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October 7, 1996 Council Meeting Odoher 7 1996 , -- 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, Fire Chief Larry Williams, Finance Director Claudia Edgar, Assistant Public Works Director Scott Stokes, Police Chief Stan Hook, Library Director Michael Seigler, Parks and Recreation Director Steve Ciaccio, Personnel Officer Chris Corey, City Engineer Ken Hildebrandt and representatives of the press. Invocation was given Councilman Pete Wood followed by the pledge to the flag. CITIZENS TNPl TT' Mayor Bacon recognized Michael Coles, Frank Bradford and David Casey, candidates for the upcoming November election. Mr. Coles thanked the Mayor and Council for the opportunity to address them this evening. He is a candidate for the 6th District Congressional seat. Mr. Casey stated he is a candidate for State Representative, District 30. He thanked the Mayor and Council for the opportunity to speak. He stated he is a fiscal conservative and feels it is important that the elected officials and the citizens work together on important issues. He then asked the citizens for their support in November. Mr. Bradford stated he is also a candidate for State Representative, District 30. He also asked for the support of the citizens in November. .... Mayor Bacon recognized Joe Boland, Campbell High School principaL Mr. Boland thanked the Mayor and Council for the support they have given to Campbell High SchooL Mr. Boland introduced Daniel Ross, student from Campbell High School, who presented the Mayor and Council with a year book and a lapel pin. The student body president, William Satterwhite, presented a plaque to the Mayor and CounciL Mayor Bacon thanked the students for being in attendance at the meeting. He also stated he was pleased with the relocation of the Campbell High School campus and the school being awarded the International Baccalaureate Program. PlJRTJC HEARTNGS' (A) Ordinance Amendment - South Atlanta Road Urban Design District Mr. Smith stated this amendment was developed by the Community Development Committee and the consultants working with them. He further stated this is an overlay district which applies design standards to proposed new buildings and developments that either augment or supersede the requirements of the zoning in this area. Mayor Bacon asked Councilman Newcomb to address Items 3-A and 3-B. Councilman Newcomb asked Richard Thornton, planning team member for the Comprehensive Plan, to come forward. He stated John Moeller sends his regrets but has had a serious illness and is not fully recovered yet. Mr. Newcomb stated along South Atlanta Road and Spring Road, the proposal is to have a zoning overlay that would be on top of the current zoning requirements for those two stretches of road. Mr. Newcomb asked Mr. ... Thornton for some background information on the proposaL Mr. Thornton stated a citizen's survey was conducted and the overwhelming response was positive as to what the city has done; they like the small-town atmosphere. In summary he stated they want to have a home-town, tree-covered streets and be able to shop and recognize the people there. He further stated the South Atlanta a Road and Spring Road guidelines are an extension of that ideaL Mr. Thornton stated the City wanted something that would put a little more force in the Zoning Ordinance to guide this area into what they know it will be redeveloped and to guide it into an environment that is like what was there before - a graceful street with large trees, narrow lots with deep setbacks, small footprints of buildings. He stated what they want to do is put into the zoning ordinance some very clear guidelines as far as minimum and maximum lot sizes and Octoher 7, 1996 meetine - continued the types of buildings that go in there. He said the goal is to make the new development compatible with what is taking place downtown. Mr. Thornton stated Spring Road is a different situation. He stated it was never quite the boulevard that Atlanta Road was but is going to develop and be a major corridor leading into the new downtown area. He stated the guidelines for Spring Road will not be the same as South Atlanta Road but will have the feeling that is now at the Community Center and extended along Spring Road. Councilman Newcomb stated these proposed ordinance amendments will not affect any existing developments in the sense that no one will have to go back and comply with this zoning overlay. He stated this will only be triggered when the property is redeveloped for a new development of a vacant lot. He further stated the intent of the new guidelines is to have the area look nice. ..... Councilman Newcomb stated this is a public hearing and asked if anyone was present in opposition to the proposed amendments - either for South Atlanta Road or Spring Road. There was none. Councilman Lnenicka stated he appreciated the Mayor and Council bringing this issue before the council for a vote tonight and the work of the Community Development Committee in putting the ordinances together. He further stated it had been his vision, since coming on Council, to keep Atlanta Road (from Spring Road south) a residential corridor and felt another Cobb Parkway was not needed on Atlanta Road; and to protect the residential neighborhoods along Atlanta Road and protect the overall appearance of that road. He stated this has been a many-year project, beginning with the widening of Atlanta Road, the apartment moratorium and he strongly supports these ordinance amendments. Councilman Newcomb made a motion the ordinance amendment - South Atlanta Road Urban Design District - Appendix F be approved to be effective immediately. Councilman Lnenicka seconded the motion. Motion was approved 7-0. (B) Ordinance Amendment - Spring Road Urban Design District Councilman Newcomb made a motion the ordinance amendment - Spring Road Urban Design District _ Appendix G be approved to be effective immediately. Councilman Cramer seconded the motion. Motion was approved 7-0. ..... (C) Permanent Closing of Beech Valley Drive, Arden Way, Dundee Drive and HigWand Drive at Intersection with Spring Road Mr. Smith stated this is part of the Spring Road widening project and the closing of these streets is to limit access along this improved corridor. Mayor Bacon stated this is a public hearing and asked if anyone was present who wanted to make any public comments. There were none. Councilman Newcomb asked City Engineer Ken Hildebrandt to come forward. Mr. Hildebrandt stated two public hearings were held (June 1994 and January 31, 1995) to preview the concepts for the Spring Road widening project. Mr. Newcomb stated the current plan includes two lanes both ways with a median or turn lane on the other portion of the road. He stated this plan calls for the closing of several streets with the purpose being to limit the number of ingress/egress points. Mr. Hildebrandt stated the limited access points provide a safety factor for the road. Councilman Newcomb made a motion that the closing of Beech Valley Drive, Arden Way, Dundee Drive and Highland Drive at the intersection with Spring Road be approved. Councilman Wood seconded the motion. Motion was approved 7-0. (D) Rezoning Request - 2155 Campbell Road - From N .S. Neighborhood Shopping to RAD- Conditional - Single Family ...", Mr. Smith stated the applicant is requesting this rezoning to develop a thirty-five lot subdivision on the 6.92 acres. He stated they are also requesting a Land Use Change from Neighborhood Shopping to RAD - Conditional - Single Family. Councilman Newcomb stated the Aunt Fanny's Restaurant site has been closed for some time now and the owner of the property has decided it is not going to work as a restaurant. Mr. Newcomb stated the area is currently zoned as a Neighborhood Shopping District and the applicant is seeking a change to residential. He stated the current zoning - Neighborhood Shopping District - is to provide for the development of planned Octoher 7, 199tl meetine - continued shopping centers and related limited retail activities designed to serve the immediate neighborhood in which such uses are located. Things included are planned shopping development, automobile service stations - provided they are in a planned shopping development - day nurseries, kindergarten, electrical supply stores, laundry and dry cleaning pick up stations, coin operated laundries, package stores, paint, glass and wallpaper stores, parking lot, parking garage, photographic studios, public uses including buildings, structures, and uses of land by a unit of government, restaurants excluding drive-ins. Retail establishments, repair shops, etc. Mr. Newcomb stated the applicant is seeking to change the 6.92 acres to a residential, detached, single family conditional zoning. He stated the original application went to the Planning and Zoning Board and was for 5.06 lots per acre with the minimum lot requirements being 50' by 100'; front yard setback 20 feet; rear yard setback 30 feet with 10 feet between the buildings and the original heated square footage was 1400. -- Mayor Bacon stated this is a public hearing and asked if anyone was present to speak in opposition to this rezoning request. Several persons were present but had a designated spokesperson. The applicant for this property, Doug Puvogel, stated there was a lot of interest in this rezoning request. He stated further that he had sent a letter to the Mayor and Council today requesting that this item be held and the public hearing rescheduled for the next council meeting. He stated this would allow him time to respond to some of the questions and concerns from the council and the neighborhood. Councilman Newcomb stated he did not have a problem with tabling the issue but would have a problem with not allowing the persons present tonight to speak on this issue. Mr. Newcomb stated he would like to see an opportunity for the developer to meet with himself and neighbors who have a concern as well as any other elected official who might want to be present. Mr. Newcomb asked if Wednesday, October 16, at 6:30 p.m. could be scheduled to present a revised plan. Mr. Lnenicka asked if the revised plan would be significantly different than what has been proposed or just slightly different. Mr. Puvogel stated he hoped they would be able to meet with the neighborhood to get a better feel for their concerns. He stated the Planning and Zoning Board meeting was long and there were a lot of people there and he was hoping for an opportunity to meet with the neighbors to define their concerns. Mr. Puvogel stated they have not formulated a revised plan but hope to get some input from the neighborhood. Mr. Lnenicka asked if it was his intent to come back on October 21 with the same plan. Mr. Puvogel stated it will be a single family detached proposal development. He stated they will make some changes as far as density and square footage based on the concerns expressed by the council members. -- Mayor Bacon asked if anyone present wanted to speak either in favor of or in opposition to the requested rezoning tonight. Ms. Sara Marvel, 2197 Goodwood Boulevard, asked the developer about the price range of the homes. Mr. Puvogel stated that would be dependent on the input provided by the citizens. Mr. Kim Muni, 2334 Goodwood Boulevard, and Bob Rider, came forward. Mr. Rider passed out some information that he had gathered. Mr. Muni stated they are members of the Homeowner's Association at the Park at Oakley Downs. He stated their concerns have been echoed by many of his neighbors and those residents along Campbell Road and they are not opposed to the rezoning of the property but they are concerned that the best interest of the community and the City be protected. He stated some of the questions that arose at the Planning and Zoning Board meeting are included in the handouts; the prices of the homes in the nearby neighborhoods. He stated the Pulte Company had indicated that Aunt Fanny's property and the acreage across the street, because of the surrounding property would dictate the price of the homes at approximately $120,000. He quoted prices of some of the surrounding neighborhoods as being upwards of that price range and quoted prices from some of the recent residential neighborhoods being built in Smyrna. Mr. Muni stated he was concerned about the size of the homes, lack of green space, impact on roads, schools, etc. Mr. Muni stated he feels the property is prime property and hopes to see it used to its best use. Councilwoman Capilouto stated she is looking at how well the house is built as well as the price of the homes. -- Mr. Tom Hutcheson, 2374 Goodwood Boulevard, stated he feels Campbell Road is the most historic road in the City and feels the city or county should take the six acres and set it aside as a historical site for other than 1400 square foot homes. He stated he is against the development. Mr. Chris Rubisch, 3120 Ann Road, stated he is vehemently opposed to any type of housing in that area. Mr. John Brinkley, 2276 Jay Lane, stated Campbell Road has a lot of traffic on it at this time and asked for additional patrols for speeders. He stated he did not think Campbell Road is large enough to handle the type of density proposed for the land much less having that many children in the area and feels it would not be a safe environment. Octoher 7, 199f1 meetine - continued Councilman Newcomb thanked the citizens for their input and stated he agrees with some of their concerns. Mr. Newcomb stated he wanted it clearly understood that the Aunt Fanny's Cabin property is currently zoned as a commercial piece of property. He further stated the choice is whether or not it should remain as a Neighborhood Shopping Commercial zoning or go to residential. He made a motion to table Items 3-D and 3-E (which is the request to change the Future Land Use Plan) until the October 21, 1996, council meeting. Councilman Cramer seconded the motion. Councilman Lnenicka stated he has received a number of calls from the residents of Argyle Estates concerning this property. He thanked the citizens for their calls and for their publishing the newsletter. He stated he had been asked if there were any plans to four-lane Campbell Road and he stated there are no plans to four-lane Campbell Road. He also stated that is a residential street and should remain as such. He further stated Aunt Fanny's Cabin was a commercial development that was very compatible with the neighborhood and whatever the city has there, the city wants to be compatible with -- the neighborhood. Motion was approved 7-0. Councilman Newcomb made a motion to suspend the rules for the purpose of adding an agenda item. Councilman Lnenicka seconded the motion. Motion was approved 7-0. Councilman Newcomb made a motion for approval to use the Council Chambers on October 16, Wednesday, at 6:30 p.m. for the purpose of having a neighborhood meeting regarding the Aunt Fanny's Cabin property. Councilman Cramer seconded the motion. Motion was approved 7-0. (E) Request to Change Future Land Use Plan at 2155 Campbell Road from Neighborhood Activity Center to Medium Density Residential Councilman Newcomb made a motion (above) to table this item until October 21, 1996. Councilman Cramer seconded the motion. Motion was approved 7-0. (F) Request to Rezone 2.77 Acres on HigWands Parkway from GC (General Commercial) to T.S. Tourist Services Mr. Smith stated the applicant, Sun Suites Holdings, LLC, wants to build a 127-unit extend-a-stay motel on this property. The applicant is also requesting a variance and a land use change on the property. He stated the property is on the north side of HigWands Parkway, 600 feet west of South Cobb Drive. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this rezoning 'WIIIII request. There was none. Councilman Wood stated this is 2.77 acres in the Highlands Park area. Mr. Wood stated Bob Hendricks is the President of Sun Suites Holdings and is present tonight. Mr. Hendricks stated they are planning a 127- room hotel on HigWands Parkway to serve the industrial and office base within the Highlands Park Industrial area. He stated their research indicates there is a demand for this type of room and that is the basis for their request. He stated the rooms are 13 feet wide, 22 feet deep (total 278 square feet) and this will be their ninth property. He stated they have properties at Town Center Mall, Gwinnett Place Mall, SoutWake Mall, Douglasville, Cummings and several others. He stated they are a mid-level business hotel and specialize in training facilities for corporations such as Delta, MCI and Georgia Power, and the average length of stay is four days but sometimes go up to two weeks at a time and that is the reason for a kitchen in each room. He stated the rates are from $240 - $340 a week or $49.95 nightly; Post Landscaping does all the landscaping work throughout Atlanta. Councilman Wood asked about the local management of the company. Mr. Hendricks responded he is the President of the Company and his function is the acquisition of real estate and the construction. He stated his partner is Dave Armento, who has been a partner with Trammel/Crowe for ten years. He stated there are thirty-three persons who work for Mr. Armento. Mr. Wood asked if this property would be owned by the corporation or would it be a franchise type business. Mr. Hendricks responded nothing they own is franchised and it is owned by the corporation - Sun Suites Holdings, LLC. Mr. Wood then asked about the type of construction. Mr. Hendricks responded they are wood-frame, shingle roof and presented a rendering of the property. He stated there is a Williamsburg feel to the property; and the property will be three stories, L- shaped with parking in the rear. He further stated the parking will not be visible as the majority of the parking WIIIII will be inside the loop on the back side of the property. He did indicate some parking would be visible from the front but very little. Mr. Wood asked if a restaurant or bar was planned for this facility. Mr. Hendricks responded there would be no food services or alcoholic beverages provided at the site. Mr. Wood then asked about the number of parking spaces and Mr. Hendricks responded they have 1.25 spaces per room and run about 80% occupancy and the 1.25 spaces per room is generous for parking. Mr. Wood asked if Sun Suites would do promotional advertising and Mr. Hendricks responded they will. Mr. Wood asked what type signage is being proposed for this location. Mr. Hendricks responded the typical sign is a one-pylon sign on the street, typically eight feet wide and five feet tall, internally illuminated. Octoher 7) 1996 meetine - continned Mr. Wood then recognized Mr. Rick Vaughn, Faison Management Company, who manages the HigWands Industrial Park. Mr. Vaughn stated he is a member of the Architectural Review Committee of HigWands Park and they are in support of the planned facility and feels there is a great demand for this type establishment. ...., Councilman Lnenicka asked Mr . Vaughn if he has spent any time trying to recruit a business of this type - other than an extend-a-stay - for this site. Mr. Vaughn responded he has and has had several extend a stay type establishments express interest but they are interested in attracting business off the expressway and Sun Suites is not. He stated the access off South Cobb Drive and 1-285 will actually require one turn into the development and leave through the divided median and back through the traffic signal at South Cobb Drive and HigWands Parkway and access 1-285. Councilman Lnenicka asked about lighting at the site, patrolling and/or fencing at the development. Mr. Hendricks responded stated it is the corporate policy to have on-site security (from 11:00 p.m. to 7:00 a.m.) which is handled through Brinks Security and as they get further into the site plans the need for fencing will be discussed. Mr. Lnenicka asked if they typically fenced the other sites and Mr. Hendricks responded it depended on the location. Councilman Lnenicka asked Chief Hook if he had any security concerns at an establishment where the majority of the parking lot is screened by the building and not visible for view for the officers. Chief Hook responded his department had experienced a lot of trouble with establishments next to 1-285 but none with AmeriHost Inn. Chief Hook indicated Knight's Inn is in the process of preparing to fence in their property. Mr. Hendricks stated they would certainly fence their property if theft becomes a problem. Chief Hook stated if they plan to have on-site security that should take care of the security problems. Councilman Cramer asked if there was a stipulation that they hire Brinks Security as opposed to hiring local law enforcement personnel. Mr. Hendricks stated that is a trend they have gone to - hiring a private security company. Councilman Scoggins asked Mr. Hendricks about the entrance to their facility. Mr. Hendricks responded it would be accessed from Highlands Parkway (behind Wendy's). Mr. Wood stated that is an access road and that is how AmeriHost Inn is accessed. Mr. Hendricks stated there are some driveway cross-easements that serve Wendy's, Arby's, Checker's and that (the old Oakdale roadbed) is going to be relocated when the site between Checker's and this site is sold; and also at that point in time, that road will be re-developed and go perpendicular to HigWands Parkway in a northerly direction, then it will turn in a perpendicular direction back toward South Cobb Drive and run into roughly the rear of the Arby's/Mrs. Winner's facility. Mr. Hendricks stated there will be one entrance from HigWands Parkway. ... Councilman Wood stated the Planning and Zoning Board heard this request on September 23, 1996, and voted unanimously to recommend approval. Mr. Wood made a motion that the request to rezone 2.77 acres from General Commercial to Tourist Services to build a 127 -unit extend a stay hotel in Land Lot 688 of the 17th District, 2nd Section, City of Smyrna, Cobb County, Georgia, be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (G) Request for Land Use Change - 2.77 Acres on HigWands Parkway from Industrial Compatible to Community Activity Center Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the proposed land use change. There was none. Councilman Wood stated this is to tie the change just made into the Land Use Plan properly and put it in the Community Activity Center, which encompasses this type business activity and moved approval of the land use change as indicated above. Councilman Cramer seconded the motion. Motion was approved 7-0. (H) Variance Request - Highlands Parkway - Reduce Recreational Area from Approximately 2.5 Acres to Zero Mr. Smith stated the applicant, Sun Suites Holdings, LLC, has requested in their letter of hardship that if the additional land had to be purchased for recreation it would not be a feasible project. ... Mr. Hendricks stated the expense of the extra acreage would make this project unfeasible. Councilman Wood stated that in the Zoning Ordinance category for Tourist Services, one acre of recreation area is required for each fifty units. He stated most of the times this type project, hotels, motels, extend-a-stay businesses do not have that much land because they are in areas where land prices are very expensive. He stated he is not sure there is that much acreage at HigWands Park that would be adjacent to that property and feels this is a legitimate hardship from the standpoint not only from cost but from availability. Also, the city is being consistent with some other similar situations and this will still be adequate to meet the type of business that is planning to be built there. Councilman Wood made a motion that the variance request be approved to reduce the recreational area from approximately 2.5 acres to zero (0). Councilman Cramer seconded the Octoher 7, 199() meetine - continued motion. Councilman Lnenicka stated he is not going to support the variance because he felt the tourist services ordinance was enacted several years ago to put in some requirements for these kinds of facilities. He further stated that over the last several years, the city has tended to vary each and every application that has come before the Council and he wants to be consistent with opposing those variances. He stated he was concerned the city would some day be without an ordinance and the protection that ordinance confers on the city. Motion to approve the variance passed 6-1. (I) Variance Request - 1020 Parkland Run - Reduce Front Yard Setback From 35 feet to 15 Feet Mr. Smith stated the builder, Mr. Justus, is requesting this to reduce the front yard setback due to a sewer easement that goes across the property where the house would be located if the variance was not requested. .. 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. Councilman Wood asked Mr. Justus to briefly explain why the variance is necessary in order to develop the property as indicated. Mr. Justus stated Lot 37 has a sanitary sewer easement which runs from the northwest comer of the lot to the southwest comer, pretty much through the center of the lot, and it precludes them from building any comparable home that they are currently building in the subdivision. The grant of the variance will allow them to site and size homes which will be more in line with homes they are currently offering. Councilman Wood asked if this lot is in a cuI de sac and Mr. Justus responded that is correct. Mr. Justus further stated they were on a straight street and it would extend somewhat further than the other homes but the road bears to the right as you enter into the cul-de-sac and they felt this would help to keep the house from appearing too close to the street. The adjoining homeowners have also agreed to the variance. Councilman Wood said there is a sanitary sewer easement that impacts the development of this property. He has notified the adjoining owners at 1010 and 1030 Parkland Run and apparently there is no opposition to this request. With no further discussion, Councilman Wood made a motion the variance request to reduce the front yard setback from 35 to 15 feet be approved. Councilman Lnenicka seconded the motion which carried 7-0. (J) Variance Request - 1106 Medlin Street - To Build an Oversized Accessory Structure Mr. Smith stated the applicant, Jose Angel, has requested a variance to build a 900 square foot accessory ...., structure, garage, which is 659 square feet larger than permitted by the code for this size house. Mr. Smith stated the applicant is rebuilding this structure on the existing foundation. 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. Councilman Hawkins asked Mr. Angel to come forward. Mr. Hawkins asked Mr. Angel if he was actually a resident of Marietta, owned the residence but did not live there. Mr. Angel responded that was correct. Mr. Angel stated he had bought the house originally to live in but has since bought another house and decided to keep this house. Mr. Hawkins stated Mr. Angel had tom down an unsightly building and started building another structure but had not acquired the necessary permits. Mr. Angel stated that was correct. Mr. Angel stated the contractor told him since a structure previously existed, no permit was necessary. Mr. Angel was cited into Municipal Court and appeared there and the problems were resolved. Mr. Angel stated he needed to enlarge the garage in order to allow him to store his vehicles, jet ski and other items. Mr. Hawkins asked who lives at 1106 Medlin Street now. Mr. Angel stated he rents the property to his cousin. Mr. Hawkins stated for the record that Mr. Angel had attached an addendum to his application in which he has the signatures of four property owners, two on either side of the property and two properties behind this property, stating they have no objections to the variance being requested. Mr. Hawkins stated one of the neighbors commended Mr. Angel for replacing the old, dilapidated building with a new, neat structure. Mr. Hawkins stated that any accessory structure can not be rented, used as a residence nor can it be used for any type personal gain - such as operating a business or storing any type business equipment. Mr. Angel stated he would only be storing his personal vehicles. Councilman Hawkins made a motion that the variance request at 1106 Medlin Street to build an oversized W1IIII accessory structure be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (K) Variance Request - 1106 Medlin Street - To Reduce Side Yard Setback from 10 Feet to 4 Feet Councilman Hawkins stated this is the second variance request submitted by Mr. Jose Angel. Mr. Hawkins stated this variance is necessary because the original concrete pad has always been four feet from the side yard setback. Councilman Hawkins made a motion the variance request at 1106 Medlin Street to reduce the side Octoher 7, 1996 meetine - continued yard setback from ten feet to four feet be approved. Councilman Newcomb seconded the motion. Motion was approved 7-0. Councilman Hawkins stated the city has the signatures of both residents, particularly the resident on the side that would be affected by the four feet stating they have no objection to this variance. (L) Variance Request - 1106 Medlin Street - To Reduce Rear Yard Setback from 5 Feet to 2 Feet ... Councilman Hawkins stated the city has the signatures of the two affected property owners stating they have no objections to this variance request. Councilman Hawkins made a motion that the variance request at 1106 Medlin Street to reduce the rear yard setback from 5 feet to 2 feet be approved. Councilman Wood seconded the motion. Motion was approved 7-0. (M) Variance Request - 1857 Vinings Mill Walk - To Reduce Front Yard Setback From 25 Feet to 23 Feet Mr. Smith stated the request is necessary due to a mistake that was made when the home was placed on the lot. Mr. Smith stated the house was laid out with it having a four foot offset on one side which is about a third of the house and it is about two feet over the building setback line. 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. Councilman Lnenicka asked Monte Hewett, representing Highland Homes, to come forward. Mr. Lnenicka asked Mr. Hewett to explain why this variance is necessary. Mr. Hewett stated this is the first subdivision they have built in Smyrna and are excited about building here. Mr. Hewett further stated this error was discovered when the bank requested a foundation survey and at this point in time the house had already been framed. He also stated they own the adjacent lots and there is no visual drawbacks. Mr. Lnenicka stated only the front left corner of the house is over the setback line. Councilman Lnenicka stated at a recent neighborhood meeting in this development, this item was discussed and none of the property owners in the subdivision had any objections to the variance being requested. Councilman Lnenicka made a motion the variance request at 1857 Vinings Mill Walk to reduce the front yard setback from 25 feet to 23 feet be approved. Councilman Wood seconded the motion. Motion was approved 7-0. (N) Variance Request - 1855 Vinings Mill Walk - To Reduce Rear Yard Setback from 20 Feet to 12.5 Feet ... Mr. Smith stated the house has a rear deck on it that places it 7.5 feet over the rear setback line and the applicant states they were not aware that the deck was included in the setback requirement as this is different from the way it is done in other jurisdictions. 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. Councilman Lnenicka asked Mr. Hewett, representing Highland Homes, to explain why this variance is necessary. Mr. Hewett stated they have not actually built the deck yet but were informed by the City that the deck would be counted as far as encroaching on a rear building line. He stated when they look at their site plans they look at the foundation as to how the actual structure will fit on the lot and if it looks good they proceed. He stated the foundation is poured and they were informed that they could not build a deck as it would encroach on the rear setback line. He stated he did not feel there would be any negative drawback to building the deck and it would be difficult to market the home if it did not have a rear deck. Councilman Lnenicka stated this item was also discussed at a recent neighborhood meeting and there were no concerns or opposition expressed at that time. Councilman Lnenicka made a motion that the variance request at 1855 Vinings Mill Walk to reduce the rear yard setback from 20 feet to 12.5 feet be approved. Councilman Wood seconded the motion. Motion was approved 7-0. (0) Ordinallce Amendment - Section 420.19 - Definition of Drug Store ... Mr. Smith stated there have been some questions raised about exactly what a drug store is and asked Mr. Camp to address this. Mr. Camp stated there has been some confusion about the definition of a drug store and stated he was asked to draft an ordinance defining a drug store. He stated this defines a drug store as an apothecary and not a variety store. Mayor Bacon stated this is the first reading of the proposed ordinance amendment. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the proposed amendment. Mr. Jack Crane, Diversified Development, stated he objected to the proposed amendment. He stated his company had experienced undue delays in getting their plans approved for development of a drug store at Concord and Hurt Road. He further stated approval of this amendment would deny them the right to build under the 0 & I Zoning. Octoher 7, 1990 meetine - continued Councilman Wood stated the city will look into concerns Mr. Crane and Me. Harper presented tonight, the delays, time limits and so forth. He further stated the city will not vote on this issue tonight and it will come up for a vote two weeks from tonight, October 21. He stated there will another public hearing and the city will follow up on what has been said. Mr. Wood stated this is not a situation where the city is talking about changing the zoning and not talking about removing that from 0&1, what they are talking about is defining what a drug store is in this amendment. He further stated they will take into consideration all the things that were brought to the city tonight and will also find out about what time frames are required in the permitting process. Mayor Bacon asked if there was any additional comment. There was none. Mayor Bacon stated according to proper procedure this will come up October 21 for a vote. ... (P) Ordinance Amendment - Utility Facilities Beautification and Coordination Me. Smith stated this ordinance is being proposed to help regulate the visual impact of utilities in the City of Smyrna. He further stated it is brought about because of some of the changes in the cable industry and proposes a series of standards which have to be utilized by those who will be placing lines or poles or cables or related facilities within the city of Smyrna. Councilman Hawkins stated this is a proposed ordinance change. He further stated he has met with the Communications Committee that was appointed by the Mayor and the city received the final draft from the attorneys Thursday night. He stated they have not had a committee meeting on it yet. He stated under the federal legislation now, local governments have been somewhat curtailed in the way they can prohibit people from coming through a municipality for the purposes of telecommunications, laying fiber optic cables either in the ground or on poles. He stated the federal law does give the local governments the ability to regulate how they come through the city. He said the city is attempting to have all new applications that come into the city, across our city, whether they plan to serve a customer here or just cross our city to serve a customer elsewhere, that those cables and fiber optics be placed underground for facilities in the ADD1 and ADD2 area (downtown area). He then stated in the new UDD1 and UDD2 (Atlanta Road and Spring Road Corridors) all those utilities would have to be underground. He stated he did have some concerns with Paragraph A and it goes on in Paragraphs B, C and D to further emphasize and in Paragraph D "users of facilities within the Architectural ADD1 and ADD2 and UDD1 and UDD2 shall conform existing facilities to the standards on or before November 21, 1997." He stated he would like to ask the city attorneys if the city wants to get this ...... passed tonight, his concern is with the implementation of this ordinance and whether or not it grandfathers anyone presently on the poles. He said as he read it he was concerned with Georgia Power being forced to go underground with their utilities and was concerned that Georgia Power might want the city to pay to have their lines put underground. Mr. Ai Cochran said that was correct. He said he suggested that particular paragraph be struck from the document so that those who are already there would be grand fathered as a matter of law and it would not hurt to have that in the document. Mr. Hawkins stated that would take care of Paragraph D, but Paragraph A also basically says the same thing. Mr. Cochran stated he thought it would be best to table this ordinance until the next meeting which would allow them time to review the ordinance as it could cause a tremendous financial burden to those persons who are currently using them. Mr. Hawkins stated his concern is it will encourage a tremendous financial burden on the city and probably require some things that the city did not intend to require in the first place. Mr. Cochran stated he was sure those provisions could be struck and make the ordinance applicable but would prefer not to do it standing before the council at this time without studying it further. Councilman Hawkins made a motion, at the advice of the city attorney, to table this ordinance amendment until the October 21 council meeting. He then stated in the mean time he will call a meeting of the Telecommunications Committee and asked Mr. Cochran to attend that meeting. Councilman Scoggins seconded the motion. Motion was approved 7-0. FORMAT. RlJSTNRSS. (A) Bid Opening (Bid 96017) - 25-Yard Garbage Truck for Public Works Department ..... Councilman Scoggins stated the specifications for this truck were incorrect and it needs to be rebid. Mayor Bacon said on the consent agenda there is approval for re-bidding this item and all bids should be rejected. Mayor Bacon asked if there were any bids in the audience for this item. Councilman Scoggins made a motion that all bids for this item be rejected and the city will re-bid the 25-yard garbage truck. Councilman Wood seconded the motion. Mayor Bacon stated for the record there were no bids for this item. Motion was approved 7-0. Octoher 7, 1996 meetine - continued (B) Bid Opening (Bid 96018) - Rear Loading 25-Yard Body for Garbage Truck for Public Works Department Mayor Bacon asked if there were any bids in the audience. The bids were opened and read as follows: Atlanta Equipment Sales and Service Consolidated Disposal Systems The Mayo Company $38,604.50 $37,674.00 $27,313.50 ..... Councilman Scoggins made a motion the bids be turned over to the Public Works Committee for their review with a recommendation brought back at the October 21 meeting. Councilman Wood seconded the motion. Motion was approved 7-0. (C) Bid Opening (Bid 96019) - Minolta CSPRO Copier System for Parks Department Mayor Bacon asked if there were any bids in the audience. There was only one bid which was opened and read as follows: Minolta $ 8,315.00 Councilman Lnenicka stated he felt there would be nothing wrong with putting out a generalized list of requirements or specifications and send to several vendors. Mr. Lnenicka suggested the bid be examined and make a recommendation back as to what direction we should go. Mayor Bacon stated he would turn this over to the Parks and Recreation Committee for them to meet with Mr. Smith on October 14 and advise on how to proceed. Councilwoman Capilouto made a motion the bids be turned over to the Parks and Recreation Department for their review and meeting with the City Administrator with a recommendation to be brought back before Council October 21. Councilman Wood seconded the motion. Motion was approved 7-0. (D) Appointment to Clean and Beautiful Commission - Ward 2 Councilman Newcomb made a motion Pete Paulson, Glenroy Place, be approved as the Ward 2 appointment to the Clean and Beautiful Commission. Councilman Wood seconded the motion. Motion was approved 7-0. ... (E) Amendment to Speed Zone Ordinance Councilman Lnenicka stated this is a housekeeping amendment with no major changes involved. He stated the city is required to submit a list to the state of all the streets on which radar is used to enforce traffic. He stated the city recently annexed Bell Drive and the main purpose of the amendment to the Speed Zone Ordinance is to add Bell Drive to the enforcement ordinances. He also stated there is one correction that needs to be made and that is on Page One dealing with State Route 80, South Cobb Drive, the word southbound should be changed to read northbound (1-285 northbound to Pat Mell Road). Councilman Lnenicka made a motion the proposed new speed zone ordinance for the City of Smyrna be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (F) Resolution to Amend Agreement with the City of Smyrna and the Cobb-Marietta Coliseum and Exhibit Hall Authority ... Councilman Wood stated in 1991 the Cobb Coliseum and Exhibit Hall Authority issued $48,200,000 in Revenue Bonds to acquire the necessary property for the construction of the Cobb Galleria Center. Cobb Galleria Center opened in January 1994 and has been one of the most successful facilities of its size in the country. He further stated when the 1991 bonds were issued, the City of Smyrna entered into a convention funding agreement and operating agreement pursuant to these documents the city agreed to levy hotel/motel tax at the rate of 8% and pay 5% of that amount to the Galleria Center Authority. This funding agreement dealt only with funding of the project as conceived by the Galleria Authority in 1991. In order for the Galleria Authority to undertake a new project, such as expansion of the Galleria Center, they must ask the city to approve an expansion of the definition of project in the funding and operating agreement to include the proposed new projects. He further stated the Galleria Center wishes to undertake the following projects: acquisition of a 11.299 acre site fronting on Acres Mill Road, Professional Parkway and 1-75 (formerly known as Eastern Airlines Reservation Center) for a future arena and/or parking deck and/or performing arts center; expansion of the Galleria Center to include acquisition of the remainder of Galleria Mall, which the Galleria Authority does not currently own; construction of a new parking deck containing 300 parking spaces, including a tunnel under the Galleria Parkway to the new parking deck on a 1.5 acre lot owned by the Galleria Authority; construction of a 218,500 square foot new exhibit hall, ballrooms, meeting rooms, etc.; demolition of the existing two-story parking deck and construction of a new 925 space parking deck under the expansion Octoher 7, 1996 meetine - continued area; construction of an 8OO-room hotel, over-air rights over existing parking deck in front of Galleria Center; financing ownership, construction of this hotel will be undertaken by private enterprise. The Galleria Authority has a letter of intent from a private developer for this hotel. The Galleria Authority has received a commitment from MBIA Insurance Corporation to guarantee timely payments of debt service on both first and second lien bonds to be issued to finance the above projects. Mr. Wood stated the Galleria Authority is not asking the city for any additional hotel/motel tax revenue nor to change the hotel/motel tax revenues paid to the city each year. He stated the resolution approves amending the definition of project and allows the Authority to issue subordinate lien bonds to finance the above additional projects. He stated the City has no financial liability and this does not change the hotel/motel tax received from the city or that portion that goes to the Cobb Galleria Center in accordance with the 1991 agreement. Councilman Wood made a motion the resolution be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. .... COMMERCIAL RlHLDING PERMITS' (A) Astro Interior Contracting - Permit for Construction of a 8,726 Square Foot Building at 5517 Oakdale Road Councilman Wood stated this is for a commercial office on Oakdale Road near the HigWands Park area. Mr. Wood made a motion the building permit for Astro Interior Contracting for the construction of an 8,726 square foot building at 5517 Oakdale Road be approved. Councilman Scoggins seconded the motion. Motion was approved 7-0. RID AWARDS' (A) Bid #96016 - Hose for Ladder Truck and Replacement Councilman Cramer stated the Fire Committee had met and it is their recommendation the bid be award to First Responder because of their excellent warranty service. Mr. Cramer made a motion the bid for the hose for the ladder truck and replacement equipment be awarded to First Responder at a total cost of $8,388.09. Councilman Lnenicka seconded the motion. Motion was approved 7-0. CONSENT AGENDA' (A) (B) @ (D) (E) (F) (G) (H) (I) (J) (K) ..",,; Approval of September 16, 1996 Minutes Approval to Use Council Chambers October 10, 1996, From 7-10 P.M. for Ward 6 Meeting Approval to Use Council Chambers October 15,1996, From 7-10 P.M. for Ward 4 Meeting Approval to Request Bids for Purchase of 8 Sternberg Decorative Light Fixtures for New Municipal Services Building Complex Approval to Request Bids for Installation of 625 LF of 8" D.I.P. Pipe; Two (2) 8 x 8 Taps and Valves and 11 One-inch Service Taps Approval to Request Bids for Installation of 10,900 Square Feet of Pavers Approval to Request Bids - 25-Yard Garbage Truck for Public Works Department Approval to Use Council Chambers - October 8,1996, From 7-10 P.M. for CMA Meeting Approval to Officially Designate 2800 King Street as the Official City Hall/Municipal Services Building for The City of Smyrna Approval to Designate City Hall/Municipal Services Building as a "Smoke Free" Building Approval to Request Bids - Copier for Human Resources Department Councilman Lnenicka made a motion the consent agenda be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. COMMITTEE REPORTS' Mayor Bacon stated the city's thoughts, prayers and sympathies go out to the John Porterfield family on the death of Betty Porterfield. Mayor Bacon stated Mr. Porterfield was mayor of the city during the 1970's and also served on the council a number of years. ...., Councilwoman Capilouto asked Michael Seigler for a report on the Library. Mr. Seigler stated in September there were 12,375 items circulated which is a 9.9% increase; 13,881 people came to the Library which is an average of 479 per day; and when he left the Library at 5:00 p.m. today over 450 people had been registered to vote. He stated there are two exhibits at the Library - Mr. Wood is displaying his baseball cards; three artists - Carol Baxter Kirby, Susan Deremer and Susan Smith are exhibiting their oils in the art gallery. Councilwoman Capilouto asked Steve Ciaccio for a report on the Parks and Recreation Department. Mr. Octoher 7) 1996 meeting - continued Ciaccio reminded everyone of the $30 million parks and recreation bond issue on the general election ballot on November 5. He stated if anyone needed additional information about that issue they should call the community center. He stated Saturday and Sunday, October 26 and 27, the Village Green and the Community Center will serve as the host site for the Arts and Crafts Festival; the Halloween Carnival will be October 31 from 6 _ 9 p.m. at the Community Center. Mr. Ciaccio reported the Community Center has received an anonymous donation of $5,000 for the renovation of the press box at Brinkley Park and he expressed his department's appreciation of that donation. Councilman Newcomb stated there are no reports from the Human Resources and Community Development ... Departments this evening. Councilman Scoggins reported the new list for the leaf schedule and street designation (time per street) will be distributed soon. Councilman Hawkins stated there are no committee reports from Court Services or Cemetery Commission this evening. He stated the city does require building permits for miscellaneous construction jobs and roofing homes. He stated it is the contractor's responsibility to obtain the permit and that is the best insurance for ensuring the job is done correctly. He stated the contractor must present a $50,000 performance bond which is good for two years. Councilman Cramer asked Chief Larry Williams for a report on the Fire Department. Chief Williams stated this is Fire Prevention Week and urged everyone to check their smoke detectors this evening. He also stated if anyone in the city can not afford a smoke detector, please contact the Fire Department and they will provide one. He also stated Monday, October 14 through October 31 the Fire Department will begin their annual flow testing of fire hydrants. He stated during this test period the water may become slightly discolored and advised caution should be exercised when doing laundry during this period of time. .... Councilman Lnenicka said in the interest of time there will not be a report from the Police Department this evening. He stated the Police and Fire testing will be conducted on October 12 at the Community Center for new applicants. Mr. Lnenicka also reported the police and jail facility on Atlanta Road is within budget and on schedule at this point in time. Mr. Lnenicka stated he had recently had two ward meetings and expressed his appreciation to the residents for attending the meetings as well as Chief Hook, Sgt. Keller and Scott Stokes. Mr. Lnenicka stated on Thursday, October 10, he will have a ward 6 meeting at City Hall regarding the proposed development on Creatwood Farms. He urged any interested citizen to attend the 7:30 meeting scheduled for Thursday, October 10, at City Hall. Councilman Lnenicka commented on the positive article in the September 25 issue of the Wall Street Journal commending Smyrna for our downtown redevelopment. Councilman Wood stated there is no report from the Finance Department this evening. Mr. Wood stated the City of Smyrna continues to be recognized in various ways. He stated the City recently won first place in the SAVVY Awards Program in the Cities/Counties Communications and Marketing Association. He further stated the city won in the special publications category for its Annual Report. He acknowledged this was the result of efforts by Kathy Barton, the former Community Relations Director for the City. Mayor Bacon recognized the political candidates who remained for the entire meeting - Frank Bradford and David Casey. With no further business, the meeting adjourned at 10:23 p.m. .. Octoher 7) 1990 meetine - continued ~~ A.MAXBACON,MAYOR ('\ c \ l . \;- Lbo/JJJM l~J~r/A,):' CHARLENE CAPILOU 0, WARD 1 -- ~~t[~ /J(~~ /()/t1Jt 44,41-- MELINDA DAMERON, CITY CLERK ~~ J~~ RON NEWCOMB, WARD 2 ..... ..... ...., --- I .-.} I I --- , I r i ) I . RESOLUTION A RESOLUTION TO PROVIDE FOR AMENDMENTS TO THAT CERTAIN CONVENTION FUNDING AGREEMENT AND THAT CERTAIN OPERATING AGREEMENT BY AND BETWEEN THE CITY AND THE COBB-MARIETTA COLISEUM AND EXHIBIT HALL AUTHORITY; TO AUTHORIZE AND APPROVE EXPANSION OF THE PROJECT; AND FOR OTHER PURPOSES. WHEREAS, the City of Smyrna, Georgia (the "City") has previously entered into that certain Convention Funding Agreement, dated as of December 1, 1991 (the "Original Agreement"), by and between the City and the Cobb-Marietta Coliseum and Exhibit Hall Authority (the "Authority"); and WHEREAS, the City has previously entered into that celtain Operating Agreement, dated as of December 1, 1991 (the "Original Operating Agreement"), by and between the City and the Authority; and WHEREAS, the City has determined that there exists an urgent need to expand the Project (as defined in the Original Agreement); and WHEREAS, the City desires to enter into amendments to the Original Agreement and the Original Operating Agreement and to provide for the expansion of the Project. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the City of Smyrna and it is hereby resolved by authority of same, that the Amendment No. One to Convention Funding Agreement, dated all of October 1, 1996 (the "Convention Funding Amendment"), by and between the City and the Authority is hereby authorized and approved and the Mayor and City Clerk of the City are hereby authorized to execute and deliver the Convention Funding Amendment and impress the seal of the City thereon and the Convention Funding Amendment shall be substantially in the form attached hereto and hereby incorporated herein, subject to such minor changes, insertions and deletions as may be required to accomplish the undertaking authorized by this resolution, as the same may be approved by the Mayor of the City, and upon the execution thereof by the parties thereto, the Convention Funding Amendment shall be duly recorded in the permanent records of the City. BE IT FURTHER RESOLVED by the authority aforesaid and it is hereby resolved by authority of same, that the Amendment No. One to Operating Agreement, dated as of October 1, 1996 (the "Operating Amendment") by and between the City and the Authority is hereby authorized and approved and the Mayor and City Clerk of the City are hereby authorized to execute and deliver the Operating Amendment and impress the seal of the City thereon and the Operating Amendment shall be substantially in the form attached hereto and hereby incorporated herein, subject to such minor changes, insertions and deletions as may be required to accomplish the undertaking authorized by this resolution, as the same may be approved by the Mayor of the City, and upon the execution 191306.1 thereof by the parties thereto, the Operating Amendment shall be duly recorded in the permanent records of the City. ... BE IT FURTHER RESOLVED by the authority aforesaid and it is hereby resolved by authority of same, that any and all ordinances or resolutions or parts of ordinances or resolutions in conflict with this resolution this day adopted be and the same are hereby repealed and this resolution shall be in full force and effect from and after its adoption. ~ .. 191306.1 AMENDMENT NO. ONE TO CONVENTION FUNDING AGREEMENT - THIS IS AMENDMENT NO. ONE, dated as of October I, 1996, by and between the COBB-MARIETfA COLISEUM AND EXHIBIT HALL AUTHORITY (the "Authority") and the City of Smyrna, Georgia (the "City") to that certain Convention Funding Agreement, dated as of December I, 1991, by and between the Authority and the City (the "Original Agreement"). BACKGROUND The Original Agreement provided for certain tax payments to be made by the City to the Authority, which were pledged by the Authority to secure $48,200,000 original aggregate principal amount of the Authority's Revenue Bonds, Series 1991, which were refunded in part by $47,965 ,(xx) original aggregate principal amount of the Authority's Revenue Refunding Bonds, Series 1993 issued as Additional Parity Bonds (as defined in the Original Agreement). There are currently outstanding $4,730,000 principal amount of said Series 1991 Bonds and $47,815,000 principal amount of said Series 1993 Bonds (collectively, the "Outstanding Bonds"). The parties hereto, together with the other political subdivision parties to the Convention Funding Agreement (as defined in the Original Agreement) desire to amend the Original Agreement to provide for the ...... expansion of the Project (as defined therein) and to provide for the issuance of bonds by the Authority to finance the same, which bonds shall be secured by the payments to be made pursuant to the Convention Funding Agreement. AGRE'F.MENT In consideration of the respective covenants hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Authority and the City agree as follows: 1. Amendments to Orip" Acreement - Definitions. a. Amended Defblitions. Article I of the Original Agreement is hereby amended by modifying the following defined terms to read as follows: " Additional Parity Bonds" means any revenue bonds of the Authority issued under the Indenture ranking on a parity with the Outstanding Bonds as to lien on the Tax Payments made hereunder. 1 - 191110.1 "Bonds" means the Outstanding Bonds and any Additional Parity Bonds and, for purposes of Articles IV, V and VII of this Agreement only, Junior Lien Bonds. .. "Project" means the multipurpose convention, exhibit hall and meeting facilities and any associated parking areas or improvements described in the Project Report including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Project and related lands, buildings, structures, fixtures, equipment and personalty appurtenant or convenient to such facilities. As used in Section 3.4, Article IV and Sections 7.2, 7.3 and 7.4 hereof, the term "Project" shall also include the Additions to Project. b. Additional Dermitions. Article I of the Original Agreement is hereby amended by adding thereto the following definitions: "Additions to Project" means those improvements described in Exhibit A to Amendment No. One to Convention Funding Agreement, including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Additions to Project and related lands, buildings, structures, fixtures, equipment and personalty appurtenant or convenient to such facilities. "Junior Lien Bonds" means any bonds issued by the Authority secured by a lien junior and subordinate to the lien on the Tax Payments created for the Outstanding Bonds and any Additional Parity Bonds. ......- "Outstanding Bonds" means $4,730,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1991 outstanding as of October 1, 1996 and $47,815,000 aggregate principal amount of the Authority's Revenue Refunding Bonds, Series 1993 outstanding as of October 1, 1996. 2. Consent to Issuance of Bonds. Anything in the Original Agreement tot he contrary notwithstanding, the City hereby consents to the issuance of Additional Parity Bonds, Junior Lien Bonds or such combination thereof as the Authority may determine to finance the cost of the Additions to Project on such terms and in such manner as the Authority may determine. The Authority shall apply the proceeds received from the sale of said bonds to the Addition to Project and costs incurred in connection with the issuance of said bonds. .. 191210.1 2 ., ... .. IN WITNESS WHEREOF, the Authority and the City have caused this Amendment No. One to Convention Funding Agreement to be executed as of the 1st day of October, 1996, in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by their duly authorized officen, all as of the date first above written. THE AUTHORITY: COBB-MAIUETI'A COUSEUM AND EXHIBIT HALL AUTHORITY (S E A L) By: Chairman Attest: Secretary-Treasurer 3 191210.1 "-' '. - THE CITY CITY OF SMYRNA, GEORGIA (S E A L) By: Mayor Attest: City Clerk 191210.1 4 .. .. '- - The undersigned does hereby consent to the execution and delivery of this Amendment No. One to that certain Convention Funding Agreement, dated as of December 1, 1991. FIRST UNION NATIONAL BANK OF GEORGIA, as Trustee By: Name: Title: 5 191:310.1 .~ u iJ u EXHIBIT A TO AMENDMENT NO. ONE TO CONVENTION FUNDING AGREEMENT ADDmONS TO PROJECT DESCRIPTION The Additions to Project consist of the fonowing: 1. The acquisition of 11.299 acres formerly known as Eastern Air Lines Reservations Center Property (the "Eastern Property") for a future arena and/or additional parking and/or performing arts center or other facility deemed appropriate by the Cobb-Marietta Coliseum and Exhibit Hall Authority (the "Authority"). 2. Purchase of existing Galleria Mall. 3. ConstIUction of new parking deck containing approximately 300 spaces on 1.5 acres of land (including tunnel to new parking deck under Galleria Road) owned by the Authority. 4. ConstIUction of approximately 218,000 sq. ft. of new exhibit halls, ballrooms, meeting rooms and associated facilities. 5. Demolition of existing two-story parking deck and construction of a new approximately 925-space parking deck (approximately 660 additional spaces). 6. All expenses associated with 1-5 above. ..... The maximum aggregate principal amount of bonds to be issued for the foregoing will not exceed $60,000,000. 19113'.1 [indicates added language] .. AMENDMENT NO. ONE TO OPERATING AGREEMENT THIS IS AMENDMENT NO. ONE, dated as of October 1, 1996, by and between the COBB-MARIETI'A COliSEUM AND EXHIBIT HALL AUTHORITY (the "Authority") and the City of Smyrna, Georgia (the "City") to that certain Operating Agreement, dated as of December 1, 1991, by and between the Authority and the City (the "Original Agreement"). BACKGROUND The Original Agreement provided for the operation of certain facilities financed by, and the handling of tax moneys which were pledged by the Authority to secure, $48,200,000 original aggregate principal amount of the Authority's Revenue Bonds, Series 1991, which were refunded in part by $47,965,000 original aggregate principal amount of the Authority's Revenue Refunding Bonds, Series 1993 issued as Additional Parity Bonds (as defined in the Original Agreement). There are currently outstanding $4,730,000 principal amount of said Series 1991 Bonds and $47,815,000 principal amount of said Series 1993 Bonds. The parties hereto, together with the ... other political subdivision parties to the Convention Funding Agreement (as defined in the Original Agreement), desire to amend the Original Agreement to provide for the expansion of the Project (as defined therein) and to provide for the issuance of bonds by the Authority to finance the same, which bonds shall be secured by the payments to be made pursuant to the Convention Funding Agreement. AGREEMENT In consideration of the respective coveruh~ts hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Authority and the City agree as follows: 1. Amendments to OriajDal Aueement - nermitions. a. Amended Dermitious. Article I of the Original Agreement is hereby amended by modifying the following defined terms to read as follows: 1 ... 19125U "Additional Parity Bon.." means any revenue bonds of the Authority issued under the Indenture ranking on a parity with the Outstanding Bonds as to lien on the Tax Payments made pursuant to the Convention Funding Agreement. .. "Bonds" means the Outstanding Bonds and any Additional Parity Bonds and, for purposes of Articles IV through VII of this Agreement only, Junior Lien Bonds. "Project" means the multipurpose convention, exhibit hall and meeting facilities and any associated parking areas or improvements described in the Project Report including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Project and related lands, buildings, struCtUres, fixtures, equipment and personalty appurtenant or convenient to such facilities. As used in Articles IV through VII of this Agreement, the term "Project" shall also include the Additions to Project. b. Additional nermitions. Article I of the Original Agreement is hereby amended by adding thereto the following definitions: " Additions to Project" means those improvements described in Exhibit A to Amendment No. One to Convention Funding Agreement, including any and all other facilities, improvements and equipment deemed necessary or convenient in connection with the Additions to Project and related lands, buildings, structures, fixtures, equipment and personalty appurtenant or convenient to such facilities. -- "Junior Lien Bonds" means any bonds issued by the Authority secured by a lien junior and subordinate to the lien on the Tax Payments created for the Outstanding Bonds and any Additional Parity Bonds. "Outstanding Bonds" means $4,730,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1991 outstanding as of October 1, 1996 and $47,81S,OOO aggregate principal amount of the Authority's Revenue Refunding Bonds, Series 1993 outstanding as of October 1, 1996. 2. Amendments. a. Section 4.1 of the Original Agreement is hereby amended to read as follows: Section 4.1 Operation of the Project: Creation of Funds: Flow of Funds. The Authority shall cause the Project to be operated and maintained economically, efficiently and consistent with good business practices and in compliance with the terms of the Authority Act. The Authority shall at all times maintain the Project in good condition and repair and shall promptly repair, replace or restOre any damage or destruCtion to the Project or cause the proceeds from insurance from such damage or destruction to be applied in accordance with the terms hereof. It shall also cause the Project to be maintained and operated so as to make its benefits ., 2 191250U generally available to the residents of the City and it shall establish and maintain, or cause to be established and maintained, a schedule of rateS, fees and charges for the use of the facilities constituting the Project in accordance with the terms hereof. ~ The Authority agrees to create and maintain a special fund designated u "Cobb-Marietta Coliseum and Exhibit Hall Authority-Operating Revenue Fund" (the "Operating Revenue Fund"). All revenues derived from the ownership or operation of the Project and other properties and facilities in COMection therewith (including payments received by the Authority from the Trustee under the Indenture) shall be collected by the Authority and [applied to any payment of any outstanding Junior Lien Bonds and thereafter] deposited promptly with the depository for the Operating Revenue Fund. The Operating Revenue Fund shall be maintained separate and apart from other funds of the Authority. Moneys deposited to the Operating Revenue Fund shall be used and applied in the following order of priority: (i) First, to the payment of excess HotellMotel Tax due the Cities pursuant to Section 4.4 of the respective Operating Agreements; and (ii) Second, to the payment of operating and maintenance expenses set forth in Section 4.2 hereof; and (iii) Third, to the payment of excess HotellMotel Tax due the County pursuant to Section 4.4 of the Operating Agreement applicable to the County; and .. (iv) Fourth, to the payment of collection fees due the County and the Cities (excluding the City of Marietta) pursuant to Section 4.5 of the respective Operating Agreements; and (v) Fifth, to the payment of any amounts required under agreements for the promotion of tourism, convention or trade shows in the City, with the State of Georgia, a department of the State of Georgia, a convention and visitor's bureau created by local act of the Georgia General Assembly for a municipality or county, a private sector non- profit organization or some combination of the foregoing, provided that no moneys derived from the Liquor-by-the-Drink Tax shall be used for such purpose; and (vi) Sixth, for deposit to the Renewal and Expansion Fund hereinafter authorized. In the event moneys on deposit in the Operating Revenue Fund are not sufficient to pay when due either the excess Hotel/Motel Tax or the collection fee, payment of such amounts shall be made pro-rata based on the amount due to the Cities (excluding the City of Marietta) in the case of a deficiency in (iv) above. The Authority agrees to create and maintain a special fund designated u "Cobb-Marietta Coliseum and Exhibit Hall Authority-Renewal and Expansion Fund" (the "Renewal and -- 3 191:154.1 -w .... . Expansion Fund"). All of the moneys then remaining in the Operating Revenue Fund (except for a working capital reserve in an amount not to exceed one-twelfth of the current Fiscal Year's estimated operating and mainten.anee costs) after paying the costs set forth in (i), (ii) (Hi), (iv) and (v) above shall be deposited to the Renewal and Expansion Fund. Expenditures shall be made from the Renewal and Expansion Fund only for the purpose of: (a) in case of an emergency having a major effect upon the Project caused by some extraOrdinary occurrence which makes it necessary to use such funds for the alleviation or removal of such effects and an insufficiency of moneys exists in the Operating Revenue Fund to meet such emergency; (b) making replacements, additions, expansions, renovations and improvements and acquiring equipment and paying the cost of any architectUral or engineering studies, surveys or plans and specifications pertaining to the future development or expansion of the Project deemed to be reasonable and in the best interest of the Authority; (c) funding any reserve fund established in connection with the issuance of Additional [parity] Bonds [or Junior Lien Bonds] or paying the premium on any surety bond issued to fund any reserve fund established in connection with the issuance of Additional [parity] Bonds [or Junior Lien Bonds]; (d) correcting any deficiency in the monthly payments required to be made to the Sinking Fund under the Indenture [or under any indenture pursuant to which Junior Lien Bonds are issued]; (e) paying principal of and interest on any revenue bonds then outstanding and falling due at any time for the payment of which money is not available in the sinking fund securing the payment of same and the interest thereon; (t) making payments to the County or the Cities of amounts heretofore due but unpaid pursuant to the Operating Agreements; (g) making payments to the County or the Cities (except the City of Marietta) of amounts in excess of the balance required to be maintained in the Renewal and Expansion Fund from time to time as hereinafter provided; or (h) making payments for operating and maintaining the Project to the extent moneys in the Operating Revenue Fund are not sufficient for such purpose. The Authority hereby agrees to withdraw any moneys on deposit in the Renewal and Expansion Fund and transfer such moneys to the Debt Service Account or the Debt Service Reserve Account of the Sinking Fund (as defined in the Indenture) in the event that in any month there is a deficiency in the amount required to be on deposit in the Debt Service Account or the Debt Service Reserve Account of the Sinking Fund. [The Authority sball also withdraw any moneys on deposit in the Renewal and Expansion Fund to make payments wben due with respect to any Junior Lien Bonds (including any sinking fund or reserve requirements with respect thereto).] The Authority shall also withdraw any moneys on deposit in the Renewal and Expansion Fund to make payments due the City pursuant to Sections 4.4 and 4.5 hereof in the event moneys in the Operating Revenue Fund are insufficient to make such payments when due; provided, however, no amounts shall be withdrawn from the Renewal and Expansion Fund to make such payments to the City in any I)lonth in which there is a deficiency in the Sinking Fund [or any sinking fund or reserve fund created for Junior Lien Bonds] requiring a withdrawal from the Renewal and Expansion Fund. Additionally, no withdrawal shall be made from the Renewal and Expansion Fund except as provided below unless (i) the balance in the Renewal and Expansion Fund is greater than $2,000,000, or (ii) the ratio of total Tax Payments received by the Trustee less amounts paid the Cities pursuant to Section 4.4 of the applicable Operating Agreement for the preceding Fiscal Year over the maximum annual debt service on the Bonds in 4 1912$4.1 any succeeding sinking fund year exceeds 1.S. If the debt service coverage calculated as provided in (ii) above is less than 1.5, then withdrawals which would cause the balance in the Renewal and Expansion Fund to be less than $2,000,000 shall only be made for the purposes set forth in -w subparts (a), (d) and (h) above; provided, however, payments may be made for the purposes set forth in subpart (b) above under such circumstances so long as MBIA shall have consented to expenditures for such purpose. No moneys shall be expended from the Renewal and Expansion Fund. for rebating excess moneys to the Cities and the County as hereinafter provided for a period ending 10 years from the date hereof. From and after such date the Authority may, in its sole discretion, determine that amounts in excess of $2,000,000 on deposit in the Renewal and Expansion Fund are excess funds not needed for expenditures authorized to be made from the Renewal and Expansion Fund. In the event the Authority so determines that any amounts in the Renewal and Expansion Fund are excess funds, then any such amount determined to be excess funds shall be rebated to the Cities (except the City of Marietta) and the County. The amount to be rebated to the City as excess funds shall be calculated based on a fraction the numerator of which is the total Tax Payments theretofore made by the City (net of all amounts received as excess Hotel/Motel Tax as provided in Section 4.4 hereof) and the denominator of which is all Tax Payments received by the Authority from the County and the Cities (excluding the City of Marietta and net of all amounts previously received by the Cities and the County as excess Hotel/Motel Tax as provided above). Any payments received by the City hereunder shall, to the extent required, be expended in accordance with the Hotel/Motel Tax Law. .. b. Section 6.13 of the Original Agreement is hereby amended to read as follows: Section 6.13 Sale of the PrQjed. So long as any of the Bonds shall be outstanding and unpaid, the Authority will not encumber the Project or any part thereof, and it will not sell or otherwise dispose of the Project or any integral part thereof, except it may sell the Project as a whole, or substantially as a whole, to the State, the County or the Cities or to any other public body or authority authorized to own or operate the Project if the prcx=ds of such sale are at least sufficient to provide for the defeasance of all such Bonds in accordance with Article 8 of the Indenoue, and provided that the proceeds of any such sale to the extent necessary shall be deposited with the Trustee in trust and applied by it to the defeasance of all such Bonds in accordance with Article 8. Nothing contained herein, however, shall preclude sale of a part of the Project (a) in the ordinary course of business with respect to equipment, or (b) where (i) the sale would not, as certified by an authorized representative of the Authority, in any way materially adversely affect the operations or revenue producing capability of the Project, and (ii) the proceeds from such sale are used for additions, extensions or improvements to the Project, or [applied to the retinmeDt of a portion of the then outstanding Bonds or] deposited into the Operating Revenue Fund. -.. S 191154.1 ., - -- 3. Consent to Issuance of Bonds. Anything in the Original Agreement tot he contrary notwithstanding, the City hereby consents to the issuance of Additional Parity Bonds, Junior Lien Bonds or such axnbination thereof as the Authority may determine to finance the cost of the Additions to Project on such terms and in such manner as the Authority may determine. The Authority shall apply the proceeds received from the sale of said bonds to the Addition to Project and costs incurred in connection with the issuance of said bonds. 6 191154.1 .... - .. IN WITNESS WHEREOF, the Authority and the City have caused this Amendment No. One to Operating Agreement to be executed as of the 1st day of October, 1996, in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the date first above written. THE AUTHORITY: COBB-MARlETI'A COLISEUM AND EXHIBIT HALL AUTHORITY (5 E A L) By: Chainnan Attest: Secretary-Treasurer 1912$4.1 7 " - -. THE CITY CITY OF SMYRNA, GEORGIA (S E A L) By: Mayor Attest: City Clerk 191~.1 8 w 'ilia - The undersigned does hereby consent to the execution and delivery of this Amendment No. One to that certain Operating Agreement, dated as of December 1, 1991. FIRST UNION NATIONAL BANK OF GEORGIA, as Trustee By: Name: Title: 191:15oU 9