09-06-1994 Regular MeetingSeptember 6, 1994
The regularly scheduled meeting of Mayor and Council was held September 6, 1994, at Smyrna City
Hall. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m.
All council members were present. Also present was City Administrator Bob Thomson, City Clerk
Melinda Dameron, City Attorney Charles E. Camp, Fire Chief Larry Williams, Finance Director Jim
Triplett, Assistant Public Works Director Ray Curtis, Police Chief Stan Hook, Library Director Laurel
Best, Parks and Recreation Director Steve Ciaccio, Community Relations Director Kathie Barton, Clean
and Beautiful Coordinator Ann Kirk, Personnel Director Mary Ann White, Chief Building Inspector
Scott Stokes and representatives of the press.
Invocation was given by Jim Mitchell, pastor of the Smyrna United Methodist Church, followed by the
pledge to the flag.
Kathie Barton introduced Mrs. Georgia 1994, Suzanne Bellisario Burger, who was a former Mrs. Jonquil.
Mrs. Burger thanked the Mayor and Council for allowing her to be present tonight and stated she will
promote the City on her many televised appearances during the coming year.
Mayor Bacon asked Jim Hawkins to read a proclamation in honor of the American Business Women's
Day. Mayor Bacon then presented the proclamation to Darlene Andrews who expressed her appreciation
to the Mayor and Council for their support of the American Business Women's Association.
CITIZEN'S INPUT:
Mr. Tommy Carmack, resident of Church Street, appealed to the Mayor and Council for an extension
of a temporary permit for a tarp (considered an accessory structure) which would allow him to complete
the restoration of an antique vehicle. The permit was originally granted in December of 1993 and was
for a period of six months. Mr. Carmack stated he thought the restoration would be completed within
six months, but that it is not. Mr. Hawkins responded he would not support the extension of the permit.
Mayor Bacon asked that the issue be reviewed by the Community Development Department with a
recommendation brought back to the Council.
PUBLIC HEARINGS:
(A) Variance Requests - Accessory Structure - 6218 Traymore Trace - Reduce Side Yard
Setback from 10 feet to 3 feet and Increase Height Restriction from 15 feet to 20 feet
Mr. Thomson stated the variance was for an accessory structure at 6218 Traymore Trace to allow the
property owner to build a garage workshop. Mr. Thomson stated in Mr. Lillie's letter of hardship he
explained the height variance is to allow the roof pitch on the garage to match that of the house. The
variance request for the side yard setback is due to an existing underground sprinkler system. The
application for the variance includes letters from Mr. Ray Redden, owner of the adjacent property, state
he has no objection to the structure as planned.
Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the
granting of these variances. There was no opposition.
Councilman Wood asked Mr. Thom Lillie to come forward and explain what he planned to do at 6218
Traymore Trace. Mr. Lillie explained he wanted to build a garage/workshop, 20' x 25' in the back yard
and stated he wanted to move it to three feet from the line in order to save some paper birch trees and
explained there is a natural buffer between his property and the adjoining property.
Mr. Wood stated he understood the existing sewer line prevents his building the workshop in a location
that would allow the 10 foot setback to be possible.
Mr. Wood made a motion that the request for variances at 6218 Traymore Trace to reduce the side yard
setback from 10 feet to 3 feet and to increase the height restriction from 15 feet to 20 feet be approved.
Councilman Lnenicka seconded the motion. Motion was approved 7-0.
(B) Rezoning Request - 2.65 Acres on Hargrove Road from G.C. to O.D.
Mr. Thomson stated Mr. Barry McWhirter is requesting the rezoning in order to build a 104,000 square
foot self -storage building that will also be climate controlled. He further stated that the site has 3.6 acres
presently zoned General Commercial and Mr. McWhirter wants to leave .95 acres out of the zoning
September 6, 1994 meeting - continued
request to be sold as an out parcel at a later date.
Mayor Bacon asked Mr. McWhirter and Attorney John Moore to come forward. He also stated this is
a public hearing and asked if there was anyone present in opposition to the granting of the rezoning
request of 2.65 acres on Hargrove Road. There was no opposition.
Mr. Moore presented a drawing of the proposed self -storage building and explained that the property in
question was originally in the County and was annexed into the City under the unincorporated island
provision of the Code of Georgia. He further stated the property was zoned General Commercial in the
County and the city ordinance stipulates that zoning would be in effect after the annexation. Mr. Moore
is requesting the property be rezoned to Office Distribution to allow for the building of a self -storage
building. Mr. Moore stated the building would be a climate controlled public storage building that will
be heated and cooled and is not a metal building. He stated the exterior of the buildings will be brick,
architectural brick, or drivet stucco or a combination of both and there will not be any metal except for
some of the doors and the trim. He indicated the property falls back away from Hargrove Road about
30 feet, from front to rear, and the only portion of the building that will be visible from Hargrove Road
will possibly be two of the four stories. Mr. Moore stated one of the items requested in the rezoning
application is a 50 foot setback from Hargrove Road instead of 75 feet and a reduction in the number of
required parking spaces from 42 as required by the City to 27 which is indicated on the site plans.
Mr. Moore also stated a landscape plan will be submitted to the city for the property. He indicated the
landscaping presented on the drawing is actually how the property will be landscaped.
Councilman Newcomb asked Mr. McWhirter to briefly explain how many units would be in the building,
how many small units and the approximate rent of the units. Mr. McWhirter explained they envision 764
units, and less than 12% of those will be 5' by 10' or smaller, so approximately 88% would be 10' x 10'
or larger and will go up to as large as 10' x 30', and the price ranges for the 10' x 10' unit would be
$95/month and the smallest would rent for approximately $35/month.
Mayor Bacon asked if there were any existing climate controlled units in Cobb County and Mr.
McWhirter replied the Ark Storage on US 41 at the end of Dobbins' runway has converted 40 units to
air conditioned units, and there is a project on Johnson Ferry Road near Merchant's Walk that is climate
controlled but the rates charged there are higher than what is projected for Smyrna. Mr. McWhirter
explained they expect half of their clients to be commercial clients.
Councilman Wood asked about the exterior of the buildings and Mr. McWhirter responded the first floor
will be either architectural block, split -faced block, or brick or a combination of both and the upper two
stories will be a drivet or stucco and on the ends of the building will be either be brick or block and the
rear building, which is four -stories will be stucco and the office will be located in the front building and
the resident manager's office will be located in the back building. Mr. McWhirter stated the office hours
will be 9:00 a.m. to 6:00 p.m. Monday through Saturday, and 1:00 p.m. to 5:00 p.m. on Sunday (office
hours) and the building hours will be 7:00 a.m. until 8:00 p.m. He then stated the front building will
have approximately eight roll -up doors and the back building will have approximately 16 doors on the
front and 16 on the back which backs up to the rear parking lot of Sonny's Barbecue Restaurant.
Mayor Bacon stated the City had received a letter from the Marriott Residence Inn stating they have no
objection to this type of building being built at this location.
Councilman Newcomb commended Mr. McWhirter for his cooperation in resolving all questions
pertaining to the building proposed for this location and asked about signage. Mr. McWhirter explained
there will be some signage on the road and on the building but it has not yet been designed.
Councilman Patrick made a motion that the rezoning request for 2.65 acres on Hargrove Road from G.C.
to O.D. be approved with the following stipulations:
1. That the lot be subdivided to remove the General Commercial parcel from the O.D.,
Office Distribution.
2. That the front yard setback be reduced from 75 feet to 50 feet.
3. That the required parking spaces be reduced from 42 spaces to 27 spaces.
Councilman Scoggins seconded the motion. Motion was approved 6-1 with Mr. Lnenicka opposed.
(C) Business License Application - A.A.C.C. Security Systems - 10 Perimeter Way, Suite
B 280, Atlanta, Georgia
Sentember 6. 1994 meeting - continued
Mr. Thomson stated Mr. Clifton Wayne Totty will be the agent for this establishment as.well as the
general manager for the business and stated he has been given a copy of the ordinance governing this type
of business. He further stated Mr. Totty had indicated he would abide by the City ordinances as they
pertain to this type of business.
Mayor Bacon asked Mr. Totty to step forward and asked if there was anyone present in opposition to the
granting of this business license request. There was no opposition.
Councilman Wood asked Mr. Totty to briefly explain to the Council what A.A.C.C. Security Systems
will be doing in the way of business in the City of Smyrna.
Mr. Totty explained A.A.C.C. (Alert America Security Systems) markets combination burglar alarms,
fire alarms and emergency medical alarms. He stated his business is licensed and bonded for every
location from which they conduct business and this is an expansion from their Nashville and Memphis,
Tennessee locations and they also have an office in Florida. Mr. Totty explained their office is located
in the Cumberland Mall area but is approximately 200 feet outside the city limits.
Councilman Wood made a motion the business license request for A.A.C.C. Security Systems be
approved. Councilman Hawkins seconded the motion. Motion was approved 7-0.
(D) Variance Requests - 2720 South Cobb Drive - Two Buildings on One Lot and Reduction
of Front Yard Setback from 75 feet to 10 feet
Mr. Thomson stated the request is for a 2400 square foot building for the Boy Scout Troop 11 that meets
at Our Savior Lutheran Church.
Mayor Bacon asked Pastor Baumgarten to come forward and asked if there was anyone present in
opposition to the granting of these variance requests. There was no opposition.
Pastor Baumgarten stated the boy scout troop has outgrown its present building and needs the additional
space for Boy Scout Troop 11. The building setback from South Cobb Drive will be in line with the
existing sanctuary.
Councilman Cramer made a motion the variance requests for 2720 South Cobb Drive to allow two
buildings on one lot and a reduction of the front yard setback on South Cobb Drive from 75 feet to 10
feet be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0.
FORMAL BUSINESS:
(A) Appointment to Housing Authority - Ward 5
Councilman Cramer asked that this item be tabled until the next meeting of Council.
(B) Approval to Redistrict Property at 2261 Dixie Avenue from Ward 5 to Ward 3
Mr. Thomson stated Cobb Elections has requested that the City redistrict the small parcel of property at
2261 Dixie Avenue, Land Lot 492, Parcels 49, 50, 51 and 59, be moved from Ward 5 to Ward 3 to
avoid the need of creating an additional subprecinct in Ward 5.
Councilman Scoggins stated this property was annexed into the City in 1990. The recent annexation of
IGO Church property now makes this parcel also contiguous to Ward 3, and in order to prevent the
creation of a subprecinct, Cobb Elections has requested the redistricting of the property. Councilman
Scoggins made a motion to approve the redistricting of property in Land Lot 492, Parcels 49, 50, 51 and
59, Barrow Enterprises, Inc., 2261 Dixie Avenue from Ward 5 to Ward 3. Councilman Cramer
seconded the motion. Motion was approved 7-0.
(C) Appointment to Clean and Beautiful Commission - Ward 6
Councilman Lnenicka stated the vacancy on the Clean and Beautiful Commission for Ward 6 was created
by the hiring of Ann Kirk as the City's Clean and Beautiful Coordinator and appointed Mr. Sims
Hawkins to serve the unexpired term of Ms. Kirk. Mr. Lnenicka stated Mr. Hawkins term of
appointment will expire in December of 1994. Councilman Cramer seconded the motion. Motion was
approved 7-0.
September 6, 1994 meeting - continued
(D) Amendment to GMEBS Retirement Plan
Councilman Wood stated the amendment will allow for the addition of the Judges and Solicitor to our
retirement plan and will adjust the monthly benefit for elected officials from $30/month to $37/month for
each year of service. Mr. Wood stated the ordinance would be amended by striking Section 35, Article
2 and replacing it with a new Section 35 to read as follows. Mr. Wood then read the resolution (copy
of resolution is attached and is a part of the official minutes of this meeting) and made a motion the
amendment to the GMEBS Retirement Plan be approved. Councilman Hawkins seconded the motion.
Motion was approved 7-0.
(E) Approve Resolution Asking Voters to Approve City Leasing A Public Safety Facility
Councilman Wood read the resolution which will determine whether the City of Smyrna shall be allowed
to incur an unbonded indebtedness in the maximum principal amount of $7,650,000 for the construction
of a new jail. Mr. Wood read the Resolution containing the following question which will be placed on
the November 8, 1994 General Election ballot:
"Shall the City of Smyrna be authorized to enter a lease (containing an option to purchase
by the City of Smyrna for $100.00 at the end of such lease) with a private entity or with
YES ( ) the Downtown Smyrna Development Authority, which lease provides the City of Smyrna a new
public safety facility (consisting of a new expanded and improved police station and new
expanded jail facility and other structures, equipment or facilities useful
NO ( ) or desireable in connection therewith) to replace the existing police station and
jail facility?"
The Mayor and each councilman then expressed their support for this item to be placed on the November
8, 1994, ballot and urged the citizens to support it at the polls. The Mayor and each councilman also
stated the need for the public safety facility is very much apparent and invited the citizens to contact Chief
Hook for a tour of the existing facilities.
Chief Hook urged the citizens to support this issue in November and detailed how the city has outgrown
its existing facilities.
Councilman Wood made a motion the resolution be approved to place the issue of allowing the City to
incur an unbonded indebtedness in the maximum principal amount of $7,650,000 on the November 8,
1994 ballot in the form of a lease with a private entity or the Downtown Smyrna Development Authority
for the acquisition/construction and equipping of a new public safety facility and the purchase/lease option
amount at the end of the such lease shall be $100. Motion was seconded by Councilman Lnenicka.
Motion was approved 7-0.
(F) Approve Escrow Account with Bank South, N.A.
Councilman Wood stated that the City has entered into a contract with the Downtown Smyrna
Development Authority and under the terms of the contract the City has agreed to deposit certain funds
in an escrow account with Bank South, N.A. in order to meet its obligations to the Housing Authority.
Mr. Wood made a motion to approve an escrow account with Bank South, N.A. Motion was seconded
by Councilman Hawkins. Motion was approved 7-0. A copy of the resolution is attached to these
minutes and made a part thereof.
(G) Approve Contract Between City and Housing Authority
Councilman Wood stated it is necessary to approve a contract between the City and the Downtown
Smyrna Housing Authority to enable the Authority to ensure the maintenance of the 180-unit multifamily
rental facility pursuant to the purchase contract between the City and the Department of Housing and
Urban Development for the purchase of Heritage Pointe Apartment complex. This contract will ensure
that the developer (Teague/Ausburn) be allowed to rebuild on the existing footprint of buildings as
currently constructed, in the event of loss from fire or natural disaster. Councilman Wood made a
motion to approve the contract between the City and the Smyrna Housing Authority. Councilman
Lnenicka seconded the motion. Motion was approved 7-0.
COMMERCIAL BUILDING PERMITS: There were none.
BID AWARDS:
September 6, 1994 meeting - continued
(A) Sewer Inspection Camera
Councilman Scoggins made a motion the bid for a Sewer Inspection Camera be awarded to TV Farrett
for $29,995. Councilman Cramer seconded the motion. Motion was approved 7-0.
(B) Vehicles for Parks and Recreation Department
Councilman Cramer stated one company submitted a bid for a police interceptor and a pickup truck for
the Parks and Recreation Department be awarded to Jim Tidwell Ford at a price of $33,618. Councilman
Newcomb seconded the motion. Motion was approved 7-0.
(C) Acoustical Upgrade for Gymnasium
Councilman Cramer made a motion that additional time be allowed to review the bids for the acoustical
upgrade for the gymnasium with a recommendation to be brought back to the Mayor and Council at the
next meeting. Motion was seconded by Ron Newcomb. Motion was approved 7-0.
(D) Copier for Court Services Department
Councilman Hawkins stated there were three bids returned for a copier for the Court Services
Department. However two of the bids did not meet specifications and the third bid was for a copier for
which we are not familiar and have no information on the equipment. Mr. Hawkins stated the Court
Services Committee recommends rejection of all three bids and made a motion they be allowed to
purchase a copier through the Cobb County contract, Danka Industries. The copier would be a Konica
3135 at the county's trade in price of $8,295. Councilman Cramer seconded the motion. Motion was
approved 7-0.
CONSENT AGENDA:
(A) Approval of August 15, 1994 Minutes
(B) Approval to Request Bids for 1994/95 Street Resurfacing
(C) Approval to Install Speed Breakers on Sanford Place
(D) Approval to Purchase IBM AS-400 Computer
(E) Approval of 1% Road Improvement List
Mayor Bacon read the consent agenda and asked for a motion for approval. Councilman Newcomb
requested Item 7-E, approval of the 1%n Road Improvement List, be voted on separately. Councilman
made a motion that Items 7-A, 7-B, 7-C and 7-D be approved. Councilman Cramer seconded the
motion. Councilman Hawkins stated there is a petition for the installation of speed breakers on file in
the City Clerk's office. Motion was approved 7-0.
Mayor Bacon asked for a motion to approve Item 7-E of the consent agenda. Councilman Cramer made
a motion Item 7-E of the consent agenda be approved. Councilman Hawkins seconded the motion.
Motion was approved 6-1 with Mr. Newcomb opposed.
COMMITTEE REPORTS:
Councilman Patrick asked Laurel Best for a report on the Library. Ms. Best stated the art display for
the month is James Lee and his exhibit is crewel embroidery. Ms. Best announced a meeting of the
Friends of the Smyrna Library is scheduled for September 22 at 7:30 p.m. and invited everyone to attend.
Councilman Newcomb asked Scott Stokes for a report from the Community Development Department.
Mr. Stokes reported the apartment inspections are on -going. Mr. Stokes stated the Stephens Woods
Apartment Complex had submitted a loan application to HUD for $147,000 for exterior repairs at the
complex. Mr. Stokes stated his department has begun reinspection of the Kingstowne Apartment complex
but the management company has not been cooperative, therefore, the department is knocking on doors
and asking the tenants to allow them to inspect the units.
Councilman Newcomb then asked Mary Ann White for a report on the Human Resources Department.
Ms. White stated the application process for the entry level examination for police and fire applicants is
progressing smoothly. Ms. White stated the deadline for submitting applications is Thursday, September
8, at 3:30 p.m. and the examination for the police candidates is September 10 and the examination for
the fire department candidates is September 17. There will be a test briefing for the police candidates
on Wednesday, September 7, at 7:00 p.m. at the Community Center and a test briefing for the fire
September 6, 1994 meeting - continued
department candidates on Wednesday, September 14, at 7:00 p.m. at the Community Center.
Councilman Newcomb asked Ms. White approximately how many candidates had applied and Ms. White
replied they have had approximately 80 fully completed applications submitted but stated there are a lot
of applicants who have picked up applications to take with them and indicated they will return them at
a later date.
Councilman Newcomb told the Mayor and Council that the Personnel Committee met with Ms. White,
the Human Resources Staff and the Civil Service Board and representatives from the rank and file of the
Police and Fire Department, the Chiefs and were very impressed with the manner in which Ms. White
and her staff had put together this entire process for entry level testing of the police and fire.
Ms. White thanked her staff as well as Chief Hook and Williams for their support during this process.
Councilman Newcomb stated there are a lot technicalities involved in testing of this nature to prevent
being challenged later on any hiring decisions and to date everything looks great.
Councilman Scoggins asked Public Relations Director Kathie Barton for a report. Ms. Barton stated she
has prepared a newsletter that will go in the water bill that will have a lot of information concerning
Phase II of the downtown development.
Ms. Barton announced Chuck Wade, one of our Police Department Detectives, has been selected as
coordinator of the "Drugs Don't Work in Cobb" program, which is co -sponsored by all the cities in Cobb
County and the Cobb Chamber of Commerce through a matching grant program of $10,000.
Ms. Barton announced that on October 4, she, Wade Lnenicka and Chief Hook will do an "Inside
Smyrna" program on Smyrna Cable TV which will consist of a guided tour of the current police station.
Councilman Scoggins asked Ann Kirk for a report. Ms. Kirk reported the redycling center is now
accepting clean plastic bottles and "Fall Into Recycling" will take place October 8 at Southern States
Environmental Services on South Cobb Drive and stated Goodwill Industries will be there to accept
reusable items and the city will take clean household recyclables. These recyclable include up to four
tires per vehicle, aerosol cans, paint in marked containers, household and automobile batteries and clean
styrofoam. Ms. Kirk stated if anyone had any questions concerning the "Fall Into Recycling" day they
could call 730-7986, which is the Atlanta Clearing House Information number or call her at 431-2863.
Ms. Kirk stated she has ordered 50,000 jonquil bulbs which will be sold as the main fund raising event
for Smyrna Clean and Beautiful. A bag of 100 Star variety bulbs will sell for $15 beginning October 1.
Councilman Hawkins asked Chief Williams for a report on the Fire Department. Chief Williams
announced next week is Fire Prevention Week and his department will be distributing fire prevention
literature in English and Spanish.
Councilman Cramer asked Steve Ciaccio for a report on the Parks and Recreation Department. Mr.
Ciaccio stated the Parks Chatter has been printed for September and urged everyone to call the
Community Center at 431-2842 regarding the new program schedule.
Councilman Cramer stated he will be having a homeowners meeting on September 13 at the Community
Center at 7:00 p.m.
Councilman Lnenicka asked Chief Hook for a report on the Police Department. Chief Hook reported
the statistics for the first seven months of this year reflect an increase in accidents and crimes in the City
of Smyrna and citations are about 25% less than last year; arrests are 32%n lower than last year.
Councilman Wood asked Jim Triplett for a report on the Finance Department. Mr. Triplett stated the
tax bills will be mailed by the end of next week and will be due sixty days from the date they are mailed.
Mr. Triplett reported he had hand delivered approximately 1500 surveys that were mailed to Smyrna
business owners to GMA who will analyze the surveys and that information will be used to conduct the
public hearings when they talk with the business owners about the new billing structure the City will be
using.
With no further business, the meeting adjourned at 9:50 p.m.
September 6, 1994 meeting - continued
A. MAX BACON, MAYOR
{
/�� / ky-d � OWN PATRICK, WARD 1
BILL SCOGGINS, W, 3
ACK CRAMER, WARD 5
CHARLES PETE WOOD, WARD 7
MELINDA DAMERON, CITY CLERK
RON NEWCOMB, W.
RESOLUTION
WHEREAS, the City of Smyrna, Georgia (the "City") has heretofore entered
into a contract with the Downtown Smyrna Development Authority (the
"Downtown Authority") under terms of which the City agreed to deposit certain
funds in an escrow account with Bank South, N.A. ("Bank South") to be utilized
by the City for construction of a new city hall/municipal services building (the
"City Hall/Municipal Services Building"); and
WHEREAS, Bank South has agreed to enter into an escrow deposit
agreement (the "Escrow Deposit Agreement") with the City enabling the City to
meet its obligations to the Downtown Authority; and
WHEREAS, at the direction of the City, the Housing Authority of the City of
Smyrna (the "Housing Authority") has entered into a contract with the United
States Department of Housing and Urban Development ("HUD") for purchase -of
a 11-acre, 180-unit apartment complex known as Heritage Pointe Phase II
("Phase II") located at 2550 Hargrove Road, Smyrna, Georgia; and
WHEREAS, in order for the Housing Authority to ensure that it can maintain
Phase II as a 180-unit multifamily rental facility pursuant to its purchase contract
with HUD, the Housing Authority has asked the City to enter into a contract
between the City and the Housing Authority that would enable the Housing
Authority and its successors in ownership of Phase II to rebuild Heritage Pointe
with the current unit density per acre and property line setbacks;
NOW THEREFORE BE IT RESOLVED AND IT IS HEREBY RESOLVED AS
FOLLOWS:
1. The Mayor and City Clerk are authorized to execute an Escrow Deposit
Agreement between Bank South and the City in substantially the form
attached hereto as Exhibit A with such changes as are approved by the
City Attorney.
2. The Mayor and City Clerk are authorized to execute a contract with the
Housing Authority substantially in the form attached hereto as Exhibit B
with such changes as are approved by the City Attorney.
CERTIFICATE
I, Melinda Dameron, Clerk of the City of Smyrna, Georgia (the "City"), DO
HEREBY CERTIFY that the foregoing pages of typewritten matter constitute a
true and correct copy of the Resolution adopted at a meeting of the City on
September 6, 1994 which was duly called and assembled and at which a quorum
was present and acting throughout.
Witness my hand and the seal of said City, this 6th day of September, 1994.
CITY OF SMYRNA, GEORGIA
By:
Melinda Dameron, City Clerk
(SEAL)
EXHIBIT A
ESCROW DEPOSIT AGREEMENT
This Escrow Deposit Agreement (the "Escrow Deposit Agreement") made and
entered into as of September 6, 1994 by and between the City of Smyrna, Georgia (the
"City") and Bank South, N.A., Atlanta, Georgia ("Bank South").
WITNESSETH
WHEREAS, the City has entered into an agreement (the "Agreement") with the
Downtown Smyrna Development Authority (the "Downtown Authority") under terms of
which the Downtown Authority will pay to the City certain funds and the City has agreed
to use these funds for construction of a new city hall/municipal services building (the
"City Hall/Municipal Services Building"); and
WHEREAS, the City and the Downtown Authority have agreed that funds paid to
the City by or on behalf of the Downtown Authority will be deposited to an account at
Bank South and utilized by the City only for certain purposes set forth in the Agreement;
and
WHEREAS, Bank South has agreed to act as Escrow Agent for the funds; and
WHEREAS, the City wishes to enter into an Escrow Deposit Agreement with Bank
South, N.A.;
NOW THEREFORE in consideration of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto agree as follows:
1. Bank South will accept funds delivered to it by or on behalf of the City or the
Downtown Authority pursuant to the Agreement. It is expected that Bank South
will receive at least Two Million Four Hundred Thousand and No/100 Dollars
($2,400,000.00) by December 31, 1994.
2. Bank South will invest all funds received to the maximum extent practicable in a
Bank South proprietary mutual fund known as the Peachtree Government
Money Market Fund. All interest earnings on these monies will be held for the
benefit of the City and invested and reinvested in the Peachtree Government
Money Market Fund until needed by the City to pay Permitted Expenses (as
hereinafter defined).
3. Bank South will pay from the Escrow Account amounts when and as directed
by the City upon presentation by the City with each request for withdrawal or
payment of funds an executed certificate in the form attached hereto as Exhibit
A (the "Certificate").
4. Bank South is authorized to make payments as directed by the City in reliance
on the Certificate.
.l
5. Bank South will charge no fees to the City for acting as Escrow Agent in
connection with this Escrow Deposit Agreement except that, in the event Bank
South is required to draw on any letter of credit provided to the City or the
Downtown Authority from any party, Bank South shall be entitled to charge to
the City One Hundred and No/100 Dollars ($100.00) for each draw on any letter
of credit.
6. The City will provide to Bank South a Certificate with each request for funds
held by Bank South under this Escrow Deposit Agreement, and each request
for funds will be only for a Permitted Expense pursuant to the Agreement. A
Permitted Expense is defined as: any costs of design, site preparation,
construction and equipment for a new City Hall/Municipal Services Building;
any financial advisory and legal expenses incurred by the City in connection
with acquisition by the Housing Authority of the City of Smyrna (the "Housing
Authority") of Phase I and Phase II of an apartment project known as Heritage
Pointe (the "Project"); fees of Sizemore Floyd, Architects in connection with
services to the City and the Downtown Authority in connection with the overall
downtown development plan; and any costs for acquisition and/or demolition of
buildings and structures to enable Thomas Enterprises, Inc. ("Thomas") and/or
Teague-Ausburn Properties, Inc. ("Teague") (or their successors and assigns)
to undertake their respective development projects pursuant to agreements
between Thomas and the Downtown Authority and Teague and the Downtown
Authority.
7. Bank South will pay to the City all funds remaining pursuant to this Escrow
Deposit Agreement upon receipt by Bank South from the City of a certificate
stating that construction is complete on the City Hall/Municipal Services
Building.
8. In performing any of its duties hereunder, Bank South shall not incur any
liability to anyone for any damages, losses or expenses; unless caused by
gross negligence or willful misconduct, and it shall accordingly not incur any
liability with respect to (i) any actions taken or omitted in good faith relating to
the duties and responsibilities of Escrow Agent under this Escrow Deposit
Agreement or (ii) any action taken or omitted in reliance upon any instrument,
including any written notice or instruction provided for in this Escrow Deposit
Agreement not only as to its due execution and the validity and effectiveness of
its provisions, but also as to the truth and accuracy of any information
contained therein, which Bank South shall in good faith believe to be genuine,
to have been signed or represented by a proper person or person, and to
conform with the provision of this Escrow Deposit Agreement.
The City agrees to indemnify and hold Bank South harmless against any and all
losses, claims, damages, liabilities and expenses, including, without limitation,
reasonable costs of investigation and legal counsel fees which may be imposed
upon Bank South or incurred arising from this Escrow Deposit Agreement.
-2-
9. Whenever any notice is required or permitted hereunder, such notice shall be in
writing, and shall be delivered in person or sent by registered or certified mail,
postage prepaid, return receipt requested, to the addresses set out below, or
such other addresses as are specified by written notice delivered in accordance
herewith:
The Honorable A. Max Bacon
Mayor, City of Smyrna
1306 Bank Street
Smyrna, Georgia 30081
Kim Sheffield
Bank South, N.A.
Post Office Box 4387 (MC 679)
Atlanta, Georgia 30302-4387
Any notice shall be deemed effectively given hereunder on the day such notice
is deposited in the mail, as evidenced by the postmark date affixed to such
notice, or, in the case of notice delivered in person, on the day of delivery.
10. This Escrow Deposit Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns. Any
and all rights granted to any of the parties hereto may be exercised by their
agents or personal representatives.
11. This Escrow Deposit Agreement shall be construed according to the laws of the
State of Georgia.
Attest
Attest
CITY OF SMYRNA, GEORGIA
BANK SOUTH, N.A.
M
(SEAL)
-3-
_/
Date:
Kim Sheffield
Bank South, N.A.
Post Office Box 4387 (MC 679)
Atlanta, Georgia 30302-4387
989-6369 (Fax)
Please pay $ to:
The City of Smyrna certifies that the above -requested payment is
a permissible use of funds held by Bank South, N.A. pursuant to
an Escrow Deposit Agreement between the City of Smyrna and
Bank South, N.A. dated as of September 6, 1994.
CITY OF SMYRNA, GEORGIA
M
EXHIBIT B
AGREEMENT
This Agreement (the "Agreement") made and entered into as of September 6, 1994 by and
between the City of Smyrna, Georgia (the "City") and the Housing Authority of the City of
Smyrna, Georgia (the "Housing Authority").
WITNESSETH
WHEREAS, the City has heretofore asked the Housing Authority to purchase from United
States Department of Housing and Urban Development ("HUD") of 180 apartment units located
on approximately 11 acres at 2550 Hargrove Road, currently known as Heritage Pointe Phase
II ("Phase II") (the land included in Phase II is more fully described in Exhibit A, attached hereto
and made a part hereof by this reference); and
WHEREAS, the Housing Authority has heretofore entered into a contract with HUD for
purchase from HUD of Phase II; and
WHEREAS, Phase II does not meet all of the current zoning or setback from property line
requirements of the City for new construction (although Phase II is a lawful non -conforming use
that complies in all respects with the zoning ordinance of the City; unless required under
Section 11.03 of the Zoning Ordinance of the City following damage to a building exceeding 50
percent of the replacement cost thereof, no changes in zoning or any zoning variances or
waivers of setback requirements are required for the continued lawful use of Phase II); and
WHEREAS, the Housing Authority, as part of its consideration in purchasing at the City's
request Phase II from HUD, and as a requirement by HUD for purchase by the Housing
Authority of Phase II, the Housing Authority must be able to maintain the 180 apartment units
as rental housing units; and
WHEREAS, in order to ensure that the Housing Authority can meet its contractual
obligation to HUD that Phase II be maintained as a 180-unit rental housing facility, the Housing
Authority or its successors or assigns in ownership of Phase II must, in the event of destruction
of any of the buildings or structures constituting Phase II, be able to rebuild such buildings or
structures in the same locations and in the same number of units per acre; and
WHEREAS, the City wishes to assure the Housing Authority and its successors and
assigns that, in the event any of the buildings or structures constituting Phase II are destroyed
by fire, explosion or acts of god (such as hurricanes, rains or tornadoes or other hazard), the
Housing Authority or its successors or assigns will be permitted by the City to reconstruct such
destroyed buildings or structures in their same size and location without any requirement to
obtain from the City any changes in zoning or any zoning variances or waivers of setback
requirements from property lines.
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the
parties hereto agree as follows:
The foregoing recitals are hereby incorporated in and made a part of this Agreement.
2. In the event that any of the buildings or structures constituting a part of Phase II
acquired by the Housing Authority from HUD are destroyed by fire, explosion or act of
god (such as hurricanes, rains or tornadoes or other hazard), the Housing Authority or
its successors or assigns are authorized to rebuild such buildings or structures in their
same location and same size without regard to any setback or zoning requirements
then in effect in the City.
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3. The Housing Authority or any successors or assigns will, however, be required to meet
any then -existing City building code requirements that may be appreciable to any
reconstruction unless waiver from such requirements is obtained by the Housing
Authority or its successors or assigns at the time of such reconstruction.
4. Without limiting the foregoing, the City acknowledges and agrees that the Housing
Authority has entered into a contract with Teague-Ausburn Properties, Inc. for the sale
of Phase II and that TAP intends to assign such contract to Walton Grove, L.P., a
Georgia limited partnership (the "Developer'). The City further acknowledges and
agrees that the Housing Authority shall have the right to assign this Agreement to the
Developer in connection with the Developer's acquisition of Phase II, and that upon
such assignment of this Agreement, this Agreement shall be enforceable for, and shall
run to the benefit of, the Developer and its successors -in -title to Phase II. This
Agreement shall run to the benefit of any subsequent owner of Phase II, whether such
transfer is by deed, by foreclosure, by deed in lieu of foreclosure, by operation of law,
or otherwise, for the full term hereof, whether or not an express assignment of this
Agreement is made in connection with the transfer of Phase II.
5. The term of this Agreement shall be for a period of thirty (30) years, expiring at 11:59
p.m. on September 5, 2024.
Signed, sealed and delivered
this day of
1994 in the presence of:
Witness
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
Signed, sealed and delivered
this day of
1994 in the presence of:
Witness
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
CITY OF SMYRNA, GEORGIA
By:
Name:
Title:
Attest:
Name:
Title:
[SEAL]
HOUSING AUTHORITY OF THE
CITY OF SMYRNA, GEORGIA
By:
Name:
Title:
Attest:
Name:
Title:
[SEAL]
EXHIBIT
i
1 ; "I that tract or parcel of land tying and being in Land Lot 848 of
+ the 17th District and Ind Section of Cabo County, Georgja, and
being more particularly described as follows:
Beginning at an ireis pia placed at a point locAced at the westerly
right -at -tray line of Hargrove Road (an 90 ft, r3ght.QZ.way), wdich
Point is located a diseanee of 042.51 feet southerly along r. 8
wsterly right-of•way line Of Hargrove Road from the interseccion
fo=wd by the westerly right-of-way lane of Hargrove Road and tho
southwesterly right -of -nay line of U.S. Rigbway No_ 41 (a 200 ft.
right -ol-way) and running thence in& southwesterly direct=oa along
the westerly right-o=-way line of Hargrove Read, and following the
cut-atus:e thereof. (said curve being a curve Co the right having a
chord distance of 432.6S feet on a bearing of South 19 degrees IS
minutes West) an arc distance of 436.9 feel to an frog pin placed
at a point located at the intersection of the westerly right • of -ray
line of Hargrove Road and the southerly land lot line of Land Lot
848 (being the noreh$riy lased lot line of Lund Lot 847) ; thence
leaving the westerly right -Of -way line of 13argravc Road anti xur=ing
along the southerly land lot line of Land Leal 94S (being the
northerly laird lot line of Land Lot 847) North 89 degrees 00
minutes west a distance of 050.4 feet to an iron pin platted at the
tosser co:== to Land Lots 948, 847, 809 and 908; thence leaving
the southerly land 10C line of Land Lot 848 and running along the
westerly land lot line of Land Lot 848 (being the easterly laud tot
line of Land Lot 8a8) North 00 degrees 37 minutes Sass a distance
of 634.7 feet (chrvugri aume:raus iron pint found on said lead lot
line) to an tron pin placed ac a point located an said westerly
land lot line at Land Lot 846 (being the easterly laud lot Sine of
Land L.ot 808), which point is located 690.0 feet South 00 degrees
37 minutes west from the point located at the Common corner to Auld
tots 848, 849, 908 and 807; thence 18aving tho westerly land lot
line of Land Lac 848 *ad manning South 68 degrees 19 minutes 30
seconds Bast a distance of 645.9 feet to an iron pin placed at A
Point,' running thence South 89 degrees 19 minutes East a dis=azce
Of 396.2 feet to the iron piss placed on the westerly right-ot-way
line of Hargrove Ra*d at the point o! Aeginning; said tract
containing 10.38 acres as shorn on Ebat certain Plat of Survey
For TeagueAusburn properties, Inc., wachovia sank of Georgia. O.A.,
at al. prepared by G. M. Qilleepio, Georgia Registered Lased Surveyor
No. 2121, watts a srosriiing Engineers, Inc., dated ,Tune 27, 1988,
last revised August 5, Z994, which plat of survey is incorporated
herein by reference and made a part of this description.
TOGaTH W%TX those certain eaeement:s created in special Warranty
Deed from Housing Authority of the City of Smy=& to Walton Grove,
L.p., a Georgia limited partnerzhip, dated 1 1994,
recorded in peed nook , page , Cobb county, Georgia,
Records.
RESOLUTION
A RESOLUTION TO REGULATE AND PROVIDE FOR THE CALLING OF
AN ELECTION TO DETERMINE WHETHER THE CITY OF SMYRNA SHALL
INCUR UNBONDED INDEBTEDNESS IN THE MAXIMUM PRINCIPAL
AMOUNT OF $7, 650, 000 AS AUTHORIZED BY CHAPTER 80 OF TITLE
36 OF THE OFFICIAL CODE OF GEORGIA ANNOTATED; SPECIFYING
THE PURPOSE FOR WHICH THE PROCEEDS OF SUCH UNBONDED
INDEBTEDNESS ARE TO BE USED; SPECIFYING THE MAXIMUM
PERIOD OF TIME FOR WHICH SUCH UNBONDED INDEBTEDNESS MAY
BE OUTSTANDING; SPECIFYING. THE PRINCIPAL AMOUNT OF THE
UNBONDED INDEBTEDNESS AND THE MAXIMUM AMOUNT OF COMBINED
PRINCIPAL AND INTEREST INDEBTEDNESS TO BE PAID IN EACH
YEAR; REQUESTING THE ELECTION SUPERINTENDENT OF COBB
COUNTY TO CALL AN ELECTION OF THE VOTERS OF THE CITY OF
SMYRNA TO APPROVE THE INCURRING OF SUCH UNBONDED
INDEBTEDNESS; APPROVING THE FORM OF THE QUESTION ON THE
BALLOT TO BE USED IN SUCH ELECTION AND THE NOTICE OF SUCH
ELECTION; AND FOR OTHER PURPOSES
WHEREAS, Chapter 80 of Title 36 of the Official Code of
Georgia Annotated (the "Act") authorizes a municipality to incur
unbonded indebtedness, pursuant to Article IX, Section V,
Paragraphs I and II of the Constitution of Georgia, after an
election called pursuant to the Act and upon the ;'approval of a
majority of the qualified voters participating in, -'such election;
and
WHEREAS, the Mayor and Council of the City of Smyrna (the
"Mayor and Council") have determined that it is in the best
interests of the citizens of the City of Smyrna (the "City") that
unbonded indebtedness be incurred by the City by entering into a
lease for a new public safety facility (consisting of a new
expanded and improved police station and a new expanded jail
facility and other structures, equipment or facilities useful or
desirable in connection therewith); and
WHEREAS, the Mayor and Council have determined that the
aggregate amount of the principal portion of the indebtedness
payable under such a lease will not exceed $7,650,000 and any
purchase price option provided the City at the end of such lease
shall be $100.00; and
WHEREAS, pursuant to the provisions of the Constitution and
the Act it is necessary to submit to the qualified voters of the
City the question whether or not said unbonded indebtedness shall
be incurred.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council, and
it is hereby resolved by authority of the same, as follows:
1. In order to acquire the use of a new public safety
facility the City is authorized to enter into a lease or leases
125123.1
with a private entity or the Downtown Smyrna Development Authority
to lease for the City's use a new public safety facility.
2. The Mayor and Council hereby request that the Election
Superintendent of Cobb County call an election to be held in all
the voting precincts in the City in conjunction with the general
election on the 8th day of November, 1994, for the purpose of
submitting to the qualified voters of the City the question of
whether the City shall be authorized to incur unbonded indebtedness
in the amounts and in the form hereafter set forth.
3. Such unbonded indebtedness, if authorized, shall be in
the form of a lease with a private entity or the Downtown Smyrna
Development Authority, for the acquisition, construction and
equipping of a new public safety facility . The aggregate amounts
representing principal payable thereunder shall note exceed
$7,650,000 and any purchase price option provided to the City at
the end of such lease shall be $100.00. The annual lease payments
for the present library and community center already leased by the
City from the Downtown Smyrna Development Authority and the lease
payments for the proposed public safety facility may not exceed
what the City will pay in calendar year 1995 for the present
library and community center plus $45,000 per month and shall be
payable from all lawfully available funds of the City. The term of
such lease or leases shall not exceed twenty-seven'(27) calendar
years.
4. The ballots to be used in said election shall have
written or printed thereon substantially the following:
"Shall the City of Smyrna be authorized to
enter into a lease (containing an option to
purchase by the City of Smyrna for $100.00 at
the end of such lease) with a private entity
or with the Downtown Smyrna Development
Authority, which lease provides the City of
YES ( ) Smyrna a new public safety facility
(consisting of a new expanded and improved
police station and new expanded jail facility
NO ( ) and other structures, equipment or facilities
useful or desirable in connection therewith)
to replace the existing police station and
jail facility?"
5. The date of such election shall be and is hereby set as
the same date as set for the general election on November 8, 1994,
and the polls of each election district of the City shall open at
7:00 a.m. and close at 7:00 p.m., and the election shall be held by
the same persons and under and in accordance with the election laws
of the State of Georgia, and the returns of said election shall be
made to the Mayor and Council of the City and to the Election
Superintendent of Cobb County, Georgia who shall, in the presence
of and together with the several managers of the polls who shall
125123.1 -2 -
bring up the returns, consolidate the returns and declare the
result of the election in the manner required by law.
6. In connection with the publication of the notice of the
election by the Election Superintendent, the City Clerk be, and is
hereby, authorized and instructed to publish or cause to be
published the call of said election as required by law in the
newspaper in which Sheriff's advertisements for Cobb County are
published at least sixty (60) days prior to the date of the
election and to publish or cause to be published notice of said
election as required by law in the newspaper in which Sheriff's
advertisements for Cobb County are published once a week for four
weeks immediately preceding the date of the election, i.e.,
November 8, 1994, and the notice of election shall be in
substantially the form attached hereto as Exhibit "A," and, by this
reference thereto, made a part hereof.
7. Prior to the date of the election authorized herein,
there shall be appointed proper election managers and clerks to
supervise and hold said election and to make returns of said
election to the Mayor and Council and to the Election
Superintendent, who shall, in the presence of and together with the
several managers of the polls who shall bring up the returns,
consolidate the returns and declare the result of the election in
the manner required by law.
8. In accordance with the Act, if a majority of the
qualified voters of the City participating in the election vote to
authorize the City to incur such unbonded indebtedness, the
authority to incur such indebtedness will thereby be given to the
Mayor and Council of the City.
9. The City Clerk is hereby authorized and directed to
deliver a copy of this resolution to the Election Superintendent of
Cobb County, Georgia with a request that the Election
Superintendent order the call of this election.
10. The proper officers and agents of the City are hereby
authorized -to take any and all further actions as may be required
in connection with incurring unbonded indebtedness and the
execution of the lease or leases as herein provided.
11. This resolution shall take effect immediately upon its
adoption.
125123.1 - 3 -
EXHIBIT "All
NOTICE OF CALL FOR ELECTION
TO THE QUALIFIED VOTERS OF THE CITY OF SMYRNA
TO CONSIDER THE INCURRENCE OF UNBONDED INDEBTEDNESS
AND THE EXECUTION OF A CERTAIN LEASE
NOTICE IS HEREBY GIVEN that on the 8th day of November, 1994,
an election will be held at the regular polling places in all the
election districts of the City of Smyrna (the "City"), in the State
of Georgia, at which time there will be submitted to the qualified
voters of Smyrna, Georgia, for their determination the question of
whether the City of Smyrna, Georgia shall be authorized to enter a
lease (containing an option to purchase by the City of Smyrna for
$100.00 at the end of such lease) with a private entity or the
Downtown Smyrna Development Authority for a period of time not to
exceed twenty-seven calendar years, for an aggregate amount
representing principal payable over the life of such lease of not
more than $7,650,000, which lease provides the City of Smyrna a new
public safety facility (consisting of a new expanded and improved
police station and new expanded jail facility and other structures,
equipment or facilities useful or desirable in connection
therewith).
Such unbonded indebtedness, if authorized, shall be in the
form of a lease with a private entity or the.,Downtown Smyrna
Development Authority, for the acquisition, construction and
equipping of a new public safety facility. The aggregate amounts
representing principal payable thereunder shall not exceed
$7,650,000 and any purchase price option provided to the City of
Smyrna at the end of such lease shall be $100.00. The annual lease
payments for the present library and community center already
leased by the City from the Downtown Smyrna Development Authority
and the lease payments for the proposed public safety facility may
not exceed what the City will pay in calendar year 1995 for the
present library and community center plus $45,000 per month and
shall be payable from all lawfully available funds of the City.
The term of such lease shall not exceed twenty-seven (27) calendar
years.
Voters desiring to vote to authorize the City of Smyrna,
Georgia to incur such unbonded indebtedness for the purpose set
forth above shall do so by voting "YES" and voters desiring to vote
against authorizing the City of Smyrna, Georgia to incur such
unbonded indebtedness shall do so by voting "NO" as to the question
propounded, to wit:
125123.1
"Shall the City of Smyrna be authorized to
enter into a lease (containing an option to
purchase by the City of Smyrna for $100.00 at
the end of such lease) with a private entity
A-1
or with the Downtown Smyrna Development
Authority, which lease provides the City of
YES ( ) Smyrna a new public safety facility
(consisting of a new expanded and improved
police station and new expanded jail facility
NO ( ) and other structures, equipment or facilities
useful or desirable in connection therewith)
to replace the existing police station and
jail facility?"
The date of such election shall.be and is hereby set as the
same date as set for the general election on November 8, 1994, and
the polls of each election district of the City of Smyrna, Georgia
shall open at 7:00 a.m. and close at 7:00 p.m., and the election
shall be held by the same persons and under and in accordance with
the election laws of the State of Georgia, and the returns of said
election shall be made to the Mayor and Council of the City of
Smyrna, Georgia and to the Election Superintendent of Cobb County,
Georgia who shall, in the presence of and together with the several
managers of the polls who shall bring up the returns, consolidate
the returns and declare the result of the election in the manner
required by law.
The several places for holding said election shall be at the
regular and established voting precincts of all of the election
districts of the City of Smyrna, Georgia, and the polls will be
open from 7:00 a.m. to 7:00 p.m. on the date fixed for the
election.
Those residents of the City of Smyrna, Georgia, qualified to
vote at such election shall be determined in all respects in
accordance with the election laws of the State of Georgia.
This notice is given pursuant to a resolution of the Mayor and
Council of the City of Smyrna, Georgia, adopted on the 6th day of
September, 1994, and a call of election by the Election
Superintendent of Cobb County.
/s/
Election Superintendent of
Cobb County, Georgia
125123.1 A-2