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11-05-1990 Regular MeetingNovember 5, 1990 The regular scheduled meeting of Mayor and Council was held pursuant to the Charter on November 5, 1990 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 except for Kathy Jordan. Also present was City Administrator John Patterson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Public Works Director Vic Broyles, Fire Chief Larry Williams, City Engineer Ken Hildebrandt, Library Director Laurel Best, Communications Director Steve Ciaccio, Police Chief Stan Hook, Community Relations Director Kathy Barton, Personnel Director Jane Mears and representatives of the press. Invocation was given by James Corbillt, pastor of Milford Baptist Church followed by the pledge to the flag. Mayor Bacon stated that Kathy Jordan has been sick and could not be here tonight but was pleased to have Wade Lnenicka in attendance after just being released from the hospital with pneumonia. Mayor Bacon announced that the public hearing for the rezoning of 14 acres on Hurt Road has been withdrawn. Jack Shinall said the rezoning was withdrawn without prejudice since the 72 hour provision was met. In order to be brought back up, a new application must be submitted with signs posted and all advertisements met. Mr. Shinall said he would attempt to notify everyone when it was re -submitted. Mayor Bacon recognized Congressman Buddy Darden and Kathy Scott, candidate for the Eastern District commission seat. CITIZENS INPUT: Captain David Farmer of the Smyrna Police Department and Captian Dennie Stone of the Smyrna Fire Department requested permission to conduct boot drives at Hargrove and Spring, South Cobb at Windy Hill and South Cobb at Concord to raise funds for Dan Fawbush, a fellow police officer who is terminally ill with cancer. John Steely made a motion the solicitation of funds be approved. Bill Scoggins seconded the motion which carried 6-0. Jerry Wylie of 4900 Prince Road complained of the noise caused by garbage trucks picking up at Highlands Industrial Park at 5:30 in the morning. Mayor Bacon said our garbage service is contracted to a private vendor and we would contact them tomorrow to request that they not pick up until after 7:00 a.m. Mayor Bacon administered the oath of office to James Bivins who was recently appointed as Assistant Fire Chief following Hubert Cochran's retirement. PUBLIC HEARINGS: (A) Annexation of Barrow Wrecker Service, 2261 Dixie Avenue Jack Shinall made a motion the Barrow Wrecker service property be annexed into the City and made a part of Ward 6. The petition was validated at the October 1st meeting and all advertisements have been made. Bob Davis seconded the motion which carried 6-0. (B) Zoning of 14 acres on Hurt Road from R20 to RAD (conditional) Mayor Bacon stated the zoning application had been withdrawn and no action was taken. (C) Variance - reduce side yard setback at 1035 Concord Road John Patterson stated that Mr. Georqe Marchman is requesting a variance from 10 to 5 feet on the side yard setback for a carport addition to his home. There was no opposition from the audience. Mrs. Marchman said they would like to build a 12 x 18 foot carport which would be attached to the screened porch and part of the main structure. Both adjoining properties are zoned Limited Commercial and letters were submitted from those owners stating they had no objections. Jim Hawkins made a motion the variance be approved as requested. Bill Scoggins seconded the motion which carried 6-0. FORMAL BUSINESS: November 5, 1990 meeting - continued (A) Resolution - GMA Pooled Lease Agreement John Patterson stated the Georgia Municipal Association has proposed a state-wide lease arrangement for local governments that would allow cities to purchase their rolling stock and other property through this financing mechanism. Jim Hawkins made a motion the resolution be adopted to approve the Pooled Lease Agreement through GMA. Bill Scoggins seconded the motion which carried 6-0. (B) Ordinance amendment - scavenging John Patterson stated with the approaching recycling contract, it would seem appropriate to enact legislation to prohibit scavenging of refuse. Jim Hawkins said the new ordinance would be on file in the City Clerk's office. This ordinance basically makes it illegal to steal any recyclable items that are found in collection bins because these items are saleable. Mr. Hawkins made a motion that the ordinance be amended by adding Sections 22-40 and 22-41. Jack Shinall seconded the motion which carried 6-0. (C) Bid opening - printer for Finance Department Bids for a new printer to be used in the Finance Department were opened, read and recorded as follows: Inter -American Data, Inc. $25,631.70 Data Mark $15.088.00 DP Enterprises $13,879.20 IBM $21,968.00 Jim Hawkins made a motion the bids be turned over to the Finance Committee for their recommendation back to full council. Bill Scoggins seconded the motion which carried 6-0. BID AWARDS: (A) Telephone system for Library/Community Center Bill Scoggins made a motion the bid for the new telephone system be awarded to Tel Plus, the low bidder at $26,636. Wade Lnenicka seconded the motion which carried 6-0. (B) Performance appraisal contract Jim Hawkins stated when the 1991 budget was adopted council made it very clear that they wanted future raises to be based on the employee's performance and directed the personnel department to work with our supervisors and direct them in the proper way to evaluate an employee's performance. We now have 350 employees with only two employees in the Personnel Department and for that reason, proposals were requested from outside agencies to prepare new evaluation forms and also train our supervisors in the proper way to evaluate. Mr. Hawkins made a motion that Vail Macbeth & Associates be awarded the contract for $14,250 which is still much less than it would cost to add an additional employee for this task. Bill Scoggins seconded the motion. This is a non -budgeted item that will be paid from the contingency fund. Jack Shinall stated this not only will provide training for our supervisors but will also develop a program to be used in evaluating employees that will provide a concrete method of evaluation. After further discussion, vote on the motion carried 4-2 with John Steely and Bob Davis opposed. (C) Rescue unit for Fire Department Bob Davis made a motion the new rescue unit bid be awarded to Smyrna Truck and Equipment, the low bidder at $49,169.44. John Steely seconded the motion which carried 5-0, with Bill Scoggins abstaining. COMMERCIAL BUILDING REPORTS: Nothing to report. November 5, 1990 meeting - continued CONSENT AGENDA: (A) Approval of October 15, 1990 minutes (B) Approval of amendments to FY91 budget (C) Request bids for new service truck - Water/Sewer Department Bill Scoggins made a motion the consent agenda be approved. Jim Hawkins seconded the motion which carried 6-0. COUNCIL INPUT: Library Director Laurel Best and Community Relations Director Kathy Barton gave reports from their departments. Bill Scoggins thanked all of the civic groups who participated in the Halloween Carnival at Four Seasons Mall. Mr. Scoggins stated the Smyrna Athletic Association recently presented a plaque to our Parks Department in appreciation of their support of the 1990 programs. Jack Shinall said he was pleased with the implementation of the pilot recycling program and hoped we could develop a total city-wide recycling program as well as look at other alternative means of garbage disposal, such as transfer stations, landfill locations, etc. John Steely called on Chief Hook for a report from the Police Department and Steve Ciaccio from the Communications Department. Mr. Steely said there is an area on South Cobb Drive near Wade Ford where the speed limit changes from 45 to 55 and since it is a very busy area, would be contacting the State about reducing the speed limit to 45. John Patterson reported on the City auction held November 3rd conducted by Arwood Auction Company. All of the surplused merchandise was sold with proceeds totaling over $35,000. Mayor Bacon reminded everyone that tomorrow is election day and with no further business meeting adjourned at 8:32 p.m. ORDINANCE AN ORDINANCE OF THE CITY OF SMYRNA (THE "MUNICIPALITY"), AUTHORIZING, INTER ALIA, THE EXECUTION OF DOCUMENTS RELATING TO THE LEASE OF CERTAIN EQUIPMENT LOCATED IN THE MUNICIPALITY, AND CONSENTING TO THE ISSUANCE OF CERTIFICATES OF PARTICIPATION IN THE GEORGIA MUNICIPAL ASSOCIATION POOL NOT TO EXCEED THE AGGREGATE PRINCIPAL AMOUNT OF $130,000,000 AND TO THE MUNICIPALITY'S PRO- RATA SHARE OF SUCH CERTIFICATES WHEREAS, the Georgia Municipal Association,Inc., a Georgia non-profit corporation ("GMA"), has found it to be in furtherance of the purposes for which GMA was created, that GMA enter into a lease with each of the municipalities participating in the Georgia Municipal Association Pool (collectively, the "Lessees") for the acquisition of equipment to be used by the participating municipalities (the "Equipment"); and WHEREAS, pursuant to a Lease dated as of October 1, icon, by and between GMA and the Municipality (the "Lease") GMA will acquire and lease to the Municipality the Equipment (as fully described in the Lease); and more WHEREAS, pursuant to an Administration and Servicing Agreement dated as of October 1, 1990 (the "Servicing Agreement")-, among GMA, the Lessees and The First National Bank of Atlanta, Atlanta, Georgia, as servicer, the Servicer will service the Leases for GMA and transfer the moneys collected pursuant to the Servicing Agreement and the Leases and deposited in the funds and accounts established under the Servicing Agreement to the Trustee (as defined hereafter) pursuant to the terms of the Servicing Agreement and the Trust Agreement (as defined hereafter); and WHEREAS, GMA will transfer its interest in the Lease (and all other leases with the Lessees) to The First National Bank of Atlanta, Atlanta, Georgia, as trustee (the "Trustee") for the holders of the Certificates of Participation in the Georgia Municipal Association Pool representing proportionate undivided interests in all of the leases so transferred (the "Certificates") pursuant to a -Trust Agreement dated as of October 1, 1990 (the "Trust Agreement"); and WHEREAS, payment of amounts due with respect to the Certificates will be insured by Municipal Bond Investors• Assurance Corporation (the "Credit Facility Issuer") under the terms of its financial guaranty insurance policy (the "Policy") and in accordance with the terms of a Reimbursement and Indemnity Agreement by and between the Credit Facility Issuer and GMA; and WHEREAS, some or all of the purchase price for Certificates tendered pursuant to a tender right under the Trust Agreement will be supplied by a bank, pursuant to a Standby Purchase Agreement; and WHEREAS, Certificates tendered pursuant to a tender right under the Trust Agreement will be remarketed by a bank and/or securities underwriting firm, as remarketing agent (referred to collectively hereafter as the "Remarketing Agent"); WHEREAS, the Certificates will be purchased by the underwriter upon issuance pursuant to a certificate purchase agreement by and between the underwriter thereof and GMA; and WHEREAS, in order to give effect to, and comply with, the foregoing agreements and instruments, and in order to authorize payment of its obligations incurred under the Lease (collectively, the "Program Obligations"), either (i) the Municipality has available to satisfy Program obligations uncommitted and unappropriated funds in its current operating budget in an amount not less than the Minimum Annual Appropriated Amount as set forth in Schedule A or (ii) the Municipality must amend its current operating budget in accordance with Title 36, Chapter 81 of the Official Code of Georgia Annotated (the "Code") to authorize the payment of the Program Obligations; and WHEREAS, if required, in order to amend its current operating budget, the Municipality has heretofore taken the following actions, all in accordance with Title 36, Chapter 81 of the Code: (i) through the Municipality's budget officer, prepared a proposed amended budget providing for payment of Municipality's Program Obligations in accordance with the requirements of Code Section 36-81-5(b) (the "Amended Budget", a copy of which is attached hereto as Schedule B) which was previously submitted to the governing body of the Municipality, (ii) at the time of receipt of the Amended Budget from the Municipality's budget officer, placed a copy of the Amended Budget in a public place in the Municipality, which place is convenient to the residents of the Municipality, (iii) published a notice in the official organ of the Municipality advising residents of the Municipality that the Amended Budget is available for inspection; (iv) conducted a public hearing on the Amended Budget at least one week prior to the date of adoption hereof; and (v) taken all other action necessary to effect the foregoing; -2- NOW, THEREFORE, BE IT ORDAINED, as follows: Section I. Consent to Certificates. The execution and delivery of the Certificates in an aggregate principal amount not to exceed $130,000,000 and to the execution and delivery of the Municipality's pro-rata share of Certificates in the amount specified on Schedule A hereto is hereby approved. It is hereby acknowledged that interest on the Certificates will be payable on each Interest Payment Date (as defined in the Trust Agreement). The Certificates will mature in such amounts and will bear interest at such rates of interest per annum calculated as set forth in the Trust Agreement, in substantially the form attached hereto as Schedule C and hereby incorporated herein. Section II. Authorization of Lease. The Lease in substantially the form attached hereto as Schedule D and hereby incorporated herein is hereby approved and all of the terms and provisions thereof are hereby incorporated herein by reference as if the Lease was set out in this Ordinance in its entirety. The Mayor is hereby authorized, empowered and directed to execute, acknowledge and deliver the Lease under seal attested to by the Clerk of the Municipality (the "Clerk"). The Lease is to be in substantially the form now before this meeting and hereby approved, or with such changes therein as may be deemed necessary by the persons executing the same, upon advice of counsel, to accomplish the purposes of the transaction contemplated therein and in this Ordinance and as shall not be inconsistent with or contrary to such purposes. The execution of the Lease shall constitute conclusive evidence of the persons executing the same of their approval of any and all such changes. Section III. Authorization of Administration and Servicing Agreement. The Servicing Agreement in substantially the form attached hereto as Schedule E and hereby incorporated herein is hereby approved and all of the terms and provisions thereof are hereby incorporated herein by reference as if the Servicing Agreement was set out in the Ordinance in its entirety. The Mayor is hereby authorized, empowered and directed to execute, acknowledge and deliver the Servicing Agreement under seal attested to by the Clerk. The Servicing Agreement is to be in substantially the form now before this meeting and hereby approved, or with such changes therein as may be deemed necessary by the persons executing the same, upon advice of counsel, to accomplish the purposes of the transaction contemplated therein and in the Ordinance and as shall not be inconsistent with or contrary to such purposes. The execution of the Servicing Agreement shall constitute conclusive evidence of the persons executing the same of their approval of any and all such changes. Section IV. Information Reporting. Any officer of the Municipality is hereby authorized to sign and file or cause to be -3- f filed a completed I.R.S. Form 8038, "Information Return for Tax -Exempt Private Activity Bond Issues", as required by Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code") and by applicable Georgia law. Section V. Non -Arbitrage Tax Certification. Any officer of the Municipality is hereby authorized to execute a non -arbitrage certification in order to comply with Section 148 of the Code, and the applicable Income Tax Regulations thereunder. Section VI. No Personal Liability. No stipulation, obligation or agreement herein contained or contained in the Lease, the Trust Agreement, the Servicing Agreement or any other agreement referred to herein, shall be deemed to be a stipulation, obligation or agreement of any councilman, officer, agent or employee of the Municipality in his or her individual capacity, and no such councilman, officer, director, agent or employee shall be personally liable on the Certificates or be subject to personal liability or accountability by reason of the issuance thereof. Section VII. General Authority. From and after the execution and delivery of the documents hereinabove authorized, the Mayor and the Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of said documents as executed and are further authorized to take any and all further actions and execute and deliver any and all other documents and certificates as may be necessary or desirable in connection with the issuance of the Certificates and the execution and delivery of the Trust Agreement, the Lease, the Servicing Agreement or any other agreement necessary to effect the transactions contemplated herein and to document compliance with the Code. The Mayor and the Clerk are hereby authorized and directed to prepare and furnish to the purchaser or purchasers, when the Certificates are issued, certified copies of all the proceedings and records of the Municipality relating to the Certificates, and such other affidavits and certificates as may be required to show the facts relating to the legality and marketability of the Certificates as such facts appear from the books and records in the officers' custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits, including any heretofore furnished, -4- shall constitute representations of the Municipality as to the truth of all statements contained therein. Section VIII. Appropriation; Amendment of Budget. In order to give effect to, comply with, and assume the liabilities associated with, the foregoing approvals, and authorize the expenditure of the amounts required to be expended pursuant to the Lease Agreement and the Servicing Agreement the Municipality does hereby adopt, ratify and approve the Amended Budget attached hereto as Schedule B or commit those portions of the current budget set forth on Schedule B to the Program Obligations and does hereby appropriate and commit moneys in an amount not less than the Minimum Annual Appropriated Amount to payment of Program Obligations for the current calendar year. Section IX. Actions Approved and Confirmed. All acts and doings of the officers of the Municipality which are in conformity with the purposes and intents of this Ordinance and in the furtherance of the issuance of the Certificates and the execution, delivery and performance of the Servicing Agreement and the Lease shall be, and the same -hereby are, in all respects approved and confirmed. Section X. Severabil ty of Invalid Provisions. If any one or more of the agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, 'then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining agreements and provisions and shall in no way affect the validity of any of the other agreements and provisions hereof. Section- XI. Repealing Clause. All resolutions or parts thereof of the Municipality in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. -5- I .. Section XII. Effective Date. This Ordinance shall take effect immediately upon its adoption. ADOPTED this 5 day of Novembpr1990. (CORPORATE SEAL) Clerk CITY OF MYRNA i gy Mayor