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08-21-1989 Regular MeetingAugust 21, 1989 The regular scheduled meeting of Mayor and Council was held August 21, 1989 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor A. Max Bacon. All council members were present. Also present was City Administrator John Patterson, City Attorney Charles E. Camp, City Clerk Melinda Dameron, Acting Police Chief Kent Sims, Fire Chief Larry Williams, Public Works Director Vic Broyles, Personnel Director Jane Sargent, Communications Director Steve Ciaccio, Building Inspector Scott Stokes, Parks and Recreation Director Sherry Reavis, Finance Director Emory McHugh, Faye Wood representing the Library and representatives of the press. Invocation was given by Michael Carey, pastor of Calvary Presbyterian Church followed by the pledge to the flag. John Steely presented a crystal jonquil to Jerry Hughes, retiring from the Parks Commission after serving since 1984. Mayor Bacon recognized Senator Hugh Ragan and thanked him for obtaining funds to pave North Cooper Lake Road. CITIZENS INPUT: Nothing to report. PUBLIC HEARINGS: (A) Home occupation license - 4140 Manson Avenue John Patterson said that Thomas McMurrian has requested a home occupation license to develop computer software and act as a management consultant. Business will be conducted from his client's location with no sign of business activity from the home. There was no opposition. John Steely said Mr. McMurrian's application indicated he would have one employee not residing in the home, which is not allowed under our code. However, in speaking with him earlier Mr. McMurrian has indicated that the employee will be handling outside sales work only and will not actually be working in the home. Mr. McMurrian said he understood that there could not be any employees on the premises, no storage of products or equipment and no client contact at the home. John Steely made a motion the license be approved with the stipulation that when the business expands to the point that more employes are needed, the license be void. Jack Shinall seconded the motion which carried 7-0. (B) Privilege license - transfer of liquor, beer and wine package license for Sterling Package Store, 1669 Spring Road John Patterson said that John Michael Upchurch has applied as the acting agent for Sterling Package Store. The police investigation of Mr. Upchurch's background was favorable and there was no opposition. Attorney David B. Groff and James P. Wassell also represented Sterling Package as officers of the corporation. Mr. Upchurch said he is a CPA and this is the first time he has been involved with this type business. He is Treasurer of the corporation and will act as a financial advisor but does not own stock in the company. Mr. Upchurch said he had a copy of the city rules and regulations regarding alcoholic beverages and understood them fully. Mr. Groff said the request for change of management was submitted to the City before their license was suspended during the sting operation. This change including the termination of Mr. Lange was strictly a business decision. Mr. Upchurch said while he would not work in the store, their policy from now on will be to card everyone who comes into the store, regardless of their age appearance. They also have placed signs inside the store stating they will not sell to anyone unless identification is provided. Jack Shinall reminded Mr. Upchurch that our ordinance is being revised to provide for more stringent penalties for violations. After further discussion, Bill Scoggins made a motion the management change be approved. Bob Davis seconded the motion which carried 7-0. (C) Variance - sign for Exxon, Spring & Atlanta Road. John Patterson said Exxon is requesting a variance to allow an additional sign at their new location on Spring and Atlanta Road. The proposed sign will August 21, 1989 meeting - continued be 60 square feet of copy area and 20 feet in height. The variance has been tabled several times prior to the meeting tonight. Sue Brissey said she did not wish to speak but would like to go on record as being in opposition. Elvin Aycock represented Exxon and said the sign they would like to use will be one-half the size of the sign already on the Spring Road side. They feel they need the sign because of the poor visibility on Atlanta Road to advertise their prices. Mr. Aycock said this facility is a one million dollar investment for Exxon and the business they are doing thus far does not justify the investment. If they cannot increase their volume they will not continue the operation. Mr. Aycock said they have tried everything possible within the guidelines of the ordinance and felt the sign was vital to the operation. John Steely said he could not understand why the existing sign could not be relocated to the Atlanta Road side since they do have good visibility on Spring Road. Jack Shinall asked if they had calculated the change in business when the Atlanta Road construction was completed. Mr. Aycock said construction has already slowed down and they felt that when it was completed, traffic would speed up and make the situation worse than it already is. Ninety percent of their business now is from the Spring Road side and if they move that sign, they felt that portion of their business would also decline. After further discussion Wade Lnenicka said there are good arguments on both sides. He felt Exxon has been a good corporate citizen to the City during their stay; it is a clean operation and the type of business we like to have in Smyrna. Mr. Lnenicka said he was also cognizant of the precedent council would be setting by approving this variance but felt it was a unique situation because of the poor visibility on Atlanta Road. Wade Lnenicka made a motion the variance be approved at this location for Exxon only; any other ownership would automatically rescind the variance. Bill Scoggins seconded the motion which failed 2-5, with Bob Davis, Jim Hawkins, Jack Shinall, Kathy Jordan and John Steely opposed. (D) Variance - portable storage buildings at Smyrna Hospital, 3949 South Cobb Drive. John Patterson said that Smyrna Hospital is requesting a variance to allow two 14 x 48 mobile buildings to be used as temporary office space. Moving some of the administrative offices will free up critical square footage in the main building necessary for patient care. There was no opposition. Ernie Carringer represented Smyrna Hospital and said space is at a critical stage. They will relocat the accounting, human relations, marketing and development departments and provide additional space for patient services and ,care. Mr. Carringer said the buildings will be used temporarily and they are planning for future expansion. The buildings will be directly behind the hospital and not visible from South Cobb Drive. They are constructed to match the siding on the main building and will be tied together with walkways to appear to be part of the main facility. After discussion, Wade Lnenicka made a motion the variance be approved with the stipulation that the buildings be limited to a two year duration and that the variance be automatically rescinded within 30 days after these offices are relocated to a permanent site. John Steely seconded the motion which carried 7-0. (E) Variance - side yard setback at 1003 Natalie Lane John Patterson said that Mrs. Bobbie Allison of Bobbie Allison Construction is requesting this variance to reduce the side yard setback from 23.33 feet to 20.9 feet. There was no opposition. Ken Reese represented Mrs. Allison and said he was the surveyor for this property. Mr. Reese said there is a drop off on the side yard of this lot which made it difficult to lay the lot out. The error was discovered on the final survey. Mr. Reese said he has surveyed the entire subdivision which is about 90% complete and this is the first time they have required a variance. Jack Shinall said the only problem he had was that the home was closed before the final certificate of occupancy was issued by the Inspections Department and that should not happen except in very unusual circumstances. Jack Shinall made a motion the variance be approved seconded by Wade Lnenicka. The motion and second were later withdrawn to allow comments by Mr. August 21, 1989 meeting - continued James Williamson, owner of the house. Mr. Williamson said he just wanted to be sure that if they sold the house at some future date, the next person would not have this same problem. Also, he wondered why this was not caught earlier. Building Inspector Scott Stokes said the encroachment was discovered before footings were poured but it was difficult to measure the setback, because of the topography of the lot. They did require the builder to move the house back about 3 feet but the final survey indicated that they were still over the building line. Jack Shinall made a motion the variance be approved as requested. Wade Lnenicka seconded the motion which carried 7-0. FORMAL BUSINESS: (A) Bid openings: Bids for two copy machines to be used in City Hall and Police Department Records were opened, read and recorded as follows: Pitney Bowes Minolta Business Systems Xerox Corporation First Copy Corporation Danka Business Services Eastman Kodak Company $10,531 165 installation $ 9,169.81 each $17,620.00 total $12,061 300 installation $ 8,767.40 each - Panasonic $ 8,191.00 each - Savin 7500 $11,110.00 - Savin 7065 $ 8,316.00 - Savin 7500 $ 1,382.25 - maintenance program for 7500 $ 1,946.50 - maintenance program for 7065 $12,917.50 each - EK90 (State contract price) John Steely made a motion the bids be turned over to the Finance and Police Committees for their recommendation back to full council at the next meeting. Wade Lnenicka seconded the motion which carried 7-0. Bids for portable staging were opened, read and recorded as follows: Bil-Jax, Inc. Wenger Corp. $3,929.94 $3,430.00 Bill Scoggins made a motion the bids be turned over the Parks Committee for their recommendation back to full council at the next meeting. Jim Hawkins seconded the motion which carried 7-0. Bids for the central computer upgrade were opened, read and recorded as follows: IBM $27,249.00 600 credit for deletion of feature codes XL/Datacomp $24,900.00 DPE Enterprises $20,630.62 Jim Hawkins made a motion the bids be turned over to the Finance Committee for their recommendation back to full council. Wade Lnenicka seconded the motion which carried 7-0. Bids for a new pickup truck for the Community Development department were opened, read and recorded as follows: Beaudry Ford $10,911.00 $11,390.00 4.3 litre engine 5.0 litre engine Bob Davis made a motion the bids be turned over to the Community Development for a recommendation back to full council. Jim Hawkins seconded the motion which carried 7-0. i August 21, 1989 meeting - continued Bill Scoggins made a motion the riding lawn mower for the Parks Department be awarded to Turf Care Products for the Toro mower at $9,945. John Steely seconded the motion which carried 7-0. Bill Scoggins made a motion the playground equipment for Church Street and Tolleson be awarded to Gametime who was the high bidder at $26,518. Other companies bidding could not or did not meet specifications and were substituting apparatus. Kathy Jordan seconded the motion which carried 7-0. Bill Scoggins made a motion the Holland loader with attachments be awarded to Cobb County Tractor for $171300. The low bid from Franklin Ford Tractor was a demo model with parts that could not be replaced. Jack Shinall seconded the motion which carried 7-0. Jack Shinall .made a motion the pickup truck for Public Works be awarded to Wade Ford at $11,800. This is not low bid but consideration was given to the time saved on service calls with a local company. Bill Scoggins seconded the motion which carried 7-0. Jack Shinall made a motion the refuse collector be awarded to Fouts Brothers Nissan, the low bidder for the Dempster model at $63,352.72. Kathy Jordan seconded the motion which carried 6-0, with Bill Scoggins abstaining. COMMERCIAL BUILDING PERMITS: Nothing to report. CONSENT AGENDA: (A) Parade permit - SAA opening day, August 26th (B) Approval to request bids for motorcycles - Police Department (C) Approval to request bids - rescue truck for Fire Department Jim Hawkins made a motion the consent agenda be approved. Bob Davis seconded the motion which carried 7-0. COUNCIL INPUT: Jim Hawkins made a motion the rules be suspended to change the date of the next meeting. Jack Shinall seconded the motion which carried 7-0. Jim Hawkins made a motion the first meeting of September be changed to September 5th because of the Labor Day holiday. Bill Scoggins seconded the motion which carried 7-0. John Steely said he would also like to thank the Cobb County Commissioners who helped with funding for paving North Cooper Lake Road. Mayor Bacon said the court had ruled that the City ordinance would not allow council to arbitrarily suspend an alcoholic beverage license for violations regarding sales and although those licenses were re -instated August llth, felt they had still sent a message to the businesses that they would not tolerate sales to our minors. With no further business, meeting adjourned at 8:48 p.m. A. MAX BACON, MAYOR BOB DAS , (WARD 1 BILL SCOGGINS, WARD J SHINALL, 5 J HN STEELY, WARD 7 # ,/., 7 WAD LNENfCKAA, IC t;Z LEASE CONTRACT between DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY and I CITY OF SMYRNA Dated as of September 1, 1989 I LEASE CONTRACT THIS LEASE CONTRACT is entered into as of September 1, 1989, by and between the DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (the AAuthority"), a body corporate and politic and deemed to be a political subdivision and public corporation or the State of Georgia created and existing under the Constitution of the State of Georgia, as Lessor, and CITY OF SMYRNA (the "Lessee" or the NCity"), a political subdivision of the State of Georgia, as Lessee. W I T N E S S E T H• In consideration of the respective representations contracts hereinafter contained, the Authority and the Lessee AS follows: ARTICLE I. DEFINITIONS and agree In addition to the words and terms elsewhere defined in this ''Lease Contract, the following words and terms as used in this Lease -contract shall have the following meanings unless the context or use indicates another or different meaning or intent and such definitions shall be equally applicable to both the singular and plural forms of the words and terms herein defined: "Additional Bonds" means any of the ranking on a parity with the Series 1989 be issued pursuant to Article V, Section Authority's revenue bonds Bonds which may hereafter 4 of the Resolution. "Authority" shall mean the Downtown Authority, its successors and assigns. Smyrna Development "Authority Act" shall mean Georgia Laws 1988, p. 4382 et sect. "Basic Lease Payments" means an amount equal to the principal of and the interest on the Bonds coming due on the next succeeding February 1 and an amount equal to the interest on the Bonds coming due on the next succeeding August 1 in each year; provided, however, the Lessee shall receive a credit against any Basic Lease Payment to the extent moneys are on deposit in the Sinking Fund and riot previously credited to a Basic Lease Payment. In addition to the foregoing, each Basic Lease Payment shall include the charges as billed specified in subparagraphs (e) , (f) and (g) of Section 3► Article V of the Resolution and any deficit in any preceding Basic Lease Payment. "Bondholder" and "bondholder" means the registered owner of 4nY of the outstanding Bonds. ooBonds" shall mean any pursuant to the Resolution, additional Bonds of the Solution. revenue bonds authorized by and issued including the Series 19810 Bonds and any Authority issued pursuant to the Re viCapital Improvement Program" shall mean roject yrna MasteMaster plan, Phase I: Community Center and Librarythe pSizemore Floyd datedSeptember __, 1989, prepared by hrchitects, Atlanta, Georgia for the Lessee and the Authority. viCity" or I'Lessee" means the City of Smyrna, its successors and assigns. 9'Fiscal designated by � design year" means the fiscal year for the City as may appropriate proceedings of the City. "Leasell or t'Contract" means this Lease Contract, as from time to time amended. 's "Lease Term" shall have the meaning specified in Section 4.1 hereof . s and "Leased the Facilities" roceeds ofns the the Series 1989eBonds financed with the Authority. Bonds issued by real property and Additional ,,Permitted Encumbrances" means liens and encumbrances exiisstind on the date of acquisition by the Authority of any Lease Facilities. otpermitted Investments" shall mean and include any of the following securities, if and the eextent the same are at the time legal for investment of Authority f (i) any bonds or other -obligations of the City of Smyrna, Cobb County or bonds or obligations of the State of Georgia or of other counties, municipal corporations and ted political subdivisions of In esters ServiceState of , Inc. which Standard "A" or better by Moody & Poor's Corporation; (ii) any bonds or other obligations which as to principal and interest constitute direct obligations of, or are unconditionally.guaranteed by, the United States of America, forth including obligations of any of.the Federal agencies snteed in clause (iii) below to the extent unconditionally guar by the United States of America; (iii) obligations of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Financing Bank, the Federal Intermediate Credit Banks, Federal Banks for Cooperatives, Federal Home Loan -2- Banks, Farmers Home Administration and Federal Home Loan Mortgage Association; (iv) negotiable certificates of deposit issued by any bank or trust company organized under the laws of any state of the United States of America or any national banking association, provided that such certificates of deposit must be purchased directly from such bank, trust company or national banking association and must be either (a) continu- ously and fully insured by the Federal Deposit Insurance Corporation, or (b) continuously and fully secured by such securities as are described in clauses (ii) and (iii) above which (1) have a market value (exclusive of accrued interest) at all times at least equal to the principal amount of such certificates of deposit, (2) are lodged with the particular fund custodian or an agent acting solely on behalf of the particular fund custodian, and (3) are subject to a security interest in favor of the particular fund custodian and not subject to any security interest in favor of any other person. Additionally, the bank, trust company or national banking association issuing each such certificate of deposit required to be so secured must furnish the particular fund custodian with an undertaking satisfactory to it that the aggregate market value of all such obligations securing each such certificate of deposit will at all times be an amount equal to the principal amount of each such certificate of deposit; (v) any repurchase agreement with any bank organized under the laws of any state of the United States of America or any national banking association, provided if such bank's or association's principal office is located outside Cobb County, such bank or association either (a) has a long term debt rating by Moody's Investors Service or Standard & Poor's Corporation either equivalent to or higher than "A," or (b) has a capital and surplus at least equal to $100,000,000; provided that such repurchase agreement is secured by any one or more of the securities described in clauses (ii) and (iii) above and in the manner described in clause (iv) above; and (vi) pooled investment programs sponsored by the State of Georgia for the investment of local government funds. "Project Funds' shall mean the Downtown Smyrna Development Authority Project Fund created in Article IV, Section 2 of the Resolution. "Project Fund Depository" means initially Smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, or any successor depository for the Project Fund hereafter appointed by the Authority with the approval of the Lessee; provided, however, the Project Fund Depository shall at all times be a_ commercial bank. -3- "Resolution" means that certain bond resolution of the,Autho- rity adopted September 5, 1989 authorizing the issuance of the Series 1989 Bonds and as same may be supplemented from time to time. "Revenue Bond Lawle means the Revenue Bond Law, Title 36, Chapter 82, Article 3 of the Official Code of Georgia Annotated, as amended, and as same may hereafter be amended from time to time. #@Series 1989 Bonds" means the Bonds authorized to be issued pursuant to Article II of the Resolution. "Sinking Fund's shall mean the Downtown Smyrna Development Authority Sinking Fund created in Article V, Section 1 of the Resolution. "Sinking Fund C'ustodianel means initially Smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, or any successor custodian for the Sinking Fund hereafter appointed by the Authority; provided, however, the Sinking Fund Custodian shall at all times be a commercial bank. HSinking Fund Year" shall mean the period commencing on the 2nd day of February in each year and extending through the 1st day of February in the next year. ARTICLE II. REPRESENTATIONS Section 2.1. Representations by the Authority. The ity makes the following representations as the basis undertakings on its part herein contained: Author - for the (a) The Authority is authorized to enter into the transactions contemplated by this Lease and to carry out its obligations hereunder, has been duly authorized to execute and deliver this Lease, and will do or cause to be done all things necessary to preserve and keep in full force and effect its'status and existence; (b) The issuance and sale of the Series 1989 Bonds, the execution and delivery of this Lease, the adoption of the Resolution, and the performance of all covenants and agreements of the Authority contained in this Lease and of all other acts and things required under the Constitution and laws of the State of Georgia to make this Lease a valid and binding obligation of the Authority in accordance with its terms are authorized by law and have been duly authorized by proceedings of the Authority adopted at public meetings thereof duly and lawfully called and held; -4- (c) The Authority has not made, done, executed or suffered, and warrants that it will not make, do, execute or suffer any act or thing whereby its title to and interest in the Leased Facilities will or may be, impaired or encumbered in any manner except as permitted herein and the Resolution and except for acts or things done or permitted by the Lessee; and (d) There is no litigation or proceeding pending, or to the knowledge of the Authority threatened, against the Authority or against any person having a material adverse effect on the right of the Authority to execute this Lease or the ability of the Authority to comply with any of its obligations under this Lease. Section 2.2. Representations and Agreements by the Lessee. The Lessee makes the following representations and agreements: (a) The Lessee is a political subdivision under the laws of the State of Georgia having power to enter into and execute and deliver this Lease, and, by proper action of its governing body, has authorized the execution and delivery of this Lease and the taking of any and all such actions as may be required on its part to carry out, give effect to, and consummate the transactions contemplated by this Lease and the Resolution, and no approval or other action by any governmental authority, agency, or other person is required in connection with the delivery and performance of this Lease by it except as shall have been obtained as of the date hereof; (b) This Lease has been duly executed and delivered by the Lessee and constitutes its legal, valid, and binding obli- gation enforceable in accordance with its terms, except as enforcement may be limited by the application of equitable principles; (c) The Lessee does not rely on any warranty of the Authority, either express or implied, except as provided herein, as to any title to or condition of the Leased Facilities or that the Leased Facilities will be suitable to the Lessee's needs, and the Lessee recognizes that the Authority is not authorized to expend any funds for the Leased Facilities other than rental revenue received by it therefrom hereunder or the proceeds of the Bonds; (d) The authorization, execution, delivery, and perfor- mance by -the Lessee of this Lease and compliance by the Lessee with the provisions thereof do not violate the laws of the State of Georgia relating to the Lessee or constitute a breach of or a default under, any other law, court order, administrative regulation or legal decree, or any agreement or other instrument to which it is a party or by which it is bound; -5- (e) There is no litigation or proceeding pending, or to the Lessee or the knowledge of the Lessee threatened, against an, other person having a material adverse affect on to comply e or its of the Lessee to execaionste lunder sthis LeaGebillty of its obligations with anY Term, f) During the Lease the Lessee shall restrict ( defined in Section 141 the extent and nature � of ^the't�s� orxf i thedLe Leased Facilities or "private business use as s"I as amended, so as to of the Internal Revenue Code of 1986, applicable reserve the exemption from federal T$emLessee twill not enter e taxa p aid on the Bon to the interest p ortions of the Leased into leases or management contracts frother than a governmental Facilities with any person or entity unit. The Lessee will permit the use of the Leased Facilities persons only for short periods of time on a uch non - by non-exemptPestS Of rate -scale basis so that to ly those not lattransient soccupant exempt persons shall be Y interests. The Lessee may rather than full legal possessory provided the following enter into concessionaire contracts p conditions are met: does (i) The contract (including renewal options) not exceed five (5) years; (ii) Compensation to the concessionaire is not based on net profits from the operations; Authority) has the option to (iii) The Lessee (or enalty at the end of any three cancel the contract without p (3) year period; and (iv) At least fifty percentum (5U%) of the compen- sation to the concessionaire on the basis of gross revenue)d fee S (i.e. the other portion can ARTICLE III - LEASING. _ISSUANCE,OFmBntJOD�F THECPROJF The Authority hereby leases to the Section 3.1.!&AWLD-9• Authority,from the the Leased Lessee, and the Lessee hereSey leases in Section 4.3hereof ad in Facilities at the rentalThe Authority es accordance with the provisionsLeasedreslths teto the Leased Facilities. no warranties to the Lessee withPec Section 3.2. A reement to Issue Series-ds. The Authority ees that it -Bonds-' Applica- will validate tion ofeBond o bPrceee of sued the Series 1989 Bonds, the proceeds of which and cause Q-M shall be applied as provided in Article IV, Section 1 of the Resolution. Section 3.3. Project Fund Moneys. The City and. the Authority agree to cooperate with each other and will take such action to the extent reasonably necessary to apply for and/or receive any grants, gifts, or donations to be applied to the cost of additions, extensions and improvements to the Leased Facilities in accordance with the Capital Improvement Program or any program or report approved and ratified by the Authority urd the City with respect to any issue of Additional Bonds. Any costs and expenses incurred in connection with the issuance and delivery of the Series 1989 Bonds not paid by the purchaser of the Series 1989 Bonds shall be borne by the City and shall be paid for the account of the City. Section 3.4. Agreement to Construct the Projects. (a) The Authority hereby appoints the Lessee as its agent to proceed forthwith with the Capital Improvement Program. The Lessee shall obtain or cause to be obtained all necessary approvals from any and all governmental agencies requisite to undertaking the Capital Improvement Program and the Capital Improvement Program shall be acquired, constructed and installed in compliance with all federal, state and local laws, ordinances and regulations applicable thereto. The Lessee will take or cause to be taken such action and institute or cause to be instituted such proceedings as it shall deem appropriate to cause and require all contractors and suppliers of materials to complete their contracts, including the correcting of any defective work, and the Authority agrees that the Lessee may, from time to time, in its own name, or in the name of the Authority, take or cause to be taken such action as may be necessary or advisable, as determined by the Lessee, to assure that the construction and the installation of such projects will proceed in an efficient and workmanlike manner. Any amounts recovered by way of damages, refunds, adjustments or otherwise in connection with the foregoing shall (i) if Lessee has corrected at its own expense the matter which gave rise to such default or breach, be paid to the Lessee or (ii) if Lessee has not corrected at its own expense the matter which gave rise to such default or breach, be paid into the Project Fund. (b) The Lessee, as agent for the Authority, shall acquire, construct, install and equip, or cause to be acquired, constructed, installed and equipped, the Capital Improvement Program with all reasonable dispatch and shall use its best efforts to cause the acquisition, construction, installation and equipping to be completed as soon as may be practical, delays incident to strikes, riots, acts of God or the public enemy beyond the reasonable control of the Lessee excepted; but if for any reason such acquisition, construction and installation is not completed by any specified date there shall be no resulting liability on the part Of the Lessee. -7- (c) The Lessee shall create on its books and records special accounts for the Project Fund as to any issue of Bonds providing Yoject Fund moneys, a separate account each of which shall be ;signated as "Series Capital Improvement Account" iereinafter referred to as a "Capital Improvement Account"). The >neys credited to the Series 1989 Capital Improvement Account shall be used and applied for the purpose of paying the cost of the Leased Facilities in accordance with the Capital Improvement program and otherwise disbursed as herein provided. The moneys derived from the sale of any Additional Bonds under the Resoluti.on to be credited to the related Capital Improvement Account shall be used and applied for the purpose of paying the cost of additions, extensions and improvements to the Leased Facilities in accordance with the capital improvement program or report approved and ratified by the Authority and the City with respect to each such issue of additional Bonds. (d) All payments from the Project Fund shall be made upon checks signed by the officers of the City properly authorized to sign on its behalf, but before .they shall sign any such checks there shall be filed with the Project Fund Depository: (1) A requisition for such payment (the above -mentioned checks may be deemed a requisition for the purpose of this Section), stating each amount to be paid, and the name of the person, firm or corporation to whom payment thereof is due; and ` .(2) A certificate signed by such officers, attached to the requisition and certifying: (i) That an obligation in the stated amount has been incurred by the City on behalf of the Authority, and that the same is a proper charge against the Project Fund and has not been paid, specifying the- purpose and circumstances of such obligation in reasonable detail and to whom such obliga- tion is owed, accompanied by the bill or statement of account for such obligation, or a copy thereof; (ii) That they have no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or any security interest, which should be satisfied or discharged before such payment is made; (iii) That such requisition contains no item repre- senting payment on account or any retained percentages which the Authority or the City is, at the date of such certificate, entitled to retain; and (iv) That insofar as such obligation was incurred for work, materials, supplies or equipment in connection with the undertaking, such work was actually performed, or such -8- materials, supplies or equipment were actually installed in or about the construction or delivered at the site of the work for that purpose; and (e) Simultaneously with any payment from the Project Fund with respect to the acquisition of any real property (or interests therein) the City shall cause to be transferred to the Authority such real property (or interests therein), free of any liens and encumbrances and the same shall constitute part of the Leased Facilities. (f) The City will do or cause to be done all things, and take or cause to be taken all reasonable and prudent measures, necessary, to continue construction with due diligence and to expend the moneys credited to each Capital Improvement Account in the Project Fund as expeditiously as possible in order to assure the completion of the projects for which such accounts were created, on the earliest practicable date, and will indemnify itself against the usual hazards incident to the construction of such projects, and without in any way limiting the generality of the above, agrees to: (a) require each construction contractor, and each subcon- tractor to furnish a bond, or bonds, of such type and in amounts adequate to assure the faithful performance of their contracts and the payment of all bills and claims for labor and material arising by virtue of such contract; and (b) require each construction contractor or the subcontractor to maintain at all times until the completion and acceptance of the undertaking adequate compensation insurance for all of their employees and adequate public liability and property damage insurance for the full and complete protection of the Authority or the City from any and all claims of every kind and character which may arise by virtue of the operations under their contracts, whether such operations be by itself or by anyone directly or indirectly for it, or under its control. (g) All requisitions and certificates required by this Section shall be retained either by the Project Fund Depository or by the Authority or the City, subject at all times to inspection by any officer of the Authority or any bondholder. Section 3.5. In Event Project Fund Insufficient. The Authority does not make any warranty, either express or implied, that the moneys which will be paid into the Project Fund under the Provisions of this Lease will be sufficient to pay all the costs Of the projects which will be incurred in that connection. The Lessee agrees that, if after exhaustion of the moneys in the Project Fund the Lessee should pay any portion of the costs of the projects it shall not be entitled to any reimbursement therefor from the Authority or from the owners of any of the Bonds, nor shall it be entitled to any diminution in or postponement or abatement of the amount of the rents and other amounts payable under Article IV hereof. WE Section 3.6. Investment of Project Fund Moneys Permitted. moneys held in the Project Fund shall be invested or reinvested MY eti the direction of the City in Permitted Investments. ARTICLE IV. EFFECTIVE DATE OF THIS LEASE; DURATION OF LEASE TERM, RENTAL PROVISIONS• FLOW OF FUNDS Section 4.1. Effective Date of this Lease• Duration of Lease M. This Lease shall become effective as of September 1, 1989 and the leasehold interest created by this Lease shall then begin, and, subject to the other provisions of this Lease (including particularly Article VIII hereof), shall expire February 2, 2016, or if at said time and on said date all of the Bonds have not been paid in full, then on such date as such Payment shall have been made, but in no event in excess of fifty (50) years from the date hereof. Section 4.2. Delivery and Acceptance of Possession. The Authority agrees to deliver to the Lessee sole and exclusive possession of the Leased Facilities upon delivery of the Series 1989 Bonds and the Lessee agrees to accept possession of the Leased Facilities upon delivery of the Series 1989 Bonds upon such delivery. The Lessee agrees to operate, maintain and insure or cause to be operated, maintained or insured the Leased Facilities on a sound, businesslike basis. Section 4.3 Basic Lease Payments. On or before January 15 and July 15 of each year, commencing with July 15, 1990, the City shall make the Basic Lease Payments to the Authority if such date is January 15th, an amount sufficient to pay the principal of and interest on the Bonds coming due on February 1, and if such date is July 15th, an amount sufficient to pay the interest on the Bonds coming due on August 1, and such Basic Lease Payments shall continue and recontinue until provision has been made for the payment in full of said Bonds. In addition to the foregoing, each Basic Lease Payments shall include the charges as billed specified in subparagraphs (e) , (f) and (g) of Section 3, Article V of the Resolution. The Basic Lease Payments provided for herein l be made by ent Sinkina Fund Custodian flor deposit into the �directly to the Section 4.4 operating Expenses. The City shall pay or cause to be paid the reasonable and necessary costs of operating, maintaining and repairing the Leased Facilities, including salaries, wages, employee benefits, the payment of any contractual obligations incurred pertaining to the operation of the Leased Facilities, cost of materials and supplies, rentals (excluding Basic Lease Payments) of leased property, real or personal, insurance premiums, audit fees, any incidental expenses of the -10- Authority an Fallitiesf in Section d such other charges as may properly be made for the operating, maintaining and repairing the Leased accordance with sound business practice. 4.5. Optional Prepayment of Rent; Fedemntion of (a) The rent due under Section 4.3 shall be subject to pre- ent, in whole or in part, for the purpose of calling and paym at the o do^. cf the City, all or part of the Bonds in rEdeeming, P accordance with w ver, that the funds used to p repay rovisions of Article III of t uch rent have provided, however, been deposited to the Sinking Fund prior to the giving of notice to redeem by the Bond Registrar (as defined in the Resolution) to the bondholders, and the Lessee shall pay all costs which may be incurred in connection the call redemptionf the premium ds to be redeemed together Y applicable ent of any amount of rent in accordance with (b) No prepaym the provisions of the preceding subsection shall relieve the Lessee to any extent from its obligations thereafter to make the full Basic Lease Payments required by the provisions hereof until all the Bonds issued under the Resolution and the interest thereon and the charges of the Bond Registrar and Paying Agent (as defined of in the Resolution) have been paid in full. Upon any prepayment rent, as authorized by the preceding subsection, in part, the Bonds to be redeemed shall be called for redemption by lot or in such of other manner prescribed by the Resolution. Upon the prepayment such rent in whole the amount of such prepayment shall be used to retire all outstanding Bonds in the manner provided in, and subject to. the Resolution. Section 4.6. Obligations o=��c� payments Unconditional. The obligation of the Lessee to make the required in Section 4.3 hereof and to perform and observe the other agreement on its part contained herein shall be absolute and unconditional. Until such time as the principal of and interest on the Bonds outstanding under the Resolution shall have been paid in full or provision for the payment thereof shall have been made in accordance with the Resolution, the Lessee (i) will not suspend or discontinue any payments provided for in Section 4.3 hereof except to the extent the same have been prepaid, (ii) will perform and observe all of its other agreements contained in this Lease, and (iii) except as provided in Article vIII hereof, will not terminate the Lease Term for any cause, including, without limiting the generality of the foregoing, failure of the Authority's or the city's title in and to the Leased Facilities or any part thereof, any acts or circumstances that may constitute failure of consider- ation, eviction or constructive eviction, destruction of or damage to the Leased Facilities, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State of Georgia or any political subdivision of either or any failure of the Authority to perform and observe any agreement, -11- Whether express or implied, or any duty, liability or obligation rising out of or connected with this Lease or the Resolution. othing contained in this Section shall be construed to release the uthority from the performance of any of the agreements on its part erein contained; and if the Authority should fail to perform any such agreement, the Lessee may institute such action against the Authority as the Lessee may deem necessary to compel performance or recover its damages for nonperformance as long as such action shall not do violence to or adversely affect the agreements on the part of the Lessee contained in the preceding sentence and to make the payments specified in Section 4.3 hereof; provided, however any liability of the Authority shall be payable solely from rents, revenues and receipts arising from the Authority's interest in the Leased Facilities. The Lessee may, however, at its own cost and expense and in its own name or in the name of the Authority, prosecute or defend any action or proceeding or take any other action involving third persons which the Lessee deems reasonably necessary in order to insure the acquisition and construction of the Leased Facilities or to secure or protect its right of possession, occupancy and use hereunder, and in such event the Authority hereby agrees to cooperate fully with the Lessee and to take all lawful action which is required to effect the substitution of Lessee for the Authority in any such action or proceeding if the Lessee shall so request. Section 4.7. Tax Levy to Pay Basic Lease Payments. (a) The obligations of the Lessee to make the Basic Lease >ayments when due under Section 4.3 hereof, and to perform its other obligations hereunder, are absolute and unconditional as herein provided, and the Lessee hereby pledges its full faith and ,credit to such payment and performance. (b) The Lessee covenants that, in order to make any Basic Lease Payments .when due from its general funds to the extent required, it will exercise its power of taxation to the extent necessary to pay any amounts required to be paid hereunder and it will make available and use for such payments all taxes levied and collected for that purpose together with funds received from any other source. The Lessee further covenants and agrees that in order to make funds available for such purpose, it will, in its general revenue, appropriation, and budgetary measures whereby its tax funds or revenues and the allocation thereof are controlled or provided for, include sums sufficient to satisfy any such Basic Lease Payments that may be required to be made from the general funds, whether or not any other sums are included in such measure, until all payments so required to be made shall have been made in full. The obligation of the Lessee to make any payments that may be required to be made from its general .funds shall constitute a general obligation of the Lessee and a pledge of the full faith and credit of the Lessee to provide the funds required to fulfill any such obligation. -12- (c) In the event for any reason any such provision or appropriation is not made as provided in the preceding subsection (b), then the fiscal officers of the Lessee are hereby authorized and directed to set up as an appropriation on their accounts in the appropriate fiscal year the amounts required to pay the obligations which may be due from the general funds. The amount of such appropriation shall be due and payable and shall be expended for the purpose of paying any such obligations, and such appropriation shall have the same legal status as if the Lessee had included the amount of the appropriation in its general revenue, appropriation, and budgetary measures, and the fiscal officers of the Lessee shall make such Basic Lease Payments to the Sinking Fund Custodian for deposit to the Sinking Fund if for any reason the payment of such obligations shall not otherwise have been made. ARTICLE V SPECIAL COVENANTS OF CITY The City covenants and agrees with the Authority for the bene- fit of the bondholders as follows: Section 5.1. Rules and Regulations. That it will enforce or cause to be enforced reasonable rules and regulations governing the Leased Facilities and the operation thereof, and that all compensation, salaries, fees and wages paid or caused to be paid by it in connection with the operation, repair and maintenance of the Leased Facilities will be reasonable, and that no more persons will be employed than are necessary, and that it will operate or cause to be operated same in an efficient and economical manner, and will at all times maintain or cause to be maintained the same in good repair and in sound operating condition, and will make or cause to be made all necessary repairs, renewals and replacements, and that it will comply or cause to be complied with all valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body applicable to such undertaking and enterprise. Section 5.2. Contracting Procedure. That any contract rela- ting to the installation, extension, improvement, maintenance or repair of any facilities shall provide for retention of amounts due thereundgr in accordance with applicable law. Section 5-.3. Liens. That, except as herein provided and except for Permitted Encumbrances, the City will not create or suffer to be created, in the operation and maintenance of the Leased Facilities, any lien, security interest or charge thereon, or any part thereof , and that it will pay, or cause to be dis- charged, or will make adequate provisions to satisfy and discharge, within sixty (60) days after the same shall accrue, all lawful claims and demands for labor, materials, supplies or other objects, Which, if unpaid, might by law become a lien upon the Leased -13- Facilities, or any part thereof; provided, however, that nothing contained in this Section shall require the City to pay, or cause to be discharged, or make provision for, any such lien, security interest or charge, so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings. Section 5.4. Insurance. That, to the extent deemed necessary, it will cause to be bonded its employees or agents handling funds of the Leased Facilities in amounts adequate for its protection and it shall procure and maintain or cause to be maintained insurance on the physical properties of the Leased Facilities of the kinds and in the amounts normally carried by private companies or other agencies engaged in the operation of similar properties so long as any Bonds are outstanding. Such insurance shall include: (a) fire and extended coverage insurance on the insurable portions of the Leased Facilities with a responsible insurance company or companies authorized and qualified to do business under the laws of the State of Georgia; (b) public roi a+-;,,n +-n the nneration of the Leased Facilities; and (c) vehicular, public liability insurance on any vehicle owned or operated by the City and used in the operation of the Leased Facilities. Such insurance may provide reasonable and customary coverage and deductibles for agencies and governmental authorities operating similar facilities, provided that such insurance in such amount is available at a cost which, in the opinion of the City, will not impose an unreasonable financial burden, or the City may self insure against such claims and risks, or the City, in its discretion, may provide for any combination of the foregoing. The proceeds.of such fire and extended coverage policies are pledged as security for the Basic Lease Payments, but shall be available for and shall, to the extent necessary and desirable, be applied to the repair and replacement of the damaged or destroyed property. In the event the proceeds of such policies are not used for that purpose, then same shall be deposited in the Sinking Fund. Proceeds from the fidelity bonds on employees and agents shall be paid into the appropriate fund. All insurance policies and fidelity bonds shall be open to the inspection of the bondholders or their duly authorized representatives at all reasonable times. All insurance policies shall name the Authority as an additional insured. Section 5.5. Sale of Assets. That so long as any of the Bonds shall be outstanding, and except as in this Lease otherwise permitted or provided for, it will not encumber the Leased Facilities or any part thereof, and it will not sell or otherwise dispose of the Leased Facilities or any integral part thereof, except it may -request the Authority to sell the Leased Facilities, and the Authority shall sell the Leased Facilities if required by the City, as a whole, or substantially as a whole, if the proceeds Of such sale be at least sufficient to provide for the payment of all Bonds secured by this Lease and any interest accrued or to accrue thereon, and that the proceeds of any such sale shall be deposited in trust and applied by the Authority to the extent 1 -14- necessary to purchase or redeem such Bonds. Nothing contained herein, however, shall preclude sale of a part of the Leased gacilities, if the proceeds from such sale are used for other public projects to be owned and operated by the City, or for extensions and improvements to the Leased Facilities, or deposited with the Sinking Fund Custodian as prepayment of rent due hereunder and applied toward the purchase or redemption of Bonds. Section 5.6. Arbitrage. The City hereby covenants and agrees that it will not, subsequent to the date of issuance and delivery of the Series 1989 Bonds, intentionally use any portion of the proceeds of said Series 1989 Bonds to acquire higher yielding investments, except as may be otherwise permitted by Section 148 of the Internal Revenue Code of 1986, as amended (the "Code") and that, as directed by the Authority in order to fulfill the Authority's obligations under Article VII, Section 5 of the Resolution, it will comply with, and take such action and make such payments as may be permitted or required by Section 148(f) of the Code, to ensure that the Series 1989 Bonds do not constitute "arbitrage bonds" within the meaning of Section 148(a) of the Code and that it will expend the proceeds from the sale of the Series 1989 Bonds and will take such action as may be necessary so that the interest on the Series 1989 Bonds will be and will remain excluded from gross income of the owners for federal income tax purposes, including without limitation, compliance with provisions of Sections 141-149 of the Code, as applicable. All expenses incurred by the Authority in connection with its obligations under Article VII, Section 5 of the Resolution shall be paid by the City. The obligations of the City under this Section 5.6 shall survive termination of this Lease. ARTICLE VI. SPECIAL COVENANTS OF AUTHORITY AND CITY Section 6.1. No Warranty of Condition or Suitability by the Authority. The Authority makes no warranty, either express or implied, as to the condition of the Leased Facilities or that it will be suitable for the Lessee's purposes or needs. Section 6.2. Inspection of the Leased Facilities. The Lessee agrees that the Authority, the bondholders and their duly authorized agents who are acceptable to the Lessee shall have the right at reasonable times during business hours, subject to the Lessee's usual safety and security requirements to examine and inspect the Leased Facilities without interference or prejudice to the Lessee's operations. Section 6.3. Granting of Easements: Sale. If no event of default hereunder shall have happened and be continuing, the Lessee nay at any time or times cause to be granted, whether to itself or Otherwise, easements, licenses, rights -of -way (temporary or -15- perpetual and including the dedication of public highways) and other rights or privileges in the nature of easements with respect to any property included in the Leased Facilities and such grant will be free from the lien or security interest of this Lease and the Resolution or the Lessee may cause to be released existing easements, licenses, rights -of -way and other rights or privileges in the nature of easements, held with respect to any property included in the Leased Facilities with or without consideration. In connection with any such grant or any sale permitted by Section 5.5 hereof, the A::t::critl agrees that it shall execute and deliver any instrument necessary or appropriate to confirm and grant or release any such easement, license, right-of-way or other right or privilege or asset. Section 6.4. Further Assurances and Corrective Instrument. Recordings and Filings. The Authority and the Lessee agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements !' hereto and such further instruments as may reasonably be required to perfect title in and to'that portion of the Leased Facilities leased or intended so to be or for carrying out the intention of or facilitating the performance of this Lease. Section 6.5. Release Covenants. The Lessee releases the Authority from, covenants and agrees that the Authority shall not be liable for, all claims by or on behalf -of, any person arising from: (1) the conduct or management of, or from any work or thing done in or on, the Leased Facilities during the Lease Term; (ii) any condition of the Leased Facilities, (iii) any breach or default on the part of the Lessee in the performance of any of its obligations under this Lease; (iv) any act of negligence of the Lessee or of any agents, contractors, servants, employees or licensees of the Lessee or of any lessee or tenant of the Lessee; and (v) any loss or damage to property or any injury to or death of any persons occurring on or about'or resulting from any defect in the Leased Facilities. ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES Section 7.1. Events of Default Defined. The following shall be "events of default" under this Lease and the terms "event of default" or "default" shall mean, whenever they are used in this Lease, any one or more of the following events: (a) Failure by the Lessee to make the Basic Lease Payments required to be paid under Section 4.3 hereof at the times specified therein; (b) Failure by the Lessee to observe and perform any covenant, condition or agreement of this Lease on its part to -16- M be observed or performed, other than as referred to in subsection (a) of this Section, for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, shall have been given to the Lessee by the Authority or the bondholders, unless the Authority and the bondholders shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the period specified herein, the Authority and the bondholders will not unreasonably withhold their consent to an extension of such time if it is possible to correct such failure and corrective action is instituted by the Lessee within the applicable period and diligently pursued until the default is corrected; and (c) An "event of default" shall have occurred under the Resolution. Section 7.2. Remedies on Default. Whenever any event'of default referred to in Section 7.1 hereof shall have happened and be subsisting, the Authority, or the bondholders as provided in the Resolution, may take any one or more of the following remedial steps: (a) If the principal and interest accrued on the Bonds shall have been declared immediately due and payable pursuant to the Resolution, the Authority or the bondholders may, at its option, declare all installments of rent payable under Section 4.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable. If the Authority or the bondholders elect to exercise the remedy afforded in this Section 7.2(a) and accelerates all rents payable under Section 4.3 hereof for the remainder of the Lease Term, the amount then due and payable by the Lessee as accelerated rent shall be the sum of (1) the aggregate principal amount of the outstanding Bonds, (2) all interest then due on the Bonds and (3) any other amounts which may be owing to the Authority pursuant to this Lease. Such sums as may then become payable shall be paid into the Sinking Fund and after the Bonds and accrued. interest thereon have been fully paid and any costs occasioned by such default and the collection of the rents have been satisfied, any excess moneys in the Sinking Fund shall be returned to the Lessee as an overpayment of rents; (b) The Authority or the bondholders may seek the appointment of a receiver for the Leased Facilities; (c) The Authority or the bondholders may require the Lessee to furnish copies of all books and records of the Lessee pertaining to the Leased Facilities; -17- (d) The Authority or the bondholders may take whatever action at law or in equity may appear necessary or desirable to collect the rents then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Lessee under this Lease; and (e) The Authority or the bondholders may exercise any remedies provided for in the Resolution. Any amounts collected pursuant to action taken under this Section shall be paid into the Sinking Fund and applied in accordance with the provisions of the Resolution or, if payment in full of the outstanding Bonds has been made (or provision for payment thereof has been made in accordance with the provisions of the Resolution) , to the Lessee. Section 7.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority or the bondholders is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon the occurrence of any event of default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority or the bondholders to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than such notice or notices as may be herein expressly required. Such rights and remedies as are given to the Authority hereunder shall also extend to the bondholders, and the holders of the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein contained. Section 7.4. Agreement to Pay Attorneys' Fees and Expenses. If the Lessee should default under any of the provisions of this Lease and either or both the Authority or the bondholders should employ attorneys or incur other expenses for the collection of 'rents or the enforcement of performance or observance of any obli- gation or agreement on the part of the Lessee herein contained, the Lessee agrees that it shall on demand therefor pay to the Authority, the bondholders the reasonable fee of such attorneys and such other reasonable expenses so incurred by the Authority and the bondholders. Section 7.5. No Additional Waiver Implied by One Waiver. If any agreement contained in this Lease should be breached by either party and thereafter waived by the other party, such waiver shall be limited• to the particular breach so waived and shall not be deemed to waive any other breach hereunder. -18- ARTICLE VIII OPTION OF LESSEE Section 8.1. Unqualified Option to Purchase. On and after the effective date of this Lease and during the Lease Term and for three hundred sixty-five (365) days after the expiration thereof, the Lessee shall have the unconditional right and option to purchase the Leased Facilities at any time. Section 8.2. Purchase Price. The purchase price payable if the Lessee purchases the Leased Facilities pursuant to the provi- sions of this Article VIII shall be One Hundred Dollars ($100) to be paid to the Authority plus the full amount necessary under the provisions of the Resolution to cause the payment in full of the Bonds (including, without limitation, principal, interest, expenses of redemption and the Paying Agent's and Bond Registrar's fees accrued and to accrue through final payment of the Bonds and all other liabilities of the Lessee accrued under this Lease). In any case, if no principal installment on the Bonds shall be outstanding at the time of purchase, or the redemption or payment of the Bonds shall be or have been otherwise provided for, the purchase price of the Leased Facilities shall be One Hundred Dollars ($100) to be paid to the Authority. Section 8.3, Procedure For Exercising Option to Purchase. The Lessee may exercise its option to purchase hereunder by giving written notice to the Authority of its intention to purchase the Leased Facilities pursuant to the provisions of this Article VIII specifying the time and place of closing and by giving notice to the Authority. At the closing the Authority shall, upon payment of the purchase price hereinabove specified, deliver to the Lessee appropriate conveyance instruments transferring all of its right, title and interest in and to the Leased Facilities. ARTICLE IX. MISCELLANEOUS Section 9.1. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, return receipt requested, postage prepaid. Section 9.2. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the Authority, the Lessee and their respective successors and assigns, subject, however, to the limitations contained in this Lease. Section 9.3. Severability. If any provision of this Lease shall be held invalid or unenforceable by any court of competent -19- jurisdiction, such holding shall not invalidate or render unen- forceable any other provision hereof. Section 9.4. Amounts Remaining in Sinking Fund. It is agreed by the parties hereto that, subject to and in accordance with the terms and conditions of the Resolution certain surplus moneys remaining in the Sinking Fund shall belong to and be paid to the Lessee by the Authority as an overpayment of rents. Section 9.5. Amendments, Changes and Modifications. Except as otherwise provided in this Lease or in the Resolution, prior to payment in full of all Bonds (or provision for the payment thereof having been made in accordance with the provisions of the Resolution), this Lease may not be effectively amended, changed, modified, altered or terminated without the requisite concurring written consent of the bondholders in accordance with the Resolution. Section 9.6. Execution Counterparts. This Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 9.7. Captions. The captions and headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this Lease. Section 9.8. Law Governing Project of Lease. This Lease shall be governed by, and construed in accordance with, the laws of the State of Georgia. Section 9.9. Redemption of Bonds. The Authority, at the request at any time of the Lessee, shall take all steps that may be proper and necessary under the applicable redemption provisions of the Resolution to effect the redemption of all or part of the then outstanding Bonds as may be specified by the Lessee, on the earliest redemption date on which such redemption may be effected. It is understood that all expenses of such redemption shall be paid by the Lessee and not from other funds of the Authority. The Authority shall cooperate with the Lessee in effecting any purchase or redemption of the Bonds. Section 9.10. Net Lease. This Lease shall be deemed a "net lease," and the Lessee shall pay absolutely net during the Lease Term the rents, revenues and receipts pledged hereunder, without abatement, deduction or set-off other than those herein expressly Provided. Section 9.11. Operating Contracts. Nothing contained in this Lease shall affect or impair any existing agreements or contracts between the City and the Authority regarding the operation and management of the Leased Facilities. -20- IN WITNESS WHEREOF, the Authority and the Lessee have caused this Lease to be executed in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the date first above written. THE AUTHORITY: DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (Corporate Seal) Bpi Chairman Attest: Secretary and Treagkrer As to the Authority, signed and pealed �p the presence of: ry Public Ky commission expire f 9ary Public, Cobb County, Georgia y Commission Expires Sept. 12, 1991 (Notarial Seal) TH]F. LESSEE: CITY OF SMYRNA (Seal) By: Mayor Attest: L- M Clerk As to the Lessee, signed and sealed in the presence of: W to s ary ePulic My commission expt i;5`^Yt : r `• ePt. i , (Notarial Seal) BOND RESOLUTION A RESOLUTION TO PROVIDE FOR THE ACQUISITION# CONSTRUCTION, RENOVATION AND EQUIPMENT OF BUILDINGS AND RELATED FACILITIES FOR THE REDEVELOPMENT OF THE DOWNTOWN AREA OF THE CITY OF SMYRNA; TO PROVIDE FOR CAPITALISED INTEREST DURING CONSTRUCTION; TO PROVIDE FOR THE ISSUANCE OF DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1989, TO PROVIDE FUNDS TO BE APPLIED TOWARD THE COST OF THE OVERALL UNDERTAKING NOW CONTEMPLATED; TO PROVIDE FOR THE ISSUANCE OF ADDITIONAL PARI PASSU OBLIGATIONS; TO PROVIDE FOR THE CREATION AND MAINTENANCE OF CERTAIN FUNDS; TO PROVIDE FOR THE REMEDIES OF THE OWNERS OF SAID BONDS, AND FOR OTHER PURPOSES: WHEREAS, pursuant to an amendment to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia -of 1945 (Georgia Laws 1970, p. 1117 et seq.) and now specifically continued pursuant to an Act of the General Assembly (Georgia Laws 1986, p. 3957 et seq.) as a part of the Constitution of the State of Georgia of 1986, and under the provisions of Georgia Laws 1988, p. 4382, et. seq., known as the "Downtown Smyrna Development Authority Act" there was created a body corporate and politic, designated as the "Downtown Smyrna Development Authority" (hereinafter sometimes referred to as the "Authority") and the Authority is deemed to be a political subdivision of the State of Georgia and a public corporation thereof, which Authority has been duly activated and organized and its members are now performing their duties and are serving in the furtherance of the purpose for which the Authority was created; and WHEREAS, the Authority is authorized to undertake the acquisition, construction, remodeling, altering, renovating, equipping,- maintaining; and operating of buildings, both private and public, and the usual and convenient facilities appertaining to such undertakings and extension and improvement of such buildings; the acquisition of parking facilities or parking areas in connection therewith; the construction, reconstruction, alteration, changing, and closing of streets, roads, and alleys; the acquisition of the necessary property therefor, both real and personal; and the lease and sale of any part or all of such buildings, including real and personal property, so as to assure the efficient and proper development, maintenance, and operation of such buildings, streets, roads, and alleys deemed by the Authority to be necessary, convenient or desirable in connection therewith; and WHEREAS, the City of Smyrna, after an investigation and study of the current capital needs and the desirability for the redevelopment of the downtown Smyrna area, have heretofore determined that there is an urgent need for certain capital improvements to be made; and <,; WHEREAS, the investment banking firm of Lex Jolley & Co., Inc., Atlanta, Georgia (hereafter sometimes referred to as "investment banker") has recommended to the City that, in order to accomplish the foregoing objective, the Authority should undertake to acquire, construct and equip such capital improvement and lease same (hereinafter referred to as "Leased Facilities") to the City, which would then operate and maintain or cause to be operated and maintained said Leased Facilities, and the City and the Authority, after their own independent study, have concurred in such recommendations; and WHEREAS, the City and the Authority have determined that such undertaking can be accomplished, in accordance with, or substantially in accordance with, the report entitled Smyrna Master Plan, Phase I: Community Center and Library Project No. 88190, dated September, 1989, prepared by. Sizemore Floyd Architects, Atlanta, Georgia, said report being hereinafter sometimes referred to as "Capital Improvement Program"; and WHEREAS, the Authority has determined that the best method of raising the moneys required to finance the undertaking now contemplated is by the issuance and sale of its revenue bonds for such purpose; and WHEREAS, said investment banker has recommended to the Authority that provision should be made to capitalize interest on such revenue bonds during a portion of the construction period; and 'WHEREAS, to finance the undertaking now contemplated the Authority proposes to issue the $6,430,000 principal amount of its Revenue Bonds, Series 1989 (hereinafter sometimes referred to as "Series 1989 Bonds") hereinafter authorized to be issued and it is contemplated that said bonds will be sold in the near future and in awarding the Series 1989 Bonds to the purchaser thereof, the Authority will adopt a resolution supplementing this resolution and said supplemental resolution, among other things, will set forth the interest rate or rates that the bonds hereinafter authorized to be issued will bear, will specify the maturities of said bonds which will be designated as term bonds and subject to mandatory redemption, will designate the Bond Registrar and Paying Agent for said bonds, will designate the representative of the original purchasers of said bonds and will provide for the actual issuance and delivery of the bonds to the purchaser upon payment of the agreed purchase price therefor by said purchaser; and WHEREAS, the Authority and the City of Smyrna, pursuant to resolutions duly adopted, will enter into a Lease Contract, dated as of September 1, 1989 (the "Lease"), pursuant to which the Authority has leased to the City on a net lease basis and -2- the City will make Basic Lease Payments directly to the Sinking Fund Custodian for the account of the Authority in amounts sufficient to enable the Authority to pay the principal of and interest on the Series 1989 Bonds as same become due and payable, all as more fully set forth in said Lease, an executed duplicate original of said Lease being duly recorded in the Minute Book of the Authority, which Minute Book is kept in the office of the Secretary and Treasurer of the Authority, and said Lease, by this reference thereto, is incorporated herein and made a part hereof; and WHEREAS, prior to the actual issuance and delivery of the Series 1989 Bonds hereinafter authorized to be issued, the Authority will enter into a contract with a bank located in Atlanta, Georgia, pursuant to which such bank will agree to act as Paying Agent and as Bond Registrar for the Series 1989 Bonds hereinafter authorized to be issued: and to but orm limited various functions with respect to the bonds, including, to, the authentication of the bonds of this issue by the manual signature of a duly authorized officer of the Bank, as Bond Registrar, the registration, transfer, exchange and related mechanical and clerical functions, as well as the P a a ion, signing and issuance of checks or drafts in payment the principal of and interest on the Series 1989 Bonds as same become due and payable; and WHEREAS, the Authority intends to issue additional revenue bonds early in 1990 to provide funds to complete the overall undertaking now contemplated in accordance with the Capital Improvement Program and, in addition in order to provide for future additions, extensions and improvements to the Leased provision should ld hereinafter be made for the issuance of additional revenue bonds for such purposes, such bonds to stand on a parity with and be of equal dignity as to lien on the revenues of the Authority with the Series 1989 Bonds hereinafter authorized to be issued. - NOW,, THEREFORE, BE IT RESOLVED by the Downtown Smyrna Development Authority, and it is hereby resolved by authority of the same, as follows: -3- ARTICLE I I a DEFINITIONS In addition to the terms hereinabove defined, whenever the following terms are used in this resolution, the same, I unless the context shall clearly indicate different meaning or intent, shall be construed or used and are intended to have the meaning as follows: "Additional Bonds" shall mean any revenue bonds of the Series 198 Authority ranking on a parity with i h the to Article9VBonds Section which may hereafter be issued pursuant t 4 hereof. "Authority" shall mean the Downtown Smyrna Development Authority, its successors or assigns. �II "Authority Act" shall mean Georgia Laws 1988, p. 4328 et seq. "Basic Lease Payment" means the aggregate amount equal Ijto the principal of and interist on and theeBonds interest onng due on the Bonds ithe next succeeding February ;coming due on the next succeeding August i in each year; :provided, however, the Lessee shall receive a credit against ;!any Basic Lease Payment to the extent moneys are on deposit '. in the Sinking Fund and not previously credited to a Basic Lease Payment. In addition to the foregoing, each Basic .Lease Payment shall include the charofeSectionas l3edArticle speciflVd in subparagraphs (e), (f) and (9). receding Basic of this resolution and any deficit in any p Lease Payment. "Bondholder" and "bondholder" means the registered :owner of any of the outstanding Bonds. "Bond Registrar" means the commercial bank appointed by ithe Authority to maintain, in accordance with the provisions 'of this resolution and any supplemental resolution�of Bonds registration books of the Authority for any series .secured by this resolution. "Bonds" shall mean any revenue bonds authorized by and including the Series issued pursuant to this resolution, �1989.Bonds and any Additional Bonds of the Authority issued ;,pursuant to this resolution. � I-1 0^1 locapital Improvement Program" shall mean the Smyrna Master Plan, Phase I: Community Center and Library Project No. 88190, dated September, 1989, prepared by the Sizemore Floyd Architects, Atlanta, Georgia,;for the Authority and the City. 'oCityl' or '$Lessee" means the City of Smyrna, its successors and assigns. "Lease'$ or locontract" means the Lease Contract, dated as of September 1, 1989, by and between the Authority and City of Smyrna, as same from time to time may be amended. Leased Facilities" means the facilities and real property financed with the proceeds.of the Series 1989 Bonds and Additional Bonds issued by the Authority. IlPaying Agent" means the commercial bank or banks appointed by the Authority to serve as paying agent, in accordance with the terms of this resolution and any supplemental resolution, for'any series of Bonds secured by this resolution. sopermitted Encumbrances" means liens and encumbrances existing on'the date of acquisition by the Authority of any Leased Facilities. "Permitted Investments" shall mean and include any of the following securities, if and to the extent the same are at the time legal for investment of Authority funds: (i) any bonds or other obligations of the City of Smyrna, Cobb County or bonds or obligations of the State of Georgia or of other counties, municipal corporations and political subdivisions of the State of Georgia which are rated "A" or better by Moody's Investors Service or Standard & Poor's Corporation; (ii) any bonds or other obligations which as to principal and interest constitute direct obligations of, or are unconditionally guaranteed by, the United States of America, including obligations of any of the Federal agencies set forth in clause (iii) below to the extent unconditionally guaranteed by the United States of America; (iii) obligations of the Federal National Mortgage Association, the Government National Mortgage Associa- tion, the Federal Financing Bank, the Federal Interme- I-2 diate Credit Banks, Federal Banks for Cooperatives, Federal Home Loan Banks, Farmers Home Administration and Federal Home Loan Mortgage Association; (iv) negotiable certificates of deposit issued by any bank or trust company organized under the laws of any state of the United States of America or any national banking association, provided that such certi- ficates of deposit must be purchased directly from such bank, trust company or national banking association and must be either (a) continuously and fully insured by the Federal Deposit Insurance Corporation, or (b) con- tinuously and fully secured by such securities as are described in clauses (ii) and (iii) above which (1) have a market value (exclusive of accrued interest) at all times at least equal to the principal amount of such certificates of deposit, (2)=are lodged with the particular fund custodian or an agent acting solely on behalf of the particular fund custodian, and (3) are subject to a security interest in favor of the particu- lar fund custodian and not subject to any security interest in favor of any other person. Additionally, the bank, trust company or national banking association issuing each such certificate of deposit required to be so secured must furnish the particular fund custodian with an undertaking satisfactory to it that the aggre- gate market value of all such obligations securing each such certificate of deposit will at all times be an amount equal to the principal amount of each such certificate of deposit; (v) any repurchase agreement with any bank organ- ized under the laws of any state of the United States of America or any national banking association, pro- vided if such bank's or association's principal office is located outside Gwinnett County, such bank or association either (a) has a long term debt rating by Moody's Investors Service, Inc. or Standard & Poor's Corporation either equivalent to or higher than "A," or (b) has a capital and surplus at least equal to $100,000,000; provided that such repurchase agreement is secured by any one or more of the securities described in clauses (ii) and (iii) above and in the manner described in clause (iv) above; and (vi) pooled investment programs sponsored by the State of Georgia for the investment of local government funds. I-3 R M "Project Fund" shall mean the Downtown Smyrna j Development Authority Project Fund created in Article IV, Section 2 of the Resolution. �� means initially Smyrna Bank "Project Fund Depository" its successors and assigns, l and Trust Co., Smyrna, George , or any successor depository for the Project Fund hereafter with the approval of the City; appointed by the Authority ository shall at all (provided, however, the Project Fund Dep times be a commercial bank. #'Resolutio"means this bond to t resolution, and as same may be supplemented me - "Revenue Bond Law" means the Revenue Bond Law, Title 36, Chapter 82, Article tsamefmayihereafteral ce fbeGeorgia amended Annotated, as amended, and as from time to time. llSeries 1989 Bonds'l means the revenue bonds authorized �to be issued pursuant to Article II of this resolution. ,@Sinking Fund" shall mean the Downtown Smyrna Development Authority Sinking Fund created in Article V, Section 1 of this resolution. g�8inkinq Fun d custodian" means initially Smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, , or any suceafter cessor custodian fo�otidedhe inhoweverking n theSinking appointed by the Authority; p all times be a commercial bank. Fund Custodian shall at sesinking Fund Year" shall mean the period commencing on the 2nd day of February in each year and extending through the 1st day of February in the next year. Whenever used in this resolution, the singular shall include the plural and the plural shall include the singular, unless the context otherwise indicates. i 1 Z-4 t IJ RESSOLUTION WHEREASr after careful study and consultation the City of Smyrna 'has determined an urgent need for certain capital improvements to be made for the re -development of the Downtown Smyrna Area in order to better promote the public health► safety and welfare of the citizens of Smyrna, Georgia and to encourage the growth and fiscal well being of the City; AND WHEREAS, to accomplish said ends the City has caused a Downtown Development Authority to be constituted under the laws of the State of Georgia► and its members duly appointed; AND WHEREAS► the undertaking contemplated can be accomplished substantially in accordance with a report prepared by Sizemore Floyd Architects► Atlanta► Georgia . dated September► 1989 , entitled "Smyrna blaster Plant Phase I: Community Center and Library Project No. 88190"; AND WHEREAS► under said Master Plan, it is both desireable and necessary to acquire certain parcels of land, lying within the boundaries described in said Master Plan to construct a public library and a community center and the roadways, parking facilities► and planted areas, attendant and appurtenant thereto; AND WHEREAS, the City of Smyrna has heretofore attempted to obtain said parcels through negotiation and offer of contract at their appraised value and have been unable to acquire the same; NJK THEREFORE, the premises considered be it resolved: It is necessary and essential that the City of Smyrna shall acquire the title, estate or interest in the lands lying within the boundaries of the aforesaid blaster Plan for the purpose of construction of a community center and a public library for the furtherance of the public interest of the citizens of the City of Smyrna, therefore. the Mayor or Mayor Pro Tem of the City of Smyrna is hereby authorized to do all acts and take all action necessary to acquire said properties; The construction of a community center and a public library and all necessary easements, rights of way, sidewalks, public access areas, facilities and landscape areas, on the lands lying within the boudaries of the Master Plan is a valid public purpose; The City of Smyrna has caused an investigation and report to be made by a competent land appraiser, upon which to estimate the sum of money to be deposited in the Court as just and adequate compensation for the property and other rights, if any, as shown -'` on said plans; The City of Smyrna estimates the just and adequate compensation to be in the sum equal to the appraised value, and determines that it is necessary to acquire the property and other rights, if any, as shown on the Master Plan, without further delay, the parcels of property and other rights being essential for the construction of said project; The City of Smyrna declares that it is necessary that the title► interest, easements and other rights as shown on said plans, which have not been negotiated for voluntary acquisition, be acquired by condemnation, and that said property or interest therein as described in the Plaster Plan be acquired by condemnation for public and governmental purposes, specifically for community center and public library, and that the same is necessary for the construction of the project. The City of Smyrna, through its Mayor and Council does hereby authorize the acqusition of the title, estate or interest in the lands described in the plans► by condemnation under the provisions of law in the absence of voluntary acquisition, does exercise its power of eminent domain,, and does authorize the filing of condemnation proceedings, including a Declaration of Taking► or other such proceedings, to acquire such title, estate of interest in said lands and to deposit in the Court the sun estimated as just compensation in an amount equal to the appraised value. The Mayor or Mayor Pro Tem is authorized to execute such Declarations of Taking or other instruments as may be necessary to effect the acquisition as herein described, including but not limited to proceeding before a Special Master appointed by the Cobb County, Georgia Superior Court. The property to be acquired under this Resolution is as shown on a plat of the Master Plan and is now or formerly owned by and consists of the owners and parcels on the list attached hereto marked "Exhibit A". I _ + SUNSET AVENUE C. LAND ACQUISITION INFORI ADDRESS PROPERTY DESCRIPTION 1246 Sunset Avenue Mary Aaron 2756 N. Atlanta Street John Robert Aiola 1239/1245 Sunset Street Lad 'N' Lassie Day Care - John Butler 1296 Sunset Avenue R. L. Carter and Associates (Antique Shop) 2780 N. Atlanta Street Ray Carter 1236-1240 Sunset Avenue John W. and Claudia Falk 1224 Sunset Street Jane Ann Hamby 1265 Sunset Street Patricia A. and Lee McDonald 1215 Sunset Avenue Mrs. Pettett 1256/1270 Sunset Avenue Frank Tufts 1284 Sunset Avenue George C. Walker (Dry Cleaners) 1271 Sunset Avenue William C. and Louann York 1302 Sunset Avenue Old Smyrna Theater - Bruce and Kermit Cooper 1255 Sunset Avenue Levi Day 1275 Bank Street J. D. Farmer - Hard Times Armory 2748 Atlanta Road and Danny Fisher 1285 & 1297 Powder Springs Street 2683/2685/2691 Fuller St. David Monroe (Behind Second Baptist Church) 2788 N. Atlanta Street G. Scott Perkins 1275 Powder Springs Street Richard Pierce 2740 Atlanta Street Alice Shedd 2278 Atlanta Street Roland Thomas