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03-31-1952 Special Meeting"74 A special meeting of the Mayor and Council was held at the City Hall, March 31, 1952,, 7:45 P. TA. Mayor Pro-tem, C. M. Hamby, presiding with the following Councilmen present, Glenn Yar- brough, Harry Mitchell,.Jr., C. C. Terrell and Eugene Rice. City Attorney, Harold Willingham, County Commissioner John A. Heck, chairman Cobb.County-Marietta Water Authority, and mem- bers of committee Luke Morris and The Mayor presented to the meeting a proposed contract between the COBB COUNTY-MARIETTA WATER AUTHORITY and the CITY OF SYTYRNA. Such contract was read in full to the meeting and upon the con- clusion of such reading a general discussion concerning same ensued. It was the consensus of all present that it was to the best interest of the City that such contract be forthwith executed with the Cobb County -Marietta dater Authority, and whereupon on motion by Councilman C. C. Terrell and seconded by Council- man H. B. Mitchell the following ordinance pertaining to same was unanimously adopted: AN ORDINANCE TO PROVIDE FOR THE ENTERING INTO OF A CONTRACT WITH THE COBS COUNTY-MARIETTA.WATER AUTHORITY PERTAINING TO THE SUPPLY OF WATER TO BE FURNISHED THE CITY BY SAID AUTHORITY TO PROVIDE FOR THE TERMS AND CONDITIONS UNDER WHICH SAID WATER IS TO BE PURCHASED AND SOLD: TO PROVIDE FOR THE EXECUTION OF SAID CONTRACT, AND FOR OTHER PURPOSES: Whereas, the Mayor and Council of the City of Smyrna has made a thorough investigation into the desirability of procuring its entire source of water supply from the Cobb County -Marietta W Water Authority; and , ti. F Whereas, the Authority is now in the process of completing the necessary details pertaining to the financing of the acquisition and construction of a source of water supply which will be ample to furnish the City its present needs and all of its needs in the foreseeable future; and Whereas., it is deemed to the best.interest of the City to,have an adequate and constant supply of water, same to be furnished by said Authority for the period of time and under the terms and conditions as set forth in a.proposed contract between the Author tytAnd.,the City; c aiid '_ ^ n Whereas, said contract has been read and considered. Now, Therefore, Be it Ordained by the Mayor and Council of the City of Smyrna, and it is hereby ordained by authority of same: That the City of Smyrna do enter into the proposed contract with the Cobb County -Marietta Water Authority, and the Mayor be and is hereby authorized and directed to execute same for and on behalf of the City and the Clerk of the Mayor and Council be and is is hereby authorized and directed to attest such signature and to affix the City+s seal thereto, and that such contract when duly. and properly executed by both parties thereto be spread upon the minutes of this meeting immediately following this ordinance, and the same is hereby made a part hereof. ayor Pro -temp ,104-4 P.x rrell Glenn Yarbrough Clerk 4- _'L, - THIS CONTRACT AND AGREEMENT made and entered into this 2nd day of ........ ...._.... April , 1952 by and between the COBB COUNTY-MARIETTA WATER AUTHORITY, a political subdivision of the State of Georgia and a public corporation thereof, hereinafter referred to as "Authority", as party of the first part, and the CITY OF SMYRNA, a municipal corporation of said State and County, hereinafter referred to as "City", as party of the second part, W I T N E S S E T H WHEREAS, the Authority was created as a political subdi- vision of the State of Georgia and a public corporation thereof by an Act of the General Assembly of such State, approved February 2, 1951, which Act is known as the "Cobb County -Marietta Water Author- ity Act", (Ga. Laws 1951, pages 497-511); and WHEREAS, the County of Cobb, the City of Marietta and this City now own their respective water distribution systems; and WHEREAS, the City as well as the County of Cobb are ob- taining their entire present supply of water from the City of Atlanta, same being furnished through a twenty -inch main of the City of Atlanta paralleling the new Four -Lane Highway, U.S. 41-E, and substantially the whole supply of water of the City -of Marietta is furnished by the same source; and WHEREAS, due to the phenomenal growth of Cobb County and the municipalities located therein during the past decade, the County having increased its population from 38,272 in 1940 to 61,748 in 1950, according to the official Federal Census for such years, and also due to the further growth of the County and its municipalities since 1950, which growth was due in part to the re- activation, under the management of the Lockheed Aircraft Corpora- tion, of the large government aircraft plant in the County located at the Dobbins Air Force Base therein, the present supply of water being furnished, or that could possibly be furnished, by the City of Atlanta through its aforesaid main is wholly inadequate to meet present demands and future'needs; and WHEREAS, cognizant officials of the City of Atlanta have been contacted by interested officials of the County of Cobb and IW of the aforesaid municipalities located therein requesting that the City of Atlanta provide an additional supply of water to meet and supply the present and future needs of the County, including the City of Smyrna, through the construction of one or more additional supply mains and other facilities; and WHEREAS, the City of Atlanta has advised the County and the aforesaid municipalities that the City of Atlanta cannot sup- ply additional water service in Cobb County, and in fact finds it desirable to discontinue entirely or substantiallycurtail the water service now being rendered as aforesaid; and WHEREAS, in view of the above it is and has been impera- tive that the City of Smyrna as well as the County of Cobb and the City of Marietta, for the well being of their citizens and the maintenance of their civilian economy, procure as soon as possible a new source of water supply that will adequately accommodate the needs of each and of their present and future citizens and other users of water; and WHEREAS, neither the County of Cobb nor any of the afore- said municipalities located therein has available sufficient re- sources or credit to enable it, acting alone and without the as- sistance of others, to develop a water supply system adequate to furnish its needs or the needs of others, including various munic- ipalities other than the Cities of Marietta and Smyrna; and WHEREAS, for the above reasons and since the critical water shortage existing all over the County has been imminent for some time, cognizant officials of the County of Cobb and of the municipalities of Marietta, Smyrna, Acworth and Kennesaw located therein did through joint action and endeavor cause the Cobb County - Marietta Water Authority to be created by the Legislature of the State of Georgia as aforesaid; and WHEREAS, the Authority was activated and organized on_ March 21, 1951, and has been diligently functioning since and has made substantially all arrangements for, and is contemplating, the immediate construction of a water supply system to adequately serve the whole of Cobb County and various municipalities therein at an estimated initial total cost of'$3,356,60o; and WHEREAS, such a system when completed will make available - 2 i potable water in quantities sufficient for the needs of the City and will be sold to the City on a wholesale basis; and WHEREAS, the Authority in order to finance the acquisi- tion and construction of the contemplated system is preparing to issue and sell its revenue bonds in the approximate amount of $3,400,000 (whether issued in an amount more or less than such figure, together with any additional bonds to be issued by the Authority and any refunding bonds issued in lieu of such bonds, hereinafter called the "bonds") for the construction of a modern plant on the Chattahoochee River and the necessary reservoirs and treatment facilities and the erection and construction of pumping facilities and pipe lines capable of providing and transmitting an adequate water supply for Cobb County and certain municipalities therein, including this City; and WHEREAS, it is known to both parties that the Authority will use this contract as the basis for the obtaining of credit through the issuance of the Authority's bonds and as the means for the payment of the principal of and interest on such bonds; and WHEREAS, the City recognizes the fact that the Authority must of necessity make similar contracts with Cobb County and with other municipalities; and . WHEREAS, the Authority is desirous of selling unto the City of Smyrna, and the said City is desirous of purchasing from the Authority its entire water requirements for the period of time on terms and conditions as mutually agreed upon and as hereinafter in detail set forth; and WHEREAS, in addition to the general powers of contract granted unto the Authority in the aforesaid Act under which it was created, Subsection (e) of Section 4 of said Act specifically grants unto the Authority, and unto the municipal corporations and counties of this State desiring to contract with the Authority,the following specific right to so do: '1...... authority is specifically granted to municipal corporations and counties and to the authority to en- ter into contracts, lease agreements, or other under- takings relative to the furnishing of water and related services and facilities by the authority to such municipal corporations and counties for a term not exceeding 50 years." - 3 - and WHEREAS, the Constitution of the State of Georgia, Article VII, Section VI, Paragraph (a) contains the following provisions: "The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state in- stitutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such ac- tivities and transactions as such subdivisions are by law authorized to undertake." NOW, THEREFORE, in consideration of the premises and the mutual undertaking as hereinafter set out it is contracted and agreed by and between the Cobb County -Marietta Water Authority and the City of Smyrna, each acting by and through its duly authorized officials, governing authorities and agents pursuant to resolutions and ordinances duly, legally and properly adopted, all as same ap- , pear on the official minutes and records of each: Section 1. Subject only to the provisions of Section 13 hereof, the Authority agrees to sell and to deliver to the City at a mutually satisfactory delivery point, and the City agrees to purchase and to take at such delivery point or points all water required during the period of this agreement for its own use and for distribution to all the customers now or hereafter served by the City's water distribution system. The term of this agreement shall be thirty (30) years from the date hereof, or such longer period as any of the Authority's bonds are outstanding and unpaid. Section 2. That the price at which said water shall be sold is to be determined from time to time by the Authority in a manner here- inafter set forth, it being agreed that the rates for water charged the City of Smyrna during the entire term of the within agreement shall be the same as that charged other wholesale municipal pur- chasers and users of water from the Authority, such as the County of Cobb, and the municipalities of Marietta, Acworth and Kennesaw - 4 - K located therein. Section 3. That there is hereby established an initial rate for the water to be furnished hereunder of nineteen cents (19/) per thous- and gallons, which rate shall remain in effect for a period of at least one year from the date on which water service by the Author- ity to the City is commenced. Section 4. The parties hereto recognize the obligation of the Au- thority to establish and from time to time revise the rate of com- pensation for water sold and services rendered by the Authority to the City under this contract so that the revenues of the Authority will be sufficient to enable the Authority to efficiently operate and maintain the system and perform its obligations covenanted to be performed under its resolution authorizing the issuance of the above mentioned revenue bonds and the rates so established shall be sufficient to produce gross revenues from all its customers to de- fray and pay the following expenses, costs and charges, and to es- , tablish and maintain the following reserves: (a) Necessary expenses of current operation, maintenance and repair. (b) Establishment of required maintenance and deprecia- tion reserves, the amount of same to be determined either by the Authority's consulting engineers or by contracts and agreements that the Authority enters into in connection with the financing of the project as aforesaid. (c) Principal and interest of revenue bonds issued by the Authority together with sinking fund reserve require- ments in connection with same. (d) Reasonable reserves as determined by the Authority for the extension and improvement of the water sup- ply system. Section 5. The Authority agrees that in establishing, adjusting and maintaining the rate of compensation for water sold and delivere'd that such rate will be established at the lowest figure possible consistent with the requirements of Section 4 above. Section 6. The City agrees at all times to establish and maintain - 5 - rates, fees; charges and tolls for water distributed to its users sufficient in amount=to assure its ability to perform its obliga- tions herein provided. The City further agrees that the amounts required hereunder to be paid for water received by it shall be considered as an operating charge of its water system and/or its water and sewerage system ranking equally with the charges for sal- aries, wages and other operating expenses.. Section 7. The Authority shall furnish, install, operate and main- tain at its own expense an appropriate meter or meters on the line or lines of the Authority at the delivery point or points where water is to be furnished by the Authority to the City. The City 0 shall have the right to inspect such metering equipment at all reasonable times upon prior arrangements with the Authority. Section 8. That on the last day of each calendar month the meter or meters erected as aforesaid to measure the water furnished by the Authority unto the City shall be jointly read by authorized repre- sentatives of the Authority and of the City at a mutually agreea- ble time, and in the event that the City shall fail to have its representative or representatives present at such agreed time, then the reading of such meter or meters made by a representative or representatives of the Authority shall be final,'conclusive and binding upon the City. Section 9. That based on the meter reading or readings at the times and in the manner aforesaid the Authority shall render unto the City on or before the 5th day of each calendar month a bill for the water used by the City for the preceding calendar month, and the City shall pay such bill by the 15th day of the calendar month in which it was.rendered, and on failure to so pay, the -Authority shall five days thereafter discontinue the water service provided hereunder. Section 10, That in the event the aforesaid meter or meters shall - 6 - for a period of time fail to function properly and as a result thereof fail to accurately measure the water passing through same, then in such event the charges due hereunder shall be computed either on the average daily consumption shown by such meter or meters when properly functioning, or by the total use of water by the City during any of such periods as determined by the individ- ual retail meters of the City if readings of same be available for a comparable period, making proper allowance for use by the City of unmeter'ed water. Section 11. That if any disagreement shall arise with reference to any of the terms or conditions of this contract, or with reference to any matter connected with same, such disagreement or dispute shall be immediately submitted to and decided by arbitrators. The Authority will appoint one arbitrator and the City one arbitrator, and the two so appointed shall select a third arbitrator, and two of the three so chosen shall control, and their decision in the matter shall be binding on both of the parties hereto, without recourse. Provided that if the two arbitrators first chosen can- not agree on a third, such third arbitrator shall be appointed by the Judge of the Superior Court of Cobb County upon application by either of the parties hereto. Section 12. The Authority shall never have the right to demand pay- ment by the City of any obligation assumed or imposed on it under and by virtue of this contract from funds raised or to be raised by taxation. The City's obligation under this contract shall never be construed to be a debt of the City of such kind as to require it to levy and collect a,tax to discharge such obligation, it being expressly understood by the parties hereto that all payments.due. by the City hereunder are to be made from water and/or water and sewerage revenues received by the City. Section 13. In case by reason of force majeure either party hereto shall be rendered unable wholly or in part to carry out its - 7 - obligations under this agreement, other than the obligation of the City to make the payments required under the terms hereof, then if such party shall give notice and full particulars of such force majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied on, the obligation of the party giving such notice, so far as it is affected by such force majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed herein, shall mean acts of God, strikes, lockouts, or other in- dustrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Georgia or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipe lines, partial or entire failure of water supply, and inability on part of the Authority to deliver water hereunder, or the City to receive water hereunder, on account of any other causes not reasonably within the control of the party claiming such inability. Section 14. This contract may be changed or modified, but no such change or modification may be made which will adversely affect the prompt payment when due of all monies required to be paid by the City under the terms of this contract, and no such change or modification shall be effective which violates in any respect any provisions of the resolution of the Authority under which it has issued its revenue bonds. Section 15. That should any phrase, clause, sentence, paragraph or section of this contract and agreement be held invalid or uncon; stitutional by any court of competent jurisdiction of this State or of the United States in any manner or respect whatsoever it A. .".. shall in nowise affect any or all of the remaining provisions, all of which shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto acting by and through their duly authorized officials and officers, pursuant to appropriate resolutions and ordinances hereinbefore duly and properly adopted by each, have caused this contract and agreement to be executed in duplicate and the official seals of each prop- erly affixed, each delivering to the other a manifold having the full force and effect of the original, the day and .year first above written. i _At-t`e's t . . . ........ . .......... $bcreta (SEAL), Attest: (SEAL) r. 4 .................... Clerk COBB COUNTY-MARIETTA WATER AUTHORITY By- ............ .......�_.:....... ....................... ................ _.___ ---------- ---- rman /._......._i►�t�0 ... _............................... �Viem� er ,1 Z. i.-X= _ M...._... ............. _.......................... .................... _...... e er CITY OF SMYRNA By _...... Mayor_................_........._.. A. STATE OF GEORGIA ) COUNTY OF COBB ) This amendment to that certain contract made and entered into on the 2nd day of April, 1952, by the parties hereto, is made and entered into this 23rd day of February , 1957, by and between the Cobb County -Marietta Water Authority, a political subdivision of tha State of Georgia and a public corporation thereof, (hereinafter sometimes referred to as the "Authority,'), as party of the First Part and the City of Smyrna , a municipal corporation of said State and County, (hereinafter referred to as the "City"), as party of the Second Part, WITNESSETH: WHEREAS, the Authority has heretofore issued $3,100,000 principal amount of Cobb County -Marietta Water Authority Revenue Bonds, dated May 1, 1952, (hereinafter sometimes referred to as Series 1952 Bonds), under provisions of the "Cobb County - Marietta Water Authority Act"$ (Ga. Laws 1951s page 497, et seq), and applied the proneac?s derived therefrom towards the acquisition,construction and equipping of a modern source of water supply and treatment and distribution facilities (hereinafter somoVjaes referred to as the "water system' or "systerO ); and Wi REAS, the Authors y now owns and is operating and maintain -I ng the said water system, but it is now imperative in order to keep pace with constantly :Lnoreasing demands for water service that the Authority increase its supply of potable water and extend, improve and add to said system; and WFE]WZ, under said aontraot of April 2, 1952 the Authority is obligated to furnish the City and the City is obligated to purchase its entire water requirements from the ?yator system of the A-eithority for the period of time and under th9 terms, conditions and provisions as p:ovidsd thera'n, ea.d W19EU- AS, the only feasible method to produce funds to finance, in whole or in part, the cost of increasing its water supply and of improving, extending and add.ng to its water system is to borrow money for such improvements and additions arA tae Authority proposes to issue Cobb County-mMariet-ta Water Authority Revenue Lams, Series 1957 (hereinafter sometimes referred to as Series 2957 Bonds), in the p--n-Incipal amount of $1,350,000 for such purposes; and i WHEREAS, said contract of April 2, 1952, and similar contracts with other municipalities of Cobb County and with the County itself constitute the fundamental basis of the security for the payment of the said Series 1952 Bonds, and this con- tract and the other contracts, similarly amended as provided herein, will continue to constitute the basis of security for the said Series 1952 Bonds and will likewise constitute the basis of the security for the Series 1957 Bonds now proposed to be issued and any additional revenue bonds of the Authority which it may hereafter issue from time to time in the future; and , WHEREAS, the terms, conditions and provisions of said contract of April 2, 1952 were to be of full force and effect, unless otherwise amended and modified, for a term of thirty (30) years from April 2, 1952; and WHEREAS, the Series 1957 Revenue Bonds now proposed to be issued will mature over a period of thirty years from the date of their issue in 1957, and there- fore for same to be fully secured during the entire period of the issue, it is necessary that this contract and the other contracts providing the basis of the security for the said Series 1957 Bonds and any revenue bonds of the Authority issued subsequent thereto be extended at least until the last maturity date of bonds of such issue or issues; and WHEREAS, under the aforesaid "Cobb County -Marietta Water Authority Act" it was specifically provided in Subsection (e) of Section 4, as follows: ar:d " authority is specifically granted to municipal corporations and counties and to the authority to enter into contracts, lease agreements, or other undertakings relative to the furnishing of water and related services and facilities by the authority to such municipal corporations and counties for a term not exceeding 50 years." WHEREAS, the Constitution of the State of Georgia, Article VII, Section VI, Paragraph (a) provides as follows: "The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake". NCW, THEREFORE, in consideration of the premises and the mutual benefits flowing each to the other and the mutual undertakings of each of said parties herein, and of each in the said contract of April 2, 1952) it is hereby mutua3ly agreed by and between Cobb County -Marietta Water Authority and the City of Smyrna, each acting through its duly authorized officials: That the said contract between said parties of April 2, 1952 be and the same is hereby amended and modified so as to provide that the term of said contract shall be extended for a period of twenty (20) years from the termination date thereof so that the said contract shall be of full force and effect for a period of fifty (50) years from the said date of April 2, 1952, and except to the extent as hereby amended and modified all other terms, conditions and provisions of said contract of April 2, 1952, shall remain in full force and effect, IN WITNESS WHEREOF, the parties hereto acting by and through their duly authorized officials and officers, pursuant to appropriate resolutions and ordinances duly and properly adopted by each, all as same appear on the official minutes and records of each, have caused this contract and agreement to be executed in duplicate and the official seal of each properly affixed as of the day and the year first above written. Attest: Secretary I E A L) Attest: Clerk (S E A L) COBB CO Y-!MAR]ETTA WATER AUTHORITY OW BY Chairman Xember / -1 L&d-f4-d' Member C ITY OF SMYRM By E f 0 Mayor 1\