of the
Project or any interest therein shall affect its obligations under this Contract.
ARTICLE V
CONSOLIDATED GOVERNMENT’S OBLIGATIONS HEREUNDER
Section 5.1. Consolidated Government’s Payment Obligations. The Consolidated
Government agrees that:
(a) [RESERVED]
(b) The provisions of paragraph (a) above to the contrary notwithstanding, if, for any
reason, on the third business day preceding any Interest Payment Date and any redemption date
with respect to the Bonds, there is not on deposit in the Bond Fund monies sufficient to pay the
total principal, interest, and premium coming due on the Bonds on such Interest Payment Date or
redemption date (whether by mandatory redemption, maturity, or otherwise), the Consolidated
Government shall on such date pay to the Issuer, by making such payments directly to the Trustee
for the account of the Issuer for deposit into the Bond Fund, an amount equal to the amount by
which the total principal, interest, and premium coming due on the Bonds (whether by mandatory
redemption, maturity, or otherwise) on the next Interest Payment Date or redemption date exceeds
the amount in the Bond Fund (and not being held for the payment of Bonds not yet presented for
payment or interest checks not cashed).
(c) In the event the Trustee has notice that any payment of principal of, premium, if any,
or interest on a Bond that has been made to a Bondholder by or on behalf of the Issuer has been
deemed a preferential transfer and theretofore recovered from such Bondholder pursuant to the
United States Bankruptcy Code by a trustee in bankruptcy in accordance with the final,
nonappealable order of a court of competent jurisdiction, the Consolidated Government shall pay
to the Issuer, by making payments directly to the Trustee for the account of the Issuer for deposit
in the Bond Fund, an amount equal to such recovery if sufficient funds are not otherwise available
to reimburse such Bondholder.
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(d) It will also pay to the Issuer an amount equal to (i) any costs incurred by the Issuer in
connection with the issuance of any series of Bonds to the extent such costs are not paid from
proceeds of such Bonds, and (ii) the fees and expenses of the Trustee under the Indenture if the
Issuer is unable to pay such fees and expenses from the rental payments derived from the Project.
Section 5.2. Source of Funds for Consolidated Government’s Payment Obligations;
Limitations on Additional Contracts. (a) The obligation of the Consolidated Government to
make payments under this Contract shall constitute a general obligation of the Consolidated
Government, payable out of any funds lawfully available to it for such purpose, from whatever
source derived (including general funds). The Consolidated Government covenants and agrees
that it shall, to the extent necessary, levy an annual ad valorem tax on all taxable property located
within the territorial limits of the Consolidated Government, as now existent and as the same may
hereafter be extended, at such rate or rates within the mill limit prescribed by the Constitutional
Amendment or within such greater millage as may hereafter be prescribed by applicable law, as
may be necessary to produce in each year revenues that will be sufficient to fulfill the
Consolidated Government’s obligations under this Contract, from which revenues the
Consolidated Government agrees to appropriate sums sufficient to pay in full when due all of the
Consolidated Government’s obligations under this Contract. The Consolidated Government
hereby creates and grants a lien in favor of the Issuer on any and all revenues realized by the
Consolidated Government from such tax, to make the payments that are required under this
Contract, which lien is superior to any that can hereafter be created, except that this lien shall be
on a parity basis with the lien on such revenues created by each of the Prior Contracts and may be
extended to cover any Additional Contracts, as permitted by Section 3.01(e) hereof, and the 2004
Solid Waste Authority Contract. Nothing herein contained, however, shall be construed as
limiting the right of the Consolidated Government to make the payments called for by this
Contract out of any funds lawfully available to it for such purpose, from whatever source derived
(including general funds).
(b) The Consolidated Government’s obligation to levy an annual ad valorem tax within
the mill limit prescribed by the Constitutional Amendment, or such greater millage hereafter
authorized by law, for the purpose of providing funds to meet the Consolidated Government’s
payment obligations under this Contract shall not be junior and subordinate, but shall be superior
or equal to the Consolidated Government’s obligation to levy an annual ad valorem tax at such
rate or rates within such mill limit or such greater millage as hereinafter prescribed by law
pursuant to the provisions of the 2004 Solid Waste Authority Contract, the Prior Contracts, and
any Additional Contract. It is expressly provided, however, that the Consolidated Government
shall not be required to levy a tax in any year at a rate or rates exceeding in the aggregate the
maximum millage prescribed by the Constitutional Amendment for such year, or any greater
millage hereafter prescribed by law, in order to meet its obligations under the Contracts.
(c) So long as any of the Bonds are Outstanding, the Consolidated Government shall not:
(1) enter into an Additional Contract that creates a lien on the revenues to
be derived from the tax to be levied hereunder by the Consolidated Government
to fulfill its obligations hereunder, which is superior to the lien created hereunder;
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(2) enter into any other contract or agreement creating a lien on such tax
revenues for any purpose other than debt service payments (including creation
and maintenance of reasonable reserves therefor) superior to or on a parity with
the lien created thereon to fulfill the obligations of the Consolidated Government
hereunder; and
(3) enter into any Additional Contract that provides for payment to be
made by the Consolidated Government from monies derived from the levy of a
tax within the maximum millage now or hereafter authorized by law if each
annual payment of all amounts payable with respect to debt service or that are
otherwise fixed in amount or currently budgeted in amount under all Contracts
then in existence, together with each annual payment to be made under the
proposed Additional Contract, in each future Fiscal Year, would exceed the
amount then capable of being produced by a levy of a tax within the maximum
millage now or hereafter authorized by law on the taxable value of property
located within the territorial limits of the Consolidated Government subject to
taxation for such purposes, as shown by the latest tax digest available
immediately preceding the execution of any such Additional Contract.
(d) It is further expressly provided that so long as the Bonds are Outstanding, the
Consolidated Government shall not hereafter enter into any Additional Contract for the purpose of
debt service payments (including creation and maintenance of reserves therefor), unless the
amount then capable of being produced by the levy of an ad valorem tax within the maximum
millage then prescribed by the Constitutional Amendment or any successor provision on all
taxable property within the territorial limits of the Consolidated Government, as shown by the
latest tax digest available immediately preceding the execution of such Additional Contract, is
equal to at least the maximum combined amount payable in any future Fiscal Year with respect to
debt service under all existing Contracts and any such Additional Contract. Debt service for
purposes of this paragraph (d) shall mean required payments of principal, including principal to be
paid through mandatory redemption, interest, and amounts required to be paid for creation and
maintenance of reasonable debt service reserves and to establish and maintain mandatory
investment programs, less principal and interest received or to be received from investment of any
of the foregoing amounts (except funds on hand or to be on hand in any debt service reserve)
required to be applied to debt service in each Fiscal Year. The Consolidated Government shall
furnish the Issuer, not less than five (5) nor more than sixty (60) days prior to the date of
execution and delivery of any such Additional Contract, a report of an independent certified
public accountant to the effect that, based upon an affidavit of the Tax Commissioner of
Richmond County as to the taxable value of property located within the territorial limits of the
Consolidated Government, the requirements of this paragraph (d) have been met.
Section 5.3. Continuing Disclosure. The Consolidated Government hereby covenants
and agrees that it will comply with and carry out all of the provisions of the Series 2017
Disclosure Certificate. Notwithstanding any other provision of this Contract, failure of the
Consolidated Government to comply with the Series 2017 Disclosure Certificate shall not be
considered an event of default or default under this Contract; however, any beneficial owner of the
Series 2017 Bonds may take such actions as may be necessary and appropriate, including seeking
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mandamus or specific performance by court order, to cause the Consolidated Government to
comply with its obligations under this Section 5.3.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Governing Law. This Contract and the rights and obligations of the
parties hereto (including third party beneficiaries) shall be governed, construed, and interpreted
according to the laws of the State of Georgia.
Section 6.2. Entire Agreement. This Contract expresses the entire understanding and
all agreements between the parties hereto.
Section 6.3. Severability. If any provision of this Contract shall be held or deemed to
be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other
provision or provisions hereof or any constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable to any extent
whatever. The invalidity of any one or more phrases, sentences, clauses, or sections contained in
this Contract shall not affect the remaining portions of this Contract or any part thereof.
Section 6.4. Survival of Warranties. All agreements, representations, and warranties
of the parties hereunder, or made in writing by or on behalf of them in connection with the
transactions contemplated hereby, shall survive the execution and delivery hereof, regardless of
any investigation or other action taken by any person relying thereon.
Section 6.5. Counterparts. This Contract may be executed in several counterparts,
each of which shall be an original, and all of which shall constitute but one and the same
instrument.
Section 6.6. Amendments in Writing. No waiver, amendment, release, or
modification of this Contract shall be established by conduct, custom, or course of dealing, but
solely by an instrument in writing only executed by the parties hereto in accordance with the
Indenture.
Section 6.7. Notices. Except as otherwise specifically provided herein, any notices,
demands, approvals, consents, requests, and other communications hereunder shall be in writing
and shall be deemed given when the writing is delivered in person or five days after being mailed,
if mailed, by certified mail, return receipt requested, postage prepaid, to the Consolidated
Government and the Issuer, respectively, at the addresses shown below or at such other addresses
as may be furnished by the Consolidated Government or the Issuer in writing from time to time:
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If to the Issuer: Urban Redevelopment Agency of Augusta 535 Telfair Street, Room 800 Augusta, Georgia 30901 Attention: Chairman
If to the Consolidated Government: Augusta, Georgia 535 Telfair Street, Room 901 Augusta, Georgia 30901 Attention: Administrator If to the Trustee: U.S. Bank National Association 1349 West Peachtree Street, N.W., Suite 1050 Mail Code: EX-GA-ATPT Atlanta, Georgia 30309 Attention: Global Corporate Trust Services
Section 6.8. Limitation of Rights. Nothing in this Contract, express or implied, shall
give to any person, other than the parties hereto and their successors and assigns hereunder, any
benefit or any legal or equitable right, remedy, or claim under this Contract.
Section 6.9. Immunity of Officials, Officers, and Employees of Issuer and
Consolidated Government. No recourse shall be had for the enforcement of any obligation,
covenant, promise, or agreement of the Issuer or the Consolidated Government contained in this
Contract or for any claim based hereon or otherwise in respect hereof against any member of a
Governing Body, officer, or employee, as such, in his individual capacity, past, present, or future,
of the Issuer, the Consolidated Government, or any successor body, whether by virtue of any
constitutional provision, statute, or rule of law, or by the enforcement of any assessment or
penalty or otherwise, it being expressly agreed and understood that this Contract is solely a
corporate obligation of the Consolidated Government and the Issuer payable only from the funds
and assets of the Consolidated Government and the Issuer herein specifically provided to be
subject to such obligation and that no personal liability whatsoever shall attach to, or be incurred
by, any member of a Governing Body, officer, or employee, as such, past, present, or future, of
the Consolidated Government or the Issuer, or of any successor corporation, either directly or
through the Consolidated Government, the Issuer, or any successor corporation, under or by
reason of any of the obligations, covenants, promises, or agreements entered into between the
Issuer and the Consolidated Government whether contained in this Contract or in the Bond
Resolution or to be implied herefrom or therefrom as being supplemental hereto or thereto, and
that all personal liability of that character against every such member of a Governing Body,
officer, and employee is, by the execution of this Contract and as a condition of and as part of the
consideration for the execution of this Contract, expressly waived and released. The immunity of
members of a Governing Body, officers, and employees of the Issuer and the Consolidated
Government under the provisions contained in this Section 6.9 shall survive the completion of the
Projects and the termination of this Contract.
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35876221v4
IN WITNESS WHEREOF, the Consolidated Government and the Issuer have caused this
Contract to be executed in their respective corporate names and have caused their respective
corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the
day and year first above written.
(SEAL) AUGUSTA, GEORGIA
Attest: By:
Mayor
Clerk of Commission
(SEAL) URBAN REDEVELOPMENT AGENCY OF AUGUSTA
Attest: By:
Chairman
Secretary
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35876221v4
EXHIBIT A
DOCUMENTATION PURSUANT TO SECTION 2.1(J)
[Attached]
35881161v4
STATE OF GEORGIA )
)
COUNTY OF RICHMOND )
URBAN REDEVELOPMENT AGENCY OF AUGUSTA
(a public corporation created
and existing under the laws of the State of Georgia)
as Lessor
and
CV FOUNDRY APARTMENTS, LLC
(a limited liability company duly formed and existinga
under the laws of the State of Georgia)
as Lessee
LEASE AGREEMENT
Dated as of ______ 1, 2017
THE RIGHTS AND INTEREST OF THE URBAN REDEVELOPMENT AGENCY OF
AUGUSTA IN THIS LEASE AGREEMENT AND THE REVENUES AND RECEIPTS
DERIVED HEREFROM, EXCEPT FOR ITS UNASSIGNED RIGHTS, AS DEFINED
HEREIN, HAVE BEEN ASSIGNED AND ARE THE SUBJECT OF A GRANT OF A
SECURITY INTEREST TO U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
UNDER A TRUST INDENTURE AND SECURITY AGREEMENT, DATED THE DATE
HEREOF.
This instrument prepared by:
Butler Snow LLP
1170 Peachtree Street
Suite 1900
Atlanta, Georgia 30309
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35881161v4
LEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Lease Agreement
and is only for convenience of reference.)
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................................................1
Section 1.01. Definitions.................................................................................................1
Section 1.02. Construction of Certain Terms................................................................13
Section 1.03. Table of Contents; Titles and Headings ..................................................14
Section 1.04. Contents of Certificates or Opinions.......................................................14
ARTICLE II REPRESENTATIONS AND UNDERTAKINGS............................................15
Section 2.01. Representations by the Issuer..................................................................15
Section 2.02. Representations by the Lessee ................................................................18
ARTICLE III DEMISING CLAUSE; SECURITY; TITLE .................................................22
Section 3.01. Demise of the Project ..............................................................................22
Section 3.02. Security for Payments Under the Bonds; Perfection ..............................22
Section 3.03. Warranty of Title.....................................................................................22
Section 3.04. Title Insurance ........................................................................................23
Section 3.05. Lessee’s Covenants Regarding Title .......................................................23
Section 3.06. Security for Lessee’s Obligations ...........................................................23
ARTICLE IV ACQUISITION, CONSTRUCTION, AND INSTALLATION OF
THE PROJECT; ISSUANCE OF THE SERIES 2017 BONDS;
FUNDS ........................................................................................................24
Section 4.01. Agreement to Acquire, Construct, and Install the Project ......................24
Section 4.02. Agreement to Issue the Series 2017 Bonds; Application of
Proceeds .............................................................................................25
Section 4.03. Application of Moneys in the Project Fund ............................................25
Section 4.04. Disbursements from the Project Fund.....................................................27
Section 4.05. Issuance Cost Fund .................................................................................32
Section 4.06. Obligation of the Parties to Cooperate in Furnishing Documents;
Trustee Reliance.................................................................................32
Section 4.07. Establishment of Completion Date .........................................................32
Section 4.08. Lessee Required to Pay Costs of the Project in Event Project
Fund Insufficient ................................................................................32
Section 4.09. Authorized Lessee and Issuer Representatives and Successors ..............33
Section 4.10. Enforcement of Remedies Against Contractors and
Subcontractors and their Sureties and Against Manufacturers ..........33
Section 4.11. No Agency Relationships .......................................................................34
Section 4.12. Investment of Funds and Accounts .........................................................34
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35881161v4
Section 4.13. Repair and Replacement Fund ................................................................34
Section 4.14. Deposit of Gross Receipts .......................................................................35
ARTICLE V EFFECTIVE DATE OF THIS LEASE AGREEMENT; DURATION
OF LEASE TERM; RENTAL PROVISIONS; NATURE OF
OBLIGATIONS OF LESSEE ..................................................................36
Section 5.01. Effective Date of this Lease Agreement; Duration of Lease Term ........36
Section 5.02. Delivery and Acceptance of Possession .................................................36
Section 5.03. Rents and Other Amounts Payable. ........................................................36
Section 5.04. Place of Rental Payments........................................................................39
Section 5.05. Nature of Obligations of Lessee Hereunder ............................................39
ARTICLE VI MAINTENANCE, TAXES, AND INSURANCE ...........................................41
Section 6.01. Maintenance and Modification of Project by the Lessee ........................41
Section 6.02. Removal of Equipment ...........................................................................42
Section 6.03. Taxes, Other Governmental Charges, and Utility Charges.....................43
Section 6.04. Insurance Required .................................................................................43
Section 6.05. Application of Net Proceeds of Insurance ..............................................45
Section 6.06. Additional Provisions Respecting Insurance ..........................................45
Section 6.07. Review by Insurance Consultant ............................................................48
Section 6.08. Advances by the Issuer or the Trustee ....................................................48
Section 6.09. Contest of Liens ......................................................................................48
ARTICLE VII DAMAGE, DESTRUCTION, CONDEMNATION, AND FAILURE
OF TITLE ...................................................................................................50
Section 7.01. Damage and Destruction .........................................................................50
Section 7.02. Condemnation and Failure of Title .........................................................51
Section 7.03. Condemnation of Lessee-Owned Property .............................................52
ARTICLE VIII ADDITIONAL COVENANTS; ADDITIONAL BONDS ..........................53
Section 8.01. No Warranty of Condition or Suitability by the Issuer ...........................53
Section 8.02. Access to Premises and Records .............................................................53
Section 8.03. Lessee to Maintain its Existence; Separate Legal Entity ........................53
Section 8.04. Qualification in the State ........................................................................56
Section 8.05. Indemnity ................................................................................................56
Section 8.06. Project Budget .........................................................................................57
Section 8.07. Additional Bonds ....................................................................................58
Section 8.08. Operating Covenants ...............................................................................59
Section 8.09. Operation of Project and Safety Code ....................................................60
Section 8.10. Hazardous Waste ....................................................................................61
Section 8.11. Continuing Disclosure ............................................................................61
Section 8.12. Reporting on Personal Property ..............................................................62
Section 8.13. Financial Statements and Notices ...........................................................62
Section 8.14. Related Party Transactions .....................................................................63
Section 8.15. Line of Business ......................................................................................64
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35881161v4
Section 8.16. Selection of Management Company; Change in Management
Company ............................................................................................64
ARTICLE IX ASSIGNMENT, SUBLEASING, ENCUMBERING, AND
SELLING; INSTALLATION OF LESSEE’S OWN
MACHINERY AND EQUIPMENT .........................................................66
Section 9.01. Assignment and Subleasing ....................................................................66
Section 9.02. Restrictions on Sale, Encumbrance, or Conveyance of the Project
by the Issuer .......................................................................................67
Section 9.03. Installation of Lessee’s Own Machinery and Equipment .......................67
ARTICLE X EVENTS OF DEFAULT AND REMEDIES ....................................................69
Section 10.01. Events of Default Defined ....................................................................69
Section 10.02. Remedies on Default .............................................................................70
Section 10.03. No Remedy Exclusive...........................................................................72
Section 10.04. Rights of Issuer to Require Tustee to Pursue Remedies .......................72
Section 10.05. Agreement to Pay Attorneys’ Fees and Expenses ................................72
Section 10.06. Waiver of Events of Default .................................................................72
ARTICLE XI OPTIONS IN FAVOR OF LESSEE; RENT PREPAYMENTS AND
ABATEMENT ............................................................................................73
Section 11.01. General Options to Terminate Lease Term ...........................................73
Section 11.02. Option to Purchase Project....................................................................73
Section 11.03. Redemption of Bonds ...........................................................................73
Section 11.04. Prepayment of Rents .............................................................................73
Section 11.05. No Obligation to Prepay Rents or Purchase Project .............................74
Section 11.06. Option to Prepay Basic Rent and Redeem Series 2017 Bonds at
Prior Optional Redemption Dates ......................................................74
Section 11.07. Release of Certain Land ........................................................................74
Section 11.08. Option to Purchase Unimproved Land .................................................75
Section 11.09. Granting of Easements ..........................................................................76
Section 11.10. Reference to Bonds Ineffective After Bonds Paid ................................77
Section 11.11. Relative Position of Options and the Indenture ....................................77
Section 11.12. Lessee Entitled to Certain Rent Abatements if Bonds Paid Prior
to Maturity .........................................................................................77
Section 11.13. Conveyance on Exercise of Option to Purchase ...................................77
Section 11.14. Public Purpose of Option to Purchase ..................................................77
ARTICLE XII MISCELLANEOUS ........................................................................................79
Section 12.01. Notices ..................................................................................................79
Section 12.02. Recording and Filing.............................................................................79
Section 12.03. Construction and Binding Effect ..........................................................80
Section 12.04. Severability ...........................................................................................80
Section 12.05. Amounts Remaining in Funds ..............................................................80
Section 12.06. Fees and Expenses Paid by the Lessee .................................................80
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35881161v4
Section 12.07. Amendments, Changes, and Modifications ..........................................81
Section 12.08. Execution of Counterparts ....................................................................81
Section 12.09. Law Governing Construction of this Lease Agreement .......................81
Section 12.10. Subordination to Indenture ...................................................................81
Section 12.11. Quiet Enjoyment ...................................................................................81
Section 12.12. Time of Essence ....................................................................................81
Section 12.13. Estate for Years .....................................................................................81
Section 12.14. No Merger .............................................................................................81
Section 12.15. Covenants Run with Premises ..............................................................81
Section 12.16. Triple Net Lease ....................................................................................81
Section 12.17. Surrender of Project ..............................................................................82
Section 12.18. Tenancy at Sufferance ...........................................................................82
Section 12.19. Third Party Beneficiary.........................................................................82
Section 12.20. USA Patriot Act ....................................................................................82
SIGNATURES AND SEALS ......................................................................................................73
EXHIBIT A -- DESCRIPTION OF PREMISES................................................................. A-1
EXHIBIT B -- DESCRIPTION OF EQUIPMENT ............................................................B-1
EXHIBIT C -- PROJECT FUND REQUISITION ............................................................ C-1
EXHIBIT D -- ISSUANCE COST FUND REQUISITION ............................................... D-1
EXHIBIT E -- REPAIR AND REPLACEMENT FUND REQUISITION ...................... D-1
35881161v4
LEASE AGREEMENT
This LEASE AGREEMENT, dated as of __________________ 1, 2017, by and
between the Urban Redevelopment Agency of Augusta (the “Issuer”), a public corporation
created and existing under the laws of the State of Georgia, and CV Foundry Apartments, LLC
(the “Lessee”), a limited liability company duly formed and existing under the laws of the State
of Georgia.
W I T N E S S E T H:
IN CONSIDERATION OF the respective representations and agreements hereinafter
contained, the parties hereto agree as follows, provided, that in the performance of the
agreements of the Issuer herein contained, any obligation it may thereby incur for the payment of
money shall not constitute a general obligation of the Issuer but shall be payable solely out of the
revenues, receipts, and other payments derived from the Bond Documents and the sale of the
Series 2017 Bonds referred to in Section 1.01 hereof, and the Bonds shall not constitute a general
obligation of the Issuer nor constitute an indebtedness or general obligation of Augusta, Georgia
or of the State of Georgia or any other agency or political subdivision of the State of Georgia or
Augusta, Georgia, within the meaning of any constitutional or statutory provision whatsoever:
35881161v4
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. Certain words and terms used in this Lease Agreement are
defined herein. When used herein, such words and terms shall have the meanings given to them
by the language employed in this Article I defining such words and terms, unless the context
clearly indicates otherwise. In addition to the words and terms defined elsewhere herein, the
following words and terms are defined terms under this Lease Agreement:
“Accountant” means a certified public accountant, or a firm of certified public
accountants, who or which is “independent” as that term is defined in Rule 101 and related
interpretations of the Code of Professional Ethics of the American Institute of Certified Public
Accountants, of recognized standing, who or which does not devote his or its full time to the
Lessee or its Affiliates (but who or which may be regularly retained by the Lessee or its
Affiliates).
“Additional Bonds” means the additional parity bonds authorized to be issued by the
Issuer pursuant to the terms and conditions of Section 214 of the Indenture.
“Additional Rent” means the rent payable by the Lessee to the Trustee or the Issuer,
described under the subheading “Additional Rent” in Section 5.03 of this Lease Agreement.
“Additions or Alterations” means modifications, repairs, renewals, improvements,
replacements, alterations, additions, enlargements, or expansions in, on, or to the Project,
including any and all machinery, furnishings, and equipment therefor.
“Affiliate” means any Person directly or indirectly controlling, controlled by, or under
common control with another Person or any Person controlling ten percent (10%) or more of the
voting securities or equity or membership interest of such Person or any officer, director, or
partner of such Person and if such Person is an officer, director, or partner, any entity for which
such Person acts in any such capacity. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or an equity interest,
by contract, or otherwise.
“Annual Repair and Replacement Fund Requirement” means an amount equal to
$250 per annum for each of the residential units of the Project (i.e., $55,250 for 221 residential
units).
“Assignment of Contract Documents” means the Assignment of Contract Documents,
dated the date hereof, by the Lessee in favor of the Issuer, as amended, modified, or replaced.
“Authorized Issuer Representative” means the person at the time designated to act on
behalf of the Issuer by written certificate furnished to the Lessee and the Trustee, containing the
specimen signature of such person and signed on behalf of the Issuer by the Chairman or Vice
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Chairman of the Governing Body. Such certificate or any subsequent or supplemental certificate
so executed may designate an alternate or alternates.
“Authorized Lessee Representative” means the person at the time designated to act on
behalf of the Lessee by written certificate furnished to the Issuer and the Trustee, containing the
specimen signature of such person and signed on behalf of the Lessee by the Manager of the
Lessee. Such certificate or any subsequent or supplemental certificate so executed may
designate an alternate or alternates.
“Base Year” means the earlier of (1) Fiscal Year 2020 or (2) the Fiscal Year following
the first Fiscal Year in which the Project achieves Project Stabilization.
“Basic Rent” means the rent payable by the Lessee to the Issuer, described under the
subheadings “Basic Rent related to Series 2017 Bonds” and “Basic Rent related to Additional
Bonds” in Section 5.03 of this Lease Agreement.
“Bond Documents” means, collectively, this Lease Agreement, the Indenture, the Bond
Guaranty, the Limited Guaranty, the Security Deed, the Assignment of Contract Documents, and
the Contract.
“Bond Fund” means the fund created in Section 602 of the Indenture and referred to
herein.
“Bond Guaranty” means the Bond Guaranty Agreement, dated as of even date herewith,
between the Lessee and the Trustee, as the same may be amended from time to time in
accordance with the terms thereof, under the terms of which the Lessee agreed to unconditionally
and absolutely guarantee the obligations of the Issuer under the Bonds.
“Bond Resolution” means the resolution or resolutions adopted by the Governing Body
of the Issuer authorizing the issuance and sale of the Series 2017 Bonds and the provision of the
security therefor.
“Bondholders” means the Persons in whose names any of the Bonds are registered on
the books kept and maintained by the Trustee as bond registrar.
“Bonds” means the Series 2017 Bonds and all series of Additional Bonds from time to
time authenticated and delivered under the Indenture.
“Bond Year” means the twelve-month period beginning on October 2 of each calendar
year and ending on October 1 of the next succeeding calendar year.
“Building” means those certain buildings and all other facilities and improvements
constituting part of the Project, which are or will be located on the Premises.
“Buy-Out Option Price” shall mean $1,316,666.
“Capitalized Interest Account” means the separate account so designated in the Bond
Fund, which is created and established therein pursuant to Section 602 of the Indenture.
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“Capital Lease” means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
“Completion Date” means the date of completion of the acquisition, construction, and
installation of the Project, as that date shall be certified as provided in Section 4.07 hereof.
“Consolidated Government” means Augusta, Georgia, a political subdivision of the
State of Georgia.
“Construction Contracts” means the contracts between the Lessee and the general
contractor for the construction of the Building and the contracts between the Lessee and
suppliers of materials and Equipment.
“Consulting Architect” means the architect or architectural firm or construction
management firm at the time employed by the Lessee on behalf of the Issuer and designated to
act on behalf of the Issuer by written certificate furnished to the Trustee, containing the signature
of such person or the signature of a partner or officer of such firm, and signed on behalf of the
Issuer by the Chairman or Vice Chairman of the Governing Body. The Consulting Architect
shall be registered and qualified to practice under the laws of the State and shall not be a
full-time employee of the Issuer or the Lessee.
“Continuing Disclosure Agreement” means the Continuing Disclosure Agreement,
dated the date hereof, between the Lessee and the Trustee, as originally executed and as it may
be amended from time to time in accordance with the terms thereof.
“Contract” means the Intergovernmental Redevelopment Contract, dated the date
hereof, between the Issuer and the Consolidated Government, as the same may be amended from
time to time in accordance with the provisions thereof.
“Costs of the Project” means those costs and expenses in connection with the
acquisition, construction, and installation of the Project permitted by Section 4.03 hereof to be
paid or reimbursed from Bond proceeds.
“Days Cash-On-Hand” means, as of the date of calculation, the quotient of
(a) Unrestricted Cash and Investments of the Lessee on such date, divided by (b) the quotient of
(i) the sum of Expenses of Operation and Maintenance and the Debt Service Requirement during
the period for which the calculation is being made divided by (ii) the number of days in such
period.
“Debt Service Coverage Ratio” means, for any particular period of time, the ratio
determined by dividing (a) Income Available for Debt Service for such period by (b) the product
of the Maximum Annual Debt Service Requirement times the number of days during such period
divided by three hundred sixty five (365).
“Debt Service Requirement” means the total principal and interest coming due on the
Bonds, whether at maturity or upon mandatory redemption, in any specified period. The
principal of and interest on Bonds shall be excluded from the determination of Debt Service
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Requirement to the extent that the same were or are expected to be paid with amounts on deposit
on the date of calculation (or Bond proceeds to be deposited on the date of issuance of proposed
Bonds) in the Project Fund, the Capitalized Interest Account, or the Debt Service Reserve Fund.
The Trustee may request and rely upon a certification of the Debt Service Requirement.
“Debt Service Reserve Fund” means the fund created in Section 607 of the Indenture
and referred to herein.
“Debt Service Reserve Requirement” means an amount equal to 50% of the Maximum
Annual Debt Service Requirement.
“Environmental Laws” means all federal, state, and local laws, rules, regulations,
ordinances, programs, permits, guidances, orders, and consent decrees relating to health, safety,
and environmental matters, including, but not limited to, the Resource Conservation and
Recovery Act, as amended, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, the Toxic Substances Control Act, as amended, the Clean
Water Act, as amended, the Clean Air Act, as amended, the Superfund Amendments and
Reauthorization Act of 1986, as amended, state and federal superlien and environmental cleanup
programs and laws, and U.S. Department of Transportation regulations.
“Equipment” means the equipment, machinery, furnishings, and other personal property
described in Exhibit B attached hereto, which, by this reference thereto, is incorporated herein,
and all replacements, substitutions, and additions thereto.
“Event of Default” means the events specified in Section 10.01 of this Lease
Agreement.
“Expenses of Operation and Maintenance” means all expenses reasonably incurred in
connection with the operation and maintenance of the Project, including, but not limited to,
salaries, wages, the cost of materials and supplies, rentals of leased property, if any, management
fees, the cost of audits, Trustee’s, paying agent’s, and bond registrar’s fees and expenses,
payment of premiums for insurance required by this Lease Agreement and other insurance that
the Lessee deems prudent to carry on the Project and its operations and personnel, and, generally,
all expenses, exclusive of debt service on Bonds and depreciation or amortization, which under
GAAP are properly allocable to operation and maintenance; however, only such expenses as are
reasonably and properly necessary or desirable for the proper operation and maintenance of the
Project shall be included.
“Extraordinary Services of the Trustee” and “Extraordinary Expenses of the
Trustee” mean all services rendered and all expenses incurred by the Trustee under the
Indenture, including reasonable counsel fees, other than Ordinary Services of the Trustee and
Ordinary Expenses of the Trustee.
“Fair Market Value” means (i) with respect to real property, the market value for such
property as established by an independent real estate appraiser who is a member of the American
Institute of Real Estate Appraisers selected by the Lessee and reasonably acceptable to the Issuer
and (ii) with respect to property other than real property, the current market value of such
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35881161v4
property as established by a broker, appraiser, or other expert selected by the Lessee and
reasonably acceptable to the Issuer. Whenever the Fair Market Value of property is required to
be established pursuant to this Lease Agreement, such valuation shall be made in writing and
delivered to the Issuer.
“Fiscal Year” means the 12-month period ending on December 31 of each year, or such
other 12-month period set forth in an Officer’s Certificate of the Lessee filed with the Trustee as
the fiscal year of the Lessee for accounting purposes. Except as otherwise provided herein,
whenever reference is made in this Lease Agreement to a determination of revenues, expenses,
debt coverage, or other accounting calculations to be made for, or with respect to, a Fiscal Year,
such reference shall be to that Fiscal Year immediately preceding the date of such determination
or calculation for which audited financial statements have been prepared and are then available.
“Fund” means any of the funds established pursuant to the Indenture.
“GAAP” means generally accepted accounting principles as in effect from time to time
in the United States of America.
“General Account” means the separate account so designated in the Bond Fund, which
is created and established therein pursuant to Section 602 of the Indenture.
“Governing Body” means the Board of Commissioners of the Issuer.
“Governmental Issuer” means the State, any other state of the United States, any
agency or instrumentality of the State, and any county, municipal corporation, or political
subdivision of the State.
“Government Obligations” means:
(a) direct general obligations of the United States of America (including obligations
issued or held in book-entry form on the books of the Department of Treasury of the United
States of America) or obligations the payment of the principal of and interest on which when due
are fully and unconditionally guaranteed by the United States of America;
(b) receipts or certificates that evidence an undivided ownership interest in the right to
the payment of the principal of or interest on obligations described in clause (a) above, provided
that such obligations are held in the custody of a bank or trust company acceptable to the
Trustee, in a special account separate from the general assets of such custodian; and
(c) bonds, notes, or other obligations of any Governmental Issuer the timely payment of
the principal of and interest on which is fully provided for (without reinvestment) by the deposit
in trust or escrow of cash or non-callable obligations described in clauses (a) or (b) above.
“Gross Receipts” means all the right, title, and interest of the Lessee in and to amounts
received by or on behalf of the Lessee from the leasing and operation of the Project, including all
revenues, rents, fees, charges, or other income of any kind from any source received by the
Lessee from the Project, including without limitation: (1) gross rentals received with respect to
land, buildings, equipment, or other personal property owned, leased, or used by the Lessee; (2)
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35881161v4
gross revenues received from the sale of any merchandise or products after deducting the cost
thereof if the sale is made directly by or on behalf of the Lessee or the gross revenues received
by virtue of the Lessee licensing or otherwise permitting others to make such sales; (3) gross
revenues received from any concession granted by the Lessee with respect to the Project; (4)
gross revenues received from any and all leases of any lands, buildings, structures, equipment, or
other personal property, or any parts thereof or therein owned, leased, or controlled by the Lessee
as part of the Project including Project related or appurtenant thereto; (5) gross revenues derived
from the rental of residential or commercial units, common areas, and food and beverages
(without taking into account any costs incurred in respect of such sales); (6) all other revenues of
all operating departments of the Project; (7) all rents or fees payable by tenants and
concessionaires (but not the gross receipts of tenants or concessionaires); and (8) all proceeds of
business interruption insurance and temporary condemnation awards (excluding, however,
proceeds of damage, destruction, and casualty insurance and permanent condemnation awards).
“Guarantors” means, collectively, Columbia Ventures, LLC, a limited liability company
duly formed and existing under the laws of the State of Georgia, and Noel Khalil, Jim Grauley,
Dillon Baynes, and Jakob von Trapp, each individuals, and their successors and assigns.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement
in the ordinary course of business of negotiable instruments for deposit or collection) of such
Person guaranteeing or in effect guaranteeing (whether by reason of being a general partner of a
partnership or otherwise) any indebtedness, dividend, or other obligation of any other Person in
any manner, whether directly or indirectly, including (without limitation) obligations incurred
through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any Property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for
the purpose of assuring the owner of such indebtedness or obligation of the ability
of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.
“Income Available for Debt Service” means, for any period of calculation, the net
income, or excess of revenues over expenses, before depreciation, amortization, and interest
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expense, as determined in accordance with GAAP; provided, that no determination thereof shall
take into account (i) gifts (whether restricted or unrestricted), (ii) extraordinary gains and losses,
or (iii) unrealized gains and losses on investments.
“Indebtedness” with respect to any Person means, at any time, without duplication:
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of property acquired by
such Person (excluding accounts payable arising in the ordinary course of
business but including all liabilities created or arising under any conditional sale
or other title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with GAAP
in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to
any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a
similar function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described
in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP.
“Indenture” means the Trust Indenture and Security Agreement, dated the date hereof,
between the Issuer and the Trustee, as the same may be amended from time to time in
accordance with the provisions thereof.
“Independent Counsel” means an attorney or firm of attorneys duly admitted to practice
law before the highest court of any state of the United States and not in the full-time employment
of the Issuer or the Lessee.
“Initial Management Company” means Matrix Residential, LLC, a Georgia limited
liability company, and its successors and assigns;
“Insurance Consultant” means any Person appointed by the Lessee and reasonably
satisfactory to the Issuer, who is qualified to survey risks and to recommend insurance coverage
for facilities and organizations engaged in like operations as that of the Lessee and who may be a
broker or agent with whom the Lessee transacts business.
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“Insurance Requirements” means all terms of any insurance policy required to be
obtained under this Lease Agreement covering or applicable to the Project or any part thereof, all
requirements of the issuer of any such policy, and all orders, rules, regulations, and other
requirements of the national board of fire underwriters (or any other body exercising similar
functions) applicable to or affecting the Project or any part thereof or any use of the Project or
any part thereof.
“Issuance Cost Fund” means the fund created in Section 606 of the Indenture and
referred to in Section 4.05 hereof.
“Issuance Costs” means:
(a) The initial or acceptance fee of the Trustee, the fees and taxes for recording
this Lease Agreement and the Indenture or a summary hereof and thereof, financing
statements, and any title curative documents that either the Trustee or Independent
Counsel may reasonably deem desirable to file for record in order to perfect or protect the
title of the Issuer to the Project or the lien or security interest created or granted by the
Indenture, and the reasonable fees and expenses in connection with any actions or
proceedings that either the Trustee or Independent Counsel may reasonably deem
desirable to bring in order to perfect or protect the lien or security interest created or
granted by the Indenture.
(b) The costs of legal fees and expenses, underwriter’s spread, underwriting
fees, financing costs, financial advisor’s fees, accounting fees and expenses, consulting
fees, the Trustee’s fees, paying agent and certifying and authenticating agent fees, Rating
Agency fees, publication costs, title insurance premiums, and printing and engraving
costs incurred in connection with the authorization, sale, issuance, and carrying of the
Bonds, and the preparation of the Bond Documents and all other documents in
connection therewith.
(c) Other costs in connection with the issuance of the Bonds permitted by the
Urban Redevelopment Law to be paid or reimbursed from Bond proceeds.
“Issuer” means the Urban Redevelopment Agency of Augusta, a public corporation
created and existing under the laws of the State, and its successors and assigns.
“Issuer Documents” means, collectively, this Lease Agreement, the Limited Guaranty,
the Security Deed, the Assignment of Contract Documents, the Contract, and the Indenture.
“Lease Agreement” means this Lease Agreement between the Issuer and the Lessee, as
it may be supplemented and amended from time to time in accordance with the provisions
hereof.
“Lease Term” means the duration of the leasehold estate created in this Lease
Agreement as specified in Section 5.01 hereof.
“Lessee” means CV Foundry Apartments, LLC, a limited liability company duly formed
and existing under the laws of the State of Georgia, and its successors and assigns.
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“Lessee Documents” means this Lease Agreement, the Bond Guaranty, the Assignment
of Contract Documents, and the Security Deed.
“Lien” means any interest in Property securing an obligation owed to, or a claim by, a
Person other than the owner of the Property, whether such interest is based on the common law,
statute, or contract, and including, but not limited to, the security interest, security title, or lien
arising from a security agreement, mortgage, deed of trust, deed to secure debt, encumbrance,
pledge, conditional sale, or trust receipt or a lease, consignment, or bailment for security
purposes. The term “Lien” shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and
encumbrances affecting Property. For the purpose of this Lease Agreement, the Issuer shall be
deemed to be the owner of any Property that it has acquired or holds subject to a conditional sale
agreement or other arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes.
“Limited Guaranty” means the Limited Guaranty Agreement, dated as of even date
herewith, between the Guarantors and the Issuer, as the same may be amended from time to time
in accordance with the provisions thereof.
“Management Agreement” means the Management and Leasing Agreement, between
the Lessee and the Management Company, as may be amended or supplemented; provided that,
any such amendment or supplement thereto shall be consented to by the Issuer, which consent
shall not be unreasonably withheld.
“Management Company” means the Initial Management Company or any replacement
or successor management company appointed under Section 8.16 of this Lease Agreement.
“Management Fee” means the fees paid to the Management Company pursuant to the
terms of the Management Agreement.
“Maximum Annual Debt Service Requirement” means the highest Debt Service
Requirement for the then current or any succeeding Bond Year, as certified by the Lessee to the
Trustee upon the request of the Trustee from time to time.
“Net Proceeds,” when used with respect to any insurance or condemnation award or
with respect to any other recovery on a contractual claim or claim for damage to or for taking of
or failure of title to property, means the gross proceeds from the insurance or condemnation
award or recovery with respect to which that term is used remaining after payment of all
expenses (including attorneys’ fees and any Extraordinary Expenses of the Trustee) incurred in
the collection of such gross proceeds.
“Officer’s Certificate” means a certificate in writing signed by the Authorized Lessee
Representative.
“Operating Covenants” means the covenants of the Lessee set forth in subsections (b),
(c), (d), and (e) of Section 8.08 hereof.
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“Ordinary Services of the Trustee” and “Ordinary Expenses of the Trustee” mean
those reasonable services rendered and those reasonable expenses incurred by the Trustee in the
performance of its duties under the Indenture of the type ordinarily performed by corporate
trustees under like indentures, including reasonable counsel fees.
“Outstanding Bonds” or “Bonds Outstanding” or “Outstanding” means all Bonds
that have been duly authenticated and delivered by the Trustee under the Indenture, except:
(a) Bonds theretofore cancelled or required to be cancelled by the Trustee,
(b) Bonds that are deemed to have been paid in accordance with the defeasance
provisions of Article X of the Indenture, and
(c) Bonds in substitution for which other Bonds have been authenticated and
delivered under Section 205 of the Indenture.
If the Indenture shall be discharged pursuant to the defeasance provisions of Article X thereof,
no Bonds shall be deemed to be Outstanding within the meaning of this provision.
“Permitted Encumbrances” means, as of any particular time:
(a) any judgment lien or notice of pending action against the Lessee so long as such
judgment or pending action is being contested and execution thereon is stayed or while the
period for responsive pleading has not lapsed;
(b) (i) rights reserved to or vested in any municipality or public authority by the terms
of any right, power, franchise, grant, license, permit, or provision of law, affecting the Project;
(ii) any liens on the Project for taxes, assessments, levies, fees, water and sewer charges, and
other governmental and similar charges and any liens of mechanics, materialmen, laborers,
suppliers, or vendors for work or services performed or materials furnished in connection with
the Project, which are not due and payable or which are not delinquent or which, or the amount
or validity of which, are being contested in accordance with this Lease Agreement; (iii) utility,
access, and other easements and rights of way, servitudes, restrictions, and other minor defects,
encumbrances, encroachments, and irregularities in the title to the Project that do not materially
impair the use of the Project for its intended purpose or materially and adversely affect the value
of the Project; (iv) rights reserved to or vested in any municipality or public authority to control,
use, or regulate the Project in any manner, which rights do not materially impair the use of the
Project for its intended purpose or materially and adversely affect the value of the Project; (v) to
the extent that they affect title to the Project, the Bond Documents; (vi) landlord’s liens; and (vii)
the easements and leases permitted by this Lease Agreement;
(c) any Lien described in Exhibit A to this Lease Agreement that is existing on the date
of execution of this Lease Agreement, provided that no such Lien (or the amount of indebtedness
secured thereby) may be increased, extended, renewed, or modified to apply to any portion of the
Project not subject to such Lien on such date, unless such Lien as so extended, renewed, or
modified otherwise qualifies as a Permitted Encumbrance;
(d) any Lien in favor of the Trustee securing all Bonds on a parity basis; and
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(e) any Lien on the Lessee’s leasehold estate in the Project that does not encumber the
Issuer’s fee simple title to the Project.
“Permitted Investments” means obligations in which the Issuer is permitted to invest
moneys of the Issuer pursuant to applicable law, which have (or are collateralized by obligations
which have) a Rating by any Rating Agency that is equal to or greater than the third highest
long-term Rating of such Rating Agency, or which bears (or are collateralized by obligations
which bear) the second highest short-term Rating of such Rating Agency, or which consist of
negotiable or non-negotiable certificates of deposit issued by or interest-bearing time or demand
deposits in banks, provided that any such deposits are (a) fully insured by the Federal Deposit
Insurance Corporation or (b) fully secured by Government Obligations. Obligations in which the
Issuer is permitted to invest proceeds of Bonds are described, as of the date of execution of this
Lease Agreement, in Section 36-82-7 and Section 50-17-2 of the Official Code of Georgia
Annotated.
“Person” means natural persons, firms, joint ventures, associations, trusts, partnerships,
corporations, and public bodies.
“Plans and Specifications” means the detailed plans and specifications and budget of
the costs for the construction of the Building prepared by the Consulting Architect or by
architects and engineers acceptable to the Consulting Architect, as amended from time to time by
the Lessee, a copy of which is or will be on file with the Issuer and the Trustee.
“Pledged Contracts” means, collectively, the Lease Agreement, the Bond Guaranty, the
Limited Guaranty, the Security Deed, the Assignment of Contract Documents, and the Contract.
“Premises” means the real estate described in Exhibit A attached hereto, which, by this
reference thereto, is incorporated herein.
“Project” means the urban redevelopment project constituting an approximately 221-unit
apartment community to be acquired, constructed, and installed and to be located in Augusta,
Georgia, and all related property, consisting of the Premises, the Building, and the Equipment.
“Project Budget” means the Lessee’s budget (with detail provided on a month by month
basis) for the Project for the applicable Fiscal Year including, without limitation, a budget of
capital expenditures for such year, an annual cash flow analysis that itemizes Gross Receipts and
Expenses of Operation and Maintenance on a monthly basis, the Monthly Repair and
Replacement Deposit, and such other information as required by this Lease Agreement, as such
budget shall be revised from time to time as provided in this Lease Agreement.
“Project Fund” means the Project Fund created in Section 702 of the Indenture and
referred to herein.
“Project Stabilization” means the first full six (6) month period during which (i) the
average occupancy of the residential units in the Project for such six (6) month period and for
each of five (5) consecutive months during such six (6) month period is equal to or greater than
90%, and (ii) the Debt Service Coverage Ratio at the end of such six (6) month period is equal to
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or greater than 1.20, each as evidenced by an Officer’s Certificate of the Lessee delivered to the
Issuer and the Trustee.
“Property” means any interest in any kind of property or asset, whether real, personal, or
mixed, or tangible or intangible.
“Rating” means a rating in one of the categories by a Rating Agency, disregarding
pluses, minuses, and numerical gradations.
“Rating Agencies” or “Rating Agency” means Moody’s Investors Service, Inc., S&P
Global Ratings, a division of Standard & Poor’s Financial Services LLC, Fitch, Inc., or any
successors thereto and any other nationally recognized credit rating agency. If at any time a
particular Rating Agency does not have a rating outstanding with respect to the relevant Bonds,
then a reference to Rating Agency or Rating Agencies shall not include such Rating Agency.
“Redemption Account” means the separate account so designated in the Bond Fund,
which is created and established therein pursuant to Section 602 of the Indenture.
“Repair and Replacement Fund” means the trust fund so designated, which is created
pursuant to Section 610 of the Indenture.
“Repair and Replacement Rent” means the rent payable by the Lessee to the Trustee
for deposit in the Repair and Replacement Fund, described under the subheadings “Repair and
Replacement Rent” in Section 5.03 of this Lease Agreement.
“Reserve Rent” means the rent payable by the Lessee to the Trustee for deposit in the
Debt Service Reserve Fund, described under the subheadings “Reserve Rent” in Section 5.03 of
this Lease Agreement.
“Security Deed” means the Leasehold Deed to Secure Debt and Assignment of Rents
and Leases, dated the date hereof, from the Lessee to the Issuer, as the same may be amended
from time to time in accordance with the terms thereof.
“Series 2017 Bonds” means the revenue bonds designated “Urban Redevelopment
Agency of Augusta Revenue Bonds (CV Foundry Apartments, LLC Project), Series 2017,” to be
dated the date of issuance and delivery thereof, in the aggregate principal amount of
$__________, to be issued pursuant to the Indenture.
“State” means the State of Georgia.
“Swaps” means, with respect to any Person, payment obligations with respect to interest
rate swaps, currency swaps, and similar obligations obligating such Person to make payments,
whether periodically or upon the happening of a contingency. For the purposes of this Lease
Agreement, the amount of the obligation under any Swap shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based
on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making
such determination, if any agreement relating to such Swap provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for the simultaneous
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payment of amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
“Trustee” means the trustee or the co-trustee at the time serving as such under the
Indenture. U.S. Bank National Association, Atlanta, Georgia, is the initial Trustee.
“Trust Estate” means any and all property subject to the operation of the granting
clauses of the Indenture.
“Unassigned Rights” means all of the rights of the Issuer pursuant to Sections 3.04,
3.05, 3.06, 4.01, 5.03(e), 8.05, 8.08, 8.10, 9.01, and 10.04 hereof, and pursuant to Articles VI and
VII hereof. [cross-references to be updated]
“Underwriter” means, for purposes of the Series 2017 Bonds, __________________.
“Unrestricted Cash and Investments” means, as of the date of determination, any cash,
cash equivalents and board designated or trustee held funds (specifically excluding amounts held
under the Project Fund and the Debt Service Reserve Fund), all to the extent available for the
payment of Expenses of Operation and Maintenance and Debt Service Requirement and as
evidenced by the most recent financial statements of the Lessee.
“Urban Redevelopment Law” means Chapter 61 of Title 36 of the Official Code of
Georgia Annotated, entitled the “Urban Redevelopment Law,” as amended, and as the same may
be from time to time additionally supplemented and amended.
“Urban Redevelopment Plan” means the urban redevelopment plan of the Consolidated
Government entitled the “Laney-Walker and Bethlehem Urban Redevelopment Plan,” a copy of
which is on file with the Consolidated Government.
Section 1.02. Construction of Certain Terms. For all purposes of this Lease
Agreement, except as otherwise expressly provided or unless the context otherwise requires, the
following rules of construction shall apply:
(1) The use of the masculine, feminine, or neuter gender is for convenience only
and shall be deemed and construed to include correlative words of the masculine,
feminine, or neuter gender, as appropriate.
(2) All references in this instrument to designated “Articles,” “Sections,” and
other subdivisions are to the designated Articles, Sections, and other subdivisions of this
instrument. The words “herein,” “hereof,” and “hereunder” and other words of similar
import refer to this Lease Agreement as a whole and not to any particular Article,
Section, or other subdivision.
(3) The terms defined in this Article include the plural as well as the singular.
(4) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
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promulgated by the American Institute of Certified Public Accountants, on and as of the
date of this instrument.
Section 1.03. Table of Contents; Titles and Headings. The table of contents, the titles
of the articles, and the headings of the sections of this Lease Agreement are solely for
convenience of reference, are not a part of this Lease Agreement, and shall not be deemed to
affect the meaning, construction, or effect of any of its provisions.
Section 1.04. Contents of Certificates or Opinions. Every certificate or opinion with
respect to the compliance with a condition or covenant provided for in this Lease Agreement
shall include: (i) a statement that the person or persons making or giving such certificate or
opinion have read such covenant or condition and the definitions herein relating thereto, (ii) a
brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (iii) a statement that, in
the opinion of the signers, they have made or caused to be made such examination or
investigation as is necessary to enable them to express an informed opinion as to whether or not
such covenant or condition has been complied with, and (iv) a statement as to whether, in the
opinion of the signers, such condition or covenant has been complied with.
Any such certificate or opinion made or given by an officer of the Issuer or the Lessee
may be based, insofar as it relates to legal or accounting matters, upon a certificate or an opinion
of counsel or an accountant, which certificate or opinion has been given only after due inquiry of
the relevant facts and circumstances, unless such officer knows that the certificate or opinion
with respect to the matters upon which his certificate or opinion may be based is erroneous or in
the exercise of reasonable care should have known that the same was erroneous. Any such
certificate or opinion made or given by counsel or an accountant may be based (insofar as it
relates to factual matters with respect to information that is in the possession of an officer of the
Issuer or the Lessee or any third party) upon the certificate or opinion of or representations by an
officer of the Issuer or the Lessee or any third party on whom counsel or an accountant could
reasonably rely unless such counsel or such accountant knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or opinion may be based as
aforesaid are erroneous or in the exercise of reasonable care should have known that the same
were erroneous. The same officer of the Issuer or the Lessee, or the same counsel or accountant,
as the case may be, need not certify to or render an opinion as to all of the matters required to be
certified or covered by an opinion under any provision of this Lease Agreement, but different
officers, counsel, or accountants may certify to or render an opinion as to different matters,
respectively.
[End of Article I]
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ARTICLE II
REPRESENTATIONS AND UNDERTAKINGS
Section 2.01. Representations by the Issuer. The Issuer makes the following
representations and findings as the basis for the undertakings on its part herein contained:
(a) Creation and Authority. The Issuer is a public corporation duly created and
validly existing under the laws of the State, including the provisions of the Urban
Redevelopment Law. The Issuer has all requisite power and authority under the Urban
Redevelopment Law and the laws of the State (1) to issue the Series 2017 Bonds in order
to finance the costs of acquiring, constructing, and installing the Project and to finance
related costs; (2) to acquire, construct, and install the Project for lease to the Lessee; (3)
to lease the Project to the Lessee pursuant to this Lease Agreement; and (4) to enter into,
perform its obligations under, and exercise its rights under the Issuer Documents. The
Consolidated Government has elected to have its “urban redevelopment project powers,”
as defined in Section 36-61-17(b) of the Official Code of Georgia Annotated, exercised
by the Issuer, and the Issuer is vested with all of the “urban redevelopment project
powers” of the Consolidated Government conferred in the Urban Redevelopment Law.
The Urban Redevelopment Law authorizes the Issuer to issue bonds to finance the
undertaking of any “urban redevelopment project” under the Urban Redevelopment Law,
which bonds shall be made payable, as to both principal and interest, solely from the
income, proceeds, revenues, and funds of the Issuer derived from or held in connection
with its undertaking and carrying out of urban redevelopment projects under the Urban
Redevelopment Law. The Urban Redevelopment Law requires that all revenue bonds
issued under the Urban Redevelopment Law be issued and validated under and in
accordance with the procedure set forth in Article 3 of Chapter 82 of Title 36 of the
Official Code of Georgia Annotated, known as the “Revenue Bond Law.” The Urban
Redevelopment Law authorizes the Issuer to undertake and carry out within the territorial
limits of the Consolidated Government “urban redevelopment projects,” which are
defined to include undertakings or activities of the Issuer in an urban redevelopment area
under the Urban Redevelopment Law for the elimination and for the prevention of the
development or spread of pockets of blight and may involve pockets of blight clearance
and redevelopment in an urban redevelopment area, rehabilitation or conservation in an
urban redevelopment area, or any combination or part thereof, in accordance with an
urban redevelopment plan adopted pursuant to the Urban Redevelopment Law. The
Urban Redevelopment Law authorizes the Issuer to make and execute contracts and other
instruments necessary or convenient to the exercise of its powers under the Urban
Redevelopment Law, to acquire, by purchase, grant, or otherwise, any real property
(defined to include all lands, including improvements and fixtures thereon and property
of any nature appurtenant thereto or used in connection therewith), to hold, improve,
clear, or prepare for redevelopment any such property, and to borrow money for the
purposes of the Urban Redevelopment Law and to give such security as may be required
and to enter into and carry out contracts in connection therewith. The Urban
Redevelopment Law authorizes the Issuer to lease or otherwise transfer real property in
an urban redevelopment area or any interest therein acquired by it and may enter into
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contracts with respect thereto, for residential, recreational, commercial, industrial or other
uses, in accordance with the Urban Redevelopment Plan or any part thereof. The Project
constitutes an “urban redevelopment project” within the meaning of that term as defined
in the Urban Redevelopment Law and in accordance with the Urban Redevelopment Plan
and all proceeds of the Series 2017 Bonds have been or will be used only for the lawful
and valid public purposes set forth in the Urban Redevelopment Law.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of the Issuer, after making due inquiry with
respect thereto, threatened against or affecting the Issuer in any court or by or before any
governmental authority or arbitration board or tribunal, which involve the possibility of
materially and adversely affecting the ability of the Issuer to perform its obligations
under the Issuer Documents or the transactions contemplated by the Issuer Documents or
which, in any way, would adversely affect the validity or enforceability of the Series
2017 Bonds, the Issuer Documents, or any agreement or instrument to which the Issuer is
a party and which is used or contemplated for use in the consummation of the
transactions contemplated hereby or thereby, nor is the Issuer aware of any facts or
circumstances presently existing that would form the basis for any such actions, suits, or
proceedings. The Issuer is not in default with respect to any judgment, order, writ,
injunction, decree, demand, rule, or regulation of any court, governmental authority, or
arbitration board or tribunal, which would have a material adverse effect on the
transactions contemplated by the Issuer Documents.
(c) Issue, Sale, and Other Transactions Are Legal and Authorized. The issue
and sale of the Series 2017 Bonds, the execution and delivery by the Issuer of the Issuer
Documents, the consummation of the transactions herein and therein contemplated, and
the fulfillment of or compliance by the Issuer with all of the provisions of each thereof
and of the Series 2017 Bonds (i) are within the purposes, powers, and authority of the
Issuer, (ii) have been done in full compliance with the provisions of the Urban
Redevelopment Law and have been approved by the Governing Body and are legal and
will not conflict with or constitute on the part of the Issuer a violation of or a breach of or
a default under, or result in the creation or imposition of any lien, charge, restriction, or
encumbrance (other than Permitted Encumbrances) upon any property of the Issuer under
the provisions of, any charter instrument, bylaw, indenture, mortgage, security deed,
pledge, note, lease, loan, or installment sale agreement, contract, or other agreement or
instrument to which the Issuer is a party or by which the Issuer or its properties are
otherwise subject or bound, or any license, judgment, decree, law, statute, order, writ,
injunction, demand, rule, or regulation of any court or governmental agency or body
having jurisdiction over the Issuer or any of its activities or properties, and (iii) have been
duly authorized by all necessary corporate action on the part of the Issuer. The Issuer
Documents are the valid, legal, binding, and enforceable obligations of the Issuer.
(d) Governmental Consents. Neither the nature of the Issuer nor any of its
activities or properties, nor any relationship between the Issuer and any other Person, nor
any circumstance in connection with the execution, delivery, and performance by the
Issuer of its obligations under the Issuer Documents or the offer, issue, sale, or delivery
of the Series 2017 Bonds is such as to require the consent, approval, permission, order,
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license, or authorization of, or the filing, registration, or qualification with, any
governmental authority on the part of the Issuer in connection with the execution,
delivery, and performance of the Issuer Documents, the consummation of any transaction
therein contemplated, or the offer, issue, sale, or delivery of the Series 2017 Bonds,
except as shall have been obtained or made and as are in full force and effect. To the
knowledge of the Issuer, after making due inquiry with respect thereto, the Issuer will be
able to obtain all such additional consents, approvals, permissions, orders, licenses, or
authorizations of governmental authorities as may be required on or prior to the date the
Issuer is legally required to obtain the same.
(e) No Defaults. To the knowledge of the Issuer, after making due inquiry with
respect thereto, no event has occurred and no condition exists that would constitute an
Event of Default or that, with the lapse of time or with the giving of notice or both, would
become an Event of Default. To the knowledge of the Issuer, after making due inquiry
with respect thereto, the Issuer is not in default or violation in any material respect under
the Urban Redevelopment Law or under any charter instrument, bylaw, or other
agreement or instrument and to which it is a party or by which it may be bound.
(f) No Prior Pledge. Neither the Issuer Documents or the Project nor any of the
payments or amounts to be received by the Issuer under the Issuer Documents or with
respect to the Project have been or will be pledged or hypothecated in any manner or for
any purpose or have been or will be the subject of a grant of a security interest by the
Issuer other than as provided in the Indenture as security for the payment of the Bonds.
(g) Disclosure. The representations of the Issuer contained in the Issuer
Documents and any certificate, document, written statement, or other instrument
furnished to the Trustee or the Underwriter by or on behalf of the Issuer in connection
with the transactions contemplated hereby do not contain any untrue statement of a
material fact relating to the Issuer and do not omit to state a material fact relating to the
Issuer necessary in order to make the statements contained herein and therein relating to
the Issuer not misleading. Nothing has come to the attention of the Issuer that would
materially and adversely affect or in the future may (so far as the Issuer can now
reasonably foresee) materially and adversely affect the acquisition, construction, or
ownership of the Project, the ability of the Issuer to perform its obligations under the
Issuer Documents or any of the documents or transactions contemplated hereby or
thereby, or any other transactions contemplated by the Bond Documents that have not
been set forth in the Official Statement relating to the Series 2017 Bonds or in the other
certificates, documents, and instruments furnished to the Underwriter by or on behalf of
the Issuer prior to the date of delivery of such Official Statement in connection with the
transactions contemplated hereby.
(h) Compliance with Conditions Precedent to the Issuance of the Series 2017
Bonds. All acts, conditions, and things required to exist, happen, and be performed
precedent to and in the execution and delivery by the Issuer of the Series 2017 Bonds do
exist, have happened, and have been performed in due time, form, and manner as
required by law; the issuance of the Series 2017 Bonds, together with all other
obligations of the Issuer, do not exceed or violate any constitutional or statutory
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limitation, and the revenues, funds, property, and amounts pledged to the payment of the
principal of, premium, if any, and interest on the Series 2017 Bonds, as the same become
due, have been calculated to be sufficient in amount for that purpose.
Section 2.02. Representations by the Lessee. The Lessee makes the following
representations and warranties as the basis for the undertakings on its part herein contained:
(a) Formation and Power. The Lessee is a limited liability company duly
formed, validly existing, and in good standing under and by virtue of the laws of the State
of Georgia, without limit as to the duration of its existence, and is duly qualified to do
business as a foreign limited liability company in good standing in all jurisdictions in
which such qualification is required and has all requisite power and authority and all
necessary licenses and permits to own and operate its properties and to carry on its
operations as they are now being conducted and as they are presently proposed to be
conducted.
(b) Pending Litigation and Taxes. There are no actions, suits, proceedings,
inquiries, or investigations pending or, to the knowledge of the Lessee, after making due
inquiry with respect thereto, threatened against or affecting the Lessee in any court or by
or before any governmental authority or arbitration board or tribunal, which involve the
possibility of materially and adversely affecting the properties, business, prospects,
profits, operations, or condition (financial or otherwise) of the Lessee, or the ability of the
Lessee to perform its obligations under the Lessee Documents, or the transactions
contemplated by the Lessee Documents or which, in any way, would adversely affect the
validity or enforceability of the Lessee Documents or any agreement or instrument to
which the Lessee is a party and which is used or contemplated for use in the
consummation of the transactions contemplated hereby or thereby, nor is the Lessee
aware of any facts or circumstances presently existing that would form the basis for any
such actions, suits, or proceedings. The Lessee is not in default with respect to any
judgment, order, writ, injunction, decree, demand, rule, or regulation of any court,
governmental authority, or arbitration board or tribunal, which would have a material
adverse effect on the transactions contemplated by the Lessee Documents. All tax returns
(federal, state, and local) required to be filed by or on behalf of the Lessee have been duly
filed, and all taxes, assessments, and other governmental charges shown thereon to be
due, including interest and penalties, except such, if any, as are being actively contested
by the Lessee in good faith, have been paid or adequate reserves have been made for the
payment thereof.
(c) Agreements Are Legal and Authorized. The execution and delivery by the
Lessee of the Lessee Documents, the consummation of the transactions herein and therein
contemplated, and the fulfillment of or the compliance with all of the provisions hereof
and thereof (i) are within the power, legal right, and authority of the Lessee, (ii) are legal
and will not conflict with or constitute on the part of the Lessee a violation of or a breach
of or a default under, or result in the creation or imposition of any lien, charge,
restriction, or encumbrance (other than Permitted Encumbrances) upon any property of
the Lessee under the provisions of, its articles of organization or operating agreement or
any indenture, mortgage, security deed, pledge, note, lease, loan, or installment sale
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agreement, contract, or other agreement or instrument to which the Lessee is a party or by
which the Lessee or its properties are otherwise subject or bound, or any license, law,
statute, rule, regulation, judgment, order, writ, injunction, decree, or demand of any court
or governmental agency or body having jurisdiction over the Lessee or any of its
activities or properties, and (iii) have been duly authorized by all necessary and
appropriate company action on the part of the Lessee. The Lessee Documents are the
valid, legal, binding, and enforceable obligations of the Lessee.
(d) Governmental Consents. Neither the Lessee nor any of its activities or
properties, nor any relationship between the Lessee and any other Person, nor any
circumstances in connection with the execution, delivery, and performance by the Lessee
of its obligations under the Lessee Documents or the offer, issue, sale, or delivery by the
Issuer of the Series 2017 Bonds, is such as to require the consent, approval, permission,
order, license, or authorization of, or the filing, registration, or qualification with, any
governmental authority on the part of the Lessee in connection with the execution,
delivery, and performance of the Lessee Documents, the consummation of any
transaction therein contemplated, or the offer, issue, sale, or delivery of the Series 2017
Bonds, except as shall have been obtained or made and as are in full force and effect. To
the knowledge of the Lessee, after making due inquiry with respect thereto, the Lessee
will be able to obtain all such additional consents, approvals, permissions, orders,
licenses, or authorizations of governmental authorities as may be required on or prior to
the date the Lessee is legally required to obtain the same.
(e) No Defaults. To the knowledge of the Lessee, after making due inquiry with
respect thereto, no event has occurred and no condition exists that would constitute an
Event of Default or that, with the lapse of time or with the giving of notice or both, would
become an Event of Default. To the knowledge of the Lessee, after making due inquiry
with respect thereto, the Lessee is not in default or violation in any material respect under
any operating agreement or other agreement or instrument to which it is a party or by
which it may be bound.
(f) Compliance with Law. To the knowledge of the Lessee, after making due
inquiry with respect thereto, the Lessee is not in violation of any laws, ordinances, or
governmental rules or regulations (including, without limitation, all Environmental Laws)
to which it or its properties are subject and has not failed to obtain any licenses, permits,
franchises, or other governmental authorizations (which are presently obtainable)
necessary to the ownership of its properties or to the conduct of its business, which
violation or failure to obtain might materially and adversely affect the properties,
business, prospects, profits, and condition (financial or otherwise) of the Lessee, and
there have been no citations, notices, or orders of noncompliance issued to the Lessee
under any such law, ordinance, rule, or regulation.
(g) Restrictions on the Lessee. The Lessee is not a party to or bound by any
contract, instrument, or agreement, or subject to any other restriction, that materially and
adversely affects its activities, properties, assets, operations, or condition (financial or
otherwise). The Lessee is not a party to any contract or agreement that restricts the right
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or ability of the Lessee to incur indebtedness for borrowed money or to enter into
long-term leases.
(h) Disclosure. The representations of the Lessee contained in the Lessee
Documents and any certificate, document, written statement, or other instrument
furnished by or on behalf of the Lessee to the Issuer or the Underwriter in connection
with the transactions contemplated hereby, do not contain any untrue statement of a
material fact and do not omit to state a material fact necessary to make the statements
contained herein or therein not misleading. To the best of the Lessee’s knowledge, there
is no fact that the Lessee has not disclosed to the Issuer and to the Underwriter in writing
that materially and adversely affects or in the future may (so far as the Lessee can now
reasonably foresee) materially and adversely affect the lease or operation of the Project or
the properties, business, operations, prospects, profits, or condition (financial or
otherwise) of the Lessee, or the ability of the Lessee to perform its obligations under the
Lessee Documents or any of the documents or transactions contemplated hereby or
thereby or any other transactions contemplated by the Bond Documents that has not been
set forth in the Official Statement relating to the Series 2017 Bonds or in the other
certificates, documents, and instruments furnished to the Underwriter by or on behalf of
the Lessee prior to the date of delivery of such Official Statement in connection with the
transactions contemplated hereby.`
(i) Undertakings Required by the Urban Redevelopment Law. The issuance of
the Series 2017 Bonds by the Issuer and the acquisition, construction, and installation of
the Project for lease to the Lessee has induced the Lessee to lease the Project from the
Issuer. The Lessee warrants that throughout the Lease Term the Project will be used only
for the uses specified in the Urban Redevelopment Plan and consistent with this Lease.
(j) Project Legal Compliance. The operation of the Project in the manner
presently contemplated will not conflict in any material respect with any zoning, water or
air pollution or other ordinance, order, law, rule, or regulation applicable to the Project,
including, without limitation, Environmental Laws. The Lessee has caused or will cause
the Project to be designed and constructed in accordance with all applicable federal, state,
and local laws or ordinances (including rules and regulations) relating to zoning,
planning, building, safety, and environmental quality. The Lessee will operate or will
cause the Project to be operated in compliance with the requirements of all such laws,
ordinances, rules, and regulations, including, without limitation, Environmental Laws.
The Lessee further covenants and agrees to comply in all material respects with, or use its
reasonable efforts to cause other Persons whose obligation it is to so comply by contract
or pursuant to law to comply in all material respects with, and materially conform to, all
present and future laws, statutes, codes, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, and requirements applicable to the Project, and
irrespective of the nature of the work to be done, of every applicable governmental
authority, including Environmental Laws applicable to the Project, and all covenants,
restrictions, and conditions now or hereafter of record that may be applicable to the use,
manner of use, occupancy, possession, operation, maintenance, alteration, repair, or
reconstruction of the Project, including building and zoning codes and ordinances
(collectively, the “Legal Requirements”), provided that the Lessee shall not be in default
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hereunder so long as the Lessee, promptly after receiving an actual written notice of any
noncompliance, files a copy thereof with the Trustee, and the Lessee commences and
uses its diligent efforts to cause compliance with such Legal Requirements, and as long
as the failure to comply does not subject the Project to any material danger of being
forfeited or lost as a result thereof. The Lessee possesses or will possess, and the Lessee
hereby agrees to maintain and obtain in the future, all necessary licenses and permits, or
rights thereto, to operate the Project as presently proposed to be operated, and all such
licenses, permits, or other approvals required in connection with the operation of the
Project have been duly obtained and are in full force and effect except for any such
licenses, permits, or other approvals that are not yet required and that will be duly
obtained not later than the time required or the failure to obtain which will not materially
and adversely affect the operation of the Project. The Lessee covenants and agrees to do
all things necessary to preserve and keep in full force and effect its franchises, rights,
powers, and privileges as the same relate to the Project.
(k) Statutory Liens. To the knowledge of the Lessee, there are no mechanics’ or
materialmen’s liens or other statutory liens on the Project, and no excavation or work of
any character, kind, or description has been or will be commenced nor any material of
any description for any construction in connection with the Project delivered on or near
the Premises prior to the execution of this Lease Agreement or the recording of the
Security Deed, except as the Issuer shall be advised in writing, and in the event the Issuer
is so advised in writing of any work or deliveries, the Lessee will provide the Issuer with
waivers of all liens with respect to such work or deliveries in such form as may be
satisfactory to the Issuer.
(l) Compliance. The Project complies or will comply with all presently
applicable building and zoning, health, environmental, and safety ordinances and laws
(including, without limitation, Environmental Laws) and all other applicable laws, rules,
and regulations of any and all governmental and quasi-governmental authorities having
jurisdiction over any portion of the Project.
(m) Utilities. All utility services and facilities necessary for the operation of the
Project for its intended purposes are available at the Premises.
(n) Condemnation. No condemnation or eminent domain proceeding has been
commenced and is currently pending or, to the knowledge of the Lessee, threatened
against the Project.
[End of Article II]
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ARTICLE III
DEMISING CLAUSE; SECURITY; TITLE
Section 3.01. Demise of the Project. The Issuer demises and leases to the Lessee, and
the Lessee leases from the Issuer, the Project at the rental set forth in Section 5.03 hereof and for
the Lease Term and in accordance with the provisions of this Lease Agreement, subject to
Permitted Encumbrances.
Section 3.02. Security for Payments Under the Bonds; Perfection.
Contemporaneously with the issuance of the Series 2017 Bonds, as security for the payment of
the Bonds, the Issuer shall execute and deliver the Indenture and the Contract.
Contemporaneously with the issuance of the Series 2017 Bonds, as security for the payment of
the Bonds, the Issuer shall also cause the Consolidated Government to execute and deliver the
Contract. The Lessee hereby assents to the assignment and grant of a first priority security
interest made in the Indenture and hereby agrees that its obligations to make all payments under
this Lease Agreement shall be absolute and shall not be subject to any defense, except payment,
or to any right of setoff, counterclaim, or recoupment arising out of any breach by the Issuer of
any obligation to the Lessee, whether hereunder or otherwise, or arising out of any indebtedness
or liability at any time owing to the Lessee by the Issuer. The Lessee further agrees that all
payments required to be made under this Lease Agreement, except for those arising out of
Unassigned Rights, shall be paid directly to the Trustee for the account of the Issuer. The
Trustee shall have all rights and remedies herein accorded to the Issuer (except for Unassigned
Rights), and any reference herein to the Issuer shall be deemed, with the necessary changes in
detail, to include the Trustee, and the Trustee and the Bondholders are deemed to be and are third
party beneficiaries of the representations, covenants, and agreements of the Lessee herein
contained.
Upon reasonable and timely written notice from the Trustee or the Issuer as to the
required form, substance, timing, and place for filing, refiling, recording, or re-recording, or for
taking possession of any collateral, the Lessee shall file, refile, record, or re-record all financing
statements, continuation statements, documents, and notices or deliver possession of any
instrument or cash necessary to perfect and maintain any lien or security interest created by the
Security Deed, the Assignment of Contract Documents, or the Indenture for the benefit of the
Issuer or the Trustee as a first priority pledge, lien, encumbrance, and security interest in and to
the Lessee’s leasehold interest in the Project and the payments and amounts to be received and
held under this Lease Agreement, the Limited Guaranty, the Security Deed, the Assignment of
Contract Documents, and the Contract. The Issuer agrees that it will cooperate fully and will
take any action required to assist the Lessee in meeting the provisions of this Section 3.02.
Section 3.03. Warranty of Title. The Issuer warrants that (a) the Issuer has acquired
good and marketable fee simple title to the Premises, (b) the Issuer is or will be the legal and
equitable owner of the Building and has or will have good and merchantable title to the
Equipment, and (c) the Project is and will be free of all adverse claims and Liens, other than
Permitted Encumbrances.
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Section 3.04. Title Insurance. [to be discussed] The Lessee shall, prior to or
simultaneously with the issuance of the Series 2017 Bonds, furnish title insurance in the form of
an ALTA owner’s title binder or policy issued by a title insurance company acceptable to the
Issuer in the face amount of at least $__________ and shall furnish a copy of such binder or
policy to the Issuer. The Lessee shall furnish within the time limit specified in any binder an
original of an owner’s title policy issued by such title insurance company. The owner’s title
policy shall insure that the Issuer has good and marketable fee simple title to the real property
described in Exhibit “A” to this Lease Agreement subject only to Permitted Encumbrances.
Such policy shall not contain the standard exceptions for discrepancies, encroachments, overlaps,
conflicts in boundary lines, shortages in area, or other matters that would be disclosed by an
accurate survey and inspection of the Premises, for mechanics’ and materialmen’s liens, or for
rights or claims of parties in possession and easements or claims of easements not shown by the
public records. Any Net Proceeds payable either to the Issuer or the Lessee under such policy
shall be paid to the Trustee and held by the Trustee in the Net Proceeds Account of the Project
Fund and applied as provided in Section 7.02 hereof. Any proceeds of title insurance remaining
after all rent is paid under this Lease Agreement shall be paid to the Lessee.
Section 3.05. Lessee’s Covenants Regarding Title. The Lessee agrees to protect,
preserve, and defend the Issuer’s interest in the Project and its title thereto, to appear and defend
such interest and title in any action or proceeding affecting or purporting to affect the Project,
and to pay on demand all costs and expenses incurred by the Issuer in or in connection with any
such action or proceeding, including reasonable attorneys’ fees, as described in Section 10.04 of
this Lease Agreement, whether any such action or proceeding progresses to judgment and
whether brought by or against the Issuer. The Issuer shall be reimbursed for any such costs and
expenses in accordance with the provisions of Section 6.08 hereof. If the Lessee does not take
the action contemplated herein, the Issuer may, but shall not be under any obligation to, appear
or intervene in any such action or proceeding and retain counsel therein and defend the same or
otherwise take such action therein as it may be advised and may settle or compromise the same
and, in that behalf and for any of such purposes, may expend and advance such sums of money
as it may deem necessary, and such sums shall be an advance payable in accordance with Section
6.08 of this Lease Agreement.
Section 3.06. Security for Lessee’s Obligations. As security for the Lessee’s
obligations under this Lease Agreement and the Bond Guaranty, the Lessee shall, prior to or
contemporaneously with the execution and delivery of this Lease Agreement, execute and
deliver the Security Deed and the Assignment of Contract Documents, and cause the Guarantors
to execute and deliver the Limited Guaranty.
[End of Article III]
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ARTICLE IV
ACQUISITION, CONSTRUCTION, AND INSTALLATION
OF THE PROJECT; ISSUANCE OF THE SERIES 2017 BONDS; FUNDS
Section 4.01. Agreement to Acquire, Construct, and Install the Project.
Simultaneously with the execution of this Lease Agreement, the Issuer will acquire the Premises.
The Issuer hereby authorizes the Lessee to, on its behalf, acquire, construct, and install the
Project and install therein the Equipment promptly following the issuance and sale of the Series
2017 Bonds. The Lessee agrees (i) that it will exercise the foregoing authorizations given to it
by the Issuer, (ii) that it will cause the Equipment to be acquired in the name of the Issuer, and
(iii) that the Project has been and will be acquired and constructed without material deviation
from the Plans and Specifications. The Issuer will enter into, or accept the assignment of, such
contracts as the Lessee may reasonably request in order to effectuate the purposes of this Section,
but it will not execute any other contract or give any order for such construction or such purchase
of material, supplies, furnishings, or equipment unless and until the Lessee shall have approved
the same in writing (such approval not to be unreasonably withheld, conditioned, or delayed).
The Issuer shall not be required to enter into any contract providing for the payment of money
unless its liability under such contract is limited to amounts on deposit in the Project Fund or
payments received from the Lessee.
The Lessee further agrees that it will, at all times during the construction of the Building,
maintain or cause the general contractor to maintain in full force and effect Builder’s Risk -
Completed Value Form insurance insuring the Building against fire, lightning, and all other risks
covered by the extended coverage endorsement then in use in the State to the full insurable value
of the Building. Such policy or policies of insurance shall name the Lessee and the Issuer as
insureds, as their respective interests may appear, and all Net Proceeds received under such
policy or policies by the Lessee or the Issuer shall be paid over to the Trustee and deposited into
the Net Proceeds Account of the Project Fund to be applied to the restoration or completion of
the Project in accordance with the provisions of Section 7.01 hereof. In addition, the Lessee
shall cause the general contractor at all times during the construction of the Building to maintain
general liability insurance in an amount not less than that required to be maintained by the
Lessee under Section 6.03 hereof, and the Lessee shall cause the general contractor to maintain
worker’s compensation insurance as required by law. Such insurance policy or policies shall
contain a provision that such insurance may not be cancelled by the issuer thereof without at
least thirty (30) days’ advance written notice to the Issuer. All such policies or copies thereof or
certificates that such insurance is in full force and effect shall be delivered to the Issuer at or
prior to the commencement of construction.
The Lessee further agrees that the Construction Contracts shall require the general
contractor thereunder, at or prior to the commencement of construction, to deliver to the Issuer
separate performance and labor and material payment bonds in the full amount of the
Construction Contracts, made by the contractor thereunder as the principal and a surety company
or companies reasonably acceptable to the Issuer as surety, and such bonds shall be in such form
as is reasonably acceptable to the Issuer. Such bonds shall name the Lessee and the Issuer as
obligees, and all Net Proceeds received under such bonds shall be paid over to the Trustee and
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deposited into the Net Proceeds Account of the Project Fund. Any amounts recovered by way of
penalties or damages, whether liquidated or actual, for delays in completion by a contractor shall
be deposited in the General Account of the Bond Fund.
The Lessee covenants to cause the Building to be constructed without material deviation
from the Plans and Specifications and the Construction Contracts and warrants that the
construction of the Building in accordance with the Plans and Specifications will, when
supplemented by the Equipment, result in a facility suitable for use by the Lessee as an
approximately 221-unit apartment community and that all real and personal property provided
for therein is necessary or appropriate in connection with the Project. The Lessee may make
changes in or additions to the Plans and Specifications; provided, however, changes in or
additions to the Plans and Specifications that are material shall be subject to the prior written
approval of the Consulting Architect and the Issuer.
The Lessee shall not permit any mechanics’ or materialmen’s or other liens to be
perfected or remain against the Project for labor or materials furnished in connection with the
construction of the Project, provided that it shall not constitute an Event of Default hereunder if
such a lien is filed if the Lessee notifies the Issuer of the existence of such lien and if the Lessee
in good faith promptly contests such lien in accordance with the provisions of Section 6.09 of
this Lease Agreement. Subject to force majeure, the Lessee agrees, on behalf of the Issuer, to
complete the acquisition, construction, and installation of the Project as promptly as practicable
and with all reasonable dispatch, but in no event no later than ____________, 20__, provided
however, that so long as the Lessee is not otherwise in default of this Lease Agreement, the
Lessee shall have the right to extend the foregoing deadline for up to three (3), thirty-day periods
by providing prior written notice to the Issuer. All such work shall be done in a good and
workmanlike manner and in compliance with all applicable building, zoning, and other laws,
ordinances, governmental regulations, and requirements.
Section 4.02. Agreement to Issue the Series 2017 Bonds; Application of Proceeds.
In order to provide funds for payment of the Costs of the Project and related costs, the Issuer
agrees that it will sell and cause to be delivered to the Underwriter the Series 2017 Bonds in the
aggregate principal amount of $_________ and will thereupon (i) deposit in the Capitalized
Interest Account of the Bond Fund from the proceeds of the sale of the Series 2017 Bonds the
amount specified in Section 701 of the Indenture, which shall constitute a credit on the payment
of Basic Rent related to the Series 2017 Bonds as specified in Section 5.03 hereof; (ii) deposit in
the Issuance Cost Fund from the proceeds of the sale of the Series 2017 Bonds the amount
specified in Section 701 of the Indenture; (iii) deposit in the Debt Service Reserve Fund from the
proceeds of the sale of the Series 2017 Bonds the amount specified in Section 701 of the
Indenture; and (iv) deposit in the Series 2017 Account of the Project Fund the remaining
proceeds of the sale of the Series 2017 Bonds.
Section 4.03. Application of Moneys in the Project Fund. The Issuer shall in the
Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the
following purposes (but for no other purposes):
(a) payment of (i) the cost of the preparation of Plans and Specifications (including any
preliminary study or planning of the Project or any aspect thereof), (ii) the cost of acquisition,
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construction, and installation of the Project and all construction, acquisition, and installation
expenses required to provide utility services or other facilities and all real or personal properties
deemed necessary in connection with the Project in accordance with the Plans and Specifications
(including development, architectural, engineering, and supervisory services with respect to any
of the foregoing), and (iii) any other costs and expenses relating to the Project;
(b) payment of the purchase price of the Building and the Equipment, including all costs
incident thereto, payment for labor, services, materials, and supplies used or furnished in site
improvement and in the construction of the Project, including all costs incident thereto, payment
for the cost of the construction, acquisition, and installation of utility services or other facilities,
payment for all real and personal property deemed necessary in connection with the Project,
payment of consulting and development fees payable to the Lessee or others, and payment for
the miscellaneous expenses incidental to any of the foregoing items including the premium on
any surety bond;
(c) payment to the Issuer, as such payments become due, of the reasonable fees and
expenses of inspecting the construction of the Project, or reimbursement thereof if paid by the
Lessee;
(d) to such extent as they shall not be paid by a contractor for construction or
installation with respect to any part of the Project, payment of the premiums on all insurance
required to be taken out and maintained until the Completion Date under this Lease Agreement,
or reimbursement thereof if paid by the Lessee;
(e) payment of the taxes, assessments, and other charges, if any, referred to in Section
6.03 hereof that may become payable until the Completion Date, or reimbursement thereof if
paid by the Lessee;
(f) payment of expenses incurred in seeking to enforce any remedy against any
contractor or subcontractor or their surety in respect of any default under a contract relating to
the Project;
(g) payment with respect to the Project, of the fees or out-of-pocket expenses of the
Lessee, if any, including, but not limited to, architectural, engineering, and supervisory services
with respect to the Project;
(h) payment of the fees, or out-of-pocket expenses, if any, of those providing services
with respect to the Project, including, but not limited to, architectural, engineering, legal,
accounting, and supervisory services;
(i) payment of interest on the Bonds that may become payable until the Completion
Date;
(j) payment to the Lessee or the Issuer of such amounts, if any, as shall be necessary to
reimburse the Lessee or the Issuer in full for all advances and payments made by either of them
for any of the items set forth in clauses (a) through (i) above;
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(k) payment of any other costs and expenses relating to the Project that would constitute
a “cost of project” permitted to be paid by the Issuer under the Urban Redevelopment Law; and
(l) all proceeds of the Bonds remaining in the Project Fund on the Completion Date
(hereinafter referred to as “Surplus Money”), less amounts retained or set aside to meet costs not
then due and payable or that are being contested, shall be deposited in the Debt Service Reserve
Fund and, to the extent that such Surplus Money to be deposited would cause the balance in the
Debt Service Reserve Fund to exceed the Debt Service Reserve Requirement, such excess
Surplus Money shall be used (i) to redeem Bonds or (ii) if Bonds are not then redeemable or are
redeemable only at a call premium or penalty or are redeemable only in an amount in excess of
the Surplus Money, such Surplus Money shall be placed in the Redemption Account of the Bond
Fund by the Trustee and used for the redemption of Bonds on the earliest possible redemption
date on which there is no call premium or penalty and, until such redemption date and until such
time as the Bonds are redeemable in an amount in excess of the Surplus Money, used to pay
principal on serial Bonds, if any; the portion of the annual principal payment due on serial Bonds
that may be paid from the Surplus Money is an amount that bears the same ratio to the annual
principal amount due that the total Surplus Money bears to the face amount of the Bonds
Outstanding; the amount so placed in the Redemption Account of the Bond Fund may be
invested as permitted by Section 4.12 hereof to produce a yield that is not greater than the yield
on the Bonds to which such moneys relate.
Section 4.04. Disbursements from the Project Fund.
(a) Subject to compliance by the Lessee with all of the terms, provisions, and conditions
of this Lease Agreement, including, but not limited to, the applicable conditions for
disbursements set forth in this Section 4.04, the Issuer shall pursuant to the Indenture cause the
Trustee to disburse sums in the Project Fund to the Lessee or to the appropriate payee for “non-
construction costs and fees,” as hereinafter defined, in one or more disbursements in accordance
with the following procedures:
(i) At the time of issuance of a series of Bonds, and with respect to
requests subsequent to the initial request for a disbursement at the time of
issuance of a series of Bonds, not less than five (5) banking days before the date
on which the Lessee desires a disbursement, but not more frequently than monthly
and in an amount not less than $10,000, the Lessee shall submit to the Trustee a
disbursement request in the form attached hereto as Exhibit C, accompanied by an
itemization of non-construction costs and fees in such detail as the Issuer shall
require, and the accuracy of such cost and fee itemization shall be certified by the
Lessee. The disbursement request must be signed by the Authorized Lessee
Representative and the Authorized Issuer Representative.
(ii) For purposes of this Section 4.04, the term “non-construction costs
and fees” shall include all costs and fees properly incurred and payable prior to
and until the Completion Date in connection with the issuance and sale of a series
of Bonds, the acquisition, construction, and installation of the Project, and the
performance of all transactions contemplated by the Bond Documents other than
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the costs and fees that are properly payable to the appropriate contractors pursuant
to the Construction Contracts.
(iii) A disbursement request for non-construction costs and fees submitted
in accordance with the foregoing procedure need not comply with and shall not be
subject to the requirements of paragraphs (b), (d), or (e) of this Section 4.04.
(b) Subject to compliance by the Lessee with all of the terms, provisions, and conditions
of this Lease Agreement, including, but not limited to, the conditions for disbursements set forth
in this Section 4.04, the Issuer will pursuant to the Indenture cause the Trustee to disburse sums
in the Project Fund to the Lessee or to the appropriate contractor under the Construction
Contracts for “construction costs and fees” as hereinafter defined in several disbursements in
accordance with the following procedures:
(i) Not less than five (5) banking days before the date on which the
Lessee desires a disbursement, but not more frequently than monthly and in an
amount not less than $10,000, the Lessee shall submit to the Trustee an
application for payment in the form of American Institute of Architects Document
G702, Application and Certificate for Payment, and American Institute of
Architects Form G703, Continuation Sheets, showing by trade the cost of work on
the Project and the cost of materials incorporated into the Project or stored on the
Premises, all to the date stated in the Application and Certificate for Payment.
The Application and Certificate for Payment must be signed by the Authorized
Lessee Representative, the Authorized Issuer Representative, and the appropriate
contractor under the Construction Contracts and must be approved by the
Consulting Architect. The cost break-down included in the Application and
Certificate for Payment shall show the percentage of completion of each line item
on the Lessee’s detailed estimate of Project costs as submitted to the Trustee, and
the accuracy of the cost breakdown shall be certified by the Lessee and the
appropriate contractor under the Construction Contracts, or, as to any items not
within the scope of a general contract, by the contractors directly responsible to
the Lessee for such items.
(ii) The completed construction on the Project shall be reviewed (at the
time each Application and Certificate for Payment is submitted) by the Consulting
Architect, and the Consulting Architect shall certify to the Trustee as to (A) the
cost of completed construction, (B) the percentage of completion, and (C)
compliance with the Plans and Specifications.
(iii) The Consulting Architect shall determine the “maximum allowable
disbursement” by adding to the cost of completed construction to date (as
determined by the Consulting Architect on the basis of its review of the
Application and Certificate of Payment and cost breakdown) any allowable
non-construction disbursements related to the Project.
(iv) Subject to the requirements of paragraph (i) of this Section 4.04, the
disbursement to be made by the Trustee shall not exceed the “maximum allowable
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disbursement” as determined under (iii) above less: (A) the percentage of the cost
of completed construction specified in the Construction Contracts to be retained
(hereinafter referred to as the “Retainage”) and (B) the amounts previously
disbursed by the Trustee. The Retainage (but in no event more than the balance in
the Project Fund less amounts retained or set aside to meet costs not then due and
payable or which are being contested) under the general Construction Contract or
under any other Construction Contract shall be disbursed by the Trustee only after
(A) such contract shall have been performed to the satisfaction of the Lessee, as
evidenced by the signature of the Authorized Lessee Representative on the final
Application and Certificate for Payment, (B) the certificate and report or
endorsement of the title insurance required by subsection (f)(iii) of this Section
4.04, (C) the Trustee shall have received from the contractor under such
Construction Contract a lien waiver or an affidavit to the effect that such
contractor and all of its subcontractors and suppliers of labor and materials have
been paid in full (which lien waiver or affidavit must be in form and substance
sufficient as a matter of law to dissolve all liens or claims of lien for labor or
service performed or rendered and materials supplied or furnished, in connection
with the construction and installation of the Project), (D) with respect to the
general Construction Contract, the Lessee or the general contractor shall have
exhibited to the Trustee the final certificates of approval from the various
governmental authorities having jurisdiction over the construction and operation
of the Project, including a final certificate of occupancy or a temporary certificate
of occupancy for the Building, and other necessary operating permits, and the
certificate of the board of fire underwriters acting in and for the locality in which
the Project is situated along with a certificate of the Lessee that the same
constitute all the certificates of approval necessary for operation of the Project,
and (E) with respect to the general Construction Contract, the Lessee shall have
delivered to the Trustee the certificate of completion described in Section 4.07 of
this Lease Agreement.
(v) The Trustee shall have five (5) banking days from receipt of the fully
executed Application and Certificate for Payment within which to fund each
Application and Certificate for Payment.
(vi) For purposes of this Section 4.04, the term “construction costs and
fees” shall include all costs and fees properly incurred and payable to the
appropriate contractors pursuant to the Construction Contracts.
(vii) Nothing contained in subsection (a) herein shall be construed as
preventing the Trustee from disbursing sums in the Project Fund to the
appropriate payee for non-construction costs and fees if the request for a
disbursement is submitted to the Trustee in accordance with the requirements of
subsection (b) herein, provided, however, that the Trustee may not disburse sums
in the Project Fund to the appropriate payee for construction costs and fees except
pursuant to the submission of a request for a disbursement in accordance with the
requirements of such subsection (b).
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(viii) Notwithstanding any other term or provision set forth herein, the
Trustee shall not be required to disburse more than once each month, and the
Lessee shall limit the total amount it requests to be disbursed from the Project
Fund at any time to an amount that, when deducted from the total amount in the
Project Fund, leaves a balance to be disbursed that is equal to the cost of
completion of the Project (including all remaining non-construction expenses)
plus the Retainage.
(c) Notwithstanding any other terms and provisions set forth herein, the Trustee may, in
its discretion and with the prior written approval of the Lessee, make all disbursements or any
disbursement directly to the Lessee, or to subcontractors, laborers, materialmen, or persons
furnishing labor, services, or materials used or to be used on or in the construction of the Project
(including authorized extras) or to any combination of them. Any such disbursement shall be
deemed to have been made to the Lessee or for its account.
(d) The execution of each Application and Certificate for Payment submitted for
disbursements relating to construction costs and fees by the Lessee shall constitute the
certification, warranty, and agreement of the Lessee as follows:
(i) the Project is free and clear of all Liens except Permitted
Encumbrances;
(ii) all evidence, statements, and other writings required to be furnished
under the terms of this Lease Agreement are true and omit no material fact, the
omission of which may make them misleading;
(iii) all moneys previously disbursed have been used solely to pay for
Costs of the Project, and the Lessee has written evidence to support this item of
warranty; and
(iv) all bills for labor, materials, and fixtures used, or on hand and to be
used, in the construction of the Project have been paid, and no one is asserting a
lien with respect thereto, except Permitted Encumbrances.
(e) The Lessee covenants and agrees that, upon the written request of the Issuer from
time to time, but in no event more frequently than once a month, it will furnish to the Issuer,
within 15 days of the request, evidence that is reasonably satisfactory to the Issuer (including,
but not limited to, certificates and affidavits of the Lessee or the Consulting Architect or any
contractor or such other person as the Issuer may reasonably require) showing (i) the value of
construction existing at that time, (ii) that all outstanding claims for labor, materials, fixtures,
furnishings, equipment, and other work have been paid or provided for in accordance with the
requirements of this Lease Agreement, (iii) that there are no Liens outstanding or unpaid other
than Permitted Encumbrances, (iv) that the Lessee has substantially complied with all of the
Lessee’s obligations hereunder, (v) that all construction has been done without material deviation
from the Plans and Specifications, and (vi) that the performance and labor and material payment
bonds required by this Lease Agreement are in full force and effect.
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(f) Except for the initial disbursement at the time of issuance of any series of Bonds, the
Trustee shall not make any disbursement from the Project Fund unless each and all of the
conditions precedent set forth below shall have been met and complied with in full:
(i) if the disbursement is for “construction costs and fees,” the Lessee
shall have furnished to the Trustee evidence that the Builder’s Risk - Completed
Value Form insurance required by Section 4.01 hereof is in full force and effect;
(ii) at the time of each disbursement the Trustee shall not have notice of
an Event of Default for which it is required to take notice or be deemed to have
notice pursuant to Section 1201(h) of the Indenture;
(iii) at the time of each disbursement the Lessee shall deliver to the
Trustee a certificate and report of title or endorsement of the title insurer that the
Project is free and clear of all Liens and exceptions of title except Permitted
Encumbrances; and
(iv) at the time each disbursement is made pursuant to this Section 4.04 as
a reimbursement to the Lessee, the Lessee shall deliver to the Trustee evidence
satisfactory to the Trustee of contemporaneous or prior payment by the Lessee to
the appropriate contractor or supplier under the Construction Contracts or other
person of the amount then and theretofore approved for payment.
(g) Each disbursement request pursuant to this Section 4.04 shall constitute a
representation by the Lessee that the moneys therein referred to have been or are to be used for
one of the purposes set forth in Section 4.03 of this Lease Agreement and that none of the items
for which payment is requested has formed the basis for any payment previously made from the
Project Fund, to the best knowledge of the Lessee, and the Trustee shall be entitled to rely
thereon and shall be held harmless by the Lessee for all liability in connection therewith.
(h) All disbursements (except the disbursement required to be made at the time of
issuance of a series of Bonds in accordance with Section 4.04(a) of this Lease Agreement) shall
be made within five (5) banking days after receipt by the Trustee of the completed Application
and Certificate for Payment and shall be made at the office of the Trustee or at such other place
as the Trustee may designate. If sufficient liquid funds are not available to the Trustee at the
time of presentment of an Application and Certificate for Payment due to the particular form of
investments of moneys held in the Project Fund or a lack of funds, payment of such Application
and Certificate for Payment shall be delayed until liquid funds or additional funds sufficient to
satisfy the requirements of this Section 4.04 are received by the Trustee.
(i) Except for Liens constituting Permitted Encumbrances, if any notice of lien shall be
filed against the Project or any part thereof or if any interim title examination discloses any
intervening Lien, the Issuer may suspend further disbursements from the Project Fund until such
Lien shall have been discharged of record or proceedings to contest such Lien pursuant to
Section 4.01 and Section 6.09 hereof shall have been instituted.
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(j) The Trustee shall not make any disbursements from the Project Fund for Equipment
unless the Trustee shall have first received copies of the bills of sale or other documentation
evidencing that title to such Equipment has been taken in the name of the Issuer.
Section 4.05. Issuance Cost Fund. The Issuer shall in the Indenture authorize and
direct the Trustee to use the moneys in the Issuance Cost Fund to pay Issuance Costs. The
amounts held in the Issuance Cost Fund shall be disbursed by the Trustee to pay Issuance Costs
upon receipt of a requisition, substantially in the form attached hereto as Exhibit D, executed by
the Authorized Lessee Representative and the Authorized Issuer Representative setting forth the
nature of the Issuance Costs to be paid and the name of the payee and certifying that the amounts
being paid are properly includable within the definition of Issuance Costs. Upon the date that is
ninety (90) days after the date of issuance of a series of Bonds, all moneys remaining in the
Issuance Cost Fund, if any, shall be deposited in the related series account of the Project Fund.
Section 4.06. Obligation of the Parties to Cooperate in Furnishing Documents;
Trustee Reliance. Upon payment of any expenses of the Issuer incurred in connection therewith
pursuant to Section 5.03 hereof, the Issuer agrees to cooperate with the Lessee in furnishing to
the Trustee the documents referred to in this Article that are required to effect payments out of
the Project Fund and the Issuance Cost Fund, and the Issuer agrees to cause such orders to be
directed to the Trustee as may be necessary to effect payments out of the Project Fund and the
Issuance Cost Fund in accordance with this Article. Such obligation of the Issuer is subject to
any provisions of the Indenture requiring additional documentation with respect to payments and
shall not extend beyond the moneys in the Project Fund and the Issuance Cost Fund available for
payment under the terms of the Indenture. In making any such payment from the Project Fund
and the Issuance Cost Fund, the Trustee may rely on any such orders and certifications delivered
to it pursuant to this Article.
Section 4.07. Establishment of Completion Date. The Completion Date shall be
evidenced to the Trustee by a certificate of substantial completion listing the items to be
completed or corrected, if any, and the amounts to be withheld therefor, signed by the
Authorized Lessee Representative and approved by the Consulting Architect stating that, except
for amounts retained by the Trustee for Costs of the Project not then due and payable, (i)
construction of the Project has been completed without material deviation from the Plans and
Specifications and all labor, services, materials, and supplies used in such construction have been
paid or provided for, (ii) all other facilities necessary in connection with the construction of the
Project have been constructed, acquired, and installed without material deviation from the Plans
and Specifications and all costs and expenses incurred in connection therewith have been paid or
provided for, (iii) according to the “as built” survey of the Premises or a certificate of the
surveyor, the Building does not encroach on any other property or violate any setback or sideline
requirements applicable to the Premises, and (iv) a certificate of occupancy for the Project has
been issued by appropriate local governmental authorities. Notwithstanding the foregoing, such
certificate may state that it is given without prejudice to any rights against third parties that exist
at the date of such certificate or that may subsequently come into being. The Consulting
Architect shall certify the matter covered by clauses (i) and (ii) above. It shall be the duty of the
Lessee to cause the certificate contemplated by this Section to be furnished as soon as the
construction of the Project shall have been substantially completed.
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Section 4.08. Lessee Required to Pay Costs of the Project in Event Project Fund
Insufficient. In the event the moneys in the Project Fund available for payment of the Costs of
the Project shall not be sufficient to pay the costs thereof in full, the Lessee agrees to complete
the acquisition, construction, and installation of the Project and to pay all that portion of the
Costs of the Project as may be in excess of the moneys available therefor in the Project Fund.
The Issuer does not make any warranty, either express or implied, that the moneys which will be
paid into the Project Fund and which, under the provisions of this Lease Agreement, will be
available for payment of the Costs of the Project, will be sufficient to pay all the costs that will
be incurred in that connection. The Lessee agrees that if after exhaustion of the moneys in the
Project Fund the Lessee shall pay any portion of the Costs of the Project pursuant to the
provisions of this Section, it shall not be entitled to any reimbursement therefor from the Issuer
or from the Trustee or from the owners of any of the Bonds, nor shall it be entitled to any
diminution of the rents payable under Section 5.03 hereof. Notwithstanding any provision of this
Lease Agreement to the contrary, the Lessee shall be solely responsible, without reimbursement
from the Project Fund, for all costs and fees arising from the Lessee’s non-compliance with
applicable law or as a result of the negligence or willful misconduct of the Lessee. The
obligations of the Lessee under this Section 4.08 shall survive any termination of this Lease
Agreement. The Lessee shall be entitled to treat as loans any advances made to the Lessee from
any of the Guarantors or any affiliate of the Lessee for purposes of completing construction of
the Project; provided, however, any such loan shall be unsecured and shall not create any lien on
the Project of any sort.
Section 4.09. Authorized Lessee and Issuer Representatives and Successors. The
Lessee and the Issuer, respectively, shall designate, in the manner prescribed in Section 1.01
hereof, the Authorized Lessee Representative and the Authorized Issuer Representative. In the
event that any person so designated and his alternate or alternates, if any, should become
unavailable or unable to take any action or make any certificate provided for or required in this
Lease Agreement, a successor shall be appointed in the same manner.
Section 4.10. Enforcement of Remedies Against Contractors and Subcontractors
and their Sureties and Against Manufacturers. The Lessee covenants that it will take such
action and institute such proceedings as shall be necessary to cause and require all contractors
and subcontractors and material suppliers to complete their contracts diligently in accordance
with the terms of such contracts, including, without limitation, the correction of any defective
work, with all expenses incurred by the Lessee in connection with the performance of its
obligations under this Section to be considered part of the Costs of the Project referred to in
Section 4.03 hereof. The Issuer agrees that the Lessee may, from time to time, in its own name,
or, subject to Issuer’s advance written consent (such consent not to be unreasonably withheld),
in the name of the Issuer, take such action as may be necessary or advisable, as reasonably
determined by the Lessee, to ensure the construction of the Project in accordance with the terms
of the Construction Contracts and the Plans and Specifications, to ensure the peaceable and quiet
enjoyment of the Project for the Lease Term, and to ensure the performance by the Issuer of all
covenants and obligations of the Issuer under this Lease Agreement, with all costs and expenses
reasonably incurred by the Lessee in connection therewith to be considered as part of the Costs
of the Project referred to in Section 4.03 hereof. All amounts recovered by way of penalties,
damages, whether liquidated or actual, refunds, adjustments, or otherwise in connection with the
foregoing prior to the Completion Date, less any unreimbursed legal expenses incurred to collect
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the same, shall be paid into the Project Fund to be applied to payment of the Costs of the Project
and, after the Completion Date, shall be disbursed pursuant to the provisions of Section 4.03(k)
of this Lease Agreement.
The Lessee covenants that it will take such action and institute such proceedings as shall
be necessary to cause and require any manufacturers of the Equipment and any dealer to fulfill
their warranties and contractual responsibilities diligently in accordance with the terms of any
purchase and installation contracts, including, without limitation, the correction of any defective
parts or workmanship, with all expenses reasonably incurred by the Lessee in connection with
the performance of its obligations under this Section to be considered part of the Costs of the
Project referred to in Section 4.03 hereof. The Issuer agrees that the Lessee may, from time to
time, take such action as may be necessary or advisable, as may be reasonably determined by the
Lessee, to ensure the conformity of the Equipment to the specifications therefor, with all costs
and expenses reasonably incurred by the Lessee in connection therewith to be considered as part
of the Costs of the Project referred to in Section 4.03 hereof.
Section 4.11. No Agency Relationships. The Issuer does not assume the duties of the
contractor or architect of the Project and shall be under no obligation to construct or supervise
the construction of the Project or to make any inspections of the improvements related thereto,
and it is further understood and agreed that any inspection by the Issuer or its agents of the
Project, whether paid for by the Lessee, is for the sole purpose of protecting the title of the Issuer
to the Project, and the Lessee shall not be entitled to claim any loss or damage against the Issuer
or its agents or employees for the failure of the Issuer’s agents or employees to properly
discharge their responsibilities to the Issuer.
Section 4.12. Investment of Funds and Accounts. Subject to Article VIII of the
Indenture and Section 4.13 hereof, any moneys held as a part of the Bond Fund, the Project
Fund, the Issuance Cost Fund, the Debt Service Reserve Fund, or as reserves in connection with
contested liens or any other special trust funds shall be invested or reinvested by the Trustee at
the written direction of the Authorized Issuer Representative in such Permitted Investments as
may be designated by the Issuer. The Trustee may make any and all such investments through
its own bond or investment department or through its broker-dealer affiliate.
The investments so purchased shall be held by the Trustee and shall be deemed at all
times a part of the Bond Fund and the accounts therein, the Project Fund and the accounts
therein, the Issuance Cost Fund, the Debt Service Reserve Fund, or the trust account described in
the preceding paragraph, as the case may be, and the interest accruing thereon and any profit
realized therefrom shall be credited as provided in Section 802 of the Indenture, and any losses
resulting from such investments shall be charged to such fund or account therein and paid by the
Lessee.
Section 4.13. Repair and Replacement Fund. The Issuer shall in the Indenture
authorize and direct the Trustee to use the moneys in the Repair and Replacement Fund to pay
(i) the maintenance and repair costs related to the Project that the Lessee is obligated to pay
pursuant to Section 6.01 of this Lease Agreement and (ii) the principal of, premium, if any, and
interest on the Bonds to the extent there are insufficient moneys in the Bond Fund therefor on
any Interest Payment Date. The amounts held in the Repair and Replacement Fund to be used
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for the purpose described in (i) of the preceding sentence shall be disbursed by the Trustee to pay
such costs upon receipt of a requisition, substantially in the form attached hereto as Exhibit E,
executed by the Authorized Lessee Representative setting forth the nature of the maintenance
and repair costs to be paid and the name of the payee. The amounts held in the Repair and
Replacement Fund to be used for the purpose described in (ii) of the preceding sentence shall be
disbursed by the Trustee automatically without any requisition from the Lessee as provided in
Section 610 of the Indenture.
Section 4.14. Deposit of Gross Receipts. The Lessee acknowledges that the Issuer has
established the Revenue Fund with the Trustee pursuant to the Indenture. Upon the occurrence
and continuance of an Event of Default under this Lease Agreement or in the event that the
Lessee fails to satisfy any of the Operating Covenants set forth in subsections (b) and (d) of
Section 8.08 (irrespective of whether the Lessee is complying with the provisions of subsections
(e), (f), and (g) of Section 8.08 in respect thereof), and such failure to satisfy any of the
Operating Covenants continues for a period of two (2) consecutive fiscal quarters, the Lessee
agrees to collect or cause to be collected with all due dispatch, all Gross Receipts and to deposit,
or cause to be deposited, into the Revenue Fund all Gross Receipts when and as received. The
Lessee acknowledges that under the Indenture the moneys held from time to time in the Revenue
Fund will be applied by the Trustee, without further direction from the Issuer or the Lessee,
unless otherwise provided therein, in the manner, at the times, and in the order of priority
indicated in Section 609 of the Indenture. The Lessee hereby further agrees that it will continue
to make such deposits until such time as no Event of Default under this Lease Agreement is
continuing and the Lessee has satisfied all of the Operating Covenants for a period of three (3)
consecutive fiscal quarters.
[End of Article IV]
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ARTICLE V
EFFECTIVE DATE OF THIS LEASE AGREEMENT; DURATION OF LEASE TERM;
RENTAL PROVISIONS; NATURE OF OBLIGATIONS OF LESSEE
Section 5.01. Effective Date of this Lease Agreement; Duration of Lease Term.
This Lease Agreement shall become effective upon its delivery and shall be in full force and
effect until midnight, October 1, 20__, subject to the provisions of this Lease Agreement
permitting earlier termination (including particularly Articles X and XI hereof), or if all the
Bonds have not been paid or retired (or provision for such payment has not been made as
provided in the Indenture), until ninety-one (91) days after the date that such payment or
provision shall have been made; provided, however, that the covenants and obligations expressed
herein to so survive shall survive the termination of this Lease Agreement.
Section 5.02. Delivery and Acceptance of Possession. The Issuer agrees to deliver to
the Lessee sole and exclusive possession of the Premises upon execution and delivery of this
Lease Agreement (subject to Permitted Encumbrances and the right of the Issuer to enter thereon
for inspection purposes and subject to the other provisions of Section 8.02 hereof), and the
Lessee hereby accepts possession of the Premises. The Issuer shall be permitted such continued
possession of the Project as shall be necessary and convenient for it to construct or cause to be
constructed the Building and install or cause to be installed the Equipment and to construct or
install or cause to be constructed or installed any Additions or Alterations and to make or cause
to be made any repairs or restorations required or permitted to be made by the Issuer pursuant to
the provisions hereof. The Issuer covenants and agrees that it shall not take any action, other
than pursuant to Article X of this Lease Agreement, to prevent the Lessee from having quiet and
peaceable possession and enjoyment of the Project during the Lease Term and shall, at the
request of the Lessee and at the cost of the Lessee, reasonably cooperate with the Lessee in order
that the Lessee may have quiet and peaceable possession and enjoyment of the Project.
Section 5.03. Rents and Other Amounts Payable.
(a) Basic Rent related to Series 2017 Bonds: Until the principal of, premium, if any,
and interest on the Series 2017 Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture, the Lessee shall pay to the
Trustee for the account of the Issuer as rent for the Project, the following amounts:
(i) on or before ______________, and on or before the twentieth (20th)
day of each month thereafter, a sum equal to one-sixth (1/6th) of the amount
payable on the next succeeding April 1 or October 1, whichever is closer, as
interest on the Series 2017 Bonds, as provided in the Indenture, and
(ii) on or before _________________, and on or before the twentieth
(20th) day of each month thereafter, to and including __________________, a
sum equal to (a) one-twelfth (1/12th) of the amount required to retire Series 2017
Bonds under the mandatory redemption requirements of Section 305 of the
Indenture on the next succeeding October 1, as principal of the Series 2017
Bonds, or (b) one-twelfth (1/12th) of the principal due on the next succeeding
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October 1, which is a maturity date of the Series 2017 Bonds, as provided in the
Indenture, as the case may be.
(b) Basic Rent related to Additional Bonds: Until the principal of, premium, if any, and
interest on Additional Bonds shall have been fully paid or provision for the payment thereof shall
have been made in accordance with the Indenture, the Lessee shall pay to the Trustee for the
account of the Issuer as rent for the Project the amounts set forth in amendments to this Lease
Agreement as required by Section 8.07 hereof.
(c) Basic Rent General Provisions: Each payment of Basic Rent under this Section due
on the 20th day of each month preceding an interest or principal payment date or redemption
date until the Bonds are fully paid or payment is provided therefor in accordance with the
Indenture shall in all events be sufficient, after giving credit for funds held in the Bond Fund
available for such purpose, to pay the total amount of interest, principal, redemption requirement,
and premium, if any, payable on the Bonds on the next succeeding principal or interest payment
date or on the next succeeding redemption date for Bonds. Any payment of Basic Rent shall be
reduced and need not be made to the extent that there are moneys on deposit in the Bond Fund in
excess of the amount required for the payment of Bonds theretofore matured or called for
redemption, the amount required for the payment of interest for which checks or drafts have been
mailed by the Trustee, and past due interest in all cases where Bonds have not been presented for
payment. Further, if the amount held by the Trustee in the Bond Fund should be sufficient to pay
at the times required the principal of, premium, if any, and interest on the Bonds then remaining
unpaid, the Lessee shall not be obligated to make any further payments of Basic Rent under the
provisions of this Section. There shall also be a credit against remaining payments of Basic Rent
for Bonds purchased, redeemed, or cancelled, as provided in Article III of the Indenture. Any
payment of Basic Rent not received by the Trustee when due shall continue as an obligation of
the Lessee until paid and shall bear interest at the rate of interest on the Bonds to which such
Basic Rent relates.
(d) Reserve Rent: Upon the issuance of the Series 2017 Bonds, the amount specified in
Section 701 of the Indenture shall be deposited in the Debt Service Reserve Fund; and thereafter,
the Lessee shall pay to the Trustee as Reserve Rent for deposit into the Debt Service Reserve
Fund (in addition to any deposit into the Debt Service Reserve Fund made from Surplus Moneys
pursuant to Section 4.03(l) hereof) on or before the twentieth (20th) day of each month
commencing in the first month after the month that the Project achieves Project Stabilization,
and on or before the twentieth (20th) day of each month thereafter, a sum equal to $_____, until
the balance of the Debt Service Reserve Fund reaches the Debt Service Reserve Requirement, at
which point the obligation to make Reserve Rent payments shall be suspended until further
required as provided below. Amounts in the Debt Service Reserve Fund shall be applied as
provided in Section 608 of the Indenture for the purpose of paying principal of, premium, if any,
and interest on the Bonds as the same become due in the event there should be insufficient funds
for such purpose in the Bond Fund, unless provision for their payment in full has been duly
made, and for payment of fees, charges, and expenses of the Trustee upon the occurrence of an
Event of Default under the Indenture. Interest and profits earned upon the investment of
amounts held in the Debt Service Reserve Fund shall be retained in the Debt Service Reserve
Fund at all times the balance of the Debt Service Reserve Fund is less than the Debt Service
Reserve Requirement; thereafter and at all times the balance of the Debt Service Reserve Fund is
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equal to or greater than the Debt Service Reserve Requirement, such interest and profits shall be
deposited in the General Account of the Bond Fund. In the event any funds from the Debt
Service Reserve Fund shall be withdrawn or if any losses result from the investment of amounts
held in the Debt Service Reserve Fund, the Lessee shall, beginning on the twentieth (20th) day of
the month following notice of such withdrawal, diminution in value or losses, and on the
twentieth (20th) day of each month thereafter, in addition to any other rental payments that may
be due, pay to the Trustee for deposit in the Debt Service Reserve Fund, six (6) equal
consecutive monthly rental payments as Reserve Rent, each equal to one-sixth (1/6th) of the
amount of such withdrawals, diminution in value or losses, or replenishment requirement,
subject to a credit for earnings retained in or other deposits made to the Debt Service Reserve
Fund during such period, until the balance of the Debt Service Reserve Fund reaches the Debt
Service Reserve Requirement, at which point the obligation to make Reserve Rent payments
shall be suspended. If Additional Bonds are issued by the Issuer, the Lessee shall pay to the
Trustee for the account of the Issuer as additional Reserve Rent the amounts set forth in
amendments to this Lease Agreement as required by Section 8.07(d) hereof.
(e) Repair and Replacement Rent: The Lessee shall pay to the Trustee as Repair and
Replacement Rent for deposit in the Repair and Replacement Fund on or before the twentieth
(20th) day of each month commencing in the first month after the month that the Project
achieves Project Stabilization, an amount equal to one-twelfth (1/12th) the Annual Repair and
Replacement Fund Requirement.
(f) Additional Rent: The Lessee agrees to pay to the Trustee until the principal of,
premium, if any, and interest on the Bonds shall have been fully paid an amount equal to the
annual fee of the Trustee for the Ordinary Services of the Trustee rendered and the Ordinary
Expenses of the Trustee incurred under the Indenture, as and when the same become due; (iii)
reasonable fees and charges of the Trustee, as bond registrar and paying agent, and of any other
paying agents on the Bonds for acting as paying agents as provided in the Indenture, as and when
the same become due; and (iv) the reasonable fees and charges of the Trustee for the necessary
Extraordinary Services of the Trustee rendered by it and Extraordinary Expenses of the Trustee
incurred by it under the Indenture, as and when the same become due; provided, that the Lessee
may, without creating a default hereunder, contest in good faith the necessity for any such
Extraordinary Services of the Trustee and Extraordinary Expenses of the Trustee and the
reasonableness of any such fees, charges, or expenses.
The Lessee agrees to pay the Issuer on April 1 of each year during the Lease Term an
annual administrative fee equal to $22,100. In addition, the Lessee agrees that during the Lease
Term it shall pay directly to the Issuer an amount sufficient to reimburse the Issuer for all
expenses reasonably incurred by the Issuer hereunder in connection with the Project, including
but not limited to the reasonable fees and expenses of counsel for the Issuer; provided that the
Lessee may, without creating a default hereunder, contest in good faith the reasonableness of any
such expense.
Such Additional Rent (other than the annual administrative fee due on April 1 of each
year) shall be billed to the Lessee by the Issuer or the Trustee from time to time, together with a
statement certifying that the amount billed has been incurred or paid by such party for one or
more of the above items. Amounts so billed shall be paid by the Lessee within thirty (30) days
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after receipt of the bill by the Lessee. The annual administrative fee shall be due and payable on
April 1 of each year irrespective of whether the Issuer has provided the Lessee with a bill for
such fee.
In the event the Lessee shall fail to make any of the payments required in this Section, the
item or installment so in default shall continue as an obligation of the Lessee until the amount in
default shall have been fully paid.
(g) Notwithstanding any other provision of this Lease Agreement, the Lessee shall not
be entitled to receive a credit on or a reduction or abatement of its payment obligations under this
Lease Agreement by virtue of any payments made by the Consolidated Government pursuant to
the Contract. Any such payment obligations shall continue as an obligation of the Lessee until
paid, notwithstanding the use of payments made by the Consolidated Government pursuant to the
Contract to pay principal of, premium, if any, and interest on the Bonds or to make deposits into
the Bond Fund or the Debt Service Reserve Fund.
Section 5.04. Place of Rental Payments. The Basic Rent, Reserve Rent, and Repair
and Replacement Rent provided for in Section 5.03 hereof shall be paid in lawful money of the
United States of America directly to the Trustee for the account of the Issuer and shall be
deposited in the General Account of the Bond Fund, the Debt Service Reserve Fund, or the
Repair and Replacement Fund, respectively. The payments of Additional Rent to be made to the
Trustee under Section 5.03 hereof shall be paid directly to the Trustee for its own use or for
disbursement to the paying agents, as the case may be. The payments of the Additional Rent to
be made to the Issuer pursuant to Section 5.03 hereof shall be paid directly to the Issuer for its
own use.
Section 5.05. Nature of Obligations of Lessee Hereunder. (a) The obligations of the
Lessee to make the payments required in Section 5.03 hereof and other sections hereof and to
perform and observe any and all of the other covenants and agreements on its part contained
herein shall be a general obligation of the Lessee and shall be absolute and unconditional
irrespective of any defense or any rights of setoff, recoupment, or counterclaim, except for
payment, it may otherwise have against the Issuer. The Lessee agrees that it shall not
(i) suspend, abate, reduce, abrogate, diminish, postpone, modify, or discontinue any payments
provided for in Section 5.03 hereof, (ii) fail to observe any of its other agreements contained in
the Lessee Documents, or (iii) except as provided in Sections 11.01 and 11.02 hereof, terminate
its obligations under the Lessee Documents for any contingency, act of God, event, or cause
whatsoever, including, without limiting the generality of the foregoing, failure of the Lessee to
complete the construction of the Project, failure of the Lessee to occupy or to use the Project as
contemplated in this Lease Agreement or otherwise, any change or delay in the time of
availability of the Project, any acts or circumstances that may impair or preclude the use or
possession of the Project, any defect in the title, design, operation, merchantability, fitness, or
condition of the Project or in the suitability of the Project for the Lessee’s purposes or needs,
failure of consideration, any declaration or finding that any of the Bonds are unenforceable or
invalid, the invalidity of any provision of the Lessee Documents, any acts or circumstances that
may constitute an eviction or constructive eviction, destruction of or damage to the Project, the
taking by eminent domain of title to or the use of all or any part of the Project, failure of the
Issuer’s title to the Project or any part thereof, commercial frustration of purpose, any change in
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the tax or other laws of the United States of America or of the State or any political subdivision
of either thereof or in the rules or regulations of any governmental authority, or any failure of the
Issuer to perform and observe any agreement, whether express or implied, or any duty, liability,
or obligation arising out of or connected with the Lessee Documents.
(b) Nothing contained in this Section shall be construed to release the Issuer from the
performance of any of the agreements on its part herein contained. In the event the Issuer should
fail to perform any such agreement on its part, the Lessee may institute such action against the
Issuer as the Lessee may deem necessary to compel performance so long as such action does not
abrogate the Lessee’s obligations hereunder. The Lessee may, however, at its own cost and
expense and in its own name or in the name of the Issuer, prosecute or defend any action or
proceeding or take any other action involving third persons that the Lessee deems reasonably
necessary in order to secure or protect its right of possession, occupancy, and use hereunder, and
in such event the Issuer hereby agrees to reasonably cooperate with the Lessee and to take all
action necessary to effect the substitution of the Lessee for the Issuer in any such action or
proceeding if the Lessee shall so reasonably request.
[End of Article V]
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ARTICLE VI
MAINTENANCE, TAXES, AND INSURANCE
Section 6.01. Maintenance and Modification of Project by the Lessee. The Lessee
agrees that during the Lease Term it shall at its own expense (i) keep the Project in as reasonably
safe condition as its operations shall permit, (ii) keep the Premises, Building, and all other
improvements forming a part of the Project in good repair and in good operating condition,
including, but not limited to, structural and non-structural elements, roofs, foundations, parking
and access areas, driveways, sidewalks, grounds of the Premises, landscaping, common areas,
and conduits for water, sewer, and plumbing, making from time to time all necessary and proper
repairs thereto and renewals and replacements thereof, including, but not limited to, external and
structural repairs, renewals, and replacements, and (iii) use the Equipment in the regular course
of its business only, within the normal capacity of the Equipment, without abuse, and in a
manner contemplated by the manufacturer thereof, and cause the Equipment to be maintained in
accordance with the manufacturer’s then currently published standard maintenance contract and
recommendations. Subject to the provisions of Section 8.09 hereof, the Lessee may also, at its
own expense or with proceeds of Additional Bonds, from time to time make any Additions or
Alterations to the Project it may deem desirable for its business purposes that do not, in the
opinion of the Consulting Architect filed with the Issuer, adversely affect the operation or value
of the Project. Subject to the provisions of Section 9.03 hereof, Additions or Alterations to the
Project so made by the Lessee shall be subject to approval in writing by the Authorized Issuer
Representative, shall become a part of the Project, shall become subject to the demise of this
Lease Agreement, and shall become subject to the lien of the Security Deed. Such Additions or
Alterations to the Project that cost in excess of $250,000 shall be made only by contractors who
furnish performance and labor and material payment bonds in the full amount of such contracts,
made by the contractor thereunder as the principal and a surety company or companies
reasonably acceptable to the Issuer as surety, and such bonds shall be in such form as is
reasonably acceptable to the Issuer. Such bonds shall name the Lessee and the Issuer as
obligees, and all Net Proceeds received under such bonds shall be paid over to the Trustee and
deposited in the Net Proceeds Account of the Project Fund to be applied to the completion of the
Additions or Alterations to the Project. The Lessee further agrees that at all times during the
construction of Additions or Alterations that cost in excess of $250,000 it shall maintain or cause
to be maintained in full force and effect Builder’s Risk-Completed Value Form insurance to the
full insurable value of such Additions or Alterations. The Lessee shall not permit any
mechanics’ or materialmen’s or other statutory liens to be perfected or remain against the Project
for labor or materials furnished in connection with any Additions or Alterations so made by it,
provided that it shall not constitute an Event of Default hereunder upon such lien being filed, if
the Lessee shall promptly notify the Issuer of any such liens, and the Lessee in good faith
promptly contests such liens in accordance with the provisions of Section 6.09 hereof. The
Lessee shall not do or permit others under its control to do any work in or about the Project or
related to any repair, rebuilding, restoration, replacement, alteration of, or addition to the Project,
or any part thereof, unless the Lessee shall have first procured and paid for all requisite
municipal and other governmental permits and authorizations. All such work shall be done in a
good and workmanlike manner and in compliance with all applicable building, zoning, and other
laws, ordinances, governmental regulations, and requirements and in accordance with the
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requirements, rules, and regulations of all insurers under the policies required to be carried under
the provisions of this Article VI.
Section 6.02. Removal of Equipment. The Issuer shall not be under any obligation to
renew, repair, or replace any inadequate, obsolete, worn out, unsuitable, undesirable, or
unnecessary Equipment. If no Event of Default under this Lease Agreement shall have happened
and be continuing, in any instance where the Lessee in its reasonable discretion determines that
any items of Equipment or parts thereof have become inadequate, obsolete, worn out, unsuitable,
undesirable, or unnecessary, the Lessee may remove such items of Equipment or parts thereof
from the demise of this Lease Agreement and (on behalf of the Issuer) sell, trade in, exchange, or
otherwise dispose of them (as a whole or in part) without any responsibility or accountability to
the Issuer therefor, provided that the Lessee shall:
(a) substitute (either by direct payment of the cost thereof or by
advancing to the Issuer the funds necessary therefor) and install as part of the
Project items of replacement equipment or related property having equal or
greater value or utility (but not necessarily having the same function) in the
operation of the Project for the purpose for which it is intended, provided such
removal and substitution shall not impair the nature of the Project, all of which
replacement equipment or related property shall be free of all Liens (other than
Permitted Encumbrances) and shall become the property of the Issuer, shall
become a part of the Equipment subject to the demise of this Lease Agreement,
and shall be held by the Lessee on the same terms and conditions as the items
originally constituting Equipment, or
(b) not make any such substitution and installation, unless in the case
of: (i) the sale of any such Equipment, (ii) the trade-in of such Equipment for
other machinery, furnishings, equipment, or related property not to become part of
the Equipment to be demised hereby, or (iii) any other disposition thereof, the
Lessee shall pay to the Trustee the proceeds of such sale or disposition or an
amount equal to the credit received upon such trade-in for deposit into the
Redemption Account of the Bond Fund. In the case of the sale, trade-in, or other
disposition of any such Equipment to the Lessee or an Affiliate, the Lessee shall
pay to the Trustee an amount equal to the greater of the amounts and credits
received therefor or the Fair Market Value thereof at the time of such sale, trade-
in, or other disposition for deposit into the Redemption Account of the Bond
Fund.
The removal from the Project of any portion of the Equipment pursuant to the provisions
of this Section shall not entitle the Lessee to any abatement or diminution of the rents payable
under Section 5.03 hereof.
In the event that prior to such removal and disposition of items of Equipment from the
Project, the Lessee has acquired and installed machinery, furnishings, equipment, or related
property with its own funds, which become part of the Equipment and which have equal or
greater utility, but not necessarily the same function, as the Equipment to be removed, the Lessee
may take credit to the extent of the amount so spent by it against the requirement that it either
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substitute and install other machinery and equipment having equal or greater value or that it
make payment to the Trustee for deposit into the Redemption Account of the Bond Fund.
The Lessee shall promptly report to the Issuer each such removal, substitution, sale, or
other disposition and shall pay to the Trustee such amounts as are required by the provisions of
the preceding subsection (b) of this Section to be paid into the Redemption Account of the Bond
Fund promptly after the sale, trade-in, or other disposition requiring such payment; provided, that
no such report and payment need be made until the amount to be paid into the Redemption
Account on account of all such sales, trade-ins, or other dispositions not previously reported in
the aggregate has a value of at least $100,000. The Lessee shall not remove, or permit the
removal of, any of the Equipment from the Project except in accordance with the provisions of
this Section 6.02.
Upon compliance with this Section, the Issuer agrees to deliver any bills of sale or
releases in form and substance acceptable to the Lessee and which are deemed necessary by the
Lessee with respect to the removal of such Equipment from the demise of this Lease Agreement.
The Lessee shall execute and deliver to the Issuer such documents as it may from time to time
require to confirm the title of the Issuer (subject to this Lease Agreement) to any items of
equipment and other personal property which under the provisions of this Section are to become
a part of the Equipment and shall pay all costs (including attorneys’ fees) incurred in connection
therewith.
Section 6.03. Taxes, Other Governmental Charges, and Utility Charges. The
Lessee shall duly pay and discharge, as the same become due and payable, (i) all taxes and
governmental charges of any kind whatsoever that may at any time be lawfully assessed or
levied against or with respect to the Project, including, without limiting the generality of the
foregoing, all ad valorem taxes or payments in lieu of such taxes lawfully assessed upon the
Lessee’s rights in and to the Project and all sales and use taxes lawfully assessed upon the Issuer
or the Lessee in connection with the Project, (ii) all utility and other charges incurred in the
ownership, operation, maintenance, use, occupancy, and upkeep of the Project, and (iii) all
assessments and charges lawfully made by any governmental body for public improvements that
may be secured by a lien on the Project; provided, that with respect to special assessments or
other governmental charges that may lawfully be paid in installments over a period of years, the
Lessee shall be obligated to pay only such installments as are required to be paid during the
Lease Term. The Issuer shall have no responsibility or liability for the failure of any public or
private utility to supply sufficient or adequate utility services to the Project.
If the Lessee shall first notify the Issuer of its intention so to do, the Lessee may, at its
own expense and in its own name and behalf or, subject to Issuer’s advance written consent
(such consent not to be unreasonably withheld), in the name and behalf of the Issuer and in good
faith, contest any such taxes, assessments, and other charges in accordance with the provisions of
Section 6.09 hereof and, in the event of any such contest, may permit, but only to the extent
permitted by applicable law, the taxes, assessments, or other charges so contested to remain
unpaid during the period of such contest and any appeal therefrom.
Section 6.04. Insurance Required. Throughout the Lease Term, the Lessee shall keep
the Project or cause the same to be kept continuously insured against such casualties,
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contingencies, and risks as are customarily insured against with respect to facilities of like size
and type, as recommended by an Insurance Consultant, paying as the same become due all
premiums in respect thereto, including but not limited to:
(a) after the Completion Date, insurance upon the repair or
replacement basis in an amount of not less than 100% of the then actual cost of
replacement (excluding costs of replacing excavations and foundations but
without deduction for depreciation) of the Project (with deductible provisions not
to exceed $10,000 in any one casualty) against any peril included within the
classification “All Risks of Physical Loss”;
(b) workers’ compensation coverage, or other provision therefor, as
required by the laws of the State;
(c) comprehensive general liability insurance providing insurance
(with deductible provisions not to exceed $10,000 per occurrence) to the extent of
not less than $1,000,000 per occurrence against liability for personal and bodily
injury including death resulting therefrom and $1,000,000 per occurrence for
damage to property, including loss of use thereof, occurring on or in any way
related to the Project or any part thereof or the operation thereof, with excess
coverage or “umbrella” insurance for claims under such coverage in the aggregate
of not less than $5,000,000 for any one occurrence;
(d) insurance under the Federal Flood Insurance Program shall be
maintained at all times within the minimum requirements and amounts required
for federally financed or assisted loans under the Flood Disaster Protection Act of
1973, as amended, if the Project is eligible under such program;
(e) after the Completion Date, boiler explosion insurance on steam
boilers, if any, pressure vessels, and pressure piping in an amount not less than
100% of the then actual cost of replacement (excluding costs of replacing
excavations and foundations but without deduction for depreciation) of the Project
(with deductible provisions not to exceed $10,000 in any one occurrence)
provided, that such insurance need not be taken out until steam boilers, pressure
vessels, or pressure piping are installed in the Project;
(f) if and only if vehicles are owned by the Lessee and used in
connection with the operation of the Project, vehicular liability insurance
providing insurance (with deductible provisions not to exceed $250,000 per
occurrence) to the extent of not less than $1,000,000 per occurrence against
liability for personal and bodily injury, including death resulting therefrom, and
$1,000,000 per occurrence for damage to property, including loss of use thereof,
with excess coverage or “umbrella” insurance for claims under such coverage in
the aggregate of not less than $10,000,000 for any one occurrence.
(g) all risk business interruption or equivalent insurance with respect
to any casualty or loss that affects the use and occupancy of the Project, whether
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or not such casualty or loss relates to the Project or any other Property of the
Lessee or an Affiliate of the Lessee physically connected to or adjacent to the
Project in an amount sufficient to provide proceeds that will cover a period not
less than two (2) years from the date of casualty or loss, in an amount equal to the
sum of (a) the amounts payable by the Lessee pursuant to Section 5.03 hereof for
such period and (b) the total of all other amounts payable by the Lessee to third
parties for such period in connection with the Project, reduced to the extent such
amounts would not be payable because of Expenses of Operation and
Maintenance not incurred during a period of non-occupancy of that portion of the
Project then not being occupied; and
(h) fidelity bonds or crime and fidelity insurance covering dishonest
acts by employees or agents of the Lessee, if any, who collect or have custody or
access to revenues, receipts, or funds of the Project;
The Lessee shall comply or cause compliance with all Insurance Requirements before the
expiration of any applicable extension or grace period and shall not bring or knowingly keep or
permit to be brought or kept any article upon the Project or knowingly cause or permit any
condition to exist thereon that would be prohibited by any Insurance Requirement, or would
invalidate insurance coverage required hereunder to be maintained by the Lessee on or with
respect to any part of the Project.
Section 6.05. Application of Net Proceeds of Insurance. The Net Proceeds of the
insurance carried pursuant to the provisions of Section 6.04(a), (d), and (e) hereof shall be paid
and applied as provided in Section 7.01 hereof, and the Net Proceeds of insurance carried
pursuant to the provisions of Section 6.04(b), (c), (f), (g), and (h) hereof shall be applied toward
extinguishment or satisfaction of the liability with respect to which such insurance proceeds have
been paid.
Section 6.06. Additional Provisions Respecting Insurance. (a) All insurance
required by Section 6.04 hereof shall be taken out and maintained in generally recognized
responsible insurance companies authorized by law to insure risks in the State, selected by the
Lessee and either (1) rated not less than “A-” by A.M. Best & Co., with a financial rating size of
Class X or larger, or (2) subject to the approval of the Issuer, which approval shall not be
unreasonably withheld, conditioned, or delayed. All policies evidencing such insurance shall be
subject to the approval of the Issuer, which approval shall not be unreasonably withheld,
conditioned, or delayed. All policies evidencing such insurance shall provide for payment to the
Issuer, the Lessee, and the Trustee as their respective interests may appear, and the policies
required by Section 6.04 hereof (except for Section 6.04(b) hereof) shall name the Trustee and
the Issuer as additional insureds. All policies of insurance required to be maintained pursuant to
Section 6.04 hereof shall insure the interests of the Issuer regardless of any breach or violation
by the Lessee, its Affiliates, or others acting on their behalf of any warranties, declarations, or
conditions contained in such policies. All liability policies required to be maintained pursuant to
Section 6.04 hereof by the Lessee shall expressly provide that all provisions thereof, except the
limits of liability (which shall be applicable to all insureds as a group) shall operate in the same
manner as if there were a separate policy covering each such insured. All policies required by
Section 6.04 hereof shall acknowledge that (1) liability for premiums shall be the sole liability of
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the Lessee and (2) such policies are primary and non-contributory with any other policies that the
Issuer may hold. In lieu of separate policies, the Lessee may maintain one or more blanket
policies of insurance having the coverage required by Section 6.04 hereof. All policies of
insurance required to be maintained pursuant to Section 6.04 hereof shall provide thirty (30)
days’ written notice of cancellation to the Issuer, with the exception of ten (10) days’ written
notice of cancellation for nonpayment of premium. The policies shall also provide prompt notice
of material change in policy conditions to the Issuer. For purposes of this Section 6.06(a),
material change is considered to be any modification or reduction in coverage that would cause
the Lessee’s insurance policies to be out of compliance with Section 6.04 hereof. The Lessee
shall have included in all policies of insurance obtained by it hereunder, a waiver by the insurer
of all right of subrogation against the Issuer in connection with any loss or damage thereby
insured against. To the full extent permitted by law, the Lessee waives all right of recovery
against the Issuer for, and agrees to release the Issuer from liability for, loss or damage to the
extent such loss or damage is covered by valid and collectible insurance in effect at the time of
such loss or damage or would be covered by the insurance required to be maintained under this
Lease Agreement.
(b) The Lessee shall promptly notify the Issuer of any single loss or event at the Project
likely to give rise to a property or liability insurance claim in an amount in excess of $250,000,
whether or not covered by insurance. Any loss insured by any of the insurance policies or
coverages required by Section 6.04 hereof shall be adjusted with the respective insurance
companies, including the filing in a timely manner of appropriate proceedings by the Lessee, in
consultation with the Issuer if such loss is in excess of $250,000. In addition, the Lessee may, in
its reasonable judgment, consent to the settlement of any loss, provided that in the event that the
amount of the loss exceeds $250,000, the terms of such settlement is reviewed by the Issuer. The
Lessee shall notify the Issuer immediately of any loss that results in a loss of limb or fatality.
(c) In the event that the Lessee fails to respond in a timely and appropriate manner to
take any steps necessary to notify and collect from any insurers for any loss covered by any
insurance required to be maintained by Section 6.04 hereof, the Issuer shall have the right to
make all proofs of loss, negotiate all claims, and receive all or any part of the proceeds of the
such insurance policies, either in its own name or the name of the Lessee. All expenses incurred
by the Issuer in executing this process shall become an advance made by the Issuer pursuant to
Section 6.08 hereof.
(d) The Lessee shall maintain such insurance in addition to or in lieu of that required by
Section 6.04 hereof as the Issuer may from time to time reasonably require, due to (i) new
information coming to the attention of the Issuer after the Completion Date or (ii) changed
circumstances after the Completion Date, which, in the case of either of the foregoing clauses (i)
and (ii), is reasonably determined by the Issuer to render the insurance coverage required by
Section 6.04 hereof to be materially inadequate. It is agreed and understood that new
information or changed circumstances referenced in this subsection (d) shall include any
increases (but not any decreases) in coverage requirements for earthquake, flood, and named
windstorm based upon any new or updated probable maximum loss (PML) analysis provided for
the Project according to its final design.
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(e) The Lessee shall deliver to the Issuer, within ten (10) business days preceding the
Completion Date and within ten (10) business days after each annual policy renewal date for
each insurance policy, certificates of insurance or binders, in form and substance reasonably
satisfactory to the Issuer, evidencing all of the insurance required by the provisions of Section
6.04 hereof. Such certificates of insurance or binders shall be executed by each insurer or by an
authorized representative of each insurer when it is not practical for such insurer to execute the
certificate itself. Such certificates of insurance or binders shall identify underwriters, the type of
insurance, the insurance limits, and the policy term and shall specifically list the special
provisions enumerated for such insurance required by Section 6.04 hereof. Upon reasonable
request, the Lessee shall promptly furnish the Issuer with copies of all insurance policies (except
in the case of corporate insurance programs, for which detailed insurance summaries shall be
acceptable), binders, and cover notes or other evidence of such insurance relating to the
insurance required to be maintained under Section 6.04 hereof. The schedule of insurance shall
include the name of the insurance company, policy number, type of insurance, major limits of
liability, and expiration date of the insurance policies.
(f) No provision of this Lease Agreement shall impose on the Issuer or the Trustee any
duty or obligation to verify the existence or adequacy of the insurance coverage maintained by
the Lessee, nor shall the Issuer or the Trustee be responsible for any representations or warranties
made by or on behalf of the Lessee or any other party to any insurance company or underwriter.
Any failure on the part of the Issuer to pursue or obtain the evidence of insurance required by
this Lease Agreement from the Lessee or any other party or failure of the Issuer to point out any
non-compliance of such evidence of insurance shall not constitute a waiver of any of the
insurance required under this Lease Agreement.
(g) If at any time the Issuer determines in its reasonable judgment that any insurance
(including the limits or deductibles thereof) required to be maintained under this Lease
Agreement is not available on commercially reasonable terms due to prevailing conditions in the
commercial insurance market at such time, then upon the written request of the Lessee together
with a written report of the Insurance Consultant (i) certifying that such insurance is not
available on commercially reasonable terms (and, in any case where the required maximum
coverage is not reasonably available, certifying as to the maximum amount that is so available),
(ii) explaining in detail the basis for the Insurance Consultant’s conclusions, and (iii) containing
such other information as the Issuer may reasonably request, the Issuer may temporarily waive
such requirement. At any time after the granting of any temporary waiver pursuant to this
subsection (g), but not more than once in any year, the Issuer may request, and the Lessee shall
furnish to the Issuer within thirty (30) days after such request, an updated insurance report from
the Insurance Consultant. Any waiver granted pursuant to this subsection (g) shall expire,
without further action by any party, immediately upon (a) such waived insurance requirement
becoming available on commercially reasonable terms, as reasonably determined by the Issuer,
or (b) failure of the Lessee to deliver an updated insurance report pursuant to this subsection (g).
(h) The Lessee shall use commercially reasonable efforts to require contractors and
subcontractors with which it has a direct contractual relationship, if any, which will be
performing operations and maintenance or other on-site work on its behalf (as applicable), to
obtain and maintain the basic types of insurance required by Section 6.04 hereof in amounts that
are customary for contractors and subcontractors performing similar work and operations.
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Section 6.07. Review by Insurance Consultant. On or before the Completion Date,
and at all times during the Lease Term, an Insurance Consultant shall be designated by the
Lessee. The Lessee shall procure a review of its insurance requirements not less than every three
(3) years, along with a written recommendation, if any, for changing any of the insurance or
coverages hereinabove required, and shall furnish a copy of such review to the Issuer and the
Trustee. If any such review by the Insurance Consultant contains reasonable recommendations
for changing any of such insurance or coverages and does not abrogate the Issuer’s insurance
requirements, the Lessee shall promptly change such insurance or coverages in accordance with
the recommendations.
Section 6.08. Advances by the Issuer or the Trustee. If the Lessee shall fail to
maintain the insurance coverages required by this Lease Agreement or shall fail to pay the taxes
and other charges required to be paid by this Lease Agreement or shall fail to keep the Project in
as reasonably safe condition as its operation will permit or shall fail to keep the Project in good
repair and good operating condition, the Issuer or the Trustee may (but shall be under no
obligation to), after notifying the Lessee of its intention to do so, take out the required policies of
insurance and pay the premiums on the same or pay the taxes or other charges or make the
required repairs, renewals, and replacements. In addition, if the Lessee should fail to make any
payment or to perform or comply with any of the agreements, covenants, or obligations of the
Lessee under the Lessee Documents, then the Issuer or the Trustee, at the option of either one,
may make such payment or perform such agreement, covenant, or obligation for the account and
at the expense of the Lessee, but shall not be obligated to do so. Any and all payments and
expenses incurred or paid in so doing shall become an additional obligation of the Lessee to the
one making the advancement, which amounts, together with interest thereon from the date of
payment at the floating rate charged prime corporate borrowers from time to time plus two
percent (2%) per annum on demand loans by the commercial lending department of the Trustee,
the Lessee agrees to pay on demand. Any remedy herein vested in the Issuer or the Trustee for
the collection of amounts due under Section 5.03 hereof shall also be available to the Issuer and
the Trustee for the collection of all such amounts so advanced. The Trustee shall be under no
obligation to make any such payment unless it is required to do so by the owners of at least
twenty-five percent (25%) in the aggregate principal amount of all Bonds then Outstanding and
is provided with adequate funds paid in cash to the Trustee (from a source or sources approved
by the Trustee) for the purpose of such payment.
Section 6.09. Contest of Liens. In the event the Lessee in good faith contests Liens
pursuant to Sections 6.01, 6.03, or 4.01 of this Lease Agreement, the Lessee may permit, but
only to the extent permitted by applicable law, the items so contested to remain undischarged and
unsatisfied during the period of such contest and any appeal therefrom, provided the Lessee shall
furnish the Issuer or with an opinion of Independent Counsel stating that by nonpayment of such
items the title of the Issuer or the lien of the Security Deed as to any material part of the Project
will not be materially and imminently endangered and neither the Project nor any material part
thereof will be subject to imminent loss or forfeiture. If the Lessee is unable or otherwise fails to
obtain such an opinion of Independent Counsel, the Lessee shall promptly cause to be satisfied
and discharged all such unpaid items by payment thereof, by causing the lien to be transferred
from the Project to other security as permitted by State law, or by payment of the amount so
contested into a reserve held by the Trustee. Such reserve may be used by the Issuer to satisfy
the items if action is taken to enforce the lien and such action is not stayed. Such reserve will be
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returned to the Lessee if the items are successfully contested. In the event the Lessee shall fail to
pay any of the foregoing items required by this Section to be paid by the Lessee, the Issuer may
(but shall be under no obligation to) pay the same, and any amounts so advanced therefor by the
Issuer shall become an advance repayable in accordance with Section 6.08 of this Lease
Agreement. The Issuer shall, at the expense of the Lessee, reasonably cooperate with the Lessee
in any such contest.
[End of Article VI]
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ARTICLE VII
DAMAGE, DESTRUCTION, CONDEMNATION, AND FAILURE OF TITLE
Section 7.01. Damage and Destruction. (a) If prior to the termination of this Lease
Agreement, the Project is destroyed or is damaged (in whole or in part) by fire or other casualty
to such extent that the Net Proceeds recovered under the insurance policies required to be carried
pursuant to Section 6.04(a), (d), and (e) hereof resulting from such destruction or damage are not
greater than $100,000, the Lessee (i) shall promptly repair, rebuild, restore, or re-equip the
Project to substantially the same condition thereof as existed prior to the event causing such
damage or destruction with such changes, alterations, and modifications (including the
substitution and addition of other property) as may be desired by the Lessee and as may be
approved in writing by the Authorized Issuer Representative and as will not impair the value or
the character of the Project and (ii) shall apply for such purpose so much as may be necessary of
any Net Proceeds of insurance resulting from such recovery. All such Net Proceeds of insurance
not in excess of $100,000 shall be paid to the Lessee, subject to the provisions of Section 7.01(e)
hereof.
(b) If prior to the termination of this Lease Agreement, the Project is destroyed or is
damaged (in whole or in part) by fire or other casualty to such extent that the Net Proceeds
recovered under the insurance policies required to be carried pursuant to Section 6.04(a), (d), and
(e) hereof resulting from such destruction or damage are in excess of $100,000, the Lessee shall
promptly give written notice thereof to the Trustee. All such Net Proceeds of insurance shall be
paid to and held by the Trustee in the Net Proceeds Account of the Project Fund, whereupon the
Lessee shall proceed promptly to repair, rebuild, restore, or re-equip the Project to substantially
the same condition thereof as existed prior to the event causing such damage or destruction with
such changes, alterations, and modifications (including the substitution and addition of other
property) as may be desired by the Lessee and as may be approved in writing by the Authorized
Issuer Representative and as will not impair the value or the character of the Project, whereupon
the Trustee shall apply so much as may be necessary of the Net Proceeds of such insurance to
payment of the costs of such repair, rebuilding, or restoration, either on completion thereof or as
the work progresses in accordance with the procedures set forth in Section 4.04 of this Lease
Agreement.
(c) In the event the Net Proceeds are not sufficient to pay in full the costs of any such
repair, rebuilding, restoration, or re-equipping, the Lessee shall nonetheless complete such work
and shall pay that portion of the costs thereof in excess of the amount of such Net Proceeds.
(d) The Lessee shall not, by reason of the payment of such excess costs, be entitled to
any reimbursement from the Issuer, the Trustee, the Consolidated Government, or the owners of
the Bonds or any abatement or diminution of the rents payable under Section 5.03 hereof.
(e) Any balance of such Net Proceeds of insurance remaining after application pursuant
to subsections (a) or (b) of this Section 7.01 shall be paid into the Redemption Account of the
Bond Fund and used to redeem Bonds or to pay principal of and interest on the Bonds as the
same becomes due. If the Bonds have been fully paid (or provision therefor has been made in
accordance with the Indenture), any balance of such Net Proceeds remaining after application
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pursuant to subsections (a) or (b) of this Section 7.01 shall be paid to the Consolidated
Government, to the extent that the Consolidated Government has made payments under the
Contract or, if the Consolidated Government has not made payments under the Contract, shall be
paid to the Lessee.
(f) The proceeds of any insurance carried by the Lessee that is in addition to the
insurance required to be carried pursuant to this Lease Agreement (including, but not limited to,
the proceeds of any business interruption insurance) shall be paid to the Lessee.
Section 7.02. Condemnation and Failure of Title. In the event that title to any portion
of the Project fails or title to or the temporary use of the Project or any part thereof is taken under
the exercise of the power of eminent domain by any governmental body or by any Person acting
under governmental authority, the Lessee shall be obligated to continue to make the rental
payments specified in Section 5.03 hereof. Except for Net Proceeds received by the Lessee
pursuant to Section 7.03 hereof, the Issuer and the Lessee shall cause the Net Proceeds received
by them or any of them from any title insurance policy or any award made in such eminent
domain proceedings to be paid to and held by the Trustee in the Net Proceeds Account of the
Project Fund, to be applied in one or more of the following ways as shall be directed in writing
by the Lessee:
(a) To the restoration of the Project to substantially the same condition
thereof as existed prior to the failure of title or the exercise of such power of
eminent domain, substantially in accordance with the procedures set forth in
Section 4.04 of this Lease Agreement.
(b) To the acquisition of other suitable land and the acquisition, by
construction or otherwise, in the name of the Issuer, to the extent permitted by
applicable law, of improvements consisting of a building or buildings, facilities,
furnishings, machinery, equipment, or other properties suitable for the Lessee’s
operations at the Project as conducted prior to such failure of title or taking
(which improvements shall be deemed a part of the Project and available for use
and occupancy by the Lessee without the payment of any rent other than as herein
provided to the same extent as if such improvements were specifically described
herein and demised by this Lease Agreement); provided, that such improvements
and properties shall be acquired by the Lessee, in the name of the Issuer, subject
to no Liens other than Permitted Encumbrances. Such improvements and
property acquisitions must be approved in writing by the Authorized Issuer
Representative, which approval shall not be unreasonably withheld. The Lessee
and the Issuer shall enter into amendments to this Lease Agreement to identify
such improvements and properties as part of the Project, the Lessee and the Issuer
and shall enter into amendments to the Security Deed to subject such
improvements and properties to the lien and the security interest created by the
Security Deed, and the Issuer shall enter into a supplemental indenture assigning
and pledging, and granting a security interest in, the foregoing amendments to the
Trustee.
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(c) Any balance of the Net Proceeds of the title insurance policy or the
award in such eminent domain proceedings remaining after application pursuant
to subsections (a) and (b) of this Section 7.02 shall be paid into the Redemption
Account of the Bond Fund to redeem Bonds or to pay principal of and interest on
the Bonds as the same becomes due, or, if no Bonds then remain Outstanding, to
the Consolidated Government, to the extent that the Consolidated Government
has made payments under the Contract or, if the Consolidated Government has
not made payments under the Contract, to the Lessee.
Within sixty (60) days from the date of failure of title or the date of entry of a final order
in any eminent domain proceedings granting condemnation, the Lessee shall direct the Issuer and
the Trustee in writing as to which of the ways specified in this Section the Lessee elects to have
the title insurance proceeds or condemnation award applied.
The Issuer shall reasonably cooperate with the Lessee in handling and conducting any
prospective or pending condemnation proceeding with respect to the Project or any part thereof
and shall, to the extent it may lawfully do so, permit the Lessee to litigate in any such proceeding
in the name and behalf of the Issuer. In no event shall the Issuer voluntarily settle, or consent to
the settlement of, any prospective or pending condemnation proceeding with respect to the
Project or any part thereof without the prior written consent of the Lessee (such consent not to be
unreasonably withheld, conditioned, or delayed).
The Lessee shall be entitled to pursue any claims it may have as lessee of the Project
under this Lease Agreement in any prospective or pending condemnation proceeding,
independent and separate from any claims of the Issuer as owner of the Project.
Section 7.03. Condemnation of Lessee-Owned Property. The Lessee shall be entitled
to the Net Proceeds of any condemnation award or portion thereof made for damages to or for
taking of its own property not included in the Project (except for damages for the value of its
leasehold estate in the Project under this Lease Agreement, which shall be applied pursuant to
Section 7.02 hereof).
[End of Article VII]
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ARTICLE VIII
ADDITIONAL COVENANTS; ADDITIONAL BONDS
Section 8.01. No Warranty of Condition or Suitability by the Issuer. THE ISSUER
MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE HABITABILITY,
MERCHANTABILITY, CONDITION, OR WORKMANSHIP OF ANY PART OF THE
PROJECT OR THAT IT WILL BE SUITABLE FOR THE LESSEE’S PURPOSES OR NEEDS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE LESSEE ACCEPTS
THE PROJECT “AS-IS.”
[to be updated] Specifically, but without limitation, the Lessee acknowledges that the
Premises have been accepted into the Georgia Brownfields Program (as described in O.C.G.A.
§48-5-7.6. and O.C.G.A. §12-8-200, et seq.) and that a required prospective purchaser corrective
action plan has not been approved by the Georgia Environmental Protection Division of the
Georgia Department of Natural Resources, nor has a final limitation of liability letter been
issued, and with full and complete knowledge of such, the Lessee accepts the Project in such
condition.
Section 8.02. Access to Premises and Records. (a) The Lessee agrees that the Issuer
and its duly authorized representatives and agents shall have the right, upon reasonable prior
notice, to enter the Project at all reasonable times during the Lease Term for the purpose of (i)
examining and inspecting the same, including the construction thereof, (ii) performing such work
in and about the Project made necessary by reason of an Event of Default, and (iii) upon an
Event of Default, exhibiting the Project to prospective purchasers, lessees, or mortgagees.
(b) The Lessee shall keep accurate and complete records and books of account with
respect to its activities in which proper entries are made in accordance with GAAP reflecting all
of its financial transactions. The Issuer shall have the right at all reasonable times to examine
and make extracts from the books and records of the Lessee, insofar as such books and records
relate to the Project or insofar as necessary to ascertain compliance with the Lessee Documents,
and to discuss with the Lessee’s officers, employees, and Accountants the Lessee’s affairs,
finances, accounts, activities, assets, liabilities, financial condition, results of operations, and
financial prospects.
Section 8.03. Lessee to Maintain its Existence; Separate Legal Entity. (a) The
Lessee agrees that while this Lease Agreement is in effect it shall maintain its legal existence as
a Georgia limited liability company.
(b) Notwithstanding any other provision of this Lease Agreement and any provision of
the law that otherwise so empowers the Lessee, so long as this Lease Agreement remains in
effect, the Lessee:
(1) shall not engage in any business or activity other than the leasing,
operation, and maintenance of the Project and activities incidental thereto;
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(2) shall not acquire, own, hold, lease, operate, manage, maintain,
develop or improve any assets other than the Project and such personalty as may
be necessary for the operation of the Project and shall conduct and operate its
business as presently conducted and operated;
(3) shall preserve its existence as an entity duly organized, validly
existing and in good standing (if applicable) under the laws of the jurisdiction of
its formation or organization and shall do all things necessary to observe
organizational formalities;
(4) shall not merge or consolidate with any other Person;
(5) shall not take any action to: (i) dissolve, wind-up, terminate or
liquidate, in whole or in part; (ii) sell, transfer or otherwise dispose of all or
substantially all of its assets; (iii) change its legal structure; (iv) transfer or permit
the direct or indirect transfer of any membership interests other than transfers
permitted under the Bond Documents; (v) issue additional membership interests;
and/or (vi) seek to accomplish any of the foregoing;
(6) shall not, without the prior unanimous written consent of all of
Lessee’s members and, if applicable, the prior unanimous written consent of one
hundred percent (100%) of the members, of the board of directors or of the board
of managers of Lessee: (i) file any insolvency, or reorganization case or
proceeding, to institute proceedings to have Lessee be adjudicated bankrupt or
insolvent; (ii) institute proceedings under any applicable insolvency law; (iii) seek
any relief under any law relating to relief from debts or the protection of debtors;
(iv) consent to the filing or institution of bankruptcy or insolvency proceedings
against Lessee; (v) file a petition seeking, or consent to, reorganization or relief
with respect to Lessee under any applicable federal or state law relating to
bankruptcy or insolvency; (vi) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian, or any similar official for
Lessee or a substantial part of its property; (vii) make any assignment for the
benefit of creditors of Lessee; (viii) admit in writing Lessee’s inability to pay its
debts generally as they become due; and/or (ix) take action in furtherance of any
of the foregoing;
(7) shall not amend or restate its organizational documents if such
change would cause the provisions set forth in the organizational documents not
to comply with the requirements set forth in the Bond Documents;
(8) shall not own any subsidiary or make any investment in any other
Person;
(9) shall not commingle its assets with the assets of any other Person
and shall hold all of its assets in its own name;
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(10) shall not incur any Indebtedness, other than, (i) its obligations
under this Lease Agreement, the Bond Guaranty, and the Construction Contracts
and (ii) customary unsecured trade payables incurred in the ordinary course of
owning and operating the Project provided the same are not evidenced by a
promissory note, do not exceed, in the aggregate, at any time a maximum amount
of two percent (2%) of the original principal amount of the Indebtedness and are
paid within sixty (60) days of the date incurred;
(11) shall maintain its records, books of account, bank accounts,
financial statements, accounting records and other entity documents separate and
apart from those of any other Person and shall not list its assets as assets on the
financial statement of any other Person, provided, however, that Lessee’s assets
may be included in a consolidated financial statement of its Affiliate provided that
(i) appropriate notation shall be made on such consolidated financial statements to
indicate the separateness of Lessee from such Affiliate and to indicate that
Lessee’s assets and credit are not available to satisfy the debts and other
obligations of such Affiliate or any other Person and (ii) such assets shall also be
listed on Lessee’s own separate balance sheet;
(12) except for capital contributions or capital distributions permitted
under the terms and conditions of its organizational documents, shall only enter
into any contract or agreement with any member or Affiliate of Lessee or any
guarantor, or any general partner, member, principal, or Affiliate thereof, upon
terms and conditions that are commercially reasonable and substantially similar to
those that would be available on an arm’s-length basis with third parties;
(13) shall not maintain its assets in such a manner that it will be costly
or difficult to segregate, ascertain, or identify its individual assets from those of
any other Person;
(14) shall not assume or guaranty (excluding any guaranty that has been
executed and delivered in connection with the Bonds) the debts or obligations of
any other Person, hold itself out to be responsible for the debts of another Person,
pledge any assets of the Lessee to secure the obligations of any other Person or
otherwise pledge any such assets for the benefit of any other Person (excluding
any pledge that has been executed and delivered in connection with the Bonds), or
hold out its credit as being available to satisfy the obligations of any other Person;
(15) shall not make or permit to remain outstanding any loans or
advances to any other Person except for those investments permitted under the
Bond Documents and shall not buy or hold evidence of indebtedness issued by
any other Person (other than cash or investment-grade securities);
(16) shall file its own tax returns separate from those of any other
Person, except to the extent that Lessee is treated as a “disregarded entity” for tax
purposes and is not required to file tax returns under applicable law, and shall pay
any taxes required to be paid under applicable law;
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(17) shall hold itself out to the public as a legal entity separate and
distinct from any other Person and conduct its business solely in its own name,
shall correct any known misunderstanding regarding its separate identity and shall
not identify itself or any of its Affiliates as a division or department of any other
Person;
(18) shall maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of its
contemplated business operations and shall pay its debts and liabilities from its
own assets as the same shall become due; provided, however, the foregoing shall
not require any member, partner or shareholder to make any additional
contributions to Lessee;
(19) shall allocate fairly and reasonably shared expenses with Affiliates
(including, without limitation, shared office space) and use separate stationery,
invoices and checks bearing its own name;
(20) shall pay its own liabilities (including, without limitation, salaries
of its own employees from its own funds);
(21) shall not acquire obligations or securities of its members or
Affiliates, as applicable;
(22) shall maintain a sufficient number of employees (if any) in light of
its contemplated business operations and pay the salaries of its own employees (if
any) only from its own funds; and
(23) shall at all times have two (2) springing members.
Section 8.04. Qualification in the State. The Lessee warrants that it is and while this
Lease Agreement is in effect it will continue to be duly qualified to do business in the State.
Section 8.05. Indemnity. (a) The Lessee shall and agrees to indemnify and save the
Issuer, the Trustee, the Consolidated Government, and their directors, officers, members, and
employees harmless against and from all claims by or on behalf of any Person arising from the
conduct or management of or from any work or thing done on the Project and against and from
all claims arising from (i) any condition of or operation of the Project, (ii) any breach or default
on the part of the Lessee in the performance of any of its obligations under the Lessee
Documents, (iii) any act or negligence of the Lessee or of any of its agents, contractors, servants,
employees, or licensees, or (iv) any act or negligence of any assignee or sublessee of the Lessee
or of any agents, contractors, servants, employees, or licensees of any assignee or sublessee of
the Lessee, provided, however, this indemnity shall not apply to any acts of gross negligence or
willful or intentional misconduct of the Issuer, the Trustee, or the Consolidated Government or
their directors, officers, members, or employees. The Lessee shall indemnify and save the
Issuer, the Consolidated Government, and the Trustee harmless from and against all costs and
expenses incurred in or in connection with any such claim arising as aforesaid from clauses (i),
(ii), (iii), or (iv), supra, or in connection with any action or proceeding brought thereon, including
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attorneys’ fees as provided in Section 10.04 hereof, and upon notice from the Issuer, the
Consolidated Government, or the Trustee, the Lessee shall defend them or any of them in any
such action or proceeding.
(b) The Lessee agrees that it will indemnify and hold the Trustee harmless from any and
all liability, cost, or expense incurred without gross negligence or bad faith in the course of its
duties in any capacity pursuant to the Bond Documents, including any act, omission, delay, or
refusal of the Trustee in reliance upon any signature, certificate, order, demand, instruction,
request, notice, or other instrument or document believed by it to be valid, genuine, and
sufficient.
(c) If the Issuer, the Trustee, the Consolidated Government, or their directors, officers,
members, and employees incur pecuniary liability by reason of the terms of the Bond Documents
or the undertakings required of the Issuer under the Issuer Documents, the Consolidated
Government under the Contract, or the Trustee under the Indenture, by reason of (i) the issuance
of the Bonds, (ii) the execution of the Bond Documents, (iii) the performance of any act required
by the Bond Documents, (iv) the performance of any act requested by the Lessee, or (v) any
other costs, fees, or expenses incurred by the Issuer, the Consolidated Government, or the
Trustee with respect to the Project or the financing thereof, including all claims, liabilities, or
losses arising in connection with the violation of any statutes or regulations pertaining to the
foregoing, the Lessee shall indemnify and hold harmless the Issuer, the Consolidated
Government, and the Trustee against all claims by or on behalf of any Person arising out of the
same and all costs and expenses incurred in connection with any such claim or in connection
with any action or proceeding brought thereon, including attorneys’ fees as provided in Section
10.04 hereof, and upon notice from the Issuer, the Consolidated Government, or the Trustee, the
Lessee shall defend the Issuer, the Consolidated Government, and the Trustee in any such action
or proceeding. The indemnity contained in this Section 8.05(c) shall not apply to any acts of
negligence or willful or intentional misconduct of the Issuer, the Consolidated Government, or
the Trustee.
(d) Nothing contained in this Section 8.05 shall require the Lessee to indemnify the
Issuer, the Consolidated Government, or the Trustee or their officers, directors, members, or
employees for any settlement of any such action effected without the Lessee’s consent. The
indemnity of the Issuer, the Consolidated Government, and the Trustee and their officers,
directors, members, and employees contained in this Section 8.05 shall survive the termination of
this Lease Agreement and the discharge of the Indenture, the resignation or removal of the
Trustee pursuant to the Indenture, and the payment in full of the Bonds.
Section 8.06. Project Budget. On or before the date that is thirty (30) days prior to the
commencement of each Fiscal Year, commencing with the first Fiscal Year ending after the
Completion Date, the Lessee shall prepare or cause to be prepared an annual Project Budget for
such Fiscal Year, which Project Budget shall be prepared consistent with the satisfaction of the
Operating Covenants, and shall file a copy of such Project Budget with the Issuer and the
Trustee. As and when determined necessary or appropriate by the Lessee, the Project Budget
shall be revised and a copy of each revision shall be promptly filed with the Issuer and the
Trustee. The Project Budget and any revisions thereto shall be subject to the prior written
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approval of the Issuer, which approval shall not be unreasonably withheld, conditioned, or
delayed, and a copy of such written approval shall be delivered to the Trustee.
In addition to the Repair and Replacement Rent provided for in Section 5.03 hereof
required to be paid to the Trustee for deposit into the Repair and Replacement Fund, the Lessee
covenants and agrees to include in each Project Budget, as a separate line item therein, sufficient
amounts to fund the maintenance and repair costs required pursuant to Section 6.01 hereof.
Commencing with the third Fiscal Year ending after the Completion Date and every three Fiscal
Years thereafter, the Lessee shall cause to be conducted and delivered a needs assessment
analysis consistent with customary industry standards for like properties. The needs assessment
analysis is to include recommendations for the on-going maintenance and repair of the Project as
required pursuant to Section 6.01 hereof and recommend the amount to be included in the Project
Budget pursuant to this Section. In any Fiscal Year with respect to which a needs assessment
analysis is available, the amount included as a line item in the Project Budget will at least equal
the amount recommended in such needs assessment analysis less any amount on deposit in the
Repair and Replacement Fund.
Section 8.07. Additional Bonds. (a) Additional Bonds may be issued by the Issuer to
provide funds to pay any one or more of the following: (i) the costs of completing the Project,
(ii) the costs of making such Additions or Alterations in, on, or to the Project as the Lessee may
deem necessary or desirable and as will not impair the nature of the Project and as will be located
on the Premises, (iii) to refund any Bonds, and (iv) the costs of the issuance and sale of the
Additional Bonds, the cost of funding the Debt Service Reserve Requirement with respect to
such Additional Bonds, and capitalized or funded interest for such period and such other costs
reasonably related to the financing as shall be agreed upon by the Lessee and the Issuer.
(b) If the Lessee is not in default hereunder, the Issuer may, on request of the Lessee,
from time to time in its sole discretion issue the amount of Additional Bonds specified by the
Lessee; provided, that the terms of such Additional Bonds, the purchase price to be paid therefor,
and the manner in which the proceeds therefrom are to be disbursed shall have been approved in
writing by the Lessee, provided, that the sale of any Additional Bonds shall be the sole
responsibility of the Lessee, and provided further that the Lessee and the Issuer shall have
entered into an amendment to this Lease Agreement to provide for additional Basic Rent in an
amount at least sufficient to pay principal of and interest on the Additional Bonds when due, and
to provide for any additional terms or changes to this Lease Agreement required because of such
Additional Bonds, and provided further that the Issuer shall have otherwise complied with the
provisions of Section 214 of the Indenture with respect to the issuance of such Additional Bonds.
(c) Prior to the issuance of any Additional Bonds to finance the costs of completing the
Project or the cost of Additions or Alterations to the Project, the Lessee shall cause to be
prepared and filed with the Issuer a certificate of the Lessee approved by the Consulting
Architect setting forth the estimated cost of the completion of the Project or the proposed
Additions or Alterations to the Project, including an allowance for contingencies, the estimated
date of completion of the Project or estimated date on which such Additions or Alterations will
be placed in service or completed, and the amount, if any, provided or to be provided by the
Lessee from other sources toward payment of the costs of completion of the Project or such
Additions or Alterations to the Project and the manner in which such funds will be provided.
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(d) The Lessee shall cause to be deposited in the Debt Service Reserve Fund an amount
equal to the Debt Service Reserve Requirement with respect to Additional Bonds; provided that
the Lessee and the Issuer may provide in the amendment to this Lease Agreement entered into
pursuant to subsection (b) of this Section 8.07 that the Debt Service Reserve Requirement with
respect to such Additional Bonds may be funded in equal consecutive monthly payments of
Reserve Rent for the number of months specified in such amendment.
(e) Any Additional Bonds shall be secured by the liens and security interests granted by
the Indenture and the Security Deed, and the liens and security interests created by the Indenture
and the Security Deed shall be equal, without preference or priority, to the liens and security
interests provided for the Series 2017 Bonds.
Section 8.08. Operating Covenants. (a) Operations. The Lessee covenants and
agrees to fix, charge, and collect, or cause to be fixed, charged, and collected, rents, rates, fees,
and charges for the use of any portion of the Project, including the residential and commercial
units in the Project, and for the services furnished or to be furnished by the Project, sufficient to
produce in each Fiscal Year Gross Receipts that, together with any other available funds, are
sufficient to pay promptly all Expenses of Operation and Maintenance and to provide all other
payments required to be made by the Lessee under this Agreement.
(b) Debt Service Coverage Ratio. The Lessee covenants and agrees to maintain at the
end of each and every consecutive fiscal quarter of each Fiscal Year for the trailing four (4)
fiscal quarters then ended the Debt Service Coverage Ratio set forth below:
Fiscal Year Debt Service Coverage Ratio
Base Year and thereafter 1.20
(b) Liquidity Covenant. The Lessee covenants and agrees to maintain at the end of each
fiscal quarter of each Fiscal Year the number of Days Cash-On-Hand set forth below:
Fiscal Year Days Cash-On-Hand
Base Year and thereafter 45 days
(c) Occupancy Covenant. As of the end of each Fiscal Year, the Lessee covenants and
agrees to achieve occupancy of at least the percentages of residential units in the Project set forth
below:
Fiscal Year Occupancy Rate
Base Year and thereafter 85%
(d) Trade Payables Covenant. The Lessee shall not allow more than 10% of its trade
accounts payable to remain unpaid for more than 60 days from the date such trade accounts are
due, excluding trade accounts payable that are the subject of a bona fide dispute being diligently
pursued by the Lessee.
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(e) If in any Fiscal Year the Lessee shall fail to satisfy any of the Operating Covenants,
the Lessee at its expense shall promptly retain a Consultant to make, within 90 days after being
so retained, recommendations with respect to the Lessee’s rents, rates, fees, and charges for the
Project and the Lessee’s methods of operation and other factors affecting the financial condition
of the Lessee as the Consultant believes are appropriate to enable the Lessee to satisfy the
Operating Covenants as is required by this Section. If in the judgment of the Consultant it is not
possible for the Lessee to satisfy the Operating Covenants, the report of the Consultant shall so
indicate and shall further indicate the anticipated Debt Service Coverage Ratio, Days Cash-On-
Hand, occupancy rate, and number of days trade accounts payable will remain unpaid if the
recommendations of the Consultant are followed, which shall be substituted for the figures set
forth in subsections (b), (c), (d), and (e) for purposes of this Section 8.08 for the Fiscal Year in
which the Consultant is retained and for the subsequent Fiscal Year.
(f) A copy of the Consultant’s report and recommendations, if any, shall be filed with
the Lessee, the Issuer, and the Trustee. The Lessee shall follow each recommendation of the
Consultant unless the Lessee delivers to the Trustee an opinion of Counsel (which opinion as to
form is reasonably acceptable to the Trustee) to the effect that compliance with a particular
recommendation would violate a provision of existing law or regulations, in which case the
Lessee need not comply with that particular recommendation. So long as a Consultant shall be
retained and the Lessee shall follow such Consultant’s recommendations to the extent permitted
by law, this Section shall be deemed to have been complied with even if any of the Operating
Covenants for the following Fiscal Year are not satisfied; provided, however, that the Gross
Receipts of the Lessee shall not be less than the amount required to pay when due the total
Expenses of Operation and Maintenance and the debt service on all Indebtedness of the Lessee
for such Fiscal Year.
(g) The Lessee may not permit the rendering of service by it or the occupancy or use of
any portion of the Project free of charge or at discounted or reduced rates except as may be in
compliance with any recommendation for free or discounted services or rates that may be made
by a Consultant.
(h) No default will occur under this Section 8.08 for failure to satisfy any of the
Operating Covenants, if and for so long as, the Lessee is in compliance with the terms of
subsections (e), (f), and (g) of this Section 8.08; provided that if a failure to satisfy any of the
Operating Covenants continues for two (2) consecutive Fiscal Years, then notwithstanding the
provisions of this subsection (h), an Event of Default shall be deemed to occur as provided in
Section 10.01(b) hereof.
Section 8.09. Operation of Project and Safety Code. The Lessee warrants that
throughout the Lease Term it shall operate the Project as an approximately 221-unit apartment
community and shall continue to maintain the Project in compliance with all applicable life and
safety codes and all applicable building and zoning, health, and safety ordinances and laws, all
applicable Environmental Laws, and all other applicable laws, ordinances, rules, and regulations
of the United States of America, the State, and any political subdivision or agency thereof having
jurisdiction over the Project.
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Section 8.10. Hazardous Waste. (a) In addition to and without limitation of all other
representations, warranties, and covenants made by the Lessee under this Lease Agreement, the
Lessee further represents, warrants, and covenants that the Lessee has not and, to the best of its
knowledge, any contractors with respect to the Project have not, used Hazardous Materials (as
hereinafter defined) on, from, or affecting the Project in any manner that violates any
Environmental Laws. The Lessee shall keep or cause the Project to be kept free of Hazardous
Materials except as otherwise provided in this Section 8.10.
(b) Without limiting the generality of the foregoing, the Lessee shall not cause or permit
the Project or any part thereof to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce, or process Hazardous Materials, except in compliance with
all applicable Environmental Laws, nor shall the Lessee cause or permit, as a result of any
intentional or unintentional act or omission on the part of the Lessee or any tenant or subtenant, a
release of Hazardous Materials onto the Project or onto any other property. The Lessee shall
comply with and ensure compliance by all tenants and subtenants with all applicable
Environmental Laws, whenever and by whomever invoked, and shall obtain and comply with,
and ensure that all tenants and subtenants obtain and comply with, any and all approvals,
registrations, or permits required thereunder. The Lessee shall (i) conduct and complete all
investigations, studies, samplings, and testing and all remedial, removal, and other actions
necessary to clean up and remove all Hazardous Materials on, from, or affecting the Project (A)
in accordance with all applicable Environmental Laws, and (B) in accordance with the directives
of all federal, state, and local governmental authorities, and (ii) defend, indemnify, and hold
harmless the Issuer and the Trustee from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, contingent or otherwise arising out of or in any way related to (x) the presence,
disposal, release, or threatened release of any Hazardous Materials that are on, from, or affecting
the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise of the
Project, or (y) any violation of Environmental Laws or any policies or requirements of the Issuer,
which are based upon or in any way related to such Hazardous Materials including, without
limitation, attorneys’ fees, investigation and laboratory fees, court costs, and litigation expenses.
In the event of the termination of this Lease Agreement, the Lessee shall deliver the Project free
of any and all Hazardous Materials so that the condition of the Project shall conform with all
applicable Environmental Laws affecting the Project.
(c) For purposes of this Section 8.10, “Hazardous Materials” includes, without
limitation, any flammable explosives, radioactive materials, hazardous materials or wastes,
hazardous or toxic substances, or related materials defined in any Environmental Law; provided,
however, that Hazardous Materials shall not include, for purposes of this Section 8.10, nonfriable
asbestos or cleaning products, medical supplies, or other substances used by the Lessee in the
ordinary course of conduct of its operations at the Project. The provisions of this Section 8.10
shall be in addition to any and all other obligations and liabilities the Lessee may have to the
Issuer or the Trustee at common law and shall survive the termination of this Lease Agreement
and the discharge of the Indenture, the resignation or removal of the Trustee pursuant to the
Indenture, and the payment in full of the Bonds.
Section 8.11. Continuing Disclosure. The Lessee hereby covenants and agrees that it
will comply with and carry out all of the provisions of the Continuing Disclosure Agreement.
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Notwithstanding any other provision of this Lease Agreement, failure of the Lessee to comply
with the Continuing Disclosure Agreement shall not be considered an Event of Default; however,
the Trustee, at the request of any Participating Underwriter (as defined in the Continuing
Disclosure Agreement) or the beneficial owners of at least 25% in aggregate principal amount of
Outstanding Bonds, shall or any beneficial owner of the Bonds may take such actions as may be
necessary and appropriate, including seeking specific performance by court order, to cause the
Lessee to comply with its obligations under this Section 8.11.
Section 8.12. Reporting on Personal Property. Annually, within sixty (60) days after
the end of each calendar year, the Lessee shall file with the Issuer a certificate describing, as of
the last day of the immediately preceding calendar year, each item of tangible personal property
not described in a previous similar certificate, that has been added to the Project, whether as a
substitution, replacement, or addition, and whether or not, when added, it became real property,
if the aggregate cost of such items in the preceding calendar year exceeds $25,000.
Section 8.13. Financial Statements and Notices. The Lessee shall provide the Issuer,
the Consolidated Government, and the Trustee the following items:
(1) annually, within one hundred twenty (120) days after the end of each Fiscal Year,
the basic financial statements of the Lessee, including the balance sheet, statement of support,
revenues, and expenses and changes in fund balance, and statement of cash flows, for the year
then ended, in comparative form with the preceding Fiscal Year, which basic financial
statements shall be accompanied by an audit report resulting from an audit conducted by
Accountants in conformity with generally accepted auditing standards;
(2) promptly upon receipt thereof, a copy of each other report submitted to the Lessee
by its Accountants in connection with any annual, interim, or special audit made by them of the
books of the Lessee (including, without limitation, any management report prepared in
connection with such Accountants’ annual audit of the Lessee);
(3) quarterly, within thirty (30) days after the end of each fiscal quarter, financial
statements for such fiscal quarter prepared by the Lessee without audit, covering the operations
of the Lessee for such fiscal quarter and containing a balance sheet as of the end of such fiscal
quarter and an income statement for such fiscal quarter, showing in comparative form the year-
to-date financial figures for the current Fiscal Year;
(4) promptly upon obtaining knowledge of an Event of Default, a certificate specifying
the nature and period of existence thereof and what action the Lessee proposes to take with
respect thereto;
(5) promptly after (i) the occurrence thereof, notice of the institution by any Person of
any action, suit, or proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency, or official, against the
Lessee or the Project, which could reasonably be expected to have a material adverse effect
upon, or a material adverse change in, any of the business, results of operations, properties,
prospects, or condition (financial or other) of the Lessee or the ability of the Lessee to perform
its obligations under the Lessee Documents or (ii) the receipt of actual knowledge thereof, notice
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of the threat of any such action, suit, proceeding, investigation, or arbitration, each such notice
under this subsection to specify, if known, the amount of damages being claimed or other relief
being sought, the nature of the claim, the Person instituting the action, suit, proceeding,
investigation, or arbitration, and any other significant features of the claim; and
(6) with reasonable promptness, such other information relating to the operations,
management, business, properties, or condition (financial or other) of the Lessee as the Trustee
or the Issuer may reasonably request in writing from time to time.
The audited financial statements to be furnished to the Issuer, the Consolidated
Government, and the Trustee annually pursuant to this Section 8.13 shall be prepared in
accordance with GAAP applied on a consistent basis and shall be accompanied by (a) an
Officer’s Certificate of the Lessee to the effect that the Lessee is not in default under any
provisions of the Lessee Documents and has fully complied with all of the provisions thereof, or
if the Lessee is in default or has failed to so comply, setting forth the nature of the default or
failure to comply, and (b) a certificate of the Accountants reporting on the Lessee’s financial
statements stating the Debt Service Coverage Ratio, the Days Cash-On-Hand, the occupancy rate
of the Project, and the number of days trade accounts payable of the Lessee remain unpaid as of
the end of and for such Fiscal Year. The unaudited financial statements to be furnished to the
Issuer, the Consolidated Government, and the Trustee quarterly pursuant to this Section 8.13
shall be prepared in accordance with GAAP applied on a consistent basis and shall be
accompanied by (a) an Officer’s Certificate of the Lessee to the effect that the Lessee is not in
default under any provisions of the Lessee Documents and has fully complied with all of the
provisions thereof, or if the Lessee is in default or has failed to so comply, setting forth the
nature of the default or failure to comply, and (b) an Officer’s Certificate of the Lessee stating
the Debt Service Coverage Ratio, the Days Cash-On-Hand, the occupancy rate of the Project,
and the number of days trade accounts payable of the Lessee remain unpaid as of the end of and
for such fiscal quarter and any variances from the Project Budget, rental activity, and rental rates
for such fiscal quarter.
All items required to be delivered to the Trustee pursuant to this Section 8.13 shall
include a reference to the Indenture and the Bonds.
Delivery of reports, information, and document to the Trustee under this Section 8.13 is
for informational purposes only and the Trustee’s receipt thereof shall not imply a duty to review
and shall not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Lessee’s compliance with any of their
covenants hereunder (except as to the information contained in any Officer’s Certificate
described in this Section 8.13).
Section 8.14. Related Party Transactions. The Lessee shall not enter into or be a
party to or permit to exist directly or indirectly any transaction or material group of related
transactions (including without limitation the purchase, lease, sale, or exchange of properties of
any kind or the rendering of any service) with any Affiliate, except in the ordinary course and
pursuant to the reasonable requirements of the Lessee’s business and upon fair and reasonable
terms no less favorable to the Lessee than would be obtainable in a comparable arm’s length
transaction with a Person not an Affiliate.
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Section 8.15. Line of Business. The Lessee will not engage to any substantial extent in
any business other than the leasing and operation of the Project and businesses reasonably related
thereto or in furtherance thereof.
Section 8.16. Selection of Management Company; Change in Management
Company. The Initial Management Company will manage the Project initially. The Lessee shall be
required to immediately notify the Trustee, the Issuer, and the Consolidated Government if the
Management Company has resigned, been removed, or otherwise changed, if either party to the
Management Agreement has provided a notice of termination, if either party has failed to comply, or has
been alleged to have failed to comply, with its obligations thereunder, if any material term of the
Management Agreement has changed or has been proposed to be changed, or if the Management
Agreement has been terminated. Notwithstanding anything to the contrary contained in this Lease
Agreement, a failure to comply with the foregoing sentence shall constitute an Event of Default
hereunder. The Lessee may replace the Management Company only with the written approval of the
Issuer not to be unreasonably withheld; provided such approval shall be deemed given if the Issuer does
not object within thirty (30) day of receiving a request from the Lessee for approval to replace the
Management Company with a Qualified Manager (as defined below). The Lessee is required to engage a
Management Company for operation of the Project at all times so long as the Series 2017 Bonds remain
outstanding. Except as provided below, the Lessee shall be required to retain a new Management
Company for operation of the Project if required by the Issuer, if:
(a) the Lessee fails to make any payment required under this Lease
Agreement; or
(b) the Lessee fails to maintain a Debt Service Coverage Ratio of at least
1.10 as shown on any Officer’s Certificate required to be delivered pursuant to Section
8.08 hereof.
Whenever the Lessee is required to retain a new Management Company, as described above, the
Lessee, if required by the Issuer, shall promptly retain a Consultant, who shall, within thirty (30) days of
the event requiring appointment of a new Management Company, submit to the Trustee and the Issuer a
list of Qualified Managers. A “Qualified Manager” shall mean a property manager that (i) is a reputable
management company having at least five (5) years’ experience in the management of apartment
communities with similar uses as the Project; (ii) has, for at least five (5) years prior to its engagement as
property manager, managed at least ten (10) properties of the same property type as the Project; (iii) at the
time of its engagement as property manager has under management not less than ten (10) properties of the
same property type as the Project under management; and (iv) is not the subject of a bankruptcy or similar
insolvency proceeding. If the Lessee is required to retain a new Management Company under the
circumstances described above, the Lessee shall retain as the new Management Company a Person from
the list submitted by the Consultant and acceptable to the Issuer. In the event that a new Management
Company is appointed by the Lessee at any time when the Debt Service Coverage Ratio is less than the
level required pursuant to this Lease Agreement, the provisions of this Lease Agreement shall not be
applied to require the further appointment of another Management Company until the new Management
Company has been employed for at least twelve (12) months.
Notwithstanding the foregoing, the Lessee shall not be required to retain a new Management
Company if the Trustee and the Issuer each receive, within thirty (30) days of the event requiring
appointment of a new Management Company:
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(1) a written report (prepared by the Management Company, unless the Issuer requires such
report to be prepared by a Consultant) containing sufficient detail to support the conclusions made
therein and concluding (A) that the failure of the Lessee to comply with the Long-Term Debt Service
Ratio is primarily due to factors outside the control of the present Management Company, or (B) that
retaining a new Management Company is not likely to materially improve the Lessee’s ability to comply
with such requirements; and
(2) a certificate signed by the Lessee stating that the performance by the Management Company
of its duties is satisfactory and setting forth the reasons supporting retention of the present Management
Company.
[End of Article VIII]
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ARTICLE IX
ASSIGNMENT, SUBLEASING, ENCUMBERING, AND SELLING;
INSTALLATION OF LESSEE’S OWN MACHINERY AND EQUIPMENT
Section 9.01. Assignment and Subleasing. The rights and obligations of the Lessee
under this Lease Agreement may be assigned and delegated, and the Project may be subleased,
as a whole or in part, by the Lessee with the prior written consent of the Issuer (which shall not
be unreasonably withheld), subject, however, to each of the following conditions:
(a) The assignee or sublessee shall meet the requirements of Section
8.03 hereof.
(b) No assignment of less than all of the rights of the Lessee under this
Lease Agreement or sublease of less than all of the Project shall relieve the Lessee
from primary liability for any of its obligations hereunder, and in the event of any
such assignment or sublease, the Lessee shall continue to remain primarily liable
for payment of the rents specified in Section 5.03 hereof and for the payment,
performance, and observance of the other obligations and agreements on its part
herein provided to be performed and observed by it.
(c) The assignee or sublessee shall assume in writing the obligations
of the Lessee under the Lessee Documents to the extent of the interest assigned or
subleased.
(d) The Lessee shall furnish or cause to be furnished to the Issuer
assurances reasonably satisfactory to the Issuer that the Project will continue to be
operated as a “project” within the meaning of the Urban Redevelopment Law.
(e) No such assignment or sublease shall give rise to a novation.
(f) The Lessee shall, within thirty (30) days after the execution
thereof, furnish or cause to be furnished to the Issuer a true and complete copy of
each such assignment, sublease, or assumption of obligation, as the case may be.
The Issuer shall have the right, at any time and from time to time, to notify any
assignee or sublessee of the rights of the Issuer as provided by this Section.
(g) All subleases shall contain an attornment clause providing in effect
that if at any time during the term of the sublease, a purchaser from the Issuer
shall become the owner of the Project, such sublessee agrees, at the election and
upon demand of any owner of the Project, to attorn, from time to time, to any
such owner upon the terms and conditions set forth in the sublease. Such
sublessee shall agree, at the request of the party to whom it has attorned, to
execute, acknowledge, and deliver, without charge, from time to time, instruments
acknowledging such attornment. The attornment clause shall provide that upon
such attornment, the sublease shall continue in full force and effect as, or as if it
were, a direct lease between the successor and the sublessee, except that the
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successor landlord shall not (i) have any liability for any previous act or omission
of a predecessor landlord under the sublease, (ii) be bound by any previous
modification of the sublease or by any previous prepayment of more than one
month’s rent, unless such modification or prepayment shall have been expressly
approved in writing by the Issuer, or (iii) have any liability for refusal or failure to
perform or complete landlord’s work or otherwise prepare the demised premises
for occupancy in accordance with the provisions of the sublease.
(h) All subleases shall be terminable at the option of the Issuer upon
the occurrence of an Event of Default hereunder. If the entire Project is subject to
any such sublease, such sublease shall contain provisions for increases in rentals
up to the fair rental value of the Project, determined in a manner reasonably
acceptable to the Issuer, upon the occurrence of an Event of Default hereunder.
Any assignment or sublease without the Issuer's prior written consent shall be void and shall, at
Issuer’s option, constitute a default under this Lease Agreement by the Lessee. No acceptance
by the Issuer or the Trustee of any rent or any other sum of money from any assignee, sublessee,
or other category of transferee shall release the Lessee from any of its obligations hereunder or
be deemed to constitute Issuer’s consent to any assignment or sublease.
Section 9.02. Restrictions on Sale, Encumbrance, or Conveyance of the Project by
the Issuer. The Issuer agrees that it shall not (1) directly, indirectly, or beneficially sell, convey,
or otherwise dispose of any part of its interest in the Project during the Lease Term, (2) permit
any part of the Project or the Premises to become subject to any mortgage, lien, claim of title,
encumbrance, security interest, conditional sale contract, title retention arrangement, finance
lease, servitude, easement, license, restriction, reservation, defect in or cloud on title, or other
charge of any kind, except for Permitted Encumbrances or except as otherwise permitted under
this Lease Agreement, and (3) assign, transfer, or hypothecate (other than to the Trustee pursuant
to the Indenture) any rent (or analogous payment) then due or to accrue in the future under any
lease of the Project or the Premises, except for Permitted Encumbrances or except as otherwise
permitted in this Lease Agreement, except that if the laws of the State at the time shall permit,
nothing contained in this Section shall prevent the consolidation of the Issuer with, or merger of
the Issuer into, or transfer of the Project as an entirety to, any political subdivision, public
corporation, or agency of the State whose property and income are not subject to taxation and
which has authority to carry on the business of owning and leasing the Project, provided, that
upon any such consolidation, merger, or transfer, the due and punctual payment of the principal
of, premium, if any, and interest on the Bonds according to their tenor, and the due and punctual
performance and observance of all the agreements and conditions of the Issuer Documents to be
kept and performed by the Issuer, shall be expressly assumed in writing by the political
subdivision, public corporation, or agency resulting from such consolidation or surviving such
merger or to which the Project shall be transferred as an entirety.
Section 9.03. Installation of Lessee’s Own Machinery and Equipment. The Lessee
may from time to time, in its reasonable discretion and at its own expense, install machinery,
equipment, furnishings, and other personal property in the Building or on the Premises, which
may be attached or affixed to the Building or the Premises. All such machinery, equipment,
furnishings, and other personal property shall remain the sole property of the Lessee, and the
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Lessee may remove the same from the Building or the Premises at any time, in its sole discretion
and at its own expense; provided, that any damage to the Project resulting from any such
removal shall be repaired by the Lessee at the expense of the Lessee. The Lessee may create any
security interest, encumbrance, lien, or charge in or on any such machinery, equipment,
furnishings, and other personal property. Neither the Issuer nor the Trustee shall have any
interest in or landlord’s lien on any such machinery, equipment, furnishings, or personal property
so installed pursuant to this Section, and all such machinery, equipment, furnishings, and
personal property shall be and remain identified as the property of the Lessee by appropriate tags
or other markings.
[End of Article IX]
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ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default Defined. The following shall be “Events of Default”
under this Lease Agreement, and the terms “Event of Default” or “Default” shall mean,
whenever they are used in this Lease Agreement, any one or more of the following events:
(a) The Lessee’s failure to pay the rents required to be paid under
Section 5.03 of this Lease Agreement at the times specified therein and
continuing for a period of five (5) days after notice in the manner provided in
Section 12.01 of this Lease Agreement, given to the Lessee by either the Trustee
or the Issuer, that the payment referred to in such notice has not been received, or,
without regard to notice, the Lessee’s failure to pay the rents required to be paid
under Section 5.03 of this Lease Agreement at the times specified therein and
continuing for a period of ten (10) days after any such amount becomes due under
Section 5.03 of this Lease Agreement, whichever occurs first.
(b) The Lessee’s breach in any material respect of any representation
or warranty contained in the Lessee Documents or the Lessee’s failure to observe,
perform, or comply in any material respect with any covenant, condition, or
agreement in the Lessee Documents on the part of the Lessee to be observed or
performed, other than as referred to in subsection (a) of this Section, for a period
of thirty (30) days after written notice specifying such breach or failure and
requesting that it be remedied, given to the Lessee by the Issuer or the Trustee,
unless the Issuer and the Trustee shall agree in writing to an extension of such
time prior to its expiration. In the case of any such breach or default that cannot
with due diligence be cured within such thirty (30) day period but can be wholly
cured within a period of time not materially detrimental to the rights of the Issuer,
the Trustee, and the Bondholders, to be determined conclusively by the Trustee, it
shall not constitute an Event of Default if corrective action is instituted by the
Lessee within the applicable period and diligently pursued until the breach or
default is corrected in accordance with and subject to any directions or limitations
of time established by the Trustee.
(c) The Lessee shall (i) apply for or consent to the appointment of or
the taking of possession by a receiver, custodian, trustee, or liquidator of it or of
all or a substantial part of its property or of the Project, (ii) fail to promptly lift or
bond (if legally permissible) any execution, garnishment, or attachment of such
consequence as will impair the ability of the Lessee to carry on its operations at
the Project, (iii) enter into an agreement of composition with its creditors, (iv)
admit in writing its inability to pay its debts generally as such debts become due,
(v) make a general assignment for the benefit of its creditors, (vi) commence a
voluntary case under the federal bankruptcy law or any similar law in effect in a
foreign jurisdiction (as now or hereafter in effect), (vii) file a petition or answer
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, (viii) fail to
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controvert in a timely or appropriate manner or acquiesce in writing to any
petition filed against it in an involuntary case under such federal bankruptcy law
or any similar law in effect in a foreign jurisdiction, or (ix) take any action for the
purpose of effecting any of the foregoing.
(d) A proceeding or case shall be commenced, without the application
of the Lessee, in any court of competent jurisdiction, seeking (i) the liquidation,
reorganization, dissolution, winding-up, or composition or adjustment of debts of
the Lessee, (ii) the appointment of a trustee, receiver, custodian, liquidator, or the
like of the Lessee or of all or any substantial part of the assets of it or of the
Project, or (iii) similar relief in respect of the Lessee under any law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition and
adjustment of debts, and such proceeding or case shall continue undismissed or an
order, judgment, or decree approving or ordering any of the foregoing shall be
entered and shall continue unvacated and unstayed and in effect for a period of
sixty (60) days, whether consecutive or not.
Section 10.02. Remedies on Default. (a) Whenever any Event of Default referred to in
Section 10.01 hereof shall have happened and be subsisting, the Issuer, to the extent permitted by
law, may take any one or more of the following remedial steps:
(1) The Issuer, upon ten (10) days’ prior written notice to the Lessee,
may terminate this Lease Agreement and exclude the Lessee from possession of
the Project.
(2) The Issuer, upon ten (10) days’ prior written notice to the Lessee,
may, without terminating this Lease Agreement, exclude the Lessee from
possession of the Project and use its best efforts to sublease the Project to another
for the account of the Lessee, holding the Lessee liable for all rent and other
payments due up to the effective date of such sublease and for the excess, if any,
of the rent and other amounts payable by the Lessee under this Lease Agreement
over the rents and other amounts that are payable by such new sublessee under
such new sublease.
(3) The Issuer, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right, without (i) notice; (ii) regard to the
occupancy or value of any security; (iii) any showing of fraud or mismanagement
on the part of the Lessee or the insolvency of the Lessee or any party bound for its
payment; (iv) regard to the existence of declaration that the Basic Rent and other
amounts payable by the Lessee hereunder then due or thereafter to become due, or
any portion thereof, is immediately due and payable; and (v) regard to the filing
of a notice of default, to the appointment of a receiver or the immediate
appointment of the Issuer to take possession and operate the Project, and to collect
and apply the rents, issues, profits, and revenues thereof, and the Lessee further
agrees and covenants not to object to Issuer’s request for appointment of a
receiver.
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(4) The Issuer may have access to and inspect, examine, and make
copies of the books and records and any and all accounts, similar data, and
income tax and other tax returns of the Lessee related to the Project.
(5) The Issuer may from time to time take whatever action at law or in
equity or under the terms of the Bond Documents may appear necessary or
desirable to collect the Basic Rent and other amounts payable by the Lessee
hereunder then due or thereafter to become due, or to enforce performance and
observance of any obligation, agreement, or covenant of the Lessee under the
Lessee Documents.
(b) The Issuer, upon ten (10) days’ prior written notice to the Lessee, shall terminate
this Lease Agreement and exclude the Lessee from possession of the Project upon the payment
by the Consolidated Government to the Trustee, for the account of the Issuer, of any amounts
payable pursuant to the Contract. Notwithstanding any other provision of this Lease Agreement,
the Lessee shall not be entitled to receive a credit on or a reduction or abatement of its rental
payment obligations under this Lease Agreement by virtue of any payments made by the
Consolidated Government pursuant to the Contract. Any such rental payment obligations shall
continue as an obligation of the Lessee until paid and shall bear interest at the rate of interest
specified in Section 6.08 hereof, notwithstanding the use of payments made by the Consolidated
Government pursuant to the Contract to pay principal of, premium, if any, and interest on the
Bonds or to make deposits into the Bond Fund or the Debt Service Reserve Fund. THE
LESSEE ACKNOWLEDGES AND AGREES THAT THE OPERATION OF THE
PROVISIONS OF THIS SECTION 10.02(b) ARE AUTOMATIC AND MANDATORY
AND WILL RESULT IN A COMPLETE TERMINATION WITHOUT ANY
COMPENSATION OF THE LESSEE’S RIGHTS UNDER THIS LEASE AGREEMENT
AND OF THE LESSEE’S LEASEHOLD ESTATE IN THE PROJECT. THE LESSEE
HAS AGREED TO THE PROVISIONS OF THIS SECTION 10.02(b) VOLUNTARILY,
INTELLIGENTLY, AND KNOWINGLY, THROUGH ITS DULY AUTHORIZED
REPRESENTATIVES AFTER THEY HAVE READ AND UNDERSTOOD THE
PROVISIONS OF THIS SECTION 10.02(b) AND HAVE BEEN AFFORDED AN
OPPORTUNITY TO BE INFORMED BY COUNSEL OF THE LESSEE’S POSSIBLE
ALTERNATIVE RIGHTS, AND BY EXECUTING THIS LEASE AGREEMENT THE
DULY AUTHORIZED REPRESENTATIVES OF THE LESSEE ACKNOWLEDGE
AGREEING TO THE PROVISIONS OF THIS SECTION 10.02(b) ON BEHALF OF THE
LESSEE.
(c) Any amounts collected pursuant to action taken under this Section shall be paid into
the Bond Fund and applied in accordance with the provisions of the Indenture or, if the Bonds
have been fully paid (or provision for payment thereof has been made in accordance with the
provisions of the Indenture) and the Lessee is then in good standing with respect to the payment
of all rent hereunder and shall have paid the Issuer and the Trustee all other sums due and owing
hereunder, then to the Lessee.
(d) No action taken pursuant to this Section (including repossession of the Project or
termination of this Lease Agreement) shall relieve the Lessee from its obligations pursuant to
Section 5.03 hereof, all of which shall survive any such action, and the Issuer may take whatever
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action at law or in equity as may appear necessary and desirable to collect the rent and other
amounts then due and thereafter to become due or to enforce the performance and observance of
any obligation, agreement, or covenant of the Lessee hereunder.
Section 10.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to
the Issuer is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Lease Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order to entitle the
Issuer to exercise any remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. Such rights and remedies as
are given the Issuer hereunder shall also extend to the Trustee, and the Trustee and the owners of
the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein
contained.
Section 10.04. Rights of Issuer to Require Tustee to Pursue Remedies. If an Event
of Default under this Lease Agreement occurs and is continuing, but no “Event of Default” has
occurred or is continuing under the Indenture, and if requested so to do by the Issuer, the Trustee
shall be obligated to exercise such one or more of the rights and powers conferred by Section
10.02 as so requested by the Issuer.
Section 10.05. Agreement to Pay Attorneys’ Fees and Expenses. In the event the
Lessee should default under any of the provisions of this Lease Agreement and the Issuer or the
Trustee should employ attorneys, accountants, or other experts or incur other expenses for the
collection of amounts due hereunder or the enforcement of performance or observance of any
obligation or agreement on the part of the Lessee herein contained or contained in the Lessee
Documents, the Lessee agrees that it shall on demand therefor pay to the Issuer or the Trustee the
reasonable fees of such attorneys, accountants, or other experts and such other expenses so
incurred by the Issuer or the Trustee. Any attorneys’ fees required to be paid by the Lessee
under this Lease Agreement shall include attorneys’ and paralegals’ fees through all proceedings,
including, but not limited to, negotiations, administrative hearings, trials, and appeals.
Section 10.06. Waiver of Events of Default. The Issuer, with the consent of the
Trustee, may waive any Event of Default hereunder and its consequences. In case of any such
waiver, or in case any proceeding taken by the Issuer or the Trustee on account of any such
Event of Default shall be discontinued or abandoned or determined adversely to the Issuer or the
Trustee, then and in every such case the Issuer and the Lessee shall be restored to their former
position and rights hereunder, but no such waiver or rescission shall extend to or affect any
subsequent or other Event of Default or impair or exhaust any right, power, or remedy
consequent thereon.
[End of Article X]
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ARTICLE XI
OPTIONS IN FAVOR OF LESSEE; RENT PREPAYMENTS AND ABATEMENT
Section 11.01. General Options to Terminate Lease Term. The Lessee shall have,
and is hereby granted, the following options to terminate the Lease Term:
(a) at any time prior to full payment of the Bonds (or provision for
payment thereof having been made in accordance with the provisions of the
Indenture), the Lessee may terminate the Lease Term by (i) paying to the Trustee
an amount that, when added to the amount on deposit in the Bond Fund and the
Debt Service Reserve Fund, will be sufficient to pay, retire, and redeem all of the
Outstanding Bonds in accordance with the provisions of the Indenture (including,
without limiting the generality of the foregoing, principal, redemption premium,
interest to maturity or earliest applicable redemption date, as the case may be,
premium, if any, expenses of redemption, and Trustee’s and paying agents’ fees
and expenses), (ii) in the case of redemption, making arrangements satisfactory to
the Trustee for the giving of the required notice of redemption, (iii) paying to the
Issuer any and all sums then due to the Issuer under this Lease Agreement, and
(iv) otherwise complying with the provisions of Article X of the Indenture, and
(b) upon full payment of the Bonds (or provision for payment thereof
having been made in accordance with the provisions of the Indenture) and of any
and all sums then due to the Issuer and the Trustee under this Lease Agreement
prior to the end of the Lease Term, the Lessee may terminate the Lease Term by
giving the Issuer notice in writing of such termination, which shall become
effective 91 days after full payment of the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture).
Section 11.02. Option to Purchase Project. At any time within one hundred eighty
(180) days after the expiration or sooner termination of the Lease Term pursuant to Section 11.01
hereof, the Lessee shall also have, and is hereby granted, the option to purchase the Project for a
purchase price equal to the Buy-Out Option Price, which shall be paid directly to the Issuer for
its own account (and not into the Bond Fund) and any and all other sums then due to the Issuer
under this Lease Agreement. To exercise such option, the Lessee shall give written notice of
exercise to the Issuer. The purchase of the Project shall be closed within sixty (60) days from the
date of such notice.
Section 11.03. Redemption of Bonds. The Issuer, at the written request of the Lessee
at any time and if the Bonds are then callable or available for purchase, and if there are funds
available therefor, shall forthwith take all steps that may be necessary under the applicable
redemption or purchase provisions of the Indenture to effect redemption or purchase of all or part
of the then outstanding Bonds, as may be specified by the Lessee, on the earliest date on which
such redemption or purchase may be made under such applicable provisions.
Section 11.04. Prepayment of Rents. There is expressly reserved to the Lessee the
right, and the Lessee is authorized and permitted, at any time it may choose, to prepay all or any
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part of the Basic Rent and other amounts payable under Section 5.03 hereof, and the Issuer
agrees that the Trustee may accept such prepayments of Basic Rent and other amounts when the
same are tendered by the Lessee. All Basic Rent and other amounts so prepaid shall at the
written direction of the Lessee be credited toward the Basic Rent and other amounts specified in
Section 5.03 hereof, in the order of their due dates, or applied to the retirement of Bonds prior to
maturity (either by redemption or purchase) in accordance with the Indenture. The Lessee shall
also have the right to surrender Bonds acquired by it in any manner whatsoever to the Trustee for
cancellation, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid
and retired and shall be allocated as credits to Basic Rent as provided in the Indenture.
Section 11.05. No Obligation to Prepay Rents or Purchase Project. The Lessee shall
be under no obligation to prepay the rents payable hereunder or to purchase the Project except as
herein expressly required or provided.
Section 11.06. Option to Prepay Basic Rent and Redeem Series 2017 Bonds at Prior
Optional Redemption Dates. The Lessee shall also have the option to prepay Basic Rent
related to the Series 2017 Bonds and other amounts payable under this Lease Agreement in such
manner and amounts as will enable the Issuer to redeem the Series 2017 Bonds prior to maturity,
as provided in Section 304 of the Indenture. Series 2017 Bonds redeemed pursuant to this
Section shall be redeemed in accordance with the procedures set forth in Article III of the
Indenture. The Basic Rent and other amounts payable by the Lessee in the event of its exercise
of the option granted under this Section shall be (i), in the case of partial redemption, the amount
necessary to pay principal, all interest to accrue to the redemption date, the applicable
redemption premium, as provided in Section 304 of the Indenture, and any redemption expense,
and (ii) in the case of a total redemption, the amounts set forth in Article X of the Indenture and
the applicable redemption premium, as provided in Section 304 of the Indenture.
Section 11.07. Release of Certain Land. In addition to the rights granted by Section
11.08 hereof, the parties hereto reserve the right at any time and from time to time to amend this
Lease Agreement for the purpose of effecting the release and removal from this Lease
Agreement and the leasehold estate conveyed hereby of any part (or interest in such part) of the
Premises with respect to which the Issuer, on the request of the Lessee, proposes to convey fee
title to a railroad, public utility, or public body in order that railroad services, utility services, or
public services may be provided to the Project; provided, that if at the time any such amendment
is made any of the Bonds are Outstanding and unpaid, the Lessee shall deliver to the Trustee the
following:
(a) a copy of the amendment as executed,
(b) a resolution of the Governing Body (i) giving an adequate legal
description of that portion (together with the interest in such portion) of the
Premises to be released, (ii) stating the purpose for which the Issuer desires the
release, and (iii) approving such amendment to this Lease Agreement,
(c) a resolution of the governing body of the Lessee approving such
amendment and a certificate of the Lessee to the effect that the Lessee is not in
default under any of the provisions of this Lease Agreement and that neither the
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Building nor any other improvements are located on a portion of the Premises
with respect to which the release is to be granted, accompanied by a plat of survey
of the Premises certified by a registered surveyor of the State depicting (i) the
boundaries of the portion of the Premises with respect to which the release is to be
granted, (ii) all improvements located on the property surveyed and the relation of
the improvements by distances to the boundaries of the portion of such property
with respect to which the release is to be granted, and (iii) all easements and rights
of way with recording data and instruments establishing the same,
(d) a copy of the instrument conveying the title to a railroad, public
utility, or public body, and
(e) a certificate of the Consulting Architect, dated not more than sixty
(60) days prior to the date of the release and stating that, in the opinion of the
person signing such certificate, (i) the portion of the Premises so proposed to be
released is necessary or desirable in order to obtain railroad services, utility
services, or public services to benefit the Project and (ii) the release so proposed
to be made will not impair the usefulness of the Project as an approximately 221-
unit apartment community and will not materially impair the means of ingress
thereto and egress therefrom.
If such release relates to a part of the Premises on which transportation or utility facilities
are located, the Issuer shall retain an easement to use such transportation or utility facilities to the
extent necessary for the efficient operation of the Project as an approximately 221-unit apartment
community. Any money consideration received in connection with the release of any portion of
the Premises pursuant to this Section 11.07 shall be deposited in the Redemption Account of the
Bond Fund and used to redeem Bonds or to pay principal of the Bonds as the same becomes due.
No release or conveyance effected under the provisions of this Section shall entitle the
Lessee to any abatement or diminution of the rents payable under Section 5.03 hereof.
Section 11.08. Option to Purchase Unimproved Land. If no Event of Default under
this Lease Agreement shall have happened and then be continuing, the Lessee shall have, and is
hereby granted, the option to purchase any part of the Premises on which the Building is not
situated (although transportation or utility facilities may be located thereon), at any time and
from time to time, at and for a purchase price equal to the Fair Market Value thereof, provided
that the Lessee furnishes the Issuer with the following:
(a) a notice in writing containing (i) an adequate legal description of
that portion of the Premises with respect to which such option is to be exercised,
and (ii) a statement that the Lessee intends to exercise its option to purchase such
portion of the Premises on a date stated, which shall not be less than forty-five
(45) days nor more than one hundred twenty (120) days from the date of such
notice,
(b) a certificate of the Consulting Architect, dated not more than
ninety (90) days prior to the date of the purchase, stating that in the opinion of the
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person signing such certificate (i) the portion of the Premises with respect to
which the option is to be exercised is not needed for the operation of the Project
for the purposes hereinabove stated and (ii) the purchase will not impair the
usefulness of the Project as an approximately 221-unit apartment community and
will not materially impair the means of ingress thereto and egress therefrom,
(c) a certificate of an independent appraiser acceptable to the Issuer,
dated not more than ninety days prior to the date of the purchase, stating that
release from this Lease Agreement of that portion of the Premises with respect to
which the option is to be exercised will not materially impair the Fair Market
Value of the Project,
(d) a certificate of the Lessee to the effect that the Building is not
located on the portion of the Premises with respect to which the option is to be
exercised, accompanied by a plat of survey of the Premises certified by a
registered surveyor of the State, depicting (i) the boundaries of the portion of the
Premises with respect to which the option is to be exercised, (ii) all improvements
located on the property surveyed and the relation of the improvements by
distances to the boundaries of the portion of such property with respect to which
the option is to be exercised, and (iii) all easements and rights of way with
recording data and instruments establishing the same, and
(e) an amount of money equal to the purchase price computed as
provided in this Section.
The Issuer agrees that upon receipt of the notice, certificates, and money required in this
Section to be furnished to it by the Lessee, the Issuer shall promptly deliver such money to the
Trustee for deposit in the Redemption Account of the Bond Fund to be used to redeem Bonds or
purchase Bonds and shall execute a deed regarding such portion of the Premises with respect to
which the Lessee shall have exercised the option granted to it in this Section. In the event the
Lessee shall exercise the option granted to it under this Section, the Lessee shall not be entitled
to an abatement or diminution of the rents payable under Section 5.03 hereof, and if such option
relates to Premises on which transportation or utility facilities are located, the Issuer shall retain
an easement to use such transportation or utility facilities to the extent necessary for the efficient
operation of the Project.
Section 11.09. Granting of Easements. If no Event of Default under this Lease
Agreement shall then be continuing, the Issuer, at the request of the Lessee, may at any time or
times grant easements, licenses, rights of way (including the dedication of public highways), and
other rights or privileges in the nature of easements with respect to any property included in the
Project, or the Issuer, at the request of the Lessee, may release existing easements, licenses,
rights of way, and other rights or privileges with or without consideration, and the Issuer agrees
that it shall execute and deliver any instrument necessary or appropriate to confirm and grant or
release any such easement, license, right of way, or other right or privilege upon receipt of (i) a
copy of the instrument of grant or release, (ii) a written application signed by the Authorized
Lessee Representative requesting such instrument, and (iii) a certificate of the Consulting
Architect, dated not more than sixty (60) days prior to the date of such grant or release, stating
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that such grant or release will not impair the effective use or interfere with the operation of the
Project as an approximately 221-unit apartment community, will not impair the Fair Market
Value of the Project, and will not materially impair the means of ingress thereto and egress
therefrom. Any money consideration received in connection with the granting or release of an
easement pursuant to this Section 11.09 shall be deposited in the Redemption Account of the
Bond Fund and used to redeem Bonds or to pay principal of the Bonds as the same becomes due.
Any other consideration received shall be given to the Lessee. No grant or release effected under
the provisions of this Section shall entitle the Lessee to any abatement or diminution of the rents
payable under Section 5.03 hereof.
Section 11.10. Reference to Bonds Ineffective After Bonds Paid. Upon payment in
full of the Bonds (or provision for payment thereof having been made in accordance with
provisions of the Indenture) and all fees and charges of the Trustee, all references in this Lease
Agreement to the Bonds and the Trustee shall be ineffective, and neither the Trustee nor the
owners of any of the Bonds shall thereafter have any rights hereunder, saving and excepting
those that shall have theretofore vested.
Section 11.11. Relative Position of Options and the Indenture. The options
respectively granted to the Lessee in this Article shall be and remain prior and superior to the
Indenture.
Section 11.12. Lessee Entitled to Certain Rent Abatements if Bonds Paid Prior to
Maturity. Upon full payment of the Bonds (or provision for payment of the Bonds in
accordance with the Indenture), under circumstances not resulting in termination of the Lease
Term, and if the Lessee is not at the time otherwise in default hereunder, the Lessee shall be
entitled to use and occupy the Project, from such date to and including the end of the Lease
Term, with no obligation to make payments of Basic Rent or Reserve Rent specified in Section
5.03 hereof during that interval (but otherwise on the terms and conditions hereof).
Section 11.13. Conveyance on Exercise of Option to Purchase. At the closing of any
purchase pursuant to the exercise of any option to purchase granted herein, the Issuer shall upon
receipt of the purchase price deliver to the Lessee documents conveying to the Lessee good and
marketable title (of the same quality as received by the Issuer) to the property being purchased,
as such property then exists, subject to the following: (i) those Liens (if any) to which title to
such property was subject immediately following the delivery of the Series 2017 Bonds but
excluding the Bond Documents, (ii) those Liens created by, through, or under the Lessee or to
the creation or suffering of which the Lessee consented, (iii) those Liens resulting from the
failure of the Lessee to perform or observe any of the agreements on its part contained in the
Lessee Documents, and (iv) Permitted Encumbrances other than the Bond Documents.
Section 11.14. Public Purpose of Option to Purchase. The Issuer and the Lessee
acknowledge that the options to purchase the Project granted in this Article are a material
inducement to the Lessee to operate the Project on behalf of the Issuer and that in granting such
options the Issuer is considering the entire transaction as a whole, including the promotion of
eliminating and preventing the development or spread of pockets of blight within the urban
redevelopment area specified by the Urban Redevelopment Plan.
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[End of Article XI]
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ARTICLE XII
MISCELLANEOUS
Section 12.01. Notices. All notices, certificates, and other communications provided
for hereunder shall be in writing and sent (a) by telecopy or other electronic means if the sender
on the same day sends a confirming copy of such notice by a recognized overnight delivery
service (charges prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any
such notice must be sent to any party hereto at the following addresses or to such other address
as any party hereto shall have specified in writing to the other party:
If to the Issuer: Urban Redevelopment Agency of Augusta 535 Telfair Street, Room 800 Augusta, Georgia 30901 Attention: Chairman
If to the Lessee: CV Foundry Apartments, LLC 1718 Peachtree Street N.W. Suite 684, South Tower Atlanta, Georgia 30309 Attention: Dillon Baynes
If to the Consolidated Government: Augusta, Georgia 535 Telfair Street, Room 901__ Augusta, Georgia 30901 Attention: Administrator If to the Trustee: U.S. Bank National Association 1349 West Peachtree Street, N.W., Suite 1050 Mail Code: EX-GA-ATPT Atlanta, Georgia 30309 Attention: Global Corporate Trust Services
A duplicate copy of each notice, certificate, or other communication given hereunder shall also
be given to the Trustee. Any party named in this Section 12.01 may, by notice given to each of
the others, designate any additional or different addresses to which subsequent notices,
certificates, or other communications shall be sent. For purposes of this Section, “electronic
means” shall mean telecopy or facsimile transmission or other similar electronic means of
communication that produces evidence of transmission.
Section 12.02. Recording and Filing. (a) This Lease, the Security Deed, the
Assignment of Contract Documents, and the Indenture, or appropriate notices thereof, shall be
recorded in all offices as may at the time be provided by law as the proper place for recordation
thereof. The security interest of the Trustee created by the Indenture shall be perfected by the
filing of financing statements or instruments effective as financing statements, which fully
comply with the State Uniform Commercial Code or by the taking of possession of appropriate
collateral. The parties further agree that all necessary continuation statements shall be filed
within the time prescribed by the State Uniform Commercial Code and the appropriate parties
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shall maintain possession of appropriate collateral in order to continue the security interests
identified in this Section 12.02, to the end that the rights of the owners of the Bonds and the
Trustee in the Trust Estate shall be fully preserved as against third party creditors of, or
purchasers for value in good faith from, the Issuer.
(b) The Lessee agrees to execute and file or cause to be filed any and all financing
statements or amendments thereof or continuation statements necessary to perfect and continue
the perfection of the security interests granted in the Indenture. The Lessee shall pay all costs of
filing such instruments.
Section 12.03. Construction and Binding Effect. This Lease Agreement constitutes
the entire agreement of the parties and supersedes any prior agreements. This Lease Agreement
shall inure to the benefit of and shall be binding upon the Issuer, the Lessee, and their respective
successors and assigns subject, however, to the limitations contained in Sections 8.03 and 9.01
hereof.
Section 12.04. Severability. In the event any provision of this Lease Agreement shall
be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 12.05. Amounts Remaining in Funds. It is agreed by the parties hereto that
any amounts remaining in the Bond Fund, the Debt Service Reserve Fund, the Project Fund, or
other funds provided for herein upon expiration or sooner termination of the Lease Term, as
provided in this Lease Agreement, after payment in full of the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture), the fees, charges,
and expenses of the Trustee and paying agents in accordance with the Indenture, and all sums
due and owing to the Issuer, shall belong to and be paid to the Lessee by the Trustee as
overpayment of rents.
Section 12.06. Fees and Expenses Paid by the Lessee. The Lessee shall pay all fees
and expenses relating to this Lease Agreement, including but not limited to, the expense of
examination of title, premiums of owner’s title insurance in such amount and form as may be
satisfactory to the Issuer, costs of all supplemental examinations and certifications of title,
recording fee and tax, expenses of any present or future assignment or assignments of collateral
security, if any, required by the Trustee, and attorneys’ fees. In case the Trustee or the Issuer
pays or advances any money for fees, surveys, recording, recording tax, examination of title,
owner’s title insurance policies, preparation of documents, any expenses incurred in the
completion of this transaction, the payment of any insurance premiums, encumbrance, tax,
assessment, or other charge or lien upon the Project, or any other amounts necessary for the
payment of the cost of improvements, the same shall be advances payable in accordance with
Section 6.06 of this Lease Agreement. Notwithstanding the foregoing provisions of this Section
12.06, the Lessee, during any period in which no Event of Default has occurred that is
continuing, shall incur no obligation under this Section 12.06 unless it approves in writing the
incurrence of the fees or expenses.
Section 12.07. Amendments, Changes, and Modifications. Except in the instance of
an amendment pursuant to Section 8.07 or Article XI hereof, neither this Lease Agreement nor
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the Indenture may be amended, changed, modified, altered, or terminated, except as provided in
the Indenture and in each instance only with the prior written consent of the Trustee.
Section 12.08. Execution of Counterparts. This Lease Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument.
Section 12.09. Law Governing Construction of this Lease Agreement. This Lease
Agreement is prepared and entered into with the intention that the law of the State of Georgia,
exclusive of such state’s rules governing choice of law, shall govern its construction.
Section 12.10. Subordination to Indenture. This Lease Agreement and the rights and
privileges hereunder of the Lessee are specifically made subject and subordinate to the rights and
privileges of the Trustee and the owners of the Bonds appertaining thereto set forth in the
Indenture except as provided in Section 11.11 hereof.
Section 12.11. Quiet Enjoyment. The Issuer agrees that so long as the Lessee shall
fully and punctually pay all of the rents and other amounts provided to be paid hereunder by the
Lessee and shall fully and punctually perform all of its other covenants and agreements
hereunder, the Lessee shall peaceably and quietly have, hold, and enjoy the Project during the
Lease Term, and the Issuer warrants and covenants that it shall defend the Lessee in such
peaceable and quiet possession of the Project from claims arising by, through, or under the
Issuer.
Section 12.12. Time of Essence. Time is of the essence of this Lease Agreement.
Anywhere a day certain is stated for payment or for performance of any obligation, the day
certain so stated enters into and becomes a part of the consideration for this Lease Agreement.
Section 12.13. Estate for Years. This Lease Agreement shall be deemed and construed
to create an estate for years and not a usufruct.
Section 12.14. No Merger. There shall be no merger of this Lease Agreement or the
leasehold estate created hereby with the fee simple estate in the Project or any part thereof, by
reason of the fact that the same person or entity may acquire, own, or hold, directly or indirectly,
this Lease Agreement or the leasehold estate created hereby or any interest in this Lease
Agreement or such leasehold estate, and the fee simple estate in the Project or any interest in
such fee simple estate, and this Lease Agreement shall not be terminated except as expressly
provided herein.
Section 12.15. Covenants Run with Premises. The covenants, agreements, and
conditions herein contained shall run with the property and premises hereby leased and shall be
binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective
successors and assigns.
Section 12.16. Triple Net Lease. This Lease Agreement shall be deemed and
construed to be a “net, net, net lease,” and the Lessee shall pay absolutely net during the Lease
Term the rent and all other payments required hereunder, free of any deductions, without
abatement, diminution, or set-off other than those herein expressly provided.
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Section 12.17. Surrender of Project. Except as otherwise provided in this Lease
Agreement, at the expiration or sooner termination of the Lease Term, the Lessee agrees to
surrender possession of the Project peaceably and promptly to the Issuer in as good condition as
at the commencement of the Lease Term, ordinary wear, tear, and obsolescence only excepted.
Section 12.18. Tenancy at Sufferance. If the Lessee remains in possession of the
Project after expiration of the Lease Term, without any express written agreement by the Issuer,
the Lessee shall be and become a tenant at sufferance, and there shall be no renewal or extension
of this Lease Agreement by operation of law.
Section 12.19. Third Party Beneficiary. The Consolidated Government is hereby
declared to be and is a third party beneficiary of this Lease Agreement and shall be entitled to
enforce the performance and observance by the Issuer and the Lessee of their respective
agreements and covenants herein contained as fully and completely as if the Consolidated
Government was a party to this Lease Agreement.
Section 12.20. USA Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order
to help fight the funding of terrorism and money laundering, is required to obtain, verify, and
record information that identifies each person or legal entity that establishes a relationship or
opens an account with the Trustee. The parties to this Lease Agreement agree that they will
provide the Trustee with such information as it may reasonably request in order for the Trustee to
satisfy the requirements of the U.S.A. Patriot Act.
[End of Article XII]
-83-
35881161v4
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the Issuer has executed this Lease Agreement by causing its
name to be hereunto subscribed by its Chairman and by causing the official seal of the Issuer to
be impressed hereon and attested by its Secretary; and the Lessee has executed this Lease
Agreement by causing its name to be hereunto subscribed by its Manager; all being done as of
the day and year first above written but actually executed by the Issuer on __________, 2017 and
by the Lessee on __________, 2017.
URBAN REDEVELOPMENT AGENCY OF AUGUSTA
By: Chairman
(SEAL)
Attest:
Secretary
As to the Issuer, signed, sealed,
and delivered this _____ day of
_______ 2017, in the presence of:
Unofficial Witness
Notary Public
My commission expires:
(NOTARIAL SEAL)
[Signatures and Seals Continued on Following Page]
-84-
35881161v4
[Signatures and Seals Continued From Preceding Page]
CV FOUNDRY APARTMENTS, LLC
BY:
By: Manager
As to the Lessee, signed, sealed, and delivered this _____ day of _______ 2017, in the presence of:
Unofficial Witness
Notary Public
My commission expires:
(NOTARIAL SEAL)
A-1
35881161v4
EXHIBIT A
DESCRIPTION OF PREMISES
[Attached]
B-1
35881161v4
EXHIBIT B
DESCRIPTION OF EQUIPMENT
All equipment purchased with proceeds of the Bonds.
C-1
35881161v4
EXHIBIT C
PROJECT FUND REQUISITION
[Attached]
C-2
35881161v4
CERTIFICATE AND REQUISITION FOR PAYMENT
Date: ________________
Draw Request #______
CV Foundry Apartments, LLC (the “Lessee”) and the Urban Redevelopment Agency of
Augusta (the “Issuer”) hereby jointly request, pursuant to the Lease Agreement (the “Lease
Agreement”), dated as ________________, by and between the Lessee and the Issuer, that the
following amounts be disbursed to the following parties for the account of them from the Project
Fund created under the Trust Indenture and Security Agreement, dated as of
__________________, between the Issuer and U.S. Bank National Association (the “Trustee”):
Name of Payee Nature of Disbursement Amount
The Lessee does hereby certify to the Trustee that, as of the date hereof, (1) the
representations and warranties of the Lessee in the Lease Agreement are hereby ratified and
confirmed and (2) the above listed items are “non-construction costs and fees” (within the
meaning of Section 4.04 of the Lease Agreement) and are properly included within the definition
“Costs of the Project” included within the Lease Agreement.
CV FOUNDRY APARTMENTS, LLC
By: Authorized Lessee Representative URBAN REDEVELOPMENT AGENCY OF AUGUSTA
By: Authorized Issuer Representative
D-1
35881161v4
EXHIBIT D
ISSUANCE COST FUND REQUISITION
[Attached]
D-2
35881161v4
CERTIFICATE AND REQUISITION FOR PAYMENT
Date: ____________________
Draw Request #_______
CV Foundry Apartments, LLC (the “Lessee”) and the Urban Redevelopment Agency of
Augusta (the “Issuer”) hereby jointly request, pursuant to the Lease Agreement (the “Lease
Agreement”), dated as of ___________________, by and between the Lessee and the Issuer, that
the following amounts be disbursed to the following parties for the account of them from the
Issuance Cost Fund created under the Trust Indenture and Security Agreement, dated as of
____________________, between the Issuer and U.S. Bank National Association (the
“Trustee”):
Name of Payee Nature of Disbursement Amount
The Lessee does hereby certify to the Trustee that, as of the date hereof, (1) the
representations and warranties of the Lessee in the Lease Agreement are hereby ratified and
confirmed and (2) the above-listed items are properly included within the definition “Issuance
Costs” included within the Lease Agreement.
CV FOUNDRY APARTMENTS, LLC
By: Authorized Lessee Representative URBAN REDEVELOPMENT AGENCY OF AUGUSTA
By: Authorized Issuer Representative
E-1
35881161v4
EXHIBIT E
REPAIR AND REPLACEMENT FUND REQUISITION
[Attached]
D-2
35881161v4
CERTIFICATE AND REQUISITION FOR PAYMENT
Date: ____________________
Draw Request #_______
CV Foundry Apartments, LLC (the “Lessee”) hereby requests, pursuant to the Lease
Agreement (the “Lease Agreement”), dated as of ______________, by and between the Lessee
and the Issuer, that the following amounts be disbursed to the following parties for the account of
them from the Repair and Replacement Fund created under the Trust Indenture and Security
Agreement, dated as of __________________, between the Issuer and U.S. Bank National
Association (the “Trustee”):
Name of Payee Nature of Disbursement Amount
The Lessee does hereby certify to the Trustee that, as of the date hereof, (1) the
representations and warranties of the Lessee in the Lease Agreement are hereby ratified and
confirmed and (2) the above-listed items are capital repair costs related to the Project that the
Lessee is obligated to pay pursuant to Section 6.01 of the Lease Agreement and that they have
not previously been submitted to the Trustee for payment pursuant to the Lease Agreement.
CV FOUNDRY APARTMENTS, LLC
By: Authorized Lessee Representative
1718 Peachtree Street NW | Suite 684 | Atlanta | Georgia | 30309
Memorandum
Date: October 2, 2017
To: Mr. Hawthorne Welcher, Director, Augusta
Department of Housing & Development
From: Jakob von Trapp, Partner, Columbia Ventures, LLC
Re: Foundry Place Project
The purpose of this memo is to formally memorialize our discussions
over the last several weeks regarding the Foundry Place project. It is
our understanding that these modifications address many of the
concerns of several Commissioners who were not in support of the
project during the Commission hearing on July 18, 2017. It is our
understanding and hope that the following deal modifications will allow
for the project to move forward as originally contemplated. The salient
modifications are as follows:
1. Columbia Ventures, LLC (“CV”) will manage the solicitation and
procurement of a qualified General Contractor through an open
and public process. CV will have exclusive control over the
process but commits to conducting the solicitation in a manner
that is generally consistent with Georgia public bid law as defined
by Georgia statute 36-91 et. seq.
2. CV commits to spending 15% of the total hard costs of the project
within the Augusta/Richmond County Metropolitan Statistical
Area (MSA) as defined by the Census either via contracting with
firms that are domiciled within the MSA or by purchasing
materials from businesses that are domiciled within the MSA. This
includes the Georgia Counties of Richmond, Columbia, Burke and
McDuffie and the South Carolina Counties of Aiken and Edgefield.
3. CV agrees to modify the definition of Stabilization (which triggers
the recourse burn off provision) to be 12 consecutive months of
operating above 90% leased and a 1.20x Debt Coverage Ratio.
4. CV agrees to bring equity investment to the project in the amount
of 20% of the total development cost. CV expects that the URA
will float a bond on behalf of the project to make up the other
80% of the total development cost. To offset the financial
1718 Peachtree Street NW | Suite 684 | Atlanta | Georgia | 30309
impacts of this modification we request that the URA make best
efforts to prosecute a delayed issuance approach to the bond sale
or similar to minimize the negative interest rate arbitrage during
the construction period.
5. CV agrees to dispose of the asset or refinance the debt on or
before seven years after the issuance of the bond provided that
the City/URA may allow the bond to remain outstanding in its
sole discretion.
We appreciate a formal response to this memo demonstrating
concurrence with the modifications as well as a commitment to move
forward with the project following a vote in favor by a majority of the
Commissioners. We look forward to a successful project.
HOUSING & COMMUNITY DEVELOPMENT DEPARTMENT
Hawthorne Welcher, Jr. Shawn Edwards
Director Deputy Director
Augusta Housing & Community Development Department
925 Laney-Walker Boulevard, 3rd Floor - Augusta, Georgia 30901
(706) 821-1797 – Fax (706) 821-1784 – TDD (706) 821-1783
www.augustaga.gov
FOUNDRY PROJECT FACT SHEET (updated)
Project Description: Housing Project of 221 Units
Average size of all units is 996 sq. ft. with some units 1469 sq. ft. (typically 1/3 larger than nearby
projects): 1 Bedroom: 77 units, 2 Bedroom: 112 units, 3 Bedroom: 32 units
Target Renters: Medical Professionals, Medical and Graduate Students, Interns, AU Professors, Families
returning to the revitalized neighborhood, Community members
Direct Investment of approximately $32.5mm in area – three times the current LW/B Bond Investment
What is the Benefit to Augusta?
Continues revitalization of historically depressed area
Creates construction jobs, local spending, permanent jobs, construction materials sales tax (15% min.
purchased locally)
Removes blight and advances [or continues] a long-term redevelopment plan
Improves streets and traffic follow while enhancing the pedestrian experience
Cleans up contaminated property and puts it into a positive, higher tax generating use
Increases average household income (HHI) significantly thereby warranting new retail businesses
Increases the Tax Base: New Taxes -- $10M for City of Augusta/$12M for School System (20 years)
Catalyst for Additional Private Investment
Who is Columbia Ventures?
Minority founded regional developer with 8,000+ units under management
Been in business for 26 years and never defaulted on a project or loan/bond payment
Developed and owns many successful projects across the SE including in Atlanta, Columbus & Athens
What is the Financial Structure?
Columbia Ventures pays 100% of bond and interest costs through lease payments
Columbia Ventures is investing 20% of the total development cost (approximately $6,500,000) in addition
to making all debt payments
All of Columbia Ventures investment must go into the project before bond funds are used
A minimum of 15% of all construction costs will be spent via contracts or materials in the Augusta MSA
A competitive bid process will be used to select a qualified general contractor
Columbia Ventures pays Augusta for the land when the project is sold
No federal money is in this project
Columbia Ventures pays property taxes beginning year 1, and by year 10 pays $400,000/year
Augusta’s involvement: backing of a maximum of $27 million of “economic development” bonds (100%
of bonds paid back by Developer).
Project to be sold or refinanced within 7 years at which time all bonds are paid off and Augusta has no
future liability
How is Augusta Protected from Risk?
Selected through a procurement process, Columbia Ventures is one of the strongest multi-family
developers in Georgia
Worked with the EPD to protect the city against land contamination risks
Owners of company will personally guaranty the construction and rents until 12 months after stabilization
Performance & Payment bond will be required to ensure construction is completed and contractors are paid
Established a cash reserve to pay bonds if lease payments are not met
Trustee will control how rents are used in the event of poor performance by Columbia Ventures
Project to be sold or refinanced within seven years
Lena Bonner
To:
Subject:
Lena Bonner
RE: Foundry Place
From: Hawthorne Welcher
Sent: Thursday, Novemb er 02,20!7 g:25 AM
To: Lena Bonner <lbonner@augustaga.gov>
cc: Natasha L. McFa rrey <nmcfarley@augustaga.gov>; commissioner williamAllen Jackson <Janice.Jackson@augustaga.gov>
Subject: Foundry place
Ms. Bonner, Good Morning.
Fennoy <Fennoy@a ugustaga.gov>; Janice
I;:rfffl+I;illT#'-ov's request, could vou please place this agenda item on the 11/7 commission Meeting
Hawthorne E. Welcher, Jr., MSM, B.A., HDFP, CHC.,Director
City of Auguslo/Richmond Couniy
Housing & community Developmenl Deporlmenl | 925 Loney wolker Blvd,2^d Floor I Augusto, GA 3og0lxnwerneroouousro ra?06) ait-,gt I 8(:706) azt-tibti eifip'll***.ougusrogo.gov
The mission of the Augusta-Richmond County Housing and Community Development Department.is to greate po:i!v: change by promoting self-suficiency throughpdrtnership in Economic Development, fuarity Hoising, and Neighboriiod Rein,estment.
ff "",*Aususra
@ **"nwau*u*ta
Please consider the environment before printing this email.
Jtr
This e-mail contains confidentlal information and is intended only for lhe indrvidual named. lf you are nor the named addressee, you shourd not disseminate,distribute or copy this e-mail' Please notify the senaerlmmeoiat"ty ly "-ruit ir v* t'rr" received rhis e-mail oy ,irrrx" and delete this e-mail from your sysrem.The city of Augusta accepls no liability fo; the "o,r"nr oi inir "-riil o, ror tne clnsequences of any acrions ta[en on the basis of rhe information provided, unlessthal information is subsequenlly confrrmed in wriring. Any'views oropinions pr"i"niJin this e-mai "r" r;r"il;;; of the aulhorand do not necessariry represenllhoseofthecityofAugusta E-mail transmissionsJ"nnJtbeguaranieedro6""""ri"orerror-freeasinformationcourdbeintercepred,corrupred,rost,destroyed,arrive late or incomplete' or contain viruses The ""ndeither"Lru ao". noi "*"pt iiriiity ro.. "ny errors or o;i;.;; in the content of this message which arise asaresultofthee.mailtranSmiSSion.l{verificationisrequired,please,"q,esia;;IJ;;;;VerSion.
AED:'104 1
@sa-hcd
@ga=_hcd
Commission Meeting Agenda
11/7/2017 2:00 PM
Fire Department Drug Overdose
Department:
Department:
Caption:Report from the Augusta Fire Department relative to the
department's First Responders process/procedure to
address/treatment of drug overdoses. (Requested by
Commissioner Bill Fennoy)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Commission Meeting Agenda
11/7/2017 2:00 PM
Board of Health Appointment
Department:
Department:
Caption:Approve Commission Consensus Appointments to the Richmond
County Board of Health. (Requested by Commissioner Sammie
Sias)
1. Dr. Cheryl Newman to fill unexpired term of Ms. LeValle-
Evans;
2. Ms. Merian Robinson. (Stoney Medical, Dental and
Pharmaceutical Society)
3. Ms Patricia Lynch-Hayes. (10th District of GA Nurses
Association) Vacant
4. Mr. W. Stewart Flanagin, At-large member
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo
Lena Bonner
From:
Sent:
To:
Subject:
Commissioner Sammie Sias
Tuesday, October 24,2017 3:04 PM
Lena Bonner
Re: Board of Health Consensus Appointments
Thanking you again Ms. Madam !l
Sammie L. Sias
Commissioner,
Augusta Richmond County
"F,#Jf#,.r,' ,'"t; r?sf *r*T #pfi*r"
From: Lena Bonner
Sent: Tuesday, October 24,2017 1:57 PM
To: Commissioner Andrew Jefferson; Commissioner Ben Hasan; Commissioner Dennis Williams; Commissioner Grady
Smith; Commissioner Marion Williams; Commissioner Mary Davis; Commissioner Sammie Sias; Commissioner Sean
Frantom; Commissioner Wayne Guilfoyle; Commissioner Wayne Guilfoyle; Commissioner William Fennoy
Subject: FW: Board of Health Consensus Appointments
Good afternoon Mayor Pro Tem & Commissioner,
Please see communication below from Commissioner Sias regarding Commission Consensus
Appointments to the Richmond County Board of Health.
Lena J. Bonner
Clerk of Commission
Office of the Clerk of Commission
Suite z2o Municipal Building
535 Telfair Street
Augusta, Georgia 3o9o1
Tel: 7c6-827-1820
Fax: 7o6-8zr-rB3B
From: Commissioner Sammie Sias
Sent: Tuesday, October 24,2017 1:48 PM
To: Lena Bonner <lbonner@augustaga.gov>
Subject: Board of Health Consensus Appointments
Good Afternoon Ms Bonner,
Please add th is agenda item to the 7 Nove mber 2OL7 Commission Agenda. I am also requesting that you
forward the below information to each member of the Commission.
Thanking you in advance for your attention to this matter.
Commissioner Sias
Commissioners,
I am recommending we make the following appointments to the Richmond County Board of Health. These
are consensus appointments and I welcome anyone else to bring forth individuals that that may want
considered. This will appear on the 7 November 2Ot7 commission agenda. The agenda presentation date is
flexible.
1. Or iheryl Nernrrnan. {Member-at- Large} To complete the term of deceased member, Ms LeValle-
Evans. i .,",'r r.\Ii:r r,:xtrllii'{l li} ffie*cnri:er }S}"8
l-al*,rnt Sank fornt on file.
2. Ms. Merian Robinson. {Stoney Medical, Dental and Pharmaceutical Society) Reappoint to the present
terr:r bcing served as a carry over: J" "$mmuary 2S1? to 3I" Secember 1020
T,:ient Bank form on file.
3. Ms Patricia Lynch-Hayes. (10th District of GA Nurses Association) Vacant To appoint for the term: 1
J;x;ir.,.rf r ::i.; i.,t ts ;']li Secmrxi:*r *$tS
f;;l*nt Banl< form attached.
4. Mr" W. Stewart Flanagin (Member-at-Large) Reappoint to the present term being served as a carry
over: .i- :.!ftriaifT.i{J,i} tr: S3" Seeery"rher 2S}S
1;;l*lnt Bar,rk ftrm on file.
Thanking each of you for your attention to this multi appointment request.
Sammie L. Sias
Commissioner,
Augusta Richmond County
"S'{:., l'iu r.' r,' , I r:' 'lr i. i; t : i-i"$trf {}S "
TALENT BANK INFORMATION QUESTIONNAIRE
TO BE COMPLETED BY PERSONS DESIRING TO VOLUNTEER THEIR SERVICES ON THE RICHMOND COUNTY
BOARD OF HEATH AUTHORITY, BOARD OR COMMISSION FOR AUGUSTA, GEORGIA
NOTE: ANY INFORMATION ENTERED ON THIS QUESTIONNAIRE WOULD BECOME PUBLIC INFORMATION UPON
YOUR SUBMISSION/APPOINTMENT.
************************************************************************************************************
EMAIL ADDRESS: plynchhayes@gmail.com
DATE: April 28, 2017
1. NAME: Patricia Lynch-Hayes
HOME PHONE: 706-733-8303 BUS. PHONE: N/A --------------------
2. HOME ADDRESS: 2532 Commons Ttrace Richmond GA 30909
STREET COUNTY STATE ZIP
3. DATE OF BIRTH: 12/23/44 SEX: MALE FEMALE X
4. REGISTERED VOTER: YES X NO
5. VOTING DISTRICT 7
6. MARITAL STATUS: SINGLE MARRIED SEPARATED
ENGAGED DIVORCED WIDOWED X
7. EDUCATION: HIGH SCHOOL Roanoke Catholic High, Roanoke, VA
COLLEGE Spalding University, Louisville, KY; Augusta University, Augusta, GA
8. RELATIVES WORKING FOR THE COUNTY: No
9. OCCUPATION: Nurse Practitioner (retired)
10. RACE: WHITE X__ AFRICAN-AMERICAN ASIAN AMERICAN
SPANISH SURNAMED AMERICAN INDIAN OTHER (specify)
11. LIST BOARDS YOU PRESENTLY SERVE ON:
1. None currently. Previously on Catholic Social Services,
2. Coordinated Health Services,
3. Unitarian Universalist Church.
12. LIST ANY AREA IN WHICH YOU HAVE A PARTICULAR INTEREST OR EXPERTISE.
Health care for the uninsured or underinsured.
Rev. 6-2016
COMPOSITION OF RICHMOND COUNTY BOARD OF HEALTH 2017
ACT OF GENERAL ASSEMBLY OF GEORGIA
GEORGIA LAWS 1955 (pp. 3192-3206)
BOARD MEMBERS CURRENT
BEGINS TERM
ENDS
NEXT
TERM
1. Member from the Augusta-Richmond County Commission-Council, appointed by such
council. (One-year term) Current member: Sammie Sias HM 706-564-9436
Address: 3839 Crest Drive FAX 706-821-1838
Hephzibah, GA 30815
Email: Ssias@augustaga.gov Appointed to Board 1/29/2015 (expires 12/31/2016)
01/01/2017
12/31/2017
01/01/2018
to
12/31/2018
2. President of the Richmond County Board of Education or his/her designee.
(One-year term)
Current member: Jack Padgett, Jr. WK
Address: 3533 Richmond Hill Road HM 706/798-2273
Augusta, GA 30906 (Reappointed 1/2015 for 2 yrs - expires 12/31/2017)
Email: jlpadgettjr2000@yahoo.com (Appointed to Board 2/10/98)
01/01/2016
12/31/2017
01/01/2018
to
12/31/2018
3. Physician appointed by the Augusta-Richmond County Commission-Council from a
list of three nominated by the Richmond County Medical Society. (Four-year term)
1st term: 1/1/2010-12/31/2013
Current member: Adair Blackwood, M.D. Cell 706-951-9590
Address: 1439 Anthony Road HM 706-737-8105
Augusta, GA 30904 Currently in 2nd Term
Email: adair.r.blackwood@gmail.com
Robert.blackwood@va.gov (Appointed10/20/2009) reappt 12/10/2013
1/1/2014
12/31/2017
01-01-2018
to
12/31/2021
3rd term
4. Physician appointed by the Augusta-Richmond County Commission-Council
- from a list of three nominated by the Stoney Medical, Dental, & Pharmaceutical
Society. (Four-year term) Current member: Merian Robinson HM 706/737-3470
Address 1306 Jamaica Court HM 706/284-6409
Augusta, GA 30909
Email: merian.robinson@yahoo.com
Appointed to Board 4/21/2015 to complete Dr. Lightfoot’s term)
01/1/2013
12/31/2016
1/1/2017
to
12/31/2020
1st Term
5. Member appointed by the Augusta-Richmond County Commission-Council from a
list of three nominated by the Richmond County Board of Health. (Four-year term) Currently in 2nd Term re-appointed 4/29/2015
Current member: Deborah H. Presnell CELL 706-394-8472
Address: 324 Broad Street HM 706-849-1058
Augusta, GA 30901 completed Christine Crawford’s term
Email: deb.presnell@gmail.com (Appointed 1/19/2010)
01/01/2015
12/31/2018
01/01/2019
to
12/31/22
3rd Term
6. Nurse appointed by the Augusta-Richmond County Commission-Council from a
list of three nominated by the Tenth District of the Georgia Nurses Association.
(Four-year term) Current member: VACANT CELL 706/
Address: New member to complete Cathy Green’s Term) Cathy Green reappointed 10/26/2012 (3rd term) Email:
01/01/2013
12/31/2016
01/01/2017
to
12/31/2020
1st term
7. Member-at-large appointed by the Augusta-Richmond County Commission-Council.
(Four-year term) Current member: Jamie DeStefano, DMD, PhD WK 706-721-2442
Address: 7 Eagle Pointe Drive HM 706-667-6778
Augusta, GA 30909 Currently in 1st Term
Email: jdestefa@augusta.edu (Appointed 12/16/2014)
01/01/2014
12/31/2017
01/01/2018
To
12/31/21
2nd term
8. Member-at-large appointed by the Augusta-Richmond County Commission-Council.
(Four-year term)
** Current member: W. Stewart Flanagin WK 706-733-3621
Address: 1117 Glenn Avenue HM 706/738-0917
Augusta, GA 30904 Currently in 2nd Term
Email: hilldrug@aol.com (Appointed 3-17-2009)(reappointed 1/2/2013)
01/01/2013
12/31/2016
01/01/2017
to
12/31/2020
3rd term
9. Member-at-large appointed by the Augusta-Richmond County Commission-Council.
(Four-year term)
(completed John Bell’s term)
Current member: Shirley LeValle–Evans
Address: 420 Wicklow Lane HM 706/737-4889
Augusta, GA 30909 (Currently in 2nd Term reappointed 4/21/2015)
Email: shirleyevans1950@gmail.com (Appointed 5/6/2008)
01/01/2015
12/31/2018
01/01/2019
to
12/31/2022
3rd term
10. Member-at-large appointed by the Augusta-Richmond County Commission-Council.
(Four-year term)
* Current member: Kenneth Echols CELL 706/495-0957
Address: 2924 Foxhall Circle HM 706-868-8680
Augusta, GA 30907 (Currently in 1st Term)
Email: kjechols48@gmail.com (Appointed 12-3-2013)
01/01/2014
12/31/2017
01/01/2018
to
12/31/2021 2nd term
11. Member-at-large appointed by the Augusta-Richmond County Commission-Council.
(Four-year term) (Completed Harvey Johnson’s term)
Current member: Rosa Clemons, RN, MSN, CNAA HM 706-796-8446
Address: 2049 Rosier Road WK
Augusta, GA 30906 (Currently in 2nd Term reappointed 4-21-2015)
Email: rosa-jc60@comcast.net (Appointed 2/19/08)
01/01/2015
12/31/2018
01/01/2019
to
12/31/2022
3rd term
Commissioner of Health appointed by the Richmond County Board of Health.
(Four-year term)
Current: D. Stephen Goggans, MD, MPH WK 706/667-4250
Address: 1916 North Leg Road
Augusta, GA 30909 1st Term
Email: Stephen.goggans@dph.ga.gov
01/01/15
12/31/2018
01/01/2019
To
12/31/2022
2nd term
* INDICATES CHAIRPERSON - SERVES A FOUR-YEAR TERM (Term:1/14/2014-12/31/2017 appointed 11-10-2015 complete RClemons’ term) - EXPIRES 12/31/2017
**INDICATES VICE-CHAIRMAN - SERVES A FOUR-YEAR TERM (Term: 1/14/2014-12/31/2017 appointed 3-11-2014) - EXPIRES 12/31/2017 Rev. 1-10-2017
TALENT BANK INFORMATION QUESTIONNAIRE
TO BE COMPLETED BY PERSONS DESIRING TO VOLUNTEER THEIR SERVICES ON THE RICHMOND COUNTY BOARD OF HEATH
AUTHORITY, BOARD OR COMMISSION FOR AUGUSTA, GEORGIA
NOTE: ANY INFORMATION ENTERED ON THIS QUESTIONNAIRE WOULD BECOME PUBLIC INFORMATION UPON YOUR
SUBMISSION/APPOINTMENT.
************************************************************************************************************
EMAIL ADDRESS: cnewman@augusta.edu
DATE: July 3, 2017
1. NAME: Cheryl Newman - Whitlow MD
HOME PHONE: 706-833-9713 (cell) /706-736-1562 (home) BUS. PHONE: 706-721-6688`
2. HOME ADDRESS: 3411 Wheeler Road Richmond Ga 30909
STREET COUNTY STATE ZIP
3. DATE OF BIRTH: 9/26/52 SEX: MALE FEMALE XX
4. REGISTERED VOTER: YES XX NO
5. VOTING DISTRICT: US Congressional District 012 Ga Senate District 023 Ga House District 123
6. MARITAL STATUS: SINGLE MARRIED xx SEPARATED
ENGAGED DIVORCED
7. EDUCATION: HIGH SCHOOL Oakton High School – Fairfax County Va
COLLEGE Undergrad: Wake Forest University/Medical School: MCG
8. RELATIVES WORKING FOR THE COUNTY: none
9. OCCUPATION: Physician
10. RACE: WHITE XX AFRICAN-AMERICAN ASIAN AMERICAN
SPANISH SURNAMED AMERICAN INDIAN OTHER (specify)
11. LIST BOARDS YOU PRESENTLY SERVE ON:
1. I serve on several committees at MCG but I am on no Boards at the current time.
2.
3.
12. LIST ANY AREA IN WHICH YOU HAVE A PARTICULAR INTEREST OR EXPERTISE.
Most of my outpatient clinical work is with HIV/AIDS, Hepatitis C and STD’s. I am the Medical Director of the MCG HIV Clinic,
Coordinator of the MCG HIV/HCV clinic, Coordinator of the MCG HIV Pre-exposure prophylaxis Clinic and the Primary
Provider of HCV therapy for HIV/HCV co-infected inmates for the Ga Department of Corrections. Screening and prevention
of communicable diseases is an area of great interest to me. I have provided educational forums for health professionals
and community groups pertaining to these topics on many occasions over the years. I would consider it a privilege to work
with the RCHD as a Board member on these and the many other health issues affecting our community.
Rev. 6-2016
TALENT BANK INFORMATION QUESTIONNAIRE
TO BE COMPLETED BY PERSONS DESIRING TO VOLUNTEER THEIR SERVICES ON THE RICHMOND COUNTY
BOARD OF HEATH AUTHORITY, BOARD OR COMMISSION FOR AUGUSTA, GEORGIA
NOTE: ANY INFORMATION ENTERED ON THIS QUESTIONNAIRE WOULD BECOME PUBLIC INFORMATION UPON
YOUR SUBMISSION/APPOINTMENT.
******************************************************************************************************************************************
EMAIL ADDRESS: merian.robinson@yahoo.com
DATE: March 10, 2017
1. NAME: Merian R Robinson
HOME PHONE: 706-284-6409 BUS. PHONE: n/a
2. HOME ADDRESS: 1306 Jamaica Court Richmond Georgia 30909
STREET COUNTY STATE ZIP
3. DATE OF BIRTH: December 9, 1947 SEX: MALE FEMALE X
4. REGISTERED VOTER: YES X NO
5. VOTING DISTRICT 10th
6. MARITAL STATUS: SINGLE MARRIED SEPARATED
ENGAGED DIVORCED X
7. EDUCATION: HIGH SCHOOL Lucy C Laney High School
COLLEGE Morris Brown College Florida A and M University
8. RELATIVES WORKING FOR THE COUNTY: none
9. OCCUPATION: Registered Pharmacist
10. RACE: WHITE AFRICAN-AMERICAN X ASIAN AMERICAN
SPANISH SURNAMED AMERICAN INDIAN OTHER (specify)
11. LIST BOARDS YOU PRESENTLY SERVE ON:
1. Richmond County Board of Health
12. LIST ANY AREA IN WHICH YOU HAVE A PARTICULAR INTEREST OR EXPERTISE.
1. All areas having to do with drugs and their destruction.
2. Public relations representative for the health department in meeting the needs of children (health related)
in low income neighborhoods
3. Working with the Emergency Management team
Rev. 6-2016
Commission Meeting Agenda
11/7/2017 2:00 PM
E911 Advisory Board Member Addition
Department:911
Department:911
Caption:Motion to approve adding the position of Warden of the
Richmond County Correctional Institution (RCCI) as a member
of the E911 Advisory Board.
Background:See attached meeting agenda from March 13, 2000.
Analysis:As a public safety professional, the Warden of RCCI will provide
additional assistance regarding suggestions involving operating
procedures and other such policy and administrative devices
where necessary and appropriate.
Financial Impact:N/A
Alternatives:Deny appointment of RCCI Warden.
Recommendation:Approve recommendation to appoint RCCI Warden to E911
Advisory Board.
Funds are Available
in the Following
Accounts:
N/A
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Cover Memo
TO C/K at G^rv..adr t'on 3lt I oo
TO:
EROM:
DATE:
SUBJECT:
CAPTION:
designee:
PUBLIC SAFETY COM}IITTEE/COMMISSION
CHARLES''RANDY'' OLIVER ADMIMSTRATOR
JIM WALL
March 13,2000 (agenda)
March 7,2000 (preparation date)
E-911 Advisory Board.
AGENDA rrEM ll ?)
ruqrsraafiHoND couNrYmmffif,ffiEffiEE
Motion to approve E-911 Advisory Board to consist of the following (or their
Sheriff
County Administrator
Assistant County Administrator
Director of Emergency Management
Emie Doss, as representative of Rural Metro Ambulance Service
Chief of the Augusta-Richmond County Fire Department
Police Chief. City of Blythe
Police Chiel City of Hephzibah
Marshal of Civil and Magistrate Court
Ex-officio (non-voting) members - County Attomey, and representative from
Risk Management Department.
BACKGROUND:
O.C.G.A. $ 46-5-136 provides for the creation of a Advisory Boiud "consisting of
the_sherif[, representatives from other public safety agencies which respond to emergen.y *tlt
under the system, and other individuals knowledgeable of emergerr"y '9i1' systems and the
emergency needs of the citizens of the local government, provided that such Advisory Board
shall not exceed 13 members."
Under this statute, the Advisory Board is charged with assisting the local
government in: "(l) reviewing and analyzing the progress by public safety agencies indeveloping'911'system requirements; (2) recommending steps of action to affeci the necessary
coordination, regulation, development of a'911'system; (3) identifying mutual aid agreements
necessary to affect the'911'system; (4) assisting in the promulgation of the necessary rules.
regulations, operating procedures. schedules, and other such policy and administrative devices as
shall be deemed necessary and appropriate; and (5) providing other services as may be deemed
appropriate by the local government."
On May 2, 1995, the Richmond County Board of Commissioners created the 911
Advisory Committee to consist of: (1) the administrator; (2) the assistant county administrator;
(3) the director of Emergency Management; (4) a representative for ambulance services; (5) a
representative from the Sheriffs Departrnent; (6) Chief of the Richmond County Fire
Departrnent; (7) Chief of the City of Augusta Police Departrnent; (8) Chief of the City of
Augusta Fiie Department; (9) the Director of Central Services; (10) a representative from the
City of Blythe; (1 1) the Police Chief from the City of Hephzibatr; and (l 1) ex-offrcio members,
county afiorney, comptroller and representative from Risk Management. At the last Public
Safety Committee meeting, a request was made to come forward with a recommendation for new
members to the 911 Committee.
ANALYSIS:It is recommended that the E-911 Advisory Committee consisting of the
following, or their designees, to-wit: (1) Sheritr; (2) County Administrator; (3) the Assistant
County Administrator; (a) the Director of Emergency Management; (5) Ernie Doss, as
representative of Rural Metro Ambulance Service; (6) Chief of the Augusta-Richmond County
Fire Departrnent; (7) Police Chief, City of Blythe; (8) Police Chief, City of Hephzibah; (9)
Marshal of Civil and Magistrate Court; and ex-officio members - County Attomey, and
representative from Risk Management Department
FINANCIAL IMPACT:
-0-
ALTERNATIYES:L Appoint individuals by name, rather than by position.
2. Alter composition of committee from that recommended.
RECOMMENDATION:
Approve motion.
i
DEPARTMENT . i i
DIRECTOR: , *^ LL'Aq
ADMINISTRATORIC!^'a'-I'6 E - a9;^7E;
COMMITTEE ACTION:
FUNDS ARE AVAILABLE IN THE
FOLLOWING ACCOUNTS:
FINANCE:
Commission Meeting Agenda
11/7/2017 2:00 PM
Affidavit
Department:
Department:
Caption:Motion to approve execution by the Mayor of the affidavit of
compliance with Georgia's Open Meeting Act.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Cover Memo