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12062004 December 6, 2004 Attachments December 6, 2004 17 -- A. MAX BACON, MAYOR ~ ~'NJ.~ . RON NEWCOMB, WARD 2 ~J'~ .. ~~uJ~ CHARLES PETE WOOD, WARD 7 ~ R2004-7 -- A REFERENDUM RESOLUTION TO REGULATE AND PROVIDE FOR THE CALLING OF A SPECIAL ELECTION AND TO CALL A SPECIAL ELECTION TO DETERMINE WHETHER THE CITY OF SMYRNA SHALL INCUR UNBONDED INDEBTEDNESS IN THE MAXIMUM PRINCIPAL AMOUNT OF $22,000,000 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; AND FOR OTHER PURPOSES. WHEREAS, the Mayor and Council of the City of Smyrna (the "Governing Body") is the governing authority of City of Smyrna (the "City"), a municipal corporation created and existing under the laws of the State of Georgia, and is charged with the duties of levying taxes, contracting debts, and managing the affairs of the City; and -- 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 Governing Body has determined that it is in the best interest of the citizens of the City that unbonded indebtedness be incurred by the City by entering into a contract or contracts with a private entity or the Downtown Smyrna Development Authority for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith; and WHEREAS, the Governing Body has determined that the aggregate amount of the principal portion of the indebtedness payable under such contract or contracts will not exceed $22,000,000; 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. - 1190663.v2 -- NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the City of Smyrna, and it is hereby resolved by authority of the same, as follows: 1. There is hereby authorized to be called and there is hereby called a special election to be held in the City on the 15th day of March 2005, for the purpose of submitting to the qualified voters of the City for their determination the question of whether or not the City should be authorized to enter into a contract or contracts with a private entity or with the Downtown Smyrna Development Authority, which contract or contracts provide for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith. 2. Such unbonded indebtedness, if authorized, shall be in the form of a contract or contracts with a private entity or with the Downtown Smyrna Development Authority for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith. The aggregate amount representing principal payable thereunder shall not exceed $22,000,000. The aggregate of the annual lease or purchase payments for the present public facilities already leased or purchased on an installment basis by the City from the Downtown _ Smyrna Development Authority and the purchase payments for the proposed public facilities to be purchased on an installment basis under such contract or contracts may not in any fiscal year of the City exceed by more than $1,550,000 what the City will pay in the City's fiscal year ending June 30, 2005 for the present public facilities. The purchase payments under such contract or contracts shall be payable from all lawfully available funds of the City. The term of such contract or contracts shall not exceed thirty (30) years. 3. The ballot to be used in the special election shall have printed thereon in brief form the question to be determined by the voters, to-wit: "Shall the City of Smyrna be authorized to enter into a contract or contracts with a private entity or with the Downtown Smyrna Development Authority, which contract or contracts provide for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith? The ballot shall have printed thereon the word "YES" and the word "NO" in order that each voter may vote in either the affirmative or the negative as to the question propounded. The polls in each of the precincts within the City shall be opened at 7:00 a.m. and closed at 7:00 p.m. on - the day fixed for the special election, and the special election shall be held at the regular and established places for holding elections in the City. The special election shall be held in -2- -- accordance and in conformity with the Constitution and laws of the United States of America and of the State of Georgia. 4. The Cobb County Board of Elections and Registration is hereby appointed as the Municipal Election Superintendent to conduct the special election, to receive from poll officers the returns of the special election, to canvass and compute such returns, to certify as soon as practicable following the special election the results thereof to the Governing Body, and to take such other actions in the premises as provided by law. 5. The City Clerk is hereby ordered and directed forthwith to furnish the Municipal Election Superintendent of the City with a duly certified copy of this resolution in order that the Municipal Election Superintendent may take such action in the premises as provided by law. 6. The notice of election shall be in substantially the form attached hereto as Exhibit "A," and, by this reference thereto, made a part hereof. The notice shall be incorporated into the call of the special election by the Municipal Election Superintendent: 7. 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 Governing Body of the City. - 8. 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 contract or contracts as herein provided. 9. This resolution shall take effect immediately upon its adoption. 10. Any and all resolutions in conflict with this resolution this day passed be and they are hereby repealed. PASSED, ADOPTED, SIGNED, APPROVED, AND EFFECTIVE this 6th day of December 2004. CITY OF SMYRNA (SEAL) B~ Mayor Attest: ~D.~~ -- -3- - EXHIBIT" A" NOTICE OF CALL FOR ELECTION TO THE QUALIFIED VOTERS OF THE CITY OF SMYRNA TO CONSIDER THE INCURRENCE OF UNBONDED INDEBTEDNESS BY THE EXECUTION OF A CERTAIN CONTRACT OR CONTRACTS YOU ARE HEREBY NOTIFIED that on the 15th day of March 2005, a special election will be held in the City of Smyrna (the "City"). At the election there will be submitted to the qualified voters of the City for their determination the question of whether or not the City should be authorized to enter into a contract or contracts with a private entity or with the Downtown Smyrna Development Authority, which contract or contracts provide for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith. - Such unbonded indebtedness, if authorized, shall be in the form of a contract or contracts with a private entity or with the Downtown Smyrna Development Authority for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith. The aggregate amount representing principal payable thereunder shall not exceed $22,000,000. The aggregate of the annual lease or purchase payments for the present public facilities already leased or purchased on an installment basis by the City from the Downtown Smyrna Development Authority and the purchase payments for the proposed public facilities to be purchased on an installment basis under such contract or contracts may not in any fiscal year of the City exceed by more than $1,550,000 what the City will pay in the City's fiscal year ending June 30, 2005 for the present public facilities. The purchase payments under such contract or contracts shall be payable from all lawfully available funds of the City. The term of such contract or contracts shall not exceed thirty (30) years. V oters desiring to vote to authorize the City 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 to incur such unbonded indebtedness shall do so by voting "NO" as to the question propounded, to wit: - "Shall the City of Smyrna be authorized to enter into a contract or contracts with a private entity or with the Downtown Smyrna Development Authority, which contract or contracts provide for the purchase on an installment basis by the City of new park and recreational facilities and improvements to existing park and recreational facilities, public sidewalks and trails, land to be preserved for parks or greenspace, renovations and improvements to the existing Brawner campus for use as public facilities, and other facilities, equipment, and property useful in connection therewith? -- The several places for holding the special election shall be in the regular and established precincts in the City, and the polls will be open from 7:00 a.m. to 7:00 p.m. on the date fixed for the special election. Those qualified to vote at the special election shall be determined in all respects in accordance and in conformity with the Constitution and laws of the United States of America and of the State of Georgia. The last day to register to vote in this special election is February 14,2005, through 5:00 p.m. This notice is given pursuant to joint action of the Mayor and Council of the City of Smyrna and the Municipal Election Superintendent of the City of Smyrna. -- MUNICIPAL ELECTION SUPERINTENDENT OF THE CITY OF SMYRNA BY: COBB COUNTY BOARD OF ELECTIONS AND REGISTRATION By: Chairman - -2- -- STATE OF GEORGIA COBB COUNTY CITY CLERK'S CERTIFICATE I, SUSAN D. HIOTT, City Clerk of the City of Smyrna, DO HEREBY CERTIFY that the foregoing pages constitute a true and correct copy of a referendum resolution adopted by the Mayor and Council of the City of Smyrna (the "Governing Body") at an open public meeting duly called and lawfully assembled at 7:30 p.m., on the 6th day of December 2004, in connection with calling a special election pertaining to the incurrence of unbonded indebtedness by the City, the original of such referendum resolution being duly recorded in the Minute Book of the Governing Body, which Minute Book is in my custody and control. I do hereby further certify that the following members of the Governing Body were present at such meeting: - A. Max Bacon Wade S. Lnenicka Michael McNabb Ron Newcomb Melleny Pritchett Bill Scoggins Jimmy D. Smith Charles Pete Wood and that the following members were absent: and that such referendum resolution was duly adopted by a vote of: Aye V Nay _' WITNESS my hand and the official seal of the City of Smyrna, this the 6th day of December 2004. (SEAL) ~~~1/U jJ Clerk - - AFFIDA VIT -- Personally appeared before the undersigned attesting officer, duly authorized to administer oaths, Mavor A. Max Bacon, who after being duly sworn, deposes and on oath states the following: (1) I was the presiding officer of a meeting of the Mayor and Council held on the 6th day of December, 2004. (2) That it is my understanding that O.C.G.A. S50-14-4(b) provides as follows: When any meeting of an agency is closed to the public pursuant to subsection (a) of this Code section, the chairperson or other person presiding over such meeting shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. (3) The subject matter of the closed meeting or closed portion of the meeting held on the 6th of December, 2004, which was closed for the purpose(s) of discussion oflegal matters as allowed by O.C.G.A., Title 50, Chapter 14, was devoted to matters within those exceptions and as provided by law. (4) This affidavit is being executed for the purpose of complying with the mandate of O.C.G.A. S50-14-4(b) that such an affidavit be executed. This 6th day of December, 2004. Mayor/Presiding Officer Sworn to and subscribed before me This 6th day of December, 2004. -- ~LJ. 7l~ f' > ~.. : ~ ':-".L; /<.1Y'-, ~ ~ /<';~"O~ f ! (. \-\: =: '-,-~ J-l: ~S..\.:;.~, '~~.~: 1,./ j ._;.....' ".../ .....:0... tJ I C ....~~ ....,... .....>.', ("'~"..,...~.,,~ ",........ o"{,::; '-....I G 1-.4. \\\\" iI/UIIIl," - November 29, 2004 A special called meeting of Mayor and Council was held at Smyrna City Hall in the 2nd Floor Conference Room. The meeting was called to order by presiding officer Mayor A. Max Bacon at 5:50 o'clock p.m. All council members were present except Council Member Pritchett, who was attending an NLC conference. Also present were City Administrator Wayne Wright, Deputy City Clerk Lee Miller, City Attorney Scott Cochran, Demarco Bell from Eltekon Capital and Christopher Travis from Gill, Elrod, Ragon, Owen and Sherman P A. FORMAL BUSINESS: (A) Approval of Lease Purchase Agreement with Eltekon Capital for Financing of Johnson Controls Improvements Mr. Wright stated the agreement under consideration will provide financing for capital improvements made in connection with the Johnson Controls master agreement. Mr. Wright stated the lease payments are covered by savings or revenue increases. ' - Council Member Wood asked Mr. Bell if Eltekon Capital (EC) is a third party to the agreement providing financing for Johnson Controls (JC), and Mr. Bell answered in the affirmative. Council Member McNabb asked what the lease factor for the agreement is, and Mr. Bell stated it is 4.16%. Council Member Wood asked if this is a fixed rate, and Mr. Bell answered in the affirmative. Council Member Newcomb asked what representative of the City has reviewed this lease purchase agreement, and Mr. Cochran stated that both the bond counsel and bond advisor customarily consulted by the City have reviewed the proposed agreement. Council Member Lnenicka asked Mr. Cochran if this agreement is something for which bids should be solicited. Mr. Cochran stated there is no requirement in this instance for bids. Mr. Cochran stated that the proposed interest rate for the agreement expires at the end of this month, and that the City's bond advisor has indicated that the proposed rate would be acceptable. Mr. Travis stated that the projected savings expected to be realized by the City from the planned JC improvements should equal or exceed the debt service. Mr. Travis stated that a staggered payment schedule is a feature of the proposed agreement which is not typically available in conventional bond issues. Council Member McNabb asked if the proposed payment schedule is contractually guaranteed, and Mr. Travis answered in the affirmative. Mr. Cochran stated he asked the City's bond advisor whether or not terms more favorable to the City could be obtained through a conventional bond issue. Mr. Cochran stated the City's bond advisor indicated it is uncertain whether or not a bond issue would be advantageous to the City in this case, and that there are costs associated with a bond issue which are not found in the EC proposal. Council Member Newcomb asked if the proposed agreement includes contingency provisions to address any performance deficiencies or other possible disputes with JC. Mr. Wright stated that JC is obligated to compensate the City for any shortfall between the combination of revenue increases and cost savings projected by JC and the revenues and savings actually realized. Mr. Wright stated that the lease agreement must be paid in any case. Mr. Wright stated that if JC cannot achieve the projected revenues and savings, then JC will have to compensate the City for any shortfall. Council Member Wood stated the proposed agreement is for an expenditure of $5,750,828.88 to be paid in 156 installments over a period of thirteen years. - MOTION: Council Member Wood made a motion to approve authorization for the Mayor to execute the lease purchase agreement between the City of Smyrna and Eltekon Capital, LLC. The motion was seconded by Council Member Scoggins. Motion was approved 6 - O. November 29,2004 ADJOURNMENT: With no further business, the meeting was adjourned at 6: 15 p.m. A A. MAX BACON, MAYOR 1 g;.~ ~ I , ~~~ . BILL SCOGG S, WJ~3 ~~~ CHARLES PETE WOOD, WARD 7 "'-. ~.,a410.1'~ / - 'AN D. HIOTT, CITY CLERK ~JJ~ , RON NEWCOMB, WARD 2 2 ~ - -