Town
Council Minutes DAMASCUS
TOWN COUNCIL Council
Members Present: Johnny Blevins, Maurice Parris, Lannis Greene, Jim
Cartwright and Mitchell Greer Mayor
Jones called the meeting to order, led the Pledge of Allegiance and
prayer. Budget,
Finance and Administration – Mr. Cartwright Street,
Lights and Maintenance- Mr. Greer Parks
and Recreation – Mr. Blevins Mayor Jones announced Damascus Dog Day event in the town park on April 12, 2008. Planning
Commission Police
& Fire Advisory Mr.
Sizemore reported DHCD has awarded a planning grant for the Orchard
Hill Project.
ü Mr. Cartwright made a motion to approve work order #13 amended to set a limit not to exceed $18,000, 2nd by Mr. Parris (5-0). Bottswani
Immani requested council pass a resolution supporting victims of incest
and family violence. Mr. Cartwright suggested tabling the issue and
to consider different wording. Attorney
Report New
Business Consent
Agenda
· Discussion of the performance of the Police Department. 2.2-3711 (A) (1)
A motion was made by Mr. Cartwright and 2nd by Mr. Blevins to go out of closed session (5-0). A motion to certify was made by Mr. Cartwright and 2nd by Mr. Blevins (5-0). A motion made by Mr. Parris and 2nd by Mr. Greene to approve purchase of oxygenation reduction meter for sewer plant, not to exceed $2,000 (5-0). A motion made by Mr. Parris and 2nd by Mr. Cartwright to offer inoculation (three shot series) for hepatitis to town employees at town’s expense (5-0). A motion made by Mr. Parris and 2nd by Mr. Greene to authorize maintenance committee to interview candidates for one job, and make one temporary hire subject to approval by Council (5-0). A motion made by Mr. Greene and 2nd by Mr. Blevins to instruct town manager not to advertise for maintenance positions, notwithstanding earlier motion, except as directed by the maintenance committee (5-0). A motion to adjourn was made by Mr. Cartwright and 2nd by Mr. Greene (5-0). __________________________ __________________________________________ Creed Jones, Mayor Tonya Triplett, Clerk DAMASCUS
TOWN COUNCIL Council
Members Present: Johnny Blevins, Maurice Parris, Lannis Greene, Jim
Cartwright, Marianna Farmer, and Mitchell Greer Mayor
Jones called the meeting to order, led the Pledge of Allegiance and
prayer. Budget,
Finance and Administration – Mr. Cartwright ü
Mr. Cartwright made a motion to increase the cigarette tax from .5
per pack to .10 per pack, 2nd by Mr. Blevins (5-0-1 Mr. Greene voted
nay) Street,
Lights and Maintenance- Mr. Greer LEASE
AGREEMENT The Town has the power to acquire such personal property as it may deem appropriate for carrying out its governmental and proprietary functions, and to acquire such property pursuant to lease agreements. This Agreement provides for BB&T to make available to the Town the sum of $16,850.00 to enable the Town to acquire the Equipment (as defined below) by lease, and provides for securing the Town's obligations under this Agreement by creating certain security interests in favor of BB&T.
NOW THEREFORE, for and in consideration of the mutual promises in
this Agreement, and other good and valuable consideration, the parties
hereby agree as follows: Unless the context clearly requires otherwise, capitalized terms used in this Agreement and not otherwise defined shall have the following meanings: "Additional Payments" means any of BB&T's reasonable and customary fees and expenses related to the transactions contemplated by this Agreement, any of BB&T’s expenses (including attorneys' fees) in prosecuting or defending any action or proceeding in connection with this Agreement, any required license or permit fees, state and local sales and use or ownership taxes or property taxes which BB&T is required to pay as a result of this Agreement, inspection and re-inspection fees, and any other amounts payable by the Town (or paid by BB&T on the Town’s behalf) as a result of its covenants under this Agreement (together with interest that may accrue on any of the above if the Town shall fail to pay the same, as set forth in this Agreement). "Amount Advanced" has the meaning assigned in Section 2.02. "Base Payments" means the rental payments payable by the Town pursuant to Section 3.01. “Bond Counsel Opinion” means a written opinion (in form and substance acceptable to BB&T) of an attorney or firm of attorneys acceptable to BB&T. "Budget Officer" means the Town officer from time to time charged with preparing the Town's draft budget as initially submitted to the Governing Board for its consideration. "Business Day" means any day on which banks in the State are not by law authorized or required to remain closed. "Closing Date" means the date on which this Agreement is first executed and delivered by the parties. "Code" means the Internal Revenue Code of 1986, as amended, including regulations, rulings and revenue procedures promulgated thereunder or under the Internal Revenue Code of 1954, as amended, as applicable to the Town's obligations under this Agreement and all proposed (including temporary) regulations which, if adopted in the form proposed, would apply to such obligations. Reference to any specific Code provision shall be deemed to include any successor provisions thereto. “Equipment” has the meaning assigned in Section 2.03, and is generally expected to include the personal property described in Exhibit A. "Event of Default" means one or more events of default as defined in Section 6.01. "Event of Nonappropriation" means any failure by the Governing Board to adopt, by the first day of any Fiscal Year, a budget for the Town that includes an appropriation for Required Payments as contemplated by Section 3.05. "Fiscal Year" means the Town's fiscal year beginning July 1, or such other fiscal year as the Town may later lawfully establish. "Governing Board" means the Town's governing board as from time to time constituted. "Net Proceeds," when used with respect to any amounts derived from claims made on account of insurance coverages required under this Agreement, any condemnation award arising out of the condemnation of all or any portion of the Equipment, or any amounts received in lieu or in settlement of any of the foregoing, means the amount remaining after deducting from the gross proceeds thereof all expenses (including attorneys' fees and costs) incurred in the collection of such proceeds, and after reimbursement to the Town or BB&T for amounts previously expended to remedy the event giving rise to such payment or proceeds. "Payment Dates" means the dates indicated in Exhibit B. "Prime Rate" means the interest rate so denominated and set by Branch Banking & Trust Company of North Carolina (whether or not such Bank, or any affiliate thereof, is at any time the counterparty to this Agreement) as its "Prime Rate," as in effect from time to time. "Project Costs" means all costs of the design, planning, acquiring and installing the Equipment as determined in accordance with generally accepted accounting principles and that will not adversely affect the exclusion from gross income for federal income tax purposes of the designated interest component of Base Payments payable by the Town under this Agreement, including (a) sums required to reimburse the Town or its agents for advances for any such costs, (b) interest during the period of the acquisition and installation of the Equipment and for up to six months thereafter, and (c) all costs related to the financing of the Equipment through this Agreement and all related transactions. "Required Payments" means Base Payments and Additional Payments. “State” means the Commonwealth of Virginia. “Town” means the Town of Damascus, Virginia. “Town Representative” means the Town’s Finance Director or such other person or persons at the time designated, by a written certificate furnished to BB&T and signed on the Town's behalf by the presiding officer of the Town's Governing Board, to act on the Town's behalf for any purpose (or any specified purpose) under this Agreement. “UCC” means the Uniform Commercial Code or any successor law as in effect from time to time in the State.
All references in this Agreement to designated "Sections"
and other subdivisions are to the designated sections and other subdivisions
of this Agreement. The words "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole
and not to any particular Section or other subdivision unless the
context indicates otherwise. Words importing the singular number shall
include the plural number and vice versa. 2.01. Lease. BB&T hereby leases to the Town, and the Town hereby leases from BB&T, the Equipment, for a term beginning on the Closing Date and ending upon final payment of all Required Payments, unless this Lease is earlier terminated. The Town shall be entitled to possession of all property constituting any portion of the Equipment and may retain possession of all property constituting any portion of the Equipment so long as no Event of Default is continuing under this Agreement and no Event of Nonappropriation has occurred. 2.02. Advance. BB&T advances $16,850.00 (the "Amount Advanced") to the Town on the Closing Date, and the Town hereby accepts the Amount Advanced from BB&T. BB&T is advancing the Amount Advanced directly to the Town for the acquisition of the Equipment for lease to the Town. The Amount Advanced and all investment earnings thereon shall be used only for Project Costs.
2.03. UCC Security Agreement. (b) The Town shall execute, deliver and file, or cause to be filed, in such place or places as may be required by law, financing statements (including any continuation statements required by the UCC or requested by BB&T) in such form as BB&T may reasonably require to perfect and continue the security interest in the Equipment and in the Amount Advanced. 2.04. Town’s Limited Obligation. (a) No provision of this Agreement shall be construed or interpreted as creating a pledge of the Town's faith and credit within the meaning of any constitutional debt limitation. No provision of this Agreement shall be construed or interpreted as an improper delegation of governmental powers or as a donation or a lending of the Town's credit within the meaning of the State constitution. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of the Town's moneys (other than the funds held under this Agreement), nor shall any provision of this Agreement restrict the future issuance of any of the Town's bonds or obligations payable from any class or source of the Town's moneys (except to the extent this Agreement restricts the incurrence of additional obligations secured by the Equipment). (b) Nothing in this Section is intended to impair or prohibit execution on the Equipment if the Required Payments are not paid when due or otherwise upon the occurrence of an Event of Default under this Agreement.
2.05. Town's Continuing Obligations. The Town shall remain liable
for full performance of all its covenants under this Agreement (subject
to the limitations described in Section 2.04), including payment of
all Required Payments, notwithstanding the occurrence of any event
or circumstances whatsoever, including any of the following: (b) The forbearance or extension of time for payment or performance of any obligation under this Agreement, whether granted to the Town, a subsequent owner of the Equipment or any other person; (c) The release of all or part of the Equipment or the release of any party who assumes all or any part of such performance; (d) Any act or omission by BB&T (but this section provision does not relieve BB&T of any of its obligations under this Agreement); (e) The sale of all or any part of the Equipment; or (f) Another party's assumption of the Town's obligations under this Agreement.
3.01. Rental; Purchase Option. (a) As rental for the Equipment, the Town shall make Base Payments to BB&T in lawful money of the United States at the times and in the amounts set forth in Exhibit B, except as otherwise provided in this Agreement. As indicated in Exhibit B, the Base Payments reflect the repayment of the Amount Advanced and include designated interest components. (b) Upon payment of all the Base Payments and all Additional Payments, the Town may, at its option, purchase all of BB&T’s interest in the Equipment, on an as-is, where-is basis, upon notice and payment to BB&T of the sum of Ten Dollars. This option to purchase the Equipment is personal to the Town and is not assignable. 3.02. Additional Payments. The Town shall pay all Additional Payments on a timely basis directly to the person or entity to which such Additional Payments are owed in lawful money of the United States. 3.03. Prepayment. At its option on any scheduled Payment Date, the Town may prepay the outstanding principal component of the Amount Advanced (in whole but not in part), and thereby obtain ownership of all the Equipment free of this lease and BB&T’s security interest in the Equipment, by paying (a) all Additional Payments then due and payable, (b) all interest accrued and unpaid to the prepayment date, and (c) 100% of the outstanding principal component of the Amount Advanced. 3.04. Late Payments. If the Town fails to pay any Base Payment when due, the Town shall pay additional interest on the principal component of the late Base Payment at an annual rate equal to the Prime Rate from the original due date. 3.05. Appropriations. (a) The Budget Officer shall include in the initial proposal for each of the Town's annual budgets the amount of all Base Payments and estimated Additional Payments coming due during the Fiscal Year to which such budget applies. Notwithstanding that the Budget Officer includes such an appropriation for Required Payments in a proposed budget, the Governing Board may determine not to include such an appropriation in the Town's final budget for such Fiscal Year. (b) The Budget Officer shall deliver to BB&T, within 15 days after the beginning of each Fiscal Year, a certificate stating whether an amount equal to the Base Payments and estimated Additional Payments coming due during the next Fiscal Year has been appropriated by the Town in such budget for such purposes.
(d) The Town reasonably believes that it can obtain funds sufficient to pay all Required Payments when due. (e) The Town acknowledges and agrees that the nonappropriation provisions of this Agreement are not intended to be used (i) as a substitute for convenience termination nor (ii) to allow the Town to replace the Equipment with other substantially identical or functionally equivalent property. The Town, to the extent permitted by law, agrees not to use the nonappropriation provisions for any such purpose. 3.06. No Abatement. There shall be no abatement or reduction of the Required Payments for any reason, including, but not limited to, any defense, recoupment, setoff, counterclaim, or any claim (real or imaginary) arising out of or related to the Equipment, except as expressly provided in this Agreement. The Town assumes and shall bear the entire risk of loss and damage to the Equipment from any cause whatsoever. The Base Payments shall be made in all events unless the Town's obligation to make Base Payments is terminated as otherwise provided in this Agreement. 3.07. Interest Rate and Payment Adjustment. (a) “Rate Adjustment Event” means any action by the Internal Revenue Service (including the delivery of a deficiency notice) or any other federal court or administrative body determining (i) that the interest component of Base Payments, or any portion thereof, is includable in any counterparty's gross income for federal income tax purposes or (ii) that the Town's obligations under this Agreement are not "qualified tax-exempt obligations" within the meaning of Code Section 265 (a “265 Event”), in any case as a result of any misrepresentation by the Town or as a result of any action the Town takes or fails to take. (b) Upon any Rate Adjustment Event, (i) the unpaid principal portion of the Amount Advanced shall continue to be payable on dates and in amounts as set forth in Exhibit B, but (ii) the interest components of the Base Payments shall be recalculated, at an interest rate equal to an annualized interest rate equal to the Prime Rate plus 2% (200 basis points), to the date (retroactively, if need be) determined pursuant to the Rate Adjustment Event to be the date interest became includable in any counterparty's gross income for federal income tax purposes (in the case of a 265 Event, retroactively to the Closing Date). (c) The Town shall pay interest at such adjusted rate (subject to credit for interest previously paid) to each affected counterparty, notwithstanding the fact that any particular counterparty may not be a counterparty to this Agreement on the date of a Rate Adjustment Event. The Town shall additionally pay to all affected counterparties any interest, penalties or other charges assessed against or payable by such counterparty and attributable to a Rate Adjustment Event notwithstanding the prior repayment of the entire Amount Advanced or any transfer to another counterparty.
TOWN'S COVENANTS, REPRESENTATIONS AND WARRANTIES 4.01. Indemnification. To the extent permitted by law, the Town shall indemnify, protect and save BB&T and its officers and directors harmless from all liability, obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including attorneys' fees, arising out of, connected with, or resulting directly or indirectly from the Equipment or the transactions contemplated by this Agreement, including without limitation the possession, condition or use of the Equipment. The indemnification arising under this Section shall survive the Agreement's termination. 4.02. Covenant as to Tax Exemption. (a) The Town shall not take or permit, or omit to take or cause to be taken, any action that would cause its obligations under this Agreement to be "arbitrage bonds" or "private activity bonds" within the meaning of the Code, or otherwise adversely affect the exclusion from gross income for federal income tax purposes of the designated interest component of Base Payments to which such components would otherwise be entitled. If the Town should take or permit, or omit to take or cause to be taken, any such action, the Town shall take or cause to be taken all lawful actions within its power necessary to rescind or correct such actions or omissions promptly upon having knowledge thereof. (b) In particular, the Town covenants that it shall not permit the Amount Advanced, plus the investment earnings thereon (the "Proceeds"), to be used in any manner that would result in 5% or more of the Base Payments being directly or indirectly secured by an interest in property, or derived from payments in respect of property or borrowed money, being in either case used in a trade or business carried on by any person other than a governmental unit, as provided in Code Section 141(b), or result in 5% or more of the Proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Code Section 141(c); provided, however, that if the Town receives a Bond Counsel Opinion that compliance with any such covenant is not required to prevent the interest components of Base Payments from being includable in the counterparty's gross income for federal income tax purposes under existing law, the Town need not comply with such covenant. (c) Unless the Town qualifies for one or more exceptions to the arbitrage rebate requirement with respect to this financing, the Town shall provide for the rebate to the United States of (i) at least 90% of the required rebate amount (A) on or before 60 days after the date that is five years from the Closing Date, and (B) at least once during each five years thereafter while the Obligations remain outstanding, and (ii) the entire required rebate amount on or before 60 days after the date of final payment of the Obligations. Payments shall be made in the manner prescribed by the Internal Revenue Service. The Town shall cause the required rebate amount to be recomputed as of each fifth anniversary of the Closing Date, and again as of the date of final payment of the Obligations. The Town shall provide BB&T with a copy of the results of such computation within 20 days after the end of each computation period or final payment of the Obligations. Each computation shall be prepared or approved, at the Town's expense, by a person with experience in matters of accounting for federal income tax purposes, a bona fide arbitrage rebate calculating and reporting service, or nationally-recognized bond counsel, in any case reasonably acceptable to BB&T. The Town shall engage such rebate consultant to perform the necessary calculations not less than 60 days prior to the date of the required payment. (d) The Town acknowledges that its personnel must be familiar with the arbitrage rebate rules, because the tax-exempt status of the interest on the Obligations depends upon continuing compliance with such rules. The Town therefore covenants to take all reasonable action to assure that Town personnel responsible for the investment of and accounting for financing proceeds comply with such rules. 4.03. Validity of Organization and Acts. The Town is validly organized and existing under State law, has full power to enter into this Agreement and has duly authorized and has obtained all required approvals and all other necessary acts required prior to the execution and delivery of this Agreement. This Agreement is a valid, legal and binding obligation of the Town. 4.04. Maintenance of Existence. The Town shall maintain its existence, shall continue to be a local governmental unit of the State, validly organized and existing under State law, and shall not consolidate with or merge into another local governmental unit of the State, or permit one or more other local governmental units of the State to consolidate with or merge into it, unless the local governmental unit thereby resulting assumes the Town's obligations under this Agreement. 4.05. Acquisition of Permits and Approvals. All permits, consents, approvals or authorizations of all governmental entities and regulatory bodies, and all filings and notices required on the Town's part to have been obtained or completed as of today in connection with the authorization, execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement and the acquisition and installation of the Equipment have been obtained and are in full force and effect, and there is no reason why any future required permits, consents, approvals, authorizations or orders cannot be obtained as needed. 4.06. No Breach of Law or Contract. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement, nor the fulfillment of or compliance with the terms and conditions of this Agreement, (a) to the best of the Town's knowledge, constitutes a violation of any provision of law governing the Town or (b) results in a breach of the terms, conditions or provisions of any contract, agreement or instrument or order, rule or regulation to which the Town is a party or by which the Town is bound. 4.07. No Litigation. There is no litigation or any governmental administrative proceeding to which the Town (or any official thereof in an official capacity) is a party that is pending or, to the best of the Town's knowledge after reasonable investigation, threatened with respect to (a) the Town's organization or existence, (b) its authority to execute and deliver this Agreement or to comply with the terms of this Agreement, (c) the validity or enforceability of this Agreement or the transactions contemplated by this Agreement, (d) the title to office of any Governing Board member or any other Town officer, (e) any authority or proceedings relating to the Town's execution or delivery of this Agreement, or (f) the undertaking of the transactions contemplated by this Agreement. 4.08. No Current Default or Violation. (a) The Town is not in violation of any existing law, rule or regulation applicable to it, (b) the Town is not in default under any contract, other agreement, order, judgment, decree or other instrument or restriction of any kind to which the Town is a party or by which it is bound or to which any of its assets are subject, including this Agreement, and (c) no event or condition has happened or existed, or is happening or existing, under the provisions of any such instrument, including this Agreement, which constitutes or which, with notice or lapse of time, or both, would constitute an event of default hereunder or thereunder. 4.09. No Misrepresentation. No representation, covenant or warranty by the Town in this Agreement is false or misleading in any material respect. 4.10. Environmental Warranties and Indemnification. (a) The Town warrants and represents to BB&T that, to the best of the Town's knowledge after thorough investigation, the Equipment is not now and has not ever been used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process Hazardous Materials. (b) The Town covenants that the Equipment shall be kept free of Hazardous Materials and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process Hazardous Materials, except in connection with the normal maintenance and operation of the Equipment, and the Town shall not cause or permit, as a result of any intentional or unintentional act or omission on the part of the Town or any lessee, the release of Hazardous Materials onto the Equipment or suffer the presence of Hazardous Materials on the Equipment, except in connection with the normal maintenance and operation of the Equipment. (c) The Town shall comply with, and ensure compliance by all users and lessees with, all applicable federal, State and local laws, ordinances, rules and regulations with respect to Hazardous Materials and shall keep the Equipment free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. If the Town receives any notices from any governmental agency or any lessee with regard to Hazardous Materials on, from or affecting the Equipment, the Town shall immediately notify BB&T. The Town shall conduct and complete all investigations, studies, sampling and testing and all remedial, removal and other actions necessary to clean up and remove all Hazardous Materials on, from or affecting the Equipment in accordance with all applicable federal, State and local laws, ordinances, rules, regulations and policies and to BB&T’s satisfaction. (d) "Hazardous Materials" means any explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos or any materials containing asbestos, or any other substance or material as defined by any federal, State or local environmental law, ordinance, rule or regulation including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. sections 9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. sections 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. sections 9601 et seq.), and the regulations adopted and publications promulgated pursuant thereto. (e) To the extent permitted by law, the Town shall indemnify and hold BB&T harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against BB&T as a direct or indirect result of any warranty or representation made by the Town in subsections (a) through (c) above being false or untrue in any material respect, or (ii) any requirement under any law, regulation or ordinance, local, State or federal, which requires the elimination or removal of any hazardous materials, substances, wastes or other environmentally regulated substances by BB&T or the Town or any transferee or assignee BB&T or the Town. (f) The Town's obligations under this Section shall continue in full force and effect notwithstanding full payment of the Required Payments or execution on the security interests created under this Agreement. 4.11. Further Instruments. Upon BB&T's request, the Town shall execute, acknowledge and deliver such further instruments reasonably necessary or desired by BB&T to carry out more effectively the purposes of this Agreement or any other document related to the transactions contemplated by this Agreement, and to subject to the liens and security interests hereof and thereof all or any part of the Equipment intended to be given or conveyed hereunder or thereunder, whether now given or conveyed or acquired and conveyed subsequent to the date of this Agreement. 4.12. BB&T's Advances for Performance of Town's Obligations. If the Town fails to perform any of its obligations under this Agreement, BB&T is hereby authorized, but not obligated, to perform such obligation or cause it to be performed. All expenditures incurred by BB&T (including any advancement of funds for payment of taxes, insurance premiums or other costs of maintaining the Equipment, and any associated legal or other expenses), together with interest thereon at the Prime Rate, shall be secured as Additional Payments under this Agreement. The Town promises to pay all such amounts to BB&T immediately upon demand. 4.13. Equipment Will Be Used and Useful. The acquisition and installation of the Equipment is necessary and expedient for the Town, and will perform essential functions of the Town appropriate for units of local government. The Town has an immediate need for, and expects to make immediate use of, all of the Equipment, and does not expect such need or use to diminish in any material respect during the term of the Agreement. The Equipment will not be used in any private business or put to any private business use. 4.14. Financial Information. (a) The Town shall send to BB&T a copy of the Town’s audited financial statements for each Fiscal Year within 30 days of the Town’s acceptance of such statements, but in any event within 120 days of the completion of such Fiscal Year. (b) The Town shall furnish BB&T, at such reasonable times as BB&T shall request, all other financial information (including, without limitation, the Town's annual budget as submitted or approved) as BB&T may reasonably request. The Town shall permit BB&T or its agents and representatives to inspect the Town's books and records and make extracts therefrom. 4.15. Taxes and Other Governmental Charges. The Town shall pay, as Additional Payments, the full amount of all taxes, assessments and other governmental charges lawfully made by any governmental body during the term of this Agreement. With respect to special assessments or other governmental charges which may be lawfully paid in installments over a period of years, the Town shall be obligated to provide for Additional Payments only for such installments as are required to be paid during the Agreement term. The Town shall not allow any liens for taxes, assessments or governmental charges with respect to the Equipment or any portion thereof to become delinquent (including, without limitation, any taxes levied upon the Equipment or any portion thereof which, if not paid, will become a charge on any interest in the Equipment, including BB&T's interest, or the rentals and revenues derived therefrom or hereunder). 4.16. Town's Insurance. (a) The Town shall, at its own expense, acquire, carry and maintain broad-form extended coverage property damage insurance with respect to all Equipment in an amount equal to the estimated replacement cost, including installation costs, of the Equipment. Such property damage insurance shall include BB&T as a loss payee. The Town shall provide evidence of such coverage to BB&T promptly upon installation of the Equipment. Any Net Proceeds of the insurance required by this subsection (a) shall be payable as provided in Section 5.14. (b) The Town shall, at its own expense, acquire, carry and maintain comprehensive general liability insurance in an amount not less than $1,000,000 for personal injury or death and $1,000,000 for property damage. (c) The Town shall also maintain workers' compensation insurance issued by a responsible carrier authorized under State law to insure the Town against liability for compensation under applicable State law as in effect from time to time. (d) All insurance shall be maintained with generally recognized responsible insurers and may carry reasonable deductible or risk-retention amounts. All such policies shall be deposited with BB&T, provided that in lieu of such policies there may be deposited with BB&T a certificate or certificates of the respective insurers attesting the fact that the insurance required by this Section is in full effect. Prior to the expiration of any such policy, the Town shall furnish BB&T evidence satisfactory to BB&T that the policy has been renewed or replaced or is no longer required by this Agreement. (e) No Town agent or employee shall have the power to adjust or settle any property damage loss greater than $50,000 with respect to the Equipment, whether or not covered by insurance, without BB&T's prior written consent. (f) BB&T shall not be responsible for the sufficiency or adequacy of any required insurance and shall be fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss agreed to by BB&T. (g) The Town shall deliver to BB&T annually by June 30 of each year a certificate stating that the risk coverages required by this Agreement are in effect, and stating the carriers, policy numbers, coverage limits and deductible or risk-retention amounts for all such coverages.
5.01. Acquisition and Installation. The Town shall comply with all
provisions of law applicable to the acquisition of the Equipment,
accept all portions of the Equipment when properly delivered, provide
for the proper installation thereof and thereafter promptly place
each such portion in service. 5.03. Acquisition and Installation within Funds Available. The Town represents that, based upon its examination of the plans and specifications for the Equipment, estimated installation costs and the Equipment's anticipated configuration, the Equipment can be acquired and installed for a total price within the total amount of funds to be available therefore from the Amount Advanced, income anticipated to be derived from the investment thereof and other funds previously identified and designated for such purposes. If the total amount available for such purposes from the Amount Advanced shall be insufficient to pay the entire cost of acquiring and installing the Equipment, the Town promises to pay any such excess costs, with no resulting reduction or offset in the amounts otherwise payable by the Town under this Agreement. 5.04. Disclaimer of Warranties. The Town agrees that BB&T has not designed the Equipment, that BB&T has not supplied any plans or specifications with respect thereto and that BB&T (a) is not a manufacturer of, nor a dealer in, any of the component parts of the Equipment or similar Equipment, (b) has not made any recommendation, given any advice nor taken any other action with respect to (i) the choice of any supplier, vendor or designer of, or any other contractor with respect to, the Equipment or any component part thereof or any property or rights relating thereto, or (ii) any action taken or to be taken with respect to the Equipment or any component part thereof or any property or rights relating thereto at any stage of the acquisition, installation and equipping thereof, (c) has not at any time had physical possession of the Equipment or any component part thereof or made any inspection thereof or of any property or rights relating thereto, and (d) has not made any warranty or other representation, express or implied, that the Equipment or any component part thereof or any property or rights relating thereto (i) will not result in or cause injury or damage to persons or property, (ii) has been or will be properly designed, or will accomplish the results which the Town intends therefore, or (iii) is safe in any manner or respect. BB&T MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR ANY COMPONENT PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE MERCHANTABILITY OR THE FITNESS OR SUITABILITY THEREOF FOR ANY PURPOSE, and further including the design or condition thereof; the safety, quality or capacity thereof; compliance thereof with the requirements of any law, rule, specification or contract pertaining thereto; any latent defect; the Equipment’s ability to perform any function; that the Amount Advanced will be sufficient to pay all costs of the acquisition and installation of the Equipment; or any other characteristic of the Equipment; it being agreed that the Town is to bear all risks relating to the Equipment, the installation thereof and the transactions contemplated by this Agreement, and the Town hereby waives the benefits of any and all implied warranties and representations of BB&T. The provisions of this Section shall survive the Agreement's termination.
5.05. Right of Entry and Inspection. BB&T and its representatives
and agents shall have the right to enter upon the Town’s property
and inspect the Equipment from time to time during installation and
after the completion of installation, and the Town shall cause any
vendor, contractor or sub-contractor to cooperate with BB&T and
its representatives and agents during such inspections. 5.06. Compliance with Requirements. (a) The Town shall cause the Equipment to be installed in a careful manner and in compliance with all applicable legal requirements. (b) The Town shall observe and comply promptly with all current and future requirements relating to the Equipment's use or condition imposed by (i) any judicial, governmental or regulatory body having jurisdiction over the Equipment or any portion thereof or (ii) any insurance company writing a policy covering the Equipment or any portion thereof, whether or not any such requirement shall necessitate structural changes or improvements or interfere with the use or enjoyment of the Equipment. (c) The Town shall obtain and maintain in effect all licenses and permits required for the Equipment’s operation. (d) The Town shall in no event use the Equipment or any part thereof, nor allow the same to be used, for any unlawful purpose, or suffer any act to be done or any condition to exist with respect to the Equipment or any part thereof, nor any article to be brought thereon, which may be dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance then in force with respect thereto. 5.07. Use and Operation. The Town shall use and operate the Equipment and related property as a backhoe and truck, and for no other purpose unless required by law. The Town shall be solely responsible for the Equipment’s operation, and shall not contract with any other person or entity for the Equipment’s operation.
(b) The Town may, also at its own expense, make from time to time any additions, modifications or improvements to the Equipment that it may deem desirable for its governmental or proprietary purposes and that do not materially impair the effective use, nor materially decrease the value or substantially alter the intended use, of the Equipment. The Town shall do, or cause to be done, all such things as may be required by law in order fully to protect the security of and all BB&T's rights under this Agreement.
(c) Any and all additions to or replacements of the Equipment and
all parts thereof shall constitute accessions to the Equipment and
shall be subject to all the terms and conditions of this Agreement
and included in the "Equipment" for the purposes of this
Agreement. 5.09. Security. The Town shall take all reasonable steps necessary to safeguard the Equipment against theft. The security afforded the Equipment shall at all times be equal to or better than the security afforded the Town's personal property that is not subject to this Agreement. 5.10. Utilities. The Town shall pay all charges for utility services furnished to or used on or in connection with the Equipment. 5.11. Risk of Loss. The Town shall bear all risk of loss to and condemnation of the Equipment. 5.12. Condemnation. (a) The Town shall immediately notify BB&T if any governmental authority shall institute, or shall notify the Town of any intent to institute, any action or proceeding for the taking of, or damages to, all or any part of the Equipment or any interest therein under the power of eminent domain, or if there shall be any damage to the Equipment due to governmental action, but not resulting in a taking of any portion of the Equipment. The Town shall file and prosecute its claims for any such awards or payments in good faith and with due diligence and cause the same to be collected and paid over to BB&T, and to the extent permitted by law hereby irrevocably authorizes and empowers BB&T, in the Town's name or otherwise, to collect and receipt for any such award or payment and to file and prosecute such claims. If the Town receives any Net Proceeds arising from any such action, the Town shall apply such Net Proceeds as provided in Section 5.14. (b) If any of the real or personal property acquired or improved by the Town (in whole or in part) using any portion of the Amount Advanced consists of or is located on any real property acquired by the Town through the exercise of the power of eminent domain, or through the threat of the exercise of the power of eminent domain, then during the term of this Agreement the Town may not transfer any interest in such real property to any entity other than a local governmental unit without BB&T’s prior express written consent. 5.13. No Encumbrance, Mortgage or Pledge of Equipment. (a) The Town shall not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics' and materialmen's liens), charge, encumbrance or other claim in the nature of a lien on or with respect to the Equipment. The Town shall promptly, at its own expense, take such action as may be duly necessary to discharge any such mortgage, pledge, lien, charge, encumbrance or claim not excepted above which it shall have created, incurred or suffered to exist.
(b) The Town shall reimburse BB&T for any expense incurred by
BB&T to discharge or remove any such mortgage, pledge, lien, security
interest, encumbrance or claim, with interest thereon at the Prime
Rate. (b) If the Net Proceeds arising from any single event, or any single substantially related sequence of events, is not more than $50,000, the Town shall retain such Net Proceeds and apply the same to the prompt completion, repair or restoration of the Equipment, and shall promptly thereafter report to BB&T regarding the use of such Net Proceeds. (c) If the Net Proceeds arising from any single event, or any single substantially related sequence of events, is more than $50,000, then the Town shall cause such Net Proceeds to be paid to an escrow agent (which shall be a bank, trust company or similar entity exercising fiduciary responsibilities) designated by BB&T for deposit in a special escrow fund to be held by such escrow agent. The Town shall thereafter provide for the application of all Net Proceeds to the prompt completion, repair or restoration of the Equipment, as the case may be. The escrow agent shall disburse Net Proceeds for the payment of such costs upon receipt of requisitions in form and substance acceptable to BB&T and such escrow agent. If the Net Proceeds shall be insufficient to pay in full the cost of completion, repair or restoration, the Town shall either (i) complete the work and pay any cost in excess of the Net Proceeds, or (ii) not carry out such completion, repair or restoration, and instead apply the Net Proceeds, together with other available funds as may be necessary, to the prepayment of all outstanding Required Payments pursuant to Section 3.03. (d) Any repair, restoration, modification, improvement or replacement paid for in whole or in part out of Net Proceeds shall be the Town's property and shall be part of the Equipment.
6.01. Events of Default. An "Event of Default" is any of the following: (a) The Town's failing to make any Base Payment when due. (b) The Town's breaching or failing to perform or observe any term, condition or covenant of this Agreement on its part to be observed or performed, other than as provided in subsection (a) above, including payment of any Additional Payment, for a period of 15 days after written notice specifying such failure and requesting that it be remedied shall have been given to the Town by BB&T, unless BB&T shall agree in writing to an extension of such time prior to its expiration. (c) The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law by or against the Town as a debtor, or the appointment of a receiver, custodian or similar officer for the Town or any of its property, and the failure of such proceedings or appointments to be vacated or fully stayed within 30 days after the institution or occurrence thereof. (d) Any warranty, representation or statement made by the Town in this Agreement is found to be incorrect or misleading in any material respect on the Closing Date (or, if later, on the date made).
(e) Any lien, charge or encumbrance prior to the security interest
created under Section 2.03, or affecting the validity of the Agreement,
is found to exist, or proceedings are instituted against the Town
to enforce any lien, charge or encumbrance against the Equipment and
such lien, charge or encumbrance would be prior to the lien of this
Agreement. 6.02. Remedies on Default. Upon the continuation of any Event of Default, BB&T may, without any further demand or notice, exercise any one or more of the following remedies: (a) Declare the unpaid principal components of the Base Payments immediately due and payable; (b) Proceed by appropriate court action to enforce the Town’s performance of the applicable covenants of this Agreement or to recover for the breach thereof; and (c) Avail itself of all available remedies under this Agreement, including execution as provided in Section 6.03, and recovery of attorneys' fees and other expenses.
6.04. Consequences of Nonappropriation. Upon an Event of Nonappropriation, the Town shall have no further obligation to pay Base Payments beyond the end of the Fiscal Year for which amounts have been appropriated for Base Payments. This Agreement shall terminate on the last day of the Fiscal Year for which amounts have been appropriated for Base Payments without any penalty to the Borrower whatsoever. The Town agrees to peaceably surrender possession the Equipment to BB&T or its assignees on the first day of the Fiscal Year to which the Event of Nonappropriation applies, packed for shipment in accordance with manufacturer specifications and freight prepaid and insured to any location in the continental United States or Canada designated by BB&T. In addition, upon the occurrence of any Event of Nonappropriation, BB&T may, without any further demand or notice, take action with respect to the Town and the Equipment as contemplated in Section 6.05. An Event of Nonappropriation and resulting termination of this Agreement shall not relieve the Town of liability for any defaults under this Agreement occurring prior to the Event of Nonappropriation, or of liability under those provisions of this Agreement which are stated to survive termination. 6.05. Possession of Equipment. Upon the continuation of an Event of Default or the occurrence of an Event of Nonappropriation, the Town shall immediately lose the right to possess, use and enjoy the Equipment (but may remain in possession of the Equipment as a lessee at will of BB&T), and thereupon the Town (a) shall pay monthly in advance to BB&T a fair and reasonable rental value for the use and possession of the Equipment (in an amount BB&T shall determine in its reasonable judgment), and (b) upon BB&T's demand, shall deliver possession of the Equipment to BB&T or, at BB&T's direction, to any purchaser of the Equipment after an execution sale. In addition, upon the continuation of any Event of Default or the occurrence of an Event of Nonappropriation, BB&T, to the extent permitted by law, is hereby authorized to (i) take possession of the Equipment, with or without legal action, (ii) lease the Equipment, (iii) collect all rents and profits therefrom, with or without taking possession of the Equipment, and (iv) after deducting all costs of collection and administration expenses, apply the net rents and profits first to the payment of necessary maintenance and insurance costs, and then to the Town's account and in reduction of the Town's corresponding Required Payments in such fashion as BB&T shall reasonably deem appropriate. BB&T shall be liable to account only for rents and profits it actually receives. 6.06. No Remedy Exclusive; Delay Not Waiver. All remedies under this Agreement are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed an election of such remedy or preclude the exercise of any other remedy. If any Event of Default shall occur and thereafter be waived by BB&T, such waiver shall be limited to the particular breach so waived and shall not be deemed a waiver of any other breach under this Agreement. 6.07. Payment of Costs and Attorney's Fees. If BB&T employs an attorney to assist in the enforcement or collection of Required Payments, or if BB&T voluntarily or otherwise shall become a party to any suit or legal proceeding (including a proceeding conducted under any state or federal bankruptcy or insolvency statute) to protect the Equipment, to protect the lien of this Agreement, to enforce collection of the Required Payments or to enforce compliance by the Town with any of the provisions of this Agreement, the Town agrees to pay reasonable attorneys' fees and all of the costs that may reasonably be incurred (whether or not any suit or proceeding is commenced), and such fees and costs (together with interest at the Prime Rate) shall be secured as Required Payments.
7.01. Notices. (a) Any communication required or permitted by this Agreement must be in writing. (b) Any communication under this Agreement shall be sufficiently given and deemed given when delivered by hand or five days after being mailed by first-class mail, postage prepaid, addressed as follows: (i) If to the Town, to Post Office Box 576, Damascus, Virginia 24236 Attention: Finance Director; or (ii) If to BB&T, to 5130 Parkway Plaza Boulevard, Building No. 9, Charlotte, North Carolina 28217, Attention: Account Administration/Municipal.
(c) Any addressee may designate additional or different addresses
for communications by notice given under this Section to each of the
others. 7.03. Assignments by BB&T. BB&T may, at any time and from time to time, assign all or any part of its interest in the Equipment or this Agreement, including, without limitation, BB&T's rights to receive Required Payments. Any assignment made by BB&T or any subsequent assignee shall not purport to convey any greater interest or rights than those held by BB&T pursuant to this Agreement. The Town agrees that this Agreement may become part of a pool of obligations at BB&T's or its assignee's option. BB&T or its assignees may assign or reassign all or any part of this Agreement, including the assignment or reassignment of any partial interest through the use of certificates evidencing participation interests in this Agreement. Notwithstanding the foregoing, no assignment or reassignment of BB&T's interest in the Equipment or this Agreement shall be effective unless and until the Town shall receive a duplicate original counterpart of the document by which such assignment or reassignment is made disclosing the name and address of each such assignee. The Town further agrees that BB&T's interest in this Agreement may be assigned in whole or in part upon terms which provide in effect that the assignor or assignee will act as a collection and paying agent for any holders of certificates of participation in this Agreement, provided the Town receives a copy of such agency contract and such collection and paying agent covenants and agrees to maintain for the full remaining term of this Agreement a written record of each assignment and reassignment of such certificates of participation. The Town agrees to execute any document reasonably required in connection with any assignment. Any assignor must provide notice of any assignment to the Town, and the Town shall keep a complete and accurate record of all assignments as required by the Code. After the giving of any such notice, the Town shall thereafter make all payments in accordance with the notice to the assignee named therein and shall, if so requested, acknowledge such assignment in writing, but such acknowledgment shall in no way be deemed necessary to make the assignment effective. 7.04. Amendments. No term or provision of this Agreement may be amended, modified or waived without the prior written consent of the Town and BB&T. 7.05. Governing Law. The Town and BB&T intend that State law shall govern this Agreement. 7.06. Liability of Officers and Agents. No officer, agent or employee of the Town shall be subject to any personal liability or accountability by reason of the execution of this Agreement or any other documents related to the transactions contemplated by this Agreement. Such officers or agents shall be deemed to execute such documents in their official capacities only, and not in their individual capacities. This Section shall not relieve an officer, agent or employee of the Town from the performance of any official duty provided by law. 7.07. Severability. If any provision of this Agreement shall be determined to be unenforceable, that shall not affect any other provision of this Agreement. 7.08. Non-Business Days. If the date for making any payment or the last day for performance of any act or the exercising of any right shall not be a Business Day, such payment shall be made or act performed or right exercised on or before the next preceding Business Day. 7.09. Entire Agreement. This Agreement constitutes the Town's entire agreement with respect to the general subject matter covered by this Agreement. 7.10.
Binding Effect. Subject to the specific provisions of this Agreement,
and in particular Section 7.03, this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. (SEAL)
EXHIBIT A -- PROJECT AND EQUIPMENT DESCRIPTION
Contract Number: 003-0380077-002 The payments required to repay the advance made pursuant to the Lease Agreement call for an amortization period of approximately three (3) years. Payments are monthly in arrears in the amount of $496.73. A portion of each payment is paid as and represents payment of interest at an annual interest rate of 3.90%.
Payments are due beginning on June ____, 2008, and monthly thereafter,
with a final payment of all outstanding principal and accrued and
unpaid interest due on May ___, 2011, all as set forth in the attached
amortization schedule. Compound Period: Monthly Nominal Annual Rate: 3.900 % CASH FLOW DATA
Event Date Amount Number Period End Date (tables deleted due to formatting incompatibility - they are available at Town Hall) Mr.
Greer thanked Don Griffin for helping with the concrete on South Shady
Avenue. Sewer,
Water and Sanitation – Ms. Farmer Parks
and Recreation – Mr. Blevins Planning
Commission Police
& Fire Advisory
Richard Smith thanked council and the mayor for supporting Damascus
Dog Day. Mr. Smith also, wanted to thank Joe Fritts and Ralph Grove
for their help with Damascus Dog Day.
Attorney
Report Mr.
Dene requested closed session for Town of Damascus vs. Historical
Inns LLC. Bob Smith stated he has respect for elected officials and appreciates what they do. ü
Mr. Blevins made a motion for closed session for: Closed Session Minutes A motion was made by Mr. Blevins and 2nd by Ms. Farmer to go out of closed session (6-0). A motion to certify was made by Mr. Blevins and 2nd by Ms. Farmer (6-0). A motion made by Mr. Blevins and 2nd by Ms. Farmer to reject the proposed installment agreement between the Town of Damascus and Ronnie Wrenn/ Historical Inns, LLC (6-0).
__________________________ __________________________________________ Creed Jones, Mayor Tonya Triplett, Clerk DAMASCUS
TOWN COUNCIL Council
Members Present: Johnny Blevins, Maurice Parris, Jim Cartwright, Marianna
Farmer, and Mitchell Greer. Mr. Greene came a few minutes late Mayor
Jones called the meeting to order, led the Pledge of Allegiance and
prayer. John
Ponish, with Appalachian Technical Services, Inc reviewed the preliminary
engineering report for the Orchard Hill Sewer Project.
WHEREAS, the Damascus Town Council desires to amend the Cigarette Tax Ordinance; and NOW, THEREFORE, be it hereby ORDAINED that Section 2 of the Cigarette Tax Ordinance shall be and hereby is amended to provide as follows: There is hereby levied and imposed by the town, in addition to any and all other taxes which may be or have been imposed, a tax to be paid and collected as provided in this article on each and every sale of cigarettes made within the town. The tax is to be paid by the seller, dealer or other agent by affixing a stamp or causing a stamp to be affixed to every package of cigarettes, in the kind and manner required in this article and at applicable rates as follows: The rate or amount of tax levied or imposed on cigarettes shall be at the rate of ten cents for each twenty cigarettes or fractional part thereof. This ordinance shall become effective on July 1, 2008. AN
ORDINANCE TO AMEND
(A) Every person or business subject to licensure under this article shall be assessed and required to pay annually: (1) A fee for the issuance of such license in the amount of $50.00. (2) In addition to the license fee specified in subsection (1) of this section, and except as may be otherwise provided in Code of Virginia, §§ 58.1-3712, 58.1-3712.1 and 58.1-3713, every such person or business with annual gross receipts of more than $30.00 shall be assessed and required to pay annually a license tax on all the gross receipts of such persons includable as provided in this article at a rate set forth below for the class of enterprise listed: a. For contractors and persons constructing for their own account for sale, $0.16 per $100.00 of gross receipts; b. For retailers, $0.20 per $100.00 of gross receipts; c. For financial, real estate and professional services, $0.20 per $100.00 of gross receipts; d. For repair, personal and business services and all other businesses and occupations not specifically listed or exempted in this article or otherwise by law, $0.20 per $100.00 of gross receipts; e. For wholesalers, $30.00 on the first $60,000.00 and $0.05 per $100.00 of purchases in excess of $60, |
