SAMS, LARKIN, HUFF & BALLI, LLP

ATTORNEYS AT LAW

376 POWDER SPRINGS STREET

SUITE 100
JAMES A. W. BALLI MARIETTA, GA 30064-3448 TELEPHONE
----------- (770) 422-7016
(Admitted in GA and AL) -----------
----------- FACSIMILE
(770) 426-6583
JBALLI@SLHB-LAW.COM WWW.SLHB-LAW.COM

May 30, 2018

VIA EMAIL: Alan.Ritchie@ThompsonHine.com

AND FEDERAL EXPRESS

Mr. Alan Ritchie

Thompson Hine
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291

Re: Notice of Dispute

Amount Owed by Cobb County: $4,683,300

Dear Mr. Ritchie:

I represent the Atlanta National League Baseball Club, LLC, BRED Co., LLC, Braves
Stadium Company, LLC and Braves Construction Company, LLC (collectively the “Braves
Parties”) with regard to monies owed the Braves Parties by Cobb County (the “County”) . I also
represent the Braves Parties with regard to the erroneous allegations presented in your letter
dated May 21, 2018 (“County Letter”). For purposes of convenience and reference to the
County Letter, any capitalized terms will have the definition set forth in the May 27, 2014
Development Agreement (“Development Agreement”) executed by the County Parties and the
Braves Parties.

As you mentioned, a meeting was held at SunTrust Park on May 10, 2018 at which you
claimed to be “special counsel” to the County and argued that the Braves Parties have
“defaulted” by not paying a System Development Fee (“SDF”) for SunTrust Park in the amount
of $1,486,250. The County scheduled the meeting on the premise it would involve minor
matters and then appeared with the County Attorney, two Assistant County Attorneys, a partner
from Thompson Hine in Atlanta, an associate from Thompson Hine in Atlanta and apparently
paid for you to fly to Atlanta from the Thompson Hine office in Cleveland, Ohio. It seems that,
if the County’s position set forth in the County Letter is as compelling as you argue, the County
could have presented the argument without bringing six lawyers and billing the taxpayers of
SAMS, LARKIN, HUFF & BALLI
A LIMITED LIABILITY PARTNERSHIP

Alan Ritchie
May 30, 2018
Page 2
__________________

Cobb County hundreds of dollars per hour and the cost of a plane ticket.1 Indeed, those actions
are more indicative of Thompson Hine and others attempting to explain away plain language that
was expressly approved as to form and which certain taxpayers may describe as legal
malpractice. While those discussions will wait for another day, it will be the Braves Parties’
position that you and your firm will be disqualified from representing the County as you will be
a witness in any litigation and, based on any claim brought by the County or a taxpayer with
standing, Thompson Hine may have monetary interests which conflict with those of the County.

As intended by the Braves Parties, the Development Agreement specifically exempts the
publicly owned Stadium from any SDF fees and the County Letter does not, and cannot, identify
any language in any of the Definitive Documents that require the Braves Parties to pay a SDF for
the Stadium. You have also not identified any writing signed by both parties which amends the
Development Agreement and requires payment of any SDF2. Instead, the County Letter
conveniently ignores the plain language of the Development Agreement which exempts the
Stadium Site from having to pay any SDF or other fees. Specifically, Section 2.53 of the
Development Agreement reads:

“the Braves Parties shall pay any and all Permit, development impact or connection fees
(collectively “Impact Fees”) assessed or imposed by the County in connection with the
demolition, construction and operation of any Improvements on or to be located on the
Development Parcels; provided that such Impact Fees shall be no greater than Impact
Fees charged for other similar land uses in other portions of the County.” (See Ex. “A”).

The Development Agreement defines “Development Parcels” as “all portions of the Site other
than the Stadium Site.” (Ex. “A”). As the Stadium Site is not a “Development Parcel”, the
Braves Parties are not required to pay any “permit, development impact or connection [or SDF]
fees” for the Stadium. It is just that simple. No further argument is needed, no interpretation is
allowed and the SDF is not owed. See Freund v. Warren, 320 Ga. App. 765, 769 (2013)(holding
no contract construction is required or even permitted when the language employed by the
parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation).
The Braves Parties believes the analysis can end here and that this dispute would be resolved in
favor of the Braves Parties at the summary judgment stage.

1
A Cobb County public safety employee probably makes less in a week than it cost to bring six lawyers to the May
10, 2018 meeting.
2
The Development Agreement at Section 12.11 requires that any amendments may only be made by a writing
signed by both parties.
3
The County Letter understandably, but erroneously, argues that Section 2.5 of the Development Agreement applies
solely to the Development Parcels. However, consistent with the vast majority of the numbered Sections in the
Development Agreement which apply to the entire “Site”, there is no such singular limitation in Section 2.5.
SAMS, LARKIN, HUFF & BALLI
A LIMITED LIABILITY PARTNERSHIP

Alan Ritchie
May 30, 2018
Page 3
__________________

However, even if interpretation was needed [which it is not], and remembering [along
with Z-44] the Development Agreement and Definitive Documents apply to the Site and will
trump any general ordinance, the documents are, in effect, at least a quasi-ordinance and the
rules of interpretation for ordinances are instructive. The Supreme Court of Georgia has said,
when interpreting ordinances, “if some things are expressly mentioned [Impact Fees for the
Development Parcels are required], the inference is stronger that those omitted [Impact Fees for
the Stadium Site] were intended to be excluded and…[t]he express mention of one thing implies
the exclusion of another.” Allen v. Wright, 282 Ga. 9, 14 (2007). If, as the County Letter
argues, Chapter 122-82 of the Cobb County Code lawfully requires payment of SDF fees on the
Stadium Site, there was no reason for Section 2.5 to exist in the Development Agreement. The
County could have simply billed the SDF fees and permits as usual.4 Instead, and knowing that
the Site was not a typical development and that the Definitive Documents set forth conditions on,
and payments by, the Braves far out of the range of a normal development, Section 2.5 was
inserted to require payment of Impact Fees on the Development Parcels but exclude payment of
Impact Fees on the publically owned Stadium. Indeed, that has been the County’s practice in
previous circumstances involving a building owned by the same Authority that owns the
Stadium.5 Accordingly, the Braves Parties will not pay the County any SDF fee for the Stadium
and will seek to recover their costs and attorneys’ fees if this matter proceeds.

That said, and without affording the argument any credence whatsoever, I will briefly
address your argument about payment of the SDF. As discussed above, in the County Letter
you claim that the Braves Parties have “defaulted” by not paying a System Development Fee
(“SDF”) for SunTrust Park which the County contends is in the amount of $1,486,250. You base
this contention on the allegation that the Braves Parties agreed to pay for all Stadium Costs in
excess of the County Contribution. You then contend that the SDF is a “Stadium Cost” and, as
the County allegedly has fully funded the County Contribution, the SDF must be paid by the
Braves Parties. Understanding one must argue the facts as they exist [even if the dispute is

4
A SDF was not collected for the Stadium at the time of connection which, if payment was due, violated Code
Section 122-82. Of course, this is because the Stadium was exempt from paying any SDF. The Development
Parcels paid the SDF fees in a timely manner.
5
In June of 2005, by simply writing a letter, then Chairman Olens drastically reduced what would be defined as
“Impact Fees” under the Development Agreement for the Cobb Energy Centre because, in his words, the facility
would “have a positive impact on our local economy by creating new employment opportunities and attracting
quality development” (See Ex. “B”). In a building owned by the same Authority, the Braves Parties have signed a
30 year Non-Relocation Agreement, have immediately created jobs, have created a massive revenue stream in the
form of tax collection, have created almost overnight a first-class “quality development” known as the Battery
Atlanta and certainly have contributed to the local economy at a scale easily eclipsing the Cobb Energy Centre.
Moreover, it was absolutely contemplated and agreed between the executives of each party that the Stadium would
not pay Impact Fees. Of course, there is also unambiguous language waiving the fees set forth in a Development
Agreement approved by the entire Board of Commissioners and the County Attorney.
SAMS, LARKIN, HUFF & BALLI
A LIMITED LIABILITY PARTNERSHIP

Alan Ritchie
May 30, 2018
Page 4
__________________

caused by failure to read and understand definitions], the argument is initially inventive but, as
set forth above, quickly fails under an elementary review of the plain, unambiguous language of
the Development Agreement.

Specifically, the definitions of “County Contribution” and “Stadium Cost” demonstrate

your argument fails as a matter of law. The County Contribution is defined as “the proceeds
from the Bonds deposited into the Bond Proceeds Account…and any other funds which may be
made available for the Stadium Project.” In other words, the monetary limit to the County
Contribution discussed in the County Letter only applied to funds deposited into an account or
hard dollars made available to pay for the Stadium Project. Here, the SDF is a phantom fee
that is not a “cost” but simply a “charge6” attempted to be assessed by the County Water
Department in direct violation of the Development Agreement. Indeed, even though the Braves
Parties have not paid the SDF, the County has not been required to deposit or expend funds to
pay the SDF or pay additional for project sewer improvements. Accordingly, the express waiver
of the SDF in Section 2.5 does not violate the monetary limit on the County Contribution
because no funds are required for the waiver. Additionally, “Stadium Cost” is defined as “all
costs and expenses incurred or to be incurred in connection with the development, design,
construction and completion of the Stadium Project pursuant to the Stadium Project Budget
[which was conveniently omitted in the definition quoted in the County Letter]”. The Stadium
Project Budget is attached as Exhibit “C” to the Development Agreement and does not include
any line item for a SDF or other such fees pertaining to the Stadium Site. Accordingly, utilizing
the definitions set forth in the County Letter, the SDF for the Stadium is not a “Stadium Cost”
that was contemplated to be funded or paid by any party, especially the Braves Parties.

To conclude the portion of this letter regarding the SDF, the Braves Parties place the
County on anti-litem notice pursuant to O.C.G.A. § 36-11-1 and reserve the right to argue that
the SDF fees and other fees are actually unconstitutional and illegal development impact fees. In
fact, the Development Agreement itself defines all permit and connection fees as “Impact Fees”
but the Cobb County Water Department has blatantly failed to comply with the mandatory
provisions of O.C.G.A. § 36-71-1 et seq. to legally charge impact fees. Accordingly, if litigated,
not only are the SDF fees attempted to be charged to the Stadium illegal and uncollectable, all
SDFs would be illegal and amounts well into the millions would have to be refunded.

With great reluctance, and only after you have convinced a “consensus” of the County to
present a “Notice of Default”, the Braves Parties have no choice but to place the County on
notice that, pursuant to Paragraph 10.8 of the Development Agreement, the Braves Parties

6
The SDF fee is an undefined fee that exists in the subjective mind of whoever is asked and may change from day to
day. In violation of Georgia law, the County Water Department fails to identify what amount is charged for a
Commercial SDF and simply says the fee, the application and the amount “are calculated by the CCWS Engineering
Division.”
SAMS, LARKIN, HUFF & BALLI
A LIMITED LIABILITY PARTNERSHIP

Alan Ritchie
May 30, 2018
Page 5
__________________

contend the County has failed to comply with certain provisions of the Development Agreement
and the Definitive Documents.

First, the Braves Parties are entitled to a refund of the $2,640,125 building permit fee
(“Permit Fee”) that was improperly charged and mistakenly tendered by American Builders. As
discussed in detail above, Section 2.5 of the Development Agreement exempts the Stadium from
“Impact Fees” which include building permit fees. The building permit was issued November
11, 2014 and the Braves Parties became aware that the Permit Fee had been charged in error no
more than 5-7 days after payment. Immediately upon discovery of the erroneous payment, the
Braves Parties’ executive contacted the Chairman of Cobb County. Upon information and
belief, the evidence will be that the Chairman acknowledged on numerous occasions that no
permit fees were to be paid on the Stadium and that charging the Permit Fee was a mistake.
Accordingly, there was no dispute and the Braves Parties did not have to initiate the formal
process set out in the Development Agreement. However, as the check had already been
deposited and there was pending litigation involving certain aspects of the Stadium Project, the
Braves Parties were asked to wait a period of time for the refund. It was represented to the
Braves Parties that those funds collected as the Permit Fee would be earmarked for a refund. In
good faith, the Braves Parties agreed to wait. However, the Braves Parties are now demanding
the entire Permit Fee be refunded. If the Permit Fee is not refunded in full within ten (10) days
from your receipt of this letter, the Braves Parties will initiate the mediation process.

Second, the Braves Parties are due the entire $14,000,000 Transportation Improvement
Contribution required by the Development Agreement. Prior to ever receiving a dollar of the
Transportation Improvement Contribution, the Braves Parties paid for transportation
improvements exceeding the entire $14,000,000. To date, the County has paid the Braves Parties
$11,300,000 and agrees another payment of $483,441 is due this year. However, the County
attempted to improperly credit approximately $1,059,734 in projects by arguing a SDF that is
prohibited by the Development Agreement. The County Letter contends [in error because the
waiver is within the Development Agreement] there is no written waiver of the SDF so the fee
must be paid. Similarly, the Braves Parties have signed no written waiver or amendment to the
Development Agreement which agrees to accept less than the entire $14,000,000 Transportation
Improvement Contribution. Please tender $1,543,175 [which includes the $483,441 already
approved by the Board of Commissioners] within ten (10) days to complete the Transportation
Improvement Contribution or the Braves Parties will initiate the mediation process.

Third, the Braves Parties are entitled to be refunded $500,000 paid in Project
Management costs. Specifically, Stadium Project Budget provided for a Project Management
Cost of $600,000. The Braves Parties and the County were each allocated $300,000 for their
respective Project Managers. However, the County utilized the entire $600,000, plus an
additional approximate $200,000 to pay the County’s Project Manager leaving no budgeted
monies for the Braves Parties. To date, the Braves Parties have yet to be reimbursed. Within
SAMS, LARKIN, HUFF & BALLI
A LIMITED LIABILITY PARTNERSHIP

Alan Ritchie
May 30, 2018
Page 6
__________________

ten (10) days from the date of this letter, please reimburse the Braves Parties $500,000 in Project
Management Costs or the Braves will initiate the mediation process.

In conclusion, the Braves Parties have always attempted to work in good faith
cooperation and to accommodate requests from the County to delay the funding of County
obligations, the refund of fees and the reimbursement of monies not allocated to the County.
This good faith cooperation is demonstrated by the fact that, although the Braves Parties are
owed $4,683,300, this is the first formal demand to the County under the Development
Agreement. Moreover, this demand came only after you claim to have a “consensus”7 from the
Board of Commissioners to demand payment of a SDF that was never authorized. That said, the
Braves Parties look forward to continuing to work in good faith with County officials and
personnel to resolve these issues through either the informal process that has worked so well or
the formal process you have advised the County to initiate.

Thank you for your time and assistance in this matter.

Sincerely,

SAMS, LARKIN, HUFF & BALLI, LLP

James A. Balli
jballi@slhb-law.com

cc: Mr. Mike Plant, President, Braves Development Company

Mr. Greg Heller, Executive Vice President and Chief Legal Officer, Atlanta Braves
Maxine Hicks, Esq.
Deborah Dance, Esq., County Attorney
Robert L. Hosack, Jr., County Manager
Cobb County Board of Commissioners

NOTE

This communication is made for the purpose of attempting to offer a compromise and to resolve a disputed
matter. Accordingly, O.C.G.A. § 24-4-408 establishes that this communication is not admissible in any proceeding
for any purpose, except to establish notice to the recipient.

7
As to a “consensus” did you request a vote from your clients the Commissioners and the County Manager? Did
you advise them of these outstanding funding issues that were not resolved and that would be made formal if the
issue was not resolved with informal discussions?
Exhibit “A”
Exhibit “B”
 BOARD 0F.00MMISS10NERS
l 00 Cherokee Street, Suite 300
Marietta, ~ 30090-7000 Samuel S. Olens
Phone: (770) 528-3305 fax: (710} ~2606 Email: sol~unty.org CHAIRMAN

June 9, 2005

Ms. Michele Swann, General Manager

Cobb Galleria Centre
Two Galleria Parkway
Atlanta, Georgia 30339

Dear Michele:

It is certainly exciting to see the site work begin on the Cobb Energy Performing Arts Centre and
to know that in just a couple of short years this facility will be open for business. Cobb County
and the· business community, in the form of the Cobb chamber· of Commerce and the
Cumberland CID, enjoy an extensive legacy of partnership and cooperation, with this mcility
--·-- -- ··beingthe·Jatestexample ofbothparties·coming-togetherfor·the·bencfit-ofthecommunity; ·--- -·-· · ·· ··--····· -- ····-·-·

We anticipate that this facility will clearly have a positive impact on our local economy by
creating new employment opportunities and attracting additional quality development that will
only enhance the tax base of~ growing and vi1?rant urban center. Wrth this facility the
County will continue to reinforce its leadership position in metro Atlanta as a place to live,
conduct business and offer excellent quality of life, particularly as it relates to providing the
community with cultural facilities.

In recognition of this positive impact, we are pleased to offer the following incentive for your
::. · .
consideration:

.• Building permit fee for this facility will be capped at $36,300.

Should you have any questions please do not hesitate to contact Mr. Michael Hughes, Director of
the Office ofEconomic Development at 770-528-1510.

·.... _.·. .
~5)__
Samuel S. Qlens

xc: D~vid Hankerson, County Manager Copy from Michel~ ~o:

Rob Ho~ Community Development Agency Rob Turne:t - .. - ·· ~
Virgil Moon, Support Services -Agency We1;14l __:Iµggs··· !:
Jack·Xtu:ner
Michael-Hughes, Economic Development .. -~in- ~poth · · - ....··

..· .. ' . .--:-.-.. .