HomeMy WebLinkAboutAUTHORIZING RESOLUTION WITH INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT RELATIVE TO 511 REYNOLDS STREET_ DEPOT PROJECT- APPROVED AUGUST 14, 2018 •
AUTHORIZING RESOLUTION
WHEREAS, the Downtown Development Authority of the City of Augusta (the
"Authority") proposes to issue, sell, and deliver its revenue bonds to be known as "Downtown
Development Authority of the City of Augusta Revenue Bonds (Riverfront Project), Federally
Taxable Series 2018"(the"Series 2018 Bonds"), in the original aggregate principal amount not to
exceed $14,000,000, for the purpose of obtaining funds (1) to enable the Authority to make
disbursements pursuant to the terms of a Project Grant Agreement, to be dated as of the first day
of the month of its execution and delivery (the "Grant Agreement"), between the Authority, as
grantor, and Augusta Developers LLC (the "Developer"), as grantee, in order to enable the
Developer to pay a portion of the costs of(A) acquiring, constructing, and installing mixed-use
properties consisting of approximately 140 residential units, approximately 5,000 square feet of
retail space, community greenspace, and a structured parking facility containing approximately
490 spaces and (B) renovating an approximately 16,000 square foot railroad depot building
(collectively the "Properties"), to be located on an approximately 6.27 acre site at 511 Reynolds
Street in Augusta, Georgia, and (2) to finance the costs of issuing the Series 2018 Bonds; and
WHEREAS,Augusta, Georgia(the"Consolidated Government")is authorized by Article
IX, Section III, Paragraph I(a) of the Constitution of the State of Georgia of 1983 to contract for
any period not exceeding fifty years with the Authority for joint services, for the provision of
services,or for the joint or separate use of facilities or equipment but such contracts must deal with
activities, services,or facilities which the contracting parties are authorized by law to undertake or
provide; and
WHEREAS, the Consolidated Government is authorized by Section 48-5-350 of the
Official Code of Georgia Annotated to levy and collect municipal taxes upon all taxable property
within the limits of the Consolidated Government to provide for financial assistance to the
Authority for the purpose of developing trade,commerce,industry,and employment opportunities;
provided the tax levied for the purposes provided in that code section shall not exceed three mills
per dollar upon the assessed value of the property; and
WHEREAS, the property presently subject to taxation by the Consolidated Government
pursuant to Section 48-5-350 of the Official Code of Georgia Annotated consists of taxable
property located within the territorial limits of the Consolidated Government, as such territorial
limits are determined when the Consolidated Government exercises its powers as a municipality,
and excludes taxable property located within the corporate limits of municipalities located within
the territorial limits of the Consolidated Government,as such territorial limits are determined when
the Consolidated Government exercises its powers as a county; and
WHEREAS, in consideration of the issuance of the Series 2018 Bonds by the Authority
to finance a portion of the costs of acquiring, constructing, installing, and renovating the
Properties, the Consolidated Government proposes to enter into an Intergovernmental Downtown
Development Contract, to be dated as of the first day of the month of its execution and delivery
(the "Contract"), with the Authority, the form of which is to be filed with the Consolidated
Government and submitted to the Augusta-Richmond County Commission, under the terms of
which the Consolidated Government agrees to (1) make payments to the Authority in amounts
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sufficient to enable the Authority to pay, among other things, the principal of, premium, if any,
and interest on the Series 2018 Bonds when due and (2) levy an annual ad valorem tax on all
taxable property located within the territorial limits of the Consolidated Government, which is
subject to taxation for purposes of fulfilling the Consolidated Government's obligations under this
Contract, at such rates within the three mill limit authorized by Section 48-5-350 of the Official
Code of Georgia Annotated or such greater millage limit hereafter authorized under 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, the Consolidated Government's obligation to levy an annual ad valorem tax
pursuant to the Contract will also be subject to the tax limitation contained in an amendment to
Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1976 (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); and
WHEREAS, the Authority proposes to adopt a Master Bond Resolution (the "Bond
Resolution")authorizing the issuance of the Series 2018 Bonds, and the Authority will furnish the
Consolidated Government with a certified copy of the Bond Resolution promptly after its adoption
by the Authority; and
WHEREAS, pursuant to the Bond Resolution, the payments to be received by the
Authority from the Consolidated Government pursuant to the Contract will be pledged to, and a
first priority lien will be created thereon as security for, the payment of principal of, premium, if
any, and interest on the Series 2018 Bonds and any Additional Bonds (as defined in the Bond
Resolution)that may be issued; and
WHEREAS, the Bond Resolution will provide, among other things, that the Series 2018
Bonds shall bear interest at the rate or rates per annum to be specified therein(but which shall not
in any event exceed a maximum per annum rate of interest of 6.50%), computed on the basis of a
360-day year consisting of twelve 30-day months, payable on April 1, 2019, and semiannually
thereafter on each October 1 and April 1 and shall mature on April 1, in the years (with a term not
exceeding 40 years) and in the principal amounts to be specified therein(provided the principal of
and interest on the Series 2018 Bonds payable in any fiscal year of the Consolidated Government
shall not in any event exceed a maximum amount of $1,500,000), unless earlier called for
redemption; and
WHEREAS, the Authority plans to sell the Series 2018 Bonds to Raymond James &
Associates, Inc. (the"Underwriter")pursuant to a Bond Purchase Agreement(the"Bond Purchase
Agreement")to be entered into between the Authority and the Underwriter; and
WHEREAS, after careful study and investigation, the Consolidated Government desires
to enter into the Contract;
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NOW, THEREFORE, BE IT RESOLVED by the Augusta-Richmond County
Commission (the "Commission") as follows:
1. The form, terms, and conditions and the execution, delivery, and performance of the
Contract, which is to be filed with the Consolidated Government, are hereby approved and
authorized. The Contract shall be in substantially the form approved by the Commission with such
changes, corrections, deletions, insertions, variations, additions, or omissions as may be approved
by the Commission.
2. The Mayor of the Consolidated Government is hereby authorized to execute on behalf
of the Consolidated Government the Contract, and the Clerk of Commission of the Consolidated
Government is hereby authorized to affix thereto and attest the seal of the Consolidated
Government,upon proper execution and delivery by the Authority,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 to deliver the Contract on behalf of the Consolidated
Government to the Authority, and, following approval by the Commission, to execute and deliver
all such other contracts, instruments, documents, affidavits, or certificates (including, without
limitation, a letter of representation to the Underwriter and an Official Statement, a Rule 15c2-12
Certificate, and a Continuing Disclosure Certificate for the Series 2018 Bonds) and to do and
perform all such things and acts as the Commission shall deem necessary or appropriate in
furtherance of the issuance of the Series 2018 Bonds and the carrying out of the transactions
authorized by this Resolution or contemplated by the instruments and documents referred to in this
Resolution.
3. 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. ' I
PASSED, ADOPTED, SIGNED, APPROVED, and EFFECTIVE this 1 t day of
2018.
AUGUSTA, GEORGIA
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(SEAL)�aNCH"0 m�®� A A Mayor
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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
, 2018 by the Augusta, Georgia 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
2018.
(SEAL)
Clerk of Commission of Augusta, Georgia
44839-5321-4309 v.7-
y.
AUGUSTA, GEORGIA
(a political subdivision duly created and
existing under the laws of
the State of Georgia)
and
DOWNTOWN DEVELOPMENT AUTHORITY
OF THE CITY OF AUGUSTA
(a public body corporate and politic duly created and
existing under the laws of the State of Georgia)
INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT
Dated as of 1, 2018
THE RIGHTS AND INTEREST OF THE DOWNTOWN DEVELOPMENT AUTHORITY OF
THE CITY OF AUGUSTA IN THIS INTERGOVERNMENTAL DOWNTOWN
DEVELOPMENT CONTRACT AND THE REVENUES AND RECEIPTS DERIVED
HEREFROM, EXCEPT FOR ITS UNASSIGNED RIGHTS, AS DEFINED HEREIN, HAVE
BEEN COLLATERALLY ASSIGNED AND PLEDGED TO SECURE THE BONDHOLDERS
(AS DEFINED HEREIN) PURSUANT TO A MASTER BOND RESOLUTION ADOPTED BY
THE DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF AUGUSTA ON
, 2018.
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INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Intergovernmental Downtown
Development Contract and is only for convenience of reference.)
Page
ARTICLE I -- DEFINITIONS 2
ARTICLE II -- REPRESENTATIONS AND WARRANTIES 4
Section 2.1. Representations and Warranties by the Consolidated Government 4
Section 2.2. Representations and Warranties by the Authority 7
Section 2.3. Reliance by Bondholders 9
ARTICLE III -- TERM OF CONTRACT; CONTRACT AS SECURITY FOR
BONDS 9
Section 3.1. Term 9
Section 3.2. This Contract as Security for the Bonds 9
ARTICLE IV -- AUTHORITY'S OBLIGATIONS HEREUNDER 11
Section 4.1. Issuance of Series 2018 Bonds; Application of Bond Proceeds 11
Section 4.2. The Properties 11
Section 4.3. Additional Bonds 12
Section 4.4. Redemption of Bonds 12
Section 4.5. Prepayment 12
Section 4.6. Execution and Modifications of the Grant Agreement and the
Development Agreement; Change Orders; Amendments to Project
Development Plan 12
ARTICLE V -- CONSOLIDATED GOVERNMENT'S OBLIGATIONS
HEREUNDER 13
Section 5.1. Consolidated Government's Payment Obligations 13
Section 5.2. Source of Funds for Consolidated Government's Payment
Obligations; Limitations on Additional Contracts 14
Section 5.3. Continuing Disclosure 15
(i)
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Page
ARTICLE VI -- MISCELLANEOUS 16
Section 6.1. Governing Law 16
Section 6.2. Entire Agreement 16
Section 6.3. Severability 16
Section 6.4. Survival of Warranties 16
Section 6.5. Counterparts 16
Section 6.6. Amendments in Writing 16
Section 6.7. Notices 16
Section 6.8. Limitation of Rights 17
Section 6.9. Immunity of Officials, Officers, and Employees of Authority and
Consolidated Government 17
(ii)
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INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT
This INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT
(this "Contract"), made and entered into as of 1, 2018, by and between Augusta,
Georgia(the"Consolidated Government"), a political subdivision duly created and existing under
the laws of the State of Georgia,and the Downtown Development Authority of the City of Augusta
(the "Authority"), a public body corporate and politic duly created and existing under the laws of
the State of Georgia;
WITNESSETH:
WHEREAS, the Authority proposes to issue, sell, and deliver its revenue bonds to be
known as the "Downtown Development Authority of the City of Augusta Revenue Bonds
(Riverfront Project), Federally Taxable Series 2018" (the "Series 2018 Bonds"), in the original
aggregate principal amount of$ , for the purpose of obtaining funds (1)to enable
the Authority to make disbursements pursuant to the terms of a Project Grant Agreement, dated
this date (the "Grant Agreement"), between the Authority, as grantor, and Augusta Developers
LLC (the "Developer"), as grantee, in order to enable the Developer to pay a portion of the costs
of(A) acquiring, constructing, and installing mixed-use properties consisting of approximately
140 residential units, approximately 5,000 square feet of retail space, community greenspace, and
a structured parking facility containing approximately 490 spaces and (B) renovating an
approximately 16,000 square foot railroad depot building (collectively the "Properties"), to be
located on an approximately 6.27 acre site at 511 Reynolds Street in Augusta, Georgia, and(2) to
finance the costs of issuing the Series 2018 Bonds; and
WHEREAS, the Authority and the Consolidated Government propose to enter into this
Contract,under the terms of which the Consolidated Government will agree to (1)make payments
to the Authority in amounts sufficient to enable the Authority to pay, among other things, the
principal of, premium, if any, and interest on the Series 2018 Bonds when due and (2) levy an
annual ad valorem tax on all taxable property located within the territorial limits of the
Consolidated Government,which is subject to taxation for purposes of fulfilling the Consolidated
Government's obligations under this Contract, at such rates within the three mill limit authorized
by Section 48-5-350 of the Official Code of Georgia Annotated or such greater millage limit
hereafter authorized under applicable law, as may be necessary to produce in each year revenues
that are sufficient to fulfill the Consolidated Government's obligations under this Contract; and
WHEREAS,the Consolidated Government's obligation to levy an annual ad valorem tax
pursuant to this Contract will also be subject to the tax limitation contained in an amendment to
Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1976 (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) (collectively the"Constitutional Provision"); and
WHEREAS, the Authority proposes to issue the Series 2018 Bonds pursuant to a Master
Bond Resolution adopted by the Authority on , 2018 (the "Bond Resolution");
and
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WHEREAS, to secure its obligation to pay principal of, premium, if any, and interest on
the Series 2018 Bonds, the Authority has assigned and pledged to the owners of the Series 2018
Bonds all of its right, title, and interest in this Contract (except for the Unassigned Rights, as
defined herein) and all revenues, payments, receipts, and moneys to be received and held
hereunder, pursuant to the Bond Resolution;
NOW, THEREFORE, in consideration of the respective covenants, representations, and
agreements hereinafter contained and in furtherance of the mutual public purposes hereby sought
to be achieved, the Consolidated Government and the Authority agree as follows:
ARTICLE I
DEFINITIONS
In addition to the words and terms defined elsewhere herein,the following words and terms
shall have the meanings specified below, unless the context or use indicates another or different
meaning or intent:
"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.
"2018 Project"means the initial capital improvements to be made to the Properties.
"Additional Bonds" means the additional parity Bonds authorized to be issued by the
Authority pursuant to the terms and conditions of Section of the Bond Resolution.
"Additional Contract" means a contract or supplemental agreement (including, without
limitation, any amendment or supplement to this Contract)between the Consolidated Government
and the Authority or any other development authority that is now existing or that may hereafter be
created or activated, pursuant to the terms of which a payment obligation from the Consolidated
Government to any such authority is created or expanded, the source of which payment obligation
is the Tax.
"Authority" shall have the meaning assigned to that term in the recitals to this Contract
and its successors and assigns.
"Bond Resolution" shall have the meaning assigned to that term in the recitals to this
Contract, as it may be amended,restated, supplemented, or modified from time to time.
"Bond Year"means the twelve-month period beginning on April 2 of each calendar year
and ending on April 1 of the next succeeding calendar year.
"Bondholders"means the Persons in whose names any of the Bonds are registered on the
books kept and maintained by the bond registrar under the Bond Resolution.
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"Bonds" means the Series 2018 Bonds and all series of Additional Bonds from time to
time authenticated and delivered under the Bond Resolution.
"Consolidated Government" shall have the meaning assigned to that term in the recitals
to this Contract and its successors and assigns.
"Constitutional Provision" shall have the meaning assigned to that term in the recitals to
this Contract.
"Contract"means this Intergovernmental Downtown Development Contract between the
Consolidated Government and the Authority, as it may be supplemented and amended from time
to time in accordance with the provisions hereof.
"Contracts"means this Contract and all Additional Contracts.
"Developer" shall have the meaning assigned to that term in the recitals to this Contract
and its successors and assigns.
"Development Agreement" means the Purchase, Sale, and Development Agreement,
dated , 2018, between the Authority and the Developer, as it may be
supplemented and amended from time to time in accordance with the provisions thereof, relating
to the development of the Properties.
"Grant Agreement" shall have the meaning assigned to that term in the recitals to this
Contract, as it may be amended, restated, supplemented, or modified from time to time.
"Option Agreement"means the Purchase Option Agreement, dated this date,between the
Authority, as optionor, and the Consolidated Government, as optionee,as it may be supplemented
and amended from time to time in accordance with the provisions thereof, relating to community
greenspace comprising a portion of the Properties and a perpetual easement for the exclusive use
of 175 designated contiguous parking spaces within the parking deck comprising a portion of the
Properties.
"Person" means an individual, a corporation, a partnership, a limited liability company,
an association, a joint stock company, a joint venture, a trust, an unincorporated organization, a
governmental unit or an agency, a political subdivision or instrumentality thereof, or any other
group or organization of individuals.
"Prior Lien 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 Urban Redevelopment Agency of Augusta
and the Consolidated Government; the Intergovernmental Service Agreement, dated as of
September 15,2015,between the Urban Redevelopment Agency of Augusta and the Consolidated
Government; the Agreement of Sale, dated as of July 1, 2017, as supplemented and amended by
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the First Amendment to Agreement of Sale, dated as of July 1, 2018, between the Urban
Redevelopment Agency of Augusta and the Consolidated Government; and the Intergovernmental
Redevelopment Contract, dated as of May 1, 2018, between the Urban Redevelopment Agency of
Augusta and the Consolidated Government, as the same may be supplemented and amended from
time to time in accordance with the provisions thereof.
"Project"means the 2018 Project or any future capital improvements to the Properties.
"Properties" shall have the meaning assigned to that term in the recitals to this Contract.
"Series 2018 Bonds" means the revenue bonds designated the "Downtown Development
Authority of the City of Augusta Revenue Bonds,Federally Taxable Series 2018,"to be dated the
date of their issuance and delivery, in the original aggregate principal amount of$
to be issued pursuant to the Bond Resolution.
"Series 2018 Disclosure Certificate"means the Continuing Disclosure Certificate, dated
the date of issuance of the Series 2018 Bonds, of the Consolidated Government, as originally
executed and as it may be amended from time to time in accordance with the terms thereof.
"Sinking Fund Custodian"means the custodian of the Sinking Fund held under the Bond
Resolution.
"State"means the State of Georgia.
"Tax"means the three mill ad valorem tax authorized by Section 48-5-350 of the Official
Code of Georgia Annotated.
"Taxable Property" means all taxable property located within the territorial limits of the
Consolidated Government, as now existent and as the same may hereafter be extended, which is
subject to taxation from time to time for purposes of fulfilling the Consolidated Government's
obligations under this Contract.
"Unassigned Rights" means all of the rights of the Authority to receive reimbursements
and payments pursuant to Section 5.1(c) hereof
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties by the Consolidated Government.
The Consolidated Government makes the following representations and warranties 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 contract with the Authority to finance
by grant a portion of the costs of the Properties and to enter into, perform its obligations under,
and exercise its rights under this Contract.
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(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 levy and collection of the Tax by 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 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) Contract 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 Augusta-Richmond County
Commission. 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 Authority of the 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 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.
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(e) No Defaults. 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, which default might materially and adversely affect the levy
and collection of the Tax by the Consolidated Government.
(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 levy and collection of the Tax by the
Consolidated Government, which violation or failure to obtain might materially and adversely
affect the levy and collection of the Tax by 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 the levy and collection of the Tax by the Consolidated
Government. 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 agreements for the
Authority to finance by grant a portion of the costs of the Properties in exchange for payments on
an installment basis, except for the Prior Lien Contracts.
(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 Authority 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 Authority 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 levy and collection of the Tax by
the Consolidated Government, or 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
writing to the Authority or in the certificates, documents, and instruments furnished to the
Authority 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, 2017,and the statement of revenues, expenditures, and changes in fund balances of
the Consolidated Government for the year ended December 31, 2017 (copies of which, audited by
Mauldin & Jenkins, LLC, independent certified public accountants, have been furnished to the
Authority) present fairly the financial position of the Consolidated Government as of December
31, 2017, and the changes in financial position for the year ended December 31, 2017, with such
exceptions as may be disclosed in the audit report. Since December 31, 2017, there has been no
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material adverse change in the financial position or changes in financial position of the
Consolidated Government, except as disclosed in writing to the Authority.
(j) Other Contracts Related to the Tax. 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 the Tax, to provide revenues to fulfill the Consolidated
Government's obligations under such contract or agreement.
(k) Compliance with Conditions of Prior Lien Contracts. The Consolidated Government
has obtained documentation evidencing that the conditions of the Prior Lien Contracts have been
satisfied, in order to permit the Authority and the Consolidated Government to enter into this
Contract, which documentation is attached to this Contract as Exhibit A. The Consolidated
Government represents that there is not presently in force and effect any other contract or
agreement that encumbers ad valorem property taxes subject to the millage limitation contained in
the Constitutional Provision, except for the Prior Lien Contracts and the 2004 Solid Waste
Authority Contract.
(1) Sovereign Immunity. The Consolidated Government may not assert the defense of
sovereign immunity to any action at law (as opposed to equity) for the breach of this Contract or
to any action at law (as opposed to equity) to enforce a judgment taken for the breach of this
Contract.
Section 2.2. Representations and Warranties by the Authority. The Authority makes
the following representations and warranties as the basis for the undertakings on its part herein
contained:
(a) Creation and Authority. The Authority is a public body corporate and politic duly
created and validly existing under the laws of the State. The Authority has all requisite power and
authority under the laws of the State to contract with the Developer to finance by grant a portion
of the costs of the Properties and to enter into,perform its obligations under, and exercise its rights
under this Contract.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or,to the knowledge of the Authority,after making due inquiry with respect
thereto,threatened against or affecting the Authority 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 Authority to perform its obligations under this Contract, or the
transactions contemplated by this Contract or which, in any way, would adversely affect the
validity or enforceability of this Contract or any agreement or instrument to which the Authority
is a party and which is used or contemplated for use in the consummation of the transactions
contemplated hereby or thereby (including, without limitation, the Development Agreement, the
Option Agreement, and the Grant Agreement), nor is the Authority aware of any facts or
circumstances presently existing that would form the basis for any such actions, suits, or
proceedings. The Authority 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.
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(c) Contract Is Legal and Authorized. The execution and delivery by the Authority 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 Authority; (ii) are legal and will not conflict with or constitute on the part of the Authority
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 Authority is a party or by which the Authority 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 Authority 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 Board of Directors of the Authority.
This Contract is the valid,legal,binding,and enforceable obligation of the Authority. The officials
of the Authority 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 Authority.
(d) Governmental Consents. Neither the Authority nor any of its activities or properties,
nor any relationship between the Authority and any other Person, nor any circumstances in
connection with the execution,delivery, and performance by the Authority of its obligations under
this Contract, the Development Agreement,the Option Agreement, or the Grant Agreement or the
offer, issue, sale, or delivery by the Authority of the 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 Authority in connection with the execution,
delivery, and performance of this Contract,the Development Agreement, the Option Agreement,
or the Grant Agreement or the consummation of any transaction herein or therein contemplated,
or the offer, issue, sale, or delivery of the 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
Authority, after making due inquiry with respect thereto, the Authority 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 Authority is legally required
to obtain the same.
(e) No Defaults. To the knowledge of the Authority, after making due inquiry with
respect thereto,the Authority 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,
which default might materially and adversely affect the performance by the Authority of its
obligations under this Contract, the Development Agreement,the Option Agreement, or the Grant
Agreement.
(f) Compliance with Law. To the knowledge of the Authority, after making due inquiry
with respect thereto, the Authority 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 performance by the Authority of its obligations under this Contract, the
Development Agreement, the Option Agreement, or the Grant Agreement, which violation or
failure to obtain might materially and adversely affect the performance by the Authority of its
obligations under this Contract,the Development Agreement,the Option Agreement, or the Grant
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Agreement, and there have been no citations, notices, or orders of noncompliance issued to the
Authority under any such law, ordinance,rule, or regulation.
(g) Restrictions on the Authority. The Authority is not a party to or bound by any
contract,instrument,or agreement,or subject to any other restriction,that materially and adversely
affects the performance by the Authority of its obligations under this Contract, the Development
Agreement, the Option Agreement, or the Grant Agreement. The Authority is not a party to any
contract or agreement that restricts the right or ability of the Authority to enter into agreements for
the Authority to finance by grant a portion of the costs of the Properties.
(h) Disclosure. The representations of the Authority contained in this Contract and any
certificate, document, written statement, or other instrument furnished by or on behalf of the
Authority to the Consolidated Government 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 Authority has not disclosed to the Consolidated Government in writing that materially and
adversely affects or in the future may (so far as the Authority can now reasonably foresee)
materially and adversely affect the ability of the Authority to perform its obligations under this
Contract, the Development Agreement, the Option Agreement, or the Grant Agreement 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 writing to the Consolidated
Government or in the certificates, documents, and instruments furnished to the Consolidated
Government by or on behalf of the Authority prior to the date of execution of this Contract in
connection with the transactions contemplated hereby.
Section 2.3. Reliance by Bondholders. The Consolidated Government and the
Authority acknowledge and agree that these representations and warranties are made to induce the
Bondholders to purchase the Bonds and that such representations and warranties and any other
representations and warranties made by the Consolidated Government or the Authority in this
Contract are made for the benefit of the Bondholders and may be relied upon by the Bondholders.
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 and all other amounts payable under the Bond Resolution have been paid in full or
until provision has been duly made therefor,but in no event shall the term hereof exceed fifty(50)
years from the date hereof The obligations of the Consolidated Government set forth in Section
5.1(c) and (d) hereof shall survive the termination of this Contract, but in no event shall extend
beyond fifty(50)years from the date hereof.
Section 3.2. This Contract as Security for the Bonds. The parties hereto agree and
intend that:
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(a) This Contract shall constitute security for the benefit of the Bondholders, and the
obligations of the Consolidated Government hereunder 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 Authority. 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 Developer to acquire, construct, or install any of the Properties; any
change or delay in the time of availability of any of the Properties; any acts or circumstances that
may impair or preclude the use or possession of any of the Properties; any defect in the title,
merchantability, fitness, or condition of any of the Properties or in the suitability of any of the
Properties for the Authority'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; the
taking by eminent domain of title to or the use of all or any part of any of the Properties;
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 Authority to perform and observe any
agreement, whether express or implied, or any duty, liability, or obligation arising out of or
connected with this Contract. Nothing contained in this Section 3.2(a)shall be construed to release
the Authority from the performance of any of the agreements on its part herein contained. In the
event the Authority should fail to perform any such agreement on its part, the Consolidated
Government may institute such action against the Authority as the Consolidated Government may
deem necessary to compel performance so long as such action does not abrogate or limit in any
way the Consolidated Government's obligations hereunder. The Authority 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 under Section 5.1(a) and (b) of this Contract by the
Consolidated Government to the Authority will be assigned and pledged by the Authority to the
Bondholders pursuant to the Bond Resolution.
(c) Following the issuance of the Series 2018 Bonds, the payments to be made to the
Authority by the Consolidated Government under the provisions of Section 5.1(a) and (b) of this
Contract shall be made directly to the Sinking Fund Custodian for the account of the Authority.
(d) This Contract may not be amended, changed, modified, altered, or terminated except
as provided in the Bond Resolution.
(e) As security for the payment of the Bonds, the Authority has adopted the Bond
Resolution. The Consolidated Government hereby assents to the assignment and pledge made in
the Bond Resolution and hereby agrees that its obligations to make all payments under this
Contract 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 Authority of any obligation
to the Consolidated Government, whether hereunder or otherwise, or arising out of any
indebtedness or liability at any time owing to the Consolidated Government by the Authority. The
Bondholders shall have all rights and remedies herein accorded to the Authority (except for
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Unassigned Rights),and any reference herein to the Authority shall be deemed,with the necessary
changes in detail, to include the Bondholders, 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
AUTHORITY'S OBLIGATIONS HEREUNDER
Section 4.1. Issuance of Series 2018 Bonds; Application of Bond Proceeds. The
Authority agrees that simultaneously with the execution and delivery hereof it will issue the Series
2018 Bonds containing the terms, including principal amounts, interest rates, and maturities, set
forth in the Bond Resolution, for the purposes of financing by grant a portion of the costs of the
2018 Project and financing the costs of issuing the Series 2018 Bonds. The Authority hereby
covenants and agrees that it will apply the proceeds derived from the sale of the Series 2018 Bonds
as specified in Section of the Bond Resolution.
Section 4.2. The Properties. The Authority agrees that simultaneously with the
execution of this Contract it shall enter into the Grant Agreement with the Developer, in
substantially the form presented to the Consolidated Government,under the terms of which(1)the
Developer will agree to (A) acquire, construct, install, and renovate the Properties in accordance
with the Development Agreement and (B) convey the properties that are the subject of the Option
Agreement to the Authority upon the completion of their construction and (2)the Authority will
agree to make grants to the Developer of proceeds of the Bonds to enable the Developer to pay a
portion of the costs of acquiring, constructing, installing, and renovating the Properties. The
Authority shall faithfully and punctually perform and observe all obligations and undertakings on
its part to be performed and observed under the Grant Agreement. The Authority covenants to
maintain, at all times, the validity and effectiveness of the Grant Agreement and shall take no
action, shall permit no action to be taken by others, and shall not omit to take any action or permit
others to omit to take any action, which action or omission might release the Developer from its
liabilities or obligations under the Grant Agreement or result in the surrender, termination,
amendment, or modification of,or impair the validity of,the Grant Agreement, except as provided
in Section 4.6 hereof. The Authority covenants to diligently enforce all covenants, undertakings,
and obligations of the Developer under the Grant Agreement, and the Authority hereby authorizes
the Consolidated Government to enforce any and all of the Authority's rights under the Grant
Agreement on behalf of the Authority. The Authority agrees that,if an event of default occurs and
is continuing under the Grant Agreement, it shall, as directed in writing by the Consolidated
Government, suspend or terminate all obligations of the Authority to make further disbursements
of the Grant (as defined in the Grant Agreement) as permitted by Section 8.1(a) of the Grant
Agreement or pursue or forbear from pursuing such other remedies available under the Grant
Agreement as are directed in writing from time to time by the Consolidated Government. In such
event, if the Consolidated Government directs the Authority to suspend or terminate all such
obligations to make further disbursements of the Grant, the Authority shall promptly apply any
unspent Grant moneys as directed in writing by the Consolidated Government, including,without
limitation, to the retirement of Bonds prior to maturity (either by redemption or purchase) in
accordance with the Bond Resolution, which shall then be credited as a prepayment toward the
payments specified in Section 5.1 hereof.
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Section 4.3. Additional Bonds. (a) Additional Bonds may be issued by the Authority
to provide funds to pay any one or more of the following: (i) the costs of acquiring, constructing,
installing, and renovating any Project as the Consolidated Government may deem necessary or
desirable and as will not impair the nature of the Properties; (ii)to refund any Bonds; and(iii) the
costs of the issuance and sale of the 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 Consolidated
Government and the Authority.
(b) If the Consolidated Government is not in default hereunder, the Authority shall, on
the written request of the Consolidated Government, from time to time exercise reasonable efforts
to issue the amount of Additional Bonds specified by the Consolidated Government;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
Consolidated Government; and provided further that the sale of any Additional Bonds shall be the
sole responsibility of the Consolidated Government; and provided further that the Consolidated
Government and the Authority shall have entered into an amendment to this Contract to provide
for additional payments 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 Contract
required because of such Additional Bonds; and provided further that the Authority shall have
otherwise complied with the provisions of Section of the Bond Resolution with respect to the
issuance of such Additional Bonds.
Section 4.4. Redemption of Bonds. The Authority, at the written request of the
Consolidated Government 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 Bond Resolution to effect redemption or
purchase of all or part of the then unpaid Bonds, as may be specified by the Consolidated
Government, on the earliest date on which such redemption or purchase may be made under such
applicable provisions. The Authority shall,if directed in writing by the Consolidated Government,
apply payments received by the Authority pursuant to the Option Agreement to pay the redemption
or purchase price of Bonds redeemed or purchased pursuant to this Section 4.4.
Section 4.5. Prepayment. There is expressly reserved to the Consolidated Government
the right,and the Consolidated Government is authorized and permitted,at any time it may choose,
to prepay all or any part of amounts payable under Section 5.1 hereof, and the Authority agrees
that the Sinking Fund Custodian may accept such prepayments when the same are tendered by the
Consolidated Government. All amounts so prepaid shall at the written direction of the
Consolidated Government be credited toward the payments specified in Section 5.1 hereof, in the
order of their due dates, or be applied to the retirement of Bonds prior to maturity (either by
redemption or purchase) in accordance with the Bond Resolution. The Consolidated Government
shall also have the right to surrender Bonds acquired by it in any manner whatsoever to the
Authority 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 amounts payable under Section 5.1 hereof
as provided in the Bond Resolution.
Section 4.6. Execution and Modifications of the Grant Agreement and the
Development Agreement; Change Orders; Amendments to Project Development Plan. The
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Authority may not (1) execute, amend, change, modify, alter, waive, or terminate the Grant
Agreement or the Development Agreement, (2) approve any change order pursuant to Section 4.5
of the Grant Agreement, or (3) approve any amendments to the Project Development Plan (as
defined in the Development Agreement),without in each instance the prior written approval of the
Consolidated Government.
ARTICLE V
CONSOLIDATED GOVERNMENT'S OBLIGATIONS HEREUNDER
Section 5.1. Consolidated Government's Payment Obligations. In order to provide
financial assistance to the Authority for the purpose of developing trade, commerce, industry, and
employment o opportunities,the Consolidated Government agrees that:
pp gY'
(a) It shall pay to the Authority, by making such payments directly to the Sinking Fund
Custodian for the account of the Authority for deposit in the Sinking Fund held under the Bond
Resolution on or before the business day preceding each interest payment date with respect to the
Bonds, an amount sufficient,when added to funds held at the time of such payment in the Sinking
Fund, to cause the balance held therein to equal the full amount of principal of, premium, if any,
and interest on the Bonds coming due on the next interest payment date. The Authority shall, if
directed in writing by the Consolidated Government, deposit any payments received by the
Authority pursuant to the Option Agreement and specified by the Consolidated Government in the
Sinking Fund held under the Bond Resolution, in order to reduce the amount payable by the
Consolidated Government pursuant to this Section 5.1(a).
(b) The provisions of paragraph (a) above to the contrary notwithstanding, if, for any
reason, on any interest payment date and any redemption date with respect to the Bonds, there is
not on deposit in the Sinking Fund moneys 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 Authority, by making such payments directly to the Sinking Fund Custodian for the
account of the Authority for deposit into the Sinking 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 such interest payment date or redemption date exceeds the
amount in the Sinking Fund (and not being held for the payment of Bonds not yet presented for
payment or interest checks not cashed).
(c) It shall also pay to the Authority an amount equal to (i) any costs incurred by the
Authority 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 Sinking Fund Custodian
and any paying agents and bond registrars for the Bonds. Such additional payments shall be billed
to the Consolidated Government by the Authority from time to time, together with a statement
certifying that the amount billed has been incurred or paid by the Authority for one or more of the
foregoing items. Amounts so billed shall be paid by the Consolidated Government within thirty
(30) days after receipt of the bill by the Consolidated Government.
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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, at such
rate or rates within the three (3) mill limit authorized pursuant to Section 48-5-350 of the Official
Code of Georgia Annotated 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 Authority on any and all revenues realized by the
Consolidated Government from such tax, to make the payments that are required under Section
5.1(a), (b), and (c) of 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 Lien Contracts and may be extended to cover any Additional Contracts, as permitted by
Section 5.2(d)hereof. 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 three(3)mill limit authorized by Section 48-5-350 of the Official Code of Georgia Annotated,
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 three (3) mill limit or such greater millage
as hereafter prescribed by law pursuant to the provisions of the Prior Lien 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
three(3)mills now authorized by Section 48-5-350 of the Official Code of Georgia Annotated, or
any greater millage hereafter prescribed by law,in order to meet its obligations under all Contracts.
It is further expressly provided 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 now authorized
by the Constitutional Provision, or any greater millage hereafter prescribed by law, in order to
meet its obligations under the 2004 Solid Waste Authority Contract, the Prior Lien Contracts, and
the Contracts.
(c) So long as any of the Bonds are Outstanding (as defined in the Bond Resolution),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;
(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
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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 moneys 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 calendar 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 any of 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 authorized under Section 48-5-350 of the Official Code of Georgia Annotated or any
successor provision on all Taxable Property as shown by the latest tax digest available immediately
preceding the execution of such Additional Contract,is equal to at least one and twenty hundredths
(1.20) times the maximum combined amount payable in any future calendar 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 calendar year. The Consolidated Government shall
furnish the Authority, 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 assessed value of Taxable Property, the requirements of this paragraph (d) have
been met.
Section 5.3. Continuing Disclosure. The Consolidated Government hereby covenants
and agrees that it shall comply with and carry out all of the provisions of the Series 2018 Disclosure
Certificate. Notwithstanding any other provision of this Contract, failure of the Consolidated
Government to comply with the Series 2018 Disclosure Certificate shall not be considered an event
of default or default under this Contract;however, any beneficial owner of the Series 2018 Bonds
may take such actions as may be necessary and appropriate, including seeking mandamus or
specific performance by court order, to cause the Consolidated Government to comply with its
obligations under this Section 5.3.
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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 hereof.
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 Bond Resolution.
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 Authority, respectively, at the addresses shown below or at such other
addresses as may be furnished by the Consolidated Government or the Authority in writing from
time to time:
Consolidated Government: Augusta,Georgia
535 Telfair Street
Augusta,Georgia 30901
Attention: Administrator, Room 900, and
Finance Director,Room .
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Authority: Downtown Development Authority of the City
of Augusta
936 Broad Street
Suite 107
Augusta, Georgia 30901
Attention: Executive Director
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 and
any third party beneficiaries hereof, any benefit or any legal or equitable right, remedy, or claim
under this Contract.
Section 6.9. Immunity of Officials, Officers, and Employees of Authority and
Consolidated Government. No recourse shall be had for the enforcement of any obligation,
covenant, promise, or agreement of the Authority or the Consolidated Government contained in
this Contract or for any claim based hereon or otherwise in respect hereof against any director,
commissioner, officer, or employee, as such, in his individual capacity,past,present, or future, of
the Authority, 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 Authority payable only from the funds and
assets of the Consolidated Government and the Authority herein specifically provided to be subject
to such obligation and that no personal liability whatsoever shall attach to, or be incurred by, any
director, commissioner, officer, or employee, as such,past,present, or future, of the Consolidated
Government or the Authority, or of any successor corporation, either directly or through the
Consolidated Government, the Authority, or any successor corporation,under or by reason of any
of the obligations, covenants,promises, or agreements entered into between the Authority 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 director, commissioner, 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 directors,
commissioners, officers, and employees of the Authority and the Consolidated Government under
the provisions contained in this Section 6.9 shall survive the termination of this Contract.
[Signatures and Seals to Follow]
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IN WITNESS WHEREOF,the Consolidated Government and the Authority 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.
AUGUSTA,GEORGIA
(SEAL) By:
Mayor
Attest:
Clerk of Commission
DOWNTOWN DEVELOPMENT
AUTHORITY OF THE CITY OF
AUGUSTA
(SEAL) By:
Chairman
Attest:
Secretary
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EXHIBIT A
DOCUMENTATION SATISFYING CONDITIONS OF
PRIOR LIEN CONTRACTS
Executed counterparts of this documentation is included in this Closing Transcript as
Document Number
4�4843-7881-7375 v.12-