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04182005 April 18, 2005 April 18, 2005 - The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Mayor Pro Tern Wade Lnenicka at 7:30 o'clock p.m. All council members were present except Mayor Bacon, Council Member Scoggins and Council Member Smith. Also present were City Administrator Wayne Wright, City Clerk Susan Hiott, City Attorney Scott Cochran, Fire Chief Jason Lanyon, Public Works Director Scott Stokes, Police Chief Stan Hook, Library Director Michael Seigler, Parks and Recreation Director Steve Ciaccio, Keep Smyrna Beautiful Director Ann Kirk, Human Resources Director Chris Corey, City Engineer Ken Hildebrandt, Community Development Director Chris Miller, Community Relations Director Jennifer Bennett and representatives of the press. Mayor Pro Tern Lnenicka stated that Mayor Bacon and Council Member Scoggins are not feeling well and will not be present this evening. Mayor Pro Tem Lnenicka stated Council Member Smith is away on business. Invocation was given by Dr. Peter Grant from Cumberland Community Church, followed by the pledge to the flag. AGENDA CHANGES: Mayor Pro Tern Lnenicka stated that agenda item #4B (Rezoning Request Z05-005 - R-15 to RAD Conditional - 4.022 Acre Tract - Land Lot 446, Turner Drive and Belmont Circle - Belmont Development) will be tabled until the May 2, 2005 meeting. MA YOR'S REPORT: - Mayor Pro Tern Lnenicka recognized Ms. Cathy Wendholdt-McDade from the Cobb County Underage Drinking Task Force (CTF) and Lt. Keith Zgonc from the City police department. Council Member Newcomb read a Proclamation for Alcohol Awareness Month 2005 to those present and presented the Proclamation to Ms. Wendholdt-McDade. Mayor Pro Tern Lnenicka expressed appreciation to the members CTF for their efforts. Mayor Pro Tem Lnenicka stated that a measure for approval of a telecommunications contract will be added to the consent agenda. LAND ISSUES/ZONINGS/ ANNEXA nONS: (A) Annexation and Variance Requests - 2175 Church Road - Hemant Patel 1. Public Hearing - Variance Request V05-011 - Building Height from 35' to 55'- 2175 Church Road; Variance Request V05-012 - Reduction of Rear Setback from 40' to 15'- 2175 Church Road; Variance Request V05-0 13 - Reduction in Required Number of Parking Spaces - 2175 Church Road Mr. Wright stated the applicant plans to build a Country Inn and Suites (CIS) on the subject property which comprises 1.14 acres. Mr. Wright stated staff recommends approval of the variances provided a 10' buffer is included along the eastern property boundary and a number of other specified conditions are complied with as well. - April 18. 2005 2 Mayor Pro Tern Lnenicka stated this is a public hearing and asked for public comment, and the oath was administered to several persons by Mr. Cochran. - Council Member Wood recognized Mr. Patel, Mr. David Chiodo and Mr. B. H. Horn. Mr. Chiodo stated that Mr. Patel has been involved in the construction of a number of hotels and shopping centers. Mr. Chiodo stated a variance is needed to build the 55' high structure planned for this site. Mr. Chiodo stated an additional variance is needed to accommodate parking spaces. Mr. Chiodo stated the number of parking spaces planned is adequate for a hotel of the size proposed. Mr. Horn provided details to those present regarding Carlson Hotels Worldwide (CHW). Mr. Horn stated that Mr. Patel has previously developed hotels in partnership with CHW. Council Member Wood asked Mr. Horn if the CIS chain has a reservations system, and Mr. Horn answered in the affirmative. Mr. Horn stated CIS is a daily rate hotel with no kitchenettes. Mr. Horn provided details to those present concerning the types of rooms available at CIS hotels. Mr. Horn used a projector system to show various graphic illustrations of CHW/CIS locations and other details to those present. Council Member McNabb asked how long CHW/CIS locations are typically held before they are sold to other franchisees or closed. Mr. Horn stated CHW contracts are 15 years in duration with a costly buy-out option. Mr. Horn stated that, based on his recollection, only two CIS licensees have left the system over the last decade. Council Member McNabb asked Mr. Patel ifhe will be the owner/operator of the planned facility, and Mr. Patel answered in the affirmative. Mayor Pro Tern Lnenicka requested an explanation of the need for the three different variances applied for. Mr. Patel stated a four- storey structure will be needed for 66 rooms. Mr. Patel stated some reconfiguration will be needed to accommodate a conference center and an indoor pool with a spa. Mr. Patel stated a setback variance is needed for space for a detention pond to be built on the premises as well as for parking spaces. Mayor Pro Tern Lnenicka asked Mr. Patel if any attempts have been made to acquire adjacent properties in order to obviate the need for variances. Mr. Patel stated that the property on the east side has been acquired by a day-care center operator. Mr. Patel stated that nearby property on which a convenience store is located does not seem to be available at a realistic price. Mayor Pro Tern Lnenicka expressed the view that acquisition of the convenience store property could potentially improve the project in numerous respects. Mr. Chiodo stated that Mr. Patel is amenable to the idea of acquiring additional adjacent property if such an acquisition can be carried out in a manner which makes financial sense. Mayor Pro Tern Lnenicka asked what type of landscaping will be installed at the planned facility. Mr. Patel stated that the landscaping planned for the facility will meet or exceed both the standards for the franchise and the City's regulations. Mr. Patel stated that a hotel must be visually appealing in order to attract customers. Mr. Horn stated that the CIS brand is identified with a comfortable, home-like atmosphere. - Mayor Pro Tern Lnenicka recognized Ms. Mary Rose Barnes, president of Oak dale Community Association (OCA), and Ms. Barnes stated that she and other associates ofOCA are opposed to the approval of the submitted application. Ms. Barnes expressed the view that approval of the variances would result in a use which is too intense for the community. Ms. Barnes provided details to those present concerning factors associated with the project as proposed which she believes would impact unfavorably on the subject area. Ms. Barnes asked the city council to deny the variance applications. Council Member Wood stated that the present measure being considered by the city council is not a rezoning and, irrespective of any action taken by the city council at this meeting, the subject property can be developed as a hotel. Council Member Wood recognized Mr. Miller, and Mr. Miller provided a recapitulation of the conditions required for approval of the requested - April 18. 2005 3 - variances. Mr. Miller stated a 10' buffer will be required along the eastern property boundary of the subject tract as a condition of approval of the variance requests. Mr. Miller read the following conditions to be incorporated into the plan to those present: 1. A left-lane deceleration lane shall be provided for access into the development from the proposed entrance on Church Road. 2. No access into the development shall be provided along Oakdale Road and South Cobb Drive. Minimum sight distance on Church Road shall be verified by the city engineer. 3. Curbing, gutter, and sidewalk shall be required adjacent to any public right-of-way, and shall be consistent with City requirements for the extent of the development. A grass buffer with a minimum width of 2' shall be provided between the back of curb and sidewalk. 4. A 30' right-of-way shall be dedicated from the centerline of Church Road for future vehicular improvements. 5. Any detention structure shall be placed and screened appropriately to be unobtrusive to any person inside and outside the development. The storm water detention plan shall be designed to create at least a 10% reduction in a IOO-year storm event. The City Engineer shall approve all plans. 6. The engineering plans shall include a modular storm water detention unit to filter heavy metals and other pollutants. - Council Member Wood asked Mr. Miller if he recommends approval of the variances subject to the conditions as specified, and Mr. Miller answered in the affirmative. Mayor Pro Tern Lnenicka asked Mr. Miller what the required 10' buffer would consist of. Mr. Miller stated materials and width for buffers are specified in Section 503 of the Zoning Code, and provided additional details pertaining to buffers to those present. Council Member McNabb asked Mr. Miller if information regarding acreage of other CIS locations in this area has been reviewed for comparison, and Mr. Miller said no. Mayor Pro Term Lnenicka asked Mr. Patel if a modular storm water detention unit which filters out heavy metals and other pollutants could possibly be installed at the subject property. Mr. Patel stated that such a system was recently installed at another CIS location, and that he would agree to a requirement for a system of this type. Mayor Pro Term Lnenicka asked Mr. Patel if he will agree to cooperate with the City in regard to possible repositioning of a City monument sign indicating the city limits located near the subject property, and Mr. Patel answered in the affirmative. 2. Approval of Annexation Request - 1.14 Acre Tract - Land Lot 752, Parcel 31, lih District, 2nd Section, Cobb County, Georgia - 2175 Church Road - Hemant Patel MOTION: Council Member Wood made a motion to approve the annexation request for a 1.14 acre tract in Land Lot 752, Parcel 31, Iih District, 2nd Section, Cobb County, Georgia at 2175 Church Road for Hemant Patel to become a part of Ward 7 with an effective date of May 1,2005. The motion was seconded by Council Member Pritchett. Motion was approved 4 - O. - April 18. 2005 4 3. Final Vote on Variances (a) Variance RequestV05-0l1 - Building Height from 35' to 55'- 2175 Church Road - MOTION: Council Member Wood made a motion to approve Variance Request V05-011 for an increase in building height to 55' at 2175 Church Road for Hemant Patel subject to all staff recommendations. The motion was seconded by Council Member Pritchett. Motion was approved 4 - O. (b) Variance Request V05-012 - Reduction of Rear Setback from 40' to 15'- 2175 Church Road MOTION: Council Member Wood made a motion to approve Variance Request V05-012 for a reduction in rear setback from 40' to 15' at 2175 Church Road for Hemant Patel subject to all staff recommendations. The motion was seconded by Council Member Pritchett. Motion was approved 4 - O. (c) Variance Request V05-0 13 - Reduction in Required Number of Parking Spaces - 2175 Church Road MOTION: Council Member Wood made a motion to approve Variance Request V05-013 for a reduction in required number of parking spaces from 83 to 77 at 2175 Church Road for Hemant Patel. The motion was seconded by Council Member Pritchett. Motion was approved 3 - 1, with Council Member McNabb in opposition. (B) Public Hearing -Rezoning Request 205-005 - R-15 to RAD Conditional- 4.022 Acre Tract - Land Lot 446, Turner Drive and Belmont Circle - Belmont Development - Mayor Pro Tern Lnenicka asked if there is anyone present who wishes to speak in relation to this matter, and there was no response. MOTION: Council Member McNabb made a motion to table Rezoning Request 205-005 from R- 15 to RAD Conditional for a 4.022 acre tract in Land Lot 446 at Turner Drive and Belmont Circle for Belmont Development until the May 2, 2005 meeting. The motion was seconded by Council Member Newcomb. Motion was approved 4 - O. PRIVILEGE LICENSE: There were none. FORMAL BUSINESS: (A) Approval of Resolution approving execution of Lease Agreement between the Downtown Development Authority (DDA) and the City of Smyrna and approving issuance of bonds by the DDA Mr. Wright stated the purpose of the Resolution is to approve the issue of the parks and recreation bonds approved by the City electorate on March 15 and to authorize the execution of all necessary agreements and contracts in order to carry out the bond issue. Mr. Wright stated the bond issue will be in the amount of $22,000,000 and provided details to those present regarding - April 18, 2005 5 the proposed use allocation for these funds. - MOTION: Council Member Wood made a motion to approve the Resolution approving execution of Lease Agreement between the Downtown Development Authority and the City of Smyrna and approving issuance of bonds by the Authority. The motion was seconded by Council Member Newcomb. Motion was approved 4 - O. COMMERCIAL BUILDING PERMITS: There were none. MOTION: Council Member Wood made a motion to suspend the rules to add an item to the consent agenda. The motion was seconded by Council Member Newcomb. Motion was approved 4 - O. MOTION: Council Member Wood made a motion to approve addition of item #8F (Approval of Executive Summary of Telecommunications Franchise Agreement between American Fibernet Systems of Georgia, Inc. and City of Smyrna and authorization of the Mayor to execute said Agreement) as submitted by the city attorney to the consent agenda. The motion was seconded by Council Member Newcomb. Motion was approved 4 - O. CONSENT AGENDA: (A) Approval of April 4, 2005 Minutes (B) Approval of Budget Adjustment from Contingency - Public Works Fleet Management Division Due to price increases on new stock needed for new model vehicles and equipment these contingency funds are necessary to continue the day-to-day operations for the remainder of this fiscal year. Approval of transfer of$I,500.00 from contingency to supplement the Fleet Management division operating supplies account is recommended. - (C) Approval of Budget Adjustment from Contingency - Public Works Building and Grounds Division Because of the unanticipated need for repairs to the HV AC systems for several City buildings and over-estimated budget cuts these contingency funds are necessary to continue the day-to- day operations for the remainder of this fiscal year. Approval of transfer of $71 ,500.00 from contingency to supplement the Building and Grounds division R & M, Operating and Other Supplies accounts is recommended. (D) Approval of Use of Council Chambers by the Cobb County Board of Commissioners for a Special Local Option Sales Tax (SPLOST) Information Meeting on Thursday, May 5, 2005 at 7:00 p.m. (E) Approval of Temporary Closing of Plaza Drive for a Block Party on Saturday, April 23, 2005 from 10:30 a.m. until 4:30 p.m. - (F) Approval of Executive Summary of Telecommunications Franchise Agreement between American Fibernet Systems of Georgia, Inc. and City of Smyrna and authorization of the Mayor to execute said Agreement April 18. 2005 6 MOTION: Council Member Newcomb made a motion to approve the consent agenda. The motion was seconded by Council Member Wood. Motion was approved 4 - O. - COMMITTEE REPORTS: Council Member Pritchett recognized Mr. Stokes, and Mr. Stokes had no report. Council Member Pritchett recognized Ms. Kirk, and Ms. Kirk provided details to those present concerning current Keep Smyrna Beautiful (KSB) activities. Ms. Kirk thanked the Parks Department, Public Works Department, KSB associates and Ms. Virginia Davis for their assistance during a recent community clean-up event. Ms. Kirk provided details to those present concerning educational materials promoting good citizenship and litter prevention which will be distributed to students at local elementary schools. Ms. Kirk provided details to those present regarding an upcoming electronics recycling event to be conducted by Keep Cobb Beautiful early next month. Council Member Newcomb recognized Mr. Miller, and Mr. Miller provided details to those present concerning current building permit statistics. Council Member McNabb recognized Mr. Ciaccio, and Mr. Ciaccio had no report. Council Member McNabb recognized Mr. Seigler, and Mr. Seigler provided details to those present concerning recent and upcoming library programs and events to those present. Mr. Seigler provided statistics concerning current library use to those present. Mr. Seigler stated Ms. Rita Davis will be retiring soon, and invited everyone to come by the Library to bid her farewell. Mayor Pro Tern Lnenicka expressed appreciation to Ms. Davis for her service to the City over the years. - Council Member McNabb recognized Ms. Bennett, and Ms. Bennett provided details to those present concerning the Jonquil Festival and related events scheduled for next Saturday. Mr. Ciaccio provided details to those present concerning the upcoming Arthur Bacon Golf Tournament at Fox Creek Golf Course. Council Member McNabb recognized Mr. Corey, and Mr. Corey had no report. Council Member Wood recognized Ms. Edgar, and Ms. Edgar had no report. Mayor Pro Tern Lnenicka recognized Chief Lanyon, and read a letter to those present from the director of the Georgia Fire Academy commending Chief Lanyon for his assistance during Firefighter Weekend. Chief Lanyon provided additional details to those present regarding this event. Chief Lanyon reminded those present to check the batteries in their smoke detectors. Chief Lanyon stated that outside burning oflawn waste is prohibited in the City of Smyrna. Mayor Pro Tern Lnenicka recognized Chief Hook, and Chief Hook provided statistics concerning recent City police operations to those present. Mayor Pro Tern Lnenicka provided Chief Hook with information he recently received pertaining to a fraudulent activity. Mayor Pro Tern Lnenicka provided details to those present concerning the upcoming SPLOST measure. Mayor Pro Tern Lnenicka stated that part of Plaza Drive will be temporarily closed this Saturday for a neighborhood event. Mayor Pro Tern Lnenicka stated that officials from Banks - April 18. 2005 7 County came to the City for a site visit to obtain ideas for redevelopment. Mayor Pro Tern Lnenicka stated he is honored that U. S. Treasury Secretary Anna Cabral visited the City for a town hall meeting about Social Security reform, and thanked the Library staff and the Friends of the Library for hosting this visit. Mayor Pro Tern Lnenicka provided details to those present concerning water and sewer infrastructure improvements under construction in Ward 6. Mayor Pro Tern Lnenicka provided details to those present regarding another congressional redistricting plan which was introduced during the recent session of the Georgia General Assembly. Mayor Pro Tern Lnenicka stated that a work session of the city council which began earlier this evening will continue after this meeting. - CITIZENS INPUT: There was none. ADJOURNMENT: With no further business, the meeting was adjourned at 9:02 p.m. A. MAX BACON, MAYOR ~'J tfL/ MELLENY PRITCHETT, WARD 1 RON NEWCOMB, WARD 2 - t2L~cd~ CHARLES PETE WOOD, WARD 7 - WADE S. LNENICKA, WARD 6 ORDINANCE ANNEXING PROPERTY INTO THE CITY OF SMYRNA - Ordinance Number Land Lot 752 Acres 1.14 2005-6 WHEREAS, the City of Smyrna is authorized pursuant to Title 36, Article 2, of the Official Code of Georgia Annotated to allow annexation of property; and WHEREAS, the owners of 100 percent of the land described in Exhibit "A" attached hereto have been notified of the City's desire that their property be annexed into the City of Smyrna as shown on said Exhibit; and WHEREAS, the City of Smyrna held a public hearing on such on April 18, 2005 after first providing notice as required by law; and WHEREAS, the City of Smyrna has determined, and does hereby determine that the annexation of said property into the municipality would be in the best interests of the property owners of the area to be annexed and of the citizens of the municipality; and WHEREAS, at a regular meeting of the City Council of Smyrna the motion to approve the annexation of said property passed by a majority vote without veto; and - NOW THEREFORE, BE IT ORDAINED, and it is hereby ordained that the Charter of the City of Smyrna be amended and the same is hereby amended by adding to the description of the City Limits the property herein annexed. Such legal description is attached hereto as Exhibit "A. " BE IT ALSO ORDAINED that the Official Map of the City of Smyrna be amended to show the annexation of said property. SO ORDAINED by the City Council of the City of Smyrna, this April, 2005. \') - A ~ _. .. l."" ____ _ __ Scott A. Co hran, City Attorney City of Smyrna - Ordinance #2005-6 Exhibit "A" LEGAL DESCRIPTION ALL THAT TRACT OR PARCEL OF LAND L YTNG /4ND S,ING IN LAND LOT 752 OF THE 77TH DfSTRfCT, 2ND steT/ON cose COUtm". GEORGIA ANO BerNG MOR~ PARTICULARLY DESCRIBED AS FOLLOWS: B,GINNIN~ AT AN IRON PIN sa AT TJ.I~ INTERSECTION OF THE EASTERLY RIGHT 0;:- WAY Or SOUTH COBB DR/Ve. (200' RIGHT OF WAY) AND THE SOUTH fAS7!RL't' RIGHT OF WAY OF OAKDAJ..E ROAD (70' RIGI-{T o~ WA Y), SAlt) POINT 8E1NG r,.;~ POINT OF" 8~GINNING; THCNCE ALONG THE SOUTHE:ASTERN RlaHT OF WAY OF OAKDALE ROAD NORm .j~ DEGReES 78 MINur~ OJ secONDS E:A.ST A DISTANC~ OF 14D.94 FEEi TO AN IRON PIN SET; ri-lENCE LEAVING SAID RIGJ../T or WAY SOUTH as OCCR~~S 39 MINUTES 27 S~CON05 cAST A DISTANC~ OF' 785.034- FEET TO A 1/2. l'f&AR FOUND; THENcE SOUTH 00 DCGRErs J2 MINI.JT!S 08 SECONDS WEST - A DfSTANCE OF 17g.96 FEU TO A 1" IRON PIN FOUND ON 'n-f€ NORTHeRN RIGHT OF WAY or: CHURCH ROAD (VARfA8LE); THeNCE At.ONC SAID RIGHT Of:" WA ~ AND A CURVli: TO TH~ !.Err HAVING .A RADIUS OF" 450 rrrr ANO AN ARC OF 720 F&i, BEING SUBT~DED BY A CHORD Of:' SOUTH 72 DEGREES 44 MINUT!S 15 SECONDS WEST A DISTANCE OF' 119.64 ~~E:T TO A POINT; THENCE ALONG SAID (VARIABLE) RIGHT O~ WAY NORm 8.1 D~GRffS .22 MINUTES 31 SeCONDS WEST A D/STANC~ OF 736.89 F'tu TO AN IRON PIN SEr A T THE INTERSECT/ON 0;:- THE NORTHERN RIGHT 0;; WA Y or CHURCH ROAD AND TH~ EASTERN RiGHT OF WA Y O~ SOUTH COBe OR/VE,' THENCE WVlNG THt: CHURCH ROAD (VARIABLE) RICHT OF WAY AND CONTINUING A!.ONG THE EASTERN RIGHr OF' WAY OF sOUTH COSB ORf'l[; NORTH 07 DeGREES OJ MINUTES SS SECQNDS WEST A DISiANCE OF SJ. 44. ~Ei TO AN IRON PIN sa A r TJ./~ /NTERs~crION OF n-JE E:AST'ERN (200' RIGJ.JT OF WAY) Of: SOUTH COgS DRIVE AND TJiE SOUTH E:ASTERN (70' RIGJ.lT OF WAY) Of:' OAKDALE ROAD, SAID POINT 8€JNG THe POINT Of:" BeGINNING. rOG~TJ.lER WITH AND SU8J~CT TO COVEN,A.NTS, E:AS~MrNTS, AND PEST'RICTlONS OF RECORQ. SAID TRACT CONTA.INS 49,6;J9 SQUAR= Fro" OR 1. 74 ACRES MORE OR LLSS. - AUTHORIZING RESOLUTION #R2005-3 - WHEREAS, the Downtown Smyrna Development Authority (the "Issuer") is a body corporate and politic and public corporation duly created and validly existing under and pursuant to an amendment to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (1970 Ga. Laws 1117 to 1119, inclusive), now specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant to an Act of the General Assembly of the State of Georgia (1986 Ga. Laws 3957 to 3958, inclusive), as implemented by an Act of the General Assembly of the State of Georgia (1989 Ga. Laws 4382 to 4396, inclusive) (collectively, the "Act"); and WHEREAS, the Act authorizes the Issuer to borrow money and to issue its revenue bonds for the purpose of paying all or any part of the cost of any "project" of the Issuer, which includes the acquisition, construction, remodeling, altering, renovating, equipping, maintaining, and operating of buildings, both private and public, and the usual and convenient facilities appertaining to such undertakings and extension and improvement of such buildings; the acquisition of parking facilities or parking areas in connection therewith; the construction, reconstruction, alteration, changing, and closing of streets, roads, and alleys; the acquisition of the necessary property therefor, both real and personal; and the lease and sale of any part or all of such buildings, including real and personal property, so as to ensure the efficient and proper development, maintenance, and operation of such buildings, streets, roads, and alleys deemed by the Authority to be necessary, convenient, or desirable in connection therewith; and WIllI WHEREAS, the Act also authorizes the Issuer to acquire by purchase, lease, or otherwise, and to hold and dispose of real and personal property of every kind and character for its corporate purposes; and WHEREAS, the Act also authorizes the Issuer (1) to make contracts and leases and to execute all instruments necessary or convenient, including contracts for construction of projects or contracts with respect to the use of projects which it causes to be erected or acquired, and to contract with the City of Smyrna (the "City") upon such terms and for such purposes as may be deemed advisable for a term not exceeding 50 years and (2) to pledge and allocate the revenues, fees, tolls, and earnings derived from any project as security for repayment of its revenue bonds; and WHEREAS, the Issuer proposes to issue, sell, and deliver revenue bonds to be known as "Downtown Smyrna Development Authority Revenue Bonds (City of Smyrna Project), Series 2005" (the "Series 2005 Bonds"), in an aggregate principal amount of $22,000,000, for the purpose of obtaining funds to finance the costs of acquiring, constructing, and installing acquiring, constructing, and installing new park and recreational facilities, adding to, renovating, repairing, and improving existing park and recreational facilities and public sidewalks, and acquiring land to be preserved for future parks or greenspace, and other facilities, equipment, and property useful in connection therewith, all located within the corporate limits of the City (collectively, the "Capital Projects"), and to finance related costs; and - 6660605.1 WHEREAS, the Issuer will lease the Capital Projects to the City pursuant to a Lease Agreement (the "Agreement"), to be dated as of April I, 2005, under the terms of which the City ... (1) will agree to make payments of Basic Lease Payments (as defined in the Agreement) to the Issuer in amounts sufficient to enable the Issuer to pay the principal of, premium, if any, and interest on the Series 2005 Bonds when due, and (2) will agree to levy an annual ad valorem tax on all taxable property located within the corporate limits of the City, at such rates, without limitation as to rate or amount, as may be necessary to produce in each year revenues that are sufficient to fulfill the City's obligations under the Agreement; and WHEREAS, the Issuer anticipates that it will adopt a Master Bond Resolution on April 21, 2005 (the "Bond Resolution"), authorizing the issuance of the Series 2005 Bonds for the purpose of financing the costs of acquiring, constructing, and installing the Capital Project; and WHEREAS, pursuant to the Bond Resolution, the payments to be received by the Issuer from the City pursuant to the Agreement are pledged to, and a first priority lien is created thereon as security for, the payment of principal of, and premium, if any, and interest on the Series 2005 Bonds and any Additional Bonds (as defined in the Bond Resolution) that may be issued; and WHEREAS, the Bond Resolution sets forth, among other things, the interest rates that the Series 2005 Bonds bear and the principal amount of the Series 2005 Bonds that will mature in each year, and the Issuer will furnish the City with a certified copy of the Bond Resolution in order that any payments required to be made by the City under the Agreement may be accurately computed and conclusively established; and - WHEREAS, the Issuer has agreed to sell the Series 2005 Bonds to Morgan Keegan & Company, Inc., Knox Wall Division (the "Underwriter"), pursuant to a Bond Purchase Agreement (the "Purchase Contract"), the form of which has been filed with the City and submitted to the Mayor and Council of the City, among the Issuer, the City, and the Underwriter; and WHEREAS, pursuant to the Bond Resolution, the Issuer has ratified and authorized the marketing of the Series 2005 Bonds by means of a Preliminary Official Statement, dated April 14, 2005 (the "Preliminary Official Statement"), and an Official Statement, to be dated the date of the Bond Resolution (the "Official Statement"), both of which shall contain information about the Issuer, the City, and the Capital Project; and WHEREAS, after careful study and investigation, the City desires approve the issuance of the Series 2005 Bonds, to enter into the Agreement and the Purchase Contract (collectively, the "Contracts"), and to ratify and authorize the preparation, use, and distribution of the Preliminary Official Statement and the Official Statement; - -2- 6660605. J NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the City of Smyrna as follows: - 1. The issuance by the Issuer of $22,000,000 in aggregate principal amount of Downtown Smyrna Development Authority Revenue Bonds (City of Smyrna Project), Series 2005, be and is hereby authorized and approved for the purpose of providing funds to be applied as aforesaid. The Series 2005 Bonds shall be dated, shall be in such form, shall bear interest from date at such rates, shall mature and be subject to redemption, and shall contain such other provisions all as shall be provided in the Bond Resolution. 2. The form, terms, and conditions and the execution, delivery, and performance of the Contracts, which have been filed with the City, are hereby approved and authorized. The Contracts shall be in substantially the forms submitted to the Mayor and Council of the City with such changes, corrections, deletions, insertions, variations, additions, or omissions as may be approved by the Mayor or Mayor Pro Tempore of the City, whose approval thereof shall be conclusively evidenced by the execution of the Contracts. 3. The Mayor or Mayor Pro Tempore of the City is hereby authorized and directed to execute on behalf of the City the Contracts, and the City Clerk of the City is hereby authorized and directed to affix thereto and attest the seal of the City, upon proper execution and delivery of the Issuer, provided, that in no event shall any such attestation or affixation of the seal of the City be required as a prerequisite to the effectiveness thereof, and the Mayor or Mayor Pro Tempore and City Clerk of the City are authorized and directed to deliver the Contracts on behalf of the City to the Issuer, and to execute and deliver all such other contracts, instruments, documents, - affidavits, or certificates and to do and perform all such things and acts as each shall deem necessary or appropriate in furtherance of the issuance of the Series 2005 Bonds and the carrying out of the transactions authorized by this Resolution or contemplated by the instruments and documents referred to in this Resolution. 4. This Resolution and the Contracts, as approved by this Resolution, which are hereby incorporated in this Resolution by this reference thereto, shall be placed on file at the office of the City and made available for public inspection by any interested party immediately following the passage and approval of this Resolution. 5. The use and distribution of the Preliminary Official Statement and the Official Statement with respect to the Series 2005 Bonds shall be and is hereby authorized, ratified, confirmed, and approved, and execution and delivery of the Official Statement in final form shall be and is hereby authorized, ratified, confirmed, and approved. The Mayor or Mayor Pro Tempore of the City is hereby authorized and directed to ratify, confirm, approve, execute, and deliver the Official Statement on behalf of the City, and the execution of an Official Statement by the Mayor or Mayor Pro Tempore of the City shall constitute conclusive evidence of the his ratification, confirmation, approval, and delivery thereof on behalf of the City. 6. Any and all other resolutions or parts of resolutions in conflict with this Resolution this day adopted, be and the same are hereby repealed and this Resolution shall be in full force and effect from and after its adoption. - -3- 6660605.1 A RESOLUTION OF THE CITY OF SMYRNA CONSENTING TO A TRANSFER OF _ O\VNERSHIP AND CONTROL OF TELEPORT COMMUNICATIONS A TLANT A, INC. FROM AT&T CORP. TO SBC COMMUNICA nONS, INC. \VHEREAS, ON August 21 2000, the City of Smyrna ("City") granted to Teleport Communications Atlanta, Inc, ("Grantee"), a nonexclusive franchise (the "Franchise") to occupy and use the streets within the corporate limits of the City to provide telecommunications services through a telecommunications system; and WHEREAS, , Grantee requested renegotiation of a renewal franchise agreement, pursuant to Article II(5) of the agreement, by means of a letter dated November 5,2003, attached hereto as Exhibit A, and such renewal negotiations are pending; and WHEREAS, Grantee and SBC Communications, Inc ("SBC") have submitted a letter dated February 28, 2005 to the City, a copy of which is attached hereto as Exhibit B, describing the pending acquisition of AT&T Corp. ("AT&T"), the direct parent of Grantee, by SBC and as a result of the acquisition, Grantee will become a wholly owned subsidiary of SBC (the "Transaction"); and - \VHEREAS, the Transaction represents a transfer of control of the Grantee and, pursuant to the requirements of Article VIII (2) of the Franchise, Grantee has requested the City's consent to the transfer; NOW, THEREFORE, BE IT RESOLVED that the City of Smyrna does hereby consent to the proposed Transfer, subject to the following conditions, to which the parties have agreed: SECTION 1. That Grantee, shall not be released from any obligations or liabilities under the Franchise arising prior to the consummation of the Transfer and shall continue to assume all obligations and liabilities under the Franchise, including without limitation, all obligations, if any, as are currently required to have been performed but may not have not been performed, and the obligations of the Grantee with respect to Franchise fee payments. SECTION 2. That the parties submitting the application requesting consent stipulate that neither the City's consent to the Transfer nor the completion of the Transfer themselves shall in any way diminish or otherwise affect adversely any right that the City has, may have, or may at any time subsequently acquire with respect to any matter, including, without limitation, any right of the City to require compliance with the terms of the Franchise; it being acknowledged that the stipulation in this Section 2 does not affect the finality of the City's consent to the Transfer granted under this Resolution. - SECTION 3. That the City's consent does not constitute and shall not be construed to constitute a waiver of any obligations of the Grantee under the Franchise. - SECTION 4. That the transfer of control of the Franchisee and of all the rights and obligations under the Franchise and under this Resolution shall take effect on and after the consummation of the Transaction between and among AT&T and SBe. Section 5. The City's consent shall be null, void and of no effect whatsoever if the Transaction is not consummated by April I, 2007. RESOL VED, this resolution shall become effective upon execution by the Grantee, SBC, and the City. ADOPTED this /$ ~ day of ,2005. By: / ~ Name: A. Max Bacon Title: Mayor CITY OF SMYRNA (Seal) ~ ~ Attest: D, - Agreed to and Accepted: Teleport Communications Atlanta, Inc, Agreed to and Accepted: SBC Communications, Inc. By: By: Printed Name: Title: Printed Name: Title: - CITY CLERK'S CERTIFICATE - I,q ~~ JbAII D. ~he duly appointed, qualified, and acting City Clerk of the City of Smyrna (the "City"), DO HEREBY CERTIFY that the foregoing pages of typewritten matter constitute a true and correct copy of a resolution adopted on April 18, 2005, by the Mayor and Council of the City in a meeting duly called and assembled in accordance with applicable laws and with the procedures of the City, by a vote of 2-Yea and ~ Nay, which meeting was open to the public and at which a quorum was present and acting throughout, and that the original of the foregoing resolution appears of public record in the Minute Book of the City, which is in my custody and control. GIVEN under my hand and the seal of the City, this 18th day of April 2005. (SEAL) - - 6660605.1 - - - PASSED, ADOPTED, SIGNED, APPROVED, AND EFFECTIVE this 18th day of Apri12005. CITY OF SMYRNA (SEAL) BY:~ Mayor Attest: ~~D.Y~ -4- 6660605.1