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10-15-1984 Regular Meeting (2)October 15, 1984 The regular scheduled meeting of Mayor and Council was held October 15, 1984 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor Arthur T. Bacon. All Council members were present except James Williams who was out of town. Also present was City Attorney Charles E. Camp, City Clerk Willouise Spivey, Police Chief R. E. Little, Acting Fire Chief Hubert Cochran, Public Works Director Vic Broyles, Parks Superintendent Jimmy Hinson, Assistant City Clerk Melinda Dameron, Civil Defense Director Jim Farley, Librarian Doris Morris, Building Inspec- tor Scott Stokes and representatives of the press. Invocation was given by Jim Hawkins, followed by the pledge to the flag. Presentation: Jack Shinall presented a crystal jonquil to outgoing Parks & Recreation Commission member Cliff Yeager and thanked him for serving on that board since 1978. There were no citizens reports. Approval of 1984/85 Audit: Jim Hawkins made a motion the audit approval be tabled to the next meeting since Mr. Williams was absent tonight. Jack Shinall seconded the motion which carried 6-0. Rezoning: George Nations requested rezoning of 9.91 acres in Land Lot 529, King Springs Road @ South Cobb Drive from Future Commercial to RM-12. Mayor Bacon said he is the life-long leasing agent for this property since he has known the Nations' r family all his life and would disqualify himself. Mayor Bacon then turned the meeting over to Mayor Protem Jim Tolleson. Mr. Tolleson read a letter from Mayor Bacon to all members of council stating he was the agent for the property and would disqualify himself for that reason. Attorney Doug Dillard represented B. Wilmont Williams and both were sworn in by Attor- ney Camp along with Darlene Davidson, Joel Harrell, Dixie James and Ken Vanderpool, representing the opposition. There were approximately 78 in the audience in favor of the rezoning and approximately 80 opposed. Mr. Dillard called on B. Wilmont Wil- liams, president of Williamscraft Builders. Mr. Williams said his company has been one of the best developers in the county and they take pride in the projects they build and felt their developments increased surrounding property values. Mr. Dillard said he hoped everyone had received a copy of the booklet they prepared on Friday prior to the meeting tonight and filed a copy with the Clerk. Mr. Dillard said they were asking that 8.6 acres of the 9.91 acres be rezoned from Future Commer- cial to RM-12 for 104 units. Mr. Dillard said the site plan that has been filed shows one ingress/egress lane on King Springs Road with a 50 foot buffer on King Springs Road and also on the southern boundary adjacent to Griffin Middle School. Mr. Dillard said they felt the rezoning request was consistent with uses in and around the parti- cular area. In the immediate area there are some medical offices and also commercial uses such as the Ford dealership. On this side of South Cobb Drive they did not find ' the commercial encroachment down King Springs Road, with the retirement home across the street. Mr. Dillard said that any accessibility to the property would have to come from King Springs Road. The Future Commercial classification does not authorize use of the property, but intends that the property be zoned to one of four commercial categories. The frontage on South Cobb Drive is the only portion that is actually suitable for commercial use. Mr. Dillard said these will all be two bedroom units and felt the RM-12 zoning was consistent with other uses in the neighborhood, and thought this was a good transition from commercial to residential. Mr. Dillard said any commercial use under this ordinance would not be proper use of the property and respectfully requested that council approve the rezoning. Hugh Ragan asked Mr. Dillard if Mr. Williams owned the property. Mr. Dillard said he had a contract to purchase the property but it is not subject to rezoning. Follow- ing a question from Max Bacon, Mr. Dillard said that Mr. Williams owns and manages all the units he builds. Max Bacon said that Mr. Williams mentioned that his develop- ments increased surrounding property values and asked how they could improve the value. •Mr. Dillard said the development would not have a detrimental affect on any of the surrounding property. These units will rent from $500 up. Mr. Dillard said the traffic study projected 686 trips per day versus 1,476 trips y- per day from an office complex and 4,070 trips per day from a neighborhood shopping j center. Mr. Tom Huffard, Senior Traffic Engineer was called upon and sworn in by Attorney Camp. Mr. Huffard said he prepared the traffic report for Mr. Williams and said this study was done through National standards that have been developed. They use these factors, plus the square footage of the buildings to determine how many -L LP.l w tll October 15, 1984 - Continued trips will be generated. Mr. Huffard said he also did the traffic count at the inter section and agreed it was congested; however, the intersection is not at capacity and the timing could be improved on the light. There was some discussion concerning the school crossing and Mr. Huffard said the major portion of the traffic is going, south on South Cobb Drive and the school crossing is on the north side. Mr. Huffard said King Springs Road has the capacity of 14,000 cars per day and is presently at less than one-half capacity. Hugh Ragan asked several questions about Mr. Huffard's figures and how he arrived at them. Hugh Ragan asked why they could not use South Cobb Drive for the entrance and exit. Mr. Dillard said there is not enough frontage on South Cobb to comply with limits on distances from major intersections. Hugh Ragan asked several questions relative to their study and their findings. Hugh Ragan asked how many of those present in favor of the zoning lived in Smyrna. Mr. Dillard said he did not know, these people were interested in the zoning and they were not trying to impose them on council. Darlene Davidson spoke for the oppositon and said the Smyrna Homeowners Association's purpose was to protect the homes and communities. The association met with Mr. Williams concerning the development, and at their last meeting Mr. Williams said tiriey would go back to the drawing board. They realize he is a good developer but dry not like the tactics he is using. Joel Harrell, Vice President of the Homeowners Association spoke in behalf of the people in opposition. Mr. Harrell said within a one mile radius there are 852 multi- family homes being built. This does not include 525 units already existing and also, does not include the 200 plus units at Smyrna Towers and King Springs Village. Today, 18 complexes were contacted and 14 of those had vacancies; therefore, there was some question about the need for apartments. They also talked to other developers in the a -,ea, and they felt that the property is suitable for other uses. This location also falls within two school districts, King Springs and Griffin Middle. King Springs has 603 students at present and is pretty much at capacity. Griffin has 740 at present with a capacity of 1,000. When these developments are completed, the schools will be o7er their limit. The school board has also indicated they have no funds available for expansion. Campbell High is also at capacity and there is also the question of safety for the children. M^. Harrell said there was also some question as to whether or not the existing water and sewer system could stand the strain and asked if the taxes generated would actually cover the cost of city services. According to a recent study conducted by Welker & Associates, this area has the highest rate of sewer prob lems. Mr. Harrell also stated that apartments have the highest rate of burglaries and questioned how this would affect the quality of life in Smyrna. They felt this development would do little or nothing to enhance the community and asked that the zoning be denied. Ken Vanderpool also spoke for the opposition and said he was the Community School Director at Griffin for 10 years, and he knew about the traffic on that street. King Springs and South Cobb is the worst intersection in the City. King Springs Road is� also the primary access from the Mableton area to Smyrna. The homeowners felt a small, shopping center would be the best use for the property. Mr. Vanderpool said there had been a difference of enrollment figures between the two aides tonight, but there is such a great turnover in apartments you cannot predict enrollment. Mr. Dillard said the issue is what is the proper category for this particular piece of land. There has been no activity on this property because the Future Commercial classification and all commercial uses within that classification are not suitable. There are other a:3es other than RM-12 that could be a viable use; however, RM-12 properly used provides for the transition from commercial use down to Griffin School. Mr. Dillard said this was a down zoning and could not understand why there would be opposition to the request as it would not adversely affect the health, safety and welfare of the citizens. The impact on the schools will be negligible. Their studies indicate a total of 12 high school students from the project with 23 to 24 elementary school students. After closing remarks by Joel Harrell and Ken Vanderpool, Hugh Ragan stated that Mr. Williams is a quality developer but stated tonight that he does not currently ovin the property and it appears his primary reason for purchasing it is for monetary gain. Hugh Ragan made a .notion the zoning be denied for the following reasons: 1) Currently zoned Future Commercial and approximately two years ago the owner thought. commercial could be put there; 2) safety of children walking to school a:, -id also'� bosses and parents that carry children to school; 3) traffic congestion; 4) no more apartments appear to be nteed;_,d in the Smyrna area since out or 18 contacted today, 14 had vacancies; 5) ove-ocrowded conditions in two schools in the area which may necessitate expenditure of large amounts of classrooms and/or hire additional teachers October 15, 1984 - Continued which could result in negative cash flow to city and county taxes which would be necessary; 6) office complex will create less disturbance; 7) possible overloaded conditions and increased problems with the water and sewer system; 8) possible inter ference with school children due to close proximity and noise created by the apartment (, complex. Jim Hawkins seconded the motion to deny. Jack Shinall said each development he has seen of Mr. Williams' has been good. Everyone here tonight had some good points and felt this would be a decision to be made in the court. Vote on the motion to deny carried 5-0. Jim Tolleson called for a 5 minute recess and the meeting was reconvened by Mayor Bacon. Variance: Walter E. Moffett, requested a variance on the front setback from 50 feet to 43 feet for construction of a canopy at Amoco Oil on South Cobb Drive. This request was tabled at the last meeting and Mr. Moffett said they would install a sign indicating no left turns onto Powder Springs Street from 7:00 to 9:00 a.m. and 4:00 to 6:00 p.m. They will also eliminate one driveway on the front. Mr. Moffett said they felt the new facility would be a big improvement over the old one and also help the traffic situation. Mr. Williamson in the audience expressed his opposition again because of traffic in the area. He said he had no complaint on the setback as long as traffic was im- proved. It was agreed that the City would install the no left turn signs. Jack Shinall made a motion to 43 foot setback be approved with the stipulation that no left turns from the station be allowed onto South Cobb Drive or Powder Springs Street between the hours of 7:00 to 9:00 a.m. and 4:00 to 6:00 p.m. Kathy Brooks seconded the motion which carried 6-0. Variance: Charles Miller requested a waiver of the 10 foot landscaped strip required for construction of a new shopping center at Spring and Atlanta Road. There was no opposition but there were several interested residents from Atlanta Terrace. Mr. Miller said he was not requesting that the entire 10 foot strip be eliminated, only that it be reduced. The narrowest point of the landscaped strip from the curb cut to the parking area would be 4 feet. Mr. Miller said they would replace the guard rail at the end of Atlanta Terrace to prevent traffic from using that street. Also, at certain peak hours on Spring Road they would prevent left hand turns. Mr. Miller said they would also replace ,the sidewalk on Spring Road and maintain a 10 foot buffer at the rear of the property. Max Bacon stated that Mr. Miller has a letter from the Department of Transportation approving the driveway cuts. Max Bacon made a motion the variance be approved witlh the following stipulations: 1) Replace all sidewalk; 2) no ingress/egress on Atlanta Terrace; 3) maintain certain amount of landscaped strip; 4) work out something with our city engineer about no left turns on Atlanta Road and Spring Street; and 5) maintain setbacks on south side of the property. Jim Tolleson seconded the motion which carried 6-0. (Rescinded -see minutes of 7/15/85) " Variance: John R. Goss requested a variance on front building setback line from 50 feet to 30 feet. This variance was also tabled at the last meeting. Mr. Goss said there is a detention basin on the property for water runoff and as requested, he had met with Jim Mallett coIncerning the underground basin. Mr. Mallett had stated the system seems to be feasible. They also contacted the owners of the shopping center and they have given their approval to the underground retention system. Mr. Goss said the property is not very deep and they need the variance to place the building on the property and allow enough room for a drive through lane to the rear. The existig gas canopy on the property now extends 42 feet over the existing set back line, within 8 feet of the right of way. They would like to build a restaurant on the property that will extend 20 feet over the building setback line and actually be farther away from the right of way. There was no opposition from the audience and Jim Hawkins made a motion the variance be approved. Jim Tolleson seconded the motion which carried 6-0. (Rescinded see minutes of 7/15/85) Variance: A variance request by John H. Switzer to reduce the landscaped strip for construction of a new Days Inn was withdrawn. Variance: Mike Johnson requested a variance for new construction on Spring Street next to the Dairy Queen. Mr. Johnson presented three different variance requests for consideration but said plan #1 was their first choice. Mr. Johnson said without -� the variances, they would have to narrow the building down to approximately 30 feet and shift to the right side of the property. This will be a 5,500 square foot building. Jim Tolleson said ,that James Williams could not be here tonight and this is in his ward and was reluctant to make a decision tonight. Max Bacon said it appears they are trying to put too large a building on this lot and also felt reluctant to act upon the request in Mr. Williams' absence. Mr. Johnson did not have letters from the affected adjoining property owners and did not know they were required. Jack Shinall made a motion the variance be tabled to the next meeting to give Mr. Johnson October 15, 1984 - Continued time to obtain letters from the adjoining property owners and also allow council more time to study his plans since this is a multiple choice. Max Bacon seconded` the motion which carried 6-0. Variance: Arthur L. Crowe requested a waiver of the 10 foot landscaped strip on Spring Road for construction of Spring Village Shopping Center. Tony Fritz represented Mr. Crowe and said this would be a small strip shopping center and they were very limited in where they could locate the building because the lot is small and three sides require a 50 foot setback. Also, when Spring Road was widened Mr. Crowe donated 15 feet of his property for the project. There was no opposition and Jim Tolleson made a motion the variance be approved. Kathy Brooks seconded the motion which carried 6-0. Commercial Building Permits: Commercial building permits were presented by Inspector Scott Stokes and -recorded as follows: 1) Days Inn requested a permit for new construction at 2700 Curtis Drive at a total estimated cost of $2.5 million. Jim Tolleson made a motion the permit be approved subject to approval of the City Engineer and Fire Marshal. Jim Hawkins seconded the motion which carried 6-0. 2) The Arbors of Post Village at 2046 Lake Park Drive requested a permit to repair fire damage at a total estimated cost of $85,000. Jim Tolleson made a motion the permit be approved subject to approval of the City Engineer and Fire Marshal. Jack Shinall seconded the motion which carried 6-0. 3) R-Value, 3265 Atlanta Road requested a permit for construction of a silo at a total estimated cost of $11,267.55. Attorney Alton Curtis represented Glen Robinson and stated this silo would be 30 feet tall and 15 feet in diameter and would be used to store boric acid, which is used in insecticides. The silo storage of this product will save the business approximately $100 per ton. Mr. Curtis said he has contacted several different agencies and this product is nonflammable and noncarcinogenic. It will be unloaded by a sealed system to prevent any dust or infiltration. The silo will be immediately adjacent to the building, 50 feet off the property line and not visible from Atlanta Road. Mr. Curtis said they were prepared to plant red maple trees between the silo and property line next to the townhomes. Civil Defense Director Jim Farley, said he did not see any problem with the product being stored there. Max Bacon said there wdre'still""too many problems that he could see and could not support the building permit. Jim Tolleson made a motion the permit be approved. Jack Shinall seconded the motion which tied 3-3 with Jim Tolleson, Jack Shinall and Hugh Ragan for; Max Bacon, Jim Hawkins and Kathy Brooks opposed. Mayor Bacon voted in the affir- mative to break the tie and approve the permit. 4) Franks Chiropractic Center, 1105 Concord Road requested a permit for an addition to the building at a total estimated cost of $20,000. Jim Hawkins made a motion the,'., permit be approved subject to approval of the City Engineer and Fire Marshal. Hugh1 Ragan seconded the motion which carried 6-0. 5) ESC Enterprises requested a permit for new construction at 5300 Highlands Parkway at a total estimated cost of $451,175. Hugh Ragan made a motion the permit be approved subject to approval of the City Engineer and Fire Marshal. Jim Tolleson seconded the motion which carried 6-0. 6) ESC Enterprises requested a permit for new construction at 5100 Highlands Parkway at a total estimated cost of $449,025. Max Bacon made a motion the permit be approved subject to approval of the City Engineer and Fire Marshal. Kathy Brooks seconded the motion which carried 6-0. 7) ESC Enterprises requested a permit for new construction at 4900 Highlands Parkway at a total estimated cost of $630,000. Hugh Ragan made a motion the permit be approved subject to approval of the City Engineer and Fire Marshal. Jim Tolleson seconded the motion which carried 6-0. 8) ESC Enterprises requested a permit for new construction at 4700 Highlands Parkway at a total estimated cost of $444,425. Hugh Ragan made a motion the permit be approved subject to approval of the City Enginer and Fire Marshal. Jim Tolleson seconded the _ motion which carried 6-0. Validation of Signatures: Attorney Camp read an application for annexation by Johnny \ Roper, for 16.351 acres on Smyrna Roswell Road as follows: 0 October 15, 1984 - Continued We the undersigned, who constitute sixty percent (60%) of the electors resident in the area described below and who constitute sixty percent (60%) of the owners of the land area by acreage of the area described below, which is unincorporated and contiguous to the City of Smyrna, hereby apply to have said area annexed into the City of Smyrna under the provisions of the Code of Georgia Annotated, Sections 69-904 through 69-912 (Georgia haws, Acts 1966, Pages 409, 41o, 411, 412, 413; 1971, 399; 1976, Pages 1011, 1012; said property to be annexed being described as follows, to wit. All that tract or parcel of land lying and being in hand hot 733, 17th District, 2nd Section, Cobb County, Georgia, being more particularly described as follows: BEGINNING at a point on the south land lot line of hand hot 733, 646.74 feet east of the southwest corner of hand hot 733; running thence north 21 degrees 02 minutes 02 seconds west 1146.90 feet to a point marked by an iron pin on the south side of Windy Hill Road (aka, Smyrna Roswell Road); running thence north 57 degrees 02 minutes 53 seconds east along the right of way of Windy Hill Road to a point marked by an iron pin; running thence south 30 degrees 39 minutes 39 seconds east 630.65 feet to an iron pin; running thence south 30 degrees 39 minutes 43 seconds east 212.09 feet to a concrete monument; running thence south 30 degrees 38 minutes 03 seconds east 99.55 feet to an iron pin; running thence south 30 degrees 39 minutes 54 seconds east 563.41 feet to an iron pin on the south line of hand hot 733; running thence west along said hand hot line 89 degrees 16 minutes 25 seconds west 395.52 feet to an iron pin; running thence in a westerly direction south 88 degrees 53 minutes 58 seconds west 171.39 feet to an iron pin; running thence in a westerly direction south 89 degrees 14 minutes 47 seconds west for a distance of 151.95 feet to an iron pin at the point of BEGINNING, being 16.351 acres according to a survey for Johnny Roper dated October 2, 1984, by Clifford A. Smith, a Georgia Registered Surveyor. WHEREFORE, THE UNDERSIGNED HEREUNTO SET THEIR HANDS AND SEALS, AND THEREBY MAKE SAID APPLICATION FOR ANNEXATION TO THE CITY OF SMYRNA. Witness the signature of 60% of the electors resident in the area described below: s/JOHNNY L. ROPER Witness the signature of the record title holders of the fee simple title, or his legal representative, of 60% of the land area above described by acreage: s/JOHNNY L. ROPER Jim Tolleson made a motion the signature be validated and the public hearing date set for November 19, 1984. Jim Hawkins seconded the motion which carried 6-0. Bid Opening: Bids for a cab and chassis for a Parks Department truck were opened, read and recorded as follows: Wade Ford $8,300 (1984 or 1985 model) Days Chevrolet $9,110 (1985 model) Jack Shinall made a motion the bid be awarded to Wade Ford, the low bidder, to be paid from money saved in the Parks Department salaries. Jim Hawkins seconded the motion which carried 6-0. Bid_ Award: Max Bacon made a motion the bids opened last meeting for two cabs and chassis for the Sanitation Department be awarded to Complete Refuse at $29,935.27 each. Jim Hawkins seconded the motion which carried 6-0. Request Bids: Max Bacon made a motion bids be requested for a new sound system for the Council chambers to be opened November 5th. Jack Shinall seconded the motion which carried 6-0. Ordinance_ Amendment: Hugh Ragan made a motion that approval be given to advertise several amendments to the zoning ordinance concerning variance procedures to be heard the first meeting in November. Jack Shinall seconded the motion which carried 6-0. Approval of Concession Agreement: Jack Shinall said that after a lot of hard work on everyone's part, an agreement has been reached on the concession agreement for North Smyrna Park. This agreement will provide recreation facilities as required for use of the land at no cost to the City, with a cash benefit in return. Jack said the resolution still has to be approved by the Department of Interior and hopefully will be delivered to them tomorrow. Jack read the resolution (copy to be made a part FE October 15, 1984 - Continued of these minutes) and made a motion it be approved. Kathy Brooks seconded the motion which carried 6-0. Committee Reports: (Public Safety) Jim Hawkins stated that Ted Farland was elected�� to the Civil Service Board representing Fire and Police and Bob Davis was also elected as Chairman by the other Board members. The tests will be ordered soon for the Fire Chief. Jim Hawkins said we have made application to I.S.O., an independent insurance rating .:.company asking that our fire rating be lowered from 6 to 4. The last time we applied the only thing we needed was a map of our water system and this time we have a map, which was submitted. (Library) Kathy Brooks reported that on the cutoff date for registration, the Library registered 357 to vote. Kathy also reminded everyone of the Halloween Carnival at Cobb Center October 31st, from 6:30 to 9:30. Kathy Brooks made a motion the rules be suspended to make a motion. Jim Hawkins seconded the motion which carried 6-0. Kathy Brooks said the 1984 premium tax insurance act has been challenged, declaring it is unconstitutional, which could result in considerable loss of revenue for the City. Kathy Brooks made a motion that Attorney Camp be authorized to intervene on the City's behalf at the Insurance Commission meeting scheduled for October 22nd. Max Bacon seconded the motion which carried 6-0. Max Bacon called on Eugene Gerald with Executive Golf, Inc. and Mr. Gerald briefly outlined the timetable for construction on the new golf course at North Smyrna Park. With no further business, meeting adjourned at 10:45 p.m. UR T. BACON, MAYOR C, AMES E. TOLLESON, WARD 1 JAMES W IAMS, WARD 3 JA. SHINALL, WARD 5 42e,?t HUGH RAAN, WARD/ 7 WILLOUISE C. SPIVEY, CI CLERK MAX BACON, WARD 2 AMES M. HAWKINS, WARD 4 THY BRO S, WARD 6 Lin �e , STATE OF GEORGIA COUNTY OF COBB Thgreement, is made and entered into this G day ofis T ofr-Z�_ - - -, 1984, by and between The City of Smyrna, a Municipal Corporation of the State of Georgia (the "City") and Executive Golf, Inc., a Georgia Corporation (the "Concessionaire"). WHEREAS, the City is the owner of certain real property located in Cobb County, Georgia known as the North Smyrna Park; WHEREAS, the City's ownership of said property is subject to certain rules and regulations of the Bureau of Outdoor Recreation of the Department of the Interior of the United States of America (the "Bureau") and the City's desire and intent in this Agreement is that neither this Agreement, any subsequent agreement or document, nor any act by it or anyone acting by or through it shall be effective if the same shall be in any manner adverse to the rules, regulations; -- guidelines, or authority of the City or the Bureau as reserved under the grant of the subject property to the City, and that nothing herein contained shall be effective to create a reverter or reversion of title of the subject property from the City's ownership thereof. Any rule, regulation, agreement, paragraph, sentence, or word which may be deemed to circumvent the City's intent as hereinbefore stated shall be void abinitio and such changes, modifications and revisions shall be made in good faith by the parties hereto to comply with the restrictions placed on said property by the Bureau; and WHEREAS, F. Eugene Jerrel is an experienced operator of golf courses, driving ranges, and like public recreational facilities and desires to develop, promote, and operate a portion of the subject property as a public golf course and driving range with club house and pro -shop (the "Facility"), and for said purposes has formed Executive Golf, Inc., (the "Concessionaire"); W I i 2 9 i+ l z I ff i NOW THEREFORE, for and in consideration of Five Thousand Dollars ($5,000.00) in hand paid and the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. Concession M-d Term. City, for and in consideration of the Concession fees to t be paid and the covenants to be performed by the Concessionaire as described herein, does hereby grant unto the Concessionaire an exclusive concession and license to develop, construct and operate an executive golf course, driving range, club house, proshop and related activities (the "Facility") on the property described in EXHIBIT "A" attached hereto and made a part hereof by reference. TOGETHER WITH, all buildings and improvements now or hereafter erected thereon, and the fixtures, attachments, appliances, equipment, machinery and other articles attached to said buildings and improvements; and all shrubs, trees or other emblements now or hereafter on said property or under or above the same or any part or parcel thereof. TO USE the above described property (the "Premises") for the term of years hereinafter set out. 2. Term, (a) The term of this Agreement shall begin on the date hereof and shall end thirty-five (35) years therefrom (the "Term"). City grants to Concessionaire a first right option to extend the Term of this Agreement upon such terms and conditions as the parties hereto shall, using their best efforts, negotiate and agree to. (b) It is intended and contemplated by the parties that this Agreement will be renewed in January of each year which begins the new term of office of the Mayor and Council for the duration of that term of office. It is understood and agreed between the parties that the City does not have the legal right to bind itself for the obligations set out in this Agreement beyond the current term of Mayor and Council, but the City does hereby express its intention, insofar as it has a legal right to do so, of abiding by the terms and conditions of this Agreement except in the event of "reasonable cause" which shall exist solely in the event of a default which has not been cured by the Concessionaire under the terms and conditions of this Agreement. Should legislation be enacted which would authorize the city to bind itself beyoud a single term, and the City agree to so bind itself, Concessoinaire and the City agree to amend this agreement to delete this paragraph 2 (b). (c) In the event the City (and not the Concessionaire) shall terminate this Agreement without "reasonable cause", City agrees to reimburse Concessionaire for its development expense incurred in accordance with the following: 2 (1) During the first five (5) years of the term, City shall pay to the Concessionaire the total cost of Concessionaire's capital improvements on the Premises; (2) During years six (6) through twenty (20) of the Term City shall pay to the Concessionaire an amount equal to the "Depreciated Cost" of Concessionaire's capital improvements. "Depreciated Cost" is the total cost of capital improvements reduced annually by depreciation computed over fifteen (15) years on a straight line basis with the first year of depreciation commencing with year six (6) . (3) Amounts paid hereunder shall be paid by the City in three (3) annual installments with interest on the unpaid balance at the prime rate designated by the Trust Company Bank of Georgia, after deducting the outstanding balance owed on any of the improvements which shall remain with the property. Notwithstanding any provision to the contrary nothing contained in this agreement shall create any obligation on behalf of the City to any third party whatsoever. 3. As payment for the exclusive concession granted herein, Concessionaire agrees to pay to the City those amounts set forth in Exhibit "B", attached hereto and incorporated herein by this reference. As additional consideration to the City, Concessionaire agrees to assist the City in sponsering two (2) tournaments per year and charging reduced greens fees and club and cart rental fees to the tournament participants (a) Concessionaire shall provide to City, for the City's approval, which approval shall' not be unreasonably withheld, drawings, plans and specifications, including a general plan for the orderly and timely development of the property to be used together with a proposed time schedule for construction progress and completion date, and the approximate date the Facility shall be open for use by the public (the "Plans and Specifications"). The Concessionaire agrees to comply with all local, state, and national laws, acts, rules and regulations applicable to the operation of the Facility and particularly to the Rules and Regulations of the Parks and Recreation Department of the City of Smyrna and the rules and regulations of the City and the Bureau, and any other document or thing necessary or incidental to the improvement of the property and the grant of the concession comtemplated herein. (b) The cost of developing and operating the Facility shall be at the sole expense of the Concessionaire and the City shall not be responsible for any reasonable professional 3 fees incurred by the City in connection with this Agreement and with the construction of Facility, such professional fees to be charged at the rate normally paid by the City. ,.. - (c) Concessionaire shall provide the City with a construction and a performance bond, in an amount and with good and Buff icient surety as may be required, approved and accepted by the City to assure the faithful performance of Concessionaire's duties under this Agreement. (d) Concessionaire agrees to the following time schedules: (i) Plans and Specifications shall be furnished to the City within sixty (60) days from the date of this Agreement; (ii) Construction shall commence within one hundred and twenty (120) days from the date of this Agreement, and; (iii) Completion of construction shall occur within one (1) year from the date construction commences. (e) The parties hereto agree that nothing herein contained shall prevent the Concessionaire from securing by mortgage deed, collateral assignment or otherwise, construction borrowings or other indebtedness incurred in connection with the Facility, by transfer of title of the improvements to any and all lenders, provided; (i) that the term of any loans and related security agreements may not exceed Twenty one (21) years from the date of the Concession Agreement; (ii) only the improvements on the premises and Concessionaire's personal property may serve as collateral and not the land or any interest of the Concessionaire pursuant to the Concession Agreement, and; (iii) Notwithstanding the above, in the event that a lender requires an assignment of the Concession Agreement by the Concessionaire in connection with the borrowing of monies, said lender and the terms of such assignment shall be subject to the approval of the City. 5. Books and Records, Concessionaire shall keep its books and records in accordance with accepted accounting practices and shall provide to the City annual financial statements as prepared by the Certified Public Accountants retained by Concessionaire. City shall have the right to audit the records of Concessionaire at any time upon 30 days notice and at the sole expense of the City. N 6. 299 2L (a) The Premises may be used solely for lawful purposes, as contemplated hereunder in connection with the operation of the Facility. The Concessionaire shall comply with all governmental laws, ordinances and regulations applicable to the use of the Premises. (b) All improvements and structures on the Premises shall revert to and become the sole property of the City upon the end of the term of this Agreement plus any extensions of this Agreement. Until such termination, all improvements and structures on the Premises shall be the property of the Concessionaire and shall be freely transferable. 7. Right Qf First Refusal. City hereby grants to the Concessionaire a first right of refusal to purchase the Premises should the City at any time during the Term or any extensions thereof, offer Premises for sale. The terms and conditions of any purchase and sale pursuant to the first right of refusal granted herein shall be those terms and conditions offered by the City, or those terms and conditions offered to the City by an �- independent third party. 8. Liability Insurance. The Concessionaire shall procure, and maintain in full force and effect at all times during the term of this Agreement, public liability insurance insuring against all liability of the Concessionaire and the Concessionaire's employees and agents arising from or in connection with the Concessionaire's use or occupancy of the Premises, with liability limits of at least $500,000.00 for injury or death to any one person and $1,000,000.00 for injury or death to any number of persons in any one occurrence and with property damage limits of $50,000.00 for any one occurance. All insurance policies procured by the Concessionaire to fulfill this requirement shall name the City as an additional named insured thereunder. 9. Waiver Qf Each party waives any an all rights of recovery and claims by way of subrogation against the other party, or its officers, agents or employees, for the full amount of any loss to the extent covered by any insurance. 10. Fire Aad Other Casualty Loss. (a) No destruction or damage to any building or improvement on the Premises by fire, windstorm, or any other casualty shall entitle the Concessionaire to surrender 5 possession of the Premises, to terminate this Agreement, to violate any of its provisions, or to cause any rebate or abatement in fees then due or thereafter becoming due under the terms hereof, notwithstanding any law, rule or regulation to the contrary. (b) In the event of damage to or destruction of the Premises property by fire or other casualty, the Concessionaire agrees to rebuild the improvements located on the Premises at its sole expense. 11. Indemnity-. Concessionaire agrees to indemnify, defend (with counsel satisfactory to City) and hold harmless City, its agents, and employees, from and against all claims, liabilities, losses, damages, and expenses (including attorney's fees and disbursement) resulting from Concessionaire, its agents or employees negligence, for injury to or death of any person or loss of or damage to property in or upon said Premises and including the person or property of Concessionaire, its employees, agents, invitees, licensees or others, it being understood and agreed that all property kept, stored or maintained in or upon the Premises, shall be at the risk of Concessionaire. The foregoing indemnity shall be in addition ,-- to the Concessionaire's obligation to supply the insurance as required by paragraph 8 and not in discharge of or substitution for same and the general liability insurance so required shall specifically insure the contractural obligations of Concessionaire as set forth in this Agreement including this paragraph 11. 12. Taxes. Concessionaire shall pay all sales, ad valorem, or other taxes assessed against the improvements and/or the operation of the Concession. 13. Utilities And Services, The Concessionaire shall pay water, sewer, gas, electricity, fuel, light, heat and power bills incurred by The Concessionaire with respect to the Premises. AFROUR-Tor-M7, Mo.. (a) If at any time during the term of this Agreement, title to the entire Premises should become vested in a public or quasi- public authority by virture of the exercise of a taking by condemnation or the right of eminent domain, or by voluntary transfer from the Concessionaire and The City under threat of such taking, or in the event that title to a portion of the Premises should be taken, rendering continued occupancy by the Concessionaire commercially unreasonable, then this Agreement shall terminate as of the time of vesting 6 of title, after which neither party shall be further obligated to the other except for occurrences antedating such taking. (b) In the event of any such taking or transfer, ' whether of the entire Premises, or a portion thereof, it is expressly agreed and understood that both parties may make separate claims against the condemning authority for damages to the respective estates of the parties hereto. (c) It is understood and agreed by the parties hereto that the use of the property may be cancelled at any time should the United States of America determine that the Premises or any part thereof are needed in the National Defense. The Concessionaire may not assign its rights under this Agreement, in whole or in part without the consent of the City. Written notice of any such proposed assignment shall be given to City before assignment. All obligations of this Agreement shall be binding upon all original parties hereto and their heirs, successors and assigns, notwithstanding any such assignment. ( 16. Default And Cure jaf Default. (a) Events of Default. Concessionaire covenants and agrees with City that any one or more of the following events shall be considered events of default: (1) Concessionaire shall fail to make any semi- annual payment of the Concession fee when it becomes due under the terms of this Agreement, and such failure to pay shall continue for a period of 30 days. (2) Concessionaire or City shall default in any of the covenants and agreements herein contained and such covenant or agreement herein contained, if after diligent effort by Concessionaire or City, the same cannot be performed within said 45 day period. (3) (a) Concessionaire is adjudicated a bankrupt;' or (b) a permanent receiver is appointed for Concessionaire's property, including Concessionaire's interest in the premises, and such receiver is not removed within sixty (60) days after written notice from City to Concessionaire to obtain such removal; or (c) whether voluntarily or involuntarily, Concessionaire takes advantage of any debtor relief proceedings under any present or future law (d) Concessionaire makes an assignment for benefit of creditors; or (e) the premises or Concessionaire's effects or interests therein should be levied upon or attached under process against Concessionaire, not satisfied or dissolved within 7 sixty (60) days after written notice from City to Concessionaire to obtain satisfaction thereof; or (f) Concessionaire vacates the demised premises, or fails to conduct its regular, routine business therein during normal business hours for a period of more than thirty (30) days, �j then, and in any of said events, City shall have the option to do any of the following (in addition to and not in limitation of any other remedy permitted by law or by this agreement), and thereafter City shall have no further obligation to Concessionaire for any cause. (i) Terminate this agreement, in which event Concessionaire shall immediately surrender the demised premises to City, but if Concessionaire shall fail so to do, City may without further notice and without prejudice to any other remedy City may have for possession or arrearages, enter upon the demised premises and expel or remove Concessionaire and its effects, by force if necessary, without begin liable to prosecution or any claim for damages therefor; or (ii) Without terminating this agreement, re-enter the demised premises by summary proceedings or otherwise, and in any event may dispossess the Concessionaire, removing all persons and property from the demised premises and such property may be removed and stored in public warehouse or elsewhere at the cost of, and for the account of Concessionaire, all without service of notice or resort to legal process and without being deemed guilty or trespass, or becoming liable for any loss or damage which may be occasioned thereby. (b) Effect of Default. Upon the occurrence of any Event of Default, City or Concessinaire may pursue any of the following remedies: (i) Either party may declare the term of this Agreement ended. Re- entry by the City shall not be deemed to work a forfeiture of any rights or obligations which either party has under this Agreement nor of the rights hereunder of the Concessionaire to remove all personal property from the Premises. (ii) Either party may take such other legal action whether legal or equitable in nature to enforce the terms of this Agreement including but not limited to suit for monetary II_ damages, specific performance or other claims. ii 17. Covenant Q#. Quiet Enjoyment. City covenants and warrants that it has full right and lawful authority to enter into this Agreement for the present term of the Mayor and City Council and that City is lawfully seized of the entire premises hereby demised and has good and marketable title thereto, free and clear of all tenancies, 8 liens and encumbrances except those reserved in that certain Quit Claim deed dated July 28, 1977, by and between the United States of America and the City of Smyrna, Georgia. City covenants, subject to the terms of this agreement, that at all times Concessionaire is not is default hereunder Concessionaires quiet and peaceable enjoyment of the premises shall not be disturbed or interfered with by the City. Concessionaire shall have immediate occupancy of the Premises. (a) All notices, demands or requests required or permitted to be given pursuant to this Agreement shall be in writing and shall be deemed to have been properly given or served and shall be effective upon being deposited in the United States mail, postpaid and registered or certified with return receipt requested; provided, however, the time period in which a response to any notice, demand or request must be given shall commence on the date of receipt by the addressee thereof. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been given shall constitute receipt of the notice, demand or request sent. Any such notice, demand or request shall be sent to the respective addresses set forth below (or such other addresses as the party receiving the notice shall have earlier provided to the other party): As to City: With a Copy To: As to Concessionaire: P.O. Box 1226 Smyrna, Georgia 30081 Charles E. Camp COCHRAN, CAMP AND SNIPES 2950 Atlanta Street, S. E. Smyrna, Georgia 30080 Executive Golf, Inc. 797 Kiowa Drive, N. E. Marietta, Georgia 30060 With a Copy To: Thomas H. Rogers, III John H. Moore, Attorneys -� 274 Washington Avenue Marietta, Georgia 30060 (b) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Georgia, and shall be binding upon the parties hereto, their heirs, successors and assigns. (c) Time is of the essence of this contract. E I (d) If any section or subsection of this Agreement shall be declared invalid or unenforceable for any reason by a Court of Competent jurisdiction, the parties declare that it shall be severable, and that all remaining section and subsections of this Agreement shall remain in full force and effect. (e) This Agreement constitutes the entire contract between the parties and shall not be otherwise affected by any other purported undertaking whether written or oral, and may not be modified except in writing signed by the party against whom enforcement is sought. (f) This Agreement may be amended but only upon the consent of the parties hereto and only in writing. IN -WITNESS WHEREOF, the parties hereto have set their hands and seals the date first above written. Signed, Sealed and delivered in the presence of :, ,.Notary Publid; Cobb.County, Georgia .Notary Public, Georgia Stelt of large My Comm' 4,, Expires April 7, 1985 Signed, sealed and del' ered in the prise pe off: NL�✓ Wi tv ss Notary Public Cobb County, �2orgia_,, Notary Public, Georgia Stsh at large My Commission Expires April 7; 1985 10 "CITY" THE CITY OF SMYRNA By �— Attest • ��� C/ �% (Seal "CONCESSIONAIRE" Executive Golf, Inc. By: Attest: Screay (Seal) EXHIBIT OA' All that land situate wholly within the land of the United -� States of America, Dobbins Air Force Base, hereinafter referred to as the Air Force Base in Land Lots 518, 563 and 590, 17th District, 2nd Section, Cobb County, Georgia, being bound now or formerly on the,North, East and South by other land of the Air Force Base; and on the West by the Air Force Base boundary line and being more particularly described as follows: BEGINNING at an iron pin on the Air Force Base boundary line located South 01 degree 22 minutes East 125.62 feet from a concrete monument on the Air Force Base boundary line, common to Land Lots 517, 518, 491 and 492; thence; along new lines through the land of the Air Force Base South 85 degrees 25 minutes East 2400.0 feet to an iron pin, North 87 degrees 52 minutes East 1200.00 feet to an iron pin, South 12 degrees 04 minutes 888.56 feet to an iron pin, South 88 degrees 46 minutes West 1129.37 feet and South 89 degrees 47 minutes West 2623.25 feet to an iron pin on the Air Force Base boundary line; thence, along the Air Force Base boundary line North 01 degrees 22 minutes West 1049.98 feet to the point of beginning and containing 77.472 acres, more or less., LESS AND EXCEPT: Approximately 4 acres of the east portion of the property which shall remain in the City, the right of ingress and egress to said property and joint parking privileges on the designated parking area. 0 EXHIBIT "B" (a) As payment for the Concession during the first five (5) years of this Agreement, Concessionaire agrees to pay to the City an annual Concession fee, in the amount of $5,000.00 per year. (b) For the years commencing with year six (6) through year ten (10), the annual Concession fee shall be $7,500.00 plus an amount equal to the product obtained by'multiplying (i) Twenty-five cents ($.25) times (ii) the number of paid rounds of golf played during the preceeding twelve (12) month period, but not to exceed 30,000 rounds, plus fifty cents ($.50) per round for each round over 30,000 rounds. (c) For the years commencing with year eleven (11) through twenty (20), the annual Concession fee shall be $10,000 plus an amount equal to the product obtained by multiplying (i) twenty-five cents ($.25) times (ii) the number of paid rounds of golf played during the preceeding twelve month period, not exceeding 30,000 rounds, plus fifty cents ($.50) per round for each round over 30,000 rounds. (d) For the remainder of the term of this Agreement the f� Concession fee shall be $15,000 per year plus an amount equal tothe product obtained by multiplying (i) Twenty-five cents ($.25) times (ii) the number of paid rounds of golf played during the preceeding twelve (12) month period, but not to exceed 30,000 rounds, plus fifty cents ($.50) per round for each round over 30,000 rounds. (e) The Concession fee shall be payable by check mailed to the address provided for notices hereunder, or such other address as the City shall provide to Concessionaire in accordance with the notice provisions hereof. The Concession fee shall be payable simi-annually commencing ten (10) days from the date six (6) months after the Facility is open to the general public. Subsequent Concession fee payments shall be due every six (6) months thereafter during the Term. Notwithstanding the foregoing, it is agreed that the earnest money of $5,000.00 paid by the Concessionaire to the City shall be applied against and satisfy in full the first annual Concession fee. RESOLUTION WHEREAS, the CITY OF SMYRNA has received from the United States of America, certain acerage adjacent to Dobbins Air Force Base, through a grant ; AND WHEREAS, the grant provides that the City should formulate a plan whereby the City will provide utilization of the property, now known as NORTH SMYRNA PARK for recreational purposes for its citizens; AND WHEREAS, F. Eugene Jarrell as the chief officer and major stockholder of Executive Golf, Inc., and who is an experienced developer and operator of golf courses, has proposed to enter a Concession Agreement with the City to manage and develope a golf course on a portion of the property to provide recreation to the citizens and which shall create income to the city to defray the expenses of futher developing the remainder of the property and for other parks and recreation purposes; NOW THEREFORE, BE IT RESOLVED THAT the Mayor is hereby authorized to enter into a Concession Agreement in the form of the Agreement hereto attached, subject to the reveiw of the City Attorney and subject to the approval of the Bureau of Outdoor Recreation of the Department of the Interior of the United States of America or its designee, and thereafter said concession agreement shall be maintained as a part of the City Records by the Clerk of the City of Smyrna. lit