05 HB 754/AP
House
Bill 754 (AS PASSED HOUSE AND SENATE)
By:
Representative Ralston of the
7th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
create and establish the Gilmer County Building Authority, a body corporate and
politic and an instrumentality of the State of Georgia; to authorize the
authority to acquire, construct, equip, maintain, and operate certain projects,
including buildings and facilities for use by Gilmer County for its
governmental, proprietary, and administrative functions; to provide for members
of the authority and their terms, organization, and reimbursement; to provide
for vacancies; to define certain terms and words; to confer powers and impose
duties on the authority; to grant limitations to the authority; to authorize the
authority to enter into contracts and leases pertaining to uses of such
facilities, which contracts and leases may obligate the lessees to make payment
for the use of the facilities for the term thereof and to pledge for that
purpose money derived from taxation; to provide that no debt of Gilmer County or
the State of Georgia shall be incurred by the exercise of any of the powers
granted; to authorize the issuance of revenue bonds of the authority payable
from the revenues, rents, and earnings and other functions of the authority to
pay the costs of such projects; to authorize the collecting and pledging of such
revenues, rents, and earnings for the payment of such bonds; to authorize the
adoption of resolutions and the execution of trust indentures to secure the
payment of such bonds and to define the rights of the holders of such bonds; to
provide for a sinking fund; to make the bonds of the authority exempt from
taxation; to provide the right and power for the authority to condemn property
of every kind and character; to authorize the issuance of refunding bonds; to
provide for the validation of such bonds and to fix the venue for jurisdiction
of actions relating to any provision of this Act; to exempt the property and
income of the authority from taxation; to provide for immunity and exemption
from liability for torts and negligence; to provide that the property of the
authority shall not be subject to levy and sale; to provide that certain moneys
are trust funds; to provide that this Act shall be liberally construed; to
define the scope of the
authoritýs
operation; to provide for disposition of property upon authority dissolution; to
provide for severability; to provide an effective date; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
Gilmer County Building Authority created.
SECTION 1.
Gilmer County Building Authority created.
There
is created a public body corporate and politic to be known as the Gilmer County
Building Authority, herein called "the authority," which shall be an
instrumentality and a public corporation of the State of Georgia, the purpose of
which shall be to acquire, construct, equip, maintain, and operate certain
projects for use by Gilmer County for its governmental, proprietary, public, and
administrative functions. The authority shall not be a state institution, nor a
department or agency of the state, but shall be an instrumentality of the state,
a mere creation of the state, being a distinct corporate entity and being exempt
from the provisions of Article 2 of Chapter 17 of Title 50 of the O.C.G.A., the
"Georgia State Financing and Investment Commission Act." The authority shall
have its principal office in Gilmer County, and its legal situs or residence for
the purposes of this chapter shall be Gilmer County.
SECTION
2.
Membership.
Membership.
The
authority shall consist of three members who shall be eligible to succeed
themselves and who shall be elected by the Board of Commissioners of Gilmer
County. No more than one member of the authority may be a member of said board
of commissioners. Any member of the authority who is a member of said board of
commissioners shall serve for a term of office concurrent with such
persońs
term of office as a member of said board of commissioners. Each member of the
authority who is not a member of said board of commissioners shall serve for a
term of office of three years, except that the initial terms of office of those
members first appointed to the authority shall be specified at the time of
appointment to be one, two, and, if no such member is a member of the board of
commissioners, three years. After such initial terms, those members who are not
members of said board of commissioners shall serve for terms of office of three
years each. Members of the authority shall serve for the terms of office so
specified and until the appointment and qualification of their respective
successors. Vacancies on the authority shall be filled by said board of
commissioners for the remainder of the unexpired term and until the appointment
and qualification of a successor. Immediately after their election, the members
of the authority shall enter upon their duties. The authority shall elect one
of its members as chairperson and one as vice chairperson. The
secretary-treasurer of the authority shall be appointed by the authority and
need not be a member of the authority. Two members of the authority shall
constitute a quorum and no vacancy on the authority shall impair the right of
the quorum to exercise all the rights and perform all the duties of the
authority and, in every instance, a majority vote of a quorum shall authorize
any legal act of the authority, including all things necessary to authorize and
issue revenue bonds. The members of the authority shall receive no compensation
for their services but may be reimbursed by the authority for their actual
expenses properly incurred in the performance of their duties. The authority
shall make rules and regulations for its own government and shall have perpetual
existence.
SECTION
3.
Definitions.
Definitions.
As
used herein, the following words and terms shall have the following meanings
unless a different meaning clearly appears from the context:
(1)
The word "authority" shall mean the Gilmer County Building Authority created by
this Act.
(2)
The word "project" shall mean and include real and personal property acquired or
held by the authority, including all land, buildings, structures, sanitary and
surface water sewers, and other public property determined by the authority to
be desirable for the efficient operation of any department, board, office,
commission, or agency of Gilmer County, or of the State of Georgia, in the
performance of its governmental, proprietary, and administrative
functions.
(3)
The term "cost of project" shall include the cost of lands, buildings,
improvements, machinery, equipment, property, easements, rights, franchises,
material, labor, services acquired or contracted for, plans and specification,
financing charges, construction costs, interest prior to and during
construction; architectural, accounting, engineering, inspection,
administrative, fiscal, and legal expenses; expenses incident to determining the
feasibility or practicability of the project; and expenses incident to the
acquiring, constructing, equipping, and operating of any project or any part
thereof, and to the placing of the same in operation and to the condemnation of
any property incident to such construction and operation.
(4)
The term "revenue bonds" shall mean revenue bonds issued under the provisions of
Article 3 of Chapter 82 of Title 36 of the O.C.G.A., the Revenue Bond Law, and
under the provisions of this Act. The obligations authorized under this Act may
be issued by the authority in the manner authorized under the Revenue Bond
Law.
SECTION
4.
Powers.
Powers.
The
authority shall have all the powers necessary or convenient to carry out and
effectuate the purposes and provisions of this Act including, but without
limiting the generality of the foregoing, the power:
(1)
To sue and be sued;
(2)
To adopt and alter a corporate seal;
(3)
To make and execute with public and private persons and corporations contracts,
trusts, leases, rental agreements, and other instruments relating to its
projects and in furtherance of the purposes of the authority, including
contracts for constructing, renting, and leasing of its projects for the use of
any county or municipality in this state;
(4)
To acquire in its own name by purchase on such terms and conditions and in such
manner as it may deem proper or by condemnation in accordance with the
provisions of any and all existing laws of the State of Georgia applicable to
the condemnation of property for public use, including the power to proceed as a
condemning body under the provisions of Article 2 of Chapter 2 of Title 22 of
the O.C.G.A., relating to proceedings before a special master, or by gift,
grant, lease, or otherwise, real property, or rights and easements therein and
franchises and personal property necessary or convenient for its corporate
purposes and to use the same so long as its corporate existence shall continue
and to lease or make contracts with respect to the use of or disposition of the
same in any manner it deems to the best advantage of the authority. Title to
any such property shall be held by the authority exclusively for the benefit of
the public. The authority shall be under no obligation to accept and pay for
any property condemned as provided herein except from the funds provided
therefor and, in proceedings to condemn, such orders may be made by the court
having jurisdiction of the suit, action, or proceedings as may be just to the
authority and to the owners of the property to be condemned; and no property
shall be acquired as provided herein upon which any lien or other encumbrance
exists, unless at the time such property is so acquired a sufficient sum of
money shall be deposited in trust to pay and redeem the amount of such lien or
encumbrance;
(5)
To improve, extend, add to, reconstruct, renovate, or remodel any project or
part thereof already acquired;
(6)
To pledge or assign any revenues, income, rent, charges, and fees received by
the authority;
(7)
To appoint and select agents, engineers, architects, attorneys, fiscal agents,
accountants, and employees and to provide for their compensation and
duties;
(8)
To construct, reconstruct, acquire, own, alter, repair, remodel, maintain,
extend, improve, operate, manage, and equip projects located on land owned or
leased by the authority;
(9)
To receive, accept, and use any contributions, loans, or grants by persons,
firms, or corporations, including the State of Georgia and the United States of
America, and any other contributions;
(10)
To pay all or part of the costs of any project from the proceeds of revenue
bonds of the authority or from other lawful sources available to
it;
(11)
To prescribe rules and regulations for the operation of and to exercise police
powers over the projects managed or operated by the authority;
(12)
To accept, receive, and administer gifts, grants, loans and devises of money,
material, and property of any kind, including loans and grants from the State of
Georgia or the United States of America or any agency or instrumentality
thereof, upon such terms and conditions as the State of Georgia or the United
States of America or such agency or instrumentality may impose;
(13)
To sell, lease, exchange, transfer, assign, pledge, mortgage, dispose of, grant
in trust, or grant options for any real or personal property or interest therein
in furtherance of the purposes of the authority;
(14)
As security for repayment of authority obligations, to pledge, mortgage, convey,
assign, hypothecate, or otherwise encumber any property, real or personal, of
such authority and to execute any trust agreement, indenture, or security
agreement containing any provisions not in conflict with law, which trust
agreement, indenture, or security agreement may provide for foreclosure or
forced sale of any property of the authority upon default, on such obligations,
either in payment of principal or interest or in the performance of any term or
condition, as are contained in such agreement or indenture;
(15)
To borrow money for any of its corporate purposes, to issue revenue bonds
payable solely from funds pledged for that purpose, and to provide for the
payment of the same and for the rights of the holders thereof;
(16)
To exercise all powers usually possessed by private corporations performing
similar functions which are not in conflict with the Constitution and laws of
this state; and
(17)
Pursuant to proper resolution of the authority, to issue revenue bonds payable
from the rents and revenues of the authority and its projects, which bonds may
be issued in either fully negotiable coupon form, in which event they shall have
all the qualities and incidents of negotiable instruments under the law of
Georgia, or they may be issued in whole or in part in nonnegotiable fully
registered form without coupons, payable to a designated payee or to the
registered assigns of the payee with such conversion privileges as the authority
may provide, for the purpose of paying all or any part of the cost associated
with the projects authorized by the authority, including the cost of
constructing, reconstructing, equipping, extending, adding to, or improving such
projects, or for the purpose of refunding, as herein provided, any such bonds of
the authority theretofore issued. If the proceeds of the bonds of any issue
shall exceed the amount required for the purpose for which such bonds were
issued, the surplus shall be paid into the fund provided for the payment of
principal and interest on such bonds. All such revenue bonds shall be issued
and validated under and in accordance with the procedure of Article 3 of Chapter
82 of Title 36 of the O.C.G.A., the Revenue Bond Law, and in accordance with all
terms and provisions thereof not in conflict herewith and in accordance with
Code Section 50-17-1 of the O.C.G.A., relating to use of facsimile signatures on
public securities, and, as security for the payment of any revenue bonds so
authorized, any rents and revenue of the authority may be pledged and assigned.
Such bonds are declared to be issued for an essential public and governmental
purpose, and such bonds and all income therefrom shall be exempt from all
taxation within the State of Georgia. For the purpose of the exemption from
taxation of such bonds and the income therefrom, the authority shall be deemed
to be a political subdivision of the State of Georgia.
SECTION
5.
Credit not pledged and debt not created by bonds.
Credit not pledged and debt not created by bonds.
Revenue
bonds issued under the provisions of this Act shall not constitute a debt or a
pledge of the faith and credit of the State of Georgia or Gilmer County; but
such bonds shall be payable from the rentals, revenue, earnings, and funds of
the authority as provided in the resolution, trust agreement, or indenture
authorizing the issuance and securing the payment of such bonds; and the
issuance of such bonds shall not directly, indirectly, or contingently obligate
the state or said county to levy or pledge any form of taxation whatever for the
payment thereof. No holder of any bond or receiver or trustee in connection
therewith shall have the right to enforce the payment thereof against any
property of the state or of said county, nor shall any such bond constitute a
charge, lien, or encumbrance, legal or equitable, upon any such property. All
such bonds shall contain on their face a recital setting forth substantially the
foregoing provisions of this section.
SECTION
6.
Trust agreement.
Trust agreement.
In
the discretion of the authority, any issue of revenue bonds may be secured by an
agreement or indenture made by the authority with a corporate trustee, which may
be any trust company or bank having the powers of a trust company within or
without the State of Georgia. Such trust agreement or indenture may pledge and
assign rents, fees, charges, revenues, and earnings to be received by the
authority. The resolution providing for the issuance of revenue bonds and such
trust agreements or indenture may contain provisions for protecting and
enforcing the rights and remedies of the bondholders, including the right of
appointment of a receiver upon default of the payment of any principal or
interest obligation and the right of any receiver or trustee to enforce
collection of any rents, fees, charges, or revenues for use of the project or
projects necessary to pay all costs of operation and all reserves provided for,
all principal and interest on all bonds of the issue, all costs of collection,
and all other costs reasonably necessary to accomplish the collection of such
sums in the event of any default of the authority. Such resolution and such
trust agreement or indenture may include covenants setting forth the duties of
the authority in relation to the acquisition of property for and construction of
the project and to the custody, safeguarding, and application of all funds and
covenants providing for the operation, maintenance, repair, and insurance of the
project or projects and may contain provisions concerning the conditions, if
any, upon which additional revenue bonds may be issued. Such trust agreement or
indenture may set forth the rights and remedies of the bondholders and of the
trustee and may restrict the individual right of action of bondholders as is
customary in securing bonds and debentures of corporations and may contain such
other provisions as the authority may deem reasonable and proper for the
security of the bondholders. All expenses incurred in carrying out such trust
may be treated as a part of the cost of maintenance, operation, and repair of
the project affected by such trust.
SECTION
7.
Refunding bonds.
Refunding bonds.
The
authority is authorized to provide by resolution for the issuance of revenue
bonds of the authority for the purpose of calling, refunding, or refinancing any
revenue bonds issued under the provisions hereof and then outstanding and to
include in the amount of such refunding bonds all interest and any call premiums
that may be required for the redemption and refunding of such outstanding
bonds.
SECTION
8.
Venue of actions, jurisdiction.
Venue of actions, jurisdiction.
Any
action to protect or enforce any rights under the provisions hereof or any
action against the authority brought in the courts of the State of Georgia shall
be brought in the Superior Court of Gilmer County, Georgia; and any action
pertaining to validation of any bonds issued under the provisions hereof shall
be brought in said court, which shall have exclusive, original jurisdiction of
such actions.
SECTION
9.
Revenue bond validation.
Revenue bond validation.
The
petition for validation of all revenue bonds of the authority shall be brought
against the authority, and any contracting party whose obligation is pledged as
security for the payment of the bonds sought to be validated, as defendants, and
the defendants shall be required to show cause, if any exists, why such contract
or contracts and the terms and conditions thereof shall not be adjudicated to be
in all respects valid and binding upon such contracting parties. It shall be
incumbent upon such defendants to defend against adjudication of the validity
and binding effect of such contract or contracts or be forever bound thereby.
Notice of such proceedings shall be included in the notice of the validation
hearing required to be issued and published by the clerk of the Superior Court
of Gilmer County in which court such validation proceedings shall be
initiated.
SECTION
10.
Interest of bondholders protected.
Interest of bondholders protected.
While
any of the bonds issued by the authority remain outstanding, the powers, duties,
or existence of the authority or of its officers, employees, or agents shall not
be diminished, impaired, or affected in any manner that will affect adversely
the interest and rights of the holders of such bonds. The provisions hereof
shall be for the benefit of the authority and the holders of any such bonds and,
upon the issuance of bonds under the provisions hereof, shall constitute a
contract with the holders of such bonds.
SECTION
11.
Revenues, earnings, rents, and charges; use.
Revenues, earnings, rents, and charges; use.
(a)
For the purpose of earning sufficient revenue to make possible the financing of
the construction of the project or projects of the authority with revenue bonds,
the authority is authorized and empowered to fix, revise, and collect rents,
fees, and charges on each project which it shall cause to be acquired or
constructed. Such rents, fees, or charges to be paid for the use of such
project or projects shall be so fixed and adjusted as to provide a fund
sufficient with other revenue, if any, of such project or projects or of the
authority:
(1)
To pay the cost of operating, maintaining, and repairing the project or
projects, including reserves for insurance and extraordinary repairs and other
reserves required by the resolution or trust agreement or indenture pertaining
to such bonds and the issuance thereof, unless such cost shall be otherwise
provided for;
(2)
To pay the principal of and interest on such revenue bonds as the same shall
become due, including call premium, if any, the proceeds of which shall have
been or will be used to pay the cost of such project or projects;
(3)
To comply with any sinking fund requirements contained in the resolution or
trust agreement or indenture pertaining to the issuance of and security for such
bonds;
(4)
To perform fully all provisions of such resolution and trust agreement or
indenture relating to the issuance of or security for such bonds to the payment
of which such rent is pledged;
(5)
To accumulate any excess income which may be required by the purchasers of such
bonds or may be dictated by the requirements of such resolution, trust
agreement, or indenture, or of achieving ready marketability of and low interest
rates on such bonds; and
(6)
To pay any expenses in connection with such bond issue or of such project or
projects, including but not limited to
trusteeś,
attorneyś,
and fiscal
agentś
fees.
(b)
Such rent shall be payable at such intervals as may be agreed upon and set forth
in the rental contract or lease providing therefor, and any such contract or
lease may provide for the commencement of rent payments to the authority prior
to the completion of the undertaking by the authority of any such project and
may provide for the payment of rent during such times as such project or
projects may be partially or wholly
untenantable.
(c) Such rental contract or lease may obligate the tenants or lessees to operate, maintain, and keep in good repair, including complete reconstruction, if necessary, the rented or leased premises and projects, regardless of the cause of the necessity of such maintenance, repair, or reconstruction.
(d) Such rental contract or lease may obligate the tenants or lessees to indemnify and save harmless the authority from any and all damage to persons and property occurring on or by reason of the leased property or improvements thereon and to undertake, at the expense of the tenants or lessees, the defense of any action brought against the authority by reason of injury or damages to persons or property occurring on or by reason of the leased premises.
(e) In the event of any failure or refusal on the part of the tenants or lessees to perform punctually any covenant or obligation contained in any such rental contract or lease, the authority may enforce performance by any legal or equitable process against the tenants or lessees.
(f) The authority shall be permitted to assign any rent payable to it, pursuant to such rental contract or lease, to a trustee or paying agent as may be required by the terms of the resolution or trust agreement or indenture relating to the issuance of and security for such bonds.
(g) The use and disposition of the authoritýs revenue shall be subject to the provisions of the resolution authorizing the issuance of such bonds or of the trust agreement or indenture, if any, securing the same.
(c) Such rental contract or lease may obligate the tenants or lessees to operate, maintain, and keep in good repair, including complete reconstruction, if necessary, the rented or leased premises and projects, regardless of the cause of the necessity of such maintenance, repair, or reconstruction.
(d) Such rental contract or lease may obligate the tenants or lessees to indemnify and save harmless the authority from any and all damage to persons and property occurring on or by reason of the leased property or improvements thereon and to undertake, at the expense of the tenants or lessees, the defense of any action brought against the authority by reason of injury or damages to persons or property occurring on or by reason of the leased premises.
(e) In the event of any failure or refusal on the part of the tenants or lessees to perform punctually any covenant or obligation contained in any such rental contract or lease, the authority may enforce performance by any legal or equitable process against the tenants or lessees.
(f) The authority shall be permitted to assign any rent payable to it, pursuant to such rental contract or lease, to a trustee or paying agent as may be required by the terms of the resolution or trust agreement or indenture relating to the issuance of and security for such bonds.
(g) The use and disposition of the authoritýs revenue shall be subject to the provisions of the resolution authorizing the issuance of such bonds or of the trust agreement or indenture, if any, securing the same.
SECTION
12.
Sinking fund.
Sinking fund.
The
revenue, rents, and earnings derived from any particular project or projects and
any and all revenue, rents, and earnings received by the authority, regardless
of whether such revenue, rents, and earnings were produced by a particular
project for which bonds have been issued, unless otherwise pledged, may be
pledged by the authority to payment of the principal of and interest on revenue
bonds of the authority as may be provided in any resolution authorizing the
issuance of such bonds or in any trust instrument pertaining to such bonds, and
such funds so pledged, from whatever source received, may include funds received
from one or more or all sources and may be set aside at regular intervals into
sinking funds for which provision may be made in any such resolution or trust
instrument and which may be pledged to and charged with the payment of (1) the
interest upon such revenue bonds as such interest shall become due, (2) the
principal of the bonds as the same shall mature, (3) the necessary charges of
any trustee or paying agent for paying such principal and interest, and (4) any
premium upon bonds retired by call or purchase; and the use and disposition of
any sinking fund may be subject to such regulation as may be provided for in the
resolution authorizing the issuance of the bonds or in the trust instrument
securing the payment of the same.
SECTION
13.
Exemption from taxation.
Exemption from taxation.
The
exercise of the powers conferred upon the authority hereunder shall constitute
an essential governmental function for a public purpose, and the authority shall
be required to pay no taxes or assessments upon any of the property acquired by
it or under its jurisdiction, control, possession, or supervision or upon its
activities in the operation and maintenance of property acquired by it or of
buildings erected or acquired by it or any fees, rents, or other charges for the
use of such property or buildings or other income received by the authority.
The tax exemption herein provided shall not include an exemption from sales and
use tax on property purchased by or for the use of the authority.
SECTION
14.
Immunity from tort actions.
Immunity from tort actions.
The
authority shall have the same immunity and exemption from liability for torts
and negligence as the State of Georgia; and the officers, agents, and employees
of the authority, when in performance of work of the authority, shall have the
same immunity and exemption from liability for torts and negligence as officers,
agents, and employees of the State of Georgia. The authority may be sued the
same as private corporations on any contractual obligation of the
authority.
SECTION
15.
Property not subject to levy and sale.
Property not subject to levy and sale.
The
property of the authority shall not be subject to levy and sale under legal
process.
SECTION
16.
Trust funds.
Trust funds.
All
funds received pursuant to authority of Section 11 hereof, whether as proceeds
from the sale of revenue bonds or as revenue, rents, fees, charges, or other
earnings or as grants, gifts, or other contributions, shall be deemed to be
trust funds to be held and applied by the authority, solely as provided herein;
and the bondholders entitled to receive the benefits of such funds shall have a
lien on all such funds until the same are applied as provided for in any such
resolution or trust instrument of the authority.
SECTION
17.
Construction.
Construction.
This
Act and any other law enacted with reference to the authority shall be liberally
construed for the accomplishment of its purposes.
SECTION
18.
Scope of operations.
Scope of operations.
The
projects of the
authoritýs
operation shall be located in the territory embraced within the jurisdictional
limits of Gilmer County as the same now or may hereafter exist.
SECTION
19.
Conveyance of property upon dissolution.
Conveyance of property upon dissolution.
Should
the authority for any reason be dissolved after full payment of all bonded
indebtedness incurred hereunder, both as to principal and interest, title to all
property of any kind and nature, real and personal, held by the authority at the
time of such dissolution shall be conveyed to Gilmer County; or title to any
such property may be conveyed prior to such dissolution in accordance with
provisions which may be made therefor in any resolution or trust instrument
relating to such property, subject to any liens, leases, or other encumbrances
outstanding against or in respect to said property at the time of such
conveyance.
SECTION
20.
Effect of partial invalidity of Act.
Effect of partial invalidity of Act.
Should
any sentence, clause, phrase, or part of this Act be declared for any reason to
be unconstitutional or invalid, the same shall not affect such remainder of this
Act or any part hereof, other than the part so held to be invalid, but the
remaining provisions of this Act shall remain in full force and effect; and it
is the express intention of this Act to enact each provision of this Act
independently of any other provision hereof.
SECTION
21.
Effective date.
Effective date.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
22.
Repealer.
Repealer.
All
laws and parts of laws in conflict with this Act are repealed.