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CITY COUNCIL Eva Galambos, Mayor John Paulson – District 1 Dianne Fries – District 2

CITY COUNCIL

Eva Galambos, Mayor

John Paulson – District 1 Dianne Fries – District 2 Chip Collins – District 3 Ashley Jenkins – District 4 Tibby DeJulio – District 5 Karen Meinzen McEnerny – District 6

Tuesday, February 2, 2010

Regular Meeting

6:00 PM

A) INVOCATION – Reverend Paul Ferrarone, Apostles Lutheran Church

B) CALL TO ORDER – Mayor Eva Galambos

C) ROLL CALL AND GENERAL ANNOUNCEMENTS

D) PLEDGE OF ALLEGIANCE – Mayor Eva Galambos

(Agenda Item No. 10-022)

E) APPROVAL OF MEETING AGENDA (add or remove items from agenda)

F) CONSENT AGENDA

(Agenda Item No. 10-023)

1. Resolution to Approve the Settlement Agreement in the litigation with Mirant Corporation pending in the Superior Court of Fulton County

(Wendell Willard, City Attorney)

G) PRESENTATIONS (none at this time)

H) PUBLIC HEARINGS

(Agenda Item No. 10-024)

1. Update and Public Hearing for 2010 CDBG Program Annual Action Plan

(Presented by Community Development Block Grant Manager, Vann McNeill)

(Invitation for Public Comment)

(Agenda Item No. 10-025)

2. 2008 CDBG Action Plan Substantial Amendment to Purchase Pedestrian Lights

(Presented by Community Development Block Grant Manager, Vann McNeill)

(Invitation for Public Comment)

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Morgan Falls Office Park 7840 Roswell Road, Building 500 Sandy Springs, GA 30350

SANDY SPRINGS CITY COUNCIL

MEETING AGENDA

FEBRUARY 2, 2010

I) UNFINISHED BUSINESS (none at this time)

J) NEW BUSINESS (none at this time)

K) REPORTS AND PRESENTATIONS

a) Mayor and Council Reports

b) Staff Reports

L) PUBLIC COMMENT

M) EXECUTIVE SESSION (none at this time)

(Agenda Item No. 10-026)

N) ADJOURNMENT

PAGE 2 OF 2

Morgan Falls Office Park 7840 Roswell Road, Building 500 Sandy Springs, GA 30350

To: Honorable Mayor and City Council Members From: Wendell K. Willard Date: For Submission onto
To:
Honorable Mayor and City Council Members
From: Wendell K. Willard
Date:
For Submission onto the February 2, 2010 City Council Regular Meeting Consent
Agenda
Agenda Item:
Resolution to approve the Settlement Agreement in the litigation with Mirant
Corporation pending in the Superior Court of Fulton County
City Attorney’s Recommendation:
The City Attorney recommends approving the attached Settlement Agreement and
Release of Claims and authorizing the Mayor or City Manager to execute it on behalf of the City.
The monetary amount involved has previously been authorized by the Council.
Background:
The case of Mirant Corporation, Mirant Services, LLC, and Mirant Energy Trading, LLC
v. City of Sandy Springs, Georgia, and Steve Rapson in his capacity as Finance Director and
Tax Collector for the City of Sandy Springs, Fulton County Superior Court, Civil Action File No.
2008-CV-161115, was filed on December 5, 2008. The Plaintiffs were primarily seeking to have
occupational tax audit assessments issued against them declared to be illegal and void and in
so doing attacked the City’s Business and Occupational Tax Ordinance as unconstitutional. An
Escrow Agreement was entered into by Mirant Corporation and the City, and the disputed funds
have been on deposit in an Escrow Account pending instructions as to its disbursement.
A Motion for Partial Summary Judgment filed by the Mirant Plaintiffs resulted in an Order
of the Fulton County Superior Court, which discussed the interpretation of the City’s Business
and Occupational Tax Ordinance and found the Court’s interpretation not to violate the
Interstate Commerce Clause and therefore, to be constitutional.
The Mirant Plaintiffs and Mirant’s other affiliated subsidiaries and entities present a set of
unique operational and structural circumstances, which have had to be taken into account in
arriving at this Settlement Agreement of disputed claims.
Alternatives:
Since the monetary amount involved in the settlement of the disputed claims in this case
has previously been approved and authorized by the Council, there is really no alternative.

SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS

This settlement agreement is entered into this

day of January, 2010, between the

City of Sandy Springs (hereinafter referred to as the “City”) and Mirant Corporation, Mirant Services, LLC and Mirant Energy Trading, LLC (hereinafter collectively referred to as the “Mirant Entities”).

1. This agreement is in settlement of disputed claims between the parties and the terms of this agreement are not to be considered as an admission of fact or law on the part of any party.

2. Taking into account the unique structure and operations of the Mirant entities:

(a)

Mirant Corporation, solely for the administrative purpose of returning gross receipts, shall obtain an annual business occupational tax certificate and shall report and pay on all of the combined gross receipts of it, and of its subsidiaries, Mirant Energy Trading, LLC and Mirant Services, LLC, which have the same address in Sandy Springs as Mirant Corporation.

(b)

Mirant Energy Trading and Mirant Services shall each obtain an annual business occupational tax certificate, and each entity shall show its gross receipts as being reported by Mirant Corporation and shall not pay business taxes on such receipts separate from the business taxes paid on such receipts by Mirant Corporation as described above.

(c)

For the years 2006, 2007, 2008, and 2009, Mirant Corporation, pursuant to the above, shall pay the sum of $175,000.00 for each year in business occupation tax to the City of Sandy Springs. Any interest and penalty charges which may otherwise be applicable for any of the named years shall be waived by the City.

(d)

Based upon review and facts disclosed, it is agreed that any other subsidiary or affiliated entity of Mirant Corporation which has listed as its principal office address with the Georgia Secretary of State the Sandy Springs address of Mirant Corporation for the years 2006, 2007, 2008, and 2009, was not subject to the occupational tax certificate requirements for those years.

3. The City hereby waives, releases and otherwise determines to be satisfied all claims of business or occupation taxes or any interest, penalties, fees or other costs or amounts regarding occupation or business taxes for the tax years 2006, 2007, 2008 and 2009 with regard to the Mirant Entities or any Mirant subsidiaries or affiliated entities referred to in paragraph 2(d), above.

4. The City and the Mirant Entities will promptly execute all necessary documents and take all necessary steps to liquidate the Escrow Agreement and have those

ATL_IMANAGE-6653333.1

1

funds distributed to the City and Mirant Corporation pursuant to this settlement, with $700,000 being payable to the City and the remainder being payable to Mirant Corporation.

5. Upon execution of this settlement agreement and the distribution of the escrow funds as provided hereunder, Mirant will dismiss without prejudice the lawsuit in the Superior Court of Fulton County, Georgia, styled Mirant Corporation, Mirant Services LLC and Mirant Energy Trading, LLC, v. The City of Sandy Springs and Steve Rapson, Civil Action No. 2008CV161115.

6. The Mirant Entities and the City hereby severally warrant and represent that: (a) this settlement agreement has been duly authorized, executed and delivered on their respective behalves and constitutes a legal valid and binding obligation on them; and that (b) the execution, delivery and performance of this settlement agreement by the Mirant Entities and the City do not, and will not, violate any applicable law or regulation applicable to the Mirant Entities or the City, as the case may be.

Agreed and executed this

day of January, 2010.

MIRANT CORPORATION

By:

Name:

Title:

MIRANT SERVICES, LLC

By:

Name:

Title:

MIRANT ENERGY TRADING, LLC

By:

Name:

Title:

CITY OF SANDY SPRINGS, GEORGIA

By:

2

Name:

Title: