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10-21-1991 Regular MeetingOctober 21, 1991 The regular meeting of Mayor and Council was held October 21, 1991 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 Clerk Melinda Dameron, City Attorney Charles E. Camp, Parks Director Sherry Reavis, Library Director Laurel Best, Personnel Director Jane Mears, Public Works Director Vic Broyles, Fire Chief Larry Williams, Communications Director Steve Ciaccio, Finance Director Emory McHugh, Police Chief Stan Hook, City Engineer Ken Hildebrandt and representatives of the press. Invocation was given by Elijah Jones, pastor of Greater Zion Hill Baptist Church followed by the pledge to the flag. CITIZENS INPUT: Kathy Jordan read a proclamation for Alpha Delta Kappa Month which was signed and presented by Mayor Bacon. Judy Robinson of 3934 Lake Drive complained of police harassment and brutality against her 18 year old son in several different incidents. Mayor Bacon stated he would ask the Police Committee to look into the allegations. Colonel Mike Swinford presented a certificate to Councilman Wade Lnenicka on behalf of the National Defense University of Washington, D.C. for completing the National Security Management Course by seminar. Mr. Swinford said this is a volunteer program that is open to reservists and civilians in which Mr. Lnenicka has participated over the last 2 years to further himself in the Army reserves. PUBLIC HEARINGS: (A) Variance - side yard setback at 2754 Spring Drive John Patterson stated that Morris Clacker is requesting this variance to build a storage building for his car and tools at his home at 2754 Spring Drive. The variance will reduce the side yard setback from 10 feet to 2.5 feet. There was no opposition. Maureen Akin who stated she was a neighbor, represented Mr. Clacker who could not attend. The adjacent neighbors have raised no objections to the building which will be in line with similar storage buildings in neighbors yards on either side of Mr. Clackler. The slab for the building was poured about 20 years ago and cannot be moved. Bob Davis said the exact size of the building is not specified but it will fall within the 25% maximum size provision allowed by code. Mr. Davis made a motion the variance be approved as requested. Wade Lnenicka seconded the motion which carried 7-0. (B) Privilege license - package beer and wine sales at 777 Food Store, 1649 Smyrna Roswell Road John Patterson stated that Mr. Jae Son Kim is requesting this license for 777 Food Store. This request was tabled at the last meeting. There was no opposition from the audience but the police investigation did reveal that the store has been under scrutiny by the U.S. Department of Agriculture for possible violations of the Food Stamp program and they are in the process of being cited for those violations. Bill Scoggins stated this particular location has been a problem for the last few years and there was a question now, since this is a privilege license, concerning the food stamp allegations. Attorney Furman Smith said there has been no final determination on the food stamp issue and it should not be relevant to this application. Bill Scoggins stated that since this is a privilege license he had some reservations about the allegations and made a motion the application be tabled for 2 weeks or until this issue has been resolved. Mr. Smith said it could be resolved tonight by simply agreeing to surrender food stamp authorization which would remove any question on that issue. Jack Shinall seconded the motion and stated the allegations, if they are held to be true, places a serious doubt in his mind as to the character of the individual applying for the license. Therefore, it is a serious offense in his mind because if the applicant has violated the food stamp law felt he would have a tendency to violate other laws, such as the alcohol beverage ordinance. October 21, 1991 meeting - continued Mr. Smith said this is not one of the items stipulated in the Smyrna code as a pre -requisite for qualification for a beer and wine license. It is not a criminal violation charge, it is an administrative violation. At worse, it is sloppy handling of food items on their part and has nothing to do with the application pending tonight and is not legal grounds for disqualifying him from obtaining the license. Mr. Camp said he disagreed, it is legal grounds because it deals with moral character and that is the purpose of these hearings. Following further discussion, vote on the motion to table carried 7-0. Mr. Smith stated that when they come before council again they may bring a list of other locations with similar violations and insist that action be taken against them. It is no longer a privilege license since the City has issued other alcoholic beverage licenses and therefore they must be issued to everyone. Failure to do so is violation of their civil rights. Jack Shinall stated that everyone had been treated equally and council had never issued a license to anyone with food stamp violations. (C) Privilege license - liquor, beer and wine pouring - Lupita Mexican Restaurant, 2161 South Cobb Drive John Patterson stated that LaFiesta Mexican Restaurant is requesting a name change only for their restaurant at 2161 South Cobb Drive. Mr. John Mills will remain as agent and this matter was also tabled at the last meeting. There was no opposition. Carlos Hernandez said the only change they were making concerning the license was the name of the business from LaFiesta Mexican Restaurant to Lupitas. They are trying to build their business and thought the name change along with remodeling and new menu items would help. Mr. Mills has held the license for 9 years and would continue to do so. Mr. Mills was also present and stated that he was a full time employee of Southern Railway but was at the restaurant about once a week. There was one violation in April for selling to a minor during one of the City sting operations and that was their first offense in 8 years of business. At that time, the restaurant paid a fine of $1500. Mr. Hernandez said after the violation occurred, they have increased their training activities and have had no problems. Jack Shinall stated that during the show cause hearing, Mr. Mills expressed some concern about holding the license and asked if he felt confident now about continuing to do so. Mr. Mills said he felt sure there would be no further problems and would continue to hold the license. Kathy Jordan made a motion the license be approved, seconded by Wade Lnenicka. Vote on the motion carried 7-0. (D) Privilege license - Fast Cash (car title pawn), 2242 South Cobb Drive John Patterson stated that Joseph L. Willis has submitted an application for a car title pawn shop at 2242 South Cobb Drive. The application was submitted prior to the moratorium and subsequent ordinance revisions governing pawn shops. Mr. Willis and Sue Brissey were sworn by Mr. Camp. i Kathy Jordan stated she understood the business would be for car title loans only with no parking or overnight storage of vehicles. Mr. Williams said vehicles that are recovered through loan defaults are stored at a lot in Woodstock. Loans are made for 30 to 90 days, usually less than $3,000 at an 'interest rate of 2% monthly with a 20% to 40% service charge. During discussion Mr. Willis stated that he was not a resident of Cobb County as required by the Code and Mr. Camp advised that the license could not be issued. Wade Lnenicka suggested that the application be tabled to allow Mr. Willis to withdraw his request. Jim Hawkins suggested that the application fee be refunded but Mr. Willis said he understood that was an advertising cost and was not concerned with the $100 fee. After further discussion Kathy Jordan made a motion the application be tabled. Wade Lnenicka seconded the motion which carried 7-0. (E) Privilege license - package liquor, beer and wine sales at Ray's Package Store, 1055 Windy Hill Road October 21, 1991 meeting - continued John Patterson stated that Ramin R. Torabi is requesting this license for an ownership change of Rays Package Store, formerly One -Stop Package. The police investigation was favorable and there was no opposition. Mr. Torabi said he would be the new owner and agent for the location, was an American citizen and resident of Cobb County for the past 12 years. Also, he had read and understood the alcoholic beverage ordinances for the City and would abide by them. Mr. Torabi said he had some experience from working occasionally in a convenience store owned by his family in Stone Mountain and had also worked at this store. There was a violation of selling to minors during a sting operation in 1989 but Mr. Torabi said he knew to accept only a Georgia drivers license or government issued card for identification purposes. After further discussion Kathy Jordan made a motion the license be approved. Bill Scoggins seconded the motion which carried 7-0. (F) Business license - Players Choice Billiards, 1797 Spring Road John Patterson stated that Henry Walter and Danielle Graves have requested a license for a game room at 1797 Spring Road. They will operate electronic games and pool tables but will not serve alcoholic beverages. The police investigation was favorable and there was no opposition. Ms. Graves said they wanted to operate a family type business with electronic games and pool tables. Soft drinks and snacks will be sold, with no alcoholic beverages. They felt this would be a good location for a game room and would help the community. Ms. Graves said she was aware of the city ordinance regarding the limitations on hours of operation during school hours and they also have a clause in their lease that they will not permit loitering around the shopping center or building. Also, their plans were to have a security officer or off duty police officer on the premises to ensure that the other tenants are not disturbed in any way. Ms. Graves said she knew there had already been some complaints of loitering but they would handle that to the best of their ability until they could hire security personnel. Bob Davis also suggested that more lights be installed if possible to provide additional security. Bill Scoggins said apparently there have problems with loitering in the past and asked the applicants to help control it. Mr. Scoggins made a motion the license be approved. Wade Lnenicka seconded the motion which carried 7-0. (B) Zoning ordinance amendment - Architectural Design District and Central Business District Guidelines Jim Hawkins stated these ordinance revisions were advertised for a public hearing tonight but.council has not had sufficient time to study them before making a recommendation. These amendments will establish the architectural design district and create an architectural design committee by establishing a new zoning category in our ordinance. Mr. Hawkins said we are hoping to create a focal point for the downtown area and this is a major step. There were no questions or comments from the audience and Jim Hawkins made a motion the ordinance amendments be tabled to the next meeting. Jack Shinall seconded the motion which carried 7-0. FORMAL BUSINESS: (A) Bid opening - vehicle for Parks Department Bids were opened, read and recorded as follows: Wade Ford $15,438.00 Clancy Ford $14,778.00 Hardy Ford $15,099.50 $14,687.00 w/o license fee Bill Scoggins made a motion the bids be turned over to the Parks Committee with authority to award the low bid meeting specifications. Wade Lnenicka seconded the motion which carried 7-0. (B) Bid opening - vehicle for Community Development Bids were opened, read and recorded as follows: October 21, 1991 meeting - continued Wade Ford $12,415.00 Clancy Ford $11,234.00 Family Ford $10,978.00 $10,566.00 w/o license fee Days Chevrolet $12,404.51 Bob Davis made a motion the bids be turned over to the committee for review and a recommendation back at the next meeting. Wade Lnenicka seconded the motion which carried 7-0. COMMERCIAL BUILDING PERMITS: Nothing to report. BID AWARDS: Nothing to report. CONSENT AGENDA: (A) Approval of October 7, 1991 minutes (B) Approval to request bids for bucket truck (C) Approval of CDBG agreement totaling $153,202 (D) Approval to request bids for computer equipment, Communications Department (E) Approval of 3-way stop signs - Park Road @ Falling Water Drive Bill Scoggins made a motion the consent agenda be approved. Bob Davis seconded the motion which carried 7-0. COUNCIL INPUT: Police Chief Stan Hook responded to allegations made earlier in the meeting by Mrs. Robinson and said he was familiar with each and every incident. The first four allegations have been thoroughly investigated and the others are currently under investigation. Chief Hook said he would bring the reports to the committee regarding the allegations made tonight and appropriate action would be taken as warranted. Chief Hook said he was proud of his officers and while they are not perfect, assured everyone that his men did not behave in the manner that was described tonight. Councilman Pete Wood said the committee would meet soon and report their findings back to council. Reports were also given from the Fire Department, Public Works, Personnel, Library and Parks Departments. Jack Shinall asked that consideration be given to the small business owners when the zoning ordinance amendments are approved so that reasonable guidelines will be established for them. Mr. Shinall said the CDBG agreement approved tonight is for replacement of water lines on Stephens Street, Hillside, Birch Street and Sherwood Road. These are Federal funds that have been approved for this project which was submitted probably 6 or 7 years ago. In order to meet requirements for funding we are required to provide questionnaires from residents in the area to show proof that they meet the requirements for this type of funding. Cooperation in completing the questionnaires and returning them will help speed up the process. Jim Hawkins said that several weeks a citizen reported some traffic problems including lack of a turn light at Church Road and South Cobb and also at King Springs at South Cobb Drive. The turn signal at Church and South Cobb has already been taken care of and learned tonight that the signal at King Springs Road at South Cobb Drive had also been approved for a left turn signal for westbound traffic. Wade Lnenicka recognized the Campbell High School Booster Club for organizing and hosting a reception for city employees night at the game last week. Mr. Lnenicka said he had received several calls about the bridge on Ashwood Drive. Some improvements have already been made and Mr. Lnenicka said he hoped the residents were pleased with the response they have seen. Mr. Lnenicka said he appreciated Chief Hook's response and asked the public to remember there are two sides to every story. We will investigate this matter and hear both sides of the story and assured everyone that we will do whatever is necessary to maintain the integrity of the Police Department. Mr. Lnenicka said he was especially pleased with the citizens input portion of the meetings which gave an opportunity for everyone to voice their opinions. October 21, 1991 meeting - continued With no further business, meeting adjourned at 9:17 p.m. SUTHERLAND, ASBILL & BRENNAN 999 PEACHTREE STREET, N.E. CABLE: SUTAB ATLANTA ATLANTA, GEORGIA 30309-3996 1275 PENNSYLVANIA AVENUE, N.W. TELEX: 54-2672 WASHINGTON, D. C. 20004-2404 FACSIMILE: (404) 853-8806 (404> 853-8000 (202) 383-0100 J. BEN WATKINSM DIRECT DIAL: (404) 853-8402 November 12, 1991 Ms. Melinda Dameron Clerk, City of Smyrna 1306 Bank Street Smyrna, Georgia 30081 Re: $48,290,000 Cobb -Marietta Coliseum and Exhibit Hall Authority Revenue Bonds, Series 1991 Dear Melinda: Enclosed is a replacement Ordinance identical to the Ordinance adopted Monday, November 4. There were some minor changes to the Agreements attached to the Ordinance. Please substitute the enclosed ordinance for the one I left with you last Monday night. Thank you for your assistance in this matter and if you have any questions, please do not hesitate to call me or Chuck Camp. Sincerely, ).B n Watkins III JBW/dv Enclosure i ORDINANCE AN ORDINANCE TO RATIFY AND REAFFIRM A RESOLUTION AUTHORIZING THE LEVY AND COLLECTION OF AN EXCISE TAX UPON THE FURNISHING FOR VALUE TO THE PUBLIC OF ANY ROOM OR ROOMS, LODGINGS OR ACCOMMODATIONS AT THE RATE OF 8 PERCENT PURSUANT TO THE PROVISIONS OF § 48-13-51(a) (5.1) ; TO APPROVE, AUTHORIZE AND PROVIDE FOR THE EXECUTION AND DELIVERY OF A CITY CONVENTION FUNDING AGREEMENT, DATED AS OF DECEMBER 1, 1991, BY AND BETWEEN THE CITY OF SMYRNA AND THE COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY; TO APPROVE, AUTHORIZE AND PROVIDE FOR THE EXECUTION AND DELIVERY OF AN OPERATING AGREEMENT, DATED AS OF DECEMBER 1, 1991, BY AND BETWEEN THE CITY OF SMYRNA AND THE COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY; AND FOR OTHER PURPOSES. WHEREAS, the City of Smyrna, Georgia (the "City") has, pursuant to a resolution duly adopted on May 6, 1991, authorized the levy and collection within the boundaries of the City of an excise tax upon the furnishing for value of public accommodations pursuant to O.C.G.A. § 48-13-51, as amended, at the rate of 8 percent; and WHEREAS, the Cobb -Marietta Coliseum and Exhibit Hall Authority (the "Authority") was created for the general purpose of ". . developing and promoting for the public good in this state the cultural growth, public welfare, education and recreation of the people of this state, including the erection and construction of a building or buildings which shall be public buildings to be used for amusement purposes or educational purposes or a combination of the two, and for fairs, expositions, or exhibitions in connection therewith, and the purchase of lands, easements, rights and lands and franchises for construction of such facility or facilities and for use in connection therewith . . ."; and WHEREAS, after careful study and investigation, the City and the Authority have each heretofore determined that the acquisition, construction and operation of a modern indoor coliseum -civic center, together with related buildings and facilities useful or desirable in connection therewith for the use and benefit of the residents of the City is in the best interests of the City; and WHEREAS, the City has determined that the best method of providing such coliseum -civic center would be for the Authority to acquire, construct and equip the same and thereafter operate such facility as a public facility, all for the benefit of the residents of the City as aforesaid; and WHEREAS, the Authority and the City are desirous of entering into an intergovernmental contract for the providing of certain r services and facilities in connection with the Project (hereinafter defined); and WHEREAS, the City is authorized to levy and collect within the boundaries of the City, an excise tax upon the furnishing for value of public accommodations pursuant to O.C.G.A. § 48-13-51, as amended, at the rate of 8 percent. NOW, THEREFORE, BE IT ORDAINED by the Mayor and the Council of the City of Smyrna and it is hereby ordained by authority of same, that the resolution of the Mayor and Council of the City adopted on May 6, 1991 authorizing the imposition, levy and collection of an excise tax upon the furnishing for value to the public of any room or rooms, lodgings or accommodations at the rate of 8 percent pursuant to the provisions of § 48-13-51(a)(5.1) of the Official Code of Georgia Annotated, as amended (the "Hotel/Motel Taxs) is hereby ratified and reaffirmed. BE IT FURTHER ORDAINED by the authority aforesaid and it is hereby ordained by the authority of same, that the City Funding Agreement, dated as of December 1, 1991, by and between the City and the Authority (the "City Funding Agreements) has been read, duly considered and is hereby approved and authorized to be entered into by the City and the Mayor is hereby authorized and directed to execute and to deliver the City Funding Agreement for and on behalf of the City and the City Clerk is hereby authorized and directed to attest the same and to impress the official seal of the City thereon and the City Funding Agreement shall be substantially in the form which is attached hereto, marked Exhibit sAs and by this reference thereto, incorporated herein and made a part hereof, all subject to such minor changes, insertions or deletions as may be required to accomplish the undertaking authorized and contemplated by this ordinance, as the same may be approved by the Mayor of the City and upon the execution thereof by the parties thereto, the City Funding Agreement shall be duly recorded in the permanent records of the City. BE IT FURTHER ORDAINED by the authority aforesaid and it is hereby ordained by the authority of same, that the Operating Agreement, dated as of December 1, 1991, by and between the City and the Authority (the sOperating Agreements) has been read, duly considered and is hereby approved and authorized to be entered into by the City and the Mayor is hereby authorized and directed to execute and to deliver the Operating Agreement for and on behalf of the City and the City Clerk is hereby authorized and directed to attest the same and to impress the official seal of the City thereon and the Operating Agreement shall be substantially in the form which is attached hereto, marked Exhibit "Bs and by this reference thereto, incorporated herein and made a part hereof, all subject to such minor changes, insertions or deletions as may be -2- c:\docs\pf\c124838.03\ordinanc.smy (jbv)(dv) required to accomplish the undertaking authorized and contemplated by this ordinance, as the same may be approved by the Mayor of the City and upon the execution thereof by the parties thereto, the Operating Agreement shall be duly recorded in the permanent records of the City. BE IT FURTHER ORDAINED by the authority aforesaid and it is hereby ordained by the authority of same, that the expenditure requirements of O.C.G.A. § 48-13-51(a)(9)(A) shall be met by the execution and delivery of the City Funding Agreement and performance of the terms and agreements contained therein. BE IT FURTHER ORDAINED by the authority aforesaid and it is hereby ordained by the authority of same, that the City shall, prior to the effective date of the Hotel/Motel Tax and for each fiscal year thereafter, obtain from the Authority a budget for expenditures to be made by the Authority and such budget shall be made a part of the City's budget plan. BE IT FURTHER ORDAINED by the authority aforesaid and it is hereby ordained by the authority of same, that any and all ordinances or resolutions or parts of ordinances or resolutions in conflict with this ordinance this day adopted be and the same are hereby repealed (except with respect to the effective date of the Hotel/Motel Tax provided for in any ordinance previously adopted) and this ordinance shall be in full force and effect from and after its adoption except that any excise taxes currently being collected on the furnishing of value of public accommodations shall continue to be collected until the effective date of the levy of the Hotel/Motel Tax at the rate of 8 percent. =I= c:\docs\pf\c124838.03\ordinanc.smy (jbv)(dv) � � 1 EXHIBIT "A" CITY CONVENTION FUNDING AGREEMENT by and among COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY and CITY OF SMYRNA, GEORGIA Dated as of December 1, 1991 TABLE OF CONTENTS ARTICLE I DEFINITIONS ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Authority . . . . Section 2.2 Representations and Agreements by the City. . . . . . . . . . . . . . . . . . ARTICLE III ISSUANCE OF BONDS; PROCEEDS; CONSTRUCTION OF THE PROJECT; OPERATION OF THE PROJECT Section 3.1 Aareement to Issue Bonds; Application of BondProceeds . . . . . . . . . . . . . . Section 3.2 Construction of Project . . . . . . . Section 3.3 Disbursement of Moneys in the Project Fund; Compliance with the Indenture . . . Section 3.4 Operation of the Project . . . . . . . . ARTICLE IV EFFECTIVE DATE; TERM; IMPOSITION OF TAX; PAYMENT PROVISIONS; OBLIGATIONS ABSOLUTE AND UNCONDITIONAL Section 4.1 Effective Date; Duration of Term. . . . . Section 4.2 Imposition of Hotel/Motel Tax . . . . . . Section 4.3 No Impairment of Tax . . . . . . . . . . Section 4.4 Tax Payments . . . . . . . . . . . . Section 4.5 Obligations of City Hereunder Absolute and Unconditional . . . . . . . . . . . . Section 4.6 Pledge of Hotel/Motel Tax . . . . . . . . Section 4.7 Enforcement of Obligations . . . . . . . Section 4.8 Assignment of Convention Funding Agreement . . . . . . . . . . . . . . . . Section 4.9 No Set -Off . . . . . . . . . . . . . . . ARTICLE V SPECIAL COVENANTS OF CITY Section 5.1 Collection of Taxes . . . . . . . . Section 5.2 Records Regarding Tax Payments . . Section 5.3 Further Assurances and Corrective Instrument, Recordings and Filings Section 5.4 Confirming Documents . . . . . . . Section 5.5 Reports to Department of Community Affairs . . . . . . . . . . . . . . - i - R C: 7 7 il 8 8 9 9 10 11 11 11 12 12 12 12 13 13 c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) r ARTICLE VI SPECIAL COVENANTS AND AGREEMENTS OF THE AUTHORITY Section 6.1 Budget . . . . . . . . . . . . . . . . . 13 Section 6.2 Financial Statements . . . . . . . . . . 13 Section 6.3 Financial Information . . . . . . . . . . 13 ARTICLE VII MISCELLANEOUS Section 7.1 Early Termination . . . . . . . . . . . . 14 Section 7.2 Independent Contractor . . . . . . . . . 14 Section 7.3 Limited Liability . . . . . . . . . . . . 14 Section 7.4 No Interest for City . . . . . . . . . . 14 Section 7.5 No Third Party Beneficiaries . . . . . . 14 Section 7.6 Entire City Convention Funding Agreement; Amendments . . . . . . . . . . 15 Section 7.7 Agreement to Pay Attorneys' Fees and Expenses. . . . . . . . . . . . . . . . 15 Section 7.8 No Additional Waiver Implied by One Waiver . . . . . . . . . . . . . . . . . 15 Section 7.9 Notices . . . . . . . . . . . . . . . . . 15 Section 7.10 Binding Effect . . . . . . . . . . . . . 16 Section 7.11 Severability . . . . . . . . . . . . . . 16 Section 7.12 Execution Counterparts . . . . . . . . . 16 Section 7.13 Captions . . . . . . . . . . . . . . . 16 Section 7.14 Law Governing City Convention Funding Agreement . . . . . . . . . . . . . . . . 16 Section 7.15 Prior Agreements . . . . . . . . . . . . 16 Section 7.16 Validation . . . . . . . . . . . . . . . 16 c:\docs\pf\c124838.03\citycnvn.smy (jbw)(dv) CITY CONVENTION FUNDING AGREEMENT THIS CITY CONVENTION FUNDING AGREEMENT is entered into as of December 1, 1991, by and among the COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY (the "Authority"), a body corporate and politic created and existing under the laws of the State of Georgia, and the City of Smyrna (hereinafter referred to as the "City"), a municipal corporation created under the laws of the State of Georgia. WHEREAS, the Authority has heretofore been created pursuant to the Cobb -Marietta Coliseum and Exhibit Hall Authority Act (Georgia Laws 1980 p. 4091 et seq., as amended, the "Authority Act") and the Authority is now existing and operating and its members have been duly appointed and entered into their duties; and WHEREAS, the Authority was created for the general purpose of ". developing and promoting for the public good in this state the cultural growth, public welfare, education and recreation of the people of this state, including the erection and construction of a building or buildings which shall be public buildings to be used for amusement purposes or educational purposes or a combination of the two, and for fairs, expositions, or exhibitions in connection therewith, and the purchase of lands, easements, rights and lands and franchises for construction of such facility or facilities and for use in connection therewith . . ."; and WHEREAS, pursuant to the authority granted in the Authority Act, the Authority is empowered to construct a project which includes ". the acquisition, construction, equipping, maintenance and operation of multi -use coliseum and civic center type facilities to be used for athletic contests, games, meetings, trade fairs, expositions, political conventions, agricultural events, theatrical and musical performances, conventions and other public entertainments, and the usual facilities related thereto, including, without limitation, refreshment stands and restaurants, and facilities for the purveying of foods, beverages, publications, souvenirs, novelties, and goods of all kinds, whether operated or purveyed directly or indirectly through concessions, licenses, leases or otherwise, parking facilities or parking areas in connection therewith, recreational centers and areas including, but not limited to, gymnasium and athletic facilities and related buildings, and the usual and convenient facilities appertaining to such undertakings and the extension and improvements of such facilities, acquiring the necessary property therefor, both real and personal and the lease, sale and licensing of any part or all of such facilities, including real and personal property, to any persons, firms or corporations whether public or private so as to assure the efficient and proper development, maintenance, and operation of such facilities and areas, deemed by the Authority to be necessary, convenient, or desirable . . ."; and - 1 - c:\docs\pf\c124838.03\citycnvn.smy (jbw)(dv) WHEREAS, after careful study and investigation, the City and the Authority have each heretofore determined that the acquisition, construction and operation of a modern indoor coliseum -civic center, together with related buildings and facilities useful or desirable in connection therewith for the use and benefit of the residents of the City is in the best interests of the City; and WHEREAS, the City has determined that the best method of providing such coliseum -civic center would be for the Authority to acquire, construct and equip the same and thereafter operate such facility as a public facility, all for the benefit of the residents of the City as aforesaid; and WHEREAS, the City is a municipal corporation organized and existing under the laws of the State of Georgia; and WHEREAS, Article IX, Section II, Paragraph III of the Constitution of the State of Georgia of 1983 authorizes the expenditure of public funds by counties and municipal corporations for parks, recreational areas, programs and facilities; and WHEREAS, O.C.G.A. § 36-82-61(4)(e) authorizes the issuance of revenue bonds by governmental bodies for ". . buildings to be constructed and used for the housing of exhibits for fairs and educational purposes; buildings to be used for the housing of livestock, horses, cattle, swine, poultry and agricultural exhibits for exhibition purposes; the erection and construction of buildings to be used for amusement or educational purposes or a combination of the two; and such buildings to be used for fairs, expositions, or exhibitions in connection therewith. . ."; and WHEREAS, Article IX, Section III, Paragraph I of the Constitution of the State of Georgia of 1983 authorizes intergovernmental contracts between any ". county, municipality, school district or political subdivision of the state ... with each other or any other public agency, public corporation, or public authority for joint services, for the provisions of services or for joint or separate use of facilities or equipment . ."; and WHEREAS, the Authority and the City are desirous of entering into an intergovernmental contract for the providing of certain services and facilities in connection with the Project (hereinafter defined); and WHEREAS, the City is authorized to levy and collect within the boundaries of the City, an excise tax upon the furnishing for value of public accommodations pursuant to O.C.G.A. § 48-13-51, as amended, at the rate of 8 percent (the "Hotel/Motel Tax"); and - 2 - c:\docs\p£\c124838.03\citycnvn.smy (jba)(dv) WHEREAS, the City, pursuant to ordinances duly adopted, have heretofore authorized the levy and collection of the Hotel/Motel Tax at the rate of 8 percent; and WHEREAS, in order to finance the Project, the Authority has determined pursuant to a resolution adopted , 1991 (the "Resolution") and a trust indenture, dated as of December 1, 1991, by and between the Authority and , , (the "Indenture") to actually issue and deliver $48,260,000 aggregate principal amount of "Cobb -Marietta Coliseum and Exhibit Hall Authority Revenue Bonds, Series 1991" (hereinafter referred to as the "Series 1991 Bonds") for the purpose of providing funds to be applied towards the cost of acquiring, constructing and equipping the Project, establishing a reserve fund, paying a portion of interest accruing on the Series 1991 Bonds during construction and paying expenses incident to accomplish the foregoing; and WHEREAS, to secure payment of the Series 1991 Bonds and any Additional Parity Bonds (hereinafter defined) hereafter issued, the Authority will pledge all revenues derived under this City Convention Funding Agreement to the payment of principal of and interest on the Series 1991 Bonds and any Additional Parity Bonds hereafter issued to finance the Project as the same become due and payable; and W I T N E S S E T H: In consideration of the respective covenants, representations and agreements hereinafter contained, the Authority and the City agree as follows: ARTICLE I DEFINITIONS In addition to the words and terms elsewhere defined in this City Convention Funding Agreement, the following words and terms as used in this City Convention Funding Agreement 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 Parity Bonds's means any revenue bonds of the Authority issued under the Indenture ranking on a parity with the Series 1991 Bonds as to the lien on the Tax Payments made hereunder. "Authority" shall mean the Cobb -Marietta Coliseum and Exhibit Hall Authority, its successors and assigns. - 3 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) "Authority Act's shall mean Georgia Laws 1980, p. 4091 et seq., as amended by Georgia Laws 1981, p. 4350 et seq., Georgia Laws 1986, p. 5549 et seq. and Georgia Laws 1991 p. 3531 et seq. "Bondholders, and "bondholders' means the registered owner of any of the outstanding Bonds. l'Bonds'l means the Series 1991 Bonds and any Additional Parity Bonds. "City" means the City of Smyrna, Georgia. "City Convention Funding Agreement" means this City Convention Funding Agreement, as from time to time amended. "County" means Cobb County, Georgia, its successors and assigns. "County Convention Funding Agreement" means the Convention Funding Agreement by and between the Authority and the County, as from time to time amended. "Financing Document" means the Indenture, City Convention Funding Agreement, Resolution and any other document securing repayment of the Bonds including, but not limited to, any bond insurance policy, surety bond, security deed, security agreement, lease or license. "Fiscal Year" means the fiscal year for the Authority ending September 30 of each year or as such fiscal year may be changed by appropriate proceedings of the Authority. "Hotel/Motel Tax" means the excise tax of 8 percent collected by the City upon the furnishing of public accommodations pursuant the Hotel/Motel Tax Law. "Hotel/Motel Tax Lawil means Title 48, Chapter 13, Article 3 of the Official Code of Georgia Annotated, as amended, authorizing the governing authority of each county within the State of Georgia, within the territorial limits of the special district (created under O.C.G.A. Section 48-13-51) and each municipality in the State of Georgia located within the special district, to levy and collect an excise tax upon the furnishing of public accommodations at the rate of 8 percent. "Indenture" means the Trust Indenture dated December 1, 1991 by and between the Authority and as trustee pursuant to which the Series 1991 Bonds will be issued as the same may be amended or supplemented from time to time. - 4 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) 110perating Agreementll means the Operating Agreement between the City and the Authority, as amended from time to time. "Project'# means the multipurpose convention, exhibit hall and meeting facilities and any associated parking areas or improvements described in the Project Report including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Project, and related lands, buildings, structures, fixtures, equipment and personalty appurtenant or convenient to such facilities. IlProject Fund'$ shall mean the Cobb -Marietta Coliseum and Exhibit Hall Authority Project Fund created in the Indenture. "Project Reportli means the report entitled "Cobb -Marietta Convention Center" prepared by Smallwood, Reynolds, Stewart, Stewart & Associates, Inc., dated November, 1991, as the same may be amended from time to time. "Resolution'$ means that certain resolution adopted by the Authority on _, 1991 authorizing the execution and delivery of the Indenture and the issuance of the Series 1991 Bonds. "Revenue Bond Law" 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. "Revenue Fundil means the Cobb -Marietta Coliseum and Exhibit Hall Authority Revenue Fund created under the Indenture. "Series 1991 Bonds" means the Authority's $48,260,000 aggregate principal amount of Revenue Bonds, Series 1991, authorized to be issued pursuant to the terms of the Indenture. "Sinking Fundif means the Cobb -Marietta Coliseum and Exhibit Hall Authority Sinking Fund created under the Indenture. "Tax Payments" means the payment of the Hotel/Motel Tax required pursuant to Section 4.4 hereof. IlTermll means the term of this City Convention Funding Agreement as set forth in Section 4.1 hereof. "Trustee" means initially Georgia or any successor trustee appointed pursuant to the terms of the Indenture. - 5 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Authority. The Authority makes the following representations as the basis for the undertakings on its part herein contained: (a) The Authority is authorized to enter into the transactions contemplated by this City Convention Funding Agreement and to carry out its obligations hereunder, has been duly authorized to execute and deliver this City Convention Funding Agreement, 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 Bonds, the execution and delivery of this City Convention Funding Agreement and the Indenture, the adoption of the Resolution, and the performance of all covenants and agreements of the Authority contained in this City Convention Funding Agreement and the Indenture and of all other acts and things required under the Constitution and laws of the State of Georgia to make this City Convention Funding Agreement 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; (c) 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 City Convention Funding Agreement or the ability of the Authority to comply with any of its obligations under this City Convention Funding Agreement or the Indenture. Section 2.2 Representations and Agreements by the City. The City makes the following representations and agreements: (a) The City is a municipal corporation duly created and validly existing under the laws of the State of Georgia having power to enter into and execute and deliver this City Convention Funding Agreement, and, by proper action of its governing body, has authorized the execution and delivery of this City Convention Funding Agreement 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 City Convention Funding Agreement, 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 City Convention Funding c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) Agreement by it except as shall have been obtained as of the date hereof; (b) This City Convention Funding Agreement has been duly executed and delivered by the City and constitutes its legal, valid, and binding obligation enforceable in accordance with its terms, except as enforcement may be limited by the application of equitable principles; (c) The authorization, execution, delivery, and performance by the City of this City Convention Funding Agreement and compliance by the City with the provisions thereof do not violate the Constitution or the laws of the State of Georgia relating to the City 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; (d) There is no litigation or proceeding pending, or to the knowledge of the City threatened, against the City or any other person having a material adverse affect on the right of the City to execute this City Convention Funding Agreement or its ability to comply with any of its obligations under this City Convention Funding Agreement; and (e) The City has, pursuant to an ordinance duly adopted, authorized the levy and collection of the Hotel/Motel Tax and the moneys derived from such levy shall be used and applied as provided herein during the Term of this City Convention Funding Agreement. ARTICLE III ISSUANCE OF BONDS; PROCEEDS; CONSTRUCTION OF THE PROJECT; OPERATION OF THE PROJECT Section 3.1 Agreement to Issue Bonds; Application of Bond Proceeds. The Authority agrees that it will promptly adopt the Resolution authorizing and approving the issuance of the Bonds, the execution and delivery of the Indenture, and proceed with the validation, issuance and sale of the Bonds. The net proceeds derived from the sale of the Bonds shall be deposited into the funds established pursuant to the Indenture and used as provided therein. In the event the proceeds from the sale of the Bonds are insufficient to complete the Project, the Authority agrees to issue Additional Parity Bonds as provided in the Indenture to complete the Project. Section 3.2 Construction of Project. The Authority hereby agrees to acquire, construct and equip the Project substantially - 7 - c:\docs\pf\c124838.03\citycnvn.3my (jbv)(dv) in accordance with the Project Report. The Project Report is hereby incorporated herein and made a part hereof. Section 3.3 Disbursement of Moneys in the Project Fund; Compliance with the Indenture. The proceeds from the sale of the Bonds deposited to the Project Fund under the Indenture shall be disbursed for the purposes and in accordance with the terms and conditions set forth therein. In the event the Authority issues Completion Bonds or Additional Parity Bonds, the net proceeds derived from the sale of such Completion Bonds or Additional Parity Bonds shall be deposited to a separate account of the Project Fund created under the Indenture and disbursed in accordance with the terms and conditions set forth therein. Section 3.4 Operation of the Project. The Authority hereby agrees during the Term hereof to operate and maintain the Project for the purpose of developing and promoting for the public good, cultural growth, public welfare, education and recreation of the citizens of the City, including the erection and construction of the Project to be used for amusement purposes or educational purposes or a combination of the two, and for fairs, expositions or exhibitions in connection therewith and the purchase of lands, easements, rights and lands, and franchises for the construction of the Project for use in connection therewith, all for the benefit of the citizens of the City. The Authority hereby agrees to acquire, construct, operate and maintain the Project for the benefit of the citizens of the City, for and in consideration of the payments to be received from the City as set forth in Section 4.4 hereof and in accordance with the provisions of this City Convention Funding Agreement. ARTICLE IV EFFECTIVE DATE; TERM; IMPOSITION OF TAX; PAYMENT PROVISIONS; OBLIGATIONS ABSOLUTE AND UNCONDITIONAL Section 4.1 Effective Date; Duration of Term. This City Convention Funding Agreement shall be effective as of December 1, 1991 and, subject to the other provisions of this City Convention Funding Agreement (including particularly Section 7.1 hereof), shall expire on October 2, 2028, or if on such 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 Imposition of Hotel/Motel Tax. Pursuant to the provisions of § 48-13-51(a)(5.1) of the Official Code of Georgia Annotated, as amended, the City has duly authorized the levy and collection of the Hotel/Motel Tax within the corporate limits of the City at the rate of 8 percent. - 8 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) section 4.3 No Impairment of Tax. So long as any Bonds remain outstanding, the City shall not cease to levy and collect, or reduce the rate of, the Hotel/Motel Tax in any manner that will impair the interest and rights of the holders of any Bonds then outstanding. Without limiting the generality of the foregoing, the City shall not impose, levy or collect taxes within its corporate boundaries in a manner which would cause the 13 percent limit contained in the Hotel/Motel Tax Law to reduce the rate of the Hotel/Motel Tax. Additionally, in the event the corporate limits of the City are hereafter expanded, the Hotel/Motel Tax attributable to such additional area included within the City shall be payable to the Authority on the same terms and conditions provided in Section 4.4 hereof, except that the amount payable due to the collection of the Hotel/Motel Tax within the additional areas included in the City shall equal 100 percent of such collections. The agreements by the City set forth in this Section 4.3 shall be for the benefit of the Authority and for the benefit of the holders of any Bonds and, upon the issuance of any Bonds, shall constitute a contract with the holders of such Bonds. section 4.4 Tax Payments. The City hereby covenants and agrees to pay to the Authority by the 20th day of each calendar month, until the principal of and interest on the Bonds shall have been paid in full or provision duly made therefor, an amount equal to 62.5 percent of the Hotel/Motel Tax collected since the next preceding Tax Payment. The payments to be made by the City to the Authority pursuant to the provisions of this Section shall be made by the City directly to the Trustee for the account of the Authority under the Indenture so long as any Bonds are outstanding under the Indenture. Such payments shall be in lawful money of the United States of America and shall be forthwith deposited into the special fund created and designated in the Indenture as "Cobb -Marietta Coliseum and Exhibit Hall Authority Revenue Fund" and shall be used and applied to the extent and in the manner as provided in the Indenture; provided, however, notwithstanding any provision herein and in the Indenture, at least 50 percent of the total Hotel/Motel Tax collected at the rate of 8 percent shall be expended for the purposes specified in O.C.G.A. 48-13-51(a)(5.1)(B) including, but not limited to, the payment of principal of and interest on any Bonds. The City may make payments required hereunder from any lawfully available funds and may make additional payments from time to time as determined in its sole discretion to be necessary or desirable in connection with the Project. The Tax Payments to be made by the City hereunder shall be pledged to the payment of principal of and interest on the Bonds pursuant to the Indenture. The Authority may also issue Additional c:\doc3\pf\c124838.03\citycnvn.smy (jbv)(dv) Parity Bonds secured by the Tax Payments to be made hereunder pursuant to the terms and conditions of the Indenture. In the event that within ten years from the effective date hereof, the City requests the Authority to issue its debt instruments to finance the acquisition, construction and equipping of a "project" within the meaning of the Authority Act, the payments required pursuant to Section 4.4 hereof shall be reduced to an amount equal to 43.75 percent of the Hotel/Motel Tax collected since the next preceding Tax Payment. The reduction in the Tax Payments required hereunder shall be effective concurrently with the issuance and delivery of the Authority's debt instruments issued to finance the same. The Authority shall be obligated to issue its debt instruments for the "project" proposed by the City if the City furnishes a purchaser for such debt instruments. The Authority shall not be obligated to pledge any funds to repayment of such debt instruments from any source other than the reduction of the Hotel/Motel Tax provided herein and any other source of revenue provided for such purpose by the City. Section 4.5 Oblictations of city Hereunder Absolute and Unconditional. The obligations of the City to make the payments required in Section 4.4 hereof and to perform and observe any and all of the other covenants and agreements on its part contained herein shall be absolute and unconditional irrespective of any defense or any rights of setoff, recoupment, or counterclaim it may otherwise have against the Authority. Until such time as the principal of and interest on the Bonds outstanding under the Indenture shall have been paid in full or provision for the payment thereof shall have been made in accordance with the Indenture, the City (i) will not suspend, abate, reduce, abrogate, diminish, postpone, modify or discontinue the Tax Payments provided for herein, (ii) will perform and observe all of its other agreements contained in this City Convention Funding Agreement, and (iii) will not terminate the Term of this City Convention Funding Agreement or its obligations hereunder for any contingency, act of God, event, or cause whatsoever, including, without limiting the generality of the foregoing, failure of the Authority's title in and to the Project or any part thereof, any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the Project, the taking by eminent domain of title to or the use of all or any part of the Project, 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, any declaration or finding that any of the Bonds are unenforceable or invalid, the invalidity of any provision of this City Convention Funding Agreement, or any failure of the Authority to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this City Convention Funding Agreement, the Resolution or the Indenture. Nothing contained in this Section shall be construed to release the - 10 - c:\doc3\pf\c124838.03\citycnvn.smy (jbv)(dv) Authority from the performance of any of the agreements on its part contained herein, in the Indenture or in the Resolution; and if the Authority should fail to perform any such agreement, the City may institute such action against the Authority as the City may deem necessary to compel performance or recover its damages for non- performance as long as such action shall not do violence to or adversely affect the agreements on the part of the City contained in this City Convention Funding Agreement and to make the payments specified herein; provided, however, any liability of the Authority shall be payable solely from rents, revenues and receipts arising from the Authority's interest in the Project. The City may, however, at its own cost and expense and in its own name, prosecute or defend any action or proceeding or take any other action involving third persons which the City deems reasonably necessary in order to insure the acquisition and construction of the Project or to secure or protect its rights hereunder, and in such event the Authority hereby agrees to cooperate to the extent required so long as the Authority's interests in the Project would not be adversely affected. Section 4.6 Pledge of Hotel/Motel Tax. The City hereby pledges the Hotel/Motel Tax to the payments required under Section 4.4 hereof and for the benefit of the holders of the Bonds. The Hotel/Motel Tax moneys so pledged shall immediately be subject to the lien of such pledge without physical delivery thereof and the lien of this pledge shall be a first or prior lien superior to any and all other claims, whether such claims arise in contract, tort or otherwise and shall be superior to any lien or pledge that may hereafter be created. Section 4.7 Enforcement of Obligations. The obligation of the City to make Tax Payments under this Article may be enforced by (i) the Authority, (ii) the Trustee under the Indenture or holders of any Bonds, in accordance with the applicable provisions of the Indenture and independently of the Authority or, (iii) such receiver or receivers as may be appointed pursuant to the Indenture or applicable law. The covenants and agreements hereunder including specifically the obligation to make the Tax Payments shall be enforceable by specific performance; it being acknowledged and agreed by the Authority and the City that no other remedy at law is adequate to protect the interests of the parties hereto. Section 4.8 Assignment of Convention Funding Agreement. The City hereby assents to the assignment of the Authority's right, title, and interest in and to this City Convention Funding Agreement to the Trustee pursuant to the Indenture and hereby agrees that any notice to the Authority herein required shall in addition be given to the Trustee at the address provided for in the Indenture and that any consent of the Authority shall not be deemed to have been given unless such consent is obtained in writing from the Trustee. Upon the execution of the Indenture, the Trustee shall have all rights and remedies herein accorded to the c:\docs\p£\c124838.03\citycnvn.smy (jbv)(dv) Authority, and any reference herein to the Authority shall be deemed, with the necessary changes in detail, to include the Trustee. The Trustee and the owners of the Bonds are deemed to be and are third party beneficiaries of the representations, covenants, and agreements of the City herein contained. Section 4.9 No Set -Off. No breach, default or failure by the Authority to comply with the provisions of this City Convention Funding Agreement shall permit an abatement or reduction in or set- off against the Tax Payments due from the City. Nothing in this Agreement shall otherwise impair, diminish or affect any other right or remedy available to the City (i) as a result of the Authority's breach, default or failure under this Agreement, or (ii) to enforce the obligations of the Authority under this Agreement. No dispute or litigation between the Authority and the City with respect to this Agreement shall affect any party's duties to perform its obligations or its rights or remedies while such dispute or litigation is pending. ARTICLE V SPECIAL COVENANTS OF CITY The City covenants and agrees with the Authority as follows: Section 5.1 Collection of Taxes. The City hereby covenants and agrees that it shall levy and collect the Hotel/Motel Tax at a rate of 8 percent and, from the proceeds derived therefrom shall make the Tax Payments required as set forth herein for and during the Term of this City Convention Funding Agreement. This covenant shall be for the benefit of the holder of the Bonds and upon the issuance of such Bonds by the Authority shall constitute a contract with the holder of the Bonds. Section 5.2 Records Regarding Tax Payments. The City shall furnish the Authority monthly with a written statement on or before the date the Tax Payments are due hereunder of the amount of each Tax Payment. Upon the request of the Authority, the City shall furnish copies of all books and records of the City pertaining to the levy and collection of the Hotel/Motel Tax and related Tax Payments by the City. Section 5.3 Further Assurances and Corrective Instrument. Recordings and Filings. The City agrees that it will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments, certificates and acknowledgments as may reasonably be required to perfect the pledge of revenues derived hereunder securing repayment of the Bonds or for carrying out the intention of or facilitating the performance of this City Convention Funding Agreement. - 12 - c:\docs\pf\c124838.03\citycnvn.smy (jbw)(dv) Section 5.4 Confirming Documents. In connection with the issuance of any Bonds, the City shall, upon request by the Authority, authorize, execute and deliver to the Authority any certificates, letters or other documents confirming the obligations of the City under this City Convention Funding Agreement, or the execution and delivery of this City Convention Funding Agreement, if: (i) such certificates, letters or other documents are reasonably required by the rating agencies, underwriter, bond insurance company or other credit enhancement provider as a condition of issuance of the Authority's Bonds; and (ii) the Authority pays the costs and expenses incurred by the City in connection with the authorization, execution and delivery of such certificates, letters or other documents, including, but not limited to, the reasonable fees and expenses of attorneys representing the City. Section 5.5 Reports to Department of Community Affairs. The City shall annually file with the Department of Community Affairs a report specifying the rate of taxation and amounts collected and expended pursuant to the Hotel/Motel Tax Law and any other information which may be required by the Department of Community Affairs pursuant to the Hotel/Motel Tax Law. ARTICLE VI SPECIAL COVENANTS AND AGREEMENTS OF THE AUTHORITY The Authority hereby covenants and agrees with the City as follows: Section 6.1 Budget. The Authority shall prepare and furnish to the City an annual budget setting forth the expenditures to be made by the Authority so that the City may comply with the requirements of O.C.G.A. § 48-13-51(a). Section 6.2 Financial Statements. That the Authority will have a certified audit performed at the end of each Fiscal Year and will cause such audit to be completed within 120 days of the end of the Fiscal Year. The Authority will furnish the City with a copy of its audited financial statements promptly upon completion of the annual audit. Section 6.3 Financial Information. That the Authority shall furnish to the City upon request any monthly financial statements prepared by the Authority's staff for presentation to the Authority. If requested by the City, the Authority will - 13 - c:\docs\pf\c124838.03\citycnvn.3my (jbv)(dv) furnish to the City unaudited monthly financial statements showing income and expenses of the Authority in reasonable detail. ARTICLE VII MISCELLANEOUS Section 7.1 Early Termination. The Authority may give written notice to the City of its intention to terminate this City Convention Funding Agreement if the Authority in good faith makes a determination that the acquisition, construction, improvement and equipping of the Project cannot feasibly be carried out within the limits of the moneys available to the Authority for those purposes, despite the best efforts of the Authority. In the event of such notice, this City Convention Funding Agreement shall terminate upon payment and satisfaction in full of all Bonds then outstanding. Section 7.2 Independent Contractor. In performing this City Convention Funding Agreement, the Authority is acting as an independent contractor. The City shall not have any power to control the means, methods or techniques by which the Authority undertakes the activities or projects contemplated by this City Convention Funding Agreement, except as may be otherwise expressly provided in this City Convention Funding Agreement. Section 7.3 Limited Liability. The financial liability of the Authority for failure to perform any of its obligations under this City Convention Funding Agreement shall be limited to the Authority's interest in the Project and in the operating revenues of the Project. The financial liability of the City for failure to perform any of its obligations under this City Convention Funding Agreement shall be limited to the interest of the City in the Hotel/Motel Tax. Section 7.4 No Interest for City. By virtue of this City Convention Funding Agreement, the City shall not have or hereafter acquire any legal or equitable interest of any nature in, under or to (i) any part of the property, real or personal, tangible or intangible, comprising or used in the Project, (ii) the leases, licenses, contracts, accounts or other intangible rights or obligations acquired or incurred by the Authority in connection with the acquisition, construction, improvement, equipping or operation of the Project, or (iii) the operating revenues of the Project except as otherwise agreed to between the City and the Authority. Section 7.5 No Third Party Beneficiaries. Nothing in this City Convention Funding Agreement is intended or shall be deemed to confer any interest in this City Convention Funding Agreement or benefit on persons not parties to this City Convention Funding Agreement, except as provided in Section 4.3, Section 4.7 and - 14 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) Section 5.1 of this City Convention Funding Agreement and as may be otherwise provided in this City Convention Funding Agreement. No obligation imposed on any party under this City Convention Funding Agreement is imposed for the benefit or with the intent to permit enforcement by another, not a party to this City Convention Funding Agreement, except as may be otherwise provided in this City Convention Funding Agreement. Section 7.6 Entire City Convention Funding Agreement; Amendments. This City Convention Funding Agreement contains the entire agreement of the City and the Authority relating to the matters covered by this City Convention Funding Agreement. No representation, promise or understanding has been made, and no collateral agreement, stipulation or undertaking exists, which will have any force and effect with respect to the matters covered by this City Convention Funding Agreement except as set forth in this City Convention Funding Agreement. No amendment, modification, release, discharge or waiver of the provisions of this City Convention Funding Agreement shall be of any force, value or effect unless it is in writing and is executed on behalf of the Authority and the City and is accomplished in accordance with the Indenture with the prior written consent of the Trustee. Section 7.7 Agreement to Pay Attorneys Fees and Expenses. If the City should default under any of the provisions of this City Convention Funding Agreement and either or both the Authority or the Trustee should employ attorneys or incur other expenses for the collection of Tax Payments or the enforcement of performance or observance of any obligation or agreement on the part of the City herein contained, the City agrees that it shall on demand therefor pay to the Authority or the Trustee, as the case may be, the reasonable fee of such attorneys and such other reasonable expenses so incurred by the Authority and the Trustee. Section 7.8 No Additional Waiver Implied by One Waiver. If any agreement contained in this City Convention Funding Agreement 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. Section 7.9 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 to the parties hereto at the following addresses or such other address designated by such party in writing: Authority: [TO BE PROVIDED] - 15 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) City of Smyrna: with a copy to: Mayor City of Smyrna 1306 Bank Street Smyrna, Georgia 30081 City Manager City of Smyrna 1306 Bank Street Smyrna, Georgia 30081 Section 7.10 Binding Effect. This City Convention Funding Agreement shall inure to the benefit of and shall be binding upon the Authority, the City and their respective successors and assigns, subject, however, to the limitations contained in this City Convention Funding Agreement. Section 7.11 Severability. If any provision of this City Convention Funding Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 7.12 Execution Counterparts. This City Convention Funding Agreement 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 7.13 Captions. The captions and headings in this City Convention Funding Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this City Convention Funding Agreement. Section 7.14 Law Governing City Convention Funding Agreement. This City Convention Funding Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia. Section 7.15 Prior Agreements. Any and all prior agreements, leases, operating contracts, management contracts, or any other agreements or parts •thereof (except the Operating Agreement) between the Authority and the City with respect to the Hotel/Motel Tax and the Project be and the same are hereby repealed and terminated and same shall be of no force and effect upon the execution, delivery and effectiveness of this City Convention Funding Agreement. Section 7.16 Validation. The City hereby agrees to be a party defendant in connection with any validation hearing held in connection with the issuance of the Bonds. The City agrees that it will, from time to time, execute, acknowledge and deliver any certificates, instruments, sworn answers and acknowledgments as may - 16 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) be reasonably required in connection with any validation hearing. The cost of such validation shall be paid by the Authority. - 17 - c:\docs\pf\c124838.03\citycnvn.smy (jbv)(dv) IN WITNESS WHEREOF, the Authority and the City have caused this City Convention Funding Agreement to be executed as of the 1st day of December, 1991, 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. COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY (Corporate Seal) By: Chairman Attest: Secretary -Treasurer - 18 - c:\doc3\pf\c124838.03\citycnvn.smy (jbw)(dv) CITY OF SMYRNA, GEORGIA (S E A L) By: Mayor Attest: City Clerk - 19 - c:\docs\pf\c124838.03\citycnvn.smy (jbw)(dv) EXHIBIT "B" OPERATING AGREEMENT between COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY and the CITY OF SMYRNA, GEORGIA Dated as of December 1, 1991 TABLE OF CONTENTS ARTICLE I DEFINITIONS ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Authority . . . . 6 Section 2.2 Representations and Agreements by the City. . . . . . . . . . . . . . . . . . 6 ARTICLE III ISSUANCE OF BONDS; CONSTRUCTION OF THE PROJECT; Section 3.1 Aareement to Issue Bonds; Application of Bond Proceeds . . . . . 7 Section 3.2 Agreement to Construct or Acquire the Proi ect . . . . . . . . . . . 8 Section 3.3 Delivery of Plans and Specifications 8 Section 3.4 Disbursement of Moneys in the Project Fund; Compliance with the Indenture . . . 9 ARTICLE IV OPERATION OF PROJECT; CREATION OF FUNDS; FLOW OF FUNDS Section 4.1 Operation of the Project; Creation of Funds; Flow of Funds . . . . . . . . . . 9 Section 4.2 Operating Expenses . . . . . . . . . . . 12 Section 4.3 Operation of the Project; Rates for Use of the Project. . . . . . . . . . . . . . 12 Section 4.4 Payment of Excess Hotel/Motel Tax . . . . 13 Section 4.5 Collection Fee . . . . . . . . . . . . . 13 ARTICLE V SPECIAL COVENANTS OF CITY Section 5.1 Budget Plan . . . . . . . . . . . . . . . 13 Section 5.2 Reports to Department of Community Affairs . . . . . . . . . . . . . . . . . 14 ARTICLE VI SPECIAL COVENANTS AND AGREEMENTS OF THE AUTHORITY Section 6.1 Release Covenant . . . . . . . . . . . . 14 Section 6.2 Financial Statements . . . . . . . . . . 14 Section 6.3 Financial Information . . . . . . . . . . 14 Section 6.4 Rules and Regulations . . . . . . . . . . 14 Section 6.5 Contracting Procedure . . . . . . . . . . 15 Section 6.6 Granting of Easements; Sale . . . . . . . 15 - i - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) Section 6.7 Discharge of Liens. . . . . . . . . . . . 15 Section 6.8 Maintenance of Insurance; Damage; Destruction or Condemnation of Project. 15 Section 6.9 Books and Records. . . . . . . . . . . . 17 Section 6.10 Access to the Project. . . . . . . . . . 17 Section 6.11 Sale of the Project. . . 18 Section 6.12 Employment of Project Supervisor. . . 18 ARTICLE VII MISCELLANEOUS Section 7.1 Independent Contractor . . . . . . . . . 18 Section 7.2 No Interest for City . . . . . . . . . 18 Section 7.3 Third Party Beneficiaries . . . . . . . . 19 Section 7.4 No Additional Waiver Implied by One Waiver . . . . . . . . . . . . . . . . . 19 Section 7.5 Amendment . . . . . . . . . . . . . . . . 19 Section 7.6 Notices . . . . . . . . . . . . . . . . . 19 Section 7.7 Binding Effect . . . . . . . . . . . . . 19 Section 7.8 Severability . . . . . . . . . . . . . . 19 Section 7.9 Execution Counterparts . . . . . . . . . 20 Section 7.10 Captions . . . . . . . . . . . . 20 Section 7.11 Law Governing Operation Agreement . . . . 20 c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) OPERATING AGREEMENT THIS OPERATING AGREEMENT is entered into as of December 1, 1991, by and between the COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY (the "Authority"), a body corporate and politic created and existing under the laws of the State of Georgia, and the CITY OF SMYRNA, GEORGIA (the "City"), a municipal corporation of the State of Georgia. WHEREAS, the Authority has heretofore been created pursuant to the Cobb -Marietta Coliseum and Exhibit Hall Authority Act (Georgia Laws 1980 p. 4091 et seq., as amended, the "Authority Act") and the Authority is now existing and operating and its members have been duly appointed and entered into their duties; and WHEREAS, the Authority was created for the general purpose of ". . . developing and promoting for the public good in this state the cultural growth, public welfare, education and recreation of the people of this state, including the erection and construction of a building or buildings which shall be public buildings to be used for amusement purposes or educational purposes or a combination of the two, and for fairs, expositions, or exhibitions in connection therewith, and the purchase of lands, easements, rights and lands and franchises for construction of such facility or facilities and for use in connection therewith . . ."; and WHEREAS, pursuant to the authority granted in the Authority Act, the Authority is empowered to construct a project which includes ". the acquisition, construction, equipping, maintenance and operation of multi -use coliseum and civic center type facilities to be used for athletic contests, games, meetings, trade fairs, expositions, political conventions, agricultural events, theatrical and musical performances, conventions and other public entertainments, and the usual facilities related thereto, including, without limitation, refreshment stands and restaurants, and facilities for the purveying of foods, beverages, publications, souvenirs, novelties, and goods of all kinds, whether operated or purveyed directly or indirectly through concessions, licenses, leases or otherwise, parking facilities or parking areas in connection therewith, recreational centers and areas including, but not limited to, gymnasium and athletic facilities and related buildings, and the usual and convenient facilities appertaining to such undertakings and the extension and improvements of such facilities, acquiring the necessary property therefor, both real and personal and the lease, sale and licensing of any part or all of such facilities, including real and personal property, to any persons, firms or corporations whether public or private so as to assure the efficient and proper development, maintenance, and operation of such facilities and areas, deemed by the Authority to be necessary, convenient, or desirable . . ."; and - 1 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) WHEREAS, after careful study and investigation, the City and the Authority have each heretofore determined that the acquisition, construction and operation of a modern indoor coliseum -civic center, together with related buildings and facilities useful or desirable in connection therewith for the use and benefit of the residents of the City is in the best interests of the City; and WHEREAS, the City has determined that the best method of providing such coliseum -civic center would be for the Authority to acquire, construct and equip the same and thereafter operate such facility as a public facility, all for the benefit of the residents of the City as aforesaid; and WHEREAS, the City is a municipal corporation organized and existing under the laws of the State of Georgia; and WHEREAS, Article IX, Section II, Paragraph III of the Constitution of the State of Georgia of 1983 authorizes the expenditure of public funds by counties and municipal corporations for parks, recreational areas, programs and facilities; and WHEREAS, O.C.G.A. § 36-82-61(4)(e) authorizes the issuance of revenue bonds by governmental bodies for ". . . buildings to be constructed and used for the housing of exhibits for fairs and educational purposes; buildings to be used for the housing of livestock, horses, cattle, swine, poultry and agricultural exhibits for exhibition purposes; the erection and construction of buildings to be used for amusement or educational purposes or a combination of the two; and such buildings to be used for fairs, expositions, or exhibitions in connection therewith. . ."; and WHEREAS, Article IX, Section III, Paragraph I of the Constitution of the State of Georgia of 1983 authorizes intergovernmental contracts between any county, municipality, school district or political subdivision of the state ... with each other or any other public agency, public corporation, or public authority for joint services, for the provision of services or for joint or separate use of facilities or equipment ."; and WHEREAS, the Authority and the City are desirous of entering into an intergovernmental contract for the providing of certain services and facilities in connection with the Project (hereinafter defined); and WHEREAS, the City is authorized to levy and collect within the boundaries of the City, an excise tax upon the furnishing for value of public accommodations pursuant to O.C.G.A. § 48-13-51, as amended, at the rate of 8 percent (the "Hotel/Motel Tax"); and - 2 - c:\docs\pf\c124838.03\opercity.3my (jbv)(dv) WHEREAS, the City, pursuant to an ordinance duly adopted, authorized the levy and collection of the Hotel/Motel Tax; and WHEREAS, in order to finance the Project, the Authority has determined pursuant to a resolution adopted , 1991 (the "Resolution") and a trust indenture, dated as of December 1, 1991, by and between the Authority and , , (the "Indenture") to actually issue and deliver $48,260,000 aggregate principal amount of "Cobb -Marietta Coliseum and Exhibit Hall Authority Revenue Bonds, Series 1991" (hereinafter referred to as the "Series 1991 Bonds") for the purpose of providing funds to be applied towards the cost of acquiring, constructing and equipping the Project, establishing a reserve fund, paying a portion of interest accruing on the Series 1991 Bonds during construction and paying expenses incident to accomplish the foregoing; and WHEREAS, in order to provide for the terms and conditions of operating and maintaining the Project upon completion of same for the benefit of the citizens of the City, the Authority and the City each desire to execute and deliver this Operating Agreement; and W I T N E S S E T H: In consideration of the respective covenants, representations and agreements hereinafter contained, the Authority and the City agree for the benefit of the bondholders and the citizens of the City as follows: ARTICLE I DEFINITIONS In addition to the words and terms elsewhere defined in this Operating Agreement, the following words and terms as used in this Operating Agreement 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 Parity Bonds" means any revenue bonds of the Authority issued under the Indenture ranking on a parity with the Series 1991 Bonds as -to the lien on the Tax Payments made hereunder. I'Authorityll shall mean the Cobb -Marietta Coliseum and Exhibit Hall Authority, its successors and assigns. "Authority Act" shall mean Georgia Laws 1980, p. 4091 et seq., as amended by Georgia Laws 1981, p. 4350 et seq., Georgia Laws 1986, p. 5549 et seq. and Georgia Laws 1991 p. 3531 et seq. - 3 - c:\docs\p£\c124838.03\opercity.smy (jbv)(dv) "Bondholder" and "bondholder" means the registered owner of any of the outstanding Bonds. 11Bonds11 means the Series 1991 Bonds and any Additional Parity Bonds. "Cities" means collectively the cities of Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna. IsCity" means the City of Smyrna, Georgia. "City Convention Funding Agreements means collectively, the City Convention Funding Agreements by and between the Authority and the cities of Acworth, Austell, Kennesaw, Marietta, Powder Springs and Smyrna, as from time to time amended. IlConvention Funding Agreements's means collectively the City Convention Funding Agreement and the County Convention Funding Agreements. I'County" means Cobb County, Georgia, its successors and assigns. "County Convention Funding Agreement" means the Convention Funding Agreement by and between the Authority and the County, as from time to time amended. 11Financing Document's means the Indenture, Convention Funding Agreements, Resolution and any other document securing repayment of the Bonds including, but not limited to, any bond insurance policy, surety bond, security deed, security agreement, lease or license. "Fiscal Year" means the fiscal year for the Authority ending September 30 of each year or as such fiscal year may be changed by appropriate proceedings of the Authority. "Hotel/Motel Tax" means the excise tax of 8 percent collected by the City upon the furnishing of public accommodations pursuant the Hotel/Motel Tax Law. IsHotel/Motel Tax Laws$ means Title 48, Chapter 13, Article 3 of the Official Code of Georgia Annotated, as amended, authorizing the governing authority of each county within the State of Georgia, within the territorial limits of the special district (created under O.C.G.A. Section 48-13-51) and each municipality in the State of Georgia located within the special district, to levy and collect an excise tax upon the furnishing of public accommodations at the rate of 8 percent. "Indenture's means the Trust Indenture dated December 1, 1991 by and between the Authority and as trustee - 4 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) pursuant to which the Series 1991 Bonds will be issued as the same may be amended or supplemented from time to time. 11MBIA1' means Municipal Bond Investors Assurance Corporation, Armonk, New York, and its successors or assigns. "Operating Agreement" means this Operating Agreement, dated as of December 1, 1991 by and between the Authority and the City. '$Operating Revenue Fundle means the Cobb -Marietta Coliseum and Exhibit Hall Authority Operating Revenue Fund created under a resolution of the Authority. IlPlans and specifications" means the plans, drawings, and specifications for the Project, as prepared by the architects and engineers selected by the Authority. "project" means the multipurpose convention, exhibit hall and meeting facilities and any associated parking areas or improvements described in the Project Report including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Project, and related lands, buildings, structures, fixtures, equipment and personalty appurtenant or convenient to such facilities. "Project Fundle shall mean the Cobb -Marietta Coliseum and Exhibit Hall Authority Project Fund created in the Indenture. "Project Report$' means the report entitled "Cobb -Marietta Convention Center" prepared by Smallwood, Reynolds, Stewart, Stewart & Associates, Inc., dated November, 1991, as the same may be amended from time to time. "Renewal and Expansion Fund'@ means the Renewal and Expansion Fund created by a resolution of the Authority. "Resolution" means that certain resolution adopted by the Authority on 1991 authorizing the execution and delivery of the Indenture and the issuance of the Series 1991 Bonds. "Revenue Bond Law" 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. $'Revenue Pundit means the Cobb -Marietta Coliseum and -Exhibit Hall Authority Revenue Fund created under the Indenture. "Series 1991 Bonds" means the Authority's $48,260,000 aggregate principal amount of Revenue Bonds, Series 1991, authorized to be issued pursuant to the terms of the Indenture. - 5 - c:\docs\pf\c124838.03\opezcity.3my (jbv)(dv) "Sinking Fund1l means the Cobb -Marietta Coliseum and Exhibit Hall Authority Sinking Fund created under the Indenture. 'Tax Payments1l means the payments of the Hotel/Motel Tax required pursuant to the Convention Funding Agreements. "Termll means the term of this Operating Agreement as set forth therein. "Trustee$' means initially Georgia or any successor trustee appointed pursuant to the terms of the Indenture. ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Authority. The Authority makes the following representations as the basis for the undertakings on its part herein contained: (a) The Authority is authorized to enter into the transactions contemplated by this Operating Agreement and to carry out its obligations hereunder, has been duly authorized to execute and deliver this Operating Agreement, 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 Bonds, the execution and delivery of this Operating Agreement and the Indenture, the adoption of the Resolution, and the performance of all covenants and agreements of the Authority contained in this Operating Agreement and the Indenture and of all other acts and things required under the Constitution and laws of the State of Georgia to make this Operating Agreement 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; and (c) 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 Operating Agreement or the ability of the Authority to comply with any of its obligations under this Operating Agreement or the Indenture. Section 2.2 Representations and Agreements by the City. The City makes the following representations and agreements: c:\docs\pf\c124838.03\opercity.smy (jbw)(dv) (a) The City is a municipal corporation organized and existing under the laws of the State of Georgia having power to enter into and execute and deliver this Operating Agreement, and, by proper action of its governing body, has authorized the execution and delivery of this Operating Agreement 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 Operating Agreement, 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 Operating Agreement by it except as shall have been obtained as of the date hereof; (b) This Operating Agreement has been duly executed and delivered by the City and constitutes its legal, valid, and binding obligation enforceable in accordance with its terms, except as enforcement may be limited by the application of equitable principles; (c) The authorization, execution, delivery, and performance by the City of this Operating Agreement and compliance by the City with the provisions hereof do not violate the Constitution or the laws of the State of Georgia relating to the City 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; (d) There is no litigation or proceeding pending, or to the knowledge of the City threatened, against the City or any other person having a material adverse affect on the right of the City to execute this Operating Agreement or its ability to comply with any of its obligations under this Operating Agreement; and (e) The City has, pursuant to an ordinance duly adopted, authorized the levy and collection of the Hotel/Motel Tax and the moneys derived from such levy shall be used and applied as provided in the Convention Funding Agreement. ARTICLE III ISSUANCE OF BONDS; CONSTRUCTION OF THE PROJECT; Section 3.1 Agreement to Issue Bonds; Application of Bond Proceeds. The Authority agrees that it will promptly adopt the Resolution authorizing and approving the issuance of the Bonds, the execution and delivery of the Indenture, and proceed with the validation, issuance and sale of the Bonds. The Authority agrees - 7 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) to furnish to the City a fully executed copy of the Financing Documents as soon as practicable after the execution and delivery thereof. The net proceeds derived from the sale of the Bonds shall be deposited into the funds established pursuant to the Indenture and used as provided therein. In the event the proceeds from the sale of the Bonds are insufficient to complete the Project, the Authority agrees to issue Additional Parity Bonds as provided in the Indenture to complete the Project. Section 3.2 Agreement to Construct or Acquire the Project. (a) The Authority hereby agrees to acquire, construct and equip the Project substantially in accordance with the Project Report and related Plans and Specifications. The Project Report and Plans and Specifications are hereby incorporated herein and made a part hereof. The Authority shall obtain or cause to be obtained all necessary approvals from any and all governmental agencies requisite to any undertaking with respect to capital improvements and any capital improvements shall be acquired, constructed and installed in compliance with all federal, state and local laws, ordinances and regulations applicable thereto. The Authority 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, as may be necessary or advisable, to assure that the construction and the installation of the Project 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 be deposited into the Project Fund and used and applied as provided in the Indenture. (b) The Authority shall acquire, construct, install and equip, or cause to be acquired, constructed, installed and equipped, any capital improvements 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 Authority excepted; but if for any reason such acquisition, construction, installation and equipping is not completed by any specified date there shall be no resulting liability on the part of the Authority. Section 3.3 Delivery of Plans and Specifications. In connection with the construction of the Project: (a) Before beginning physical construction on the Project, the Authority shall, upon the request of the City, provide the City with a complete set of Plans and Specifications for such physical construction of the Project. If physical construction of the - 8 - c:\docs\pf\c124838.03\opercity.3my (jbv)(dv) Project is undertaken in phases, then the requirements of this paragraph shall apply to each phase. (b) The Authority or the Project Supervisor on behalf of the Authority may direct or consent to changes in the work or scope of work provided for by such Plans and Specifications. (c) Promptly after the Authority receives as -built Plans and Specifications for the Project, the Authority shall, upon request of the City, provide the City with a complete set of as -built Plans and Specifications. Section 3.4 Disbursement of Moneys in the Project Fund; Compliance with the Indenture. The proceeds from the sale of the Bonds deposited to the Project Fund under the Indenture shall be disbursed for the purposes and in accordance with the terms and conditions set forth therein. In the event the Authority issues Additional Parity Bonds, the net proceeds derived from the sale of such Additional Parity Bonds shall be deposited to a separate account of the Project Fund created under the Indenture and disbursed in accordance with the terms and conditions set forth therein. ARTICLE IV OPERATION OF PROJECT; CREATION OF FUNDS; FLOW OF FUNDS Section 4.1 Operation of the Project; Creation of Funds; Flow of Funds. The Authority shall cause the Project to be operated and maintained economically, efficiently and consistent with good business practices and in compliance with the terms of the Authority Act. The Authority shall at all times maintain the Project in good condition and repair and shall promptly repair, replace or restore any damage or destruction to the Project or cause the proceeds from insurance from such damage or destruction to be applied in accordance with the terms hereof. It shall also cause the Project to be maintained and operated so as to make its benefits generally available to the residents of the City and it shall establish and maintain, or cause to be established and maintained, a schedule of rates, fees and charges for the use of the facilities constituting the Project in accordance with the terms hereof. The Authority agrees to create and maintain a special fund designated as "Cobb -Marietta Coliseum and Exhibit Hall Authority- -Operating Revenue Fund" (the "Operating Revenue Fund"). All revenues derived from the ownership or operation of the Project and other properties and facilities in connection therewith (including payments received by the Authority from the Trustee under the Indenture) shall be collected by the Authority and deposited promptly with the depository for the Operating Revenue Fund. The c:\doc3\pf\c124838.03\opercity.smy (jbw)(dv) Operating Revenue Fund shall be maintained separate and apart from other funds of the Authority. Moneys deposited to the Operating Revenue Fund shall be used and applied in the following order of priority: (i) First, to the payment of excess Hotel/Motel Tax due the Cities pursuant to Section 4.4 hereof; and (ii) Second, to the payment of operating and maintenance expenses set forth in Section 4.2 hereof; and (iii) Third, to the payment of excess Hotel/Motel Tax due the County pursuant to Section 4.4 of the Operating Agreement applicable to the County; and (iv) Fourth, to the payment of collection fees due the County and the Cities (excluding the City of Marietta) pursuant to Section 4.5 of the respective Operating Agreements; and (v) Fifth, to the payment of any amounts required under agreements for the promotion of tourism, convention or trade shows in the City, with the State of Georgia, a department of the State of Georgia, a convention and visitor's bureau created by local act of the Georgia General Assembly for a municipality or county, a private sector non-profit organization or some combination of the foregoing; and (vi) Sixth, for deposit to the Renewal and Expansion Fund hereinafter authorized. In the event moneys on deposit in the Operating Revenue Fund are not sufficient to pay when due either the excess Hotel/Motel Tax or the collection fee, payment of such amounts shall be made pro- rata based on the amount due the Cities (excluding the City of Marietta) in the case of a deficiency in payments due under (i) above and the County and each of the Cities (excluding the City of Marietta) in the case of a deficiency,in the payments required in (iv) above. The Authority agrees to create and maintain a special fund designated as "Cobb -Marietta Coliseum and Exhibit Hall Authority- -Renewal and Expansion Fund" (the "Renewal and Expansion Fund"). All of the moneys then remaining in the Operating Revenue Fund (except for a working capital reserve in an amount not to exceed one -twelfth of the current Fiscal Year's estimated operating and maintenance costs) after paying the costs set forth in (i), (ii), (iii), (iv), and (v) above shall be deposited to the Renewal and Expansion Fund. Expenditures shall be made from the Renewal and Expansion Fund only for the purpose of: (a) in case of an emergency having a major effect upon the Project caused by some extraordinary occurrence which makes it necessary to use such funds for the - 10 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) alleviation or removal of such effects and an insufficiency of moneys exists in the Operating Revenue Fund to meet such emergency; (b) making replacements, additions, expansions, renovations and improvements and acquiring equipment and paying the cost of any architectural or engineering studies, surveys or plans and specifications pertaining to the future development or expansion of the Project deemed to be reasonable and in the best interest of the Authority; (c) funding any reserve fund established in connection with the issuance of Additional Bonds or paying the premium on any surety bond issued to fund any reserve fund established in connection with the issuance of Additional Bonds; (d) correcting any deficiency in the monthly payments required to be made to the Sinking Fund under the Indenture; (e) paying principal of and interest on any revenue bonds then outstanding and falling due at any time for the payment of which money is not available in the sinking fund securing the payment of same and the interest thereon; (f) making payments to the County or the Cities of amounts heretofore due but unpaid pursuant to the Operating Agreement; (g) making payments to the County or the Cities (except the City of Marietta) of amounts in excess of the balance required to be maintained in the Renewal and Expansion Fund from time to time as hereinafter provided, or (h) making payments for operating and maintaining the Project to the extent moneys in the Operating Revenue Fund are not sufficient for such purpose. The Authority hereby agrees to withdraw any moneys on deposit in the Renewal and Expansion Fund and transfer such moneys to the Debt Service Account or the Debt Service Reserve Account of the Sinking Fund (as defined in the Indenture) in the event that in any month there is a deficiency in the amount required to be on deposit in the Debt Service Account or the Debt Service Reserve Account of the Sinking Fund. The Authority shall also withdraw any moneys on deposit in the Renewal and Expansion Fund to make payments due the City pursuant to Sections 4.4 and 4.5 hereof in the event moneys in the Operating Revenue Fund are insufficient to make such payments when due; provided, however, no amounts shall be withdrawn from the Renewal and Expansion Fund to make such payments to the City in any month in which there is a deficiency in the Sinking Fund requiring a withdrawal from the Renewal and Expansion Fund. No withdrawal shall be made from the Renewal and Expansion Fund except as provided below unless (i) the balance in the Renewal and Expansion Fund is greater than $2,000,000, or (ii) the ratio of total Tax Payments received by the Trustee less amounts paid the Cities pursuant to Section 4.5 of the applicable Operating Agreement for the preceding Fiscal Year over the maximum annual debt service on the Bonds in any succeeding sinking fund year exceeds 1.5. If the debt service coverage calculated as provided in (ii) above is less than 1.5, then withdrawals which would cause the balance in the Renewal and Expansion Fund to be less than $2,000,000 shall only be made for the purposes set forth in subparts (a), (d) and (h) above or subpart (b) above so long as MBIA shall have consented to expenditures for such purpose. c:\doc3\pf\c124838.03\opercity.smy (jbv)(dv) No moneys shall be expended from the Renewal and Expansion Fund for rebating excess moneys to the Cities and the City as hereinafter provided for a period ending 10 years from the date hereof. From and after such date the Authority may, in its sole discretion, determine that amounts in excess of $2,000,000 on deposit in the Renewal and Expansion Fund are excess funds not needed for expenditures authorized to be made from the Renewal and Expansion Fund. In the event the Authority so determines that any amounts in the Renewal and Expansion Fund are excess funds, then any such amount determined to be excess funds shall be rebated to the Cities (except the City of Marietta) and the County. The amount to be rebated to the City as excess funds shall be calculated based on a fraction the numerator of which is the total Tax Payments theretofore made by the City (net of all amounts received as excess Hotel/Motel Tax as provided in Section 4.4 hereof) and the denominator of which is all Tax Payments received by the Authority from the County and the Cities (excluding the City of Marietta and net of all amounts previously received by the Cities and the County as excess Hotel/Motel Tax as provided above) . Any payments received by the City hereunder shall, to the extent required, be expended in accordance with the Hotel/Motel Tax Law. Section 4.2 Operating Expenses. The Authority shall pay or cause to be paid the reasonable and necessary costs of operating, maintaining and repairing the Project, including salaries, wages, employee benefits, the payment of any contractual obligations incurred pertaining to the operation of the Project, cost of materials and supplies, rentals of leased property, real or personal, insurance premiums, audit fees, any incidental expenses of the Authority and such other charges as may properly be made for the purpose of operating, maintaining and repairing the Project in accordance with sound business practice. Section 4.3 Operation of the Project; Rates for Use of the Project. The Authority covenants that it will operate the Project, or cause the Project to be operated, economically and efficiently in accordance with good business practices and in compliance with the terms of the Authority Act. The Authority shall at all times maintain the Project in good condition and shall promptly repair, replace and restore any damage to or destruction of the Project. The Authority covenants that it will establish rentals, fees, prices and other charges which any tenant, lessee, licensee, user, exhibitor, concessionaire, franchisee or vendor shall pay to the Authority for the use of the Project or any facilities or part thereof and for the goods and services provided by the Authority in connection with such use. The Authority covenants that such rentals, fees, prices and other charges shall be so fixed and adjusted in respect to the aggregate thereof from the Project or facilities or any part thereof and from the goods and services provided by the Authority in connection with any use of the Project, so that the sum of operating revenues and payments received from the Trustee under the Indenture will be sufficient - 12 - c:\docs\pf\c124838.03\opercity.smy (jbw)(dv) in each year to pay all costs of operation and maintenance of the Project. The Authority covenants that it will not permit the use of the Project by any tenant, lessee, licensee, user, exhibitor, concessionaire, franchisee or vendor at rentals, fees, prices and other charges which shall in any manner impair its obligation under the foregoing covenants. Section 4.4 Payment of Excess Hotel/Motel Tax. The Authority shall pay to the City an amount equal to 40 percent of the Hotel/Motel Tax paid by the City to the Authority. The payment required hereunder shall be made from moneys on deposit in the Operating Revenue Fund from time to time. The payments required under this Section 4.4 shall be made by the Authority prior to the end of each calendar month in which a Tax Payment is made. All moneys received by the City hereunder shall, to the extent necessary, be expended in accordance with the Hotel/Motel Tax Law. In the event that an increase in Hotel/Motel Tax is payable due to an expansion of the corporate limits of the city as provided in Section 4.3 of the City Convention Funding Agreement , the amount of excess,Hotel/Motel Tax payable to the City hereunder shall be increased to an amount equal to 62.5 percent of the Hotel/Motel Tax paid which is attributable solely to the Hotel/Motel Tax collected within the additional area included within the City. Section 4.5 Collection Fee. The Authority shall pay to the City an annual collection fee for costs incurred by the City in connection with collecting and administering the Hotel/Motel Tax. The collection fee due hereunder shall be payable annually within 30 days of the end of each Fiscal Year from moneys on deposit in the Renewal and Expansion Fund or the Operating Revenue Fund. All moneys received by the City hereunder shall, to the extent necessary, be expended in accordance with the Hotel/Motel Tax Law. The collection fee payable hereunder shall be in an amount equal to the product of all Tax Payments made by the City during the Fiscal Year less amounts paid to the City pursuant to Section 4.4 hereof times 5 percent. ARTICLE V SPECIAL COVENANTS OF CITY The City covenants and agrees with the Authority as follows: Section 5.1 Budget Plan. The City shall adopt a budget plan specifying how the expenditure requirements of O.C.G.A. 48- 13-51(a)(5.1) will be met. Prior to the adoption of the budget plan, the City shall obtain and the Authority shall provide a budget for expenditures to be made by the Authority and such budget shall be a part of the City's budget plan. Additionally, the determination of how the expenditure requirement was met for each Fiscal Year shall be prominently reflected in the audit report of - 13 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) the City. The calculation for determining whether the expenditure requirements have been met shall be determined by (i) calculating the amount of funds expended or contractually committed for expenditures during the Fiscal Year; and (ii) expressing such amount as a percentage of Hotel/Motel Tax receipts during the Fiscal Year. Section 5.2 Reports to Department of Community Affairs. The City shall annually file with the Department of Community Affairs a report specifying the rate of taxation and amounts collected and expended pursuant to the Hotel/Motel Tax Law and any other information which may be required by the Department of Community Affairs pursuant to the Hotel/Motel Tax Law. ARTICLE VI SPECIAL COVENANTS AND AGREEMENTS OF THE AUTHORITY The Authority hereby covenants and agrees with the City as follows: Section 6.1 Release Covenant. The Authority covenants and agrees that the City shall not be liable for, all claims by or on behalf of any person arising from: (1) the conduct, operation or management of, or from any work or thing done in or on, the Project; (ii) any condition of the Project, (iii) any act of negligence of the Authority or of any agents, contractors, servants, employees or licensees of the Authority or of any lessee or tenant of the Authority; and (iv) 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 Project and the Authority shall hold the City harmless from any such claim. Section 6.2 Financial Statements. That the Authority will have a certified audit performed at the end of each Fiscal Year and will cause such audit to be completed within 120 days of the end of the Fiscal Year. The Authority will furnish the City with a copy of its audited financial statements promptly upon completion of the annual audit. Section 6.3 Financial Information. That the Authority shall furnish to the City upon request any monthly financial statements prepared by the Authority's staff for presentation to the Authority. If requested by the City, the Authority will furnish to the City unaudited monthly financial statements showing income and expenses of the Authority in reasonable detail. Section 6.4 Rules and Regulations. That it will enforce or cause to be enforced reasonable rules and regulations governing the Project and the operation thereof, and that all compensation, salaries, fees and wages paid or caused to be paid by it in - 14 - c:\doc3\pf\c124838.03\opercity.smy (jbv)(dv) connection with the operation, repair and maintenance of the Project 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 6.5 Contracting Procedure. That any contract re- lating to the acquisition, construction, installation, extension, improvement, maintenance or repair of the Project shall provide for retention of amounts due thereunder in accordance with applicable law. Section 6.6 Granting of Easements; Sale. The Authority may at any time or times cause to be granted, whether to itself or otherwise, easements, licenses, rights -of -way (temporary or 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 Project and 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 Project with or without consideration. In connection with any such grant or any sale permitted hereunder, the Authority 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 6.7 Discharge of Liens. The Authority covenants that it will promptly pay, or cause to be discharged, or will make adequate provisions to satisfy and discharge, within 60 days after the same shall accrue, all lawful claims and demands, which, if unpaid, might by law become a lien upon the Project, or any part thereof, or upon the revenues therefrom; provided, however, that nothing contained in this Section shall require the Authority to pay, or cause to be discharged, or make provision for, any such lien or charge, so long as the validity thereof shall be contested in good faith with due diligence and by appropriate legal proceedings. Section 6.8 Maintenance of Insurance; Damage; Destruction or Condemnation of Project. The Authority covenants that it will carry adequate public liability, fidelity, and property insurance including but not limited to the following: (a) comprehensive general liability insurance on an occurrence or claims -made basis, with limits per policy period in - 15 - c:\docs\pf\c124838.03\opercity.3my (jbv)(dv) an amount not less than the amount carried by entities engaged in similar enterprises of like size, with respect to the Project; and (b) the following properties will at all times be insured in an amount customarily insured against by entities engaged in similar enterprises and such insurance shall be maintained with a responsible insurance company, or companies, authorized and qualified under the laws of the State to assume the risks thereof against loss or damage thereto from the following causes: (i) the Project, including all machinery and equipment therein, against loss or damage by fire, lightning, tornado, winds, explosions or similar catastrophes; (ii) all other property, against loss or damage by fire or lightning if the same is not fireproof, and against loss or damage from other causes customarily insured against by entities engaged in similar enterprises of like size; and (c) fidelity bonds or policies for the benefit of the Authority, as obligee, covering all agents, employees and officials of the Authority whose duties involve the receipt, custody, investment or disbursement of revenues of the Project in an amount not less than the amount carried by entities engaged in similar enterprises of like size; and (d) during construction of the Project, or any renewal, replacement, addition, expansion or improvement to the Project, performance and payment bonds securing the Authority against default by any person with whom the Authority enters into any contract for the construction of the Project, or for any renewal, replacement, addition, expansion or improvements to the Project, in the amount and to the extent required by law. All such policies shall be for the benefit of and made payable to the Authority. The proceeds of the coverage under item (b) shall be available for and shall be applied to the repair and replacement of the damaged or destroyed property; provided, that in the event the Authority shall obtain a certification of an independent architect or engineer to the effect that the Project cannot be repaired to a condition permitting its operation substantially at the level of operation prior to such damage or destruction, then the proceeds of such coverage shall be deposited to the Sinking Fund and used to pay principal and interest on the Bonds then outstanding or, if such certification is to the effect that the Project may be operated substantially at the level of operation prior to such damage or destruction without such repair or replacement, then the proceeds may be deposited to the Sinking Fund and used to pay the principal of or interest on the Bonds on the next succeeding - 16 - c:\doc3\pf\c124838.03\opercity.smy (jbw)(dv) payment date. Except to the extent such proceeds are payable to third parties, the proceeds of the coverage under item (d) shall be available for and shall, to the extent necessary, be applied to the completion of the Project and of any renewal, replacement, addition, extension, or improvement to the Project in connection with which such coverage was obtained but to the extent not so used shall be deposited in the Sinking Fund and used to pay the principal of or interest on the Bonds on the next succeeding payment date. All insurance policies or other evidences of the coverage required hereunder shall be open to inspection of the City and its respective duly authorized agents, accountants, attorneys, experts and representatives at reasonable times and upon reasonable request. In the event the Project or any portion thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, the Authority shall apply the proceeds of any such condemnation award to restore the Project to substantially the same condition as before such taking; provided, that if the Authority shall obtain a certification of an independent architect or engineer to the effect that the Project cannot be restored to a condition permitting its operation at substantially the level of operation prior to such taking, then the proceeds of such condemnation award shall be deposited to the Sinking Fund and used to pay principal and interest on any Bonds then outstanding or, if such certification is to the effect that the Project may be operated substantially at the level of operation prior to such taking without such restoration, then the proceeds of such condemnation award may be deposited to the Sinking Fund and used to pay the principal of or interest on the Bonds on the next succeeding payment date. Section 6.9 Books and Records. The Authority covenants that it will keep the funds and accounts of the Project separate from all other funds and accounts of the Authority, or any of its departments, and that it will keep accurate records and accounts of all items of cost and all expenditures relating to the Project, and of the revenues collected and the application thereof, and that it will keep said records and accounts with respect to its physical properties in such manner that it will be possible at all times to identify both the amounts and the terms of all additions and retirements. The City and its respective agents, accountants, attorneys, engineers, experts and representatives shall have the right, at reasonable times and upon reasonable notice, to inspect all books and records of the Authority, or in the Authority's possession, relating to the Project. Section 6.10 Access to the Project. The Authority agrees that the City and its duly authorized agents, attorneys, experts, - 17 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) engineers, accountants and representatives shall have the right to inspect the Project at all reasonable times and on reasonable notice. Section 6.11 Sale of the Project. So long as any of the Bonds shall be outstanding and unpaid, the Authority will not encumber the Project or any part thereof, and it will not sell or otherwise dispose of the Project or any integral part thereof, except it may sell the Project as a whole, or substantially as a whole, to the State, the County or the Cities or to any other public body or authority authorized to own or operate the Project if the proceeds of such sale are at least sufficient to provide for the defeasance of all such Bonds in accordance with Article 8 of the Indenture, and provided that the proceeds of any such sale to the extent necessary shall be deposited with the Trustee in trust and applied by it to the defeasance of all such Bonds in accordance with Article 8. Nothing contained herein, however, shall preclude sale of a part of the Project (a) in the ordinary course of business with respect to equipment, or (b) where (i) the sale would not, as certified by an authorized representative of the Authority, in any way materially adversely affect the operations or revenue producing capability of the Project, and (ii) the proceeds from such sale are used for additions, extensions or improvements to the Project, or deposited into the Operating Revenue Fund. Section 6.12 Employment of Project Supervisor. The Authority will employ a Project Supervisor during the construction of the Project and any additions, extensions or improvements thereof for the purpose of supervising such construction of the Project and such additions, extensions and improvements thereof. ARTICLE VII MISCELLANEOUS Section 7.1 Independent Contractor. In performing this Operating Agreement, the Authority is acting as an independent contractor. The City shall not have any power to control the means, methods or techniques by which the Authority undertakes the activities or projects contemplated by this Operating Agreement, except as may be otherwise expressly provided in this Operating Agreement. Section 7.2 No Interest for City. By virtue of this Operating Agreement, the City shall not have or hereafter acquire any legal or equitable interest of any nature in, under or to (i) any part of the property, real or personal, tangible or intangible, comprising or used in the Project, (ii) the leases, licenses, contracts, accounts or other intangible rights or obligations acquired or incurred by the Authority in connection with the acquisition, construction, improvement, equipping or operation of - 18 - c:\docs\pf\c124838.03\opezcity.3my (jbv)(dv) the Project, or (iii) the operating revenues of the Project except as otherwise agreed to between the City and the Authority. Section 7.3 Third Party Beneficiaries. Nothing in this Operating Agreement is intended or shall be deemed to confer any interest in this Operating Agreement or benefit on persons not parties to this Operating Agreement. Section 7.4 No Additional Waiver Implied by One Waiver. If any agreement contained in this Operating Agreement 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. Section 7.5 Amendment. The Operating Agreement may be amended in any manner mutually agreed by the parties hereto. Any amendment must be in writing signed by each of the parties hereto. No consent or agreement of any person not a party to this Operating Agreement (including bondholders) shall be required for amendment of this Operating Agreement. Section 7.6 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 to the parties hereto at the following addresses or such other address designated by such party in writing: Authority: [TO BE PROVIDED] City: Mayor City of Smyrna 1306 Bank Street Smyrna, Georgia 30081 with a copy to: City Manager City of Smyrna 1306 Bank Street Smyrna, Georgia 30081 Section 7.7 Binding Effect. This Operating Agreement shall inure to the benefit of and shall be binding upon the Authority, the City and their respective successors and assigns, subject, however, to the limitations contained in this Operating Agreement. Section 7.8 Severability. If any provision of this Operating Agreement shall be held invalid or unenforceable by any - 19 - c:\docs\pf\c124838.03\opercity.smy (jbw)(dv) court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 7.9 Execution Counterparts. This Operating Agreement 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 7.10 Captions. The captions and headings in this Operating Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this Operating Agreement. Section 7.11 Law Governing Operation Agreement. This Operating Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia. - 20 - c:\docs\pf\c124838.03\opercity.smy (jbv)(dv) IN WITNESS WHEREOF, the Authority and the City have caused this Operating Agreement to be executed as of the 1st day of December, 1991, 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• (S E A L) Attest: Secretary -Treasurer COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY By: Chairman - 21 - c:\doc3\pf\c124838.03\opercity.smy (jbv)(dv) THE CITY• (S E A L) Attest: City Clerk CITY OF SMYRNA, GEORGIA By: Mayor - 22 - c:\docs\pf\c124838.03\opercity.smy (jbw)(dv)