May 5, 1997 Council Meeting
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May 'i, 1997
The regular scheduled meeting of Mayor and Council was held 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 Howard Smith, City Clerk Melinda Dameron, City Attorney Charles E.
Camp and representatives of the press.
Invocation was given by Mr. Don Barbee, Youth Minister of Welcome All Baptist Church, followed by the
pledge to the flag.
r:TTT7FNS TNEllI:
Mayor Bacon recognized Kenny Burts, Key Lime, Inc., who presented him with a pie in commemoration of
the 500,000th key lime pie his company has produced. Mr. Burts expressed his appreciation to the city for
their support of his business. Councilman Cramer expressed his appreciation to Mr. Burts for providing pies
as a first place prize for the winners in the Jonquil City Jog.
Mayor Bacon recognized Curt Johnston. Mr. Johnston thanked the citizens of Smyrna for electing him to
serve as the Post 2 School Board Representative on the Cobb County Board of Education. Mr. Johnston urged
the citizens to support the proposed one cent sales tax increase to be used for education. He further stated this
item will be on the ballot June 17, 1997.
EIJRT TC: HFARTNGS:
(A) Variance Request _ 2393 Spring Road - Reduce Rear Yard Setback from 100 Feet to 93.5
Feet
Mr. Smith stated Eckerd's is requesting this variance in order to have a 6' x 12' canopy on the rear of the
building over the loading dock. Mr. Smith states this atfects the setback and the Spring Road Overlay requires
a 1CX) foot rear building line and the canopy would project 6 feet into the rear setback. He further stated the
canopy is planned to be the same color as the building.
Mayor Bacon asked the applicant, Jack Krivick, to come forward. Mayor Bacon stated this is a public hearing
and asked if anyone was present in opposition to the granting of this variance request. There was none.
Councilwoman Capilouto asked Mr. Krivick, Director of Construction for United Retail, to explain why the
variance is necessary. Mr. Krivick explained the canopy over the loading dock will protect the employees in
inclement weather as well as the concrete below the canopy and will prevent injuries.
Councilwoman Capilouto stated for the record there is a letter from the nearest residential property, Farmstead
Condominiums, stating they have no objection to the variance request. Councilwoman Capilouto made a
motion the variance request at 2393 Spring Road to reduce the rear yard setback from 100 feet to 93.5 feet
be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0.
(B) Variance Request _ King Springs Road for Paces Springs Subdivision - Reduce Front Yard
Setback from 20 Feet to 10 Feet
Mr. Smith stated the developer is requesting this reduction for the entire subdivision. He further stated there
are several creeks that run through the property and some flood plain area. Mr. Smith stated the developer
is requesting this variance to minimize the adverse impact on those areas during construction. Mr. Smith
stated the developer is Knight-Davidson Companies.
Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of
this variance request. City Attorney Chuck Camp administered the oath to those present who wished to speak
against the variance request.
Mayor Bacon recognized David Knight, Knight Davidson Companies. Mr. Knight stated he is the developer
of the Paces Spring Subdivision on King Springs Road. Mr. Knight stated his company received a rezoning
on this property last year and at that time they requested a 15 foot front setback. He further stated during
development of the property, they discovered the property is surrounded on three sides by a creek and flood
plain. Mr. Knight stated they are requesting that the front yard setback be reduced from 15 feet to 10 feet to
allow for a larger footprint house and to also pull the house away from the creek and flood plain area. Mr.
Knight further explained this will still allow them to maintain 22 feet of driveway in the front yard and allows
more flexibility with the footprint of the house.
Councilman Wood stated the rezoning was approved September 16, 1996, and there were a number of
May ')~ 1997~ meetine - continued
stipulations with that rezoning request. Mr. Wood asked Mr. Knight if he was asking for any of those
stipulations to be changed. Mr. Knight responded he was not. Mr. Wood further stated the stipulations for
the rezoning will not be changed and the only variation would be to reduce the front yard setback from 15 to
10 feet. Mr. Wood stated the variance is being requested due to the topography of the property and the flood
plain area.
Mayor Bacon recognized Phil Minetti, Lake Laurel Drive. Mr. Minetti stated he lives in the flood plain area
on Lake Laurel Drive. Mr. Minetti further stated he has seen an additional amount of silt coming into their
property. He further stated his concern is with the building being so much closer to the road at this time, the
amount of sediment that will flow into the lake and the fact that it will make it more difficult to keep the silt
fences up and the potential for additional sediment into the lake exists. Mayor Bacon asked if the silt fences
have been up to this point. Mr. Minetti responded they monitor the silt fences and find that too often the silt
fences have been found down -- naturally after a big storm -- but also from possibly being moved from the
construction. He further stated the storm drains have been blocked with bags full of rocks and as a
consequence, the water is flowing along the street over to King Springs and down the side of King Springs
and into the same creek that is supposed to be protected by the settling ponds. Mayor Bacon asked Mr. Knight
if he felt that if the variance is granted, would this increase the problems Mr. Minetti has detailed. Mr.
Hawkins asked Mr. Minetti if his concern was for the increased silt during construction or that the houses
being moved closer to the street will increase the flow of water without the issue of silt. Mr. Minetti stated
his concern is two fold - one, that the developer is asking to allow for a larger footprint on the property for
the house itself, therefore, it does mean in the long run there will be additional water running off. He also
stated his primary concern is during the construction process, it is that much more difficult with the setback
set to 10 feet rather than 15 feet to keep silt fences up along the side of the road and at the same time continue
the construction process. Mr. Smith stated he has received several calls from that area and the city has been
diligent in sending the City Engineer and the Zoning Administrator out to monitor the situation. Mr. Smith
stated the city is very diligently dealing with this issue but that part of the problem is created by developments
in Cobb County and not in the City of Smyrna and therefore the city has no control over those problems. Mr.
Minetti stated they did appreciate all the City of Smyrna has done in that regard and Cobb County has also
done some things to help. He stated in the interim the lake is being damaged and there is no direct restitution
being placed onto the lake and the lake owners even though the developers have to do something about it to
make sure it does not haRpen in the future, in the meantime the lake is being damaged and he is concerned
about that. Councilman Wood assured Mr. Minetti the city would have the City Engineer and the Code
Enforcement personnel go out and make sure the developers are complying with all applicable ordinances of
the City of Smyrna. He further stated the city does require a retention pond on that property to control the
flow of the water into the Lake Laurel tributary. He stated the city will work with Mr. Minetti on this issue.
Mr. Knight explained the problems Mr. Minetti is detailing are problems that have been ongoing for some
time from other developments, or years of development in other areas. Mr. Knight stated they plan to move
the house forward and the footprint is not going to be so big as to cover the entire area that is being talked
alxmt. He stated the footprint difference will be an average of maybe 100 square feet, 3 feet difference in the
back and they are not talking about going all the way to the creek with the house. He stated this will give them
some flexibility in moving the houses and using a little bit larger footprint -- not double the size footprint.
Mayor Bacon asked if by moving the house 10 feet closer, and even if the homes are increased in size, will
it increase the problems of the homeowners. Mr. Knight responded they are only asking for five feet and if
the concern is whether they can maintain the silt fence, he explained the silt fence usually goes behind the curb
so that should not create a problem. Councilman Wood assured Mr. Minetti that the city will follow up on
the silt fence issue particularly following any significant rain to be sure the silting is maintained and the city
will do everything reasonable to be sure no problems are caused at Lake Laurel. Mr. Wood further stated he
feels this is a good development for the City of Smyrna. Mr. Minetti asked if it would be possible to set up
some type of program whereby if the silt fences are not up or not up within an appropriate amount of time
after heavy rains which has brought them doWll, a fine is set and payable directly to the restoration of the lake.
Mr. Wood responded the city has existing ordinances that deal with that - fines and failures to comply with
the regulations pertaining to silting and other types of building infractions. He stated the city will enforce
them and he will talk with the building inspector about this. Mr. Minetti asked if the fines are levied, who will
be the beneficiary. Mr. Wood stated those revenues come to the city because the city has to pay the persons
to do the inspections and other things relating to the building process. Mayor Bacon stated the city does not
have any provisions to set money aside for any subdivision, homeowner's association or lake fund at all, the
money all goes to the city.
Councilman Wood made a motion the variance request at King Springs Road for the Paces Springs subdivision
to reduce the front yard setback from 15 feet to 10 feet be approved. Councilman Cramer seconded the
motion. Motion was approved 7-0.
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May'), 1997, meetine - continued
(C) Annexation of Property in Land Lot 268 (Northern End of Head Drive) 1.4 Acres
Mr. Smith stated Sam Mathews has requested the annexation of two parcels in Land Lot 268, located at the
northern end of Head Drive. He further stated the two parcels contain a total of 1.4 acres and were included
in the recent rezoning for the Polo Club Development which was rezoned RAD-Conditional on March 17,
1997.
...
Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the annexation
of this property. There was none.
Councilman Cramer stated this annexation has been properly advertised and this is the final reading for this
annexation. Councilman Cramer made a motion the annexation of property in Land Lot 268 (northern end
of Head Drive _ 1.4 acres) be approved to become a part of Ward 5 with an effective date of June 1, 1997.
Councilman Newcomb seconded the motion. Motion was approved 7-0.
(D) Closing of Grady Street and Hughes Street
Mr. Smith stated this is being done as a part of the transportation improvements on Fleming Street associated
with Campbell High School and a rear entrance for parking.
Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the closing of
Grady Street and Hughes Street at Fleming Street. There was none.
...
Councilman Hawkins stated the primary reason for the closure of these two streets is the request by residents
who live on Grady Street and Hughes Street. He further stated Cobb County is planning to widen Fleming
Street and make a straight drive off Atlanta Road to the new high school. He further stated one of the
concerns voiced at the public meeting held last year was that a lot of traffic would use Hughes and Grady
Streets as a short cut. Mr. Hawkins stated petitions were received from the residents asking that the streets
be closed as well as letters from two businesses who were opposed to the closing. Councilman Scoggins
stated he also received letters from residents on Brown Circle who stated they had concerns about the increased
traffic on Brown Circle. Mr. Scoggins stated the city is aware of the problem and the city will address these
problems. Councilman Hawkins made a motion that the city close Grady Street and Hughes Street at their
intersection with Fleming Street. Councilman Scoggins seconded the motion. Motion was approved 7-0.
(E) Rezoning Request - 2155 Campbell Road - 6.9 Acres - From Neighborhood Shopping (N.S.)
To RAD Conditional - Single Family
Mr. Smith stated Orchard Gate Development, Inc., represented by Mr. Joseph Dewberry, wants to develop
this property into twenty-eight lots with the average lot size being about 7,000 square feet with the minimum
house size being 1800 square feet. Mr. Smith stated following the action taken on this rezoning request, there
may be a land use change. Mr. Smith stated this issue was heard by the Planning and Zoning Board and it was
the unanimous recommendation of that board to approve this rezoning.
Mayor Bacon asked the applicants to come forward and stated this is a public hearing. He then asked if
anyone was present in favor of or opposed to this rezoning request. Those persons came forward and City
Attorney Chuck Camp administered the oath.
...
Councilman Newcomb stated the current zoning on the property is Neighborhood Shopping District and has
always had the commercial zoning because of the restaurant. Mr. Newcomb stated the issue is whether the
Neighborhood Shopping should be changed to residential and what the residential developed should be if any.
Councilman Newcomb asked Mr. Frank Johnson, representing the owners, and Mr. Joe Dewberry, the
developer, to come forward. Mr. Johnson stated he is representing Winslow Company and read the following
statement. Mr. Johnson read "the two room cabin known as Aunt Fanny's Cabin was supposedly built around
1840. However, there is no documentation to that fact. He further read the cabin was opened to the public
in 1941 by Isoline Campbell McKenna, whose family bought the property around the turn of the century. She
sold antiques, jams and jellies, vegetable soup and gingerbread that was baked by Aunt Fanny Williams. In
1946 Harvey Hester and Margie Bowman assumed operation and began marketing the restaurant as a slave
cabin. Both Mr. Hester and Ms. Bowman died in 1968 and George Pongo Poole took over the operation.
Pongo perpetuated the slavery theme of the successful restaurant until his death in 1988. The business was
then operated by his son Chip and his wife Gretna Poole until it was sold to the current owners in 1992. The
restaurant remained open until January, 1994, due to huge operating losses each month. The business had
been in decline for several years due largely to the politically incorrect slavery marketing theme. The fact was
highlighted by numerous derogatory articles by the local Atlanta news media. These reasons along with the
May'), 1997, meeting - cnntinlleo
cost to make repairs to the old building are why the restaurant has never re-opened. He further stated it is his
understanding that Aunt Fanny Williams never lived in the cabin nor was she born on the property as the story
is told. She did cook soup and gingerbread in the cabin for the Ladies Auxiliary Sewing Bees held by Mrs.
McKenna before the business was opened in 1941. She was involved in the restaurant until her death in 1949
at the estimated age of l(X). A very strong marketing effort has been made for the last three years to keep the
restaurant and building intact with whatever history that might be associated with it. This effort has been
unsuccessful due to the negative press of the media. Also, the service style and size of the operation requires
some 60 employees, utility bills in the restaurant averaged some $7,000 per month and general liability
insurance was almost unattainable and very expensive due to the age and general repair of the facility. The
estimates to remedy the situation range from $250,0<X) to $400,0<X) making the venture financially not feasible.
There was more than one estimate, the place has been under contract to be continued as a restaurant several
times but they were never able to close due to the high cost of making the repairs." Mr. Johnson stated tonight
the owners bring before the city a proposal for the development of the property that is very different from the
plan submitted last September. He stated the new proposal differs in both density and quality. He stated the
Planning and Zoning Board, the Mayor and Council and the neighborhood spoke loud and clear last September
and the owners heard what was said. Mr. Johnson stated the Winslow Company has worked hard and made
difficult compromises to bring forth a quality development plan and a quality development for the property.
He then thanked the Mayor and Council on behalf of the Winslow Company for allowing them to bring this
back to the council for a vote. He then stated Joe Dewberry would present his proposal for the development
of the property.
Councilman Newcomb stated he would like to comment before Mr. Dewberry makes his presentation. Mr.
Newcomb asked Mr. Johnson about his efforts to market the property. Mr. Johnson responded they have
advertised the property literally all over the country. He stated he has had calls from interested persons from
all over the country and has shown the facility several times, had it under contract several times, but the cost
of repairing the property was too great.
Mr. Dewberry stated they felt they can meet two main criteria that he was given in order to bring this issue
back before council and receive any type favorable response from the community and the elected officials.
Mr. Dewberry stated those two criteria are density and price range/quality of the homes. Mr. Dewberry
further stated they have held several meetings with the elected officials, representatives of the community and
received input from those persons and made some changes to their plans. He stated the plans presented tonight
will be acceptable to all parties. He stated these homes will be marketed from the very high $190,000's and
they hope to have only a few homes that fall below the $200,000 range but they do hold that open as a
possibility, on up into the low to mid $200,000 price point. He stated if the market so demands, they will react
and gladly see those homes go up in price. Mr. Dewberry stated the homes will be comparable in looks, width
of the lots as the homes in the Orchard Gate, Orchard Park and certainly downsized from the homes in the
Highgrove Development in the heart of Vinings where the prices ranged from $400,000 to $700,000. He
stated the density will be basically comparable or almost comparable in each case so that the look and the feel
of the subdivisions as you drive through them will be very similar. He stated the homes will have not quite
the luxury items that some of the higher priced homes might have. Mr. Dewberry stated there had been some
concern expressed about the large group of trees that back up on Lots 18,19 and 20 in the area just east of the
old cabin site. Mr. Dewberry stated the original entrance was shown as coming in through Lot 19 with a cuI
de sac coming through in an exact nip of what is being presented tonight. He stated that plan was designed
when he and Mr. Johnson were trying to market the restaurant and possibly leave it intact as a catering/events
type place with the subdivision wrapped around it. He further stated when nothing developed on that point they
decided the better thing to do was move ahead on the entire tract. He stated they have decided to make the
change indicated which will allow them to save some of the large hardwood trees by nipping the entrance and
will now allow them to leave four or five of the large trees (oaks). Mr. Dewberry also stated that the residents
to the west and north asked that the trees that exist along those property lines be left and they will do that.
He stated that will create a visual buffer and where there are trees along the north boundary, east boundary
and west boundary they plan to leave all the trees that are possible. Mr. Dewberry also stated they will install
fencing along that entire boundary and he requested they be allowed to install a six foot wooden type privacy
fence at the rear of each one of those lots that adjoins an existing boundary and he proposed to do that at the
time the home is built. Mr. Dewberry stated they are still developing the street scape along Campbell Road
but they would like to take some of the topsoil from the property and create a berm probably around three feet
high (plus or minus and that may vary a little bit) that would create a privacy situation. He further stated on
top of that berm they would then place a privacy fence in those areas where privacy for the rear of the yards
would be important. He stated they would like to break that solid fence up with a more architecturally
attractive fencing of a type that they are still working on. He stated they would like to make an attractive entry
statement using possibly brick columns and good beams from the property with a plaque designating what the
property had been and possibly a plaque that would have a little bit of history of what the property had been.
Councilwoman Capilouto asked about the berm on the back of the property that does not go all the way across
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May'), 1997~ meetine - continued
the property. Mr. Dewberry responded that along Lots 18, 19 and 20 there is a section where the large oak
trees are and there are root systems that are actually in the right of way area and they feel that they would have
the best chance to save those trees if they put a berm through that area. He further stated the berm would have
to terminate as they get to about where the old cabin entrance was and then they will have to work with either
a very low berm which may have to undulate in and out without damaging those trees. Ms. Capilouto stated
she was concerned about the property that abuts Countryside Condominiums. Mr. Dewberry stated there is
no berm per se there but they will try to do a little bit of a berm across Lots 7, 8 and 9.
Councilman Newcomb asked Mr. Dewberry to describe the style of the houses. Mr. Dewberry responded
... the style will be very comparable to the homes in the Orchard Gate development. He stated they will use
several of those plans. He said those homes are typically called traditional style and some are brick, some are
stucco to give a European look, some have a New England look by using shingle siding. He further stated
they use a lot of stone and brick accents and they will continue to use a lot of those fronts. He stated the basic
front elevation and the width of the homes is very comparablc to those at Orchard Gate. He stated the square
footage will be probably be 400 - 500 feet less than the homes in Orchard Gate. Mr. Dewbcrry stated they
will have some siding homcs but they do not want to have more than 10 to 15 percent of the homes to be all
siding.
...
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Councilman Newcomb asked Mr. Dewberry to describe the sidewalks and streets. Mr. Dewberry stated the
plans renect 26' streets but they like to do 28' streets. He stated they have asked for permission to put
sidcwalks on only one side of the strcet through the subdivision which gives less hard scape and allows thcm
thc ability to use the landscaping to its best effcct. He statcd they plan to have a sidewalk that runs the
complete distance along Campbell Road. Mr. Dewberry statcd the utilities will be undcrground. Mr.
Newcomb asked about the light poles in the development. Mr. Dewberry responded they would like to look
at decorative light poles and will work with the City Engineer about the lighting requirements. Councilman
Lnenicka asked Mr. Dewberry if he would be willing to meet with Ken Hildebrandt, City Engincer, and
mutually agrec on a polc that would bc suitable. Mr. Dewberry statcd hc would.
Mayor Bacon recognized the following persons. Mr. Charlie Phillips, 3194 Isoline Way. Mr. Phillips thankcd
thc city for an opportunity to speak. Hc stated he is all for the rezoning of thc property from commcrcial to
residcntial to maintain the residcntial character of Campbell Road. He also stated this planned development
will be very attractivc and thc quality of thc homes is excellent. Mr. Tom Hutchinson, 2374 Goodwood
Boulevard, stated he supports and endorscs this development. He stated he was glad to have somcthing of
quality come into the neighborhood. He stated his only concern is coming out of Oakley Downs is the traffic.
Mr. Harrison Osterhaudt, 3255 Ann Road, expressed his concerns about the traffic on Campbell Road. He
stated he is not against thc subdivision but would like to see something donc to allow pcople to get in and out
of Argyle Drive onto Campbell Road. He said if the city can do something about that, he will not object to
the subdivision, but otherwise he is against it. Mr. Peter Stelling, 2514 Oakwood Way, President of the
Homeowners Association at The Park at Oakley Downs. Mr. Stelling stated he is very appreciative of the fact
that Mr. Dewberry has worked with the surrounding homeowners and feels the development will benefit the
surrounding neighborhoods. He further stated his concern is that the Neighborhood Shopping designation be
removed and the residential quality of Campbell Road be maintained. Ms. Andrea Bluestein, President of
Country Park Condominium Association. Ms. Bluestein stated she is basically in support of the project as it
has been presented. She stated there were two negatives to the development. She stated the increased traffic
on Campbell Road and the fear it might become a four-lane road and she strongly encouraged Mr. Dewberry
to try to maintain the historical hardwoods on the property. Ms. Bluestein said she would hate for the city to
lose the Cabin on the property and would like to see it moved to another location. Ms. Maureen Kirby, 3327
Campbell Road stated she is not in opposition to the zoning, however, she would like to see something done
about the historical enhancement of the property. Shc furthcr statcd shc would likc to sce somcthing donc by
the city to prcserve the cabin. Ms. Janicc Wisc, 2127 Argyle Drive, stated she is ncither for nor against the
development. She stated she wants something good for the community and neighborhood. She stated she too
would like to see something done to preserve the cabin. Ms. Wise stated she was confused as to how this
rezoning request could be heard tonight when there is a one year waiting period for rezoning following denial.
Councilman Newcomb statcd the development was of such quality that he had asked the Mayor and council
to waive the one-year waiting period to hear the rezoning request. Mr. Newcomb stated he had met with area
homeowners and asked if they thought the project had enough merit to ask the Mayor and Council to waive
the waiting period and the consensus was that the project was certainly worth waiving the waiting pcriod. Mr.
Ncwcomb stated the concern was if the developer had to wait an additional six months to bring the request
before the city, that he might not be around in six months. Ms. Wise stated she was concerned about the
Spring Road project and in particular the pedestrian bridge across Spring Road. She expressed concern that
her tax dollars were being spent on that and yet they may not be spent on preserving the cabin. She stated the
pedestrian bridge was basically for children who live in apartments and their families do not even pay taxes.
Mr. Newcomb stated the Spring Road widening project is a Cobb County project and funded by the county
taxpayers. Mr. Newcomb stated the walkover is a safety issue for the children on Spring Road and also allows
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a better traffic flow on Spring Road. Councilman Cramer stated the bridge is being funded by the 1 % road
tax improvement funds. Councilwoman Capilouto stated she too had some concerns about bringing the
rezoning request back before council before the one year waiting period had expired. Ms. Capilouto stated
she had talked with Mr. Dewberry, visited his other developments and was very impressed with them. She
stated she feels this is a quality proposal and would prefer to see the residential development as opposed to
anything commercial being built on that site. She also stated with the current zoning, anyone could build a
commercial development without coming before the council. Ms. Wise stated she was also concerned about
the county property across from the Aunt Falmy's Cabin property. Ms. Capilouto stated she would like to see
a group of citizens start a historical preservation group to save the building on the property. Ms. Wise stated
she was concerned about the foot traffic on Campbell Road with the Campbell High School being changed to
a middle school.
.....
Councilman Newcomb addressed several issues. He further stated that Mr. Johnson has offered to make the
Aunt Falmy's Cabin structure available to anyone who might be interested in it. Mr. Johnson stated on behalf
of the Winslow Company they have offered to donate that building to the city. Mr. Newcomb stated on the
issue of the trees, the city will mark the ones to be saved as well as the drip area around the trees so as not
to disturb those trees and Mr. Dewberry has agreed to this. Mr. Newcomb stated the proposed road on the
property across from the Aunt Famw's site will be addressed by Cobb County through public hearings and any
rezoning request on that property will be addressed as well through public hearings. Mr. Newcomb stated the
NS designation currently on the property would allow any commercial development within that zoning
designation to be built on the property without coming before council. Mr. Newcomb further stated he
believes Mr. Johnson has made every effort to find a buyer for the property under that current zoning with
no results. Mr. Newcomb further noted that the Planning and Zoning Board unanimously approved the
rezoning request.
Councilman Newcomb made a motion that the rezoning request at 2155 Campbell Road (6.9 acres) from
Neighborhood Shopping to RAD Conditional - Single Family be approved with the following stipulations.
1.
Installation of a 6' wooden privacy fence along the rear boundary of each lot that adjoin" the
western, northern and eastern boundary of subject property. He further stated these fences
will be installed as each house is finished and landscaped.
Along the Campbell Road frontage, installation of a berm of up to three feet in height in areas
where the berm will not harm the root system of existing trees. This would include all of
Lots 1 and 2R and parts of lR, 19 and 20. Additionally, the installation of fencing along the
side and rear yards of the lots along Campbell Road on the side facing Campbell Road as well
as the rear. Tins will include wooden privacy fencing and putting a decorative fence of some
kind along the entrance to the subdivision. The subdivision entrance will include brick or
stone features designed by their landscape architect and will incorporate some bricks or beams
from Aunt Fanny's Cabin. Along Campbell Road, installation of some twelve to fourteen
foot high willow oaks on 30 foot centers. Additional landscaping and plantings along
Campbell Road.
Installation of acceleration and deceleration lanes at the entrance to the subdivision. The
deceleration lane shall be a 100 foot lane with a 50 foot taper, and the acceleration lane shall
be a 50 foot taper or as the City Engineer shall otherwise specify. The lanes shall be
constructed so as to an asset and not harmful to the entrance of Oakley Downs.
Preservation of as many of the large hardwoods on the rear of Lots 18, 19 and 20 as possible.
Such trees shall be tagged and protected. Also, preservation of as many of the trees as
possible on the other three boundaries.
Installation a street with a width of 28 feet (back of curb to back of curb). Sidewalks on one
side.
Minimum house size of 1800 square feet. Traditional style, with brick and stucco.
Will build according to the plat submitted to the Community Development Department.
Underground utilities and decorative street light poles
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2.
3.
4.
5.
Mr. Dewberry agreed to the stipulations. Councilman Lnenicka seconded the motion. Councilman Lnenicka
stated that traffic on Campbell Road has always been an issue and the traffic concerns on Argyle Drive have
been discussed in the past. He further stated it was the opinion of the City Engineer and the city that stop
signs on Campbell Road at Argyle Drive would create a hazard. He further explained that as you head
westbound on Campbell Road and come over the rise toward the High School, if you had several cars stopped
at that stop sign and they were backing up onto that hill, a car coming over the top of the hill (at a legal speed
limit) would not have time to stop and therefore there would be more accidents as opposed to fewer accidents.
Mr. Lnenicka stated he was open to any suggestions anyone had about what could be done to help that
situation. Mr. Lnenicka said he has been asked many times during his ten years on the council if Campbell
Road was going to be four-Ianed. Mr. Lnenicka stated it is not and promised that the road will remain a
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May 'i, 1997, meetine - continued
..
residential street and residential neighborhood. Councilman Lnenicka stated he has always supported the
preservation and enhancement of residential neighborhoods and will continue to do that with Argyle Estates.
Mr. Lnenicka stated that as far as waiting a year before bringing this rezoning request before council, Mr.
Johnson believes this is the best deal he will get and has presented a very reasonable case that he can not get
a good buyer for the property as it is currently zoned. He further stated the city was not happy with the
proposal brought before them last September. Mr. Lnenicka further stated the Mayor and Council did not
decide to move forward with this request until after he had personally contacted a number of folks in Argyle
Estates and explained some of the issues to them. He stated they in turn looked into the issue themselves and
came to him unanimously and said they felt it had enough merit to move forward. Mr. Lnenicka stated the
sidewalk on Campbell Road was constructed in 1988 using city money and it will be maintained. Mr.
Lnenicka stated he shared the citizens' concerns about historical issues and felt Mr. Dewberry has indicated
he is more than willing to work on all those issues.
Motion to approve the rezoning request at 2155 Campbell Road (6.9 acres) from N.S. to RAD Conditional -
Single Family was approved 7-0.
(F) Land Use Change - 2155 Campbell Road - 6.9 Acres - From Neighborhood Activity Center
to Medium Density Residential
Mr. Smith stated this is a Land Use Change to coincide with the rezoning that was just approved at 2155
Campbell Road.
Mayor Bacon stated this is a public hearing and asked if anyone had any comment concerning this issue. There
was none.
Mr. Newcomb made a motion that the Land Use Change at 2155 Campbell Road from Neighborhood Activity
Center to Medium Density Residential be approved. Councilman Lnenicka seconded the motion. Motion was
approved 7-0.
EORMAL BUSINESS'
(A) Bid Opening (#97016) - Crown Victoria Administrative Vehicle
--
Mayor Bacon asked if there were any bids in the audience. There were none. The bids were opened and read
as follows:
Wade Ford
Chuck Clancey Ford
Brannen Motor Company
Jim Tidwell Ford
Gene Evans Ford
$19,874
$19,813
$19,322
$17,725
$19,624
Councilman Lnenicka made a motion the bids be turned over the Finance and Administration Committee for
their review with a recommendation brought back before council at the next meeting. Motion was seconded
by Councilman Hawkins. Motion was approved 7-0.
(B) Approval of Resolution - Bond Issue
Mr. Smith stated with the changing interest rates, the city's financial advisors have determined the city can
save approximately $38,374 by refunding the $830,000 of Series 1986 bonds that are called on July 1, 1997.
...
Councilman Lnenicka stated this does not extend the bonds and doesn't accrue any more principal on behalf
of the city it simply takes the existing debt and refinances it at a lower interest rate thereby saving the city
$38,374. Councilman Lnenicka stated the Mayor and Council approved on April 21, 1997, the approval of
the refinancing of these bonds so that the cumulative savings would be earmarked and reserved for the
Renewal and Extension Restricted Case account. Councilman Lnenicka made a motion the resolution (on file
in the City Clerk's office) be approved. Councilman Wood seconded the motion. Motion was approved 7-0.
COMMERCIAl, BUILDING PERMITS'
There were none.
~_~~meetine - continued
BIDAWAR OS.
(A) Bid Award (#97008) - Mast Arm Poles (Two) on Ward Street - Public Works Department
Councilman Hawkins stated the mast arm poles on Ward Street will allow the city to place the school flashers
for the new school on metal poles over the street as opposed to poles on the side of the street. Mr. Hawkins
stated it is the recommendation of the Public Works Committee to award the bid to the low bidder meeting
specifications, A & P/New Georgia Signal Company for $10,616. Councilman Cramer seconded the motion.
Motion was approved 7-0.
(B)
Bid Award (#97013) - UD 1800-F Service Truck - Public Works Department
-...tJJ
Councilman Hawkins stated this is to replace a truck in the Water/Sewer Division. Mr. Hawkins stated three
bids were solicited, however, only one bid was received for $51,084 which was $6,000 more than what had
been budgeted for that truck. Mr. Hawkins stated it is the recommendation of the Public Works Committee
to reject all bids and re-bid with the idea of broadening the base of bidders for this item. Councilman Cramer
seconded the motion. Motion was approved 7-0.
(C) Bid Award (#97014) - Small Diameter Color TV Inspection Camera - Public Works
Department
Councilman Hawkins stated this camera is one that is put down into the sewer lines to determine problems
within the lines. Mr. Hawkins stated the Public Works Committee recommends the bid be awarded to T. V.
Ferret for $8,245. Councilman Cramer seconded the motion. Motion was approved 7-0.
CONSENT AGENOA'
(A)
(B)
(C)
(D)
(E)
Approval of April 21, 1997, Minutes
Approval of April 28, 1997, Special Called Meeting Minutes
Approval to Change Name of the Willows at Cumberland Apartments to the Park at Galleria
Approval to Request Bids for Concrete Floor Saw for the Public Works Department
Approval to Use Council Chambers - May 22, 1997, 7 - 9 P.M. for Department of
Transportation Public Hearing - Atlanta Road Widening Project
....,
Mayor Bacon stated the public hearing on the Atlanta Road widening project is the portion of Atlanta Road
from Windy Hill to South Cobb Drive. Councilman Lnenicka made a motion the consent agenda be approved.
Councilman Wood seconded the motion. Motion was approved 7-0.
CQMMTTIEE REPORTS'
Councilman Wood stated there were no reports from Human Resources or the Library.
Councilman Lnenicka stated the Creatwood Road island, which the city has spent some time and money on
beautifying over the last couple of years, has had some trucks run over the landscaping. He further stated the
Clean and Beautiful Commission has discussed trying to protect that island from trucks running over it and they
have agreed to work with the City Engineer and Public Works Department to get some type deterrent system
installed there to protect the island and the landscaping.
Councilman Lnenicka stated as part of the 1 % Road Improvements project the replacement of the bridge on
Ashwood Drive over Twin Oaks Creek was approved. He stated city money will pay for that reconstruction
and the Cobb County Department of Transportation has that project on schedule and will close that bridge May
13 through August 24.
Councilman Lnenicka stated the city staff is working to correct drainage problems in the Old Vinings Mill
subdivision. Mr. Lnenicka stated there will probably be a meeting scheduled to discuss progress on those
Issues.
-...tJJ
Councilman Cramer reported the Jonquil Festival was held April 26 and 27th and the Jonquil Jog was a
success; the Arthur Bacon Golf tournament was held this past weekend and Gary Bacon was the winner; the
concert series begin May 16; Smyrna night at the Braves is scheduled for May 31; the economic profile has
and the newcomer kits have been completed and the annual report for 1996 will be printed and distributed
within the next two weeks.
Councilman Cramer reported River Awareness Day will be May 10 to clean up parts of the Chattahoochee
May '5) 1997) meetine - continued
River. Mr. Cramer reported according to the Photometric Index, the City of Smyrna is 69% cleaner now that
when the index began.
Councilman Hawkins stated there is no report from the Public Works Department.
Councilman Scoggins stated there is no report from the Community Development Department.
Councilman Newcomb stated there is no report from the Police Department.
Councilwoman Capilouto stated there is no report from the Fire Department.
....
With no further business, the meeting adjourned at 9:40 p.m.
~~
~;~ / ~L~v4lt--
MELINDA DAMERON, CITY CLERK
A. MAX BACON , MAYOR
C}lo./VU~ G~Lt'U,L(;
CHARLENE CAPILOUTO, WARD 1
\" .
) \ \\ i
\, ( J.) , vlLWo'L,.L_
RON NEWCOMB, WARD 2
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BILL SCOGGIN, 0 D 3
...,
K CRAMER, WARD 5
~///dL_-
~ESM HAWKmS, W:~_
ICKA, WARD 6
//. /W~
. '
(~r1f~~~
...
S u the ria n d, As bill & B r e n n an, 1. 1. P.
ATIANTA · AUSTIN · NEW YORK · WASHINGTON
...
999 PEACHTREE STREET, N.E.
ATIANTA, GEORGIA 30309-3996
TEL: (404) 853-8000
FAX: (404) 853-8806
May 12, 1997
VIA FEDERAL EXPRESS
Ms. Melinda Dameron
City Clerk
city of Smyrna
1306 Bank Street
Smyrna, Georgia 30081
Re: $875,000 City of Smyrna Water and Sewerage
Revenue Refunding Bonds, Series 1997
Dear Melinda:
Enclosed for the City'S Minute Book is the Ordinance as
adopted at the meeting of the Mayor and Council on Monday, May 5.
Also enclosed for the City's Minute Book is an original of the
.. CPA's certificate, which needs to be filed in the Minute Book
following the Ordinance.
Very truly yours,
O-u-~
Alice B. Mabry
ABM:abm
Enclosures
cc wojencs:
Mr. Charles E. Camp
Mr. John H. Mobley, II
Mr. Matthew W. Nichols
I
~
216344.1
AX ORDXHANCB TO PROVXDB FOR TUB ACgUXSXTXON BY REDEMPTXON,
PAYMENT OR OTUBRWXSB 01' ALL 01' TUB CXTY 01' SMYRNA WATER AND
SEWERAGB REVENUB BONDS, SERXES 1986 HERETOFORE XSSUBD AND NOW
... OUTSTANDXNG XN TUB AGGREGATB PRXNCXPAL AMOUNT 01' $920,000' TO
PROVXDB FOR TUB XSSUANCB 01' WATER AND SEWERAGB REVENUB REFUNDXNG
BONDS, SERXES 1997, PURSUANT TO AND XN COJlPORMXTY UTH AN ORDXNANCB
ADOPTED OCTOBER 4, 1984, AS RATXFXED, REAPFXRMED, BROADENED AND
EXTENDED BY ORDXNAJlCES ADOPTED AUGUST 4, 1986 AND MAY 25, 1989, TO
PROVXDB FUNDS TO BB APPLXED TOWARD THB COST 01' SUCH OVERALL
UJIDERTAKXNG NOW CONTEMPLATED; TO REAPFXRM AND ADOPT ALL APPLXCABLB
TERMS, PROVXSXONS, COVENANTS AND CONDXTXONS 01' SAID ORDINANCES 01'
OCTOBER 4, 1984, AUGUST 4, 1986 AND MAY 25, 1989; TO PROVXDE FOR
THB ADOPTXON OF RATES AND THB COLLECTXOH OF FEES AND CHARGES FOR
THB SERVXCES, FACXLXTIES AND COMMODXTIES TO BB FURNXSHED BY THB
WATER AND SEWERAGB SYSTEM OF THE CITY OF SMYRNA; TO PROVXDB FOR THB
CREATION AND MAXNTENAJlCE 01' CERTAXN FUNDS; TO RATXFY AND AUTHORXZB
THE EXECUTION AND DELXVERY OF A BOND PLACEMENT AGREEMENT WXTH
RESPECT TO THE SERXES 1997 BONDS; TO DESXGNATE THE SERXES 1997
BONDS AS "gUALXFIED TAX-EXEMPT OBLXGATIONS. WXTHXN THE MEAXXNG OF
SECTION 265 (b) (3) OF THE XNTERNAL REVENUE CODB OF 1986, AS AMENDED;
TO PROVIDE FOR THB ANNUAL SUBMXSSION OF CERTAXN FXNANCIAL
INFORMATION AND OPERATXNG DATA PURSUANT TO RULE 15C2 -12 OF THE
SECURITXES AND EXCHANGB COMMXSSXON; TO PROVXDB REMEDIES FOR THB
OWNERS OF THE SERXES 1997 BONDS; AND FOR OTHER PURPOSES:
WHEREAS, under and by virtue of the authority of the "Revenue
Bond La~ (Title 36, Chapter 82, Article 3 of the Official Code of
.. Georgia Annotated, as amended), the city of Smyrna, a "governmental
body. as defined in said Revenue Bond Law (hereinafter sometimes
referred to as the "City.), is authorized to acquire by redemption,
payment or otherwise all or any part of its outstanding water and
sewerage revenue obligations, to own and operate a water and
sewerage system and to maintain said water and sewerage system, as
added to, extended, improved and equipped (the "System.), for its
own use, and for the use of the public, and to prescribe and revise
rates, and to collect fees and charges for the services, facilities
and commodities furnished by the system, as now existent and as
same is hereafter added to, extended, improved and equipped, and in
anticipation of the revenues from the System to issue revenue
bonds, to provide the funds to be applied toward the cost of
acquiring by redemption such water and sewerage revenue obligations
and to pay all expenses necessary to accomplish the foregoing; and
WHBREAS, the City of Smyrna, pursuant to that certain
ordinance adopted October 4, 1984 (the "1984 ordinance"), has
heretofore authorized the issuance of, and actually issued and
delivered, $4,375,000 aggregate principal amount of its Water and
Sewerage Revenue Bonds, Series 1984 (the "Series 1984 Bonds.), which
Series 1984 Bonds have been paid in full; and
WHEREAS, the City in the 1984 Ordinance pledged and created a
first and prior lien on the net revenues of the System remaining
..
213400.1
after the payment of the reasonable and necessary costs of
operating and maintaining the System, as security for the payment
of the principal of and interest on the Series 1984 Bonds, and
.., provision was made in the 1984 Ordinance whereby, from time to time
upon meeting certain terms and conditions, additional bonds could
be issued ranking as to lien on the revenues of the System pari
passu with the Series 1984 Bonds; and
WHEREAS, the City met the terms and conditions of the 1984
Ordinance and, pursuant to an ordinance adopted August 4, 1986 (the
"1986 Ordinance"), has authorized the issuance of, and actually
issued and delivered, $1,500,000 aggregate principal amount of its
Water and Sewerage Revenue Bonds, Series 1986 (the "Series 1986
Bonds"), dated July 1, 1986, bearing interest from date at the rate
per annum set forth below opposite each principal maturity, all
interest payable semiannually on the 1st days of January and July
in each year, and the principal maturing on the 1st day of July, in
the years and amounts, as follows:
~ Amount ~ ~ Amount ~
1988 $50,000 5.00% 1996 $ 80,000 7.00%
1989 55,000 5.40 1997 90,000 7.10
1990 55,000 5.70 1998 95,000 7.20
1991 60,000 6.00 1999 100,000 7.30
1992 65,000 6.25 2000 110,000 7.40
1993 65,000 6.50 2001 115,000 7.40
1994 70,000 6.70 2004 410,000 7.50
.. 1995 80,000 6.90
and of the Series 1986 Bonds there is now outstanding $920,000
aggregate principal amount thereof, being bonds maturing in the
years 1997 to 2001, inclusive, and in the year 2004, and the Series
1986 Bonds have as security for the payment thereof and interest
thereon a first and prior lien on the net revenues of the System;
and
...
WHEREAS, the City obtained a Municipal Bond Guaranty Insurance
Policy from the Municipal Bond Insurance Association (now known as
MBIA Insurance Corporation--"MBIA") as additional security for the
payment of the Series 1986 Bonds; and
WHEREAS, pursuant to an ordinance adopted May 25, 1989 (the
"1989 Ordinance"), the City authorized the issuance of, and actually
issued and delivered, $3,510,000 aggregate principal amount of its
Water and Sewerage Revenue Refunding Bonds, Series 1989 (the
"Series 1989 Bonds"), dated June 1, 1989, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable January 1, 1990 and semiannually
thereafter on the 1st days of January and July in each year, and
the principal maturing on the 1st day of July, in the years and
amounts, as follows:
213400.1
-2-
~ Amount RAt.il ~ Amount RAt.il
1995 $280,000 6.60% 2000 $350,000 6.90%
1996 275,000 6.70 2001 380,000 6.95
.. 1997 290,000 6.75 2002 405,000 7.00
1998 305,000 6.80 2003 430,000 7.00
1999 335,000 6.85 2004 460,000 7.00
and of the Series 1989 Bonds there is now outstanding $2,955,000
aggregate principal amount thereof, being bonds maturing in the
years 1997 to 2004, inclusive, and the Series 1989 Bonds rank on a
parity as to lien on the net revenues of the System with the lien
securing the payment of the outstanding Series 1986 Bonds: and
WHEREAS, the City obtained a Municipal Bond Guaranty Insurance
Policy from MBIA as additional security for the payment of the
Series 1989 Bonds: and
WHEREAS, the City has received a recommendation from Knox,
Wall & Company, Atlanta, Georgia (the "Placement Agent-) that, due
to present market conditions, it is advisable, feasible and in the
best interest of the City that all of the outstanding Series 1986
Bonds, being bonds maturing in the years 1997 to 2001, inclusive,
and in the year 2004, now outstanding in the aggregate principal
amount of $920,000 (the "Refunded Bonds") be refunded at this time
in order to effect a savings in the debt service requirements on
the city.s now outstanding water and sewerage revenue obligations
and the City has determined, after its own independent study and
.. investigation, that it is in the best interest of the City and its
citizens and taxpayers to refund the Refunded Bonds as aforesaid:
and
WHEREAS, the ci ty has received a recommendation from the
Placement Agent, and the City has after careful study and
investigation determined, that the refunding of the Refunded Bonds
should be accomplished by making due and legal provision for the
payment of the principal of and interest on the Series 1986 Bonds
maturing July 1, 1997 in the aggregate principal of $90,000, as
same mature, and the redemption on July 1, 1997 of the Series 1986
Bonds maturing July 1, 1998 and thereafter, in the aggregate
principal amount of $830,000, by paying the principal amount
thereof, the 1\ percent redemption premium in connection therewith
and the interest to accrue thereon until such date of redemption,
and the payment of all expenses necessary to accomplish the
foregoing: and
WHEREAS, said refunding should be accomplished by the issuance
of the Series 1997 Bonds (as hereinafter defined and authorized to
be issued--the "Series 1997 Bonds-) as additional parity bonds under
the 1984 Ordinance, as carried forward, ratified, reaffirmed,
broadened and extended by the 1986 Ordinance and the 1989 Ordinance
(collectively, the "Prior Ordinances-) and this Ordinance: and
..
213400.1
-3-
..,
WHBREAS, it was provided in section 8 of Article IV of the
1984 Ordinance, as ratified, reaffirmed, broadened and extended in
section 16 of the 1986 Ordinance and section 14 of the 1989
Ordinance, that additional revenue bonds or obligations could be
issued, from time to time, ranking as to lien on the revenues of
the system pari passu with the outstanding Series 1989 Bonds (the
"Prior Bonds"), upon meeting certain terms and conditions, which
are, in part, as follows:
(a) The payments covenanted to be made into the
"City of Smyrna Water and Sewerage System [Sinking] Fund"
created in Paragraph 2 of section 2 of Article IV of [the
1984 Ordinance], as the same has been enlarged and
extended by section 13 of [the 1986 Ordinance] and as
enlarged and extended by section 11 of [the 1989
Ordinance], and as the same may have been enlarged and
extended in any proceedings authorizing the issuance of
any additional parity bonds, must be currently being made
in full amount as required and said "Debt Service
Account" and "Debt service Reserve Account" held within
said sinking Fund must be at their proper respective
balances.
-
(b) The net earnings of the [S]ystem for a period
of twelve (12) consecutive months out of the eighteen
(18) consecutive months preceding the month of adoption
of the proceedings authorizing the issuance of such
additional bonds must have been equal to at least one and
twenty-hundredths (1.20) times the maximum debt service
requirement for any succeeding sinking fund year on the
[Prior Bonds] and any other issue or issues of parity
bonds therewith then outstanding and on the bonds
proposed to be issued, or in lieu of the foregoing
formula, if a new schedule of rates and charges for the
services, facilities and commodities furnished by the
[S]ystem shall have been adopted and an independent and
recognized firm of Certified Public Accountants shall
certify that had this new rate schedule been in effect
during the period described above the net earnings of the
[S ] ystem would have been equal to at least one and
twenty-hundredths (1.20) times the maximum debt service
requirement for any succeeding sinking fund year on the
[prior Bonds] and any parity bonds therewith then
outstanding and on the bonds proposed to be issued. Net
earnings for the purpose of this provision shall be
construed to be the gross earnings of the [S] ystem
remaining after the payment of the sums required or
permitted to be paid to operate and maintain said
[S]ystem pursuant to the provisions of Paragraph 1 of
Section 2 of Article IV of [the 1984 Ordinance], but
before provision for depreciation.
..,
213400.1
-4-
...
(c) An independent and-recognized firm of certified
Public Accountants shall certify in triplicate to the
governing body of the City that the requirements of
Paragraph (a) above are being complied with and that the
requirements of Paragraph (b) above have been met. A
copy of the certificate of the certified Public
Accountants shall be furnished to the designated
representative of the original purchasers of the [prior
Bonds]; and
WHBREAS, as required by the Prior Ordinances, a recognized
firm of certified Public Accountants has certified to the governing
body of the city that it has complied and is complying with the
requirements of Paragraph (a) and has met the requirements of
Paragraph (b) as set forth above and a copy of said certificate has
been furnished to the designated representative of the original
purchasers of the Prior Bonds; and
WHEREAS, the Placement Agent has agreed to place the Series
1997 Bonds with investors at a price of par plus accrued interest
and the city has agreed to pay the Placement Agent a fee of $7,500
for its services; and
WHEREAS, the proceeds derived from the sale of the Series 1997
Bonds will be deposited in trust in the special fund heretofore
created in the 1984 Ordinance and designated as "City of Smyrna
Water and Sewerage system sinking Fund" (the "Sinking Fund"),
.. simultaneously with the issuance and delivery of the Series 1997
Bonds, held by SunTrust Bank, Atlanta, Atlanta, Georgia, successor
to Trust Company Bank of Cobb County, N.A., Smyrna, Georgia, as
sinking Fund custodian (the "Sinking Fund Custodian"), in an amount
sufficient to pay the principal of, interest on and redemption
premium with respect to the Refunded Bonds on July 1, 1997 and to
pay certain expenses in connection wi th the refunding of the
Refunded Bonds and said moneys will be used and applied toward the
cost of refunding the Refunded Bonds, as aforesaid, all as
hereinafter provided; and
WHEREAS, upon provision having been duly and legally made for
the acquisition of the Refunded Bonds by redemption and paYment,
the $2,955,000 aggregate principal amount of Series 1989 Bonds then
outstanding and maturing on July 1 in the years 1997 to 2004,
inclusive ("outstanding Prior Bonds"), will be the only presently
outstanding revenue bonds of the city having as security for the
paYment thereof and interest thereon a lien against the net
revenues of the system and the city has been and is now complying
and will continue to comply in all respects with the applicable
terms, covenants and provisions of the Prior Ordinances; and
WHBREAS, prior to the actual issuance and delivery of the
Series 1997 Bonds, the City will enter into a contract with
Reliance Trust Company, Atlanta, Georgia ("Reliance") pursuant to
...
213400.1
-5-
..
which Reliance will agree to act as paying Agent and as Bond
Registrar for the Series 1997 Bonds and to perform various
functions with respect to the Series 1997 Bonds, including, but not
limited to, the authentication of the Series 1997 Bonds by the
manual signature of a duly authorized signatory of Reliance, as
Bond Registrar, the registration, transfer, exchange and related
mechanical and clerical functions, as well as the preparation,
signing and issuance of checks and drafts in payment of the
principal of and interest on the Series 1997 Bonds as same become
due and payable; and
WHEREAS, the City has entered into a contract, dated April 2,
1952, with the Cobb County-Marietta Water Authority (the
NAuthority") and said contract was subsequently amended on February
23, 1957, pursuant to which the Authority has agreed to sell and
deliver potable water to the City and the City has agreed to
purchase such potable water for the price and under the terms and
conditions set forth in said contract, as amended, and the cost of
the water so purchased by the City constitutes an operating charge
ranking equally with the other costs of operating and maintaining
the System, an executed duplicate original of said contract and
said amendment being on file and of record in the permanent records
of the Mayor and Council of the City kept in the office of the
Clerk of the ci ty and said contract and amendment, by this
reference thereto, are incorporated herein and made a part hereof;
and
.. WHEREAS, the City has entered into an agreement, dated April
13, 1971, with Cobb County (the NCounty") pursuant to which the
County has agreed to provide sewage treatment and disposal services
for the city's wastewater in accordance with and under the terms
and conditions provided therein, and the cost of such sewage
services constitutes an operating charge ranking equally with the
other costs of operating and maintaining the System, an executed
duplicate original of said agreement being on file and of record in
the permanent records of the Mayor and Council of the City kept in
the office of the Clerk of the City and said agreement, by this
reference thereto, is incorporated herein and made a part hereof.
NOW, 'l'HEREFORB, be it ordained by the Mayor and Council of the
City of Smyrna, and it is hereby ordained by authority of the same,
that the Refunded Bonds maturing on July 1, 1997, outstanding in
the aggregate principal amount of $90,000, be refunded by payment
in full as to principal and interest on such maturity date, and
that the Refunded Bonds maturing on July 1, 1998 and thereafter,
outstanding in the aggregate principal amount of $830,000, be and
the same are irrevocably called for redemption on July 1, 1997 and
the owners of said Refunded Bonds should present same for payment
on July 1, 1997, and receive the principal thereof, the redemption
premium and accrued interest thereon to July 1, 1997.
..
213400.1
-6-
BB IT FURTHER ORDAINED by the authority aforesaid, and it is
hereby ordained by authority of the same, that notice of call for
redemption of the Refunded Bonds being called for redemption on
.. July 1, 1997 signed by the Mayor and attested by the Clerk of the
City shall be given to SunTrust Bank, Atlanta, Atlanta, Georgia,
formerly known as Trust Company Bank, Atlanta, Georgia, the paying
Agent for the Refunded Bonds, and a copy of said notice shall be
mailed, postage prepaid, at least 30 days prior to the July 1, 1997
redemption date, to all registered owners of the Refunded Bonds
being called for redemption whose addresses shall appear upon the
books of registration provided therefor, which notice shall be in
substantially the following form:
....
...
213400.1
-7-
NOTICE OF FULL REDEHPTION
..
CITY OF SHYRHA (GEORGIA)
WATER AND SEWERAGE REVENUE BONDS
SERIES 1986
NOTICE is hereby given to the owners of the following
described Water and Sewerage Revenue Bonds of the City of Smyrna,
Georgia, that said bonds have been called for redemption on July 1,
1997 , said bonds being in the aggregate principal amount of
$830,000 known as NCity of Smyrna Water and Sewerage Revenue Bonds,
Series 1986,. dated July 1, 1986, bearing interest from date at the
rate per annum set forth below opposite each principal maturity,
all interest payable January 1, 1987 and semiannually thereafter on
the 1st days of January and July in each year, and the principal
maturing on the 1st day of JUly, in the years and amounts, as
follows:
*cusip *Cusip
~ Number Amount Ra:te ~ Number Amount Ra:te
1998 832815DZ4 $ 95,000 7.20% 2001 832815ED2 $115,000 7.40%
1999 832815DE8 100,000 7.30 2004 832815EC4 410,000 7.50
2000 832815EB6 110,000 7.40
Funds for the redemption and paYment of said bonds and the
interest then due thereon to July 1, 1997 and the required 1~%
.. premium will be available at SunTrust Bank, Atlanta, Atlanta,
Georgia, formerly known as Trust Company Bank, Atlanta, Georgia, on
July 1, 1997, and said above described bonds should be presented to
said bank for redemption and paYment on said date. Interest on the
above- described bonds designated for redemption shall cease to
accrue after the July 1, 1997 redemption date.
PaYment will be made upon presentation of bond certificate to
the following addresses:
Overni9ht Courier
SunTrust Bank, Atlanta
c/o The First National Bank
of Chicago
Corporate Trust Securities
Teller 9th Floor
One North State Street
Chicago, Illinois 60602
Mail Delivery
SunTrust Bank, Atlanta
c/o The First National Bank
of Chicago
Corporate Trust Redemption Unit
9th Floor, Suite 0124
One First National Plaza
Chicago, Illinois 60670-0124
*No representation is made as to the correctness of the CUSIP
number either as printed on the bonds or as contained herein and
reliance may be placed only on other bond identification
information contained herein.
..
213400.1
-8-
I" -
)
I
I,
\ '
--
...
..,
Presentation may also be made to SunTrust Bank, Atlanta,
Corporate Trust Department, 58 Edgewood Avenue, Room 400 Annex,
Atlanta, Georgia 30303-2921.
Under the provisions of the Interest and Dividend Tax
Compliance Act of 1983, Paying Agents may be obligated to withhold
31 percent from payments of principal to bondholders who have
failed to furnish the Paying Agent with a valid taxpayer
identification number. Holders of the above-described securities
who wish to avoid the application of these provisions should submit
certified taxpayer identification numbers on a Form W-9 when
presenting their bonds.
DIRECT ANY QUESTIONS TO BONDHOLDER INFORMATION SERVICES:
(800) 711-1614.
This notice is given under and pursuant to an ordinance of the
Mayor and Council of the City of Smyrna adopted on the 5th day of
May, 1997.
Mayor, City of Smyrna, Georgia
Attest:
Clerk
(8 B A L)
213400.1
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BB IT PURTHBR ORDAINED by the authority aforesaid, and it is
hereby ordained by authority of the same, that simultaneously with
the issuance and delivery of the Series 1997 Bonds, the sum of
$848,565 derived from the sale of the Series 1997 Bonds, or such
.. other amount as shall be necessary, plus $117,850 representing the
pro rata portion of the debt service account sinking fund accruals
applicable to the Refunded Bonds shall be deposited with the
Sinking Fund Custodian in a subaccount of the Sinking Fund hereby
created and designated the K1986 Defeasance Account," to pay the
principal of, interest on and redemption premium with respect to
the Refunded Bonds on July 1, 1997. The moneys so deposited with
the Sinking Fund CUstodian and the income derived from such moneys
shall be subject to a lien and charge in favor of the owners of,
and are hereby pledged to the payment of, the Refunded Bonds and
shall be held for the security of such owners until used and
applied as hereinafter provided.
BB IT PURTHBR ORDAINED by the authority aforesaid, and it is
hereby ordained by authority of the same, that the moneys so
deposited in trust in the 1986 Defeasance Account with the sinking
Fund Custodian have been calculated as being sufficient and shall
be used to refund all of the Refunded Bonds by making the following
payments, on the dates and in the amounts, as follows:
RBPUNDBD BONDS
...
.oan
7/1/97
Principal
Premium
Interest
Total
$920,000
$12,450
$33,965
$966,415
BB IT PURTHBR ORDAINED by the authority aforesaid, and it is
hereby ordained by authority of same, as follows:
Section 1. That all of the applicable provisions, covenants
and conditions contained in Section 8 of Article IV of the 1984
Ordinance, as ratified, reaffirmed, broadened and extended in
section 16 of the 1986 Ordinance and section 14 of the 1989
Ordinance, having been met and complied with, there be and there is
hereby authorized to be issued pursuant to the Prior Ordinances and
this Ordinance, the Revenue Bond Law and the Charter of the City,
$875,000 aggregate principal amount of water and sewerage revenue
bonds for the purpose of providing funds to be applied toward the
cost of refunding by redemption, payment or otherwise all of the
City of Smyrna Water and Sewerage Revenue Bonds, Series 1986,
maturing on and after July 1, 1997, and now outstanding in the
aggregate principal amount of $920,000, and to pay all expenses
necessary to accomplish the foregoing, and said bonds shall be
designated as Kcity of Smyrna Water and Sewerage Revenue Refunding
Bonds, Series 1997" (the KSeries 1997 Bonds"), shall be dated May 1,
1997, shall be in fully registered form without coupons, shall be in
the denomination of $5,000 or any integral multiple thereof, shall
..
213400.1
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be numbered R-l upward, shall be transferable to subsequent owners
as hereinafter provided and shall bear interest from date at the
rate per annum set forth opposite each principal maturity, all
interest payable semiannually on the 1st days of January and July in
.. each year, commencing on January 1, 1998, and the principal maturing
on the 1st day of July, in the years and amounts, as follows:
...
..
~ Amount Ra.t& ~ Amount Ra.t&
1998 $100,000 5.00% 2002 $130,000 5.00%
1999 110,000 5.00 2003 145,000 5.00
2000 120,000 5.00 2004 145,000 5.00
2001 125,000 5.00
The principal amount of the series 1997 Bonds shall be payable
at maturity, unless redeemed prior thereto as hereinafter provided,
upon presentation and surrender thereof at the principal corporate
trust office of Reliance Trust Company, Atlanta, Georgia, Paying
Agent and Bond Registrar, and payments of interest on the Series
1997 Bonds shall be made by check or draft payable to the registered
owner as shown on the bond registration book of the City kept by the
Bond Registrar at the close of business on the fifteenth day of the
calendar month next preceding the January 1 and July 1 interest
payment dates and such payments shall be mailed to the registered
owner at the address shown on the bond registration book. Both the
principal of and interest on the series 1997 Bonds shall be payable
in lawful money of the United states of America.
The Series 1997 Bonds shall be initially issued in the form of
a separate single fully registered bond for each of the maturities
of the Series 1997 Bonds in a book-entry only system (the "DTC
System") administered by The Depository Trust Company ("DTC"). The
Mayor is hereby authorized to execute and deliver such letters to or
agreements with DTC as shall be necessary to effectuate the DTC
System, including a representation letter in the form required by
DTC (the "Representation Letter"). DTC may exercise the rights of
a bondholder only in accordance with the terms hereof applicable to
the exercise of such rights.
With respect to Series 1997 Bonds registered in the Register in
the name of Cede & Co., as nominee of DTC, the City, the Paying
Agent and the Bond Registrar shall have no responsibility or
obligation to any broker-dealer, bank or other financial institution
for which DTC holds Series 1997 Bonds from time to time as
securities depository (each such brOker-dealer, bank or other
financial institution being referred to herein as a "DTC
Participant") or to any person on behalf of whom such a DTC
Participant directly or indirectly holds an interest in the Series
1997 Bonds (each such person being herein referred to as an
"Indirect Participant"). Without limiting the immediately preceding
sentence, the City, the Paying Agent and the Bond Registrar shall
have no responsibility or obligation with respect to (a) the
213400.1
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accuracy of the records of DTC, Cede & Co. or any DTC Participant
with respect to any ownership interest in the Series 1997 Bonds,
(b) the delivery to any DTC Participant or any Indirect Participant
or any other person, other than a bondholder, as shown in the
.. Register, of any notice with respect to the Series 1997 Bonds,
including any notice of redemption, (c) the paYment to any DTC
Participant or Indirect Participant or any other Person, other than
a bondholder, as shown in the Register, of any amount with respect
to principal of, premium, if any, or interest on, the Series 1997
Bonds or (d) any consent given by DTC as registered owner. So long
as the Series 1997 Bonds remain in the DTC System and certificates
for the Series 1997 Bonds are not issued to the beneficial owners
thereof, the City, the Paying Agent and the Bond Registrar shall
treat DTC or any successor securities depository as, and deem DTC or
any successor securities depository to be, the absolute owner of the
Series 1997 Bonds for all purposes whatsoever, including without
limitation (i) the paYment of principal and interest on the Series
1997 Bonds, (ii) giving notice of redemption and other matters with
respect to the Series 1997 Bonds, (iii) registering transfers with
respect to the Series 1997 Bonds and (iv) the selection of Series
1997 Bonds for redemption. While in the DTC System, no person other
than Cede & Co., or any successor thereto, as nominee for DTC, shall
receive a bond certificate with respect to any Series 1997 Bond.
Notwithstanding any other provision of this Ordinance to the
contrary, so long as any of the Series 1997 Bonds are registered in
the name of Cede & Co., as nominee of DTC, all paYments with respect
to principal of, premium, if any, and interest on such Series 1997
Bonds and all notices with respect to such Series 1997 Bonds shall
... be made and given, respectively, in the manner provided in the
Representation Letter.
Upon delivery by DTC to the Paying Agent of written notice to
the effect that DTC has determined to substitute a new nominee in
place of Cede & Co., the name "Cede & Co." in this Ordinance shall
refer to such new nominee of DTC.
If DTC should notify the City that it will no longer provide
its services with respect to the Series 1997 Bonds, or if the City
should decide to remove DTC, unless a substitute securities
depository is appointed to undertake the functions of DTC hereunder,
the City shall deliver bond certificates to the beneficial owners of
the Series 1997 Bonds, and the Series 1997 Bonds shall no longer be
restricted to being registered in the name of Cede & Co. as nominee
of DTC, but may be registered in whatever name or names registered
owners transferring or exchanging Series 1997 Bonds shall designate
to the Bond Registrar in writing, in accordance with the provisions
of this Ordinance. The City may determine that the Series 1997
Bonds shall be registered in the name of and deposited with a
successor depository operating a securities depository system,
qualified to act as such under Section 17 (a) of the Securities
Exchange Act of 1934, as amended, as may be acceptable to the city,
or such depository's agent or designee.
..
213400.1
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Sec~iOD 2. The Series 1997 Bonds shall be executed on behalf
of the City by use of the manual or facsimile signature of the Mayor
and attested by the manual or facsimile signature of the Clerk of
.. the City and the official seal of the City shall be impressed
thereon or a facsimile thereof imprinted thereon and the Series 1997
Bonds shall be authenticated by the manual signature of a duly
authorized signatory of the Bond Registrar. The Clerk is hereby
authorized to certify by the use of the Clerk's manual or facsimile
signature as to the authenticity of a true and correct copy of the
text of the legal opinion to be rendered by Sutherland, Asbill &
Brennan, L.L.P., Bond Counsel, which opinion will be printed on the
Series 1997 Bonds. The validation certificate to be printed on the
Series 1997 Bonds shall be executed by use of the manual or
facsimile signature of the Clerk of the Superior Court of Cobb
County and the official seal of said court or a facsimile thereof
shall be imprinted thereon. In case any officer whose signature
shall appear on the Series 1997 Bonds shall cease to be such officer
before delivery of the Series 1997 Bonds, such signature shall
nevertheless be valid and sufficient for all purposes the same as if
such officer had remained in office until such delivery. The Series
1997 Bonds, the certificate of authentication and registration, form
of assignment and the certificate of validation to be endorsed upon
the Series 1997 Bonds shall be in substantially the following forms,
with such variations, omissions and insertions as may be required or
permitted by this Ordinance:
...
..
213400.1
-13-
..
UNITED STATES OP AMERICA
STATE OP GEORGIA
CITY OP SMYRNA
WATER AND SEWERAGE REVENUE REPUlmIIfG BOND
SERIES 1997
MATURITY DATE:
INTEREST RATE:
BOND DATE:
CUSIP:
May 1, 1997
POR VALUE RECEIVED, the City of Smyrna
corporation of the County of Cobb, State of
to pay solely from the special fund
hereinafter set forth, to
(the "City"), a municipal
Georgia, hereby promises
provided therefor, as
or registered assigns, the principal sum of
DOLLARS
in lawful money of the United States of America, on the date
specified above, unless redeemed prior thereto as hereinafter
provided, upon presentation and surrender hereof at the principal
corporate trust office of Reliance Trust Company, Atlanta, Georgia,
Paying Agent and Bond Registrar, and to pay to the registered owner
hereof solely from the special fund interest on said principal
... amount from the date hereof or from the most recent interest payment
date to which interest has been paid, at the rate per annum
specified above, semiannually on the 1st days of January and July in
each year (each an "Interest Payment Date"), commencing January 1,
1998, until payment of the principal amount hereof. Payments of
interest on this Bond shall be made by check or draft payable to the
registered owner, as shown on the bond registration book of the City
of Smyrna kept by the Bond Registrar at the close of business on the
fifteenth day of the calendar month next preceding each Interest
Payment Date and such interest payments shall be mailed to the
registered owner at the address shown on the bond registration book.
This Bond is one of a duly authorized issue in the aggregate
principal amount of $875,000 (the "Series 1997 Bonds") issued for the
purpose of providing funds to be applied toward the cost of
refunding by redemption, payment or otherwise all of the City of
Smyrna Water and Sewerage Revenue Bonds, Series 1986, maturing on
and after July 1, 1997, and now outstanding in the aggregate
principal amount of $920,000 (the "Refunded Bonds"), and to pay all
expenses necessary to accomplish the foregoing and is issued under
authority of the Revenue Bond Law (Title 36, Chapter 82, Article 3
of the Official Code of Georgia Annotated, as amended) and the
Charter of the City of Smyrna, and was duly authorized by ordinances
of the Mayor and Council of the City of Smyrna adopted on October 4,
...
213400.1
-14-
1984, August 4, 1986 and May 25, 1989 (the "Prior Ordinances") and
an ordinance of the Mayor and Council of the City of Smyrna adopted
on May 5, 1997 (the "1997 Ordinance" and, together with the Prior
ordinances, the "Ordinances"). The Series 1997 Bonds rank on a
... parity as to lien on the net revenues of the City's water and
sewerage system, as now existent and as hereafter added to,
extended, improved and equipped (the "System"), with the City'S Water
and Sewerage Revenue Refunding Bonds, Series 1989 heretofore issued
and delivered pursuant to the ordinance of May 25, 1989 and now
outstanding in the aggregate principal amount of $2,955,000 (the
"outstanding Series 1989 Bonds") and shall be secured by the same
lien on the net revenues of the System. In addition to the
outstanding Series 1989 Bonds and the Series 1997 Bonds
(collectively, the "Bonds"), the city may issue, under certain terms
and conditions as provided in the Ordinances, additional revenue
bonds or obligations which, if issued, will rank on a parity as to
lien on the net revenues of the System with the Bonds. Reference to
the Ordinances is hereby made for a complete description of the fund
charged with, and pledged to, the payment of the principal of and
the interest on the Series 1997 Bonds or any other issue, the nature
and extent of the security, the rights, duties and obligations of
the City, the rights of the owners of the Series 1997 Bonds and the
terms and conditions under which additional parity bonds may be
issued to all the provisions of which the owner hereof, by the
acceptance of this Bond, assents.
The terms and provisions of this Bond and definitions of
certain terms used herein are continued on the reverse side hereof
.. and all such continued terms and provisions and definitions shall
for all purposes have the same effect as though fully set forth at
this place.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Ordinances until this Bond shall have been authenticated and
registered upon the bond registration book kept by the Bond
Registrar for that purpose, which authentication and registration
shall be evidenced by the execution by the manual signature of a
duly authorized signatory of the Bond Registrar of the certificate
hereon.
IN WITNESS WBERBOP, the City of Smyrna, Georgia, has caused
this Bond to be executed by use of the [facsimile] signature of its
Mayor and [a facsimile of] its official seal to be imprinted hereon
and attested by the use of the [facsimile] signature of its Clerk,
as of the 1st day of May, 1997.
..,
213400.1
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C:ITY OJ' SMYRNA
...
Attest:
By:
Mayor
Clerk
(S B A L)
Date of Authentication and Registration:
CBRT:IF:ICATB OJ' AUTHBNT:ICAT:IOH AND REG:ISTRAT:IOH
This Bond is one of the Series 1997 Bonds
described in the ordinance of May 5, 1997.
REL:IANCB TROST COMPANY, as Bond Registrar
By:
Authorized Signatory
...
VAL:IDAT:IOH CBRT:IJ':ICATB
STATB OJ' GBORG:IA
COUNTY OJ' COBB
The undersigned Clerk of the Superior Court of Cobb County,
state of Georgia, DOBS HBREBY CBRT:IJ'Y that this Bond was validated
and confirmed by judgment of the Superior Court of Cobb County,
Georgia, on the ____ day of May, 1997, and that no intervention or
objection was filed in the proceedings validating same and that no
appeal from said jUdgment of validation has been taken.
....
213400.1
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..
~
..
WITNESS my [facsimile] signature and seal of the Superior Court
Cobb County, Georgia.
Clerk, Superior Court,
Cobb County, Georgia
(S B A L)
213400.1
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(THB FOLLOWING SHALL BB PRINTBD ON THE BACK OF THE SERIBS 1997
BONDS.]
.. This Bond is transferable only upon the bond registration book
kept for that purpose at the principal corporate trust office of the
Bond Registrar by the registered owner hereof in person, or by
attorney duly authorized in writing, upon the surrender and
presentation to the Bond Registrar of this Bond duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or attorney duly authorized in writing, and
thereupon a new registered bond, in the same aggregate principal
amount and of the same maturity shall be issued to the transferee in
exchange therefor.
The Series 1997 Bonds are issuable in the form of fully
registered bonds in the denomination of $5,000 or any integral
multiple thereof and are exchangeable at the principal corporate
trust office of the Bond Registrar in the manner, subject to the
conditions and upon payment of charges, if any, provided in the 1997
Ordinance.
The Ordinances provide, among other things, for prescribing and
revising rates and COllecting fees and charges for the services,
facilities and commodities furnished by the System to the extent
necessary to produce revenues sufficient to pay the reasonable and
necessary costs of operating and maintaining the System, including
the paYment of any contractual obligations incurred pertaining
.. thereto, and to pay into a special fund designated NCity of Smyrna
Water and Sewerage System Sinking Fund" the amounts required to pay
the principal of and the interest on the Bonds and any other bonds
hereafter issued on a parity therewith as the same become due and
payable, either at maturity or by proceedings for mandatory
redemption, and to create and maintain a reserve therein for that
purpose, as well as to create and maintain a reserve for extensions
and improvements to the System.
This Bond shall not be deemed to constitute a debt of the City
of Smyrna nor a pledge of the faith and credit of said City, nor
shall the City be subject to any pecuniary liability hereon. This
Bond shall not be payable from, nor a charge upon, any funds other
than the revenues pledged to the paYment hereof, and is payable
solely from the special fund provided therefor from the revenues of
the System, including all future additions thereto and any other
moneys deposited therein. No owner of this Bond shall ever have the
right to compel the exercise of the taxing power of the City to pay
the same, or the interest hereon, or to enforce paYment hereof
against any other property of the ci ty , nor shall this Bond
constitute a charge, lien or encumbrance, legal or equitable, upon
any other property of the City other than the revenues pledged to
the paYment hereof.
...
213400.1
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,
..,
r-
t
t
..
..
The Series 1997 Bonds are not subject to redemption prior to
maturity.
To the extent and in the manner permitted by the Ordinances,
modifications, alterations, amendments, additions and recisions of
the provisions of the Ordinances, or of any ordinance supplemental
thereto or of the Bonds, may be made by the City with the consent of
the owners of at least 65 percent in aggregate principal amount of
the Bonds then outstanding, including any parity obligations
therewith then outstanding, and without the necessity for notation
hereon of reference thereto.
This Bond is issued with the intent that the laws of the State
of Georgia shall govern its construction.
In case of default, the owner of this Bond shall be entitled to
the remedies provided in the Ordinances authorizing its issuance and
in said Revenue Bond Law and any amendments thereto.
It is hereby recited and certified that all acts, conditions
and things required to be done precedent to and in the issuance of
this Bond have been done, have happened and have been performed in
due and legal form as required by law, and that provision has been
made for the allocation from the anticipated revenues of the system
of amounts sufficient to pay the principal of and the interest on
all of the Bonds as same mature, or are acquired by mandatory
redemption, and to create and maintain a reserve for that purpose,
and that said revenues are irrevocably allocated and pledged to the
payment of the Bonds and the interest thereon.
* * * * *
213400.1
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ASSIGNMENT
,."
FOR VALUB RECBIVED the undersigned hereby sells, assigns and
transfers unto
(please print or typewrite name and address
[Please insert Social Security on Tax Identification Number]
the within bond and all
including postal zip code of assignee
rights
thereunder,
hereby
constituting
and
appointing
attorney to transfer this Bond on the bond
registration book kept for such purpose by the Bond Registrar, with
full power of substitution in the premises.
DATBD:
Signature Guaranteed:
Notice: The signature to this assign-
ment must correspond with the name as
it appears upon the face of the
within bond in every particular,
without alteration or enlargement or
any change whatever.
..
* * * * *
..
213400.1
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"""
..
..
section 3. Only those Series 1997 Bonds which shall have
endorsed thereon a certificate of authentication and registration
substantially in the form hereinbefore set forth, duly executed by
the manual signature of an authorized signatory of Reliance Trust
Company, as Bond Registrar, shall be entitled to any benefit or
security under this Ordinance and such certificate upon any of the
Series 1997 Bonds when duly executed shall be conclusive evidence
that such Series 1997 Bond has been duly authenticated, registered
and delivered. It shall not be necessary that the same signatory of
the Bond Registrar sign the certificate of authentication and
registration on all of the Series 1997 Bonds that may be issued
hereunder at anyone time. The person in whose name any bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes and the paYment of the principal amount,
interest and premium, if any, shall be made only to or upon the
order of the registered owner thereof. All such paYments shall be
valid and effectual to satisfy and discharge the liability upon such
Series 1997 Bond, including redemption premium, if any, and the
interest thereon to the extent of the sums so paid.
section 4. The Bond Registrar shall keep the bond registration
book for the registration of the series 1997 Bonds and for the
registration of transfers of the Series 1997 Bonds as herein
provided. The transfer of any series 1997 Bond shall be registered
upon the bond registration book upon the surrender and presentation
of the Series 1997 Bond to the Bond Registrar duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or attorney authorize in writing in such form as
shall be satisfactory to the Bond Registrar. Upon any such
registration of transfer, the Bond Registrar shall authenticate and
deliver in exchange for such Series 1997 Bond or Bonds so
surrendered, a new series 1997 Bond or Bonds registered in name of
the transferee, of any denomination or denominations authorized by
this Ordinance, and in an aggregate principal amount equal to the
aggregate principal amount of the Series 1997 Bonds so surrendered
and of the same maturity.
section 5. Any Series 1997 Bond, upon presentation and
surrender thereof to the Bond Registrar, together with an assignment
duly executed by the registered owner or duly authorized attorney,
in such form as may be satisfactory to the Bond Registrar, may be
exchanged, at the option of the registered owner, for an aggregate
principal amount of Series 1997 Bonds of the same maturity equal to
the principal amount of the Series 1997 Bond so surrendered and of
any authorized denomination or denominations. The Bond Registrar
may make a charge for every exchange or registration of transfer of
the Series 1997 Bonds sufficient to reimburse it for any tax or
other governmental charge required to be paid with respect to such
exchange or registration of transfer, but no other charge shall be
made to the owner for the privilege of exchanging or registering the
transfer of the Series 1997 Bonds under this Ordinance.
213400.1
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section 6. If any of the Series 1997 Bonds shall become
mutilated, the Bond Registrar in its discretion and at the expense
of the owner of such Series 1997 Bond shall authenticate and deliver
a new Series 1997 Bond of like tenor registered in the name of the
~ owner in exchange and substitution for such mutilated Series 1997
Bond. If any Series 1997 Bond shall become lost, destroyed or
wrongfully taken, evidence of such loss, destruction or wrongful
taking within a reasonable time thereafter may be submitted to the
City and if such evidence shall be satisfactory and indemnity of a
character in an amount satisfactory shall be given, then the City at
the expense of the owner shall cause a new Series 1997 Bond of like
tenor registered in the name of the owner to be authenticated by the
Bond Registrar and delivered to the registered owner.
..
Section 7. The City shall make all necessary and proper
provisions for the transfer and exchange of the Series 1997 Bonds by
the Bond Registrar and the City shall deliver or cause to be
delivered to the Bond Registrar a sufficient quantity of blank bonds
duly executed on behalf of the City, together with the certificate
of validation pertaining thereto duly executed by the Clerk of the
Superior Court of Cobb County, as herein provided in order that the
Bond Registrar shall at all times be able to register and
authenticate the Series 1997 Bonds at the earliest practicable time
in accordance with the provisions of this Ordinance. All Series
1997 Bonds surrendered in any such exchange or registration of
transfer shall be forthwith canceled by the Bond Registrar and a
record thereof duly entered in the permanent records pertaining to
the Series 1997 Bonds maintained by the Bond Registrar.
Section 8. The Series 1997 Bonds shall stand on a parity and
shall be of equal dignity with the outstanding Prior Bonds, and
shall be secured by the lien created pursuant to the provisions of
the Prior Ordinances, just as if the Series 1997 Bonds and the
outstanding Prior Bonds had been issued simultaneously under the
same ordinance.
section 9. The Series 1997 Bonds issued hereunder may not be
redeemed prior to their respective maturities.
Section 10. From the proceeds derived from the sale of the
Series 1997 Bonds, including accrued interest, which are issued
under the provisions of this Ordinance, the following payments shall
be made, simultaneously with the issuance and delivery of the Series
1997 Bonds, to the extent and in the manner herein set forth:
(a) The accrued interest so received shall be
deposited into the Sinking Fund hereinafter referred to in
Section 12 hereof and credited to the special account
designated as "Debt Service Account" to be used and
applied toward the payment of interest on the Series 1997
Bonds coming due on January 1, 1998.
..
213400.1
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,.,
(b) The sum of $848,565, or such other amount as
shall be necessary, together with moneys to be contributed
by the City, shall be deposited with the Sinking Fund
custodian, and applied to the refunding of the Refunded
Bonds.
(c) The balance of the proceeds so received shall
be used and applied by or on behalf of the City toward the
paYment of the costs incurred by the City in connection
with the issuance and delivery of said Series 1997 Bonds.
SectioD 11. Simultaneously with the issuance and delivery of
the Series 1997 Bonds, an amount equal to the pro rata portion of
the current sinking fund year debt service accruals applicable to
debt service on the Refunded Bonds (estimated to be $117,850) shall
be deposited in the 1986 Defeasance Account held within the Sinking
Fund held by the Sinking Fund CUstodian, and, together with $848,565
of the proceeds of the Series 1997 Bonds, or such other amount as
shall be necessary, shall be used to pay the principal of, interest
on and redemption premium with respect to the Refunded Bonds on July
1,1997 and such moneys and interest thereon shall be subject to a
lien and charge in favor of the owners of the Refunded Bonds and
shall be held for the security of such owners until used and applied
as herein provided.
..
SectioD 12. As covenanted in section 1 of Article IV of the
1984 Ordinance, the City will continue to operate the System on a
fiscal year basis commencing July 1 in each year and extending
through June 30 in the next year, but it reserves the right to
change such fiscal year by the adoption of proper proceedings to
that effect.
The city covenants that it will continue to maintain the "City
of Smyrna Water and Sewerage system Revenue Fund" (the "Revenue
Fund") created and covenanted to be maintained in the 1984
Ordinance, and into it will deposit all revenues derived from the
and ownership of the System so long as the outstanding Prior Bonds
and the Series 1997 Bonds (COllectively, the "Bonds") are outstanding
and unpaid, or until provision has been duly made for the payment
thereof and said revenues shall be from the Revenue Fund as
hereinafter provided:
(a) There shall first be paid from the Revenue Fund the
reasonable and necessary costs of operating, maintaining and
repairing the System, including salaries, wages, the payment of any
contractual obligations incurred in the operation of the System,
cost of materials and supplies, rentals of leased property, real or
personal insurance premiums, audit fees and such other charges as
proper to be made for the purpose of operating, maintaining and
repairing the system in accordance with sound business practice, but
before making provision for depreciation.
..
213400.1
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..,
(b) The City covenants that it will continue to maintain the
sinking Fund created in Paragraph 2 of section 2 of Article IV of
the 1984 Ordinance, which Sinking Fund now consists of two accounts
which are held therein, one of which was created and designated as
"Debt Service Account" and the other of which was created and
designated as "Debt Service Reserve Account" (the "Reserve Account").
..
(i) After making the payments required or permitted
to be made pursuant to the provisions of paragraph (a)
above, there shall be paid from the Revenue Fund into the
Debt service Account for the month of June, 1997, after
taking into consideration the moneys on deposit therein,
an amount equal to one-twelfth of the debt service coming
due on the Bonds in the sinking fund year ending July 1,
1997, and commencing with the month of July, 1997 and from
month to month thereafter an amount equal to one-twelfth
of the maximum debt service requirement on the Bonds
coming due in the then current or any future sinking fund
year, such monthly payments to continue from month to
month until sufficient funds are on hand in the sinking
Fund to pay all of said outstanding Bonds as same mature
or are acquired by mandatory redemption and the interest
which will become due and payable thereon.
(ii) After making the payments required to comply
with said subparagraph (i) above, there shall next be paid
into the Reserve Account, commencing with the month of
July, 1997, in substantially equal monthly payments,
taking into consideration the amount on deposit therein,
amounts sufficient to create in the Reserve Account by
July 1, 2002 a debt service reserve equal to the maximum
debt service requirement coming due in any succeeding
sinking fund year on the Bonds. When the balance in the
Reserve Account shall be equal to the maximum required, no
further payments shall be required to be made into the
Reserve Account unless the Reserve Account shall fall
below its required balance. During the period of
accumulation and after the Reserve Account shall have been
accumulated in the full amount required to be maintained
therein as aforesaid, it shall be maintained for the
purpose of paying the principal of and interest on the
Bonds falling due any year as to which there would
otherwise be a default and if money is taken from the
Reserve Account for the payment of such principal and
interest, the money so taken shall be replaced in the
Reserve Account from the first moneys in the Revenue Fund
thereafter available and not required to be used for
maintenance and operation changes and not required to be
paid into the Debt Service Account as hereinabove provided
in subparagraph (i).
..
213400.1
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(iii) All sums required to be paid to comply with
the provisions of said subparagraphs (i) and (ii) above
shall be paid on or before the last day of each month in
which paYment is due, and if, in any month, for any
reason, the City shall fail to pay the full amount herein
required to be paid into the Sinking Fund the amount of
any such deficiency shall be added to and shall become a
part of the amount due and payable by the city into the
Sinking Fund in the next succeeding month.
(iv) As provided in Paragraph 2 of Section 2 of
Article IV of the 1984 Ordinance, all net revenues
received by the city from the system immediately become
subject to a lien to secure the payment by the city of the
amounts therein agreed to be paid and the City hereby
ratifies and reaffirms the pledge of such revenues and
hereby covenants and agrees that the revenues received by
it from the system shall in like manner be pledged to
secure the paYment by the City of the amounts herein
agreed to be paid and that the lien of this pledge shall
be valid and binding against the City and against all
other parties having claims of any kind against the City,
whether such claims shall have arisen from a tort,
contract or otherwise and irrespective of whether such
parties have notice thereof.
Pursuant to the provisions of the Prior Ordinances, SunTrust
Bank, Atlanta, Atlanta, Georgia, has been designated and is hereby
redesignated as CUstodian of the Sinking Fund and said Sinking Fund
shall continue to be held and maintained in trust in said bank for
the benefit of the owners of the Bonds and any other bonds or
obligations hereafter issued ranking pari passu therewith and the
beneficial interest therein shall be considered to be in such owners
of the Bonds. As authorized in the Prior Ordinances, the City from
time to time may designate a successor Sinking Fund Custodian,
provided said custodian complies with all of the applicable
provisions of the Prior Ordinances and this Ordinance.
sectioD 13. After there have been paid from the Revenue Fund
in each month all amounts hereinabove required or permitted to be
paid pursuant to the provisions of Section 12 hereof and after
reserving in the Revenue Fund as a working capital reserve an amount
not to exceed one month's estimated costs of operating and
maintaining the System as determined by the chief fiscal officer of
the City, then there shall next be paid at the end of each month
into a special fund created and designated in the 1984 Ordinance as
"City of Smyrna Water and Sewerage system Renewal and Extension Fund"
(the "Renewal and Extension Fund"), all moneys remaining in the
Revenue Fund.
213400.1
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Expenditures shall be made from the Renewal and Extension Fund
only for the purposes provided in Paragraph 3 of Section 2 of
Article IV of the 1984 Ordinance, as hereby ratified and reaffirmed.
." Pursuant to the provisions of the Prior Ordinances, Smyrna Bank
and Trust Co., Smyrna, Georgia, has been designated and is hereby
redesignated as Depository of said Renewal and Extension Fund, but
the City from time to time may designate a successor Depository of
the Renewal and Extension Fund, provided said Depository complies
with all of the applicable provisions of the Prior Ordinances and
this Ordinance.
As provided in the 1984 Ordinance and ratified and reaffirmed
by the other Prior Ordinances and this Ordinance, should bonds be
hereafter issued ranking as to lien on the revenues of the system
junior and subordinate to the lien securing the payment of the Bonds
and any parity bonds therewith hereafter issued, then such payments
into the Renewal and Extension Fund as provided in this section may
be suspended and the revenues shall be available to the extent
necessary to pay the principal of and interest on such junior lien
bonds and to create and maintain a reasonable reserve therefor, and
such revenues may be allocated and pledged for that purpose.
Moneys in the Renewal and Extension Fund, at the discretion of
the ci ty , may be invested to the extent and. in the manner as
provided in section 7 of Article IV of the 1984 Ordinance, and all
moneys in said Renewal and Extension Fund and all securities held in
and for said Renewal and Extension Fund and all increments therefrom
.. are hereby pledged to and charged with the payments mentioned in
Paragraph 3 of section 2 of Article IV of the 1984 Ordinance, as
hereby ratified and reaffirmed.
section 14. The City covenants and agrees that it has
heretofore and that it will at all times, and from time to time,
prescribe and place into effect a schedule of rates, fees and
charges for the services, facilities and commodities furnished by
the system and as often as it shall appear necessary that it will
revise and adjust such schedule of rates, fees and charges for water
or sewerage services and facilities, or both, to the extent
necessary to produce funds sufficient at all times to operate and
maintain the system on a sound businesslike basis and to make the
payments into the Sinking Fund created by the 1984 Ordinance, as
herein enlarged and extended in accordance and compliance with the
terms, covenants and conditions of the Prior Ordinances and this
Ordinance and to create and maintain the Renewal and Extension Fund
as provided by Prior Ordinances and this Ordinance.
In the event the City shall fail to adopt a schedule or
schedules of rates, fees and charges, or to revise its schedule or
schedules of rates, fees and charges in accordance with the
provisions of this Section, any bondholder, without regard to
whether any default, as defined in Article VII of the 1984
-
213400.1
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J
..
~
Ordinance, shall have occurred, may institute and prosecute in any
court of competent jurisdiction an appropriate action to compel the
city to adopt a schedule or schedules of rates, fees and charges, or
to revise its schedule or schedules of rates, fees and charges, in
accordance with the requirements of this section and of section 3 of
Article IV of the 1984 Ordinance.
section 15. The city further covenants and agrees that it will
not exercise the privilege provided in Article IV, Section 8 of the
1984 Ordinance, as ratified, reaffirmed, broadened and extended in
section 16 of the 1986 Ordinance and section 14 of the 1989
Ordinance, of issuing additional bonds or obligations ranking as to
lien on the revenues of the system pari passu with the Bonds, unless
or until all of the following conditions are met:
(a) The paYments covenanted to be made into the Sinking Fund,
as the same may have been enlarged and extended by any proceedings
authorizing the issuance of any additional parity bonds, must be
currently being made in full amount as required and said "Debt
Service Account" and "Debt service Reserve Account" held wi thin said
Sinking Fund must be at their proper respective balances.
(b) The Net Earnings (as hereinafter defined) of the System
for a period of 12 consecutive months out of the 18 consecutive
months preceding the month of adoption of the proceedings
authorizing the issuance of such additional bonds must have been
equal to at least 1.20 times the maximum debt service requirement
for any succeeding sinking fund year on the Bonds and any other
issue or issues of parity bonds therewith then outstanding and on
the bonds proposed to be issued, or in lieu of the foregoing
formula, if a new schedule of rates and charges for services,
facilities and commodities furnished by the system shall have been
adopted and an independent and recognized firm of certified Public
Accountants shall certify that had this new rate schedule been in
effect during the period described above the Net Earnings of the
system would have been equal to at least 1.20 times the maximum debt
service requirement for any succeeding sinking fund year on the
Bonds and any parity bonds therewith then outstanding and on the
bonds proposed to be issued.
"Net Earnings" for the purpose of this provision shall be
construed to be the gross earnings of the system remaining after the
paYment of the sums required or permitted to be paid to operate and
maintain the system pursuant to the provisions of Paragraph 1 of
Section 2 of Article IV of the 1984 Ordinance, but before provision
for depreciation.
(c) An independent and recognized firm of Certified Public
Accountants shall certify in triplicate to the governing body of the
city that the requirements of Paragraph (a) above are being complied
with and that the requirements of Paragraph(b) above have been met.
A copy of the certificate of the Certified Public Accountants shall
213400.1
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be furnished to the designated representative of the original
purchasers of the Bonds.
..
Cd) Except when bonds are being issued solely for the purpose
of refunding outstanding revenue bonds, the Consulting Engineers for
the City shall provide the City with a written report recommending
the additions, extensions and improvements be made to the system and
stating that same are feasible, designating in reasonable detail the
work and installation proposed to be done and the estimated cost of
accomplishing such undertaking. Said engineers shall set forth in
said report the projected net earnings to be derived from the system
which will be available for debt service paYments over the life of
the Bonds and any parity bonds therewith then outstanding and the
bonds proposed to be issued and shall indicate the proj ected
coverage of such debt service paYments in each succeeding sinking
fund year. Projected net earnings in each year for the purpose of
this subparagraph Cd) shall be estimated gross earnings of the
system in each sinking fund year remaining after paYment of the
estimated cost required or permitted to be paid pursuant to the
provisions of Paragraph 1 of Section 2 of Article IV of the 1984
Ordinance for said period to operate, repair and maintain the
system, but before provision for depreciation.
-
An executed duplicate original of such report of said Engineers
as required by this provision shall be furnished to the designated
representative of the original purchasers of the Bonds not less than
10 days before any proceedings are taken to actually issue such
additional bonds.
Ce) The governing body of the City shall pass proper
proceedings reciting that all of the above requirements have been
met, shall authorize the issuance of said bonds and shall provide in
such proceedings, among other things, the date such bonds shall
bear, the rate or rates of interest and maturity dates, as well as
the registration and redemption provisions. The interest on the
bonds of any such issue shall fall due on January 1 and July 1 of
each year, and the bonds shall mature in installments on July 1,
but, as to principal, not necessarily in each year or in equal
installments. Any such proceeding or proceedings shall require the
ci ty to increase the monthly paYments then being made into the
Sinking Fund to the extent necessary to pay the principal of and the
interest on the Bonds and on all such parity bonds therewith then
outstanding and on the bonds proposed to be issued as same become
due and payable, either at maturity or by proceedings for mandatory
redemption, in the then current sinking fund year, and to create
within five years from the date of the bonds to be issued a reserve
in the Reserve Account at least equal to the maximum debt service
requirement coming due in any succeeding sinking fund year on the
Bonds and any parity bonds therewith then outstanding and on the
bonds proposed to be issued and to maintain said reserve in an
amount sufficient for that purpose. Any such proceeding or
proceedings shall restate and reaffirm, by reference, all of the
..
213400.1
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...
-
...
applicable terms, conditions and provisions of the Prior Ordinances
and this Ordinance.
(f) Such additional bonds or obligations and all proceedings
relative thereto, and the security therefor, shall be validated as
prescribed by law.
section 16. All of the applicable terms, conditions and
provisions of all other sections or portions of sections of Article
IV of the 1984 Ordinance not herein specifically referred to are
hereby declared applicable to and are broadened and extended so as
to cover the Series 1997 Bonds and any future issue or issues of
parity bonds therewith and are hereby ratified and reaffirmed and
are hereby adopted and shall for all purposes apply to the series
1997 Bonds as if the series 1997 Bonds had been originally issued
under authority of the Prior Ordinances simultaneously with the
outstanding Prior Bonds.
It is further provided, however, that any money in the sinking
Fund not immediately required to pay the interest coming due January
1 and the principal and interest coming due July 1 on the Bonds in
any year shall be invested and reinvested to the extent and in the
manner as provided and set forth in section 6 of Article IV of the
1984 Ordinance. Any such securities so purchased shall be held by
the sinking Fund CUstodian in trust until paid at maturity or sold,
and all income or increments therefrom shall be immediately
deposited to the credit of the account for which same are held. The
moneys in the Sinking Fund, and all income and increments therefrom,
were pledged and are hereby pledged to and charged with: (a) the
paYment of interest upon the Bonds as such interest falls due: and
(b) the payment of the principal of the Bonds as same become due and
payable, either at maturity or by proceedings for mandatory
redemption: and (c) the optional redemption of the outstanding Prior
Bonds before maturity at the price and under the conditions provided
therefor in the 1989 Ordinance: and (d) the purchase of the Bonds in
the open market: provided, however, the price paid shall not exceed
the authorized call price applicable to each such issue: and (e) the
transfer of excess moneys, if any, in the Sinking Fund (as defined
in subparagraph (c) of paragraph 2 of Section 2 of Article IV of the
1984 Ordinance) to the Revenue Fund: and (f) the paYment of charges
for paying the Bonds and interest thereon and the charges for the
registration of the Bonds secured hereby and their transfer or
exchange in accordance with the terms thereof: and (g) the paYment
of any charges for investment services.
Section 17. All of the applicable terms, conditions and
provisions of Article V, Article VI, Article VII and Article VIII
and each section and covenant thereof of the 1984 Ordinance not
specifically referred to herein are hereby broadened and extended so
as to cover the Series 1997 Bonds issued hereunder and are hereby
ratified and reaffirmed as so extended, and which for all purposes
apply to the Series 1997 Bonds as if the series 1997 Bonds had been
213400.1
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...
..
~
originally issued under authority of the Prior Ordinances,
simultaneously, with the outstanding Prior Bonds.
8ec~ion 18. Anything to the contrary in the Prior Ordinances
or this Ordinance contained notwithstanding, it is expressly
provided that the City shall not purchase obligations of the Federal
Land Bank, the Federal Intermediate Credit Bank or the Central Bank
for Cooperatives as an investment of moneys or as security for
deposits of moneys in any of the special funds created in the 1984
Ordinance, nor shall any supplemental ordinance adopted pursuant to
the provisions of Article VIII of the 1984 Ordinance, as ratified,
reaffirmed, broadened and extended by the other Prior Ordinances and
this Ordinance, requiring the consent of bondholder~s become
effective, unless it shall have obtained the written consent of the
MBIA and any other issuer of a policy of insurance guaranteeing
timely payment of principal and interest on any future issue of
parity bonds.
8ec~ion 19. The city hereby covenants and agrees that it will
not, subsequent to the date of the issuance and delivery of the
Series 1997 Bonds, intentionally use any portion of the proceeds of
the Series 1997 Bonds to acquire higher yielding investments, or to
replace funds which were used directly or indirectly to acquire
higher yielding investments, except as may be otherwise permitted by
the Internal Revenue Code of 1986, as amended (the "Code"), or the
regulations promulgated thereunder, including, but not limited to,
complying with the requirements of Section 148(f) of the Code and
the regulations promulgated thereunder and the payment of rebate, if
any, required to be made, and that it will expend the proceeds of
the Series 1997 Bonds in compliance with the applicable provisions
of Sections 141 to 149, inclusive, of the Code. Anything herein or
in the Prior Ordinances notwithstanding, earnings on amounts in any
fund or account may, and shall to the extent necessary, be used to
make the payments required under this Section 19.
8ec~ion 20. The Series 1997 Bonds herein authorized to be
issued are hereby designated as "qualified tax-exempt obligations"
within the meaning of Section 265(b) (3) of the Code.
8ec~ion 21. The Mayor and Clerk of the city of Smyrna are
hereby authorized and directed to execute, for and on behalf of the
City of Smyrna, a certification, based upon facts, estimates and
circumstances, as to the reasonable expectations regarding the
amount, expenditure and use of the proceeds derived from the sale of
the Series 1997 Bonds, as well as such other documents as may be
necessary or advisable in connection with the issuance and delivery
of the Series 1997 Bonds.
8ec~ion 22. For the purpose of this Ordinance and pertaining
to the Series 1997 Bonds herein authorized to be issued the terms
"original purchasers. and .designa~ed represen~a~iv. of ~h. original
213400.1
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...
..
...
purchasers. shall be construed to mean Knox, Wall & Company,
Atlanta, Georgia, its successors or assigns.
section 23. For the purpose of this Ordinance the terms
"principal and interest requirements. and "debt service requirements.
shall be construed to mean the amount required in each sinking fund
year to pay the principal of and interest on the Bonds and any
parity bonds therewith hereafter issued as the same become due and
payable either at maturity or by proceedings for mandatory
redemption.
section 24. The Series 1997 Bonds are being issued by the City
in compliance with the conditions necessary for interest income on
the Series 1997 Bonds to be excluded from gross income for federal
income tax purposes pursuant to the provisions of section 103(a) of
the Code relating to obligations of the State of Georgia or any
political subdivision thereof. It is the intention of the City that
the interest on the Series 1997 Bonds be and remain excludable from
gross income for federal income tax purposes, and, to that end, the
city hereby covenants with the holders of the Series 1997 Bonds as
follows:
(a) That it will not take any action, or fail to take any
action, if any such action or failure to take action would adversely
affect the tax exempt status of interest on the Series 1997 Bonds
under Section 103 of the Code.
(b) That it will not directly or indirectly use or permit the
use of any of the proceeds of the Series 1997 Bonds or any other
funds of the City or take or omit to take any action in a way that
would cause the Series 1997 Bonds to be (i) "private activity bonds~
within the meaning of Section 141 of the Code unless such bonds
constitute "exempt facility bonds~ within the meaning of Section
142 (a) of the Code, or (ii) obligations which are "federally
guaranteed~ within the meaning of section 149(b) of the Code.
(c) That it will not directly or indirectly use or permit the
use of any proceeds of the Series 1997 Bonds or any other funds of
the City or take or omit to take any action that would cause the
Series 1997 Bonds to be "arbitrage bonds~ within the meaning of
Section 148 of the Code. To that end, the City will comply with all
requirements of section 148 of the Code to the extent applicable to
the Series 1997 Bonds. In the event that at any time t~e City is of
the opinion that for purposes of this Section it is necessary to
restrict or limit the yield on the investment of any moneys held
under this Ordinance, the City shall take such action as may be
necessary.
section 25. The execution, delivery and performance of the
Bond Placement Agreement providing for the placement of the Series
1997 Bonds, by and between the City and the Placement Agent, a copy
of which has been presented to the Mayor and council of the City at
213400.1
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..
..
...
this meeting and considered by said Mayor and Council of the City
and which is on file and of record with the Clerk of the City, be
and the same is hereby ratified, authorized and approved. The Bond
Placement Agreement shall be in substantially the form as presented,
subject to such minor changes, insertions or omissions as may be
approved by the Mayor and Council of the City and the execution of
the Bond Placement Agreement by the Mayor and Clerk of the City as
hereby authorized shall be conclusive evidence of any such approval.
section 26. The City hereby covenants and agrees that it will,
to the extent allowed by applicable law, comply with and carry out
all provisions of the continuing Disclosure certificate to be
executed by the City and dated as of the date of issuance and
delivery of the Series 1997 Bonds, as originally executed and as it
may be amended from time to time in accordance with its terms (the
"Disclosure Certificate"). Notwithstanding any other provision of
this Ordinance, failure of the City to comply with the Disclosure
certificate shall not be considered a default hereunder, and under
no circumstances shall such failure affect the validity or the
security for the payment of the Series 1997 Bonds. It is expressly
provided, however, that any beneficial owner of the Series 1997
Bonds may take such action, to the extent and in such manner as may
be allowed by applicable law, as may be necessary and appropriate,
including seeking mandamus or specific performance by court order,
to cause the City to comply with its obligations under this Section.
The cost to the City of performing its obligations set forth in this
section shall be paid solely from funds lawfully available for such
purpose. Nothing contained in this Ordinance shall obligate the
levy of any tax for the City' s Obligations set forth in this
section.
section 27. The prov1s1ons, terms and conditions of this
Ordinance shall constitute a contract by and between the City and
the owners of the Bonds, and after the issuance of the Series 1997
Bonds this Ordinance shall not be repealed or amended in any respect
which will adversely affect the rights and interest of the owners of
the Bonds of any of said issues, nor shall the governing body of the
City pass any proceedings in any way adversely affecting the rights
of such owners, so long as any of the Bonds authorized by the Prior
Ordinances and this Ordinance, or the interest thereon, shall remain
unpaid or until provision shall have been duly made therefor.
Any subsequent proceeding or proceedings authorizing the
issuance of additional parity bonds or obligations as permitted
under Section 8 of Article IV of the 1984 Ordinance, section 16 of
the 1986 Ordinance, section 14 of the 1989 Ordinance and section 15
of this Ordinance, shall in nowise conflict with the terms and
conditions of the Prior Ordinances or this Ordinance, but shall for
all legal purposes contain all the covenants, agreements and
provisions of the Prior Ordinances and this Ordinance for the equal
protection and benefit of all owners of the Bonds.
213400.1
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Section 28. The Series 1997 Bonds herein authorized shall be
validated in the manner provided by law, and to that end notice of
the adoption of this Ordinance and a copy thereof shall be served on
.. the District Attorney of the Cobb Judicial Circuit, in order that
proceedings for the above purpose may be instituted in the superior
Court of Cobb County.
section 29. Any and all ordinances and resolutions or parts of
ordinances and resolutions, in conflict with this Ordinance this day
adopted be and the same are hereby repealed, and this Ordinance
shall be in full force and effect from and after its adoption.
* * * * *
Approved:
/ ~
~ayor, City of Smyrna, Georgia
...
....
213400.1
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AI
ANDERSON, HUNT & COMPANY, P.C.
CERTIFIED PUBLIC ACCOUNTANTS & BUSINESS CONSULTANTS
..
JONATHAN F. ANDERSON. CPA
DONALDW. HUNT. CPA
BRETT J. MCCLUNG. CPA
SUITE 600 - 1950 NORTH PARK PLACE
ATLANTA. GEORGIA 30339
(770) 952-6557
FAX: (770) 951-2674
May 5, 1997
Mayor and Council of
the City of Smyrna
Smyrna, Georgia
Knox, Wall & Company
Atlanta, Georgia
Sutherland, Asbill & Brennan, L.L.P.
Atlanta, Georgia
Re:
$875,000 City of Smyrna (Georgia) Water and
Sewerage Revenue Refunding Bonds. Series 1997
..
Ladies and Gentlemen:
We have examined the books and records of the City of Smyrna with respect to its
water and sewerage system (the "System") and hereby certify that the payments
covenanted to be made into the "City of Smyrna Water and Sewerage System Sinking
Fund" (the "Sinking Fund") created in Paragraph 2 of Section 2 of Article IV of an
ordinance adopted by the Mayor and Council of the City of Smyrna (the "City") on
October 4, 1984 (the "1984 Ordinance"), authorizing the issuance of $4,375,000
aggregate principal amount of the City's Water and Sewerage Revenue Bonds, Series
1984, as ratified, reaffirmed, broadened and extended in Section 13 of an ordinance
adopted by the City on August 4, 1986, authorizing the issuance of $1,500,000 aggregate
principal amount of the City's Water and Sewerage Revenue Bonds, Series 1986 (the
"Series 1986 Bonds") and Section 11 of an ordinance adopted by the City of May 25,
1989, authorizing the issuance of $3,510,000 aggregate principal amount of the City's
Water and Sewerage Revenue Refunding Bonds, Series 1989 (the "Series 1989 Bonds"),
are currently being made in the full amount as required and the "Debt Service Account"
and "Debt Service Reserve Account" held within the Sinking Fund are at their proper
respective balances.
..
...
Based on such examination of the System, the net earnings of the System for a
period of twelve consecutive months out of the previous eighteen consecutive months are
equal to at least 1.20 times the maximum debt service requirement for any succeeding
sinking fund year on all of the outstanding Series 1989 Bonds and on the Series 1997
Bonds proposed to be issued (the Series 1986 Bonds are being excluded by virtue of their
defeasance with moneys to be contributed by the City and the proceeds of the Series 1997
Bonds proposed to be issued). "Debt service requirement" is defined as the amount
required in each sinking fund year to pay the principal of and interest on the outstanding
Series 1989 Bonds and the Series 1997 Bonds proposed to be issued as the same become
due and payable either at maturity or by proceedings for mandatory redemption. "Net
earnings" is defined as the gross earnings of the System remaining after the payment of the
sums required or permitted to be paid to operate and maintain the System pursuant to the
provisions of Paragraph 1 of Section 2 of Article IV of the 1984 Ordinance, but before
provisions for depreciation.
Very truly yours,
I W i~SvJ~ ,?t/
RSON, HUNT & ~~U
..
..
1984, August 4, 1986 and May 25, 1989 (the "Prior Ordinances") and
an ordinance of the Mayor and Council of the City of Smyrna adopted
on May 5, 1997 (the "1997 Ordinance" and, together with the Prior
ordinances, the "Ordinances"). The Series 1997 Bonds rank on a
... parity as to lien on the net revenues of the City's water and
sewerage system, as now existent and as hereafter added to,
extended, improved and equipped (the "System"), with the City'S Water
and Sewerage Revenue Refunding Bonds, Series 1989 heretofore issued
and delivered pursuant to the ordinance of May 25, 1989 and now
outstanding in the aggregate principal amount of $2,955,000 (the
"outstanding Series 1989 Bonds") and shall be secured by the same
lien on the net revenues of the System. In addition to the
outstanding Series 1989 Bonds and the Series 1997 Bonds
(collectively, the "Bonds"), the city may issue, under certain terms
and conditions as provided in the Ordinances, additional revenue
bonds or obligations which, if issued, will rank on a parity as to
lien on the net revenues of the System with the Bonds. Reference to
the Ordinances is hereby made for a complete description of the fund
charged with, and pledged to, the payment of the principal of and
the interest on the Series 1997 Bonds or any other issue, the nature
and extent of the security, the rights, duties and obligations of
the City, the rights of the owners of the Series 1997 Bonds and the
terms and conditions under which additional parity bonds may be
issued to all the provisions of which the owner hereof, by the
acceptance of this Bond, assents.
The terms and provisions of this Bond and definitions of
certain terms used herein are continued on the reverse side hereof
.. and all such continued terms and provisions and definitions shall
for all purposes have the same effect as though fully set forth at
this place.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Ordinances until this Bond shall have been authenticated and
registered upon the bond registration book kept by the Bond
Registrar for that purpose, which authentication and registration
shall be evidenced by the execution by the manual signature of a
duly authorized signatory of the Bond Registrar of the certificate
hereon.
IN WITNESS WBERBOP, the City of Smyrna, Georgia, has caused
this Bond to be executed by use of the [facsimile] signature of its
Mayor and [a facsimile of] its official seal to be imprinted hereon
and attested by the use of the [facsimile] signature of its Clerk,
as of the 1st day of May, 1997.
..,
213400.1
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C:ITY OJ' SMYRNA
...
Attest:
By:
Mayor
Clerk
(S B A L)
Date of Authentication and Registration:
CBRT:IF:ICATB OJ' AUTHBNT:ICAT:IOH AND REG:ISTRAT:IOH
This Bond is one of the Series 1997 Bonds
described in the ordinance of May 5, 1997.
REL:IANCB TROST COMPANY, as Bond Registrar
By:
Authorized Signatory
...
VAL:IDAT:IOH CBRT:IJ':ICATB
STATB OJ' GBORG:IA
COUNTY OJ' COBB
The undersigned Clerk of the Superior Court of Cobb County,
state of Georgia, DOBS HBREBY CBRT:IJ'Y that this Bond was validated
and confirmed by judgment of the Superior Court of Cobb County,
Georgia, on the ____ day of May, 1997, and that no intervention or
objection was filed in the proceedings validating same and that no
appeal from said jUdgment of validation has been taken.
....
213400.1
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WITNESS my [facsimile] signature and seal of the Superior Court
Cobb County, Georgia.
Clerk, Superior Court,
Cobb County, Georgia
(S B A L)
213400.1
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(THB FOLLOWING SHALL BB PRINTBD ON THE BACK OF THE SERIBS 1997
BONDS.]
.. This Bond is transferable only upon the bond registration book
kept for that purpose at the principal corporate trust office of the
Bond Registrar by the registered owner hereof in person, or by
attorney duly authorized in writing, upon the surrender and
presentation to the Bond Registrar of this Bond duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or attorney duly authorized in writing, and
thereupon a new registered bond, in the same aggregate principal
amount and of the same maturity shall be issued to the transferee in
exchange therefor.
The Series 1997 Bonds are issuable in the form of fully
registered bonds in the denomination of $5,000 or any integral
multiple thereof and are exchangeable at the principal corporate
trust office of the Bond Registrar in the manner, subject to the
conditions and upon payment of charges, if any, provided in the 1997
Ordinance.
The Ordinances provide, among other things, for prescribing and
revising rates and COllecting fees and charges for the services,
facilities and commodities furnished by the System to the extent
necessary to produce revenues sufficient to pay the reasonable and
necessary costs of operating and maintaining the System, including
the paYment of any contractual obligations incurred pertaining
.. thereto, and to pay into a special fund designated NCity of Smyrna
Water and Sewerage System Sinking Fund" the amounts required to pay
the principal of and the interest on the Bonds and any other bonds
hereafter issued on a parity therewith as the same become due and
payable, either at maturity or by proceedings for mandatory
redemption, and to create and maintain a reserve therein for that
purpose, as well as to create and maintain a reserve for extensions
and improvements to the System.
This Bond shall not be deemed to constitute a debt of the City
of Smyrna nor a pledge of the faith and credit of said City, nor
shall the City be subject to any pecuniary liability hereon. This
Bond shall not be payable from, nor a charge upon, any funds other
than the revenues pledged to the paYment hereof, and is payable
solely from the special fund provided therefor from the revenues of
the System, including all future additions thereto and any other
moneys deposited therein. No owner of this Bond shall ever have the
right to compel the exercise of the taxing power of the City to pay
the same, or the interest hereon, or to enforce paYment hereof
against any other property of the ci ty , nor shall this Bond
constitute a charge, lien or encumbrance, legal or equitable, upon
any other property of the City other than the revenues pledged to
the paYment hereof.
...
213400.1
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The Series 1997 Bonds are not subject to redemption prior to
maturity.
To the extent and in the manner permitted by the Ordinances,
modifications, alterations, amendments, additions and recisions of
the provisions of the Ordinances, or of any ordinance supplemental
thereto or of the Bonds, may be made by the City with the consent of
the owners of at least 65 percent in aggregate principal amount of
the Bonds then outstanding, including any parity obligations
therewith then outstanding, and without the necessity for notation
hereon of reference thereto.
This Bond is issued with the intent that the laws of the State
of Georgia shall govern its construction.
In case of default, the owner of this Bond shall be entitled to
the remedies provided in the Ordinances authorizing its issuance and
in said Revenue Bond Law and any amendments thereto.
It is hereby recited and certified that all acts, conditions
and things required to be done precedent to and in the issuance of
this Bond have been done, have happened and have been performed in
due and legal form as required by law, and that provision has been
made for the allocation from the anticipated revenues of the system
of amounts sufficient to pay the principal of and the interest on
all of the Bonds as same mature, or are acquired by mandatory
redemption, and to create and maintain a reserve for that purpose,
and that said revenues are irrevocably allocated and pledged to the
payment of the Bonds and the interest thereon.
* * * * *
213400.1
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ASSIGNMENT
,."
FOR VALUB RECBIVED the undersigned hereby sells, assigns and
transfers unto
(please print or typewrite name and address
[Please insert Social Security on Tax Identification Number]
the within bond and all
including postal zip code of assignee
rights
thereunder,
hereby
constituting
and
appointing
attorney to transfer this Bond on the bond
registration book kept for such purpose by the Bond Registrar, with
full power of substitution in the premises.
DATBD:
Signature Guaranteed:
Notice: The signature to this assign-
ment must correspond with the name as
it appears upon the face of the
within bond in every particular,
without alteration or enlargement or
any change whatever.
..
* * * * *
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213400.1
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section 3. Only those Series 1997 Bonds which shall have
endorsed thereon a certificate of authentication and registration
substantially in the form hereinbefore set forth, duly executed by
the manual signature of an authorized signatory of Reliance Trust
Company, as Bond Registrar, shall be entitled to any benefit or
security under this Ordinance and such certificate upon any of the
Series 1997 Bonds when duly executed shall be conclusive evidence
that such Series 1997 Bond has been duly authenticated, registered
and delivered. It shall not be necessary that the same signatory of
the Bond Registrar sign the certificate of authentication and
registration on all of the Series 1997 Bonds that may be issued
hereunder at anyone time. The person in whose name any bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes and the paYment of the principal amount,
interest and premium, if any, shall be made only to or upon the
order of the registered owner thereof. All such paYments shall be
valid and effectual to satisfy and discharge the liability upon such
Series 1997 Bond, including redemption premium, if any, and the
interest thereon to the extent of the sums so paid.
section 4. The Bond Registrar shall keep the bond registration
book for the registration of the series 1997 Bonds and for the
registration of transfers of the Series 1997 Bonds as herein
provided. The transfer of any series 1997 Bond shall be registered
upon the bond registration book upon the surrender and presentation
of the Series 1997 Bond to the Bond Registrar duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or attorney authorize in writing in such form as
shall be satisfactory to the Bond Registrar. Upon any such
registration of transfer, the Bond Registrar shall authenticate and
deliver in exchange for such Series 1997 Bond or Bonds so
surrendered, a new series 1997 Bond or Bonds registered in name of
the transferee, of any denomination or denominations authorized by
this Ordinance, and in an aggregate principal amount equal to the
aggregate principal amount of the Series 1997 Bonds so surrendered
and of the same maturity.
section 5. Any Series 1997 Bond, upon presentation and
surrender thereof to the Bond Registrar, together with an assignment
duly executed by the registered owner or duly authorized attorney,
in such form as may be satisfactory to the Bond Registrar, may be
exchanged, at the option of the registered owner, for an aggregate
principal amount of Series 1997 Bonds of the same maturity equal to
the principal amount of the Series 1997 Bond so surrendered and of
any authorized denomination or denominations. The Bond Registrar
may make a charge for every exchange or registration of transfer of
the Series 1997 Bonds sufficient to reimburse it for any tax or
other governmental charge required to be paid with respect to such
exchange or registration of transfer, but no other charge shall be
made to the owner for the privilege of exchanging or registering the
transfer of the Series 1997 Bonds under this Ordinance.
213400.1
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section 6. If any of the Series 1997 Bonds shall become
mutilated, the Bond Registrar in its discretion and at the expense
of the owner of such Series 1997 Bond shall authenticate and deliver
a new Series 1997 Bond of like tenor registered in the name of the
~ owner in exchange and substitution for such mutilated Series 1997
Bond. If any Series 1997 Bond shall become lost, destroyed or
wrongfully taken, evidence of such loss, destruction or wrongful
taking within a reasonable time thereafter may be submitted to the
City and if such evidence shall be satisfactory and indemnity of a
character in an amount satisfactory shall be given, then the City at
the expense of the owner shall cause a new Series 1997 Bond of like
tenor registered in the name of the owner to be authenticated by the
Bond Registrar and delivered to the registered owner.
..
Section 7. The City shall make all necessary and proper
provisions for the transfer and exchange of the Series 1997 Bonds by
the Bond Registrar and the City shall deliver or cause to be
delivered to the Bond Registrar a sufficient quantity of blank bonds
duly executed on behalf of the City, together with the certificate
of validation pertaining thereto duly executed by the Clerk of the
Superior Court of Cobb County, as herein provided in order that the
Bond Registrar shall at all times be able to register and
authenticate the Series 1997 Bonds at the earliest practicable time
in accordance with the provisions of this Ordinance. All Series
1997 Bonds surrendered in any such exchange or registration of
transfer shall be forthwith canceled by the Bond Registrar and a
record thereof duly entered in the permanent records pertaining to
the Series 1997 Bonds maintained by the Bond Registrar.
Section 8. The Series 1997 Bonds shall stand on a parity and
shall be of equal dignity with the outstanding Prior Bonds, and
shall be secured by the lien created pursuant to the provisions of
the Prior Ordinances, just as if the Series 1997 Bonds and the
outstanding Prior Bonds had been issued simultaneously under the
same ordinance.
section 9. The Series 1997 Bonds issued hereunder may not be
redeemed prior to their respective maturities.
Section 10. From the proceeds derived from the sale of the
Series 1997 Bonds, including accrued interest, which are issued
under the provisions of this Ordinance, the following payments shall
be made, simultaneously with the issuance and delivery of the Series
1997 Bonds, to the extent and in the manner herein set forth:
(a) The accrued interest so received shall be
deposited into the Sinking Fund hereinafter referred to in
Section 12 hereof and credited to the special account
designated as "Debt Service Account" to be used and
applied toward the payment of interest on the Series 1997
Bonds coming due on January 1, 1998.
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213400.1
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,.,
(b) The sum of $848,565, or such other amount as
shall be necessary, together with moneys to be contributed
by the City, shall be deposited with the Sinking Fund
custodian, and applied to the refunding of the Refunded
Bonds.
(c) The balance of the proceeds so received shall
be used and applied by or on behalf of the City toward the
paYment of the costs incurred by the City in connection
with the issuance and delivery of said Series 1997 Bonds.
SectioD 11. Simultaneously with the issuance and delivery of
the Series 1997 Bonds, an amount equal to the pro rata portion of
the current sinking fund year debt service accruals applicable to
debt service on the Refunded Bonds (estimated to be $117,850) shall
be deposited in the 1986 Defeasance Account held within the Sinking
Fund held by the Sinking Fund CUstodian, and, together with $848,565
of the proceeds of the Series 1997 Bonds, or such other amount as
shall be necessary, shall be used to pay the principal of, interest
on and redemption premium with respect to the Refunded Bonds on July
1,1997 and such moneys and interest thereon shall be subject to a
lien and charge in favor of the owners of the Refunded Bonds and
shall be held for the security of such owners until used and applied
as herein provided.
..
SectioD 12. As covenanted in section 1 of Article IV of the
1984 Ordinance, the City will continue to operate the System on a
fiscal year basis commencing July 1 in each year and extending
through June 30 in the next year, but it reserves the right to
change such fiscal year by the adoption of proper proceedings to
that effect.
The city covenants that it will continue to maintain the "City
of Smyrna Water and Sewerage system Revenue Fund" (the "Revenue
Fund") created and covenanted to be maintained in the 1984
Ordinance, and into it will deposit all revenues derived from the
and ownership of the System so long as the outstanding Prior Bonds
and the Series 1997 Bonds (COllectively, the "Bonds") are outstanding
and unpaid, or until provision has been duly made for the payment
thereof and said revenues shall be from the Revenue Fund as
hereinafter provided:
(a) There shall first be paid from the Revenue Fund the
reasonable and necessary costs of operating, maintaining and
repairing the System, including salaries, wages, the payment of any
contractual obligations incurred in the operation of the System,
cost of materials and supplies, rentals of leased property, real or
personal insurance premiums, audit fees and such other charges as
proper to be made for the purpose of operating, maintaining and
repairing the system in accordance with sound business practice, but
before making provision for depreciation.
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213400.1
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(b) The City covenants that it will continue to maintain the
sinking Fund created in Paragraph 2 of section 2 of Article IV of
the 1984 Ordinance, which Sinking Fund now consists of two accounts
which are held therein, one of which was created and designated as
"Debt Service Account" and the other of which was created and
designated as "Debt Service Reserve Account" (the "Reserve Account").
..
(i) After making the payments required or permitted
to be made pursuant to the provisions of paragraph (a)
above, there shall be paid from the Revenue Fund into the
Debt service Account for the month of June, 1997, after
taking into consideration the moneys on deposit therein,
an amount equal to one-twelfth of the debt service coming
due on the Bonds in the sinking fund year ending July 1,
1997, and commencing with the month of July, 1997 and from
month to month thereafter an amount equal to one-twelfth
of the maximum debt service requirement on the Bonds
coming due in the then current or any future sinking fund
year, such monthly payments to continue from month to
month until sufficient funds are on hand in the sinking
Fund to pay all of said outstanding Bonds as same mature
or are acquired by mandatory redemption and the interest
which will become due and payable thereon.
(ii) After making the payments required to comply
with said subparagraph (i) above, there shall next be paid
into the Reserve Account, commencing with the month of
July, 1997, in substantially equal monthly payments,
taking into consideration the amount on deposit therein,
amounts sufficient to create in the Reserve Account by
July 1, 2002 a debt service reserve equal to the maximum
debt service requirement coming due in any succeeding
sinking fund year on the Bonds. When the balance in the
Reserve Account shall be equal to the maximum required, no
further payments shall be required to be made into the
Reserve Account unless the Reserve Account shall fall
below its required balance. During the period of
accumulation and after the Reserve Account shall have been
accumulated in the full amount required to be maintained
therein as aforesaid, it shall be maintained for the
purpose of paying the principal of and interest on the
Bonds falling due any year as to which there would
otherwise be a default and if money is taken from the
Reserve Account for the payment of such principal and
interest, the money so taken shall be replaced in the
Reserve Account from the first moneys in the Revenue Fund
thereafter available and not required to be used for
maintenance and operation changes and not required to be
paid into the Debt Service Account as hereinabove provided
in subparagraph (i).
..
213400.1
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(iii) All sums required to be paid to comply with
the provisions of said subparagraphs (i) and (ii) above
shall be paid on or before the last day of each month in
which paYment is due, and if, in any month, for any
reason, the City shall fail to pay the full amount herein
required to be paid into the Sinking Fund the amount of
any such deficiency shall be added to and shall become a
part of the amount due and payable by the city into the
Sinking Fund in the next succeeding month.
(iv) As provided in Paragraph 2 of Section 2 of
Article IV of the 1984 Ordinance, all net revenues
received by the city from the system immediately become
subject to a lien to secure the payment by the city of the
amounts therein agreed to be paid and the City hereby
ratifies and reaffirms the pledge of such revenues and
hereby covenants and agrees that the revenues received by
it from the system shall in like manner be pledged to
secure the paYment by the City of the amounts herein
agreed to be paid and that the lien of this pledge shall
be valid and binding against the City and against all
other parties having claims of any kind against the City,
whether such claims shall have arisen from a tort,
contract or otherwise and irrespective of whether such
parties have notice thereof.
Pursuant to the provisions of the Prior Ordinances, SunTrust
Bank, Atlanta, Atlanta, Georgia, has been designated and is hereby
redesignated as CUstodian of the Sinking Fund and said Sinking Fund
shall continue to be held and maintained in trust in said bank for
the benefit of the owners of the Bonds and any other bonds or
obligations hereafter issued ranking pari passu therewith and the
beneficial interest therein shall be considered to be in such owners
of the Bonds. As authorized in the Prior Ordinances, the City from
time to time may designate a successor Sinking Fund Custodian,
provided said custodian complies with all of the applicable
provisions of the Prior Ordinances and this Ordinance.
sectioD 13. After there have been paid from the Revenue Fund
in each month all amounts hereinabove required or permitted to be
paid pursuant to the provisions of Section 12 hereof and after
reserving in the Revenue Fund as a working capital reserve an amount
not to exceed one month's estimated costs of operating and
maintaining the System as determined by the chief fiscal officer of
the City, then there shall next be paid at the end of each month
into a special fund created and designated in the 1984 Ordinance as
"City of Smyrna Water and Sewerage system Renewal and Extension Fund"
(the "Renewal and Extension Fund"), all moneys remaining in the
Revenue Fund.
213400.1
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Expenditures shall be made from the Renewal and Extension Fund
only for the purposes provided in Paragraph 3 of Section 2 of
Article IV of the 1984 Ordinance, as hereby ratified and reaffirmed.
." Pursuant to the provisions of the Prior Ordinances, Smyrna Bank
and Trust Co., Smyrna, Georgia, has been designated and is hereby
redesignated as Depository of said Renewal and Extension Fund, but
the City from time to time may designate a successor Depository of
the Renewal and Extension Fund, provided said Depository complies
with all of the applicable provisions of the Prior Ordinances and
this Ordinance.
As provided in the 1984 Ordinance and ratified and reaffirmed
by the other Prior Ordinances and this Ordinance, should bonds be
hereafter issued ranking as to lien on the revenues of the system
junior and subordinate to the lien securing the payment of the Bonds
and any parity bonds therewith hereafter issued, then such payments
into the Renewal and Extension Fund as provided in this section may
be suspended and the revenues shall be available to the extent
necessary to pay the principal of and interest on such junior lien
bonds and to create and maintain a reasonable reserve therefor, and
such revenues may be allocated and pledged for that purpose.
Moneys in the Renewal and Extension Fund, at the discretion of
the ci ty , may be invested to the extent and. in the manner as
provided in section 7 of Article IV of the 1984 Ordinance, and all
moneys in said Renewal and Extension Fund and all securities held in
and for said Renewal and Extension Fund and all increments therefrom
.. are hereby pledged to and charged with the payments mentioned in
Paragraph 3 of section 2 of Article IV of the 1984 Ordinance, as
hereby ratified and reaffirmed.
section 14. The City covenants and agrees that it has
heretofore and that it will at all times, and from time to time,
prescribe and place into effect a schedule of rates, fees and
charges for the services, facilities and commodities furnished by
the system and as often as it shall appear necessary that it will
revise and adjust such schedule of rates, fees and charges for water
or sewerage services and facilities, or both, to the extent
necessary to produce funds sufficient at all times to operate and
maintain the system on a sound businesslike basis and to make the
payments into the Sinking Fund created by the 1984 Ordinance, as
herein enlarged and extended in accordance and compliance with the
terms, covenants and conditions of the Prior Ordinances and this
Ordinance and to create and maintain the Renewal and Extension Fund
as provided by Prior Ordinances and this Ordinance.
In the event the City shall fail to adopt a schedule or
schedules of rates, fees and charges, or to revise its schedule or
schedules of rates, fees and charges in accordance with the
provisions of this Section, any bondholder, without regard to
whether any default, as defined in Article VII of the 1984
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213400.1
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Ordinance, shall have occurred, may institute and prosecute in any
court of competent jurisdiction an appropriate action to compel the
city to adopt a schedule or schedules of rates, fees and charges, or
to revise its schedule or schedules of rates, fees and charges, in
accordance with the requirements of this section and of section 3 of
Article IV of the 1984 Ordinance.
section 15. The city further covenants and agrees that it will
not exercise the privilege provided in Article IV, Section 8 of the
1984 Ordinance, as ratified, reaffirmed, broadened and extended in
section 16 of the 1986 Ordinance and section 14 of the 1989
Ordinance, of issuing additional bonds or obligations ranking as to
lien on the revenues of the system pari passu with the Bonds, unless
or until all of the following conditions are met:
(a) The paYments covenanted to be made into the Sinking Fund,
as the same may have been enlarged and extended by any proceedings
authorizing the issuance of any additional parity bonds, must be
currently being made in full amount as required and said "Debt
Service Account" and "Debt service Reserve Account" held wi thin said
Sinking Fund must be at their proper respective balances.
(b) The Net Earnings (as hereinafter defined) of the System
for a period of 12 consecutive months out of the 18 consecutive
months preceding the month of adoption of the proceedings
authorizing the issuance of such additional bonds must have been
equal to at least 1.20 times the maximum debt service requirement
for any succeeding sinking fund year on the Bonds and any other
issue or issues of parity bonds therewith then outstanding and on
the bonds proposed to be issued, or in lieu of the foregoing
formula, if a new schedule of rates and charges for services,
facilities and commodities furnished by the system shall have been
adopted and an independent and recognized firm of certified Public
Accountants shall certify that had this new rate schedule been in
effect during the period described above the Net Earnings of the
system would have been equal to at least 1.20 times the maximum debt
service requirement for any succeeding sinking fund year on the
Bonds and any parity bonds therewith then outstanding and on the
bonds proposed to be issued.
"Net Earnings" for the purpose of this provision shall be
construed to be the gross earnings of the system remaining after the
paYment of the sums required or permitted to be paid to operate and
maintain the system pursuant to the provisions of Paragraph 1 of
Section 2 of Article IV of the 1984 Ordinance, but before provision
for depreciation.
(c) An independent and recognized firm of Certified Public
Accountants shall certify in triplicate to the governing body of the
city that the requirements of Paragraph (a) above are being complied
with and that the requirements of Paragraph(b) above have been met.
A copy of the certificate of the Certified Public Accountants shall
213400.1
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be furnished to the designated representative of the original
purchasers of the Bonds.
..
Cd) Except when bonds are being issued solely for the purpose
of refunding outstanding revenue bonds, the Consulting Engineers for
the City shall provide the City with a written report recommending
the additions, extensions and improvements be made to the system and
stating that same are feasible, designating in reasonable detail the
work and installation proposed to be done and the estimated cost of
accomplishing such undertaking. Said engineers shall set forth in
said report the projected net earnings to be derived from the system
which will be available for debt service paYments over the life of
the Bonds and any parity bonds therewith then outstanding and the
bonds proposed to be issued and shall indicate the proj ected
coverage of such debt service paYments in each succeeding sinking
fund year. Projected net earnings in each year for the purpose of
this subparagraph Cd) shall be estimated gross earnings of the
system in each sinking fund year remaining after paYment of the
estimated cost required or permitted to be paid pursuant to the
provisions of Paragraph 1 of Section 2 of Article IV of the 1984
Ordinance for said period to operate, repair and maintain the
system, but before provision for depreciation.
-
An executed duplicate original of such report of said Engineers
as required by this provision shall be furnished to the designated
representative of the original purchasers of the Bonds not less than
10 days before any proceedings are taken to actually issue such
additional bonds.
Ce) The governing body of the City shall pass proper
proceedings reciting that all of the above requirements have been
met, shall authorize the issuance of said bonds and shall provide in
such proceedings, among other things, the date such bonds shall
bear, the rate or rates of interest and maturity dates, as well as
the registration and redemption provisions. The interest on the
bonds of any such issue shall fall due on January 1 and July 1 of
each year, and the bonds shall mature in installments on July 1,
but, as to principal, not necessarily in each year or in equal
installments. Any such proceeding or proceedings shall require the
ci ty to increase the monthly paYments then being made into the
Sinking Fund to the extent necessary to pay the principal of and the
interest on the Bonds and on all such parity bonds therewith then
outstanding and on the bonds proposed to be issued as same become
due and payable, either at maturity or by proceedings for mandatory
redemption, in the then current sinking fund year, and to create
within five years from the date of the bonds to be issued a reserve
in the Reserve Account at least equal to the maximum debt service
requirement coming due in any succeeding sinking fund year on the
Bonds and any parity bonds therewith then outstanding and on the
bonds proposed to be issued and to maintain said reserve in an
amount sufficient for that purpose. Any such proceeding or
proceedings shall restate and reaffirm, by reference, all of the
..
213400.1
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applicable terms, conditions and provisions of the Prior Ordinances
and this Ordinance.
(f) Such additional bonds or obligations and all proceedings
relative thereto, and the security therefor, shall be validated as
prescribed by law.
section 16. All of the applicable terms, conditions and
provisions of all other sections or portions of sections of Article
IV of the 1984 Ordinance not herein specifically referred to are
hereby declared applicable to and are broadened and extended so as
to cover the Series 1997 Bonds and any future issue or issues of
parity bonds therewith and are hereby ratified and reaffirmed and
are hereby adopted and shall for all purposes apply to the series
1997 Bonds as if the series 1997 Bonds had been originally issued
under authority of the Prior Ordinances simultaneously with the
outstanding Prior Bonds.
It is further provided, however, that any money in the sinking
Fund not immediately required to pay the interest coming due January
1 and the principal and interest coming due July 1 on the Bonds in
any year shall be invested and reinvested to the extent and in the
manner as provided and set forth in section 6 of Article IV of the
1984 Ordinance. Any such securities so purchased shall be held by
the sinking Fund CUstodian in trust until paid at maturity or sold,
and all income or increments therefrom shall be immediately
deposited to the credit of the account for which same are held. The
moneys in the Sinking Fund, and all income and increments therefrom,
were pledged and are hereby pledged to and charged with: (a) the
paYment of interest upon the Bonds as such interest falls due: and
(b) the payment of the principal of the Bonds as same become due and
payable, either at maturity or by proceedings for mandatory
redemption: and (c) the optional redemption of the outstanding Prior
Bonds before maturity at the price and under the conditions provided
therefor in the 1989 Ordinance: and (d) the purchase of the Bonds in
the open market: provided, however, the price paid shall not exceed
the authorized call price applicable to each such issue: and (e) the
transfer of excess moneys, if any, in the Sinking Fund (as defined
in subparagraph (c) of paragraph 2 of Section 2 of Article IV of the
1984 Ordinance) to the Revenue Fund: and (f) the paYment of charges
for paying the Bonds and interest thereon and the charges for the
registration of the Bonds secured hereby and their transfer or
exchange in accordance with the terms thereof: and (g) the paYment
of any charges for investment services.
Section 17. All of the applicable terms, conditions and
provisions of Article V, Article VI, Article VII and Article VIII
and each section and covenant thereof of the 1984 Ordinance not
specifically referred to herein are hereby broadened and extended so
as to cover the Series 1997 Bonds issued hereunder and are hereby
ratified and reaffirmed as so extended, and which for all purposes
apply to the Series 1997 Bonds as if the series 1997 Bonds had been
213400.1
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originally issued under authority of the Prior Ordinances,
simultaneously, with the outstanding Prior Bonds.
8ec~ion 18. Anything to the contrary in the Prior Ordinances
or this Ordinance contained notwithstanding, it is expressly
provided that the City shall not purchase obligations of the Federal
Land Bank, the Federal Intermediate Credit Bank or the Central Bank
for Cooperatives as an investment of moneys or as security for
deposits of moneys in any of the special funds created in the 1984
Ordinance, nor shall any supplemental ordinance adopted pursuant to
the provisions of Article VIII of the 1984 Ordinance, as ratified,
reaffirmed, broadened and extended by the other Prior Ordinances and
this Ordinance, requiring the consent of bondholder~s become
effective, unless it shall have obtained the written consent of the
MBIA and any other issuer of a policy of insurance guaranteeing
timely payment of principal and interest on any future issue of
parity bonds.
8ec~ion 19. The city hereby covenants and agrees that it will
not, subsequent to the date of the issuance and delivery of the
Series 1997 Bonds, intentionally use any portion of the proceeds of
the Series 1997 Bonds to acquire higher yielding investments, or to
replace funds which were used directly or indirectly to acquire
higher yielding investments, except as may be otherwise permitted by
the Internal Revenue Code of 1986, as amended (the "Code"), or the
regulations promulgated thereunder, including, but not limited to,
complying with the requirements of Section 148(f) of the Code and
the regulations promulgated thereunder and the payment of rebate, if
any, required to be made, and that it will expend the proceeds of
the Series 1997 Bonds in compliance with the applicable provisions
of Sections 141 to 149, inclusive, of the Code. Anything herein or
in the Prior Ordinances notwithstanding, earnings on amounts in any
fund or account may, and shall to the extent necessary, be used to
make the payments required under this Section 19.
8ec~ion 20. The Series 1997 Bonds herein authorized to be
issued are hereby designated as "qualified tax-exempt obligations"
within the meaning of Section 265(b) (3) of the Code.
8ec~ion 21. The Mayor and Clerk of the city of Smyrna are
hereby authorized and directed to execute, for and on behalf of the
City of Smyrna, a certification, based upon facts, estimates and
circumstances, as to the reasonable expectations regarding the
amount, expenditure and use of the proceeds derived from the sale of
the Series 1997 Bonds, as well as such other documents as may be
necessary or advisable in connection with the issuance and delivery
of the Series 1997 Bonds.
8ec~ion 22. For the purpose of this Ordinance and pertaining
to the Series 1997 Bonds herein authorized to be issued the terms
"original purchasers. and .designa~ed represen~a~iv. of ~h. original
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purchasers. shall be construed to mean Knox, Wall & Company,
Atlanta, Georgia, its successors or assigns.
section 23. For the purpose of this Ordinance the terms
"principal and interest requirements. and "debt service requirements.
shall be construed to mean the amount required in each sinking fund
year to pay the principal of and interest on the Bonds and any
parity bonds therewith hereafter issued as the same become due and
payable either at maturity or by proceedings for mandatory
redemption.
section 24. The Series 1997 Bonds are being issued by the City
in compliance with the conditions necessary for interest income on
the Series 1997 Bonds to be excluded from gross income for federal
income tax purposes pursuant to the provisions of section 103(a) of
the Code relating to obligations of the State of Georgia or any
political subdivision thereof. It is the intention of the City that
the interest on the Series 1997 Bonds be and remain excludable from
gross income for federal income tax purposes, and, to that end, the
city hereby covenants with the holders of the Series 1997 Bonds as
follows:
(a) That it will not take any action, or fail to take any
action, if any such action or failure to take action would adversely
affect the tax exempt status of interest on the Series 1997 Bonds
under Section 103 of the Code.
(b) That it will not directly or indirectly use or permit the
use of any of the proceeds of the Series 1997 Bonds or any other
funds of the City or take or omit to take any action in a way that
would cause the Series 1997 Bonds to be (i) "private activity bonds~
within the meaning of Section 141 of the Code unless such bonds
constitute "exempt facility bonds~ within the meaning of Section
142 (a) of the Code, or (ii) obligations which are "federally
guaranteed~ within the meaning of section 149(b) of the Code.
(c) That it will not directly or indirectly use or permit the
use of any proceeds of the Series 1997 Bonds or any other funds of
the City or take or omit to take any action that would cause the
Series 1997 Bonds to be "arbitrage bonds~ within the meaning of
Section 148 of the Code. To that end, the City will comply with all
requirements of section 148 of the Code to the extent applicable to
the Series 1997 Bonds. In the event that at any time t~e City is of
the opinion that for purposes of this Section it is necessary to
restrict or limit the yield on the investment of any moneys held
under this Ordinance, the City shall take such action as may be
necessary.
section 25. The execution, delivery and performance of the
Bond Placement Agreement providing for the placement of the Series
1997 Bonds, by and between the City and the Placement Agent, a copy
of which has been presented to the Mayor and council of the City at
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this meeting and considered by said Mayor and Council of the City
and which is on file and of record with the Clerk of the City, be
and the same is hereby ratified, authorized and approved. The Bond
Placement Agreement shall be in substantially the form as presented,
subject to such minor changes, insertions or omissions as may be
approved by the Mayor and Council of the City and the execution of
the Bond Placement Agreement by the Mayor and Clerk of the City as
hereby authorized shall be conclusive evidence of any such approval.
section 26. The City hereby covenants and agrees that it will,
to the extent allowed by applicable law, comply with and carry out
all provisions of the continuing Disclosure certificate to be
executed by the City and dated as of the date of issuance and
delivery of the Series 1997 Bonds, as originally executed and as it
may be amended from time to time in accordance with its terms (the
"Disclosure Certificate"). Notwithstanding any other provision of
this Ordinance, failure of the City to comply with the Disclosure
certificate shall not be considered a default hereunder, and under
no circumstances shall such failure affect the validity or the
security for the payment of the Series 1997 Bonds. It is expressly
provided, however, that any beneficial owner of the Series 1997
Bonds may take such action, to the extent and in such manner as may
be allowed by applicable law, as may be necessary and appropriate,
including seeking mandamus or specific performance by court order,
to cause the City to comply with its obligations under this Section.
The cost to the City of performing its obligations set forth in this
section shall be paid solely from funds lawfully available for such
purpose. Nothing contained in this Ordinance shall obligate the
levy of any tax for the City' s Obligations set forth in this
section.
section 27. The prov1s1ons, terms and conditions of this
Ordinance shall constitute a contract by and between the City and
the owners of the Bonds, and after the issuance of the Series 1997
Bonds this Ordinance shall not be repealed or amended in any respect
which will adversely affect the rights and interest of the owners of
the Bonds of any of said issues, nor shall the governing body of the
City pass any proceedings in any way adversely affecting the rights
of such owners, so long as any of the Bonds authorized by the Prior
Ordinances and this Ordinance, or the interest thereon, shall remain
unpaid or until provision shall have been duly made therefor.
Any subsequent proceeding or proceedings authorizing the
issuance of additional parity bonds or obligations as permitted
under Section 8 of Article IV of the 1984 Ordinance, section 16 of
the 1986 Ordinance, section 14 of the 1989 Ordinance and section 15
of this Ordinance, shall in nowise conflict with the terms and
conditions of the Prior Ordinances or this Ordinance, but shall for
all legal purposes contain all the covenants, agreements and
provisions of the Prior Ordinances and this Ordinance for the equal
protection and benefit of all owners of the Bonds.
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Section 28. The Series 1997 Bonds herein authorized shall be
validated in the manner provided by law, and to that end notice of
the adoption of this Ordinance and a copy thereof shall be served on
.. the District Attorney of the Cobb Judicial Circuit, in order that
proceedings for the above purpose may be instituted in the superior
Court of Cobb County.
section 29. Any and all ordinances and resolutions or parts of
ordinances and resolutions, in conflict with this Ordinance this day
adopted be and the same are hereby repealed, and this Ordinance
shall be in full force and effect from and after its adoption.
* * * * *
Approved:
/ ~
~ayor, City of Smyrna, Georgia
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ANDERSON, HUNT & COMPANY, P.C.
CERTIFIED PUBLIC ACCOUNTANTS & BUSINESS CONSULTANTS
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JONATHAN F. ANDERSON. CPA
DONALDW. HUNT. CPA
BRETT J. MCCLUNG. CPA
SUITE 600 - 1950 NORTH PARK PLACE
ATLANTA. GEORGIA 30339
(770) 952-6557
FAX: (770) 951-2674
May 5, 1997
Mayor and Council of
the City of Smyrna
Smyrna, Georgia
Knox, Wall & Company
Atlanta, Georgia
Sutherland, Asbill & Brennan, L.L.P.
Atlanta, Georgia
Re:
$875,000 City of Smyrna (Georgia) Water and
Sewerage Revenue Refunding Bonds. Series 1997
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Ladies and Gentlemen:
We have examined the books and records of the City of Smyrna with respect to its
water and sewerage system (the "System") and hereby certify that the payments
covenanted to be made into the "City of Smyrna Water and Sewerage System Sinking
Fund" (the "Sinking Fund") created in Paragraph 2 of Section 2 of Article IV of an
ordinance adopted by the Mayor and Council of the City of Smyrna (the "City") on
October 4, 1984 (the "1984 Ordinance"), authorizing the issuance of $4,375,000
aggregate principal amount of the City's Water and Sewerage Revenue Bonds, Series
1984, as ratified, reaffirmed, broadened and extended in Section 13 of an ordinance
adopted by the City on August 4, 1986, authorizing the issuance of $1,500,000 aggregate
principal amount of the City's Water and Sewerage Revenue Bonds, Series 1986 (the
"Series 1986 Bonds") and Section 11 of an ordinance adopted by the City of May 25,
1989, authorizing the issuance of $3,510,000 aggregate principal amount of the City's
Water and Sewerage Revenue Refunding Bonds, Series 1989 (the "Series 1989 Bonds"),
are currently being made in the full amount as required and the "Debt Service Account"
and "Debt Service Reserve Account" held within the Sinking Fund are at their proper
respective balances.
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Based on such examination of the System, the net earnings of the System for a
period of twelve consecutive months out of the previous eighteen consecutive months are
equal to at least 1.20 times the maximum debt service requirement for any succeeding
sinking fund year on all of the outstanding Series 1989 Bonds and on the Series 1997
Bonds proposed to be issued (the Series 1986 Bonds are being excluded by virtue of their
defeasance with moneys to be contributed by the City and the proceeds of the Series 1997
Bonds proposed to be issued). "Debt service requirement" is defined as the amount
required in each sinking fund year to pay the principal of and interest on the outstanding
Series 1989 Bonds and the Series 1997 Bonds proposed to be issued as the same become
due and payable either at maturity or by proceedings for mandatory redemption. "Net
earnings" is defined as the gross earnings of the System remaining after the payment of the
sums required or permitted to be paid to operate and maintain the System pursuant to the
provisions of Paragraph 1 of Section 2 of Article IV of the 1984 Ordinance, but before
provisions for depreciation.
Very truly yours,
I W i~SvJ~ ,?t/
RSON, HUNT & ~~U
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